Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG 05200281
OPINION
STEIN, J.
Raymond A. Chamberlin (Chamberlin) appeals from an order and judgment denying in part and granting in part his petition for a writ of mandate, challenging the decisions of the City of Albany (Albany) and the City of Berkeley (Berkeley) to adopt negative declarations and approve the reconfiguration of portions of Marin Avenue within each city’s jurisdiction.
The court denied the petition with respect to Albany after it sustained Albany’s demurrer on the ground that the petition was filed more than 30 days after Albany filed its notice of determination. With respect to Berkeley, the court denied the petition to the extent that it sought an order directing Berkeley to perform an Environmental Impact Report (EIR), but directed Berkeley to conduct further environmental review of the effect the reconfiguration would have on surrounding streets if congestion on Marin Avenue caused traffic to divert to alternate routes.
Chamberlin appeals, contending: (1) The court erred by sustaining Albany’s demurrer because the statute of limitations was not triggered until Berkeley filed its notice of determination; and (2) the court should have determined that the environmental impacts of reconfiguring Marin Avenue in Albany and Berkeley are so substantial that both cities must prepare a full EIR.
Berkeley has filed a cross-appeal in which it contends: (1) The court should have granted Berkeley’s demurrer, and (2) with respect to the further environmental review the court did order, there is no substantial evidence supporting a fair argument that the reconfiguration of Marin Avenue would have a significant adverse effect in the form of traffic diversion to the streets adjacent to Marin Avenue. Chamberlin agrees that the order directing Berkeley to conduct this limited additional environmental review was in error, and declines to offer any argument in support of it.
Berkeley’s demurrer was based upon its contention that, because the petition was time-barred as to Albany, the initial study must be presumed adequate, and the petition alleged no showing of changed circumstances or new information. (See Pub. Resources Code, § 21166; Cal. Code Regs., tit. 14, § 15162.)
We shall affirm in part and reverse in part. With respect to Albany, we affirm because the petition was not timely filed. With respect to Berkeley, on Chamberlin’s appeal, we shall hold the court did not err by denying Chamberlin’s request for an order directing Berkeley to prepare an EIR. Based upon Chamberlin’s concession with respect to Berkeley’s cross-appeal, we shall reverse the judgment to the extent that the court directed Berkeley to perform additional environmental review of the issue of traffic diversion.
Facts
In 2004 and 2005, Albany and Berkeley decided to reconfigure, or restripe, the portion of Marin Avenue within each city’s jurisdiction to convert Marin Avenue from a four-lane road consisting of two lanes in each direction to three lanes consisting of one lane in each direction with a center two-way left turn lane and bicycle lanes. Except for a few blocks of Marin Avenue between Tulare Street to The Alameda, most of the reconfiguration was to take place in Albany. In Berkeley, a portion of Marin Avenue that is east of The Alameda was already a two-lane street. The purpose of the reconfiguration was to slow traffic and to improve pedestrian, vehicular, and bike safety.
The two cities collaborated on a single initial study that analyzed the potential environmental impacts of the reconfiguration of Marin Avenue in Albany and in Berkeley. Albany and Berkeley were each designated as lead agencies. In recognition of the possibility that Berkeley would approve and implement the reconfiguration after Albany acted, or would decide against it, Albany included a block-long “transition zone” at its border with Berkeley to allow a safe change from the three-lane reconfiguration to four lanes, as part of the proposal to be analyzed. It also planned to replace the transition zone with the three-lane configuration if and when Berkley also approved the reconfiguration of the portion of Marin Avenue within its jurisdiction.
The initial study concluded that the reconfiguration of Marin Avenue did not have the potential to cause any significant adverse environmental impacts. Based upon the initial study, Albany adopted a negative declaration (Cal. Code Regs., tit. 14, § 15074, subd. (b)) and approved the project to restripe the portion of Marin Avenue within its city limits, allowing for either a transition at the Berkeley-Albany border, or if and when Berkeley acted, a continuation of the three-lane reconfiguration to the Berkeley-Albany border. On November 18, 2004, Albany filed a notice of determination (Pub. Res. Code, §§ 21152, subd. (a); 21167, subd. (a)). On January 25, 2005, Berkeley adopted a negative declaration based upon the same initial study, and filed its notice of determination on January 28, 2005.
Further statutory references are to the Public Resources Code unless otherwise stated.
On February 28, 2005, Chamberlin filed a petition for writ of mandate seeking an order directing Albany and Berkeley to set aside their respective approvals, and to proceed with a full EIR.
The court sustained Albany’s demurrer without leave to amend on the ground that the petition was filed past the 30-day limitation period set forth in section 21167, subdivision (b). Berkeley also demurred, arguing that, in light of the order sustaining Albany’s demurrer, the initial study had to be presumed adequate, and the petition failed to state any grounds for challenging Berkley’s use of the same document, such as substantial changes in the project, or that new information had become available (see § 21166; Cal. Code Regs., tit. 14, § 15162). The court overruled Berkeley’s demurrer, and a motion for judgment pursuant to Code of Civil Procedure section 1094 based on the same argument.
On the merits of the petition, the court considered and rejected Chamberlin’s arguments that the reconfiguration of Marin Avenue would reduce pedestrian and vehicular safety, impair emergency access, and cause excessive vehicular congestion. Nevertheless, it held that, although the increase in travel time on Marin Avenue was not “sufficient to badly clog that roadway, [it] might be sufficient to result in the diversion of traffic to streets in areas adjacent to Marin Avenue.” It therefore issued a writ of mandate ordering Berkeley to conduct further environmental analysis of the possible diversion of traffic.
In response to Berkeley’s motion for clarification, the court issued a revised peremptory writ of mandate, specifying that the environmental analysis it required was only of the impact on traffic diversion caused by the project approved by Berkeley. The court also clarified that it was not directing Berkeley to prepare an EIR, and that Berkeley should decide what level of environmental review was appropriate based upon the record before it.
Analysis
I.
Chamberlin’s Appeal
1. Order Sustaining Albany’s Demurrer
Section 21167, subdivision (b) requires that a challenge to a local government’s adoption of a negative declaration must be filed within 30 days of the date of filing of the notice of determination. This statute of limitation is intentionally short and “constitutes a legislative determination that the public interest is not served unless challenges under CEQA are filed promptly.” (Oceanside Marina Towers Assn. v. Oceanside Community Development Com. (1986) 187 Cal.App.3d 735, 741 (Oceanside).) Section 21080.1, subdivision (a) provides that a negative declaration “shall be final and conclusive on all persons . . . unless challenged as provided in Section 21167.”
Albany approved the reconfiguration of the portion of Marin Avenue within its jurisdiction, and, as required by section 21152, filed its notice of determination within five days, on November 18, 2004. Chamberlin did not file the petition until February 28, 2005, long after the 30-day period specified in section 21167 had expired.
Chamberlin argues that since a “project” is defined by the California Environmental Quality Act (CEQA) guidelines as the “whole of an action” (CEQA Guideline 15378), the reconfiguration of Marin Avenue within the jurisdiction of both cities should be deemed a single project. From this premise he argues that the entire project was not approved until Berkeley acted, and therefore only its notice of determination triggered the statute of limitations. Chamberlin reasons that by acting separately to approve the reconfiguration of the portions of Marin Avenue within each city’s jurisdiction, Berkeley and Albany engaged in a version of the disapproved practice of “piecemealing.”
The analogy to piecemealing is not apt. CEQA does require that an initial study or an EIR analyze the “whole of an action” and forbids “piecemealing,” i.e., dividing projects “ ‘into bite-size pieces which, individually considered, might be found to have no significant effect on the environment . . .’ ” but when combined could have a significant effect. (Topanga Beach Renters Assn. v. Department of General Services (1976) 58 Cal.App.3d 188, 195-196.) Yet, “piecemealing” is exactly the opposite of what the cities did in this case. The initial study analyzed the potential environmental effects of the reconfiguration of Marin Avenue in both cities to avoid overlooking any potentially significant combined effects. The mere fact that the two cities collaborated in the preparation of a single initial study does not mean that the proposed reconfiguration of Marin Avenue within each city’s jurisdiction must constitute a single project under CEQA. CEQA does not preclude the use of a common document for the purpose of performing environmental review of more than one project. (See Neighbors of Cavitt Ranch v. County of Placer (2003) 106 Cal.App.4th 1092, 1102-1103.)
Moreover, the plain terms of section 21167 do not support Chamberlin’s argument that once Albany approved the reconfiguration of the portion of Marin Avenue within its jurisdiction, and filed its notice of determination, the limitations period was not triggered. Subdivision (b) of section 21167 provides that any “action or proceeding to attack, review, set aside, void, or annul the acts . . . of a public agency on the grounds of noncompliance [¶] . . . [¶] shall be commenced within 30 days from the date of the filing of the notice” of determination. Therefore, by its plain terms, the filing of a notice of determination triggers the 30-day period for filing a petition seeking to review or set aside Albany’s decision. If Chamberlin’s theory is that Albany violated CEQA by acting separately and filing its notice of determination before Berkeley, then that is a “ground of noncompliance” that should have been asserted within 30 days. Otherwise the limitations period could be evaded by the device of arguing that the filing of a notice of determination in itself was somehow void or should be annulled under CEQA. The mere fact that Berkeley intended to rely upon the same initial study in deciding whether to approve the reconfiguration within its jurisdiction cannot be grounds to toll the statute, or conclude that it was not triggered by Albany’s action. Otherwise, Albany’s decision would be subject to challenge for an indefinite period over which it had no control, and Albany would be deprived of the finality the Legislature intended by adopting this short limitation period. (Oceanside, supra, 187 Cal.App.3d at p. 741 [“the public interest is not served unless challenges under CEQA are filed promptly”].)
Nor is there merit to Chamberlin’s suggestion that Albany’s decision approving the reconfiguration of the portion of Marin Avenue within its jurisdiction was somehow not final until Berkeley acted. He suggests the lack of finality is shown by the allowance for a transitional zone at the border between Albany and Berkeley, and the plan to restripe this zone so the new three-lane configuration would be continued across the Berkeley-Albany border if and when Berkeley also undertook to reconfigure its portion of Marin Avenue. To the contrary, this contingent plan demonstrates that it was clearly contemplated that each city, as a lead agency, would act independently of the other, and that Albany’s approval of the reconfiguration within its jurisdiction was final even if Berkeley never acted.
Chamberlin’s suggestion that Albany should be deemed the “lead agency” for the reconfiguration within both cities’ jurisdiction because Albany was the first to contract for and approve the reconfiguration of Marin Avenue within its own jurisdiction (Cal. Code Regs., tit. 14, § 15367) also fails to avoid the bar of the limitations period. In support of this contention he relies upon a regulation that defines the lead agency as “the agency which will act first on the project,” when more than one agency meets the criteria. (Cal. Code Regs., tit. 14, § 15051, subd. (c).) Even if Albany were deemed the lead agency, the petition would still have been untimely. As the lead agency, Albany’s approval and filing of its notice of determination would unquestionably have triggered the statute of limitations because the lead agency is “responsible for determining whether an environmental impact report, a negative declaration, or a mitigated negative declaration shall be required [and its] determination shall be final and conclusive on all persons, including responsible agencies, unless challenged as provided in Section 21167 .” (§ 21080.1, subd. (a), italics added.)
Finally, we find no merit in Chamberlin’s argument that the limitations period should not have been triggered by the filing of Albany’s notice of determination because he did not know whether the impacts of Albany’s decision would be “substantial” until Berkley acted. The two cities relied upon the same initial study, which analyzed the impact of the reconfiguration in both jurisdictions. Therefore, all the necessary information to challenge Albany’s decision was available when it filed its notice of determination. There was simply no impediment to filing a timely action challenging Albany’s decision. The mere fact that, as Chamberlin contends, his primary concern was with the impacts of the reconfiguration of Marin Avenue in Berkeley, not Albany, is not a reason to toll the statute and deprive Albany of its protection. It would have been a simple matter for Chamberlin to preserve his right to challenge Albany’s decision, as well as Berkeley’s, by filing a petition within the time clearly defined by subdivision (b) of section 21167.
2. Denial of Petitioner’s Request for an Order Directing Both Cities to Perform an EIR
Chamberlin next contends there is a fair argument, supported by substantial evidence, that the reconfiguration of Marin Avenue may have a significant adverse effect on the environment, and therefore the court should have ordered both cities to perform an EIR. (See Citizens’ Com. to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1168.) Since we have concluded that Chamberlin’s challenge to Albany’s negative declaration was barred by the statute of limitations, we shall consider this argument only as it applies to the adoption of a negative declaration by Berkeley.
The trial court’s conclusions are not binding on us, and we review the administrative record independently. (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1182.) It is Chamberlin’s burden, as the appellant, “to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.” (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1348-1349 (Leonoff).) The “fair argument” test has two elements. First, a fair argument must be based on substantial evidence, consisting of “fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” (§ 21080, subd. (e)(1).) “Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (§ 21080, subd. (e)(2).) Second, the impact must be adverse and “significant,” meaning “substantial, or potentially substantial, adverse changes in physical conditions which exist within the area.” (§§ 21151, subd. (b) & 21068; see also National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1361.)
Although in the proceedings below Chamberlin urged the court to require an EIR based upon other significant adverse impacts, on appeal he confines his argument to increased hazards to pedestrians as a result of the design. Chamberlin contends that the addition of a two-way left turn lane in the middle of Marin Avenue, and the removal of what he describes as “small channelization islands and raised diverters” along the median to accommodate the new center left turn lane, would have a significant adverse impact on traffic safety by increasing the hazards to pedestrians, particularly at the intersection of Marin and Colusa.
Although Chamberlin’s brief discusses the issue of traffic congestion, he acknowledges that, due to several factors, including modification of the timing of lights, the projected traffic speed reduction never materialized, and he does not offer specific argument challenging the court’s conclusions with respect to the potential impact on traffic congestion.
The initial study concluded the project would not substantially increase hazards due to its design. It cited the most recent available data on collisions showing that the “accident rates in the project area are below the statewide averages.” The study analyzed the types and severity of collisions on Marin Avenue under both existing and reconfigured conditions. It observed that the reconfiguration was “designed to reduce the speed of traffic along Marin Avenue and include bicycle lanes to improve pedestrian and bicycle safety, while maintaining the existing level of automobile safety.” The design would reduce accidents attributable to unsafe speed, by reducing travel speed, but could increase other types of accidents, such as head-on collisions in the center two-way left turn lane. The study concluded that “[o]verall, the proposed roadway changes would not be expected to cause an increase in the number or the severity of accidents along the corridor.”
With respect to pedestrians, the initial study states: “Currently, pedestrians crossing Marin Avenue have to cross four travel lanes. The implementation of the proposed project would decrease pedestrian exposure to vehicular traffic by narrowing pedestrian crossings to two through lanes plus a center two-way-left-turn lane. Pedestrian safety would also be enhanced by the lower vehicular speeds on Marin Avenue. [¶] . . . [¶] Overall, the proposed roadway changes are anticipated to be beneficial for . . . pedestrians and would not result in an increased hazard due to a design feature.”
Chamberlin disagrees with these conclusions, but he fails to cite any substantial evidence in the record to support a fair argument that the addition of the two-way left turn lane would have a significant adverse impact because of increasing hazards to pedestrians. Instead, without any citation to the record, he asserts that the center two-way left turn lane poses a hazard to pedestrians because it is “likely that that lane will be used for passing, as [Chamberlin] has actually observed on occasion, and also by left-turners who, prior to a crosswalk will suddenly accelerate to make a hasty left turn” and drivers will be less likely to notice pedestrians in the crosswalk while concentrating on these maneuvers. He advances a similar theory regarding increased risk to pedestrians by drivers making right turns or passing on the right, because the bicycle lanes create a wider space “in which to misbehave at high speeds.” Again, he fails to provide citation to any evidence in the administrative record in support these arguments. (See Leonoff, supra, 222 Cal.App.3d at p. 1352 [“Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence supporting a fair argument of significant environmental effect”].) Chamberlin’s assertion in his brief on appeal, that he has personally observed drivers use the two-way left turn lane and the wider space on the right in a manner posing exactly these hazards to pedestrians, is not a substitute for, and does not constitute, substantial evidence in the administrative record.
In the proceedings below the court found that Chamberlin cited only his own evaluations or opinion.
Testimony as to personal observation of traffic by residents may, of course, constitute substantial evidence (see, e.g., Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 173), but Chamberlin’s brief merely asserts that he has made such observations, and provides no citation to such evidence in the administrative record.
Nor does Chamberlin identify substantial evidence in the record to support a fair argument that the removal of what he calls “channelization” islands and tire deflectors along the median of Marin Avenue, particularly at the intersection of Marin and Colusa Avenue, exposed pedestrians to greater hazards than before the reconfiguration. The administrative record contains evidence that Berkeley considered the impact of removal of these islands at the intersection of Colusa and Marin. Berkeley concluded that the benefits of these small islands were outweighed by the overall benefits of the reconfiguration in terms of reducing traffic speed and reducing the number of through traffic lanes pedestrians had to cross, particularly because pedestrian safety was already enhanced by the traffic signals at this intersection, and because the crossing distance across Marin at this intersection would remain shorter than normal because of right turn islands on the southeast and northwest corners. Chamberlin does not dispute that pedestrian traffic signals exist at the intersection. Nevertheless he argues that, for various reasons, the pedestrian crossing at this section was actually longer than the head of Berkeley’s office of transportation claimed. Yet, the evidence upon which he relies consists of photographs and a drawing of the intersection that were not part of the administrative record, and that the trial court refused to judicially notice. The trial court denied his request because the photographs were not properly authenticated. Moreover, it found the proffered evidence irrelevant because, in the absence of evidence regarding the length of other intersections, the court had no method or means to determine whether the oblique intersection at Colusa was wider than other right-angled intersections. Although Chamberlin asserts that this evidentiary ruling was wrong, he fails to meet his burden, as the appellant, to demonstrate error because he offers no legal argument or citation to authority in support of that contention. In any event, even if we were to assume arguendo that the Colusa intersection is wider than other intersections along Marin Avenue, Chamberlin does not explain why the traffic signal and pedestrian push buttons would be insufficient to continue to protect pedestrian safety at this intersection even after the islands were removed.
We also shall not consider Chamberlin’s citation in his reply brief to a Vermont study that he contends support his argument that a two-way left turn lane reduces pedestrian safety by eliminating the pedestrian refuge offered by raised median left turn lanes, or a federal study of safety at crosswalks, because he provides no citation to where, if at all, these studies appear in the administrative record.
For the foregoing reasons, we conclude that Chamberlin has failed to demonstrate there was substantial evidence to support a fair argument that the two-way left turn lane and the removal of channelization islands and tire deflectors along the median of Marin Avenue would expose pedestrians to greater hazards than before the reconfiguration. Chamberlin does not repeat the contentions below that there was substantial evidence to support a final argument that the reconfiguration of Marin Avenue would have other significant adverse environmental impacts. The court therefore did not err by refusing to order Berkeley to perform an EIR.
II.
Berkeley’s Cross-Appeal
The court held that, although there was no substantial evidence supporting a fair argument that the project Berkeley approved would have a significant adverse impact on traffic congestion, there was sufficient evidence to support a fair argument that an increase in travel time along Marin Avenue might result in traffic diversion. It therefore issued a writ of mandate ordering Berkeley to conduct further environmental analysis of the effects of possible diversion of traffic. The court later clarified that it was not directing Berkeley to prepare an EIR, and that Berkeley should decide what level of environmental review was appropriate based upon the record before it.
The initial study relied upon traffic simulation studies to determine that the reconfiguration would not have a significant adverse impact on traffic congestion. The study found that the reconfiguration would slow traffic by approximately five miles an hour, that travel time at the peak afternoon hour could increase by a minute or more. Nonetheless, the traffic simulation study showed that levels of service would remain at acceptable levels, or not be made worse, as a result of the reconfiguration.
The court noted that Berkeley probably already had the information needed to conduct such a review because Berkeley completed the reconfiguration in October 2005. All parties agreed that the planned five-mile-an-hour speed reduction had not occurred, and Berkeley, when it approved the project, had ordered staff to prepare a study on the impact of traffic congestion on adjacent streets following the reconfiguration.
In its cross-appeal, Berkeley challenges the further environmental review the court ordered on the issue of traffic diversion. Berkeley argues that the court’s conclusion that there was no substantial evidence of a significant adverse impact on traffic congestion precluded any reasonable inference that diversion would occur, because traffic diversion is a function of travel time and the availability of alternative routes. It further contends that neither the expressions of concern about this issue by a few members of the city council prior to voting to adopt the negative declaration, nor the personal observations of some residents that it was easy to divert onto adjacent streets, constituted substantial evidence that such diversion would occur, in light of the specific traffic simulation studies that found no significant congestion and no significant increase in travel time.
Berkeley also contends that the court erred in overruling its demurrer to the petition. We need not reach this alternative argument for reversal and entering judgment in Berkeley’s favor because we have held, with respect to Chamberlin’s appeal, that the court properly denied his demand that Berkeley be required to perform an EIR, and, based upon Chamberlin’s concession, reverse the order directing Berkeley to conduct further environmental review on the issue of traffic diversion.
Chamberlin agrees that the court erred in ordering further environmental review on this issue, and declines to offer any argument in support of it. Therefore, based upon his concession, we shall reverse this aspect of the court’s order.
Conclusion
The court shall vacate the writ to the extent that it directed Berkeley to perform additional environmental review of the issue of traffic diversion, and instead shall enter judgment in Berkeley’s favor. In all other respects the order and judgment is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.