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Chapter III - What to Do Before They Approve the Development

All right, you say. You’re willing to start at the beginning and go the distance. Whatever it takes. You’ve just found out about a new development, Avarice Ranch, that they’re planning to dump on you and your neighbors. On looking around, you find you’re the only line of defense. The politicians are already cheering for it, the public hasn’t figured it out yet, and the environmental groups are spread too thin fending off major disasters to get involved. If you don’t do something, the bulldozers are going to roll.

Again, whether you sue them yourself or get an attorney, you must build your case before the development gets approved. Under the law, you must “exhaust your remedies” in the political arena before you can seek relief from the courts. So don’t wait. Jump in!

1. Review and comment on the negative declaration

If it’s a minor project, (or it’s not but they think they can get away with it), the developer may try to proceed without an EIR. In this case, a negative declaration will be issued by the city or county. A negative declaration is a legally-required notice that the project will not have a significant impact on the environment. (PRC §21080(c), CEQA Guidelines §§15070-15075.) It must be accompanied by an “initial study,” which contains a checklist of potential impacts the proposal might have. (CEQA Guidelines §15063, Appendices H and I.)

For each impact, the choices of response are “yes,” “maybe,” and “no,” or variations of these. If there are any yeses or maybes checked, an EIR or mitigation is required. Go over each line of the checklist to see if, in fact, any potential impact has been swept under the rug. The legal test is this: if there’s any substantial evidence that the approved project may have a significant impact (or even if its mitigation measures may have a significant impact), an EIR is required. In this case, the substantial evidence test works in your favor, not theirs.

THE BURDEN OF PROOF IS ON THE CITY COUNCIL OR COUNTY SUPERVISORS

Furthermore, the burden of proof that there won’t be an impact is on the city or county. All you have to do is provide evidence of a potentially significant impact. Your own experience will suffice where it relates to matters you have direct knowledge of, e.g., congestion on a road you regularly travel, overcrowding in the school your children attend, or the presence of wildlife you’ve observed. Just be sure to document your evidence as much as possible. Give times, dates, car counts or other specific relevant facts, in writing. If possible, provide photographs or video tapes. Get others to testify in support.

In other more technical matters you may want to strengthen your case by bringing in expert testimony, if you can possibly do so. Have a biologist or wildlife expert walk the project site to identify the natural resources and give a written assessment (1) of their importance and (2) of the significance of the potential impact. Think ahead to when you’ll have to convince a judge, basing your case only on written evidence in the record.

AN EIR IS WORTH FIGHTING FOR

Remember, you need only establish that there may be a significant impact. A later EIR may demonstrate that there will not, in fact, be a significant impact. But the purpose of CEQA is to protect the environment and to ensure that any errors are made on the side of environmental protection.

Unfortunately, there’s no clear definition of “significant” in CEQA (PRC §21068, CEQA Guidelines §15382), and you can count on the developer weasels to exploit this to the fullest. “Sure, the project will chop 30 feet off this ridgeline and bury that canyon under 50 feet of dirt, but we don’t think that’s significant, especially when compared to the actions of major glaciers and volcanic eruptions...”

When this happens, you should try to

• get expert testimony
• compare the project with others where an EIR was required
• show the existence of a serious public controversy or a disagreement among experts (CEQA Guidelines §15064(h))
• or show that the disputed impact is on the list of “normally” significant impacts in Appendix G of the CEQA Guidelines, or one listed in CEQA Guidelines §15065 under “mandatory findings of significance.”

As a practical matter, it’s much easier to get a court to strike down a faulty negative declaration and require an EIR than to invalidate a completed EIR. The decision makers know that. So unless they’re completely bought off and confident they can get away with it, they will usually require an EIR when faced with a reasonable showing that the project may have a significant impact. Of course, the credible threat of litigation must be there to facilitate their powers of reasoning.

An EIR is worth fighting for. If done properly, it forces the city or county to study and publicly reveal the project’s environmental down side. This raises the project’s visibility in the eyes of the public and increases the decision makers’ political exposure as they consider voting for it. A developer will sometimes try to get away with a negative declaration in order to save time or money. Or—and watch out for this, especially—he or she may hope to keep the public from getting wind of some nasty environmental impact and making a big stink about it. Dig deep into the initial study and read the fine print. How much grading does this project involve? How deep are they going to fill up those canyons?

Remember that many of the planners of these projects, both the city’s and the developer’s, are expert salespersons and sophists who will be proportionately rewarded if they can save the developer the expense of doing an EIR. They’ll use restfully green watercolor renderings, color slides, and other mind-numbing audio-visual effects to put a pleasant, even attractive face on environmental disaster. They’ll recite enthusiastic litanies of the project’s virtues and benefits to the public. They’ll promise to do anything—after the project is approved. Don’t let them hypnotize you! Keep the one and only issue in focus: Might the project have a significant impact on the environment? If so, they need to do an EIR, period. It’s absolutely irrelevant whether the project can provide some public benefit or answer some need, or what the size or financial condition of the applicant is, or how the project compares with other projects or earlier proposals.

WATCH OUT FOR DEFERRED MITIGATION AND STUDIES

Another very common developer trick for getting out of doing an FIR, especially when all else fails, is the deferred study or mitigation. It works like this: Even though it looks as though the project will create a significant environmental problem, the city or county approves it anyway, subject to a condition or promise that they’ll study the problem and take care of it later.

A typical such condition sounds like this: “Prior to the issuance of any building permit, the developer will submit a study to the director of planning demonstrating that the project will not have a significant impact on traffic (or schools, noise, air pollution).”

Such conditions are usually vague as to how they’re going to get rid of the impact or why they can’t do it now. But when questioned for specifics, they’ll respond, “Why are you worried? Condition number 28 says that there won’t be any impact on traffic. If there is, they can’t build!” Or, “At this level of detail, it’s not possible to try to predict these impacts. That will all be studied at a later stage of the project.” Don’t fall for this kind of environmental procrastination. The developers and their local government lackies are trying to defer as many of the practical details of the project as possible until after the project has been approved, and the public hearings are over. Then, they will go into the backroom with the bureaucrats, whom they may have paid off, and cut a deal where they can do whatever they want.

It’s also illegal. In the first place, CEQA requires that environmental issues be dealt with up front, before the project is approved. It also provides the public the right to review the project in its final form, and requires that the city council or board of supervisors take responsibility for the environmental assessment. They can’t hand it off to the “director of planning” or some other administrator who can later cut backroom deals with the developer, shielded from public review.

There must also be some reasonable expectation that any proposed mitigation measure will actually work. “Trust us, we’ll take care of it” does not suffice under CEQA. All of these prohibitions against deferred studies and mitigations are clearly set forth in the case of Sundstrom V. County of Mendocino (1988) 202 Cal.App.3d 296. You should read this important case, and later cases citing it.

If the negative declaration depends upon the incorporation of mitigation measures (i.e., it’s a mitigated negative declaration), CEQA requires that the decision maker also approve a mitigation monitoring program to go with the project. (This law, PRC §21081.6, was added after studies showed that—big surprise—in most cases the promised mitigations weren’t ever being done). The program is supposed to ensure that the mitigation measures will actually be carried out. Good luck.

DON’T MISS DEADLINES

Be sure you submit all your comments to the decision makers in writing prior to any applicable deadline they’ve set. Include the following magic language to protect your right to sue them later on: “We hereby object to approval of the project in its present form. The above comments and all references contained therein are hereby incorporated into the official record of proceedings of this project and its successors.” (PRC §21177(b).)

You can’t raise an issue in court unless you or somebody else previously raised that issue before the decision makers (PRC §21177(b)), so bring up every possible objection to the project you can think of when you make your written comments.

Make sure you’re happy with any negative declaration, because once the developer gets it, he or she is home free. Never mind what the conditions of approval say about future studies or hearings. As a practical matter, you won’t have any more opportunity to correct the project’s environmental impacts.

2. Review and comment on the EIR

FIRST STEP: THE NOTICE OF PREPARATION (NOP)

If a project may have a significant impact on the environment (that is, if there is any “substantial evidence” that there may be a significant impact) an environmental impact report must be prepared. (PRC §§21100, 21151, CEQA Guidelines §15064(a)(1).)

You may have received a “notice of preparation of environmental impact report,” (“NOP”) or heard about one. This legally-required document is the first step toward approval of the development.

From here on out, the entire procedure is laid out in CEQA and the CEQA Guidelines, so before writing your comments on the Avarice Ranch NOP and getting other knowledgeable persons to do the same, go over the CEQA Guidelines as they apply to NOPs.

Does the NOP measure up? If not, say so. What topics should the EIR cover? Did the attached initial study miss or attempt to gloss over anything? Don’t be intimidated by the so-called experts who prepared the initial study. You may very well know more about the project or the site than they do. Many of these impostors dry-lab their so called field studies from within their air-conditioned high-rise offices, using textbook data or water samples from another area of the state, or predicting the occurrence of bird species never before seen in the area of the project.

In your written comments, point out any unique circumstances surrounding this project and any impacts it may have. Remember, raise every issue you may later want to sue them on. Don’t hold back. Throw the book at them! Then state that you expect to receive a copy of the draft EIR when it comes out.

THE DRAFT EIR: IT MAY BE YOUR LAST CHANCE TO GET ON THE RECORD

There may be one draft EIR or several before the final EIR. Since each may be a separate legal document, you may have to go through the following painstaking procedure more than once. The city council or board of supervisors has the option to allow public comment on the final EIR (CEQA Guidelines §15089 (b)), so don’t depend on it. Get your comments in before the deadline on the draft EIR.

When the draft EIR comes out, you should receive a copy, or at least a notice telling you where you can look at a copy and how long you have to comment on it (usually 30 or 45 days). Again, go over it with a fine-toothed comb, especially if the developers or their consultants wrote it. Did the developers or their consultants prepare the draft EIR without the independent analysis of the city or county? They’re not supposed to (PRC §21082.1, CEQA Guidelines §15084(e).) Demand that they list the names of the city or county experts who independently reviewed each section of the developer’s draft EIR. Demand an objective EIR, not disguised sales propaganda.

Remember, the consultants are slick, and they probably stand to get extra pay if the project is approved as proposed. But they face a dilemma: if they say an impact is going to be significant, they trigger the requirement that it must be reduced to the extent feasible, and raise the political exposure of the decision makers in approving it. That may result in cutbacks to their project and lower excess profits. On the other hand, if they try to downplay the impact and say it’s insignificant, they run the risk that someone like you will take them to court and get their EIR thrown out for not acknowledging a significant impact. This stops their project and forces them to go back for reapproval, where they know you’ll be waiting to lower the boom on them again.

You can be sure that all their skills at deception have put the best possible face on the monster, camouflaging its true impacts. The courts have called the EIR an “environmental alarm bell” (Santiago County Water District v. County of Orange (1981) 118 Cal.App.3d 818, 822.) So if you see a significant impact being swept under the rug, your job is to see that the alarm bell goes off.

Now is the time to raise every issue you might later want to sue on. Follow your written comments with the magic language to protect your right to sue them later on: “We hereby object to approval of the project in its present form. The above comments and all references contained therein are hereby incorporated into the official record of proceedings of this project and its successors.”

Rest assured that when the developer’s team of lawyers gets its hands on your lawsuit, the first thing they’ll do is assign someone to go over every single cause of action and check to see if you or somebody else raised it in the record of proceedings. If not, they’ll try to have that cause of action thrown out.

PHILOSOPHICAL POINTS DON’T WIN COURT CASES

Don’t waste your time raising universal or philosophical points, like when are they going to say enough is enough, or doesn’t anyone realize that what you’re doing is irreversible, or that when a species is extinct, it’s gone forever. Such general comments are exactly what they want you to contribute. They love it when you simply vent your feelings about general issues, because it requires absolutely no response on their part. Their only comment in the final EIR will be, “Comment so noted.”

Furthermore, such comments are absolutely wasted on the sort of people who will be reading them. Remember, although you may be very emotional and impassioned about the environmental outrage being planned, the jaded individuals you’re addressing have likely ordered scores of such environmental executions. In fact, that’s probably how they got where they are now. Don’t waste your time and make the common mistake of trying to convince them you’re right. What matters most to you matters nothing to them. Their heads are in an entirely different universe, and they simply can’t relate to what you’re saying.

So keep your comments specific: the EIR fails to examine this, or is inaccurate about that, or should have examined this alternative, etc.

POINT OUT UNSUPPORTED STATEMENTS

The first thing to watch out for in an EIR is “bare conclusions,” unsupported by actual data. These are illegal and invalidate the EIR, but it’s easy to get sucked in by this sort of armchair statement, because it often seems reasonable. “It’s only 100 houses, so that’s obviously not going to have a significant impact on water quality (traffic, schools, air quality).” Or “Reducing the project 30% would make it infeasible for the developer.”

But planners have ways of measuring and predicting environmental impacts: traffic, demand for schools, libraries, fire stations, hospitals, water and air pollution, loss of open space, destruction of plants and animals and their habitats. If they say there will be no significant impact, or that the impact will be mitigated to insignificance, make sure the actual hard data is there.

If possible, go one step further and present your own data demonstrating why the impact will in fact be significant. Once an EIR is prepared, the courts have held that the burden of showing that an impact will be significant shifts on to your shoulders. So, after preparing an EIR, they can sometimes get by with a half-baked argument that wouldn’t have supported a negative declaration, and you will need to debunk it with some actual data.

IS THIS PROJECT JUST A CHUNK OF A LARGER, UNDISCLOSED PLAN?

The EIR must examine the project’s “cumulative impacts,” meaning the impacts of the project added to those of past, present, and reasonably foreseeable future projects. (PRC §§21083(b), CEQA Guidelines §§15065(c), 15130, 15355.) This is to stop developers from circumventing CEQA by piecemealing their projects into small chunks, none of which by itself has a significant impact.

Be prepared for this classic dodge: One year they’ll seek approval of a major residential project. In the EIR they’ll assume that the land around it will remain in open space -- and therefore won’t generate traffic, air pollution, or noise. Next year, they’ll come back with another development on the land they previously said was going to be open space. By thus breaking up their ultimate project (which they probably couldn’t build and sell all at once anyway), they escape responsibility for the big environmental mess the total project will create.

So dig deep, and ask them in your comments and at the public hearing: what are your plans for the rest of your property? It will be very tough to pin them down on this point. They’ll swear up and down they have absolutely no plans to do any more in the future, that any such plans are pure speculation on your part. But don’t let them put you off. Demand a written answer. Ask them to dedicate the rest of the property as open space, since they have no plans to develop it, and thereby increase the project’s overriding public benefits.

THEY HAVE TO SAY IT CLEARLY

CEQA also requires that EIRs be written in plain language for the lay person. You should be able to understand what you’re reading. How congested will this project make the roads and freeways? It should tell you -- not in long numerical tables and computer printouts, but in plain language -- exactly what the effect will be on every road and intersection the project will affect.

FALSE TRAILS

Burying the ugly truth under piles of irrelevant numbers is another favorite developer tactic for hiding a project’s impacts. Before digging into piles of numerical data, look at the claimed conclusion. Even assuming that the conclusion follows from the data, is it relevant under CEQA? Don’t get sidetracked by diversionary tactics.

In a recent case, the author wasted many hours analyzing an EIR’s voluminous traffic data relating to a few intersections near the proposed development before realizing that the critical issue was the impact on the nearby freeway, where the traffic was hopelessly congested and projected to get worse. The developer’s agent who prepared the EIR nearly succeeded in diverting attention from that critical issue by submitting mountains of irrelevant data as a decoy.

SUGGEST MITIGATIONS AND ALTERNATIVES

Propose all the feasible mitigation measures and project alternatives you can think of to substantially lessen the project’s significant impacts. Don’t get mentally locked into their narrow plans.

Pay careful attention to the project’s goals, listed at the beginning of the EIR. You’ll usually find some very high-toned, altruistic, and pious recitals here, such as “complementing and balancing the general plan,” “preserving the area’s significant natural resources in open space,” or providing roads, “housing opportunities,” or “recreational amenities.”

They like to cite general plans, which are so full of vague policies that one can be found to support nearly any project. For example, if houses are selling right now, they’ll of course be in the project, to “meet the demand for affordable housing.” If houses aren’t selling, the developers will put up “business parks” to “balance the jobs-to-housing ratio” or “absorb vehicular trips.”

They never tell the real goal, which is obviously to make the largest possible profit for the developer in any way possible. The reason for the high-sounding goals is that they know the city council or board of supervisors will approve the project -- and CEQA requires that the council or board make a written finding that there are “overriding considerations” for approving a project with significant environmental impacts. (CEQA Guidelines §§15092(b)(2)(B),15093.)

But play along with the facade, because you can turn it against them. After all, if profits are not the goal, then there are probably all kinds of alternative projects which can better “complement and balance the general plan,” preserve resources, or provide housing or “recreational amenities.”

Give them a good long list of ways in which the project’s goals might be accomplished in a less environmentally destructive way. Remember, if significant impacts are involved, they’ll eventually have to either reject your proposals as infeasible, based on substantial evidence in the record, or adopt one of them.

In your written comments, incorporate by reference any information you think you might later need in court. Normally, the judge will be allowed to look at only the “record of proceedings,” which closes when the gavel falls, approving the project. If by that time you haven’t got the information you need to prove your point into the record, it’s too late. During the trial, the judge may not be legally able to take “judicial notice” of what may seem to you like an obvious or well-known fact. So get every fact you think you may need into the record while you can. For example, get the campaign reports from city hall or your local registrar of voters showing how much money in campaign contributions each of the decision makers got from the developer.

3. Testify at the public EIR hearings

You can’t seek judicial relief unless you’ve exhausted your administrative remedies (that is, jumped through the set of hoops the city or county has set up, no matter how futile it may be). (PRC §21177(a),(b).) This means raising, or having somebody else raise, every single issue you later plan to sue on, and appealing the approval to the next higher decision maker, if there is one. For example, decisions by the local planning commission are usually appealable to the city council or board of supervisors. So, if the planning commission doesn’t vote your way, check the local procedure in your zoning code and file an appeal.

Even if you plan to attend the final hearing on the EIR, you should submit your letter of comments beforehand to ensure that your objections are in the official record. Later, during your oral testimony, you should refer to your letter: “Mr./Madame Chairman, I have submitted my comments to you in a letter dated ____, which, in the interests of time, I will only summarize here today...”

There may be a time limit after which they will not consider your input, so be sure you make the deadline, state in your letter that you “object to the approval of the project as proposed,” and request that your comments be included in the “records of any and all proceedings relating to this project or its successors.”

Again, raise every issue you can think of, to preserve your right to sue them later. Examples: negative declaration inadequate; EIR should have been prepared, not negative declaration; EIR mischaracterized project; EIR omitted or understated a significant impact of the project; project not consistent with general plan, or with general-plan supplements, such as specific or feature plans; project inconsistent with zoning code; proposed findings on rejected alternative projects missing or not supported by the evidence; proposed findings on rejected mitigation measures missing or not supported by the evidence; failure to proceed in the manner required by law; EIR should have examined specific alternatives to the project; specific mitigation measures should have been incorporated into the project; mitigation measures not enforceable.

THEATRICS

At the final public hearing, you’ll likely be treated to some interesting (although sickening) theatrics. Expect a full court press of propaganda. The taxpayer-supported, developer-controlled planning department of your city or county will have put its finest rationalizers on the project to invent the most glowing excuses possible for approving the piece of garbage. Audio-visual special effects, testimonials from local real estate agents, business people, and thinly disguised shills masquerading as “Joe/Jill Average Citizen” will usually be part of the program.

DON’T BE INTIMIDATED!

Expect their testimony to be greeted with enthusiastic thank yous from the council or board members. “It’s really nice to hear someone come up and testify in favor of something for once.” Your comments and those of other opponents, however, will likely elicit a much cooler response, so be prepared. They’re deliberately trying to create an atmosphere where anyone saying anything negative about the development will feel as intimidated and uncomfortable as possible. They’re hoping you won’t say anything.

Sadly, this browbeating often works, and many people who intended to testify lose courage and back out at the last minute. Most people, including many who understand and care about their environment, don’t like to be confrontational or disagreeable. But think of how you will feel later on when you see the bulldozers tearing apart the hills and forests, knowing that you failed to speak out against it when you had the chance. So muster your courage, or anger, or whatever it takes to get up, speak your mind, and go down swinging. Even if you lose, you’ll feel better about yourself later.

True, you may be characterized as an extremist and a crank. “Well, if everyone took the position of no-growthers like you, we wouldn’t have any houses for people to live in or roads for people to drive on.” You might remind them, for media purposes only, that they seem to be getting off the subject (something they would never allow you to do), and that you have very specific concerns about this one specific development that you’d like them to respond to.

Or they might try to cast you as a “bridge-burner” or some other selfish type: “In other words, you’ve got yours and now you want to pull up the gangplank so nobody else can get on board.” Again, for the sake of the media, you might point out, in response, that pulling in the gangplank is not such a bad idea when the ship has sprung a leak and started to sink due to overloading.

Don’t cooperate with their attempts to smear you. Avoid general comments about how they’ve systematically destroyed the environment and undermined the quality of life by mindlessly approving almost every single development that’s come before them. Or that if everyone were like them, we’d probably all be dead by now from environmental poisoning or oxygen starvation.

Comments like these won’t help your purpose. Keep in mind that you’re there to exhaust your administrative remedies, such as they are, so you can go to court later, and to build your case by entering necessary evidence into the record—not to publicly debate five Cro-Magnons who almost certainly have decided how they’re going to vote anyway.

CONCENTRATE ON YOUR LEGAL CASE

So don’t waste time casting oratorical pearls to the swine, but concentrate on your legal case. Are there any documents that still need to be incorporated into the record?

Mention them by name to the board or council, and state that you’re submitting them for the record. Then, hand them to the clerk. Petitions? Hand them in too, making sure the names are easily legible and reproducible.

How about photographs, video or slide presentations? If they refuse to let you present them, get their refusal into the record then submit the photos, slides, or video tape for the record anyway, just as you would documents. Graphic evidence like this can be very damaging to them in court, and, if they’re in such a big hurry to get to the golf course that they deny themselves and the project proponent the opportunity to refute such evidence, so much the better for you.

And, of course, rack your brain to make sure you’ve raised every issue or objection to the project you can think of. What may seem trivial now may later turn out to be a key issue after the full record of proceedings has been prepared. If they cut you off by calling time, don’t argue about it. Simply say these magic words: “Then let the record reflect that I was unable to enter into the record additional evidence that I have, relating to this project and its impacts.” That statement is very important because it allows you to open up the record of proceedings later on in court under Code of Civil Procedure §1094.5(e), and may even force the court to send the matter back to the city or county to be reconsidered in the light of the new evidence.

MORE GAMES

Almost always, the developers and their government cheerleaders will haul out the before-and-after maps, proclaiming “improvements and refinements” in the project that were made after “extensive public hearing and community input,” and pronouncing the planning and CEQA processes successful.

This is the old automobile sticker-price tactic applied to planning, designed to distract attention from the project’s actual environmental impacts, and a euphemistic way of saying that the original proposal was simply a bigger piece of crap than the final one. Maybe they’ve cut down the number of houses they originally said they wanted to build, mutilated one less ridgeline, or extirpated one less species.

Of course, the developers are in complete control of this game. They knew how many houses they really wanted to build in the first place. They knew they could initially propose double that amount, and then later reduce it so as to reap great publicity and political gain, while still getting as much as they originally wanted, or even more.

But fortunately for the public, these public-relations maneuvers have absolutely no legal significance in the final analysis. The impacts on the existing environment of the project as finally approved are all that matter. Your response to the inevitable hype should be to focus attention on such impacts, pointing out that the initial “buildup” or any intermediate proposals have no legal importance whatsoever.

4. Check the findings against the record

As mentioned above, if the decision makers approve the project, CEQA requires them to make various written findings telling what they did about the project’s potentially significant environmental impacts. For each of the project’s impacts that the final EIR identifies as significant, the decision makers have to make one or more of three possible findings:

• They’ve reduced or avoided that impact through mitigation measures or project alternatives.

• Some other agency has the responsibility and jurisdiction for the impact, so the decision makers don’t have to worry about it.

• The mitigation measures or project alternatives necessary to avoid or reduce the impact are infeasible.

Along with each finding, there has to be a brief rationale for making it (CEQA Guidelines §15091(a)), and all findings must be supported by substantial evidence in the record. (PRC §21081.5, CEQA Guidelines §15091(b).) You should get your hands on these findings, before the hearing if possible, and go over them carefully. You may find some surprises.

First, make sure there’s a finding for each significant impact identified in the EIR. Then see if each finding is supported by the evidence in the record, meaning the final EIR. For example, suppose the city council finds it infeasible to mitigate an office complex’s significant impact on aesthetics by making the buildings lower, as proposed in an ElR alternative or by you in your written comments. See if there’s any actual data to show that it’s infeasible. Remember that infeasible means it would be impossible to continue with the project.

Or, if they say the traffic impacts will be mitigated to a level less than significant, is there evidence to support that, or does the EIR say otherwise? Are they simply required to pay a fee into a fund with no guarantee that those fees will actually mitigate the impact to an insignificant level? There has to be some factual support in the record for each finding. A finding may seem reasonable on its face, but the actual supporting data must be there or it’s no good under CEQA. Don’t assume anything, and don’t be hoodwinked by armchair speculation dressed up as expert evidence, such as “staff believes that payment of traffic impact fees will reduce the project’s impact to a level of insignificance.” Where is the factual basis in the record for the staff’s “belief”?

Now step back and take a good look at the big picture. Remember the main requirement of CEQA: to reduce significant impacts to the maximum extent feasible. Did they in fact adopt all feasible mitigation measures or project alternatives in order to reduce the significant impacts as much as possible? Or are their findings merely after-the-fact rationalizations for what they really wanted to do in the first place?