Opinion
D080419
09-26-2023
Briggs Law Corporation, Cory J. Briggs and Janna M. Ferraro for Plaintiff and Appellant. Mara W. Elliott, City Attorney, M. Travis Phelps, Assistant City Attorney, and Jenny K. Goodman, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 37-2019-00018043-CU-WM-CTL Kenneth J. Medel, Judge. Affirmed.
Briggs Law Corporation, Cory J. Briggs and Janna M. Ferraro for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, M. Travis Phelps, Assistant City Attorney, and Jenny K. Goodman, Deputy City Attorney, for Defendant and Respondent.
IRION, J.
CREED-21 appeals the order denying the petition for writ of mandate by which it sought to compel the City of San Diego (the City) to set aside its adoption of an ordinance and related resolutions concerning reductions to the parking requirements for multifamily residential developments in transit priority areas. CREED-21 contends the City erroneously determined there was no possibility the new parking standards might have a significant effect on the environment and therefore were exempt from review under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). We disagree and affirm the order.
I.
FACTUAL BACKGROUND
Over the past decade, governments at the state and local levels have enacted parking-related measures designed to reduce use of automobiles and to encourage construction of affordable housing. To provide context for this litigation, we briefly summarize some pertinent statewide measures. We then turn to the City's adoption of the measures CREED-21 challenges.
A. State Measures
"During the last 10 years, the Legislature has charted a course of longterm sustainability based on denser infill development, reduced reliance on individual vehicles and improved mass transit, all with the goal of reducing greenhouse gas emissions." (Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712, 729 (Covina Residents).)
One important piece of legislation is Senate Bill No. 743 (2013-2014 Reg. Sess.) (Senate Bill No. 743), which the Legislature passed in 2013 to continue "encouraging land use and transportation planning decisions and investments that reduce vehicle miles traveled and contribute to the reductions in greenhouse gas emissions" required by prior legislation, and to switch the focus of transportation analysis under CEQA from automobile delay to "[n]ew methodologies" that better promote the goals of reducing emissions and promoting development of multimodal transportation systems. (Stats. 2013, ch. 386, § 1.) Senate Bill No. 743 added section 21099 to the Public Resources Code, which directed the Office of Planning and Research and the Secretary of the Natural Resources Agency to revise the CEQA Guidelines to "establish[ ] criteria for determining the significance of transportation impacts of projects within transit priority areas." (Pub. Resources Code, § 21099, subd. (b)(1), enacted by Stats. 2013, ch. 386, § 5.)Once such guidelines are certified by the secretary, "automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion, shall not be considered a significant impact on the environment pursuant to this division, except in locations specifically identified in the guidelines, if any." (Pub. Resources Code, § 21099, subd. (b)(2).) Certification, however, "does not relieve a public agency of the requirement to analyze a project's potentially significant transportation impacts related to air quality, noise, safety, or any other impact associated with transportation." (Id., subd. (b)(3).) Section 21099, subdivision (d)(1), of the Public Resources Code states: "Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment."
The CEQA Guidelines, which are regulations promulgated pursuant to Public Resources Code section 21083 to implement CEQA, are set forth in title 14, section 15000 et seq., of the California Code of Regulations. In this opinion, we refer to these regulations as "Guidelines." The Guidelines must be followed by all state and local agencies in implementing CEQA. (Guidelines, § 15000.)
Pursuant to the Legislature's directive, section 15064.3 was added to the Guidelines in 2018. Under that section, "[g]enerally, vehicle miles traveled is the most appropriate measure of transportation impacts" (id., subd. (a)); and for land use projects, "[g]enerally, projects within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact" (id., subd. (b)(1)).
An "infill site" is "a lot located within an urban area that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses." (Pub. Resources Code, § 21099, subd. (a)(4).) A "transit priority area" is "an area within one-half mile of a major transit stop that is existing or planned, if the planned stop is scheduled to be completed within the planning horizon included in a Transportation Improvement Program or applicable regional transportation plan." (Id., subd. (a)(7).) A "major transit stop" is "[a]n existing rail or bus rapid transit station," "[a] ferry terminal served by either a bus or rail transit service," or "[t]he intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods." (Pub. Resources Code, § 21064.3.)
Subsequent legislation sought to reduce reliance on automobiles and the associated need for parking in order to reduce the cost of housing and the adverse environmental effects of automobile use. Senate Bill No. 35 (20172018 Reg. Sess.) prohibited imposition of parking requirements for certain streamlined developments of affordable multifamily housing units within one-half mile of public transit. (Gov. Code, former § 65913.4, subd. (d)(1)(A), enacted by Stats. 2017, ch. 366, § 3.) Assembly Bill No. 2372 (2017-2018 Reg. Sess.) established limits on the number of parking spaces a city or county could impose on multifamily housing developments located on an urban infill site in a transit priority area or within one-half mile of a major transit stop. (Gov. Code, § 65917.2, subds. (a)(1), (c), as enacted by Stats. 2018, ch. 915, § 1.) Assembly Bill No. 2162 (2017-2018 Reg. Sess.) prohibited local governments from imposing minimum parking requirements on low- income housing projects built within one-half mile of a public transit stop. (Gov. Code, § 65654, as enacted by Stats. 2018, ch. 753, § 3.)
Amendments to Government Code section 65913.4 moved the prohibition to subdivision (e)(1)(A).
B. City Measures
1. Climate Action and Housing Plans
Consistent with the statewide legislative trend, during the past decade the City has pursued its own policies to increase the supply of affordable housing and to reduce private vehicle use. A climate action plan promulgated in 2015 sought to reduce greenhouse gas emissions by promoting alternative transportation modes and revising parking standards. (See <https://www.sandiego.gov/sites/default/files/final_july_2016_cap.pdf> [as of Sept. 26, 2023], archived at <https://perma.cc/FP8Z-HNCF>.) A housing plan promulgated in 2017 sought to encourage development and reduce housing costs in transit priority areas by reducing the amount of space required to be devoted to parking. (See <https://www.sandiego.gov/sites/default/files/20170621_housingsdfactsheetfin al.pdf> [as of Sept. 26, 2023], archived at <https://perma.cc/AJV5-G5DB>.)
2. Parking Study
As part of the implementation of its climate action and housing plans, the City in 2018 retained Chen Ryan Associates (Chen Ryan), a provider of transportation planning services, to update the City's parking data, to review approaches other cities had taken to reduce parking requirements, and to assess the parking demand of multifamily residential developments within the City. Chen Ryan studied supply and demand for parking in downtown San Diego (six sites) and in transit priority areas outside downtown (35 sites). The model they used showed the four factors with the highest influence on vehicle ownership and, ultimately on parking demand, were whether the household was a family, median household income, jobs within a mile, and jobs within a 30-minute transit ride. Chen Ryan found that at the sites outside downtown, maximum observed demand for parking ranged between 0.39 and 1.8 spaces per unit, and demand was below what the then-current regulations required at approximately 90 percent of the sites. Chen Ryan concluded the existing parking requirements of one to two spaces per unit could be reduced to meet current demand. At downtown sites, the supply of off-street parking spaces exceeded demand, the demand for such spaces was less than one per unit, and the supply of on-street parking exceeded demand except on weekends at two sites. Chen Ryan concluded that eliminating the minimum parking requirement and imposing a maximum of one space per unit for downtown was "not anticipated to impact the on-street parking supply in a noticeable way," because "demand never exceeded one parking space per unit and the demand for parking in the onstreet system occurs at opposite times as the demand for the off-street system."
Chen Ryan also conducted a review of parking reduction programs in other cities. They selected Portland, Oregon, and Seattle, Washington, as most comparable to San Diego for transit priority areas outside downtown. Seattle in 2004 removed minimum parking requirements for urban centers and areas served by light rail; in 2010 reduced by half the requirement for areas with frequent transit service (defined as bus service every 15 minutes during the morning peak and twice hourly at other times); and in 2018 mandated" 'unbundled' parking" (i.e., a parking space that is sold or rented separately from the sale or rental of a residential unit) in multifamily residential leases. During that timeframe, the percentage of households without vehicles slightly increased, and the number of vehicles per household slightly decreased. Between mid-2012 and late-2016, development data showed 87 percent of residential units had parking and 13 percent did not. In 2002-2003, Portland exempted from minimum parking requirements sites within 500 feet of frequent transit service (defined as bus service every 20 minutes), and in 2013 exempted only the first 30 units and imposed increasing parking requirements as the number of units increased. Between 2000 and 2016, the percentage of households without vehicles and the number of vehicles per household both decreased slightly. Chen Ryan reported transit ridership rates in Seattle and Portland as significantly higher than in San Diego.
Chen Ryan examined the downtown parking policies of Portland and Seattle as well as those of six other cities: the California cities of San Francisco, Oakland, Sacramento, and Santa Monica; Austin, Texas; and Minneapolis, Minnesota. All eight cities had no minimum parking requirements for multifamily residential units in their downtown areas, and all but Seattle imposed maximum requirements, which ranged from 0.25 to 1.6 spaces per dwelling unit. A long-range planner in Sacramento's Community Development Department considered the reduction in parking requirements to be the most significant accelerator of infill development. Rents significantly decreased in Minneapolis when developers built fewer parking spaces. Staff from Austin reported that even though no parking had been required since 2009, no new housing had been built without parking.
3. Adoption of Amendments to Parking Requirements
Based on Chen Ryan's report and input from the public during meetings City staff held with various planning groups in late 2018 and early 2019, City staff proposed an ordinance to amend multiple provisions of the San Diego Municipal Code related to parking requirements for multifamily residential developments within transit priority areas. The proposed amendments included the following: (1) in transit priority areas outside downtown, no parking spaces would be required, the developer would be required to provide "transportation amenities," and any parking provided would have to be unbundled; (2) in downtown, no parking spaces would be required, the number of spaces would be capped at one per dwelling unit if spaces were provided, any parking provided would have to be unbundled, and no transportation amenities would be required; and (3) for developments with at least 20 percent on-site housing that is affordable to persons with incomes less than or equal to 50 percent of the area median income and subject to an affordability restriction for at least 55 years, no parking spaces, transportation amenities, or unbundling would be required.
"Transportation Amenities" are features of a development that reduce vehicle trips and inform residents about and encourage them to use transportation alternatives such as walking, bicycling, ridesharing, and public transit. Such amenities include on-site programs for sharing cars and bicycles; transit subsidies; transit shelters and benches; and on-site facilities for delivery storage, childcare, and retail food sale.
An environmental policy consultant, ICF International, Inc. (ICF), prepared a memorandum for the City "to provide high-level, practitionerbased guidance on addressing a proposed reduction in parking requirements for projects located on infill sites within transit priority areas" and on evaluating such a proposed reduction under CEQA. In the memorandum, ICF discussed Senate Bill No. 743 and the "Technical Advisory on Evaluating Transportation Impacts in CEQA" issued by the Office of Planning and Research in April 2018 (Technical Advisory). ICF noted Senate Bill No. 743 had changed the focus of the analysis of transportation impacts under CEQA from automobile delay to vehicle miles traveled. ICF stated the Technical Advisory "indicates that projects that include the removal or relocation of off-street or on-street parking spaces would not likely lead to a substantial or measurable increase in vehicle travel." (See Technical Advisory, p. 17.) ICF also discussed the parking study Chen Ryan had conducted. Based on that study, ICF concluded: "Because the City's reduced parking requirements are directed at development that meets the requirements described in [Senate Bill No.] 743, the reduced parking requirements would support a reduction in [vehicle miles traveled]. As such, reduced parking requirements for multifamily residential projects that are located on an infill site and within a [transit priority area] would not result in a significant impact on the environment under CEQA."
The Technical Advisory is available at <https://opr.ca.gov/docs/20180416-743_Technical_Advisory_4.16.18.pdf> [as of Sept. 26, 2023] archived at <https://perma.cc/E3Q6-PTSH>.
In connection with the proposed parking requirement amendments and based in part on ICF's memorandum, a senior planner for the City prepared a memorandum to the City's planning department and then the planning department prepared a staff report for the City Council regarding exemption of the proposed amendments from CEQA review. The memorandum stated that by reducing parking requirements, the amendments would remove a cost impediment to providing housing of $35,000 to $90,000 per parking space. The memorandum and staff report both stated that because the proposed amendments were directed at developments contemplated by Senate Bill No. 743 (i.e., developments within transit priority areas), the amendments would support a reduction in vehicle miles traveled, and therefore would be exempt from CEQA review under the so-called "commonsense" exemption: "A project is exempt from CEQA if . . . [t]he activity is covered by the commonsense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA" (Guidelines, § 15061, subd. (b)(3)).
The City's planning commission and land use and housing committee (a subcommittee of the City Council) both recommended the City Council approve the proposed parking requirement amendments. The City Council put the proposed amendments on the agenda for its regular meeting on March 4, 2019.
The night before the meeting, CREED-21 submitted a letter to the City Council in opposition to the proposed amendments. In the letter, CREED-21 contended the City had to conduct review under CEQA before adopting the amendments, because the proposed reductions in parking requirements would require motorists to spend more time driving around looking for parking, and this additional driving would generate air pollution harmful to health. CREED-21 attached to the letter several articles from newspapers and other sources about correlations among traffic congestion, air pollution, and parking.
At the March 4, 2019 meeting, many people spoke, some in support of the proposed amendments to the parking requirements and others in opposition. CREED-21's secretary asked where the City would "find savings to make up for the additional greenhouse gas emissions caused by people circling," and how it planned to "handle the anger and divisiveness that will grow as fights for parking spaces simmer in the neighborhood." CREED-21's president remarked that reducing parking requirements alone was "not a good step" toward making housing more affordable. The director of policy at Circulate San Diego, which describes its mission as "to create excellent mobility choices and vibrant, healthy neighborhoods," spoke in support of the amendments. The director stated: "These parking reforms will allow San Diegans to choose whether they want to pay for car storage, or not," and "will make living without a car easier for residents who choose to do so with the addition of transportation amenities like transit passes, bike storage, onsite daycare facility, and transit infrastructure improvements." In a prior letter to the City proposing amendments to the parking requirements within transit priority areas, Circulate San Diego referenced a report it had published in 2017 that made recommendations for how the City could advance its climate, affordability, and economic growth goals. The report stated: "Affordable homes can provide additional greenhouse gas reductions. Recent studies have shown that locating affordable homes near transit provides measurable climate change benefits. Lower income residents are less likely to own a car, and more likely to ride transit. Locating affordable homes near transit provides not only a benefit to low income workers, but also to the environment." (Transit Oriented Development, p. 7, fns. omitted.)
The report, entitled "Transit Oriented Development," is available at <https://www.circulatesd.org/plan_diego_report_transit_oriented_developmen t> [as of Sept. 26, 2023] archived at <https://perma.cc/PQ39-K2Y9>.
After hearing from the public, the City Council discussed the proposed amendments to the parking requirements for multifamily residential developments in transit priority areas. During that discussion, the amendments were further amended to remove the exemption from requiring transportation amenities for developments with at least 20 percent of units affordable to low-income persons, and the City Council voted to approve the further amendments. The Council also voted to approve two related resolutions; one determined the commonsense exemption from CEQA review applied to the parking requirement amendments (No. R-312234), and the other added to the City's Land Development Manual an appendix concerning transportation amenities required by the amendments (No. R-312235). The mayor approved both resolutions.
The City Council held a regular meeting on March 19, 2019, to consider the proposed amendments to the parking requirements for multifamily residential developments in transit priority areas, as they were further amended at the prior meeting. After hearing from members of the public and further discussing the amendments, the City Council voted to adopt the proposed amendments as Ordinance No. O-21057. The mayor approved the ordinance.
The City filed a notice of exemption on March 22, 2019. The notice described the amendments to the parking requirements and stated they were exempt from CEQA review under the commonsense exemption set forth in Guidelines section 15061, subdivision (b)(3). The notice listed as the reasons for the exemption that the City had "conducted an environmental review and determined the . . . reduced parking requirements would not cause a significant effect on the environment" because they "are directed at development that meets the requirements described in [Senate Bill No.] 743 and would, thus, support a reduction in [v]ehicle [m]iles [t]raveled."
II.
PROCEDURAL BACKGROUND
CREED-21 challenged the City's adoption of the ordinance amending the parking requirements for multi-unit residential developments in transit priority areas and the related resolutions (collectively, the Parking Ordinance) by filing in the trial court an action against the City for violating CEQA. In a first amended complaint for declaratory relief and petition for writ of mandate, CREED-21 asserted a single count alleging the City illegally approved the Parking Ordinance by failing to subject it to environmental review as required by CEQA. CREED-21 sought a judgment or order declaring the approval null and void and prohibiting the City from taking any action to implement the Parking Ordinance unless and until the City complies with CEQA.
CREED-21 also sued the California Coastal Commission (Commission) for certifying the Parking Ordinance as consistent with the California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.). The parties agreed to proceed first against the City and then, if necessary, against the Commission. Because the Commission is not involved in this appeal, we do not further discuss CREED-21's claim against it.
In its answer, the City admitted the Parking Ordinance constituted a "project" under CEQA, but denied it was subject to environmental review. The City also denied CREED-21 was entitled to any of the relief it had requested.
The parties submitted briefs on the petition for writ of mandate in which the main dispute was whether substantial evidence supported the City's conclusion the Parking Ordinance qualified for the commonsense exemption. The trial court held a hearing, determined the City had adequately considered significant transportation impacts in reaching its conclusion, and denied CREED-21's petition.
CREED-21 appealed the denial order.
An order denying a petition for writ of mandate that leaves no issue to be resolved against one of multiple defendants is immediately appealable as a final judgment. (City of Calexico v. Bergeson (2021) 64 Cal.App.5th 180, 190; Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9.)
III.
DISCUSSION
A. CEQA Review Process
We begin with some general principles of CEQA review. To ensure public agencies consider the long-term environmental effects of activities they approve or undertake, CEQA establishes a three-tier review process when an agency is asked to approve or undertake an activity that may significantly affect the environment. (Pub. Resources Code, § 21001; Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 11841185 (Union of Medical Marijuana Patients).) First, the agency must determine whether the activity is a" '[p]roject'" subject to CEQA, i.e., whether the activity "may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment" (Pub. Resources Code, § 21065). (Union of Medical Marijuana Patients, at p. 1185.) Only if the activity is a project does CEQA apply, and the agency must then proceed to the second tier to determine whether the project is exempt from CEQA under a statute or the Guidelines. (Id. at p. 1186.) If the agency concludes the project is exempt, it issues a notice of exemption. (Ibid.) Only if no exemption applies must the agency proceed to the third tier before approving the project. (Ibid.) That tier requires the agency to conduct an initial study and, based on the results of that study, to prepare a negative declaration (if the initial study identifies no potential significant environmental effects), a mitigated negative declaration (if the initial study identifies potential significant environmental effects that can be fully mitigated by changes the project proponent agrees to make), or an environmental impact report (if the initial study identifies potential significant environmental effects and a mitigated negative declaration is not appropriate). (Id. at pp. 1186-1187.)
" 'Significant effect on the environment' means a substantial, or potentially substantial, adverse change in the environment." (Pub. Resources Code, § 21068.) Such a change may be "in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance." (Guidelines, § 15382.)
B. Parties' Contentions
The parties agree the Parking Ordinance is a "project" under the first tier of the CEQA review process. (See California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225, 1240 (California Unions) ["The adoption of a rule or regulation can be a project subject to CEQA."]; cf. Union of Medical Marijuana Patients, supra, 7 Cal.5th at p. 1199 [City's adoption of ordinance amending zoning to permit establishment of new type of business was CEQA project]; Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 382-385 (Muzzy Ranch) [same for county's adoption of land use compatibility plan that could displace development].) They part ways at the second tier. The City contends environmental review could stop there based on the commonsense exemption, because substantial evidence showed the Parking Ordinance would not significantly affect the environment and CREED-21 did not raise any legitimate question that it could. CREED-21 counters that the City could not rely on the commonsense exemption to stop review at tier two, because it did not actually evaluate the potential adverse environmental impacts of the Parking Ordinance, and substantial evidence in the record raised legitimate questions about those impacts. CREED-21 also contends the consistency of the Parking Ordinance with Senate Bill No. 743 does not exempt it from CEQA review, and no statutory or categorical exemption applies. CREED-21 thus argues the City had to complete the third tier of CEQA review before it could adopt the Parking Ordinance.
C. Commonsense Exemption and Standard of Review
A public agency need not proceed to the third tier of CEQA if "[t]he activity is covered by the commonsense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA." (Guidelines, § 15061, subd. (b)(3).)"' "May" means a reasonable possibility.'" (Clews Land &Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 191.) "A remote or outlandish possibility of an environmental impact will not remove a project from the commonsense exemption, but if legitimate, reasonable questions can be raised about whether the project might have a significant impact, the agency cannot find with certainty the project is exempt." (California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 194.) If such questions can be raised, the commonsense exemption would not apply, and the agency would have to proceed to the third tier of CEQA review. (Union of Medical Marijuana Patients, supra, 7 Cal.5th at p. 1185.)
"Our inquiry into whether [a public agency] has complied with CEQA extends only to 'whether there was a prejudicial abuse of discretion.'" (Muzzy Ranch, supra, 41 Cal.4th at p. 381.) "Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Pub. Resources Code, § 21168.5.) Whether the commonsense exemption applies presents a factual question on which the agency bears the burden of proof. (Muzzy Ranch, at p. 386.)
On a challenge to an agency's exemption determination, a court reviews the information submitted on the project, including at any hearings the agency held, to decide whether substantial evidence supports the agency's determination. (Pub. Resources Code, § 21168.5; Protecting Our Water &Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495; CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 510.) "[S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact." (Pub. Resources Code, § 21080, subd. (e)(1); accord, Guidelines, § 15384, subd. (b).) "Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, [or] evidence that is clearly inaccurate or erroneous ...." (Pub. Resources Code, § 21080, subd. (e)(2); accord, Guidelines, § 15384, subd. (a).) Substantial evidence supports a conclusion if the record contains "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Guidelines, § 15384, subd. (a); see Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 697-698 [applying definition of "substantial evidence" in Guidelines, § 15384 to review of agency's exemption decision].)
"In a CEQA case, as in other mandamus cases, our review of the administrative record for error is the same as the trial court's; we review the agency's action, not the trial court's decision." (Muzzy Ranch, supra, 41 Cal.4th at p. 381.)
CREED-21 contends the City urged and the trial court applied an "incorrect and overly deferential standard of review" to the City's determination the commonsense exemption applied to the Parking Ordinance. We are not concerned with errors that allegedly occurred in the trial court, because "we review the agency's action, not the trial court's decision. '[I]n that sense appellate judicial review under CEQA is de novo.'" (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 215.) CREED-21 also contends the City continues to advocate and to apply the wrong standard of review on appeal. We need not, and do not, address that contention. We have set out the applicable standard of review in the text and proceed to apply that standard in deciding this appeal.
D. Whether Substantial Evidence Supports City's Exemption Determination
We now turn to the administrative record to see whether it contains substantial evidence showing "with certainty that there is no possibility that the activity in question may have a significant effect on the environment" (Guidelines, § 15061, subd. (b)(3)), as the City concluded. The activity CREED-21 challenges is the Parking Ordinance's reduction of the previously required minimum number of parking spaces per unit for multifamily residential developments in transit priority areas. The significant effects on the environment CREED-21 contends the reductions may produce are the "increased air pollution generated by people wasting additional time driving around looking for a place to park, vehicle idling, and moving at stop-and-go rates of speed as well as the increased exposure to those air pollutants in parking garages, and traffic and street congestion." We thus must determine whether relevant information in the administrative record and reasonable inferences drawn from that information support the City's conclusion there is no reasonable possibility the parking reductions authorized by the Parking Ordinance will cause the increased air pollution, traffic, and street congestion identified by CREED-21. (See Pub. Resources Code, § 21068 [defining "significant effect on the environment"]; Guidelines, § 15384, subd. (a) [defining "substantial evidence"].)
We can eliminate from consideration CREED-21's concerns about increased traffic and street congestion. Under Public Resources Code section 21099, subdivision (b)(2), which was enacted as part of Senate Bill No. 743 and applies to projects in transit priority areas, "[u]pon certification of the guidelines by the Secretary of the Natural Resources Agency pursuant to this section, automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion, shall not be considered a significant impact on the environment pursuant to this division, except in locations specifically identified in the guidelines, if any." Under the certified guidelines, except for roadway capacity projects, "a project's effect on automobile delay shall not constitute a significant environmental impact." (Guidelines, § 15064.3, subd. (a).) Public Resources Code section 21099 "does not relieve a public agency of the requirement to analyze a project's potentially significant transportation impacts related to air quality, noise, safety, or any other impact associated with transportation," but does make clear "the adequacy of parking for a project shall not support a finding of significance pursuant to this section." (Id., subd. (b)(3); see San Franciscans Upholding the Downtown Plan v. City &County of San Francisco (2002) 102 Cal.App.4th 656, 697 ["The social inconvenience of having to hunt for scarce parking spaces is not an environmental impact; the secondary effect of scarce parking on traffic and air quality is."].) Thus, although "secondary parking impacts caused by ensuing traffic congestion ('air quality, noise, safety, or any other impact associated with transportation') must be addressed, parking impacts, in and of themselves, are exempted from CEQA review for these projects." (Covina Residents, supra, 21 Cal.App.5th at p. 728.)
Citing our decision in Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, CREED-21 faults the City for "fail[ing] to consider any of the potential secondary transportation impacts of the [Parking Ordinance]." Taxpayers held an environmental impact report was required because the record contained substantial evidence the project at issue could reduce street parking available to residents and cause significant traffic congestion in the neighborhood. (Id. at pp. 1050-1054.) Taxpayers, however, is not on point because it was decided before the enactment of Senate Bill No. 743 and its implementing Guidelines. As discussed in the text, those measures provide that inadequate parking, traffic congestion, and automobile delay shall not constitute significant environmental impacts of projects in transit priority areas.
The increased air pollution CREED-21 contends the Parking Ordinance may cause was a pertinent consideration for the City in determining whether the Parking Ordinance was exempt from CEQA review, because a transportation-related adverse change in air quality may constitute a significant effect on the environment requiring review. (Pub. Resources Code, §§ 21068, 21099, subd. (b)(2); Guidelines, § 15382.) Under the Guidelines enacted pursuant to Senate Bill No. 743, "[g]enerally, vehicle miles traveled," i.e., "the amount and distance of automobile travel attributable to a project," is "the most appropriate measure of transportation impacts." (Guidelines, § 15064.3, subd. (a).) Using vehicle miles traveled as a proxy for air pollution generated is reasonable in this case, based on the common-sense proposition that the more miles an automobile is driven the more exhaust it generates. As we shall explain, based on certain presumptions authorized by the Guidelines and information in the administrative record, the City could conclude there was no reasonable possibility the Parking Ordinance might cause a significant increase in vehicle miles traveled that, in turn, might significantly increase air pollution.
The Guidelines enacted pursuant to Senate Bill No. 743 provide: "Generally, [land use] projects within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact. Projects that decrease vehicle miles traveled in the project area compared to existing conditions should be presumed to have a less than significant transportation impact." (Guidelines, § 15064.3, subd. (b)(1).) The Parking Ordinance expressly applies to multifamily residential development projects in transit priority areas, which include those within one-half mile of an existing or planned major transit stop. (See Pub. Resources Code, § 21099, subd. (a)(7), quoted at fn. 3, ante.) Hence, any such project within one-half mile of an existing (but not a planned) major transit stop presumably would not cause a significant increase in vehicle miles traveled or a related increase in air pollution. (Guidelines, § 15064.3, subd. (b)(1).) And as discussed below, information in the administrative record supports the conclusion the Parking Ordinance likely would decrease vehicle miles traveled in transit priority areas, so that new housing developments in those areas "should be presumed to have a less than significant transportation impact." (Ibid.)
In a memorandum to the City, environmental policy consultant ICF cited the Office of Planning and Research's Technical Advisory for the point that "projects that include the removal or relocation of off-street or on-street parking spaces would not likely lead to a substantial or measurable increase in vehicle travel." (See Technical Advisory, p. 17.) As potential measures for a project to reduce vehicle miles traveled, the Technical Advisory identifies limitation or elimination of parking supply, unbundling of parking, inclusion of affordable housing in the project, and provision of transportation amenities (see id., pp. 22-23), all of which are features of the Parking Ordinance. ICF also considered the results of the parking study Chen Ryan had conducted for the City, and stated that reduced parking requirements for multifamily residential projects in transit priority areas "would support a reduction in [vehicle miles traveled]." In its report to the City, Chen Ryan found that in the peer cities of Seattle and Portland automobile ownership decreased after parking requirements were reduced, and transit ridership rates in those cities was much higher than in San Diego. Chen Ryan also found the supply of parking well exceeded demand in transit priority areas in San Diego, and concluded the demand could still be met even if the parking requirements were reduced to the levels ultimately enacted in the Parking Ordinance. Chen Ryan reported household income and location of jobs within a 30-minute transit ride highly influence vehicle ownership, and Circulate San Diego reported lower-income residents are less likely to own cars and more likely to use transit. Reducing the cost of housing by eliminating the requirement to build parking spaces in transit priority areas, which the City estimated cost $35,000 to $90,000 per space, would therefore be expected to attract residents who either cannot afford or do not wish to incur the expense of a car and to lead to a decrease in vehicle use.
The facts and opinions discussed above, as well as the reasonable inferences drawn from them, constitute substantial evidence. (Pub. Resources Code, § 21080, subd. (e)(1); Guidelines, § 15384, subd (b).) Based on that evidence, the City could conclude that eliminating the parking requirements for multifamily residential developments in transit priority areas and requiring developers to unbundle parking and provide transportation amenities would not increase vehicle use in those areas. Rather, the City could conclude those measures would decrease housing costs, encourage public transit use, and reduce vehicle use. Substantial evidence thus supports the presumptions the Parking Ordinance would have a less than significant transportation impact (Guidelines, § 15064.3, subd. (b)(1)) and the City's determination that "there is no possibility that the [Parking Ordinance] may have a significant effect on the environment" (id., § 15061, subd. (b)(3)). (See Pacific Palisades Residents Assn., Inc. v. City of Los Angeles (2023) 88 Cal.App.5th 1338, 1369-1370 [substantial evidence exists if reasonable people could agree agency's decision had factual and legal support].)
E. CREED-21's Objections to City's Exemption Determination
CREED-21 raises several objections to the City's determination the Parking Ordinance was exempt from CEQA review. None has merit.
1. Failure to Conduct Factual Analysis of Potential Environmental Impacts
CREED-21 first objects the City failed to do any factual evaluation or empirical analysis of the potential environmental impacts of the Parking Ordinance, and instead relied solely on the consistency of the Parking Ordinance with the policy goals of Senate Bill No. 743 to conclude the commonsense exemption to CEQA review applied. (See Muzzy Ranch, supra, 41 Cal.4th at pp. 386-387 [" '[T]he agency's exemption determination must [rely on] evidence in the record demonstrating that the agency considered possible environmental impacts in reaching its decision.' "].) It is true that in relying on the commonsense exemption, the City assumed the incentives created by the Parking Ordinance would produce the desired result of decreasing vehicle miles traveled and associated greenhouse gas emissions in transit priority areas. The incentives are consistent with the long-term legislative goal, embodied in Senate Bill No. 743 and other state measures (see pt. I.A., ante), of reducing such emissions by promoting infill development, decreasing reliance on individual vehicles, and improving mass transit. (See Covina Residents, supra, 21 Cal.App.5th at p. 729.) Of course, one cannot know for sure whether the incentives will in fact accomplish the legislative goal until the Parking Ordinance has been in effect for some time. Nevertheless, as discussed above, the parking study Chen Ryan conducted for the City and other information in the administrative record support the conclusion the Parking Ordinance will lead, as similar measures in other cities have led, to a reduction in vehicle miles traveled, the metric public agencies must use to assess transportation impacts under CEQA (Guidelines, § 15064.3, subd. (a)). (See pt. III.D., ante.)
CREED-21 suggests the City could not rely on Chen Ryan's parking study because it conceded in the trial court that the study was not an environmental impact report and was not intended to assess all the environmental effects of the Parking Ordinance. An environmental impact report need not be prepared, however, unless and until the third tier of CEQA review is reached. (Union of Medical Marijuana Patients, supra, 7 Cal.5th at pp. 1186-1187.) Exemption determinations are made at the second tier. (Id. at p. 1186.) "Determining whether a project qualifies for the commonsense exemption need not necessarily be preceded by detailed or extensive factfinding. Evidence appropriate to the CEQA stage in issue is all that is required." (Muzzy Ranch, supra, 41 Cal.4th at p. 388.) Because the Parking Ordinance is a legislative enactment that does not directly impact the physical environment and the ability to forecast its actual impacts on the environment is limited, the City's general analysis of potential impacts satisfied CEQA. (See ibid. [less detail is required in CEQA analysis when environmental impacts are indirect and difficult to predict with accuracy].)" 'In addition, it is relevant, although by no means determinative, that future effects [on the physical environment] will themselves require analysis under CEQA.'" (Ibid.) Because the City will have to review for potential significant environmental impacts each specific development project subject to the Parking Ordinance as it comes up for approval, the City did not have to anticipate and evaluate all such impacts before determining the Parking Ordinance qualified for the commonsense exemption. Rather, as we have explained, the City's factual evaluation and the presumptions of Guidelines section 15064.3, subdivision (b)(1), sufficed to show the exemption applied. (See Muzzy Ranch, at p. 386 ["The exemption can be relied on only if a factual evaluation of the agency's proposed activity reveals that it applies."].)
That future proposed multifamily residential development projects in transit priority areas will themselves be subject to CEQA review distinguishes this case from California Unions, supra, 178 Cal.App.4th 1225, on which CREED-21 relies for the contention that full environmental review must be done before adoption of the Parking Ordinance to prevent future challenges to applications of the ordinance from being time-barred. The rule at issue in California Unions required the public agency to issue potentially environmentally harmful paving offsets after expiration of the public comment period and payment of a fee. (Id. at pp. 1246-1247.) By contrast, the Parking Ordinance does not require the City to approve a multifamily residential development project in a transit priority area merely because the project complies with the ordinance. The City thus has not "lost the opportunity to consider possible alternatives and mitigation measures" for proposed projects as they come up for approval. (Id. at p. 1247.)
2. Legitimate Questions About Potential Significant Environmental Impacts
In its next objection to the City's exemption determination, CREED-21 contends the commonsense exemption does not apply because the City was presented with substantial evidence raising legitimate questions about whether the Parking Ordinance may have a significant effect on the environment. "A party challenging an agency's exemption decision must produce substantial evidence that the project has the potential for a substantial adverse environmental impact." (Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 728; accord, Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830, 857 (Hines).) CREED-21 has not done so.
Citing written submissions from itself and others to the City Council in opposition to the Parking Ordinance, CREED-21 asserts elimination of minimum parking requirements for multifamily residential developments in transit priority areas may increase air pollution as motorists "driv[e] around looking for a place to park" in "stop-and-go traffic common in neighborhood settings." According to CREED-21, "removing parking alone will [not] reduce the number of pollution-generating vehicles on the road or the number of [vehicle miles traveled]"; it will "only displace those vehicles and force people to drive around seeking alternative parking-likely street parking in already crowded streets and neighborhoods." These assertions are built on false assumptions.
CREED-21 erroneously assumes the Parking Ordinance will reduce the supply of parking spaces to a level insufficient to meet demand. But Chen Ryan reported the supply of parking spaces exceeded demand in the transit priority areas subject to the Parking Ordinance, and previous minimum parking requirements could be reduced without leading to inadequate supply. CREED-21 has identified no contrary evidence in the record. Furthermore, the Parking Ordinance does not prohibit the construction of new parking spaces; it merely eliminates the previous requirement that at least one space per dwelling unit be built, and caps the number for downtown developments at one space per unit. Based on its analysis of the results of similar parking reduction measures in other cities, Chen Ryan reported: "[I]n areas where the market allows for multifamily residential housing to be built without parking, developers would have the flexibility to provide housing with zero on-site parking spaces. In [transit priority areas] where parking supply is still desired, developers have the freedom to provide parking as supported by the market." There is no reason to assume market participants will behave irrationally (e.g., a tenant by renting an apartment without a parking space but insisting on keeping a car, or a developer by building apartments without parking spaces when would-be tenants want them) to create the parking shortage CREED-21 forecasts. (See Civ. Code, § 3546 ["Things happen according to . . . the ordinary habits of life."].)
In its reply brief, CREED-21 objects the parking study was flawed for failing to disclose the occupancy (or vacancy) rates of the sites where parking spaces were counted and for counting at too few sites at a time of year when many residents might have been away. We do not consider such belated objections. (See, e.g., League to Save Lake Tahoe Mountain etc. v. County of Placer (2022) 75 Cal.App.5th 63, 98 ["Arguments not properly raised in the opening brief are disregarded."]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 ["Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument."].)
CREED-21 also erroneously assumes elimination of minimum parking requirements for multifamily residential developments in transit priority areas is the only step the Parking Ordinance takes to reduce the number of vehicle miles traveled in such areas. But it is not the only step. The Parking Ordinance also requires developers to provide unbundled parking in all transit priority areas and transportation amenities in transit priority areas outside downtown. As Chen Ryan explained in the report of the parking study it conducted for the City, by selling or leasing a dwelling unit separately from a parking space instead of automatically including it in the sale or lease, developers can reduce the cost of the unit and attract homebuyers or tenants desiring a less expensive residential option without car ownership. The sale or lease of unbundled parking spaces not purchased or leased by residents of the development to nonresidents could reduce the number of motorists looking for street parking. Chen Ryan also explained that placing a cost on vehicle storage through unbundled parking and providing transportation amenities incentivize residents to use other modes of transportation. The Office of Planning and Research, which develops the CEQA Guidelines, included in its Technical Advisory, at pages 22-23, unbundled parking and transportation amenities among the measures to reduce vehicle miles traveled. CREED-21 cites no evidence in the record showing the multi-step approach of the Parking Ordinance is unlikely to achieve the intended decrease in vehicle miles traveled in transit priority areas, and instead may increase those miles and associated air pollution by forcing motorists to drive around looking for parking.
The articles about parking and air pollution attached to CREED-21's letter to the City Council do not address parking-reduction measures similar to the Parking Ordinance. Two articles by the same author concluded the failure to charge market rates for street parking caused traffic congestion and associated air pollution in large cities around the world, and recommended cities charge more for street parking. A third article stated cars circling a city as drivers look for parking cause traffic congestion, waste fuel, and produce environmentally undesirable carbon emissions. Three other articles attributed an increased health risk to vehicle emissions caused by idling and traffic congestion. None of the articles provides factual support for CREED-21's claim the Parking Ordinance may increase traffic congestion and air pollution and therefore is not exempt from CEQA review.
Other courts have rejected arguments based on increased traffic congestion and related air pollution similar to those CREED-21 urges. In one case, a neighborhood group challenged the adequacy of an environmental impact report for an infill development project by arguing" '[a]dditional vehicles, residents, visitors, and others coming to the property because of the Project will undeniably contribute to, and exacerbate, the already bad air quality, traffic, and other environmental conditions.'" (East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 296-297.) Rejecting the argument, the Court of Appeal stated: "As to the concern of increased air pollution, we note the Project is an infill residential project and without such projects, development would likely occur in more distant suburban areas, resulting in even more pollution from automobile commuter traffic." (Id. at p. 297.)
In another case, the plaintiff challenged the adequacy of an environmental impact report for a project that included a reduction in available parking at a park. (Save Our Access etc. v. Watershed Conservation Authority (2021) 68 Cal.App.5th 8.) In the course of its discussion, the Court of Appeal noted that "[p]arking deficits are always inconvenient for drivers, but they do not always cause a significant adverse physical impact on the environment." (Id. at p. 25.) For example, an urban project that "would attract crowds downtown without providing parking for the people who might prefer to drive . . . would have the environmentally desirable effect of increasing reliance on mass transit." (Id. at p. 26.) Returning to the parking reduction at issue, the Court of Appeal rejected as "unsubstantiated speculation" the plaintiff's contention that park visitors unable to find a parking spot would "not 'just turn around and go elsewhere,'" and instead would" 'circle and idle, hoping to catch a space being vacated before someone else does.'" (Id. at p. 29.) Rather, the Court of Appeal held, the defendant reasonably could assume visitors unable to find a parking space would go elsewhere. (Ibid.)
Like the claims rejected in those cases, CREED-21's claim the Parking Ordinance's elimination of minimum parking requirements may increase air pollution by "forc[ing] people to drive around seeking alternative parking accommodations" lacks support in fact or logic. Mere "argument, speculation, unsubstantiated opinion or narrative" does not constitute substantial evidence. (Pub. Resources Code, § 21080, subd. (e)(2); accord, Guidelines, § 15384, subd. (a).)
CREED-21 also claims the Parking Ordinance will not get people out of their cars and onto public transit, because the City has a "woefully deficient" public transit system and "no clear plan" to fund all the transit contemplated by the Parking Ordinance. As purported support for these claims, CREED-21 cites written submissions from opponents of the Parking Ordinance, statements by opponents at the City Council hearing, and articles about the inadequacy of public transportation in San Diego. Based on this information, CREED-21 argues that "without viable transportation alternatives, eliminating parking will not eliminate vehicles but will displace them and thereby potentially increase the pollution and other secondary environmental impacts they generate." We are not persuaded.
CREED-21 assumes the Parking Ordinance eliminates parking, but it does not. As we have explained, the Parking Ordinance eliminates the former requirement that multifamily residential developments include one or two parking spaces per dwelling unit, and allows producers to supply new housing with or without parking, as they undoubtedly will do in response to the demands of consumers. The supply shortage on which CREED-21 bases its argument is not a reasonably possible effect of the Parking Ordinance. Nor do CREED-21's broad-based complaints about the deficiencies in San Diego's public transit system suffice to show the Parking Ordinance may increase air pollution from vehicles driven by motorists who have inadequate access to transit. The Parking Ordinance applies only to areas within one-half mile of an existing major transit stop or a planned major transit stop that is scheduled to be completed within the planning horizon included in a San Diego Association of Governments (SANDAG) Regional Transportation Improvement Program. According to the deputy director of the City's planning department, before the Parking Ordinance was passed in 2019, planned major transit stops in the areas that would be subject to the Parking Ordinance were funded and scheduled to be completed within five years. And according to one of the articles CREED-21 cited, almost all the transportation projects for which SANDAG had to cut funding were freeway improvements, not public transit. CREED-21 therefore has not shown public transit is so inadequate in transit priority areas that "people will retain their cars and the effects of those cars - primary or secondary - will remain or be exacerbated."
In sum, CREED-21 has identified no relevant information in the record supporting a fair argument the Parking Ordinance's elimination of minimum parking requirements for multifamily residential developments in transit priority areas may increase air pollution by forcing residents to drive around searching for a parking space. (See Guidelines, § 15384, subd. (a); Hines, supra, 186 Cal.App.4th at p. 857.) "[I]n the absence of a specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence." (Gentry v. City of Murietta (1995) 36 Cal.App.4th 1359, 1417.)
3. Other Exemptions to CEQA Review
CREED-21's final objection is that neither Senate Bill No. 743 nor any statutory or categorical exemption relieved the City of its obligation to proceed to the third tier of CEQA review before adopting the Parking Ordinance. But where, as here, a public agency properly determines the commonsense exemption applies to a project, the agency need conduct no further review under CEQA. (Muzzy Ranch, supra, 41 Cal.4th at pp. 380, 389.) We thus need not, and do not, decide whether other exemptions also apply. ( CREED-21 v. City of San Diego, supra, 234 Cal.App.4th at p. 513.)
IV.
DISPOSITION
The order denying the petition for writ of mandate is affirmed.
WE CONCUR: MCCONNELL, P. J. DO, J.