On August 14, 2012, the Second District Court of Appeal ordered its entire ruling published in the case of City of Maywood v. Los Angeles Unified School District (2012) __Cal.App.4th__ (Case Nos. B233739, B236408), including provisions dealing with the District’s compliance with the California Environmental Quality Act (CEQA).

The appellate court affirmed the trial court’s ruling requiring the Los Angeles Unified School District to address whether the proposed design of the school campus, which is bisected by an active roadway, presents significant impacts to pedestrian safety.  Second, the court held the Final Environmental Impact Report (FEIR) adequately addressed whether the project site was contaminated with hazardous materials, adequately analyzed the cumulative impacts from a planned expansion of the I-710 freeway, and contained an adequate discussion of project alternatives.

Pedestrian Safety

The proposed new school campus is on a site bounded on all four sides by streets as well as completely bisected by a street with active traffic. On one side of the bisecting street lie classrooms, on the other a football stadium and parking garage. The Draft EIR (DEIR) proposed a pedestrian bridge to carry students from one part of the school campus to another, as well as other traffic safety mitigation measures along the bisecting road. The DEIR also concluded, however, that the implementation of the proposed mitigation measures along the road was under the jurisdiction of another agency—the City of Maywood—and therefore could not be guaranteed by the school district.

The school district conceded that it had a duty to consider whether the design of the project would have a significant impact to pedestrian safety.  The court found that the evidence in the administrative record analyzed the safety of pedestrians traveling to the project site, but not within it. The court was concerned that the road bisecting the school presented potential impacts that were not analyzed in the EIR.  Although the school proposed a pedestrian bridge to address this concern, the court found that the record contained no evidence that students and other pedestrians would actually use the access bridge up and over the road bisecting the project.  The mere existence of the bridge, without more, was not substantial evidence that the potential impact would be mitigated, and the court ruled that the FEIR failed to adequately address pedestrian safety.

Cumulative Impacts

The appellate court further held that the trial court erred in concluding that the FEIR was required to analyze the cumulative impacts of a proposed freeway expansion and off-ramp near the project because the freeway project was not a reasonably foreseeable probable future project. (CEQA Guidelines, §§ 15130, subd.(a), 15355; Pub. Resources Code, § 21083, subd. (b)(2).) Since the City of Mayfield did not include enough information in the record to establish that the proposed off-ramp was a probable future project, the school district did not need to include the effect of the off-ramp in its cumulative impacts analysis. (See Grey v. County of Madera (2008) 167 Cal.App.4th 1099, 1127.) In this case, the city only included one email in the administrative record which showed that an off-ramp near the project was under consideration. This was insufficient to bring into question the school district’s cumulative impact analysis.

Hazardous Materials

The DEIR stated that the Notice of Preparation determined the project would have no significant impact or a less-than-significant impact related to hazardous materials. Nevertheless, because of public concerns, the school district conducted a phase I environmental assessment, a preliminary endangerment assessment, and a health risk assessment. As a result, several potential contamination hazards were revealed on the project site, including four industrial facilities and residential structures with the potential for lead-based paint and insecticide contamination.

In addition to the environmental assessment, the school district also worked with the Department of Toxic Substance Control (DTSC) to draft a remediation work plan and prepare to work under DTSC’s oversight until it received a “no further action” determination from DTSC.  Such a determination would confirm the elimination of any risk to the health and safety of students, faculty, employees, and visitors, before construction would begin. The school district argued in the appellate court that, under CEQA, it was “permitted to commit itself to craft mitigation measures that would satisfy enforceable performance criteria by the time of project approval.” Further, the school district argued, it would be “impractical and infeasible to complete [the process] before the EIR is prepared and certified and before the project is approved… In circumstances where practical considerations preclude devising specific measures to mitigate at the planning stage, CEQA allows a Lead Agency to commit itself to devise measures that will satisfy performance criteria at the time of project approval.”  Of particular note, in order to fully develop the plan, the school district would have had to procure access agreements for 27 residential properties at the project site and secure a judicial right of entry to conduct testing on the parcels. The court upheld the City’s analysis, reasoning that in accordance with  Oakland Heritage Alliance v. City of Oakland  (2011) 195 Cal.App.4th 884, 906, “[A] condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance.” Therefore, the court reversed the trial court and upheld the FEIR’s hazardous waste analysis.

Project Alternatives

The appellate court also held that the FEIR adequately analyzed a reasonable range of alternatives. The CEQA Guidelines require that an EIR “describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (CEQA Guidelines, § 15126.6, subd. (a).)   The DEIR contained analysis of six possible alternatives to the site, including a no build alternative, a reduced project alternative, and four alternatives at different locations. The City of Maywood argued that the school district should have analyzed a reduced-project alternative, one that had the same number of classrooms but occupied less land. The school district successfully countered that the Department of Education requires a certain amount of land per student, and to increase the density of the student population would violate the department’s maximum student-per-acre density of 150 students, so that alternative was unreasonable.  The court agreed that an “EIR is not required to consider alternatives which are infeasible.” (CEQA Guidelines, § 15126.6, subd. (a).) The school district also rejected consideration of an offsite alternative, which had greater impacts to pedestrian safety and greater potential hazardous materials issues concerns due to proximity to industrial facilities. The court overturned the trial court’s ruling that the FEIR should have given more consideration to this other site, holding that the school district had substantial evidence in the record supporting the FEIR’s statements, assessment, and rejection of the alternative site.

Note: the attorney’s fees portion of this case, holding that the Supreme Court’s decision in Whitley applies to equally to public entity litigants, has been previously discussed on our blog on July 19, 2012. See: http://rmmenvirolaw.flywheelsites.com/2012/07/second-district-court-of-appeal-confirms-public-entity-litigants-non-pecuniary-interests-irrelevant-in-evaluating-award-of-attorneys-fees-under-california-code-of-civil-procedure-sec/