Filed 8/24/16 Tehachapi First v. City of Tehachapi CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

TEHACHAPI FIRST,

Plaintiff and Appellant,

v.

CITY OF TEHACHAPI,

Defendant and Respondent;

WAL-MART STORES, INC.,

Real Party in Interest.

F072149

(Super. Ct. No. S-1500-CV-273965)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. 

Twisselman II, Judge.

M.R. Wolfe & Associates and Mark R. Wolfe for Plaintiff and Appellant.

Lebeau Thelen and Patrick Charles Carrick for Defendant and Respondent. 

Manatt, Phelps & Phillips and Keli N. Osaki for Real Party in Interest.

-ooOooThis appeal involves an environmental impact report (EIR) prepared for the 

proposed construction of a Wal-Mart Supercenter in Tehachapi, California. Plaintiff 

contends that the revised EIR’s treatment of cumulative noise impacts violated the 
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California Environmental Quality Act (CEQA)1 on three separate grounds. These 

violations are the basis for plaintiff’s contention that the trial court should not have 

discharged its writ of mandate directing the City of Tehachapi (City) to address 

inadequacies in the initial EIR’s analysis of cumulative impacts. 

Plaintiff’s first claim of error relates to the location on residential lots where 

measurements were taken to establish the baseline noise level. Plaintiff contends the 

measurements should have been taken at the property line rather than next to the lot’s 

buildings. We reject this contention because plaintiff has not shown that a general or 

specific rule of law dictates where such measurements should be taken. Thus, we 

conclude that the identification of the proper location presented a question of fact 

committed to the discretion of City in its role as the lead agency.

Plaintiff’s second claim of error relates to the revised EIR’s decision to evaluate 

roadway segments containing hotels by using the noise thresholds applicable to 

commercial property, rather than residential property. Plaintiff contends that the revised 

draft EIR determined that hotels were, in fact, a noise-sensitive land use because it stated 

that a hotel may be considered a noise-sensitive use. In our view, that statement was not 

a determination, acknowledgement or finding that the hotels in question were noisesensitive uses. Consequently, plaintiff has not established the foundation for its argument 

that the roadway segments should have been subject to the noise standards used for 

residential property.

Plaintiff’s third claim of error relates to the standards or thresholds used to 

determine whether cumulative noise impacts were significant and whether the project’s 

incremental contributions to significant cumulative noise impacts were “‘cumulatively 

 

1 Public Resources Code section 21000 et seq. All unlabeled statutory references 

are to the Public Resources Code. 
3.

considerable’” for purposes of CEQA. (§ 21083, subd. (b); Guidelines,2 §§ 15130 & 

15355.) This claim of error fails because, among other things, plaintiff has not 

demonstrated that the same standards were used for the two inquiries.

We therefore affirm the order discharging the writ of mandate. 

FACTS

The Parties

Plaintiff Tehachapi First is an unincorporated organization that alleges its 

members are residents, citizens, taxpayers and property owners in Tehachapi and the 

Tehachapi area. Plaintiff’s members include Shannon Turner, Rory Turner, Christopher 

Zehnder, Susan Robins, and Sara Klingenberg. 

Defendant City is organized under the general law of California and is located in 

Kern County. It is a “general law city” as that term is defined in Government Code 

section 34102 and is the lead agency responsible under CEQA for reviewing the 

environmental effects of the proposed project. 

Real party in interest Wal-Mart Stores, Inc. is a Delaware corporation with its 

principal place of business in Bentonville, Arkansas (Wal-Mart). Wal-Mart is the owner 

and proponent of the project. Early in the litigation, the parties stipulated that Wal-Mart 

was the “recipient of an approval” for purposes of CEQA and agreed to the dismissal of 

the developer, Greenberg Farrow Architecture Incorporated. 

The Project

Wal-Mart owns 25 acres of undeveloped land south of Tehachapi Boulevard and 

east of, and adjacent to, Tucker Road (State Route 202). The land is designated for 

community commercial use by City’s general plan and is zoned “C-3,” general 

commercial use, under City’s zoning ordinance. Antelope Run, a natural drainage feature 

 

2 “Guidelines” refers to the regulations promulgated to implement CEQA and set 

forth in California Code of Regulations, title 14, section 15000 et seq. (§ 21083.) 
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on the eastern boundary of Wal-Mart’s land, runs north-south and is a tributary of 

Tehachapi Creek. 

In July 2007, Wal-Mart applied to City for approval of the construction of a 

165,000 square foot Wal-Mart Supercenter and the development of three outlots. The 

outlots do not have identified uses, but are likely to become retail space and fast food 

restaurants. The Supercenter, with its appurtenant structures and facilities, would offer 

groceries and general retail merchandise 24 hours per day. The Supercenter would 

include a garden center with an exterior customer pick-up facility and a pharmacy with a 

drive-through. It also might include food service, a photo studio, a banking center, and a 

vision and hearing care center. 

Wal-Mart also proposed dedicating 1.45 acres of the site to City. That land is on 

east side of the site and would be used for parking and would provide access to trails and 

a proposed bike path along Antelope Run. 

Environmental Review

In September 2007, City issued a notice of preparation of an EIR for the project. 

Subsequently, City circulated a draft EIR and obtained comments from other agencies 

and the public. In December 2010, City released a final EIR that included responses to 

the public and agency comments. 

On May 19, 2011, the city council held a public hearing on an appeal from City’s 

planning commission’s certification of the EIR and approval of the project. After 

receiving input from the public, the city council voted to deny the appeal, certified the 

final EIR, adopted a statement of overriding considerations with findings, and approved 

the project. 

The next day, City filed a notice of determination, thereby starting a 30-day statute 

of limitations for any CEQA action or proceeding. (§ 21167, subd. (e); Guidelines, § 

15094, subd. (g); see § 21152 [notice of determination filed by local agency].) 
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PROCEEDINGS

In June 2011, plaintiff filed a verified petition for writ of mandate challenging 

City’s certification of the EIR and its approval of the project. Plaintiff alleged City 

violated many CEQA provisions and the project was inconsistent with City’s general plan 

and zoning ordinances. 

In June 2012, the trial court determined the EIR for the Wal-Mart Supercenter on 

Tucker Road was inadequate and issued a peremptory writ of mandate directing City to 

(1) set aside its certification of the EIR and approval of the project and (2) take action to 

ensure the EIR’s treatment of cumulative water supply impacts, cumulative off-site traffic 

noise, and cumulative traffic impacts complied with CEQA. 

In September 2012, City filed an initial return to the peremptory writ stating (1) it 

was preparing a supplemental EIR to address the issues identified by the court and (2) its 

work on the draft supplemental EIR was at an early stage. 

In June 2013, a revised draft EIR was made available to the public for comment. 

In November 2013, written responses to the comments were prepared and a revised final 

EIR was completed. In December 2013, City’s planning commission held a public 

hearing on the revised final EIR. Near the end of that public hearing, the planning 

commission passed a resolution certifying the EIR. 

Plaintiff appealed the planning commission’s decision to the city council. On 

January 27, 2014, the city council held a special meeting and received oral testimony 

relating to the revised final EIR. Before the close of that meeting, the city council denied 

the appeal, certified the revised final EIR, and reapproved the project. 

In October 2014, City filed a motion to discharge the writ, which Wal-Mart joined. 

City and Wal-Mart contended (1) the revised analysis of cumulative impacts to the water 

supply was supported by substantial evidence, (2) the findings relating to cumulative 

traffic impacts were supported by substantial evidence, (3) the revised analysis of off-site 
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traffic noise was legally proper, and (4) the findings that noise impacts were less than 

significant were supported by substantial evidence. Plaintiff opposed the motion. 

In April 2015, the trial court held a hearing on the motion. On May 5, 2015, the 

trial court issued an order granting the motion to discharge the peremptory writ of 

mandate. After notice of entry of the order was served, plaintiff filed a notice of appeal 

from the order granting City’s motion to discharge the writ. 

DISCUSSION

I. CEQA PRINCIPLES

A. Standard of Review

Appellate review in this CEQA proceeding is governed by the abuse of discretion 

standard set forth in section 21168.5. Consequently, our “inquiry shall extend only to 

whether there was a prejudicial abuse of discretion. Abuse of discretion is established if 

the agency has not proceeded in a manner required by law or if the determination or 

decision is not supported by substantial evidence.” (§ 21168.5.)

Under this abuse of discretion standard, we independently review claims that a 

public agency committed legal error (i.e., did not proceed in the manner required by law) 

in conducting the environmental review required by CEQA. (Vineyard Area Citizens for 

Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 

(Vineyard Area Citizens).) By comparison, we review claims that an agency committed 

factual errors under the substantial evidence standard. (Id. at p. 426.) 

B. Noise

1. CEQA and the Guidelines

The Legislature has specifically declared that it is the policy of California to 

“[t]ake all action necessary to provide the people of this state with ... freedom from 

excessive noise.” (§ 21001, subd. (b).) Consequently, CEQA lists noise as one of the 

physical conditions that constitute part of the “[e]nvironment.” (§ 21060.5; see 
7.

Guidelines, § 15360 [“[e]nvironment” includes “ambient noise”].) CEQA does not 

contain specific provisions addressing how EIR’s should analyze noise levels and 

impacts—its only references to noise involve impacts from projects related to airports 

and transportation. (§§ 21096, subd. (b), 21099; see Guidelines, §§ 15074, subd. (e) 

[airport land use plan], 15154 [projects near airports].) 

The Guidelines also adopt a general approach to noise. The Guidelines use noise 

as an example of a direct physical change in the environment caused by a project. 

(Guidelines, § 15064, subd. (d)(1).) They also define a significant effect on the 

environment as a substantial, or potentially substantial, adverse change in ambient noise 

within the area affected by the project. (Guidelines, § 15382.)

Appendix G in the Guidelines is an environmental checklist used to evaluate 

project impacts. It contains questions about a number of topics such as aesthetics, 

agriculture resources, air quality, biological resources, hydrology and water quality, 

noise, recreation, and traffic. Two of the questions about noise ask if the project would 

result in (1) exposure of persons to noise levels in excess of standards established in the 

local general plan or noise ordinance, or applicable standards of other agencies and (2) a 

substantial permanent increase in ambient noise levels in the project vicinity above levels 

existing without the project. (Guidelines, appen. G, § XII(a) & (c).) The first question 

requires the lead agency to examine local land use planning documents and noise 

ordinances for specific noise standards. 

2. Land Use Plans, General and Specific

Land use planning documents are a source of noise standards because the 

Legislature has required local governments to address noise in their general plans. (Gov. 

Code, § 65302 [required elements of a general plan].) The noise element shall (1) 

identify and appraise noise problems in the community; (2) analyze and quantify, to the 

extent practicable, current and projected noise levels from freeways, highways, major 
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local streets, railroad operations, aircraft and airport operations, industrial plants and 

other stationary noise sources; (3) show noise contours for all these sources stated in 

terms of community noise equivalent level (CNEL) or day-night average sound level 

(Ldn);3 and (4) include implementation measures that address existing and foreseeable 

noise problems. (Id., subd. (f).) Specific plans may, but are not required to, address 

noise. (Gov. Code, §§ 65451, 65452.)

CEQA cases addressing the noise impacts of a proposed project often include 

references to the noise element in the applicable local land use plan. (See Mount Shasta 

Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, 205 

[decibel standards in noise element of general plan and in city’s noise ordinance].) In 

Gray v. County of Madera (2008) 167 Cal.App.4th 1099, we referred to the noise element 

in the Madera County General Plan and its 60 dBA Ldn as the maximum acceptable noise 

level for residential uses affected by transportation noise. (Id. at p. 1123.) We concluded 

that the EIR’s analysis of cumulative noise impacts was inadequate because the EIR did 

not address whether a 2.1 dBA addition to existing noise levels, which already were in 

excess of the maximum acceptable noise level, would be significant. (Ibid.) 

II. TRAFFIC NOISE BASELINE 

The first of plaintiff’s three claims of error contends the revised EIR’s analysis of 

cumulative noise impacts is legally defective because the baseline for off-site traffic noise 

substantially understated the actual amount of roadway noise. Plaintiff argues the 

understatement occurred because noise measurements for residential lots were taken next 

to the buildings and not taken in the front yards or at the property lines. 

 

3 “The noise contours shall be prepared on the basis of noise monitoring or 

following generally accepted noise modeling techniques for the various sources ....” 

(Gov. Code, § 65302, subd. (f)(2).) “The noise contours shall be used as a guide for 

establishing a pattern of land uses in the land use element that minimizes the exposure of 

community residents to excessive noise.” (Id., subd. (f)(3).) 
9.

A. Revised EIR’s Approach

The revised draft EIR contained a section addressing operational off-site traffic 

noise. That section’s description of the environmental setting4included seven paragraphs 

under the heading “Traffic Noise Analysis Methodology.” (Boldface omitted.) After 

stating that estimates of traffic noise levels could be based on mathematical models, 

measurements, or both, the revised draft EIR stated that City had elected to acquire actual 

measurements. It also stated: “Existing ambient daytime noise levels were measured at 

representative residential receptor locations along the study area roadway segments.” 

Next, it described the equipment and methodology used to obtain noise measurements. 

The “representative residential receptor locations” were nine roadway segments in 

residential areas. The revised draft EIR’s description of those locations included the 

street address and where the sound meter was placed on each property. For instance, at 

Tucker Road south of Valley Boulevard, “[n]oise levels were measured within the front 

landscaping of the apartment complex at a distance of approximately 66 feet from the 

centerline of Tucker Road,” which was the approximate distance between the road’s 

centerline and the nearest unit. For a residential property on Red Apple Avenue west of 

Tucker Road, the revised draft EIR stated noise levels were measured within the 

driveway of the home and also stated:

“This home is located approximately 67 feet from the centerline of Red 

Apple Avenue and is the closest home along this roadway segment to the 

roadway centerline. The sound level meter was set up at roughly the same 

distance to the roadway as the residential structure. The primary source of 

noise at this location was traffic on Red Apple Avenue. A total of 172 

 

4 Normally, the environmental setting (i.e., the physical environmental conditions 

existing in the vicinity of the project when the notice of preparation or environmental 

analysis is commenced) constitutes “the baseline physical conditions by which a lead 

agency determines whether an impact is significant.” (Guidelines, § 15125, subd. (a).) 
10.

vehicles drove along this roadway segment during the 20-minute noise 

level measurement period.”5 

In contrast to the place where the readings were taken on the foregoing properties, 

the noise measurements at a residence on Tucker Road north of Tehachapi Boulevard 

were taken “to the immediate east of the property fence at a distance of approximately 

143 feet from the centerline of Tucker Road.” At another location, noise levels were 

measured within the public right-of-way immediately in front of the home. Thus, some 

measurements were taken near the residential buildings and some were taken closer to the 

roadway.6 The average daily noise levels for the roadway segments were presented in 

Table IV.I-2 of the revised draft EIR and used as the baseline noise levels. 

B. Noise Element in an Applicable Land Use Plan

The revised draft EIR describes the federal, state and local regulatory framework 

applicable to noise. One component of local noise regulation applicable to the project 

site is contained in the County of Kern’s Greater Tehachapi Area Specific and 

Community Plan adopted November 2010 (GTA Plan). The GTA Plan includes a noise 

element with goals and policies. The policy relevant to this appeal provides:

“Policy NOI.2: Use good land use planning principles to reduce conflicts 

related to noise emissions and require noise compatibility between existing 

and future development according to the County’s noise standards. 

Effective mitigation measures will be incorporated into project design if 

required. Mitigation shall be designed to reduce noise levels to the 

 

5 Plaintiff’s expert asserted that “the Street View function of Google Maps clearly 

shows a picnic table in the front of this residence at a distance of approximately 50’ from 

the roadway. It is inappropriate for environmental analysts to make assumptions about 

where and in what manner people enjoy their own property. This is, we believe, a 

primary reason why the vast majority of noise regulations apply unambiguously at the 

property line.” 

6 Plaintiff does not challenge all the measurement locations. It argues that “there is 

no factual dispute that four of the nine locations sampled did in fact contain outdoor 

activity areas located in front yards, closer to the roadway noise sources than the building 

facades.” 
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County’s required levels of 65 dBA Ldn in outdoor activity areas and 45 

dBA Ldn or less within interior living spaces or other noise-sensitive interior 

spaces. The Plan does not adopt a standard for land uses that are not noisesensitive.”7

 (Italics added.) 

Plaintiff’s claim of error relates to the interpretation and application of the policy’s 

phrase “outdoor activity areas.” 

C. Contentions of the Parties

Plaintiff’s comments to the revised draft EIR set forth its argument about the 

proper location for noise measurements. Plaintiff asserted that noise should be measured 

at the residential property line rather than building facades because the intent of the 

exterior noise standards—particularly the GTA Plan’s standard for “outdoor activity 

areas”—was to protect outdoor uses, not just conversations and activity next to the 

building. In plaintiff’s view, City’s choice of measurement locations caused an 

underreporting of existing noise levels in outdoor activity areas, which resulted in an 

underreporting of noise impacts. 

City disagreed with plaintiff’s comment as to the correct place for taking noise 

measurements and responded in the revised final EIR as follows:

“Outdoor activity areas are normally located near or adjacent to the main 

residential building and are areas where people expect to congregate for 

conversation. Outdoor activity areas for single-family residential uses are 

typically represented by back yards or the building setback. Outdoor 

activity areas for multi-family uses are typically private patios greater than 

6 feet in depth and common areas for congregating. The property line of 

residential properties adjacent to roadways is not considered to be an 

outdoor living environment. For the most part, the locations that were 

selected for measurement are representative of the nearest outdoor living 

environment of the uses along the study area roadways. There were a few 

instances where the EIR consultant was not able to access a residential 

property for measurement.” 

 

7 The revised EIR describes noise levels using CNEL or day-night average levels 

(stated in decibels), which is how noise contours in the noise element of general plan are 

stated. (Gov. Code, § 65302, subd. (f)(2).) (See fn. 3 and accompanying text, ante.) 
12.

Plaintiff does not dispute the accuracy of the data collected and reported in the 

revised draft EIR, but “challenges the data’s legal relevance as environmental baseline 

information. Noise levels measured at locations farther [a]way from the noise source 

than the impacted outdoor activity areas simply do not—and cannot—accurately 

represent pre-Project noise levels in these same activity areas.” 

D. Choice of Methodologies

The dispute over the locations used for taking noise measurements could be 

viewed as a dispute over methodology. Appellate courts in California have held for over 

two decades that a lead agency’s choice of methodology for studying an impact is subject 

to judicial review under the substantial evidence test. (City of Long Beach v. Los Angeles 

Unified School Dist. (2009) 176 Cal.App.4th 889, 898; San Joaquin Raptor Rescue 

Center v. County of Merced (2007) 149 Cal.App.4th 645, 654; Bakersfield Citizens for 

Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198; Barthelemy v. 

Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1620.) This general 

principle, however, is subject to an exception. The deferential substantial evidence test 

does not apply when the agency has applied an erroneous legal standard in making its 

choice of methodologies. (Federation of Hillside & Canyon Associations v. City of Los 

Angeles (2000) 83 Cal.App.4th 1252, 1259; see § 21168.5 [abuse of discretion if “agency 

has not proceeded in a manner required by law”].)

In this case, plaintiff contends that City has misconstrued plaintiff’s arguments 

relating to baseline noise measurements as a dispute over methodology. We accept 

plaintiff’s assertion that it is not challenging the methodology used by City to establish a 

baseline and analyze the project’s noise impacts. A litigant controls the nature of the 

arguments its presents and we will not construe plaintiff’s argument to be something that 

it has explicitly renounced.
13.

E. Identification of Outdoor Activity Areas Is a Question of Fact

Plaintiff’s reply brief states that it “argues only that baseline information should 

have been presented for the actual outdoor activity areas most likely to be affected by 

roadway noise generated by this Project.” Plaintiff contends the property line is the most 

conservative location and its noise expert, Derek Watry, explained that “most local noise 

regulations generally do apply at the property line in order to ensure that all outdoor 

activity areas are protected.” Based on these contentions, plaintiff concludes that “City’s 

choice to depart from this norm in the current case was materially prejudicial,” as shown 

by Watry’s analysis of an outdoor activity area located 99 feet from the road where City’s 

measurement was taken 116 feet from the road. 

Our analysis of the proper identification of “outdoor activity areas” as that phrase 

is used in the noise element of the GTA Plan begins with the fundamental question of 

whether the determination of what constitutes an outdoor activity area is a question of 

law or a question of fact. We conclude it is a question of fact. As such, City’s 

identification of the outdoor activity areas is subject to review under the deferential 

substantial evidence test. (See Vineyard Area Citizens, supra, 40 Cal.4th at p. 426 [claim 

that an agency committed factual error is reviewed under the substantial evidence 

standard]; § 21168.5 [abuse of discretion occurs if the agency’s determination is not 

supported by substantial evidence].) 

The first reason for concluding that the identification of an outdoor activity area 

for purposes of defining an environmental baseline presents a factual question is the lack 

of a definition in the GTA Plan. For example, the GTA Plan does not state that an 

“outdoor activity area” is (1) all ground within a residential lot’s boundaries that is not 

occupied by a building or (2) where the residents gather for more than a specified number 

of hours over the course of a week, month or year. Furthermore, we have located, and 

plaintiff has cited, no law, regulation, ordinance or other planning document that defines 

the phrase. Consequently, plaintiff has not convinced this court that the identification of 
14.

an outdoor activity area is a question of law that can be resolved by the mechanical 

application of a clear cut legal definition, such as a definition stating that an activity area 

begins at the property line.

The second reason for concluding that the identification of an outdoor activity area 

presents a factual question is revealed in the wording of plaintiff’s argument. Plaintiff 

refers to what “most local noise regulations generally do” and “this norm.” The words 

“most,” “generally” and “norm” do not demonstrate that a legal standard is being applied 

to determine where to measure the noise experienced by an outdoor activity area. Under 

CEQA, an agency commits legal error when it “has not proceeded in a manner required 

by law.” (§ 21168.5.) Plaintiff has cited no authority for the principle that City was 

“required by law” to do what most local noise ordinances generally do or that a “norm” is 

a “law” for purposes of section 21168.5. Consequently, we reject plaintiff’s argument 

that City committed a legal error in choosing where to take the noise measurements on 

residential lots.

The third reason for concluding that the identification of an outdoor activity area 

presents a factual question relates to plaintiff’s reliance on an expert. Plaintiff’s expert 

Watry disagreed with the approach taken by Michael Brown of Cadence Environmental 

Consultants. This disagreement tends to show (but does not necessarily establish) that 

the controversy involves a question of fact rather than a question of law. Generally, 

CEQA regards the opinion of an expert supported by fact as “substantial evidence” for 

purposes of applying the substantial evidence test. In particular, section 21080, 

subdivision (e)(1) states that, for purposes of CEQA, “substantial evidence includes ... 

expert opinion supported by fact.” (See § 21082.2, subd. (c); Guidelines, § 15384, subd. 

(b) [definition of substantial evidence].) The factual nature of matters addressed by 

experts is reflected in Guidelines section 15151, which states: “Disagreement among 

experts does not make an EIR inadequate, but the EIR should summarize the main points 

of disagreement among the experts.” Consequently, we conclude that each side’s 
15.

reliance on an expert provides additional support for our determination that the 

identification of an outdoor activity area is a question of fact.

F. Substantial Evidence and Factual Error

Plaintiff’s attempt to establish reversible error was based on “whether the baseline 

noise data obtained from these sampling locations provide a legally adequate description 

of the environmental baseline for purposes of CEQA.” Plaintiff’s contentions were not 

presented as a factual dispute. Accordingly, plaintiff did not develop the argument that 

City’s choice of location for taking noise measurements was not supported by substantial 

evidence. Therefore, we need not describe in detail the evidence presented and explain 

why it constitutes substantial evidence supporting City’s choice of locations for taking 

noise measurements. 

III. HOTELS: RESIDENTIAL OR COMMERCIAL LAND USE 

A. Contentions of the Parties

1. Plaintiff’s Contentions

Plaintiff contends the revised EIR (1) improperly evaluated the cumulative noise 

impacts to occupants of two hotels located along affected roadways and (2) erroneously 

concluded the project would cause no significant cumulative noise impact at those 

locations. Plaintiff argues that a hotel is a noise-sensitive use because people sleep there 

and, accordingly, City was required to apply the standards for residential noise levels to 

the two hotels in question. In plaintiff’s view, “City’s decision to classify the hotels as 

non-residential uses was prejudicial error” because it lead to the application of the more 

lenient noise standards for commercial uses and a determination of no significant 

environmental effect. 

2. City’s Contentions

City contends plaintiff has not accurately described the EIR’s analysis of the 

impacts of traffic noise at the hotels in question. City contends the EIR discussed 
16.

cumulative traffic noise impacts to the hotels from two perspectives. First, the EIR 

analyzed the noise impacts as though the hotels were a noise sensitive land use. Second 

and alternatively, the EIR analyzed the locations as though they were commercial areas 

not sensitive to noise. Under either scenario, the EIR concluded that the cumulative 

traffic noise impact would be less than significant. City also contends the alternate

analysis of the hotels as commercial uses was appropriate because the question of noise 

sensitivity is a question of fact and a finding that the hotels were not noise sensitive is 

supported by substantial evidence. 

B. Discussion in the EIR 

The EIR examined traffic noise at 13 off-site locations in the vicinity of the 

proposed Wal-Mart Supercenter. Four of the 13 roadway segments were in commercial 

areas, two of which included hotels. The roadway segments with a hotel were (1) 

Tehachapi Boulevard west of Mill Street and (2) Mulberry Street south of Tehachapi 

Boulevard. The EIR analyzed the project’s noise impact at these and the other off-site 

locations and the cumulative noise impact at those locations of the project and reasonable 

foreseeable future projects. 

The EIR’s discussion of the project’s impacts on traffic noise at the two road 

segments where the hotels were located stated:

“Although Tehachapi Blvd., west of Mill Street, and Mulberrry Street south 

of Tehachapi Blvd., are commercial roadways, they each include a hotel, 

which may be considered a noise-sensitive use because people sleep there. 

As previously explained, train noise is the dominant noise source at these 

locations. Although baseline noise at both locations exceeds the standard 

for noise-sensitive uses, the incremental increase in total exterior noise 

caused by the project would be 0.1 dBA at the first location, and none at the 

second. Under the substantial/excessive criteria for noise-sensitive uses, 

the project’s impact on Mulberry Street south of Tehachapi Blvd. would be 

nonexistent, and its impact on Tehachapi Blvd. west of Mill Street would 

result in an imperceptible increase in total acoustical energy, which would 

not cause persons to be exposed to excessive noise levels or represent a 

substantial increase in noise. Thus, if these roadways were analyzed as 
17.

noise-sensitive, the project’s impact would be less than significant. If they 

were analyzed as purely non-noise-sensitive uses, the applicable standard 

of 70 dBA would not be exceeded, even with the addition of the project, and 

neither would the applicable substantial/excessive criteria. The project’s 

impact on these roadways would thus be less than significant.” (Italics 

added.) 

Much of the foregoing discussion was repeated in the EIR’s discussion of the 

cumulative impact of the project and 14 other projects on traffic noise: 

“As previously explained, although Tehachapi Blvd. west of Mill Street, 

and Mulberrry Street south of Tehachapi Blvd. are commercial roadways, 

they each include a hotel, which may be considered a noise-sensitive use 

because people sleep there. Train noise is the dominant noise source at 

these locations. Although baseline noise at both locations exceeds the 

standard for noise-sensitive uses, the cumulative incremental increase in 

total noise would be 0.4 dBA at the first location and none at the second, 

which do not exceed the substantial/excessive criteria. Thus, if these 

roadways were analyzed as noise-sensitive, the cumulative traffic noise

impact would be less than significant. If they were analyzed as purely nonnoise-sensitive uses, neither the applicable standard of 70 dBA nor the 

substantial/excessive criteria applicable to non-noise-sensitive uses would 

be exceeded. The cumulative traffic noise impact on these roadways would 

thus be less than significant.” 

Earlier in the EIR, City identified thresholds of significance of cumulative traffic 

noise impacts based on whether the land was noise-sensitive or not sensitive to noise. 

For noise-sensitive land uses, the cumulative impact would be regarded as significant if 

(1) it pushed total traffic noise above the 65 dBA CNEL threshold or (2) the incremental 

increase in traffic noise caused by the cumulative projects would be substantial or 

excessive under a sliding scale criteria. Under that sliding scale, an increase of 1.5 dBA 

would be regarded as substantial or excessive if the baseline exterior noise was between 

60 and 65 dBA. In comparison, the cumulative impact would be regarded as significant 

for land uses not sensitive to noise if it pushed the total traffic noise above the 70 dBA 

threshold or the combined increase in noise level was 5 dBA or more. 

The final EIR included the public’s comments to the revised draft EIR and City’s 

responses to those comments. City’s responses addressing traffic noise impacts treated 
18.

the two road segments with hotels as commercial uses, rather than continuing to use the 

either-or approach of the revised draft EIR. 

C. No Explicit Legal Requirements for Classifying Hotels

Our first task is to identify any legal requirements that applied to City’s analysis of 

the impacts of noise on the hotels. Those legal requirements are essential to deciding 

whether or not City has “proceeded in a manner required by law” for purposes of section 

21168.5 when it analyzed the cumulative impact of traffic noise. (See Vineyard Area 

Citizens, supra, 40 Cal.4th at pp. 426-427; see generally, Code Civ. Proc., §§ 1896 

[written laws defined], 1899 [unwritten law defined].) 

Plaintiff has not identified any statute, regulation, published opinion, general plan, 

specific plan or zoning ordinance that explicitly required City to proceed with its 

evaluation of noise impacts by (1) classifying hotels as residences and (2) applying the 

standards for residential uses to the hotels.8 

D. General Requirement for an Internally Consistent Analysis

1. General Principles

Plaintiff’s claim of error seems to be based on the idea that CEQA requires an 

EIR’s discussion of an environmental impact to be internally consistent. Guidelines 

section 15130, subdivision (b) requires an EIR’s discussion of cumulative impacts to “be 

guided by the standards of practicality and reasonableness.” We interpret this 

reasonableness standard to mean that a discussion of cumulative impacts should be 

internally consistent. Consequently, we consider whether the revised EIR has analyzed 

the noise impact at hotel locations in an internally inconsistent manner. 

 

8 We note that state regulations addressing noise problems in communities 

surrounding airports treat residences as an incompatible land use within an airport’s noise 

impact area, but do not list hotels or motels among the incompatible land uses. (Cal. 

Code Regs., tit. 21, § 5014; see Cal. Code Regs., tit. 21, §§ 5010 [purpose of regulations], 

5012 [airport noise standard].) Thus, the state regulations provide an example of a law 

that treats residences and hotels differently for purposes of acceptable noise levels. 
19.

2. Contentions Relating to the Proper Interpretation of the EIR

Plaintiff interprets the revised EIR as an acknowledgement by City “that hotels are 

noise-sensitive land uses.” Based on this interpretation, plaintiff argues that the revised 

EIR’s analysis of the noise impacts at the hotels “should have applied the more stringent 

criteria applicable to noise-sensitive land uses.” 

City disagrees with plaintiff’s interpretation and contends the EIR’s statement that 

a hotel “may be considered a noise-sensitive use because people sleep there” is not an 

admission or finding that hotels are noise-sensitive uses. City argues plaintiff’s 

interpretation is contradicted by the totality of the traffic noise analysis in the EIR, which 

discussed the roadway segments with hotels as commercial uses that were not sensitive to 

noise while also examining them as if they were noise-sensitive uses. City contends the 

revised draft EIR’s either-or approach was not internally inconsistent and actually 

provided the decisionmakers and the public with more information. 

Plaintiff’s reply brief addresses City’s argument about the EIR’s use of the word 

“may” instead of “are” in the statement that a hotel “may be considered a noise-sensitive 

use.” Plaintiff argues (1) City’s interpretation of the word “may” is a disingenuous post 

hoc parsing of the EIR’s language; (2) the EIR never stated that hotels were not noisesensitive uses; and (3) any reasonable member of the public reading the EIR “would 

conclude that the City was treating hotels as noise-sensitive uses ‘because people sleep 

there.’” The logic underlying plaintiff’s argument is that City found hotels were a noisesensitive use and, therefore, was obligated by the need for internal consistency to apply 

the standards for noise-sensitive uses.

3. Interpreting the EIR

We reject plaintiff’s interpretation of the EIR’s statement that a hotel “may be 

considered a noise-sensitive use.” We conclude this statement communicated the idea 

that City had not made a definitive finding that the hotels in question were noise-sensitive 

uses. 
20.

First, the dictionary definition of the verb “may” is might or “be in some degree 

likely to.” (Webster’s 3d New Internat. Dict. (1993) p. 1396.) Thus, under its usual 

meaning, the word “may” is not the equivalent of “are.” (See Wasatch Property 

Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 [courts may refer a word’s 

dictionary definition to ascertain its ordinary, usual meaning].) 

Second, the use of the word “considered” in the phrase “may be considered” 

further indicates that the question being discussed was not fully resolved and the EIR 

simply identified one possibility. A comparison of the phrases “hotels may be 

considered” and “hotels are” a noise-sensitive use illustrates that “may be considered” is 

an improbable choice for a drafter trying to inform readers that a definitive resolution of 

the question of noise sensitivity has been made. 

Third, a basic rule of interpreting written documents is that words or provisions 

should be read in context, not in isolation. (E.g., City of Dinuba v. County of Tulare

(2007) 41 Cal.4th 859, 865 [pleading must be interpreted as a whole and its parts in 

context]; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265 [contractual 

language must be interpreted in the context of the instrument as a whole]; POET, LLC v. 

State Air Resources Bd. (2013) 218 Cal.App.4th 681, 749 [words of statute must be 

construed in the context of the entire statutory scheme].) Here, the context for the phrase 

“may be considered a noise-sensitive use” is established later in the paragraph where the 

EIR analyzes the roadway segments with hotels as containing noise-sensitive uses and, 

alternatively, as containing “non-noise-sensitive uses.” This discussion of alternatives 

demonstrates the EIR’s drafters did not intend to make a definitive finding that hotels 

were a noise-sensitive use, but intended to address both possibilities. Consequently, we 

interpret the EIR as not determining, acknowledging or finding that the hotels in question 

were noise-sensitive uses. Instead, the EIR merely acknowledged that it was possible to 

consider them as such.
21.

Plaintiff’s argument that City failed to “proceed[] in a manner required by law” (§ 

21168.5) in discussing the cumulative impact of traffic noise on the hotels was based on 

its interpretation of the revised draft EIR as finding that hotels were noise sensitive uses. 

Our rejection of that interpretation means the remainder of plaintiff’s line of argument 

fails. Accordingly, we need not address its subsequent components. 

IV. DETERMINING WHEN AN EFFECT IS CUMULATIVELY CONSIDERABLE

A. Overview of Cumulative Impact Analysis

1. Two Fundamental Questions

When a public agency is preparing the section of an EIR that addresses a particular 

cumulative impact, the contents of the EIR’s discussion will be shaped by how the public 

agency answers two fundamental questions. The first question concerns the big picture—

specifically, whether the cumulative impact is significant. The second question addresses 

a smaller picture—that is, whether “the project’s incremental effect is cumulatively 

considerable.” (Guidelines, § 15130, subd. (a); see § 21083, subd. (b).)9

2. City’s Determinations of Those Questions

As to the first question, City determined that the cumulative noise impacts at eight 

residential locations were significant. The parties do not dispute this determination.

As to the second fundamental question, City determined that the project’s 

incremental contribution to the cumulative noise impacts was not “cumulatively 

 

9 The statutory definition is rudimentary, stating that “‘cumulatively considerable’ 

means that the incremental effects of an 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.” (§ 21083, subd. (b)(2).)

The regulatory definition is nearly identical: “‘Cumulatively considerable’ means 

that the incremental effects of an individual project are significant when viewed in 

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

effects of probable future projects.” (Guidelines, § 15065, subd. (a)(3), italics added.) 

The word “significant” is italicized in this quote because it differs from the statute, which 

uses the word “considerable.” 
22.

considerable” for purposes of CEQA. In plain English, City decided the project’s 

incremental noise contribution to the larger noise impact was unimportant. 

City’s not-cumulatively-considerable decision had practical consequences 

affecting the contents of the revised EIR. First, the revised EIR was not required to 

include the more extensive discussion required when a project’s incremental effect makes 

a cumulatively considerable contribution to a significant cumulative impact. (See 

Guidelines, § 15130, subd. (b)(1)-(5).) Second, the revised EIR was not required to 

discuss feasible mitigation measures that would reduce the project’s incremental noise 

contribution or the cumulative noise impact. (Guidelines, § 15130, subd. (a)(3).)

Plaintiff contends City erred in determining that the project’s incremental 

contribution to the significant cumulative noise impacts was not “cumulatively 

considerable”—that is, was not important enough to merit a detailed discussion and the 

consideration of mitigation measures. Plaintiff argues City used an erroneous test or 

standard to determine whether the project’s incremental noise contribution was 

“considerable.” 

Our approach to plaintiff’s claim of error is to describe the sequence of steps taken 

by City in its analysis of the noise impacts and to identify the rules of law that govern the 

steps where plaintiff contends an error was committed. Under this approach, an overview 

of the legal principles governing cumulative impacts is not provided. Instead, this 

unpublished opinion focuses on the rules of law that apply to the disputes raised by the 

parties.

B. City’s Discussion of Noise Impacts

The specific arguments presented by plaintiff refer to the thresholds of 

significance used by City to determine whether the project-specific noise impacts and 

cumulative impacts were significant. Consequently, our description of the steps taken by 
23.

City in its analysis of the noise impacts begins with its adoption of thresholds of 

significance. 

1. City’s Initial Approach to Thresholds of Significance for Noise

The original EIR concluded that an increase in noise level of more than 5 dbA is 

readily noticeable and, therefore, is significant. It also concluded that an increase of less 

than 5 dBA is not significant. The trial court concluded this unrefined approach to 

thresholds of significance was legally inadequate and required the EIR to be revised. 

2. Revised EIR’s Approach to Thresholds of Significance

In response to the trial court’s ruling, City adopted thresholds that analyzed 

smaller cumulative noise impacts and did not regard every increase under 5 dBA as less 

than significant. For noise-sensitive (e.g., residential) uses, the revised EIR adopted two 

separate tests for significance. 

The first test was a relatively simple test. It considered whether the cumulative 

increase caused the threshold of 65 dBA to be exceeded. If the baseline noise level was 

below the threshold of 65 dBA, and adding the noise predicted to be generated by the 

project and 14 other projects caused the total predicted noise level to exceed 65 dBA, the 

cumulative increase was deemed to be a significant environmental impact. For example, 

the baseline noise level for the roadway segment of Tucker Road north of Conway 

Avenue was 63.6 dBA. The combined projects, including the Wal-Mart Supercenter, 

were predicted to increase the noise level to 65.4 dBA. This increase, which the revised 

EIR described as 1.9 dBA because of rounding, caused the 65 dBA threshold to be 

exceeded and, thus, was deemed a significant cumulative impact. 

The second, more intricate test was designed to address increases that did not push 

the predicted future noise level above the 65 dBA threshold, either because the baseline 

noise level already was above the 65 dBA threshold or, alternatively, because the 

predicted future noise level was less than the 65 dBA threshold. The latter situation is 
24.

illustrated by the roadway segment at Curry Street south of Valley Boulevard, where the 

baseline noise level was 61.8 dBA and the predicted future noise level with all future 

projects was 64.4 dBA. The former situation is illustrated by the roadway segment at 

Valley Boulevard west of Curry Street, where the baseline noise level was 71.0 dBA and 

the predicted future noise level was 73.4 dBA. These increases, because of rounding, 

were described as 2.7 and 2.5, respectively, in the revised EIR and were deemed to be 

significant cumulative impacts. 

The second test is more intricate because it has a stair-step structure derived from 

a sliding scale contained in the Federal Transit Administration’s (FTA) 2006 manual 

entitled “Transit Noise and Vibration Impact Assessment.” The fundamental idea 

underlying the FTA’s sliding scale is that the higher the level of baseline noise, the 

smaller the noise increase needed to cause a significant impact. In other words, the 

significance determination reflects an inverse relationship between the baseline noise 

level and the noise increase. The revised EIR described the sliding scale in its text, 

depicted it graphically in Figure IV.I-2. The vertical axis of the graph indicated the noise 

exposure increase in a range from zero to 20 decibels. The horizontal axis of the graph 

indicated the existing noise exposure in a range from 40 to 80 decibels. The graph was 

divided into three regions by two curves. The upper region was labeled “Severe impact,” 

the middle region was labeled “Moderate impact,” and the lower region was labeled “No 

impact.” For example, an increase in noise exposure of 15 to 20 decibels fell within the 

severe-impact region for all existing noise levels shown on the graph. In contrast, an 

increase in noise exposure of 5 decibels or less for existing noise levels of 40 to 50 

decibels fell within the no-impact region. An increase of 5 decibels for an existing noise 

level of 60 decibels fell on the curve dividing moderate impacts from severe impacts.

City used the curve dividing the moderate-impact region from the no-impact 

region of the graph as the basis for its stair-step thresholds of significance for noise 
25.

increases. Those thresholds were applied to both project-specific and cumulative noise 

impacts and treated the following increases as substantial/excessive (i.e., significant): 

(1) 3 or more dBA when the baseline noise level was 56 dBA or 

more, but less than 60 dBA;

(2) 2 or more dBA when the baseline noise level was 60 dBA or 

more, but less than 65 dBA; 

(3) 1.5 or more dBA when the baseline noise level was 65 dBA or 

more, but less than 72 dBA; and 

(4) an increase of 1.0 or more dBA when the baseline noise level 

was 72 dBA or more, but less than 75 dBA. 

Additional steps were not needed because the baseline noise levels under 

consideration did not exceed 71.0 dBA. 

Application of the foregoing thresholds of significance required City to determine 

a baseline noise level for each residential location under consideration—a process 

describe in part II of this opinion. In addition, City was required to predict the increase in 

noise level that would occur at each location as a result of the project and as a result of 

the other present projects and reasonably foreseeable future projects. Each prediction 

was then compared to the applicable threshold of significance to determine whether the 

project-level or cumulative increase was significant.

As previously noted, City answered the first fundamental question about 

cumulative noise impacts by determining that the predicted cumulative impacts at eight 

residential locations were significant, despite the project-specific increase at those 

locations being insignificant. 

3. Revised EIR’s Approach to Cumulatively Considerable

Based on the findings that there would be significant cumulative noise impacts, 

City was required to proceed to the second fundamental question and determine whether 

the project’s incremental noise contribution to those impacts was “cumulatively 
26.

considerable.” (§ 21083, subd. (b)(2); Guidelines, §§ 15130, 15355.) City’s 

determination of this question involved three steps. First, it adopted a test for what 

constituted a cumulatively considerable incremental increase. Like the thresholds of 

significance, the test was inversely related to level of baseline noise. Thus, the higher the 

level of baseline noise, the smaller the incremental contribution needed to be deemed 

cumulatively considerable. Second, City compared (1) the noise level predicted by 

adding the noise generated by the project and all other present and reasonably foreseeable 

projects to the existing baseline to (2) the noise level predicted by adding the noise from 

the other projects to the existing baseline. This comparison showed how much of the 

cumulative impact could be attributed to the project’s incremental contribution. Third, 

the test adopted in the first test was applied to the project’s share of the cumulative 

impact determined by the second step. The test result determined whether the project’s 

incremental contribution was “considerable” and, thus, triggered further disclosure 

requirements and the discussion of feasible mitigation measures. Under this method of 

analysis, the revised EIR concluded that the project’s incremental noise effects at the 

eight residential locations were not cumulatively considerable. 

C. Analysis of Plaintiff’s Four Arguments

Plaintiff’s reply brief asserts there are four elements in its challenge to City’s 

determination that the project’s incremental noise impacts were not important—that is, 

were not “cumulatively considerable” for purposes of CEQA. These elements all relate 

to the test City adopted for determining what constituted a cumulatively considerable 

incremental increase. Summarized in general terms, plaintiff contends City erroneously 

used the same “substantial increase” standard as the significance threshold for the 

project’s individual impacts and as the test for whether its incremental contribution to a

significant cumulative noise impact was considerable. 
27.

1. Application of the Same Thresholds as Sole Criteria

Plaintiff’s first specific argument asserts that the revised EIR “used the same FTA 

manual thresholds as the sole criteri[on] to determine both whether there [was] a 

significant Project-specific noise impact and whether the Project makes a considerable 

contribution to the acknowledge[d] significant cumulative impacts.” 

City argues that (1) the standards adopted were not the same and (2) it referred to 

the FTA methodology to assist its determination, not as the sole criterion for whether the 

incremental noise impacts were cumulatively considerable. City contends the standards 

were not the same because its stair-step approach to thresholds of significance was 

derived from the FTA’s sliding scale, while the test it used for whether a contribution was 

cumulatively considerable “applied the FTA’s noise impact criteria, without 

modification, to a new base consisting of baseline and cumulative traffic noise other than 

the noise caused by the project.” In short, the two differences identified by City are a 

slightly different scale involving a smooth curve instead of stair-steps and a slightly 

different starting point (i.e., the existing baseline versus the existing baseline increased by 

the cumulative impact of the other projects without the Wal-Mart Supercenter). 

City also rebuts the argument that the same standards were used by referring to a 

memorandum prepared by its noise expert, Michael Brown. Brown used the data for 

Tucker Road north of Conway Avenue to construct a hypothetical showing the standards 

were different. For that location, the applicable stair-step threshold of significance was a 

2.0 dBA increase, because the baseline of 63.6 dBA fell between 60 and 65 dBA. Brown 

concluded that a contribution equating to 1.5 dBA was required to meet the standard 

adopted for a cumulatively considerable contribution, where the baseline plus the other 

projects equaled 64.7 dBA. Plaintiff disputed this point because its expert Watry 

contradicts Brown’s analysis. 

We conclude that Brown’s calculations are an expert opinion supported by facts 

and, therefore, constitute substantial evidence for the conclusion that the standards were 
28.

not the same. (Guidelines, § 15384, subd. (b) [definition of substantial evidence].) The 

disagreement between Brown and Watry, like disagreements among experts in general, 

does not make the EIR inadequate. (Guidelines, § 15151.)10 

Based on our review of the revised final EIR and the Brown memorandum, we 

conclude that City did not use the same standard as (1) the threshold of significance and 

(2) the test for determining whether the project’s incremental contribution to a significant 

cumulative impact was “cumulatively considerable.” Both standards were based on the 

FTA methodology, but were not identical. There are two clear differences. First, the 

thresholds of significance were the only standards that were stair-stepped. Second, the 

starting number (baseline) for the calculations were not the same. 

Furthermore, the response to comments contained in the revised final EIR states 

that the FTA’s no-impact classification was used to assist the analysis of whether the 

project’s effect was cumulatively considerable, thus implying that the FTA’s 

classification was not the sole criterion considered. We accept the EIR’s description of 

the reasoning process used even though the same results would have been reached if the 

FTA’s classification was used as the exclusive criterion for determining whether a 

contribution was cumulatively considerable. 

 

10 We also note that in comparing the two standards used in Brown’s hypothetical, it 

appears City would have concluded an incremental contribution to a significant 

cumulative impact of 2.0 dBA was “cumulatively considerable” only if it contributed 75 

percent or more to that cumulative impact. Brown’s memorandum stated: “Using a 

percentage methodology to determine a considerable contribution to a significant 

cumulative impact such as the one discussed by the commenter is difficult because 

people could argue about what the threshold percentage should be.” This shallow 

observation provides no useful information to the reader because the act of establishing 

any threshold or standard involves line-drawing and people could argue about where the 

line should be drawn even when it is not based on a percentage. Thus, the observation 

about the possibility of argument is not a rational basis for distinguishing a percentage 

test from other types of tests. More importantly, as shown by the first sentence in this 

footnote, a percentage can be calculated once the data from another type of test is 

available. Here, a percentage is inherent in the standards adopted by City. 
29.

Therefore, we conclude that plaintiff has failed to demonstrate that the same 

standards were, in fact, used for the two inquiries. As a result of this failure, we reject the 

first element or argument of plaintiff’s claim that City erred in its analysis of whether the 

project’s incremental effect was cumulatively considerable. 

2. Analysis of a Cumulatively Considerable Effect—Reasonableness

As its second argument, plaintiff contends that the use of the same FTA standards 

for adopting thresholds of significance and determining whether the project’s incremental 

noise impacts were cumulatively considerable rendered the analysis redundant and 

essentially meaningless. City urges us to construe this argument literally and conclude it 

fails because its factual foundation that the same standards were used is not accurate. We 

will not strictly construe plaintiff’s argument that the “cumulatively considerable” 

analysis performed was essentially meaningless. Instead, we interpret the argument that 

the analysis was essentially meaningless as inherently including the position that the 

revised EIR’s analysis was unreasonable.

This reasonableness standard is based on the following interpretation of 

Guidelines section 15130. Subdivision (b) of Guidelines section 15130 identifies the 

“elements ... necessary to an adequate discussion of significant cumulative impacts.” 

Those necessary elements do not address the point at which a project’s individually 

minor contribution to a significant cumulative impact becomes cumulatively 

considerable. (Guidelines, § 15130, subd. (b)(1)-(5).) However, the last element requires 

“[a] reasonable analysis of the cumulative impacts of the relevant projects.” (Guidelines, 

§ 15130, subd. (b)(5).) This reference to a reasonable analysis reiterates the language in 

the lead-in to the element that states: “The discussion should be guided by standards of 

practicality and reasonableness.” (Guidelines, § 15130, subd. (b).) We construe these 

provisions to mean that the EIR must contain a reasonable analysis of whether the 

project’s incremental effect is cumulatively considerable. Consequently, the EIR’s brief 
30.

description of the “basis for concluding that the incremental effect is not cumulatively 

considerable” must be reasonable. (Guidelines, § 15130, subd. (a).) If the basis for the 

conclusion is unreasonable, the agency has violated the Guidelines and, thus, “has not 

proceeded in a manner required by law” for purposes of the abuse of discretion standard 

set forth in section 21168.5.

Our conclusion that the reasonableness requirement from Guidelines section 

15130 applies leads to the question of whether the reasonableness determination involves 

a question of fact or a question of law. This distinction is important for determining the 

applicable standard of review, because under CEQA claims of legal error are subject to 

independent review and claims of factual error are subject to the substantial evidence 

standard. (Vineyard Area Citizens, supra, 40 Cal.4th at pp. 426-427.)

As a general rule, California law regards the question of reasonableness as an issue 

of fact. For example, whether a party’s conduct satisfies the standard of reasonable care 

applied in a negligence case is a question of fact, even though it sometimes is capable of 

being decided as a matter of law. (See Lugtu v. California Highway Patrol (2001) 26 

Cal.4th 703, 722-724 [summary judgment reversed because trial court erred in finding as 

a matter of law that defendant was not negligent].) The question of reasonableness also is 

a question of fact in other contexts. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 

713, 724 [insurance company entitled to summary judgment when it is undisputed that 

the basis for its denial of the insured’s claim was reasonable]; Pioneer Electronics (USA), 

Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 [invasion of a reasonable expectation 

of privacy is a mixed question of law and fact that may be resolved as a matter of law 

when the material facts are undisputed]; Grisham v. Philip Morris U.S.A., Inc. (2007) 40 

Cal.4th 623, 637 [in fraud case, the reasonableness of plaintiff’s reliance is a question of 

fact for the jury, but may be decided as a matter of law where the facts permit reasonable 

minds to come to just one conclusion]; Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89 

[whether a consequence is reasonably foreseeable is a question of fact for jury that may 
31.

be decided as a matter of law when there is no room for a reasonable difference of 

opinion].)

Accordingly, we conclude that the question of reasonableness presented by 

Guidelines section 15130 is a question of fact subject to review under the substantial 

evidence standard. Thus, the role of appellate courts in reviewing an agency’s factual 

determinations under the substantial evidence standard is deferential and does not 

reweigh conflicting evidence to decide who has the better argument. (Laurel Heights 

Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393.) 

We conclude City’s implied finding of fact that there was a reasonable basis for 

adopting the “cumulatively considerable” test described in the revised final EIR, even 

though other standards would have qualified as more reasonable. The reasonableness of 

City’s “cumulatively considerable” test must be considered in context, rather than in an 

abstract, facial inquiry. In other words, the surrounding facts and circumstances will aid 

the finder of fact in deciding what is reasonable. Here, part of the relevant context is 

established by the fact that the cumulative impacts being analyzed were less than 3.0 

dBA (the largest is 2.7 dBA), an increase in ambient noise that is not discernible to the 

average human ear. Another relevant fact is that the project’s individual contribution to 

the noise level predicted at the eight locations, when analyzed by itself, was less than 1.0 

dBA. In addition, the project’s share of the cumulative noise impacts (the largest 

cumulative impact was 2.7 dBA) was never more than 0.7 dBA or, in percentage terms, 

37 percent of the cumulative noise impact. In this extremely narrow context of noise

impacts, City’s reliance on the sliding scale to assist in determining whether the project’s 

incremental effect was cumulatively considerable appears to be supported by substantial 

evidence. That evidence includes the FTA’s manual and the opinion of City’s expert, 

Brown, which is reflected in his testimony at a public hearing before the city council and 

his memorandum. (See § 21080, subd. (e)(1) [substantial evidence includes expert 

opinion supported by fact].) 
32.

We readily acknowledge that plaintiff has presented logical arguments supporting 

its position that City used unreasonable standards to determine whether the project’s 

incremental effects were cumulatively considerable. Furthermore, plaintiff’s arguments 

are consistent with the legislative policies set forth in CEQA. (See §§ 21000, 21001, 

21002, 21002.1, 21003.) For example, in this case a significant cumulative impact on 

noise levels was recognized, but no steps were taken to reduce or mitigate that impact. 

Consequently, one might conclude that City has failed to adhere to the policies of taking 

“all action necessary to provide the people of this state with ... freedom from excessive 

noise” and ensuring “the long-term protection of the environment.” (§ 21001, subds. (b), 

(d).) Similarly, one could conclude that City’s approach contradicted the policy that a 

“public agency shall mitigate or avoid the significant effects on the environment of 

projects that it ... approves whenever it is feasible to do so.” (§ 21002.1, subd. (b).) 

In particular, a standard that a project must contribute 1.5 dBA or more to a 

significant cumulative noise increase of 2.0 dBA before City regards that contribution as 

“cumulatively considerable” for purposes of CEQA, would allow individually 

insignificant noise impacts to quickly accumulate and produce a significant cumulative 

noise impact without any evaluation of mitigation measures or a finding of overriding 

considerations. In situations where the increases are detectible to the human ear, such 

treatment of a 75 percent contribution to a significant cumulative impact might hinder 

rather than promote CEQA’s attempts to have significant cumulative effects addressed 

before they adversely impact the environment.

However, our review is limited to the narrow facts presented in this case, which 

involve cumulative noise impacts less than 2.7 dBA. Furthermore, we are constrained by 

the legislative directive that CEQA and the Guidelines shall not be interpreted in a 

manner that imposes substantive requirements beyond those explicitly stated in the 

statute or regulations. (§ 21083.1, added by Stats. 1993, ch. 1070, § 2, p. 5917; see 

Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1515 [a literal, i.e., explicit, 
33.

approach to statutory construction is mandatory under CEQA].) Under this directive, we 

cannot create a general rule of law that requires a project’s incremental contribution to a 

significant cumulative impact of a particular percentage—such as 20 percent, 33 percent 

or 51 percent—to be regarded as “cumulatively considerable” simply because doing so 

would appear to serve the general policies identified in CEQA. Therefore, we treat the 

reasonableness of City’s approach as a question of fact and further conclude that it cannot 

be resolved as a matter of law on the present record. 

In summary, we conclude that (1) the revised final EIR has adequately described 

the standard used to determine whether the project’s incremental effect was cumulatively 

considerable and (2) the reasonableness of that standard is supported by substantial 

evidence, despite there being conflicting evidence that supports a contrary finding. 

3. Individually Minor Impact May Be Cumulatively Considerable

As its third argument, plaintiff contends that the standard used to determine 

whether the project’s incremental effect was cumulatively considerable violated CEQA 

because it failed to recognize that an individually minor increase may be a considerable 

contribution to an impact caused by many separate projects. 

Plaintiff’s contention is based on the language adopted in Guidelines section 

15355, subdivision (b) to define cumulative impacts. The last sentence of that 

subdivision states: “Cumulative impacts can result from individually minor but 

collectively significant projects taking place over a period of time.”11 This statement 

helps explain the concept of a cumulative impact, but provides little help in 

distinguishing whether an individually minor impact is or is not “cumulatively 

 

11 This sentence is not reasonably susceptible to being interpreted to mean that all 

individually minor impacts are cumulatively considerable. As a background, we note that 

the sentence appears nearly verbatim in the federal regulation’s definition of cumulative 

impacts. (See 40 C.F.R. § 1508.7.) The only difference is that the federal regulation 

used the phrase “collectively significant actions” instead of “collectively significant 

projects.” 
34.

considerable” for purposes of subdivision (b) of section 21083 and Guidelines section 

15130. Consequently, plaintiff has not shown that City committed legal error in its 

adoption of a standard for determining when an individually minor (i.e., insignificant) 

incremental effect was cumulatively considerable for purposes of CEQA.

This argument appears to be a reiteration of plaintiff’s first argument about the 

inappropriate use of the same standards for determining significance and whether a 

project’s incremental effect was cumulatively significant. For instance, plaintiff’s reply 

brief contends that “use of the same threshold to determine project-specific noise impacts 

and to evaluate cumulative noise impacts is improper because it fails to recognize that 

‘individually minor’ impacts may nonetheless constitute a considerable contribution as 

they add up.” As discussed in part IV.C.1, ante, the standards were not the same and, 

consequently, that part of plaintiff’s argument failed. 

4. Substantial Evidence to Support the Standard

As its fourth argument, plaintiff contends that (1) the revised EIR did not justify 

its considerable contributions thresholds with substantial evidence and (2) the revised 

final EIR did not adequately respond to comments challenging those thresholds. 

Earlier we concluded that (1) the revised final EIR adequately described the 

standard used to determine whether the project’s incremental effects were cumulatively 

considerable and (2) the reasonableness of that standard was supported by substantial 

evidence. That evidence included the testimony and memorandum of Brown, the City’s 

expert who analyzed noise impacts, and the FTA’s manual. Thus, we reject plaintiff’s 

argument that the revised EIR did not justify its considerable contributions thresholds 

with substantial evidence. 

Furthermore, we conclude the response to comment No. 4-13 set forth in the 

revised final EIR adequately explained the basis on which City chose the standards used 

to determine whether the project’s incremental effects were cumulatively considerable. 
35.

The response also explained how those standards were different from the thresholds of 

significance. Plaintiff’s contention that the response in the revised final EIR “does not 

justify using the same thresholds” is flawed because the same thresholds were not used. 

Accordingly, we reject the claim that the responses were inadequate.

DISPOSITION

The order discharging the writ of mandate is affirmed. City shall recover its costs 

on appeal. 

_____________________

FRANSON, J.

WE CONCUR:

_____________________

DETJEN, Acting P.J.

_____________________

SMITH, J.