Second District Orders Publication of Additional Sections of Opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552

On May 9, 2012, the Second District published parts 5-8 of its opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552. These sections featured Petitioner’s claims of inadequate CEQA analysis for cumulative impacts, mitigation measures, alternatives, and recirculation. In each case, the court found in favor of Respondent Metro. Parts 3 and 4 of the opinion remain unpublished.

Cumulative impacts

Petitioner argued that the cumulative traffic analysis in Metro’s Environmental Impact Report (EIR) was inadequate because it failed to consider traffic impacts of related projects. Under CEQA, an EIR must discuss cumulative impacts of a project if the project’s incremental effects are cumulatively significant, that is, if the project’s effects are significant when considered together with related effects of past, current, and probable future projects. Metro’s EIR did not separately assess cumulative traffic impacts since the discussion of the traffic impacts of the project itself was already cumulative, in that it was based on a combination of existing and future conditions with and without the project.

The court held that in analyzing cumulative impacts, the agency’s discussion should note the severity of the impacts and likelihood of their occurrence, but need not provide the same level of detail as is provided for the effect of the main project. Thus, for example, Metro’s “summary of [project] projections” did not need to include analyses specific intersections that were not under environmental review when the draft EIR was circulated.


Petitioner also argued that Metro failed to provide adequate mitigation measures and improperly deferred mitigation for parking, noise, safety, and construction.  The court found that the EIR’s mitigation measures were not uncertain, speculative, or infeasible, and found no evidence that the measures would be ineffective, unfunded, or not implemented.

To address spillover parking, Metro adopted a measure to monitor parking activity and work with local jurisdictions to create permit parking programs where necessary. The EIR noted that Metro would reimburse local jurisdictions for these programs. The agency included alternative mitigation options such as metered parking where a permit program would not suffice. Petitioner argued that Metro could not assure formation or effectiveness of the permit program, and that such a program would be inadequate unless it retained residents’ current ability to park in their neighborhoods. The court disagreed. The court distinguished this case from Gray v. County of Madera (2008) 167 Cal.App.4th 1099, where a mitigation measure proposing to provide bottled water to compensate for a decline in water levels “defie[d] common sense” and was not substantially similar to residents’ pre-project conditions. In contrast, residents here would still have street parking, making their situation substantially similar to pre-project conditions. Additionally, the court refused to assume that simply because Metro could not require local jurisdictions to adopt the permit program, the mitigation measure was inadequate. The mitigation set for the a specific performance standard in the form of monitoring parking activity to determine if the light rail activity would increase parking utilization to 100 percent and, if so, requiring Metro to work with local jurisdictions regarding permit parking programs. Citing the second prong of Section 21081(a), which allows an agency to make a finding regarding a significant effect that changes lie within another agency’s jurisdiction, the court noted that the feact that Metro could not require a local jurisdiction to adopt a permit program, did not make the mitigation measure inadequate.

Metro’s EIR addressed removal of street parking with measures that included replacement parking and revised parking designs, such as diagonal parking. Petitioner contended a lack of evidence that such measures were feasible, given high land costs, or would actually be implemented. Unlike in Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, there was no acknowledgement by Metro of any “great uncertainty” as to whether mitigation would ultimately be funded or implemented. The court also noted Petitioner’s failure to challenge the EIR’s financial evaluation of Metro’s ability to build the project, which included allowance for mitigation measures. Since the mitigation explicitly stated that property would have to be acquired for replacement parking, and identified parcels for that purpose, the court found the mitigation measures were not uncertain or speculative and petitioner failed to meet its burden to identify any deficiency.

In anticipation of noise and vibration effects from the project, Metro’s mitigation measures included installation of sound walls alongside the rail line. The agency added that where those walls would not suffice, it would provide for sound insulation of residences to meet the applicable noise threshold. Petitioner again argued that the measure lacked evidence of feasibility, and did not include details on how such improvements would be provided. The Court rejected Petitioner’s arguments, finding that CEQA does not require a lead agency to detail how it will actually carry out the proposed mitigation measure, so long as it commits to satisfying specific performance criteria. Metro was also not required to restore residents to their original position and eliminate noise and vibration completely; the agency merely had to minimize impacts to less-than-significant levels.

Metro included mitigation measures to address safety impacts, such as coordination with affected cities and encouragement of emergency response updates, which had been successfully implemented on other Metro rail lines. Though Petitioner repeated its argument of lack of proof of effectiveness and actual implementation, the Court saw no reason to conclude that cities would fail to update their emergency response procedures as other municipalities had done in the past.

Finally, the EIR identified possible closure of lanes in major streets during project construction, and proposed providing alternative lanes on cross streets in cooperation with the cities, as well as limiting construction to nights and weekends. Petitioner argued that these measures improperly deferred mitigation and did not include performance standards. The Court countered that limiting street closure to weekend and evening hours was an acceptable performance standard. Moreover, Metro’s required compliance with traffic control plans formulated in cooperation with affected jurisdictions and in accordance with specified manuals offered additional performance standards.


Petitioner claimed that Metro’s failure to include a detailed examination of grade separation in a particular segment of the project resulted in an inadequate consideration of project alternatives. The court disagreed, finding the EIR evaluated a reasonable range of alternatives and no inadequacy in the EIR’s failure to include a detailed examination of the suggested alternative. Detailed analysis of the suggested alternative was neither required, since the proposed project on its own would decrease environmental impacts to a less-than-significant level, and the suggested alternative would not have offered substantial environmental advantages over the proposed project.


Finally, Petitioner argued that the Final EIR reflected major changes to the project made after circulation of the draft, requiring recirculation of the EIR for further public comment. Such changes included new information on grade separation at various intersections; signal phasing at one intersection; parking; and noise impacts. CEQA requires recirculation of an EIR when significant new information is added, such that the public is deprived of a meaningful opportunity to comment upon a substantial adverse environmental effect. The court found that the added information did not disclose a new substantial environmental impact or a substantial increase in severity of one of the project’s impacts. The court highlighted the fact that Petitioner did not identify how the new information would undermine Metro’s less-than-significant-impact conclusions. Thus, Metro’s decision not to recirculate was supported by substantial evidence.


The summary of the baseline portion of this decision can be read here: