to the Textile Building Lofts is flawed-it is based on an "unsupported assumption about existing ambient noise levels." (Opening Brief 25:15-16.) The City's expert does not address the ambient daytime noise level for the higher floors of the Textile Building Lofts. The City's expert did consider the building, however, using the same methodology used in the DEIR. (AR 4305.) The City's expert determined the Textile Building Lofts would experience an increase in noise based on construction of 1.3 dBA (or less). (AR 3173-74, 7229.)
Further, Project construction-related noise impacts are expected to remain below the City's 5 dBA significance threshold. (AR 3343, 7229.) In a June 19, 2019 memorandum, the City's noise expert explained:
"[T]his [Maple Street for the Textile Building Lofts] baseline noise level is far greater than the 50.8 dBA leq noise level used to represent baseline conditions at the Santee Court Apartments receptor. Utilizing the same construction source and mitigation assumptions that were used for the Santee Court Apartments analysis, as Textile Building Lofts would benefit from the same mitigation measures intended to reduce construction noise impacts at Santee Court Apartments, Textile Building Lofts would be projected to experience a construction-related noise increase of just 1.3 dBA leq, similar to but less than the 1.6 dBA leq impact that would occur at Santee Court Apartments. The noise impact at Textile Building Lofts would not exceed the 5 dBA noise increase threshold; in fact, it would not exceed the 3 dBA leq threshold of perceptibility that represents when noise conditions may be noticeably louder." (AR 7229.)
While Petitioner relies expert opinion to dispute and contradict the City's expert technical report, Petitioner has not demonstrated the City's expert studies are so "clearly inadequate or unsupported" as to be "entitled to no judicial deference." (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 cal.3d 376, 409 fn. 12. ["A clearly inadequate or unsupported study is entitled to no judicial deference."]) "When an agency is faced with conflicting evidence on an issue, it is permitted to give more weight to some of the evidence and to favor the opinions of some experts over others. (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397.) Accordingly, Petitioner failed to meet its burden of demonstrating a prejudicial abuse of discretion related to the City's analysis of construction-related noise impacts. (See State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 795. [''The party challenging the EIR, however, bears the burden of demonstrating that the studies on which the EIR is based 'are clearly inadequate or unsupported.'"])
2. Feasibility and Effectiveness of MM l-1 and 1-2
Petitioner argues MM 1-1 and 1-2 are vague, ineffective and unenforceable. a. MM 1-1
''To ensure that the Project's construction-related noise levels do not exceed 75 dBA and that construction-related noise increases at Santee Court Apartments do not exceed 5 dBA," the City adopted MM 1-1. MM 1-1 provides "(a]II capable diesel-powered construction vehicles shall be equipped with exhaust mufflers or other suitable noise reduction devices." (AR 1011.) Petitioner contends MM 1-1 does not establish a performance standard because nothing in the mitigation measure sets a required noise level reduction. Petitioner argues muffler use alone does not ensure MM 1-1 will achieve any particular level of mitigation. Petitioner asserts "the fact that exhaust mufflers should or could reduce equipment noise by 3 dBA or more doesn't address the fact that the measure, as written, does not require mitigation at that level and therefore does not ensure that level of mitigation will be achieved, as is necessary to support the finding of no significant impacts from construction noise." (Opening Brief 28:18-22.) As noted earlier, "For projects for which an EIR has been prepared, where substantial evidence supports the approving agency's conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy." (Sacramento Old City Assn. v. City Council, supra, 229 Cal.App.3d at 1027.) The City contends MM 1-1 as written will be effective. The use of mufflers to abate noise impacts is considered "best practices" and recommended under the City's CEQA threshold guide. (AR 2773, 2786-2787, 7299, 10131-10132 [EPA's Office of Noise Abatement and Control Study], 10139.)21 In addition, the City's noise expert confirmed the use of mufflers as required by MM 1-1 would achieve a 3 dBA noise reduction. (AR 3085-3086, 10139-10140.) The expert explained "aftermarket mufflers reduce noise by over 3 dBA. (AR 10139.) In addition, the Project's MMRP requires the Flower Growers to retain an independent Construction Monitor, approved by the City, responsible for: (a) ensuring that "capable" mufflers are used during construction; and (b) documenting compliance. (AR 2848-2849.) While the court agrees MM 1-1 does not contain a specific performance standard, it does mandate the use of certain equipment that does have performance standards. Substantial evidence supports the City's conclusion the use of mufflers will be effective at reducing noise levels by at least 3 dBA. The City's noise expert reviewed aftermarket muffler manufacturer 21 The EPA study, upon which the City's CEQA Threshold Guide relies, shows that "equipment mufflers should reduce excavation and grading phase noise levels by 3 dBA. (AR 10131.)
specification materials to reach his conclusion mufflers result in noise reductions exceeding 3 dBA. An EPA study also supports the City's conclusion.
Accordingly, the City's conclusion MM 1-1 will be effective with a sufficiently clear performance standard (by virtue of the equipment used) is supported by substantial evidence. (Guidelines§ 15384, subd. (b).)
b. MMl-2
''To ensure that the Project's construction-related noise levels do not exceed 75 dBA and that construction-related noise increases at Santee Court Apartments do not exceed 5 dBA," the City adopted MM 1-2. MM 1-2 requires "[t]emporary sound barriers capable of achieving a sound attenuation of at least 15 dBA shall be erected along the Project's boundaries facing Santee Court Apartments. Temporary sound barriers capable of achieving a sound attenuation of at least 6 dBA shall be erected along all other Project construction boundaries." (AR 1011.} MM 1- 2 requires sound barriers at the Project's boundaries.
Again, Petitioner contends the MM is vague, ineffective and unenforceable.
First, Petitioner asserts achieving a sound attenuation of 15 dBA is so vague it is ineffective; the mitigation measure does not specify from where the sound attenuation is to be judged. As written, the mitigation measure would allow sound attenuation to be evaluated at the Project boundaries instead of a sensitive receptor's location. To the extent sound attenuation is to be measured at the sensitive receptor, it may allow measurement from street level ignoring impacts at higher floors. Higher floor sound attenuation is important as the efficacy of sound barriers to shield higher floors in a building is questionable. 22 Second, Petitioner argues sound barriers erected along the Project boundaries will be ineffective as they would be too far from construction equipment to effectively reduce noise. 23 The City dismisses Petitioner's arguments as "wordsmithing." (Opposition Brief 35:5.) The City explains the EIR supports the conclusion that noise barriers with a transmission loss value of 25 dBA are capable of achieving the required noise reduction of 15 dBA at the identified sensitive receptors. (AR 2787, 3085-3086.) Moreover, the City's noise expert explains:
22 Petitioner reports sound is most audible when it travels by direct line of sight. Sound barriers are largely ineffective if they do not break the line of sight between the source and receiver. (AR 992.) The City does not seem to dispute this notion. 23 Petitioner explains sound barriers are most effective when they are very close to either the source or the receiver and become less effective with greater distance from the noise- producing equipment. (AR 10082.)
''The level topography of the South Building site and single proposed sub-grade level would allow for the easy positioning and movement of these barriers to shield construction activities, no matter where they may occur on-site. There are numerous free-standing temporary noise barrier systems used in the industry up to 24 feet in height that may be positioned manually or by vehicles such as construction forklifts and/or loaders." (AR 10140; see also AR 7299.) The City's response actually concedes the flaw in the efficacy of MM 1-2 as it is written. Effective mitigation to sensitive receptors requires the noise barrier systems to be moved. The City argues MM 1-2 is effective because "the noise barriers are moveable, meaning that they move in concert with any piece of construction equipment to ensure the equipment does not operate with an unobstructed line of sight to a receptor." (Opposition Brief 35:15-17.) The City recognizes the barriers must be moveable "to shield construction activities, no matter where they occur onsite." (Opposition Brief 35:18-19.)
Despite the City's recognition the noise barriers must be moved throughout the Project during construction to effectively mitigate construction-related noise, MM 1-2 does not require such movement. It is not about wordsmithing-it is about enforceability and efficacy. The City's attempts to distinguish between "Project boundaries" and "property boundaries" is unpersuasive. 24 Such a distinction-if there is one-does not resolve the ambiguity. Nothing in MM 1-2 requires any noise barriers to be moved. 25
Accordingly, the court finds substantial evidence does not support the City's conclusion MM 1-2 is an effective mitigation measure.
CONCLUSION
Based on the foregoing, the petition is granted.
During argument, the Flower Growers suggested the court should ~ddress remedies if the court granted the petition. "In most cases, when a court finds that any agency has violated CEOA in approving a project, it issues a writ of mandate requiring the agency to set aside its CEOA determination, to set aside the project approvals, and to take specific corrective action before it considers approving the project." (King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 896.)
24 In the EIR, the City defines the Project boundaries as approximately 3.87 acres consisting of one block. It would seem the "Project boundaries" are, in fact, the property boundaries. (AR 748.)
25 Given the comments raised concerning the barriers and the timing of the comments, there are issues of feasibility given barrier mobility issues. (AR 10076.)
The court believes an order consistent with most CEQA writ petition cases is appropriate.
Flower Growers, however, may submit an objection to the judgment if it has an objection to the usual order of requiring the City to set aside the project approvals.
Petitioner shall submit a proposed form of judgment with service on all parties.
IT IS SO ORDERED.
April 5 , 2021
t_A i t,-Lulli~==
Hon. MitcheUBeclloff
Judge of the Superior Court