I. INTRODUCTION

In April 2020, defendant and respondent the City of Upland (City) approved the

development of a 201,096 square-foot “warehouse/parcel delivery service building,” to

be located on 50.25 acres near the Cable Airport (the project). As the lead agency for the

project under the California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000

et seq.1), the City passed a resolution adopting a mitigated negative declaration (MND)

for the project (§ 21064.5; 14 Cal. Code Regs. (“CEQA Guidelines”) § 15369.5). In

related resolutions, the City approved an airport land use compatibility request, a site plan

and design review, lot line adjustment, and development agreement for the project. There

is no confirmed tenant for the project.

Plaintiff and appellant Upland Community First (UCF) filed a petition for a writ of

mandate and complaint for declaratory and injunctive relief, asking the superior court to

order the City to set aside the MND and other project approvals. Among other things,

UCF claimed the project violated CEQA (§ 21000 et. seq.) because a fair argument could

be made that the project would have significant impacts on greenhouse gas (GHG)

emissions, traffic, and air quality. Thus, UCF claimed the City should have prepared an

environmental impact report (EIR) to assess the project’s potential impacts on GHG

emissions, traffic, and air quality.

1 Undesignated statutory references are to the Public Resources Code.

2 The court granted UCF’s petition solely on the ground that insufficient evidence

supported the City’s use of two quantitative “ ‘thresholds of significance’ ” for measuring

the project’s cumulative impacts on GHG emissions: (1) a threshold of 10,000 metric

tons of carbon dioxide equivalent per year (MTCO2 e/yr.) (the 10,000 threshold), and

(2) a lower threshold of 3,000 MTCO2 e/yr. (the 3,000 threshold). The City analyzed the

3,000 threshold in a “Supplement GHG Analysis,” in response to comments on the draft

MND that the 10,000 threshold was too high for the project. The comments indicated

that the 10,000 threshold was appropriate for large, industrial projects with primary

stationary-source GHG emissions (e.g., power plants, factories), and the 3,000 threshold

was appropriate for mixed-used commercial/industrial projects, with primary mobile-

source GHG emissions, like the project. In response, the project developer, real party in

interest Bridge Development Partners, LLC (Bridge), revised the project to add

sustainability features (e.g., roof-top solar, EV-charging stations) to ensure that the

project’s GHG emissions would be below the 3,000 threshold.

In its order granting the petition, the court stated that an EIR was not “necessarily”

required for the project because the City had “discretion to choose an appropriate

‘threshold of significance’ [for GHG emissions] and to determine under that standard

whether an EIR is required.” The judgment orders the issuance of a preemptory writ,

directing the City to set aside its resolutions approving the MND and the other project

approvals, solely “for the purpose of addressing the sufficiency of evidence supporting

the City’s threshold of significance for GHG emissions under CEQA . . . .” Both UCF

3 and Bridge appeal from the judgment. The City does not appeal but joins the cross-

respondent’s brief portion of Bridge’s combined reply brief and cross respondent’s brief.

In its appeal, Bridge claims substantial evidence supports the City’s use of both

the 10,000 MTCO2 e/yr. and 3,000 MTCO2 e/yr. quantitative thresholds of significance

for GHG emissions. Alternatively, Bridge claims that even if substantial evidence does

not support the City’s use of either quantitative threshold, substantial evidence supports

the City’s determination that the project’s GHG impacts would be less than significant

based on a qualitative, performance-based standard—that is, because the project’s

features are consistent with the City’s 2015 climate action plan (the Upland Climate

Action Plan or UCAP). Bridge further claims any CEQA-related error in the City’s

GHG-related findings was not prejudicial because the City fully disclosed and evaluated

the project’s GHG emissions, imposed adequate mitigation measures, and the City and

the public were fully informed of the significance of the project’s GHG impacts.

We agree with Bridge that substantial evidence supports the City’s finding that the

project would not have significant impacts on GHG emissions. Specifically, substantial

evidence both supports the City’s use of the 3,000 threshold for measuring the

significance of the project’s GHG emissions and shows that the project’s GHG emissions

would be below the 3,000 threshold. Thus, we do not consider Bridge’s two alternative

claims, that the project’s (1) compliance with the 10,000 threshold and (2) consistency

with the UCAP also support the City’s determination that the project would have less

4 than significant impacts on GHG emissions.2 We further conclude that Bridge forfeited

its UCAP consistency claim by failing to raise the claim in the superior court as a defense

to UCF’s claim that insufficient evidence supports the City’s determination that the

project would have less than significant impacts on GHG emissions.

In its appeal, UCF claims the City undercounted the number of vehicles and

vehicle trips the project would generate for purposes of evaluating the project’s impacts

on traffic, and by extension, on air quality and GHG emissions. More specifically, UCF

claims the City failed to “perform a legally sufficient evaluation” of the project’s traffic

and transportation impacts by failing to conduct a vehicle miles traveled (VMT) analysis.

UCF claims that, because the City’s conclusion that the project would not have

significant impacts on GHG emissions and air quality is based in part on the City’s

undercounting of vehicles and vehicle trips and the City’s failure to conduct a VMT

analysis, substantial evidence supports a fair argument that the project will have

significant impacts on traffic, transportation, air quality, and GHG emissions.

2 Bridge has requested that we take judicial notice of an amici curiae brief, filed by the California Attorney General and the California Air Resources Board, in Albert Thomas Paulek, et al. v. Moreno Valley Community Services District (Nov. 20, 2020), E071184) [non pub. opn.]). (Evid. Code, §§ 452, subd. (d), 459.) Bridge claims the brief supports Bridge’s claim that substantial evidence supports the City’s reliance on the 10,000 threshold. UCF opposes the request, and we deny it. Even if the brief supports the City’s reliance on the 10,000 threshold, the brief is irrelevant to the dispositive question of whether sufficient evidence supports the City’s reliance on the 3,000 threshold. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089, fn. 4 [denying request for judicial notice of irrelevant matter].)

5 We find no merit to UCF’s appeal. Thus, we reverse the judgment and remand the

matter with directions to enter judgment in favor of the City and Bridge on UCF’s

petition and complaint.

II. FACTS AND PROCEDURE

A. The Project Site Is Currently Used for a Rock and Gravel Crushing Operation

The 50.25-acre project site is located adjacent to the Cable Airport, northeast of

Central Avenue and Foothill Boulevard in the City. The site is currently used for a rock

and gravel crushing operation, involving the use of heavy equipment and trucks. On a

daily basis, an average of 78 trucks travel to and from the site. The site is surrounded by

a mix of commercial and industrial uses, and the City’s has designated and zoned the site

for “commercial/industrial mixed use (C/I-MU).”

B. The Proposed Project Is a 201,096 Square-Foot Warehouse Building

On April 25, 2019, Bridge submitted its original application to develop the project

site. Bridge originally sought to build three warehouse buildings totaling 977,246 square

feet. In response to concerns that the project was too large, on October 1, 2019, Bridge

submitted revised plans, proposing to build a single warehouse building totaling 276,825

square feet. Following additional review, on November 23, 2019, Bridge submitted the

plans for the project in its approved form: a single, one-level, 201,096 square-foot

building.

The proposed 201,096-square foot building would include 191,096 square feet for

“warehouse/parcel delivery uses” and 10,000 square feet for an employee office area and

“a small area for visitors to pick up pre-ordered packages.” The MND states that, “[t]o

6 be conservative, the initial study and technical studies prepared for this Project analyzed a

276,250 [square-foot] building, which is 75,154 square feet more than the 201,096-

[square foot] building [currently] proposed . . . .” The building would include “16 dock-

hi doors for trucks, and 8 van loading doors,” and there would be 337 parking spaces,

12 trailer stalls, and 1,104 van parking stalls. “Trees and other vegetation” would screen

the van loading areas. In total, the project would have 464,380 square feet of

landscaping, covering 21 percent of the project site.

C. In 2015, The City Updated Its General Plan by Adding a Commercial/Industrial

Mixed-Use Designation (CI-MU) and a Climate Action Plan (the UCAP)

In 2015, the City updated its general plan (the GPU or General Plan Update) and

the Upland Zoning Code to add a land use designation for a “commercial/industrial

mixed use” or “CI-MU” zoning district. The EIR for the GPU (the GPU EIR) anticipated

and analyzed growth of 6,374,695 square feet of total non-residential uses in the City by

2035, including 3,710,465 square feet of nonresidential development in the C/I-MU

designation. The project site is designated and zoned C/I-MU in the 2015 GPU and

Upland Zoning Code.

The GPU added a “climate action plan” to the City’s general plan (the UCAP or

Upland Climate Action Plan). The environmental impacts of the UCAP were reviewed in

the 2015 GPU EIR. The UCAP is intended to implement the City’s policy of reducing

GHG emissions, as outlined in the GPU and consistent with California’s statewide GHG

reduction goals. The UCAP states that projects that are consistent with the GPU’s 2035

7 growth projections are “consistent with the [UCAP] and will not have a potentially

significant effect on the environment with respect to greenhouse gas emissions.”

The UCAP states that the City’s approach to reducing GHG emissions, through

the GPU and the UCAP, is consistent with CEQA Guidelines section 15183.5,

subdivision (a), which allows lead agencies to adopt plans for reducing GHG emissions,

“that can then be used for project-specific environmental documents to tier from . . . .”

The UCAP contemplates that it would be “updated on an on-going, as needed basis to

ensure the City’s climate protection efforts reflect both current legislation and emerging

best practices.”

D. The City’s Environmental Review of the Project

As CEQA requires, the City performed an initial study of the project to determine

whether it may have significant environmental effects. (CEQA Guidelines, § 15063.) On

December 16, 2019, the City circulated the draft initial study and proposed MND (the

draft MND) to the public for review and comment. (CEQA Guidelines, § 15105, subd.

(b).) As indicated, the draft MND analyzed the project as a larger, 276,350-square-foot

warehouse, not as the 201,096-square-foot warehouse Bridge was proposing. The draft

MND concluded that, with mitigation, all environmental impacts of the project would be

less than significant. The draft MND analyzed potential impacts from the project’s GHG

emissions using (1) a quantitative comparison to the 10,000 threshold, which, according

to the draft MND, was recommended by the South Coast Air Quality Management

District (the SCAQMD), and (2) a qualitative evaluation of the consistency of the

project’s GHG emissions with the 2015 GPU and UCAP.

8 Comments on the draft MND indicated the 10,000 threshold was too high for a

mixed-use commercial/industrial warehouse project, and urged the City to use a 3,000

threshold that the SCACMD had proposed lead agencies use for all land use projects, and

for “mixed-use” commercial/industrial projects in particular. In response, and following

further working group sessions with the City Planning Commission, Bridge further

refined the project by adding sustainability features “to reduce the project’s GHG

emissions even further so that they would be less than 3,000 metric tons of [carbon

dioxide equivalent] per year.” The added sustainability features include solar panels to

allow the building to operate with “net-zero” electricity consumption; EV [electric

vehicle]-ready parking spaces and charging stations; and additional landscaping.

The City also completed a “supplemental GHG analysis of the project’s emissions,

showing that, with revised (increased) baseline emissions, and the added sustainability

features, the project would generate 2,904 [MTCO2 e/yr.,] less than the 3,000 threshold.”

Like the original GHG analysis in the draft MND, the Supplemental GHG analysis

assumed the project would be a 276,250-square- foot warehouse building. Two peer

review entities evaluated and confirmed the City’s Supplemental GHG analysis.

E. The MND and Project Approvals

In February 2020, the City Planning Commission and Cable Airport Land Use

Committee (ALUC) recommended that the City Council adopt and approve the proposed

MND, together with other project approvals: a proposed site plan and design review, lot

line adjustment, and development agreement. In April 2020, the City adopted resolutions

adopting the MND and the related proposals.

9 F. The Superior Court Proceedings

In July 2020, UCF filed a petition for a writ of mandate under CEQA together

with a complaint for declaratory and injunctive relief, asking the superior court to order

the City to set aside its resolutions adopting the MND and other project approvals, on the

grounds the approvals violated CEQA and other applicable laws. In a 65-page order, the

court granted the petition solely on the that ground that insufficient evidence supported

the City’s finding that the project would not have significant impacts on GHG emissions.

The court ruled that the record contained insufficient evidence to show that either the

10,000 threshold or the 3,000 threshold were appropriate thresholds of significance for

measuring the project’s GHG emissions.

The court’s order states: “[T]he court grants UCF’s petition on the sole ground

that substantial evidence does not support the ‘threshold of significance’ chosen for GHG

emissions. As a result, the City’s finding that there will be no significant effect on the

environment with respect to GHG emissions is without adequate support. This does not

mean, necessarily, that an EIR is required. The City has discretion to choose an

appropriate ‘threshold of significance’ and to determine under that standard whether an

EIR is required. [CEQA Guidelines, § 15064.4, subd. (c)).] The Development

Agreement is also set aside, because its approval was based, in part, on the findings of the

MND that there will be no significant effect on the environment with respect to GHG

emissions.” On October 19, 2021, the court entered judgment in favor of UCF. Both

Bridge and UCF appealed.

10

III. STANDARD OF REVIEW

A. Mitigated Negative Declarations Under CEQA

“ ‘[A] public agency pursuing or approving a project need not prepare an EIR

unless the project may result in a “significant effect on the environment” (§§ 21000,

subd. (a), 21151, subd. (a)), defined as a “substantial, or potentially substantial, adverse

change in the environment” (§ 21068). If the agency’s initial study of a project produces

substantial evidence supporting a fair argument the project may have significant adverse

effects, the agency must (assuming the project is not exempt from CEQA) prepare an

EIR.’ ” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th

155, 171 (Save the Plastic Bag Coalition); Save Agoura Cornell Knoll v. City of Agoura

Hills (2020) 46 Cal.App.5th 665, 674-675 (Save Agoura Cornell Knoll).)

Substantial evidence is “ ‘enough relevant information and reasonable inferences .

. . that a fair argument can be made to support a conclusion, even though other

conclusions might also be reached.’ ” (Laurel Heights Improvement Assn. v. Regents of

University of California (1988) 47 Cal.3d 376, 393; § 21080(e)(1), (e)(2); CEQA

Guidelines, § 15384, subd. (a).) Substantial evidence includes “facts, reasonable

assumptions predicated upon facts, and expert opinion supported by facts,” but does not

include “[a]rgument, speculation, unsubstantiated opinion or narrative.” (CEQA

Guidelines, § 15384, subds. (a), (b).)

If, following the initial study, “ ‘[t]here is no substantial evidence, in light of the

whole record . . . that the project may have a significant effect on the environment,’ ” the

agency may prepare a negative declaration for the project. (Save the Plastic Bag

11 Coalition, supra, 52 Cal.4th at p. 171; § 21080, subd. (c)(1); see CEQA Guidelines, §

15064, subd. (f)(3).) If, however, substantial evidence shows the project may have a

significant environmental impact, but the impact can be mitigated to insignificance

through project revisions that the applicant agrees to before the agency approves the

project, the agency may prepare a mitigated negative declaration (MND) for the project.

(§ 21064.5; see CEQA Guidelines, § 15064, subd. (f)(2).)

“Mitigated negative declarations reflect the policy that a lead agency’s

determination of environmental impacts should be based on the form of the project as

considered for approval, not as [the project] might otherwise have been constructed or

conducted.” (1Kostka & Zischke, Practice Under the California Environmental Quality

Act (Cont. Ed. Bar 2023) § 6.60, pp. 6-64.) When an agency circulates a draft initial

study and a proposed MND to the public for comment, the public has “ ‘ “an opportunity

to review the proposal to determine whether the changes are sufficient to eliminate the

significance of the effects.” ’ ” (Rominger v. County of Colusa (2014) 229 Cal.App.4th

690, 713, overruled in part by Union of Medical Marijuana Patients, Inc. v. City of San

Diego (2019) 7 Cal.5th 1171, 1194.)

B. Standard of Review for MNDs

On appeal from a judgment in a mandamus proceeding under CEQA, our standard

of review is the same as the trial court’s: we independently review the administrative

record and the lead agency’s action, not the trial court’s decision and in this sense our

review under CEQA is de novo. (Vineyard Area Citizens for Responsible Growth, Inc. v.

City of Rancho Cordova (2007) 40 Cal.4th 412, 427; Golden Door Properties, LLC v.

12 County of San Diego (2020) 50 Cal.App.5th 467, 504.) We review an agency’s decision

to rely on an MND for a “ ‘ “prejudicial abuse of discretion,” which “is established if the

agency has not proceeded in a manner required by law or if the [agency’]s determination

or decision is not supported by substantial evidence.” ’ ” (Jensen v. City of Santa Rosa

(2018) 23 Cal.App.5th 877, 886 (Jensen); Save the Plastic Bag Coalition, supra,

52 Cal.4th at p. 171; § 21168.5.)

“In reviewing an agency’s decision to adopt an MND, a court (whether at the trial

or the appellate level) must determine whether there is substantial evidence in the record

to support a ‘fair argument’ that a proposed project may have a significant effect on the

environment. [Citation.] The fair argument standard creates a ‘low threshold’ for

requiring an EIR, reflecting a legislative preference for resolving doubts in favor of

environmental review. [¶] Whether the evidence establishes a fair argument that a

project may result in significant environmental impacts is a question of law.” (Preserve

Poway v. City of Poway (2016) 245 Cal.App.4th 560, 575-576 (Preserve Poway); No Oil,

Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84.) The petitioner has the burden of

proving “the existence of substantial evidence supporting a fair argument of significant

environmental impact.” (Jensen, supra, 23 Cal.App.5th at p. 886.)

Under the fair argument standard, a court may not uphold an agency’s decision to

adopt an MND, “ ‘ “merely because substantial evidence was presented that the project

would not have [a significant environmental] impact. The [reviewing] court’s function is

to determine whether substantial evidence support[s] the agency’s conclusion as to

whether the prescribed ‘fair argument’ could be made. If there [is] substantial evidence

13 that the proposed project might have a significant environmental impact, evidence to the

contrary is not sufficient to support a decision to dispense with preparation of an EIR and

adopt a negative declaration, because it [can] be ‘fairly argued’ that the project might

have a significant environmental impact. Stated another way, if the court perceives

substantial evidence that the project might have such an impact, but the agency failed to

secure preparation of the required EIR, the agency’s action is to be set aside because the

agency abused its discretion by failing to proceed ‘in a manner required by law.’ ” ’ ”

(Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 675-676,

quoting Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112.)

In sum, under the fair argument standard, “deference to the agency’s determination is not

appropriate and [the agency’s] decision not to require an EIR can be upheld only when

there is no credible evidence to the contrary.” (Lucas v. City of Pomona (2023)

92 Cal.App.5th 508, 536-537.)

IV. ANALYSIS / BRIDGE’S APPEAL

A. CEQA Provisions

A project’s impacts on global GHG emissions and climate change are necessarily

cumulative impacts. (Center for Biological Diversity v. Department of Fish & Wildlife

(2015) 62 Cal.4th. 204, 219 (Center for Biological Diversity).) “The challenge for

CEQA purposes is to determine whether the impact of the project’s emissions of

greenhouse gases is cumulatively considerable, in the sense that ‘the incremental effects

of [the] individual project are considerable when viewed in connection with the effects of

past projects, the effects of other current projects, and the effects of probable future

14 projects.’ (§ 21083, subd. (b)(2); see CEQA Guidelines, § 15064, subd. (h)(1).)” (Id. at

p. 219.)

“In 2010, the Natural Resources Agency promulgated a guideline for assessing the

significance of greenhouse gas emissions impacts under CEQA. Guidelines section

15064.4, subdivision (a) provides in part that ‘[a] lead agency should make a good-faith

effort, based to the extent possible on scientific and factual data, to describe, calculate or

estimate the amount of greenhouse gas emissions resulting from a project.’ Subdivision

(b) states that ‘[a] lead agency should consider the following factors, among others, when

assessing the significance of impacts from greenhouse gas emissions on the environment:

[¶] (1) The extent to which the project may increase or reduce greenhouse gas emissions

as compared to the existing environmental setting; [¶] (2) Whether the project emissions

exceed a threshold of significance that the lead agency determines applies to the project;

[¶] (3) The extent to which the project complies with regulations or

requirements adopted to implement a statewide, regional, or local plan for the reduction

or mitigation of greenhouse gas emissions.’ ” (Cleveland National Forest Foundation v.

San Diego Assn. of Governments (2017) 3 Cal.5th 497, 512, italics added.)

CEQA Guidelines section 15064.4 “does not mandate the use of absolute

numerical thresholds to measure the significance of [GHG] emissions.” (Center for

Biological Diversity, supra, 62 Cal.4th at pp. 221, 230.) Rather, the guideline grants lead

agencies “ ‘discretion to determine, in the context of a particular project, whether to: [¶]

(1) Use a model or methodology to quantify greenhouse gas emissions resulting from a

project, and which model . . . to use . . . and/or [¶] (2) Rely on a qualitative analysis or

15 performance based standards.’ (CEQA Guidelines, § 15064.4, subd. (a).) Utilizing the

second method, an agency may adopt an area wide plan to reduce greenhouse gas

emissions and determine that a project’s incremental contribution to climate change is not

significant if the project complies with the requirements of the previously adopted plan.

(CEQA Guidelines,§ 15183.5, subd. (b).) . . . .” (Mission Bay Alliance v. Office of

Community Investment & Infrastructure (2016) 6 Cal.App.5th 160, 199 (Mission Bay).)

Compliance with an area-wide regulatory program to reduce GHG emissions “may,

standing alone, provide sufficient evidence that the project will have no significant

adverse effect on the environment.” (Id. at p. 202.)

“The lead agency has substantial discretion in determining the appropriate

threshold of significance to evaluate the severity of a particular [environmental] impact.”

(Mission Bay, supra, 6 Cal.App.5th at p. 192; Jensen, supra, 23 Cal.App.5th at p. 885.)

“A threshold is an ‘identifiable quantitative, qualitative or performance level of a

particular environmental effect, non-compliance with which means the effect will

normally be determined to be significant by the agency and compliance with which

means the effect normally will be determined to be less than significant.’ [(CEQA

Guidelines, § 15064.7, subd (a).)] Thresholds of significance are not used to determine

automatically whether a given effect will or will not be significant. Instead, thresholds of

significance are indicative only that an environmental effect that crosses the threshold

‘ “will normally be determined to be significant,” ’ while effects not crossing the

threshold ‘ “normally will be determined to be less than significant” ’ by the agency.

16 [Citation]; see CEQA Guidelines, § 15064.7, subd. (a).)” (Jensen, supra, 23 Cal.App.5th

at p. 885.

B. Substantial Evidence Supports the City’s Use and Application of the 3,000 Threshold

for Assessing the Significance of the Project’s GHG Emissions

1. Additional Background

The original GHG analysis in the draft MND estimated that the “existing

emissions” (baseline GHG emissions) on the project site, from the rock and gravel

crushing operation, were 899 MTCO2 e/yr., and that the project would generate 6,121

MTCO2 e/yr., for a net increase of 5,222 MTCO2 e/yr., below the 10,000 threshold. The

draft MND concluded that the project would not have a cumulative impact on GHG

emissions, both because the project’s total emissions of 6,121 MTCO2 e/yr. would not

exceed the 10,000 threshold, and because the project was consist with the UCAP. Thus,

the draft MND did not recommend measures to mitigate the project’s GHG emissions.

During the public review and comment period on the draft MND, UCF members

and other members of the public argued that the 10,000 threshold was inappropriate and

too high for the project, and urged the City to use the 3,000 threshold. In a January 17,

2020 letter to the City, Dr. Brinda Sarathy, a City resident and Professor of

Environmental Analysis at Pitzer College, argued the draft MND provided “no

substantive justification” for the 10,000 threshold, which applied to large-scale industrial

projects with GHG emissions generated primarily from stationary sources, such as power

plants and factories. Dr. Sarathy argued the project was not a “heavy industrial stationary

facility such as a power plant or factory”; it was a “mixed use/commercial” project, and

17 its GHG emissions would be generated primarily from mobile source (cars, vans, trucks),

not stationary sources.

Dr. Sarathy pointed out that, according to the minutes of a September 28, 2010

meeting of the “GHG CEQA Significance Threshold Stakeholder Working Group # 15,”

the SCAQMD) “ ‘presented two options that lead agencies could choose’ ” in selecting a

significance threshold for “commercial and mixed-use projects.” One option was to “use

a single numerical” 3,000 MTCO2 e/yr. threshold for all “nonindustrial projects.” The

second option was to use a 3,000 MTCO2 e/yr. threshold for commercial and mixed use

projects and 3,500 MTCO2 e/yr. threshold for residential projects. Thus, the SCAQMD

proposed that lead agencies use a 3,000 MTCO2 e/yr. threshold for “all land use types,”

including “mixed-use” commercial and industrial projects. Dr. Sarathy also claimed that

the County of San Bernardino had “adopted” the 3,000 threshold in 2010 and had used it

in a draft EIR for a warehouse project similar in size and operation to the project.

As indicated, Bridge revised the project by adding sustainability features to reduce

its GHG emissions below the 3,000 threshold. The sustainability features include roof-

top solar panels to allow the building to operate at “net-zero” electricity consumption,

EV-chargers for 30 parking spaces, “EV-ready infrastructure for all trucks, all vans, and

50% of car parking spaces,” 1,000 trees, and 11 acres of landscaping. The project is also

required to use electric-powered forklifts and electric landscaping equipment.

In connection with these project revisions, the City prepared the supplemental

GHG analysis, which shows the project’s GHG emissions, with the added sustainability

features, would be 2,904 MTCO2 e/yr., slightly less than the 3,000 threshold. The

18 Supplemental GHG analysis states that it made several “updates” to the original GHG

analysis, specifically, updates “to the existing emissions inventory;” “[a] more accurate

utility emission factor;” and “[i]ncorporation of the GHG reduction” from electric vehicle

chargers and solar panels.

The supplemental GHG analysis estimates that the revised project would generate

5,340 MTCO2 e/yr., 781 MTCO2 e/yr. fewer than the 6,121 MTCO2 e/yr. estimated in

the original GHG analysis. Based on its revisions to the “existing emissions inventory,”

the supplemental GHG analysis increased the estimated baseline or “existing emissions”

from the rock and gravel operation to 2,437 MTCO2 e/yr., from 899 MTCO2 e/yr., an

increase of 1,538 MTCO2 e/yr. Thus, the supplemental GHG analysis estimated the

project would add 2,904 MTCO2 e/yr. over the existing baseline of 2,437 MTCO2 e/yr.,

for a total of 5,340 MTCO2 e/yr. (rounded).

In granting UCF’s petition, the superior court concluded that insufficient evidence

supported the City’s use of the 10,000 threshold for determining the significance of the

project’s impacts on GHG emissions. The court also concluded that insufficient evidence

supported the City’s use of the 3,000 threshold, “especially because” the 3,000 threshold

had, “not been adopted by the SCAQMD and no scientific or factual basis is provided for

its use.”

The court pointed out that Dr. Sarathy, in advocating that the 3,000 threshold

should apply to “mixed use” projects and to this project in particular, did not define

mixed use. Further, the record did not include the minutes for the SCACMD’s

September 28, 2010 “GHG CEQA Significance Threshold Stakeholder Working Group

19 Meeting # 15”; and neither the adduced power point slides from the meeting nor anything

else in the record showed why the 3,000 threshold should apply to this project. The court

reasoned there was “no scientific or factual analysis” explaining why the 3,000 threshold

should apply to “this project under the circumstances.” (See CEQA Guidelines, § 15064,

subd. (b).)

Further, UCF argued and the court agreed that the Supplemental GHG analysis

was “without support” because, even if the 3,000 threshold applied, there was “no

explanation why a different baseline for existing GHG emissions was used.” Using the

original baseline of 899 metric tons of CO2e per year, the court pointed out that the

project’s GHG emissions would be 4,441 metric tons of CO2e per year, above the 3,000

threshold. Thus, the court concluded “substantial evidence does not support a

conclusion” that the project would produce GHG emissions below the 3,000 threshold

“even if” the 3,000 threshold were appropriate for the project.

The court also questioned whether the City “relied on” the 3,000 threshold, given

that the supplemental GHG analysis stated that it was prepared “for informational

purposes only” and the City “continued to assert” that the 10,000 threshold “was the

threshold that applied.” In sum, the court concluded the City prejudicially abused its

discretion in failing “to provide substantial evidence to justify the quantitative method

used as the GHG threshold.” The court also ruled an EIR was not necessarily required;

the City could still “establish an appropriate threshold of significance” for GHG

emissions and conclude an MND was appropriate.

20 2. Analysis

(a) The City’s Discretion to Choose A Significance Threshold

As noted, a lead agency “has substantial discretion in determining the appropriate

threshold of significance to evaluate the severity of a particular impact,” and the agency’s

choice of threshold will be upheld if it is “founded on substantial evidence.” (Mission

Bay, supra, 6 Cal.App.5th at pp. 192, 206; Jensen, supra, 23 Cal.ap.5th at p. 885; East

Sacramento Partnerships For A Livable City v. City of Sacramento (2016) 5 Cal.App.5th

281, 300; Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059,

1068; Citizens for Responsible Equitable Development v. City of Chula Vista (2011) 197

Cal.App.4th 327, 333 (CREED).) In reviewing an administrative record for substantial

evidence to support a lead agency’s adoption or use of a significance threshold, we must

remember that “ ‘ [t]he agency is the finder of fact and we must indulge all reasonable

inferences from the evidence that would support the agency’s determinations and resolve

all conflicts in the evidence in favor of the agency’s decision.’ ” (Santa Clarita

Organization For Planning the Environment v. City of Santa Clarita (2011)

197 Cal.App.4th 1042, 1050.) “Although our review is de novo and nondeferential, we

must give the lead agency the benefit of the doubt on any legitimate, disputed issues of

credibility.” (CREED, at p. 331.)

The CEQA Guidelines state that, “[t]he determination of whether a project may

have a significant effect on the environment calls for a careful judgment on the part of the

public agency involved, based to the extent possible on scientific and factual data.”

(CEQA Guidelines, § 15064, subd. (b).) “When adopting or using thresholds of

21 significance, a lead agency may consider thresholds of significance previously adopted or

recommended by other public agencies or recommended by experts, provided the

decision of the lead agency to adopt such thresholds is supported by substantial

evidence.” (CEQA Guidelines, § 15064.7, subd. (c), italics added.)

(b) Substantial Evidence Supports the City’s Use of the 3,000 Threshold

We disagree with the trial court’s conclusion that insufficient evidence supports

the City’s use of the 3,000 threshold for measuring the significance of the project’s GHG

emissions. Substantial evidence shows that the 3,000 threshold is an appropriate

numerical threshold for measuring the significance of the project’s GHG emissions. This

evidence includes Dr. Sarathy’s comments and letter to the City, explaining why the

10,000 threshold was inappropriate for the project and urging the City to use the “more

stringent” 3,000 threshold. Dr. Sarathy’s comments and letter, and the record as a whole,

show there is indeed a “scientific and factual” basis for using the 3,000 threshold for the

project. (CEQA Guidelines, § 15064, subd. (b).)

Dr. Sarathy noted that, according to the minutes of the “GHG CEQA Significance

Group Stakeholder Meeting # 15” on September 28, 2010, the SCAQMD “presented lead

agencies with the option” of using the 3,000 threshold for “all [nonindustrial] land use

types,” including “mixed-use” commercial and residential projects in particular.

Although these minutes are not in the administrative record (as the court pointed out), the

record includes the minutes of an earlier working group meeting, the January 28, 2009

“GHG CEQA Significance Threshold Stakeholder Working Group Meeting #8.” These

minutes show the 3,000 threshold is based on data collected by the Governor’s Office of

22 Planning and Research (OPR), the agency responsible for drafting the CEQA Guidelines.

(See Tsakopoulos Investments, LLC v. County of Sacramento (2023) 95 Cal.App.5th 280,

288, fn. 4.)

The OPR data measured GHG emissions from 711 residential, commercial, and

“mixed use” residential and commercial projects for which the OPR received an EIR or

MND. According to the OPR data, 90 percent of all “residential/commercial projects” in

the 711 projects surveyed (the 90 percent “capture rate”) had GHG emissions ranging

from 2,983 to 3,143 MTCO2 e/yr. The 90 percent capture rate for “residential/mixed use

residential projects” ranged from 3,310 to 3,596 MTCO2 e/yr., while the 90 percent

capture rate for “commercial/mixed use commercial projects” ranged from 1,390 to 1,481

MTCO2e /yr. Dr. Sarathy’s January 17, 2020 letter, and a slide from the September 28,

2010 SCAQMD working group meeting, indicate that the SCAQMD proposed a 3,000

threshold or “screening value” for all nonindustrial land use types, “based on review of

the OPR database (711 CEQA projects) using the 90% capture rate approach.” Thus, the

3,000 threshold, as applied to all nonindustrial projects, will include or “capture” the

GHG emissions levels of approximately 90 percent of all nonindustrial projects.3

3 In response to public comments on the draft MND, the City defended its use of the 10,000 threshold, and acknowledged that the 3,000 and 10,000 thresholds were both based on the “90% capture rate approach.” The City advised: “The SCAQMD has not adopted a GHG significance threshold that applies to most land use development projects. The 10,000 . . . threshold was adopted to capture 90 percent of total emissions from all new or modified industrial (stationary source) projects. . . . A 3,000 [threshold] was proposed as a screening threshold for land use development projects but was never adopted in any form by SCAQMD. In the absence of an adopted threshold, the lead agency has discretion to select a significance threshold.”

23 Substantial evidence shows that screening nonindustrial projects for whether their

GHG emissions fall above or below the 3,000 threshold is a reasonable way to screen

such projects for cumulatively considerably GHG emissions. That is, it reasonable to

consider nonindustrial projects exceeding 3,000 threshold (ten percent of all nonindustrial

projects) to be cumulatively considerable contributors to GHG emissions in comparison

to nonindustrial projects with GHG emissions below the 3,000 threshold. As noted,

“[t]he challenge for CEQA purposes is to determine whether the impact of the project’s

emissions of greenhouse gases is cumulatively considerable, in the sense that ‘the

incremental effects of [the] individual project are considerable when viewed in

connection with the effects of past projects, the effects of other current projects, and the

effects of probable future projects.” (Center for Biological Diversity, supra, 62 Cal.4th

219.) Using a 90 percent capture rate to screen nonindustrial, mixed use residential and

commercial projects for cumulatively considerable (significant) GHG emissions is a

reasonable way to meet this challenge.

Substantial evidence also supports the City’s use of the 3,000 threshhold in

evaluating the significance of this project’s GHG emissions, after the project was revised

during the public comment period to add the sustainability features. The slides from the

SCAQMD meetings, Dr. Sarathy’s comments, and other comments in the record show

the 3,000 threshold is appropriate for mixed use commercial and residential projects.

Thus, the use of the 3,000 threshhold use for this project was conservative, in that it

tended to underestimate a reasonable level of GHG emissions for this project, which a

mixed use commercial and industrial project. The record indicates that industrial

24 projects, and mixed use commercial and industrial projects, like this project, tend to have

higher GHG emissions than mixed use commercial and residential projects, commercial

projects, and residential projects. But this project, despite its industrial component, is

projected to have GHG emissions below the 3,000 threshold, the significance threshold

for a typically lower emission, mixed use commercial and residential project.

Thus, the City did not abuse its discretion in concluding the project’s GHG

emissions would not be cumulatively considerable because they will be below the 3,000

threshold. Substantial evidence supports the City’s determination, in its resolution

adopting the MND, that the project, with the added sustainability features and related

GHG-related mitigation measures, will not have significant, cumulatively considerable

impacts on GHG emissions.

(c) The Increase in Baseline “Existing Emissions”

UCF argues, and the trial court agreed, that insufficient evidence supports the

City’s finding that the project would not have significant impacts on GHG emissions,

based on the 3,000 threshold, because the supplemental GHG analysis did not explain

why “existing baseline emissions increased” from 899 MTCO2 e/yr. to 2,437 MTCO2

e/yr., an increase of around 1,537 MTCO2 e/yr. Indeed, the supplemental GHG analysis

did not explain the reason for the 1,537 MTCO2 e/yr. increase in baseline or existing

emissions. But circumstantial evidence in the record plainly indicates that the 1,537

MTCO2 e/yr. increase is attributable to the 78 trucks being used in the existing

operations on the project site.

25 The supplemental GHG analysis states that its 2,437 MTCO2 e/yr. in existing

baseline GHG emissions is based on “updates to the existing emissions inventory” which

were not included in the original GHG analysis in the draft MND. Although the

supplemental GHG analysis does not identify the sources of these “updates,” (the 1,537

MTCO2 e/yr. increase in existing GHG emissions), a comparison of the original and

supplemental GHG analyses indicates that the 1,537 MTCO2 e/yr. increase is attributable

to the 78 trucks used in the existing rock and gravel processing operation.

The draft MND explained that the existing rock and gravel operation used “eight

pieces off-road heavy-duty diesel equipment, such as rubber-tire loaders, stackers, static

and mobile screens, cone and crushers, and water trucks. Additionally, the existing sand

and gravel processing operations include approximately 78 trucks per day to off-haul

materials processed on -site. . . . [The ]traffic study conservatively does not take credit

for the existing trucks.” These statements in the draft MND, together with the 1,537

MTCO2 e/yr. increase in the existing GHG emissions inventory in the supplemental

GHG analysis, indicate that, just as the traffic study in the draft MND did not “take

credit” for the daily trips generated by the 78 trucks, the original GHG analyses in the

draft MND likewise did not include GHG emissions from the 78 trucks.

Moreover, a comparison of the “data sheets” in the original and supplemental

GHG analyses indicates that the GHG emissions from the 78 trucks were omitted from

the original GHG analysis, but were included in the “updated” emissions inventory in the

supplemental GHG analysis of the 3,000 threshold. In the original GHG analysis, the

data sheets show that existing GHG emissions for unmitigated “off-site construction,” in

26 the “hauling” category, were 34 MTCO2 e/yr. In the supplemental GHG analysis, the

data sheets show that the same GHG emissions were 1,572 MTCO2 e/yr.—an increase of

1,537 MTCO2 e/yr.

The substantial size of the increase in baseline GHG emissions, together with the

statements in the draft MND, indicates that the increase is attributable to the78 trucks

used to “off haul” materials from the project stie. As Bridge points out, the 34 MTCO2

e/yr. in the original GHG analysis “accounted for only minimal travel of construction

equipment to and from the site.” (Added italics.) But the corrected, 1,572 MTCO2 e/yr.

in exiting GHG emissions (an increase of 1,537) credibly reflects the use of the 78 trucks

in the rock and gravel processing operations. For these reasons, it is reasonable to infer

that the original GHG analysis did not account for the existing GHG emissions from the

78 trucks used “per day to off-haul materials processed” in the rock and gravel processing

operation, and that the supplemental GHG analysis corrected for and did include the

GHG emissions from the 78 trucks in its analysis of the 3.000 threshold.

Thus, we disagree with the trial court’s conclusion that insufficient evidence

supports the City’s use of the 3,000 threshold because the City failed to explain the basis

of the 1,537 MTCO2 e/yr. increase in the “existing emissions” inventory (from 899

MTCO2 e/yr. to 2,437.) The record sufficiently supports the City’s computation of the

updated 2,437 MTCO2 e/yr. baseline.

Moreover, Bridge argues and we agree that UCF failed to exhaust administrative

remedies concerning the composition of the 2,437 MTCO2 e/yr. “existing emissions”

baseline. “To satisfy the exhaustion doctrine, an issue must be ‘fairly presented’ to the

27 agency. [Citation.] Evidence must be presented in a manner that gives the agency the

opportunity to respond with countervailing evidence.” (Citizens for Responsible

Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515,

528.) The petitioner “ ‘has the burden of proof to show exhaustion occurred.’ ” (Stop

Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, 459.)

UCF has not met this burden. Throughout the administrative proceedings, no one

asked the City to explain the sources of either the updated 2,437 MTCO2 e/yr. baseline or

the original 899 MTCO2 e/yr. baseline. Thus, the City was never asked to explain the or

sources of the 1,538 MTCO2 e/yr. increase in the baseline. In addition, UCF forfeited

the claim by failing to raise it in the trial court until its reply brief. (Golden Door

Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 518.)

(d) The City’s CEQA Findings Are Properly Based on the 3,000 Threshold

UCF argues that, by the City’s “own admission,” the City’s use of the 3,000

threshold in the supplemental GHG analysis does not support the City’s GHG-generation

findings because “the GHG-generation findings in the MND relied solely on the City’s

determination that the 10,000 threshold applied and that the Project’s net GHG

generation would be less than the 10,000 threshold.” This argument conflates the City’s

finding, in its resolution adopting the MND, that the project, with the added sustainability

features and related mitigated measures, would not significantly impact GHG emissions,

with the City’s finding, in the superseded, draft MND, that the project would not

significantly impact GHG emissions because its GHG emissions would not exceed the

10,000 threshold. As explained, the City’s resolution adopting the final MND is

28 supported by substantial evidence, including the supplemental GHG analysis, which

concluded that the project’s GHG impacts would not be cumulatively considerable

because they would not exceed the 3,000 threshold.

UCF suggests the supplemental GHG analysis does not constitute sufficient

evidence to support the City’s resolution adopting the MND, because the supplemental

GHG analysis states that it was prepared “for informational purposes only.” As Bridge

points out, however, UCF cites no authority that “discounts” the supplemental GHG

analysis “as substantial evidence.” In sum, the City’s resolution adopting the final MND

is supported by the supplemental GHG analysis and the record as a whole, which show

that the project’s net GHG emissions will not be cumulatively considerable as they will

not exceed the 3,000 threshold.

C. No Substantial Evidence Supports a Fair Argument That the Project’s GHG

Emissions May Be Cumulatively Considerable

Having concluded that substantial evidence supports the City’s use of the 3,000

threshold for assessing the significance of the project’s GHG emissions, we recognize

that a significance threshold “is not conclusive . . . and does not relieve a public agency

of the duty to consider the evidence under the fair argument standard. [Citations.] A

public agency cannot apply a threshold of significance or regulatory standard ‘in a way

that forecloses the consideration of any other substantial evidence showing there may be

a significant effect.’ ” (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 342.)

UCF claims it presented a fair argument that the project’s GHG emissions may be

cumulatively considerable due to “the marked increase in mobile source emissions

29 caused by the project” over the baseline, existing GHG emissions from the existing rock

and gravel crushing operation. Specifically, UCF argues it showed the project may have

cumulative considerable GHG emissions (1) due to “increased emissions from the influx

of delivery cars and vans—that is, because the project will have higher GHG emissions

than the rock and gravel crushing operation, and (2) because “the traffic counts for the

project were artificially low.” As we explain below in our discussion of UCF’s appeal,

UCF has not shown there is a fair argument that the project may have cumulatively

considerable impacts on GHG emissions.

D. Bridge Has Forfeited the UCAP Consistency Argument

In their joint opposition brief to UCF’s petition, Bridge and the City defended

UCF’s claim that insufficient evidence supported the City’s determination that the project

would not significantly impact GHG emissions—solely by arguing that substantial

evidence supported the City’s finding that the project’s GHG emissions would not exceed

the 10,000 and 3000 MTCO2 e/yr. thresholds. But Bridge and the City did not claim that

the project’s GHG emissions would be insignificant because the project is consistent with

the UCAP. (See McCann v. City of San Diego (2021) 70 Cal.App.5th 51, 92 [Climate

action plans “ ‘may, if sufficiently detailed and adequately supported, be used in later

project-specific CEQA documents to simplify the evaluation of the project’s cumulative

contribution to the effects of greenhouse gas emissions.’ ”].) Counsel for Bridge

mentioned the UCAP consistency argument for the first time at the hearing on UCF’s

petition in the superior court, but the court appropriately did not rule on the unbriefed

issue.

30 In failing to raise the UCAP consistency argument as a defense to UCF’s claim

that insufficient evidence supported the City’s determination that the project’s net GHG

emissions would not be cumulatively considerable, Bridge failed to preserve the claim for

appeal. That is, Bridge forfeited the argument it now raises in this appeal that the City’s

less-than-significance finding for the project’s net GHG emissions is sufficiently

supported by the City’s UCAP consistency finding, independent of the City’s findings

that the project’s net GHG emissions would be below the 10,000 and 3,000 thresholds.

(See In re T.F. (2017) 16 Cal.App.5th 202, 213.) We decline to exercise our discretion to

consider the UCAP consistency issue. (Id. at pp. 213-214.)

V. ANALYSIS/ UCF’S APPEAL

In its appeal, UCF claims its petition should have been granted on an additional

ground, namely, (1) the City performed a legally inadequate analysis of the project’s

traffic impacts; thus, (2) the City’s analyses of the project’s impacts on air quality and

GHG emissions are also inadequate because they relied in part on the City’s deficient

traffic analysis. We find no merit to this claim; thus, we reject UCF’s appeal.

A. No Substantial Evidence Supports a Fair Argument That the MND Undercounted the

“Passenger Car Equivalent”(PCE) Trips the Project Was Expected to Generate

UCF claims “there is a fair argument that the project will have significant

transportation impacts” because the MND “severely understates” the number of vehicles

and vehicle trips the project would generate. As we explain, no substantial evidence

shows that the MND underestimated the number of vehicles or vehicle trips the project

would generate.

31 1. Background/ the Traffic Impact Analysis (TIA)

The MND includes a “traffic impact analysis” (the TIA), prepared in

November 2019, which analyzed the project’s impacts on traffic levels of service (LOS).

The MND explained: “Level of service (LOS) is a measure of the quality of operational

conditions within a traffic stream and is generally expressed in terms of such measures as

speed and travel time, freedom to maneuver, traffic interruptions, and comfort and

convenience. Levels range from A to F, with LOS A representing excellent (free-flow)

conditions and LOS F representing extreme congestion.”

The TIA states that its purpose and objective was twofold: (1) to disclose

“potential impacts and mitigation measures per” CEQA, and (2) to “satisfy the

requirements for a TIA established by the San Bernardino County Congestion

Management Plan,” adopted in 1993, and last revised in 2016 (the CMP). The CMP,

administered by the San Bernardino County Transportation Authority (SBCTA), required

“an analysis of off-site intersections . . . at which the project is forecast to add 50 or more

peak hour trips.” The TIA “evaluated 17 intersections and project driveways” and

proposed “circulation improvements” at intersections that were forecast to operate at

unsatisfactory LOS. Based on the TIA, the MND concluded the project would have less

than significant impacts on LOS.

For its LOS analysis, because the project was to be operated as a “parcel delivery”

warehouse, the TIA used “trip generation rates” for the land use classification, “ ‘High-

Cube Parcel Hub Warehouse’ ” from the “Institute of Transportation Engineers’ (ITE)

Trip Generation [manual] (10th Edition) [ITE Code 156].” The MND explained why the

32 TIA selected the parcel hub warehouse classification to calculate the project’s trip

generation rates: “[T]he operations of the proposed Project would be similar to high-

cube parcel hub warehouse facilities, but with some differences . . . . Warehouse/parcel

delivery uses typically entail one merchant/vendor, while parcel hub warehouses such as

Fed Ex and UPS typically work with multiple merchants and vendors. Another

difference is that parcel hub facilities have high truck traffic throughout the day, while

the proposed warehouse/parcel delivery use would have a majority of truck trips

occurring during the off-peak hours. . . . The rates included in the ITE Trip Generation

for Parcel Hub Warehouses are net rates inclusive of passenger car, delivery vans, and

truck traffic. However, to present a conservative analysis, the trip generation rates from

the Trip Generation [manual] has been assumed to be passenger cars and vans, and truck

traffic has been added to the trip generation estimates.”

Based on the parcel hub warehouse classification (ITE Code 156), the TIA

estimated the project would generate a total of 2,583 daily “passenger car equivalent”

(PCE) trips. Based on this estimate, the TIA concluded the project would not

significantly impact LOS or “directly degrade traffic operations below those acceptable

in the City’s general plan.” The TIA noted it “likely overstat[ed] project impacts” on

LOS because the 2,583 daily PCE trip estimate was based on a larger, 276,835-square-

foot warehouse building, when the proposed project, a 201,096-square-foot warehouse

building, would have 75,729 fewer square feet.

Regarding “truck trips” associated with the project, the MND explained: “[A]

total of 25 trucks will arrive to the facility daily [(for a total of 50 truck trips)], of which

33 2% would occur during each of the a.m. and p.m. peak hours [(between 7:00 a.m. and

9:00 a.m. and between 4:00 p.m. and 6:00 p.m.)]. “No more than five trucks would travel

to the site during daytime hours. The peak hour truck trips were converted to passenger

car equivalent (PCEs) using [a multiplier of] 3.0 for 4-axle trucks.” MND also explained:

“Table 24, Project Trip Generation, summarizes the project trip generation. As shown in

Table 24, the project is forecast to generate 202 PCE trips in the a.m. peak hour, 202 PCE

trips in the p.m. peak hour, and 2,583 daily PCE trips. The traffic study conservatively

does not take credit for the existing truck trips.”

2. Analysis/Alternative Trip Generation Rates

UCF first argues that the TIA underestimated the project’s daily PCE trips by

using the wrong “trip generation rate” classification, namely, ITE Code 156, rather than

ITE Code 155, to calculate the project’s daily PCE trips. The record shows, however,

that the City calculated the project’s daily PCE trips using both ITE Code classifications,

and found no significant LOS impacts under either.

In January 2020, during the public comment period on the draft MND, the City of

Claremont wrote a letter to the City, claiming the TIA was underestimating the project’s

traffic impacts by failing to use the trip generation rate for the ITE “fulfillment center”

classification or type of high cube warehouse (ITE Code 155), rather than the ITE “parcel

hub” classification (ITE Code 156). The letter included a memorandum prepared by an

engineering firm, showing that two studies, one by the ITE and another by the Western

Riverside Council of Governments (WRCOG), distinguished between five types of high

34 cube warehouses for purposes of calculating daily PCE trips: transload, short-term

storage, cold storage, fulfillment center, and parcel hub.

The ITE study defined a “fulfillment center” as a warehouse with the following

characteristics: “storage and direct distribution of e-commerce product to end users;

smaller packages and quantities than for other types of [high-cube warehouses]; often

mezzanine levels for product storage and Pick-and-pack area comprises majority of

space, larger parking supply ratio than for all other [high-cube warehouse] types.” In

contrast, the ITE study defined a “parcel hub” warehouse as “transload function for a

parcel delivery company” with the following characteristics: “a regional and local

freight-forwarder facility for time sensitive shipments via air freight and ground (e.g.,

UPS, FedEx, USPS); site often includes truck maintenance, wash, or fueling facilities,

limited or no breakbulk, repack or assembly activities, larger employee parking ratios;

truck drivers often based at facility (i.e., parking may be for both site employees and

drivers, typically in close proximity to airport, often stand-alone[)].”

Based on these operational distinctions between parcel hub and fulfillment center

warehouses, the City of Claremont argued in its letter that the TIA should have used the

fulfillment center classification (ITE Code 155) to estimate the project’s daily PCE trips.

The City of Claremont asserted that the fulfillment center classification would result in

“lower AM peak hour trips but higher PM peak and Daily Vehicle trips for the project.”

(Italics added.) In response, the City “ran the analysis using the trip generation rate for

fulfillment centers” (ITE Code 155) for a 201,906-square-foot warehouse. This analysis

showed that a 201,096-square-foot warehouse would generate slightly higher PCE trips

35 during the p.m. peak hour (276), but would generate total daily PCE trips of 1,953—630

fewer than the 2,583 total daily PCE trips the TIA estimated the project would generate

using the parcel hub classification (ITE Code 156) and assuming a larger, 276,825-

square-foot warehouse.

UCF ignores the City’s supplemental analysis using ITE Code 155. UCF argues,

“the record lacks substantial evidence to prove that the right classifications were used . . .

.” UAOB 58} Again, however, the City calculated the project’s daily PCE trips using

trip generation rates using both the parcel hub (ITE Code 156) and fulfillment center

(ITE Code 155) warehouse classifications, and found no significant impacts on LOS

under either classification. Thus, there is no merit to UCF’s claim that the TIA

underestimated the project’s daily PCE trips by using the wrong ITE Code or warehouse

classification.

3. Analysis/Delivery Vans, Trucks, and Truck Trips

Next, UCF argues that the TIA and the MND did not explain how PCE trips from

delivery vans and trucks associated with the project “factored in” to the TIA’s 2,583 daily

PCE trip estimate. We disagree. First, in response to comments on the MND and TIA,

the City explained how trips from delivery vans “factored in” to the TIA’s 2,583 daily

PCE trip estimate. The City stated: “Van parking spaces are not an indicator of actual

trip generation. Rather, the trip generation rate is appropriately based on building square

footage because building square footage represents the total amount of goods/delivery

capacity of a building.”

36 Second, the MND and the TIA showed how the 50 daily truck trips that the project

was expected to generate “factored in” to the 2,583 daily PCE trip estimate. The MND

and TIA explained that “the rates included” in ITE Code 156 for parcel hub warehouses

“are net rates inclusive of passenger car, delivery vans, and truck traffic. However, to

present a conservative analysis, the trip generation rates” using ITE Code 156 were

“assumed to be passenger cars and vans, and truck traffic has been added to the trip

generation estimate.” (Italics added.)

The TIA (Table 24) showed the warehouse portion of the project was expected to

generate 2,068 daily PCE trips, and that the retail/office portion of the project would

generate an additional 365 daily PCE trips, for a total of 2,433 daily PCE trips (2,068

plus 350 equals 2,433). And, in order to “conservatively” account for the project’s

expected 50 daily trips from 4.0 axle trucks, the TIA multiplied the 50 daily truck trips by

a factor of 3.0, and estimated the project would generate an additional 150 daily PCE

trips based on the 50 truck trips. The TIA then added this 150 daily PCE trip estimate to

the PCE trip estimate of 2,433 that was based on the size of the building (ITE Code 156),

to arrive at the 2,583 daily PCE trip estimate for the project (2,433 plus 150 equals

2,583).

UCF notes the ITE Manual is not included in the record and argues this means

“there is nothing in the record to explain or substantiate how or why “25 daily trucks

translated into 2,583 daily PCE trips.” There is no merit to this claim. Bridge points out

that the ITE Manuel “is a highly technical document with thousands of pages of tables

and charts,” and argues “the traffic engineer’s expert statement providing the ITE trip

37 rates are in the TIA, which is itself record evidence of the data in the ITE manual.” We

agree with the Bridge on this point.

As discussed, the MND and TIA explained why the TIA used the trip generation

rates for “parcel hub” warehouses (ITE Code 156) to calculate the project’s daily PCE

trips. As Bridge points out, “there is no disagreement as to what the ITE rates are, nor

any evidence to dispute the rates provided in the MND for ITE code 156.” In addition,

the public had access to the ITE Manuel through the City, which constructively possessed

it through the traffic engineering firm that prepared the TIA. (See Consolidated Irritation

Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 710-711 [“[A]n agency has

constructive possession of records if it has the right to control the records, either directly

or through another person.”].) Thus, there was no need for the City to include a copy of

the voluminous ITE Manual in the administrative record.

UCF argues the record does not support the City’s methodology for converting

trucks to passenger car equivalents. That is, UCF argues “nothing in the record explains

why the TIA multiplied the project’s anticipated 50 daily truck trips by a factor of 3.0, to

convert those 50 daily truck trips to 150 daily PCE trips. UCF argues “the MND

mentions an ‘axel’ conversion, but again nothing substantiates how or why a 4-axle truck

translates into 3.0 passenger cars for purposes of evaluating transportation impacts.” This

argument, too, disregards the record.

As Bridge points out, the 3.0 PCE conversion ratio for 4.0 axle trucks is the ratio

that the cities San Bernardino County were required to use, in analyzing LOS impacts,

under the CMP, as updated in 2016. The CMP required cities to use the following PCE

38 rates in analyzing impacts on LOS: “For light duty trucks (such as service vehicles,

buses, RV’s and dual rear wheels) use a PCE of 1.5. For medium duty trucks with 3

axles, use a PCE of 2.0. For heavy duty trucks with 4 axles, use a PCE of 3.0.” Thus, the

record fully substantiates the TIA’s use of the 3.0 PCE conversion ratio for 4.0 axle

trucks.

4. Analysis/the “Retail Use” Comparison

In a “retail analysis memorandum,” the TIA analyzed the project’s impacts on

LOS based on the number of daily PCE trips the project would have generated if it were a

276,825-square-foot building developed for retail uses. This analysis used the ITE trip

generation rate for “Shopping Center” (Land Use 820), and showed that a retail use for

the building would generate substantially more daily PCE trips than the project would

generate as a parcel hub warehouse.

The draft MND summarized the findings of the retail analysis memorandum: “[A]

retail use for the same size building would generate 62 trips more than the proposed

warehouse Project in the a.m. peak hour, 498 trips more than the Project in the p.m. peak

hour, and 5,459 more daily trips than the Project. The proposed warehouse project is

anticipated to generate 50 daily truck trips. . . . [A] retail building the same size as the

proposed Project is anticipated to generate approximately 310 daily truck trips.

Therefore, a retail building would generate 260 more truck trips per day than the

proposed Project.”

UCF claims the City’s comparative “retail analysis” of the daily PCE trips that

would be generated from a same-size building developed for retail uses “set up an

39 illusory comparison of transportation impacts that is impermissible under CEQA” We

disagree. UCF relies on the settled proposition that, “[a]n approach using hypothetical

allowable conditions as the baseline [to describe the physical environmental conditions in

the vicinity of the project as they exist at the time environmental analysis is commenced

(CEQA Guidelines, § 15125, subd. (a))] results in ‘illusory’ comparisons that ‘can only

mislead the public as to the reality of the impacts and subvert full consideration of the

actual environmental impacts,’ a result at direct odds with CEQA’s intent.”

(Communities for a Better Environment v. South Coast Air Quality Management Dist.

(2010) 48 Cal.4th 310, 322, italics added.) But the City did not use the hypothetical retail

use of the project as a baseline for assessing any of the project’s environmental impacts.

(Id. at pp. 320-322.) Although, as UCF argues, the retail use comparison may have

“made the project’s trip generation look more attractive or favorable by comparison” to a

retail use, the retail analysis memorandum was not illusory or misleading “as to the

reality” of the project’s impacts and was, therefore, not at odds with CEQA. (Id. at

p. 322; see CEQA Guidelines, § 15126.6 [EIR required to study reasonable range of

project alternatives].)

B. UCF’s Transportation Impact Claims Are Either Moot Or Unsupported

In the trial court, UCF argued that the City’s traffic impact analysis, the TIA, was

flawed because it “neglecte[d] to consider the traffic impacts implied by 1,104 van

parking stalls and 337 automobile parking spaces.” The trial court found this traffic

impact claim was moot because it was based on LOS. (Citizens for Positive Growth &

Preservation, supra, 43 Cal.App.5th at pp. 625-626 (Citizens); § 21009, subd. (b)(2).)

40 UCF claims its “transportation-related claims are not moot” and Citizens is

distinguishable because UCF’s traffic and transportation impact claims are based on

“vehicle miles traveled” (VMT), not LOS, and the City abused its discretion in using

“defunct LOS methodology to evaluate transportation impacts.” We address these claims

in turn.

1. UCF’s Traffic Impact Claims Are Moot

Section 21099 was enacted effective January 1, 2014. (Stats. 2013, ch. 386 (S.B.

743), § 5.) It directed the OPR to develop CEQA guidelines “establishing criteria for

determining the significance of transportation impacts of projects within transit priority

areas.” (§ 21099, subd. (b)(1).) It states: “Upon 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

. . . .” (§ 21009, subd. (b)(2).)

In 2018, the Secretary of the Natural Resources Agency certified Guidelines

section 15064.3 (Determining the Significance of Transportation Impacts). (Citizens for

Positive Growth & Preservation, supra, 43 Cal.App.5th at pp. 625-626; § 21009,

subd. (b)(2).) Thereafter, on December 28, 2018, the Office of Administrative Law

approved the guideline, and the guideline became operative. (Citizens, at pp. 625-626.)

By its terms, the guideline is prospective only; although agencies could elect to be

“immediately” governed by its provisions, the guideline did not apply “statewide” until

July 1, 2020. (CEQA Guidelines, §§ 15007, 15064.3, subd. (c).)

41 Here, the City did not elect to be governed CEQA Guidelines section 15064

before the guideline went into effect statewide on July 1, 2020. Thus, the guideline was

not binding on the City until July 1, 2020. (CEQA Guidelines, § 15064.3, subd. (c).)

Guidelines section 15064.3 “describes specific considerations for evaluating a

project’s transportation impacts” and provides that, “[g]enerally, vehicle miles traveled

[VMT] is the most appropriate measure of transportation impacts.” (CEQA Guidelines,

§ 15064.3, subd. (a).) The guideline defines VMT as “the amount and distance of

automobile travel attributable to a project.” (Ibid.) “Other relevant considerations” in

determining the significance of a project’s transportation impacts “may include the

effects of the project on transit and non-motorized travel.” (Ibid.) The guideline

expressly states, however, that, except for road capacity projects, “a project’s effect on

automobile delay shall not constitute a significant environmental impact.” (Ibid.)

In Citizens, the petitioner challenged the validity, under CEQA, of the City of

Sacramento’s 2035 General Plan and EIR for the general plan, claiming, in relevant part,

that the EIR did not adequately analyze and mitigate the general plan’s impacts on traffic

congestion. (Citizens, supra, 43 Cal.App.5th at pp. 615, 625.) Citizens held that section

21099, subdivision (b)(2), and its implementing regulation, CEQA Guidelines section

15064.3, rendered the traffic impacts argument moot. (Citizens, at pp. 625-626.)

Applying the maxim that, in mandamus proceedings, “ ‘ the law to be applied is

that which is current at the time of judgment in the appellate court,’ ” Citizens reasoned

that, in the words of section 21009, subdivision (b)(2), the law in effect at the time the

appellate court judgment was issued in Citizens, “ ‘automobile delay, as described solely

42 by level of service or similar measures of vehicular capacity or traffic congestion’ ” could

no longer be considered a significant environmental impact. (Citizens, supra,

43 Cal.App.5th at pp. 625-626, quoting § 21009, subd. (b)(2).) Thus, the petitioner’s

claim was moot because it was based on “traffic congestion” or “LOS (i.e., automobile

delay)” and, under current law, section 21009, subdivision (b)(2), the 2035 General

Plan’s impacts on LOS could no longer be considered significant. (Citizens, at p. 626;

accord, Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021)

73 Cal.App.5th 985, 1021 [“Because LOS-based traffic analysis is no longer a

consideration to determine if a project’s [transportation] impact is significant, the City

would be under no obligation to conduct a LOS-based analysis on remand.”].)

Similarly here, UCF’s traffic/transportation impacts claim is moot because it is

based on traffic congestion or LOS. In UCF’s words, UCF’s claim is based “on an

under-counting of vehicles and vehicle trips.” (Italics added.) This is indistinguishable

from “automobile delay, as described solely by level of service traffic [LOS] or similar

measures of vehicular capacity of traffic congestion”—the type of traffic impact that has

not been considered significant since Guideline section 15064.3 became operative, and

implemented section 21009, subdivision (b)(2), on December 28, 2018. (See Citizens,

supra, 43 Cal.App.5th at pp. 625-626; Ocean Street, supra, 73 Cal.App.5th at p. 1021.)

Because LOS impacts are no longer considered significant, on remand, the City

would not be required to conduct a new LOS analysis. (Citizens, supra, 43 Cal.App.5th

at p. 626; Ocean Street, supra, 73 Cal.App.5th at p. 1021.) Thus, a court cannot grant

UCF effective relief on its LOS-related traffic impact claims, as the claims are not viable

43 under current law. (People v. Dunley (2016) 247 Cal.App.4th 1438, 1445 [“A case

becomes moot when a court ruling can have no practical effect or cannot provide the

parties with effective relief.”].)

UCF argues that its traffic impact claim—that the City “under-counted the number

of vehicles and vehicle trips” the project was expected to generate—is not moot because

it is not based on traffic congestion or LOS (automobile delay); rather, it is based on

VMT. But as Bridge points out, UCF’s argument on appeal misrepresents UCF’s

argument in the trial court. In its opening brief in the trial court, UCF argued “the traffic

study [the TIA] inadequately captures the negative impact of traffic and levels of

congestion associated with the [project],” and that, “residents’ first-person observations

of the congested traffic situation around the project site” required the City to prepare an

EIR. Again, UCF’s traffic impact claims are moot because they assert that the City

inadequately assessed the project’s impacts on LOS.

UCF counters that “[t]he number of vehicles attributable to the Project has a direct

correlation with VMT; the more vehicles there are, the more vehicle miles traveled there

are. . . . There is not a similar correlation between number of vehicles and automobile

delay . . . . Citizens does not apply here because automobile delay was not the impact for

which substantial evidence of a fair argument was presented.” Again, however, the

record does not support this claim. Because UCF’s traffic impacts claim in the trial

court, and in this appeal, is based on LOS, the claim is moot by operation of law.

(Citizens, supra, 43 Cal.App.5th at pp. 625-626.)

44 2. The City Conducted a VMT Analysis, and It Was Not Challenged

UCF claims the City abused its discretion in performing a “defunct LOS analysis”

of the project’s traffic and transportation impacts, and the City should have instead

performed a VMT analysis of the project’s transportation impacts. This claim fails for

several reasons. First, during the public review period, the City did, in fact, perform a

VMT analysis “for information purposes,” which found the project would have less than

significant transportation impacts “were VMT to be adopted as a threshold.”

The VMT analysis concluded that the “per capita VMT” for the project was

“anticipated to be 6.5% less than the per capita VMT for employees in Upland, and

12.32% lower than [the per capita VMT for] the County of San Bernardino.” Using a

VMT significance threshold of “ ‘no more than existing’ ”—“similar to what several

cities in Riverside County” had adopted “following WRCOG guidance”—the VMT

analysis concluded the project “would have a less than significant impact” on

transportation.

The VMT analysis states that it was prepared “consistent with CEQA Guidelines

section 15064.3 and the Technical Advisory published by OPR . . . for informational

purposes.” (Italics added.) The VMT analysis was released to the public on February 12,

2020, as part the agenda packet for a City planning commission meeting, before the City

adopted the MND on April 1, 2020.

In its opening brief in this appeal, UCF ignores the VMT analysis and assumes the

City did not prepare a VMT analysis. In its respondent’s brief, Bridge correctly points

out that UCF failed to exhaust its administrative remedies concerning the VMT analysis.

45 No one, including UCF, challenged the VMT analysis by commenting on it during the

public comment period on the project. “ ‘Exhaustion of administrative remedies is a

jurisdictional prerequisite to maintenance of a CEQA action.’ ” (California Native Plant

Society v. City of Rancho Cordova (2009) 172 CalApp.4th 603, 615.) “ ‘The exhaustion

of administrative remedies doctrine “bars the pursuit of a judicial remedy by a person to

whom administrative action was available for the purpose of enforcing the right [the

person] seeks to assert in court . . . .” ’ ” (Clews Land & Livestock, LLC v. City of San

Diego (2017) 19 Cal.App.5th 161, 184.) Thus, as Bridge argues, UCF failed to exhaust

its administrative remedies on the VMT analysis, and, as a result, UCF cannot challenge

the VMT analysis in this mandamus proceeding.

As Bridge argues, UCF’ s refusal to acknowledge the VMT analysis “defeats all”

of UCF’s arguments regarding the MND’s analysis of the project’s transportation

impacts. Indeed, the City’s preparation of the VMT analysis defeats UCF’s argument

that the City abused its discretion in using LOS as the means of measuring the project’s

impacts on traffic and transportation. As Bridge points out, the City was required to

analyze the project’s impacts on LOS to comply with the CMP, but the City was not

required to prepare the VMT analysis in order to comply with CEQA and Guidelines

section 15064.3.4

4 Although the City completed a VMT analysis of the project’s transportation impacts in response to comments on the draft MND, the City was not required to perform a VMT analysis and would not be required to perform a new or modified VMT analysis on remand. (See Citizens, supra, 43 Cal.App.5th at p. 626.) Guidelines section 15064.3 generally requires agencies to perform VMT analyses in evaluating a project’s [footnote continued on next page]

46 Lastly, even if UCF’s traffic impacts claim is based on VMT, rather than LOS,

and is therefore not moot, the claim lacks merit because no substantial evidence supports

it. For the reasons explained, UCF has not shown that the City, in the MND, the TIA, or

the VMT analysis, undercounted the “vehicles and vehicle trips” daily PCE trips

attributable to the project. More broadly, UCF has pointed to no substantial evidence

supporting a fair argument that the project could have significant traffic or transportation

impacts, based on a VMT methodology or any other analysis. Thus, there is no merit to

UCF’s claim that the project may have significant transportation impacts.

D. UCF’s Air Traffic and GHG Emissions Claims Also Lack Merit

UCF’s claim that the project could have significant impacts on air quality and

GHG emissions is based solely on UCF’s unsupported claim that the project could have

significant impacts on transportation. Because there is no merit to UCF’s claim that the

project could have significant transportation impacts, there no merit to UCF’s claim that

transportation impacts. (Guidelines §15064.3, subd. (a).) But because the guideline is prospective, as described in Guidelines section 15007 (id. at subd. (c)), the guideline does not apply to “ ‘steps in the CEQA process’ ” that were “undertaken” before the agency became governed by the guideline (IBC Business Owners for Sensible Development v. City of Irvine (2023) 88 Cal.App.5th 100, 122-125 (IBC) [“[The City did not have to comply with the VMT Guideline because the addendum process had already been ‘undertaken’ by the time [Guideline § 15064.3] became applicable”]; Citizens, at p. 626 [“[B]ecause CEQA Guidelines section 15064.3 is prospective and does not presently require the City to use the criteria set forth therein, Citizens’ argument that the City failed to analyze the 2035 General Plan’s traffic impacts under the [VMT] criteria in the regulation fails . . . .”].) Here, the City undertook (and completed) the process of preparing the TIA before Guidelines section 15064.3 went into effect statewide, and became binding on the City, on July 1, 2020. (Guidelines, § 15064.3, subd. (c).) Thus, the City was not required to perform a VMT analysis of the project’s transportation impacts, and the City would not be required to perform a new or modified VMT analysis on remand. (IBC, at pp. 122-125; Citizens, at p. 626.)

47 the project could also, by extension, have significant impacts on air quality and GHG

emissions.

VI. DISPOSITION

The judgment is reversed. The matter is remanded to the superior court with

directions to enter a new judgment denying UCF’s writ petition in its entirety.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J. We concur:

MILLER

Acting P. J.

RAPHAEL

J.

48