Coalition for Adequate Review v.
City/County of San Francisco
Filed 6/25/13 Coalition for Adequate Review v. City/County
of San Francisco CA1/1
Opinion following rehearing
TO BE PUBLISHED IN 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opinion has not been certified for publication or ordered published for purposes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
FIRST APPELLATE DISTRICT
DIVISION ONE
COALITION FOR ADEQUATE REVIEW et al.,
Plaintiffs
and Appellants,
v.
CITY AND COUNTY OF SAN FRANCISCO,
Defendant
and Respondent.
A131487
(San Francisco City &
County
Super. Ct. No.
CPF-08-508038)
After preparing an environmental
impact report, respondent City and County of
Francisco (city) approved a project to rezone land along the Market Street
corridor near Octavia Boulevard and to redevelop 22 vacant parcels created by
the removal of the elevated Central Freeway.
The city amended its general plan to include a new Market and Octavia
Area Plan and conformed its planning code and zoning maps. Plaintiffs Coalition for Adequate Review and
Alliance for Comprehensive Planning filed a writ petition in the trial court
challenging the city’s amended general plan and environmental review of the project. The trial court denied relief and we affirm.
I. Factual
and Procedural Background
Over 10 years ago, in December 2002,
the city published Market and Octavia
Neighborhood Plan—Draft for Public Review, an area plan proposing modified
land use controls for an area loosely centered around the Market Street
corridor near Octavia Boulevard. On
January 23, 2004, the city gave notice it would, in compliance with the
(CEQA), prepare an environmental impact report (EIR) evaluating the impacts of
the area plan and redevelopment of 22 vacant parcels within the plan area
created by the removal of the elevated Central Freeway.
On June 25, 2005, the city released
its draft EIR. The report states it
“covers adoption of the [Area] Plan, amendments to the San Francisco Planning Code and Zoning
Maps, amendment to the San Francisco General Plan, and adoption of urban design guidelines.†Aside from addressing redevelopment of the 22
Central Freeway parcels, the report does not review the impact of specific
development projects that might occur within the area plan’s boundaries. Instead, “[i]ndividual projects that could
occur in the future under the [area] Plan would undergo project level
evaluation to determine if they would result in further impacts specific to the
development proposal, the site, and the time of development and additional
environmental review would be required.â€
The report identified potentially significant and unavoidable impacts,
including shadows from possible new construction and increased traffic delays
at several intersections.
The city solicited public comments
on the draft EIR between June 25, 2005 and August 23, 2005. On September 26, 2006, the city released a
Comments and Responses document, which, together with the draft EIR made up the
final EIR.
On April 5, 2007, the city planning
commission certified the EIR, issued CEQA findings and a statement of
overriding considerations, and recommended the city adopt the area plan and
redevelopment project, despite their likely impacts, by enacting legislation to
amend the city’s general plan to include the area plan and amend the city’s
planning code and zoning map. Plaintiffs
appealed the EIR certification to the Board of Supervisors, which denied the
appeal on June 19, 2007, by a vote of eight to one, with two abstaining.
On October 23, 2007, the Board of
Supervisors approved the general plan amendment by ordinance No. 246-07. Later, on April 15 and 22, 2008, the Board
approved the planning code and zoning map amendments.
Meanwhile, on January 22, 2008,
plaintiffs filed a petition for writ of mandate in San Francisco Superior
Court. Their first amended petition,
filed May 30, 2008—after approval of the planning code and zoning map
amendments, is the operative pleading.
Plaintiffs alleged the city’s general plan, after amendment by ordinance
No. 246-07 to incorporate the Market and Octavia Area Plan, was unlawful because
it lacked elements required by Government Code section 65302. They further alleged the Market and Octavia
Area Plan created inconsistencies with the General Plan, in violation of
Government Code section 65300.5
Francisco’s Planning Code sections 101 and 101.1 (also known as Proposition
M). Finally, they alleged the city’s EIR
for the Market and Octavia Area Plan was inadequate under CEQA. Plaintiffs prayed for a court order excising
the Market and Octavia Area Plan from the general plan, voiding related changes
to city codes and ordinances, and requiring the city to prepare a new general
plan and new EIR before making any attempts to implement aspects of the Market
and Octavia Area Plan.
Although challenges
to a general plan should proceed expeditiously, and with preference, to trial
within 90 days, this case took over two years to reach trial. (See §§ 65752 [preference]; 65753, subd. (a) [speedy
trial].) Plaintiffs filed their opening
memorandum in support of their petition on August 20, 2010. The city filed opposition on October 21,
2010, and plaintiffs filed a reply on November 19, 2010. After a day-long hearing on December 8, 2010,
the trial court issued a brief written ruling, on December 15, 2010,
denying the petition and requiring the city to submit a proposed order. The city subsequently submitted a 34-page,
memorandum-format proposed order. Over
petitioner’s objections, the trial court signed the proposed order on January
7, 2011—more than eight years after the city first published the draft area
plan and about four and a half years since the final EIR was completed. Plaintiffs filed a notice of appeal on March
7, 2011.
While the events giving rise
to this litigation were unfolding, another case made its way through the
courts, a case that challenged the adequacy of the 2004 housing element of the
city’s general plan—a replacement for the 1990 housing element. The city had found the 2004 housing element
would have no significant adverse environmental impacts and so issued a
negative declaration and approved the element without preparing an EIR. A court of this district, however, concluded
“substantial evidence . . . support[ed] a fair argument that the amendments to
the Housing Element may have a significant impact on the environment.†(
City and County of San Francisco (Cal. Ct. App., June 22, 2007 (A112987)
2007 WL 1793881) at p. *1.) The
appellate court reversed and ordered the trial court “to issue a writ of mandate directing the City
to set aside its adoption of the negative declaration and to order the
preparation of an EIR.†(
On April 6, 2009, following
this reversal, the trial court issued a preemptive writ of mandate. It enjoined the city from implementing some
aspects of the 2004 housing element, but allowed it to operate under the
element’s remaining provisions—many of which derived from the previous 1990
housing element—until the city complied with CEQA’s mandates. An April 29, 2009, letter from the state’s
Department of Housing and Community Development assured the city its gutted
2004 housing element still complied, in the department’s opinion, with the
state’s planning laws.
name="_ftnref2" title="">[2]
A. General Plan
“The
Legislature has required every county and city to adopt ‘a comprehensive, long-term
general plan for the physical development of the county or city . . . .’ (§ 65300.) A general plan provides a ‘ “charter for
future development†’ and sets forth a city or county’s fundamental policy
decisions about such development.†(
Vacaville (2007) 154 Cal.App.4th 807, 815.)
“ ‘[T]he
propriety of virtually any local decision affecting land use and development
depends upon consistency with the applicable general plan and its
elements.’ [Citation.] ‘Since consistency with the general plan is
required, absence of a valid general plan, or valid relevant elements or
components thereof, precludes enactment of zoning ordinances and the
like.’ [Citation.] ‘The general plan consists of a “statement of
development policies . . . setting forth objectives, principles, standards, and
plan proposals.†[Citation.] The plan must include seven elements—land
use, circulation, conservation, housing, noise, safety and open space—and
address each of these elements in whatever level of detail local conditions
require [citation].’ †(
Cal.App.4th 1174, 1182.)
“The
adoption or amendment of a general plan is a legislative act. (Gov. Code, § 65301.5.) A legislative act is presumed valid, and a
city need not make explicit findings to support its action. [Citations.]
A court cannot inquire into the wisdom of a legislative act or review
the merits of a local government’s policy decisions. [Citation.]
Judicial review of a legislative act under Code of Civil Procedure
section 1085 is limited to determining whether the public agency’s action was
arbitrary, capricious, entirely without evidentiary support, or procedurally
unfair. [Citations.]†(Federation
of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126
Cal.App.4th 1180, 1195 (Federation).) “[O]nly those portions of the general plan
which are impacted or influenced by the adoption or amendment can properly be
challenged in the action which is brought.â€
(Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 289–290,
overruled in part on another ground as stated in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743,
fn. 11.)
Plaintiffs
challenge the city’s general plan as deficient because it lacks an adequate
land use element, circulation element, and housing element.
1. Land
Use Element
Section
65302 requires a general plan to include a “land use element that designates
the proposed general distribution and general location and extent of the uses
of the land for housing, business, industry, open space, including agriculture,
natural resources, recreation, and enjoyment of scenic beauty, education,
public buildings and grounds, solid and liquid waste disposal facilities, and
other categories of public and private uses of land.†(§ 65302, subd. (a).)
Plaintiffs
contend the city’s general plan, after amendment with the Market and Octavia
area plan, has no land use element at
all. While the general plan does lack a
single land use element, it contains a “Land Use Index†which refers the reader
to other parts of the plan containing information that, if located in one
place, would make up the land use element.
The Market and Octavia Area Plan, as well as other area plans, also contains
land use information. Such a distributed
approach to the land use element is acceptable.
A “general plan may be adopted in any format deemed appropriate or
convenient by the legislative body, including the combining of elements.†(§ 65301, subd. (a).) In addition, a “general plan may be adopted
as a single document or as a group of documents relating to subjects or
geographic segments of the planning area.â€
Plaintiffs next contend the
land use element, as amended, fails to “include a statement of the standards of
population density and building intensity recommended for the various districts
and other territory covered by the plan.â€
(§ 65302, subd. (a).)
Yet the
Land Use Index has a section labeled “Population Density and Building Intensity
Standards.†The section points to
density and intensity standards in the commerce and industry and housing
elements, and the various area plans. It
also has a series of maps. They depict
citywide guidelines for building height and building bulk, and depict a
citywide commercial and industrial density plan, which expresses densities in
terms of a FAR (Floor Area Ratio), the ratio between gross floor area to lot
area.
In
addition, the Market and Octavia Area Plan states there should be no limit on
population density within that already-established urban area, because the goal
is to maximize housing and limits would “unnecessarily constrain the housing
potential.†The plan states it would be
preferable to regulate building height, bulk, and other design characteristics to
promote building design goals, not density per se.
To that
end, the area plan divides the Market and Octavia neighborhood into use
districts. A map, labeled map 1, shows
the districts’ locations and a table, labeled figure 3, establishes permitted uses
for each district. For example, the Van
Ness and Market Downtown Residential Special Use District (VNMDR-SUD),
occupying the area by the intersection of those two streets, “will still have
the area’s most intensive commercial uses, including offices, but balances
those with a new residential presence.â€
Mixed office, retail, and housing are allowed in an 85- or 120-foot
building base, with residential towers permitted above the base at heights
ranging from 160 to 400 feet. Although
there would be, explicitly, no limit on residential density, there is a minimum
2:1 residential to non-residential use ratio.
Certain retail, office, and cultural uses are permitted up to the fourth
floor. No minimum residential or
non-residential parking is required, but residential off-street parking is
allowed at .25 spaces per unit (up to .75 spaces per unit and 1 space per
two-bedroom unit by conditional use permit) and non-residential parking is
allowed at approximately 1 space per 4,500 gross square feet.
On the other
end of the spectrum is the Residential Transit Oriented (RTO) district, which
comprises less-dense pockets of the planned area. The RTO district “will encourage
moderate-density, multi-family, residential infill, in scale with existing
development†near robust transit infrastructure, with allowance for limited
small-scale retail. Non-retail offices
are not allowed, but retail on corner lots, up to 1,200 square feet, is. Residential density is limited at one unit
per 600 square feet lot area, with conditional use permits available for a
higher density. Forty percent of units
must be two-bedroom units unless an exception is made. There may be a maximum of .75 off-street parking
spaces per residential unit; up to one space with a conditional use permit.
Other area
plan districts, falling between these two, are fleshed out similarly in the
plan document.
title="">[5]
Plaintiffs
cite no authority suggesting the foregoing do not constitute a sufficient
“statement of the standards of population density and building intensity
recommended for the various districts and other territory covered by the
plan.†(§ 65302, subd. (a).)
While one
“reasonable interpretation of the term ‘population density’ as used in
Government Code section 65302 is one which refers to numbers of people
in a given area†(Twain Harte Homeowners Assn. v. County of Tuolumne
(1982) 138 Cal.App.3d 664, 699 (Twain)), the area plan undoubtedly
offers “standards of population density,†even if the standard is unlimited
density (within other constraints).
Unlimited density is no less a standard than limited density, and it is
a choice the city reached quite deliberately.
Its policy 2.2.1 on page 15 of the area plan calls for elimination of
density maximums, which “unnecessarily constrain the housing potential . . . in
relatively dense, established urban neighborhoods like the Market and Octavia
area.†Plaintiffs may debate the policy
of having unlimited density constrained by other limits on development, but our
task is not to evaluate the wisdom of the general plan, only its compliance
with the law. (Federation, supra, 126
Cal.App.4th at p. 1195 [we do not “inquire into the wisdom of a legislative act
or review the merits of a local government’s policy decisionsâ€].)
As to
standards for building intensity, the area plan document gives standards for
building heights and permitted uses for each zoning district in the area,
precisely the sorts of standards called for in Twain, supra, 138 Cal.App.3d
664, 699 [standards might include “restrictions such as height or size
limitations, restrictions on types of buildings or uses to be permitted within
a designated areaâ€].)
2. Circulation Element
A general
plan must also contain a “circulation element consisting of the general
location and extent of existing and proposed major thoroughfares,
transportation routes, terminals, any military airports and ports, and other
local public utilities and facilities, all correlated with the land use element
of the plan.†(§ 65302, subd.
(b)(1).) Correlation means “the
circulation element of a general plan must provide meaningful proposals to
address changes reflected in the land use element, and the land use element
must provide meaningful proposals to reflect changes reflected in the
circulation element.†(
Plaintiffs
believe correlation is lacking because the Market and Octavia land use plan
calls for increased density while the circulation plan calls for relatively
fewer parking spaces (compared to other parts of the city) and a balanced use
of city roadways. The area plan,
however, addresses this supposed conundrum.
It recognizes “[a] common fear is that reducing the capacity available
for cars will result in major increases in congestion.†Yet notes “[m]uch research rejects this logic
and shows that people’s transportation choices are dynamic and respond to
capacity, relative cost, time, convenience, and other factors†and “[c]rucially
. . . movement of people is more than just movement of cars.â€
Plaintiffs
may dislike this correlation, but there is
undoubtedly correlation. Only time will
tell if the city’s “if we build it†approach to parking and transportation
choices will benefit the Market and Octavia area. Meanwhile, the conclusion reached in
internal consistency and correlation requirements do not require a city or
county to limit population growth or provide traffic management measures to
ensure that its transportation infrastructure can accommodate future population
growth. The Planning and Zoning Law
(Gov. Code, § 65000 et seq.) does not require a city or county to avoid
adverse impacts on transportation. Rather,
the city has broad discretion to weigh and balance competing interests in formulating
development policies, and a court cannot review the wisdom of those decisions
under the guise of reviewing a general plan’s internal consistency and
correlation.†(Federation, supra, 126 Cal.App.4th at p.
1196.) Accordingly, we shall not disturb
the circulation element.
name="_ftnref6" title="">[6]
3. Housing
Element
Plaintiffs
claim, because of the June 2007 decision of this court in
Franciscans for Livable Neighborhoods v. City and County of San Francisco, supra,
2007 WL 1793881, the city lacked a valid housing element at the time it
amended its general plan in October 2007 to include the Market and Octavia Area
Plan. Plaintiffs also contend the trial
court’s eventual writ in that case, issued April 6, 2009, specifically enjoined
the city from enforcing, relying upon, or approving any “ ‘no residential
parking requirement’ †or “ ‘no density requirement[] for residential
projects’ †until those policies received environmental review.
The 2007
Court of Appeal decision did not invalidate the city’s then-existing housing
element. That decision merely commanded
the trial court to issue a writ “to order the preparation of an EIR†for the
2004 revisions to the previously-approved, and EIR-vetted, 1990 residency
element. (San Franciscans for Livable Neighborhoods v. City
and County of San Francisco,
supra, 2007 WL 1793881, at pp. *1,
*14.) When the trial court
eventually issued a writ in 2009, it explicitly allowed the city to rely on the
1990 residency element and certain valid portions of the 2004 housing element
until the city could conduct environmental review for, and approve, a new
housing element. (See § 21168.9
[writs shall “include only those mandates which are necessary to achieve
compliance with this division and only those specific project activities in noncompliance
with this divisionâ€]; Federation of
Hillside and Canyon Associations v. City of Los Angeles (2000) 83
Cal.App.4th 1252, 1266.)
In fact, as
of August 2007, the city, aware of the Court of Appeal decision, augmented its
consistency findings for the Market and Octavia area plan such that it not only
found the area plan consistent with the 2004 housing element, but also the 1990
residence element. Thus, when the city
amended the general plan in October 2007, it operated with a housing element in
place.
Even if the
2009 writ forbade the city from adopting certain parking and density policies
in its housing element absent further environmental review, it did not,
retroactively, forbid the city from adopting, in October 2007, an area plan
with similar housing policies for one area of the city, Market and Octavia,
following the exact sort of extensive
CEQA-compliant environmental review (discussed below) the writ
demanded. Plaintiffs do not offer a
cogent argument for why the city could not make this incremental change to its
housing element if it proceeded according to CEQA’s dictates.
Further, it
appears the city has since completed review of and approved the 2004 housing
element, and a subsequent 2009 housing element.
the area plan and the 1990 residence element have been eliminated and, to this
extent and in this case, the housing element issue is moot. (Davis v. Superior Court (1985) 169
Cal.App.3d 1054, 1061 [if objections to a housing element “have been remedied,
the issues will then be mootâ€]; Youngblood
v. Board of Supervisors (1978) 22 Cal.3d 644, 648 [“While the appeal
was pending before this court, the board of supervisors amended the zoning for
Rancho Del Dios to conform to the general plan, thus mooting the principal
issue of this appeal.â€].)
B. CEQA
“CEQA
requires that an EIR include detailed information concerning, among other
things, the significant environmental effects of the project under
consideration. (Pub. Resources Code, §§ 21100, 21100.1)†(Rialto
Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th
899, 923–924 (Rialto).) “ ‘The EIR is the heart of CEQA’ and the
integrity of the process is dependent on the adequacy of the EIR.†(Save
Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87
Cal.App.4th 99, 117.)
“ ‘ “ ‘[A]n
EIR is presumed adequate (Pub. Resources Code, § 21167.3), and the plaintiff in
a CEQA action has the burden of proving otherwise.’ †’ (Concerned Citizens of South Central L.A.
v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 836 . . .
.) In CEQA cases, as in other mandamus
cases, ‘we independently review the administrative record under the same
standard of review that governs the trial court.’ (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000)
83 Cal.App.4th 1252, 1259 . . . ; accord, Vineyard Area Citizens
for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th
412, 427 . . . (Vineyard).) We
review an agency’s determinations and decisions for abuse of discretion. An agency abuses its discretion when it fails
to proceed in a manner required by law or there is not substantial evidence to
support its determination or decision.
([Pub. Resources Code,] §§ 21168, 21168.5; Vineyard, supra, 40
Cal.4th at pp. 426–427.) ‘Judicial
review of these two types of error differs significantly: While we determine de novo whether the agency
has employed the correct procedures, “scrupulously enforc[ing] all
legislatively mandated CEQA requirements†[citation], we accord greater
deference to the agency’s substantive factual conclusions.’ (Vineyard, at p. 435.)†(Preserve
Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 275 (
“Consequently,
in reviewing an EIR for CEQA compliance, we adjust our ‘scrutiny to the nature
of the alleged defect, depending on whether the claim is predominantly one of
improper procedure or a dispute over the facts.’ (Vineyard, supra, 40 Cal.4th at p. 435.) For example, where a petitioner claims an
agency failed to include required information in its environmental analysis,
our task is to determine whether the agency failed to proceed in the manner
prescribed by CEQA. Conversely, where a
petitioner challenges an agency’s conclusion that a project’s adverse
environmental effects are adequately mitigated, we review the agency’s
conclusion for substantial evidence. (Vineyard,
at p. 435.)†(
275.)
“Substantial
evidence for CEQA purposes is ‘enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached.’ (Guidelines,[
§ 15384, subd. (a).) Substantial
evidence includes ‘facts, reasonable assumptions predicated upon facts, and
expert opinion supported by facts.’ (Id., subd. (b).) It does not include argument, speculation,
unsubstantiated opinion or narrative, clearly erroneous or inaccurate evidence,
or evidence of social or economic impacts which do not contribute to or are not
caused by physical impacts on the environment.
(Id., subd.
(a).)†(Santee, supra, 210
Cal.App.4th at pp. 275–276.)
“ ‘In
reviewing for substantial evidence, the reviewing court “may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion would have been
equally or more reasonable,†for, on factual questions, our task “is not to
weigh conflicting evidence and
determine who has the better argument.†’
(Vineyard, supra, 40 Cal.4th at p. 435; see Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, [392–]393 . . . .) Rather, we must resolve any reasonable doubts
and any conflicts in the evidence in favor of the agency’s findings and
decision. (Laurel Heights, at p.
393; Citizens for Responsible Equitable Environmental Development v. City of
San Diego (2011) 196 Cal.App.4th 515, 522–523.)†(Santee,
supra, 210 Cal.App.4th at p. 276.)
Further, “
‘[i]n determining the adequacy of an EIR, the CEQA Guidelines look to whether
the report provides decision makers with sufficient analysis to intelligently
consider the environmental consequences of a project. ([Guidelines,] § 15151.) The CEQA Guidelines further provide that “the
sufficiency of an EIR is to be reviewed in the light of what is reasonably
feasible . . . . The courts have
[therefore] looked not for perfection but for adequacy, completeness, and a
good faith effort at full disclosure.†([Guidelines] § 15151.)’ [Citation.]
The overriding issue on review is thus ‘whether the [lead agency]
reasonably and in good faith discussed [a project] in detail sufficient [to
enable] the public to discern from the [EIR] the “analytic route the . . .
agency traveled from evidence to action.â€
[Citation.]’ [Citation.]†(California
Oak Foundation v. Regents of University of California (2010) 188
Cal.App.4th 227, 262.)
Plaintiffs
assert numerous defects in the city’s CEQA review.
Description
“An accurate, stable and finite
project description is the sine qua non of an informative and legally
sufficient EIR.†(County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d
185, 193.)
Boundaries
Plaintiffs first assail the EIR’s
project description for not reflecting shifts in the project’s boundaries over
time, such that the project description ultimately failed to disclose the
project’s “precise location . . . on a detailed map.†(Guidelines, § 15124, subd. (a) [setting
forth requirements for an EIR’s project description].)
In reality, section 3.3 of the draft
EIR defines the project location by providing the names of bordering streets,
the numbers of 89 included Assessor’s Blocks, and a map. In the September 2006 response to comments,
the city reduced the project area by about 12 blocks—stating those blocks would
be covered by other area plans—and provided a new map showing the change. The city concluded this small reduction in
project size “would have either comparable or less impacts relative to the Plan
analyzed in the DEIR.â€
The project description should be
stable and “ ‘[t]he defined project and not some different project must be
the EIR’s bona fide subject.’ †(
& Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890,
898.) Nonetheless, “ ‘[t]he CEQA
reporting process is not designed to freeze the ultimate proposal in the
precise mold of the initial project; indeed, new and unforeseen insights may
emerge during investigation, evoking revision of the original proposal.’ (
decisionmakers . . . .)†(
Cal.App.3d 1029, 1041.) “The action
approved need not be a blanket approval of the entire project initially
described in the EIR. If that were the
case, the informational value of the document would be sacrificed. Decisionmakers should have the flexibility to
implement that portion of a project which satisfies their environmental
concerns.†(Ibid.) Thus, in
(redevelopment of a parcel) was broader than, but inclusive of, the project
approved (demolition of a structure on the parcel), the public was fully
informed and had an opportunity to voice opposition. (Id.
at pp. 1035, 1041.)
The city’s choice, here, to
this case like Dusek.
with greater impacts, than the plan approved.
Plaintiffs dispute this, stating the city’s plan would still increase
housing and residency, but now distribute that growth more intensely over a
smaller area. Not so. While the plan
states fixed population growth targets, these targets are mere aspirations, not
mandatory. The plan quite plainly seeks
population growth through zoning change.
Thus, the city’s rezoning of fewer parcels would in fact reduce the
plan’s impacts.
title="">[10]
Description
of VNSUD
Plaintiffs further claim the EIR
omits a description of the VNMDR-SUD (standing for Van Ness and
Market Downtown Residential Special Use District), and that this district was
only added to plans after EIR certification.
Though the draft EIR did not use the
VNMDR-SUD
acronym, it does describe the project as creating a “Downtown Residentialâ€
(DTR) district “around the Market Street and Van Ness Avenue
intersection.†This district “would
permit . . . moderate- and large-sized commercial activities†up to the fourth
floor. “[A]utomobile-oriented uses would
not be allowed.†Height limits—from 160
feet up to 400-foot towers would be allowed—and bulk limits would determine
housing density. Thus, the EIR
foreshadowed and accounted for the “huge towers already in the Planning processâ€
plaintiffs oppose. The draft EIR also
provides a table, labeled 3-1, of characteristics of the DTR district and other
proposed districts—a table that mirrors the table in the draft Market and
Octavia Area Plan, labeled figure 3 and discussed above. It restates, for the DTR district, the
commercial activity and height restrictions, and states there will be no
minimum parking required, but that there could be up to 1 commercial spot per
4,500 square feet and from .25 spaces (up to .5 spaces with conditional use
permit) per residential unit. The draft
EIR discusses impacts related to the DTR’s creation in section 4.2.2.
Comparing
the draft EIR’s DTR district to the VNMDR-SUD found in the approved Area Plan,
there is almost no difference. It appears
city planners changed the name of district that would cover the Van Ness and
Market intersection, but little else.
There are some differences. For
example, the VNMDR-SUD allows somewhat more residential parking (.75 spaces by
conditional use permit rather than .5).
But these changes are noted and addressed in the response to
comments. As for the additional parking
that would be allowed under the revised project, the city’s response states the
EIR evaluated a range of allowed parking—from zero to one space per unit—and
therefore no further analysis of the change was needed.
The public
was on notice about the DTR and the VNMDR-SUD, and plaintiffs cannot complain
about, in essence, a name change and minor tweaks arising from the public
comment process.
2. EIR
Tiering
Plaintiffs
next raise a concern about the EIR’s limited scope—that is, the city’s choice
to segregate and postpone review of various endeavors, which plaintiffs argue
should have been reviewed in the EIR under consideration.
The city’s
EIR delineated three types of proposed endeavors and handled each type
differently. It analyzed the Market and
Octavia Area Plan’s proposed land use changes at a “Program Level,†without
addressing specific possible future developments that might come to be on
rezoned parcels. It analyzed near-term
projects referenced in the Area Plan—redevelopment of the 22 Central Freeway
parcels and conversion of Hayes and Fell to two-way streets—at a “project
level.†The EIR also mentioned long-term
transportation initiatives mentioned in the Area Plan, but did not analyze
these because, as it concluded, the city was not seeking approval for these
initiatives, which would be subject to additional environmental review when
proposed.
Plaintiffs
fault the EIR for treating land use changes at a “program level†and for not
addressing the long-term transportation initiatives.
A
program-level EIR “is an EIR which may be prepared on a series of actions that
can be characterized as one large project and are related†by geography, by
being “logical parts†in a chain of contemplated action, by “issuance of rules,
regulations, plans, or other general criteria to govern the conduct of a
continuing program,†or by being “under the same authorizing statutory or
regulatory authority and having generally similar environmental effects which
can be mitigated in similar ways.â€
(Guidelines, § 15168, subd. (a).)
Program
EIRs play a key role in “tiered†CEQA analysis.
(Guidelines, § 15152, subd. (h).)
“ ‘Tiering’ refers to using the analysis of general matters contained in
a broader EIR (such as one prepared for a general plan or policy statement)
with later EIRs and negative declarations on narrower projects; incorporating
by reference the general discussions from the broader EIR; and concentrating
the later EIR or negative declaration solely on the issues specific to the
later project.†(Guidelines,
§ 15152, subd. (a).) The
Legislature has declared “environmental impact reports shall be tiered whenever
feasible.†(Pub. Resources Code, §
21093, subd. (b); Al Larson Boat Shop,
Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740.) Tiering “will promote construction of needed
housing and other development projects by (1) streamlining regulatory
procedures, (2) avoiding repetitive discussions of the same issues in
successive environmental impact reports, and (3) ensuring that environmental
impact reports prepared for later projects which are consistent with a
previously approved policy, plan, program, or ordinance concentrate upon
environmental effects which may be mitigated or avoided in connection with the
decision on each later project.†(Pub.
Resources Code, § 21093, subd. (a).)
The CEQA
Guidelines specifically endorse tiering “in connection with an EIR for a large-scale
planning approval, such as a general plan or component thereof (e.g., an area
plan or community plan),†noting in these cases, “development of detailed,
site-specific information may not be feasible but can be deferred, in many
instances, until such time as the lead agency prepares a future environmental
document in connection with a project of a more limited geographical
scale.†(Guidelines, § 15152, subd.
(c); see In re Bay-Delta etc. (2008)
43 Cal.4th 1143, 1174–1175 (In re
Bay-Delta) [“Under CEQA’s tiering principles, it is proper for a lead
agency to use its discretion to focus a first-tier EIR on only the general plan
or program, leaving project-level details to subsequent EIR’s . . . .â€];
construction project will necessarily be more specific than an EIR on the
adoption or amendment of a comprehensive zoning ordinance or a local general
planâ€].)
The city’s
programmatic treatment of land use changes, deferring analysis of specific
development projects, was entirely consistent with CEQA. (In re
Bay-Delta, supra, 43 Cal.4th at
pp. 1174–1176; Gilroy Citizens for
Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 929
[approving a site-specific EIR tiered atop a broader area EIR];
Commissioners, supra, 18
Cal.App.4th at p. 743 [first-tier EIR adequate when it analyzes goal of
increased port capacity while deferring full analysis of anticipated projects,
discussing them only “for the purposes of giving a reasonably detailed
consideration to the overall five-year planâ€]; Rio Vista Farm Bureau Center v. County of Solano (1992)
5 Cal.App.4th 351, 374 [“Thus, an EIR on the adoption of a general plan,
such as is under scrutiny here, must focus on secondary effects of adoption,
but need not be as precise as an EIR on the specific projects which might
follow.â€]; City of Antioch v. City Council (1986) 187 Cal.App.3d
1325, 1337 [“We do not believe that the EIR required in this case must describe
in detail each and every conceivable development scenario. All it must analyze are the road and utility
impacts in relation to the most probable development patterns.â€], italics added.)
The cases
plaintiffs cite are unhelpful to them.
Stanislaus Natural Heritage Project v. County of Stanislaus (1996)
48 Cal.App.4th 182 (Stanislaus),
makes the same distinction between zoning and development projects as the cases
just cited. In criticizing an EIR for a
25-year, phased project for a golf resort community, the Court of Appeal was
concerned the report disclosed a water plan sufficient to cover only the first
five years of the project, and deferred consideration of impacts related to
future water needs until the project was well underway—and in need of water. (Id.
at pp. 188, 195.) This was not a case
where the county “simply adopt[
or amend[ed] a general plan so as to permit the building of homes and golf courses. The County adopted a specific plan calling
for the construction of those facilities and of other particularly described
facets of the Diablo Grande Specific Plan.â€
(Id. at p. 203, italics added;
see also Vineyard,
[agreeing with result in Stanislaus].)
which it planned to eventually use all of, but which it would use only a
portion of until current tenants’ leases expired. UCSF could not avoid an EIR that addressed
use of the whole building, since UCSF conceded it would in fact make that full
use. (Id. at pp. 388, 393, 397.) The project in Laurel Heights did not implicate the planning and implementation
dichotomy we have here (id. at p. 396
[“This is not the type of situation where it is unclear as to whether a parcel
of land will be developed or as to whether activity will commence.â€]), but
concerned, like Stanislaus,
inevitable future “phases†of projects to be carried out by the same proponents
of the initial projects.
Thus, no
authority required the city to analyze, in connection with an area plan EIR,
the specific development projects that might or might not occur on every parcel
within the area, including private development projects by untold numbers of
third-party developers. Analysis of such
development may be left to the future and may piggbyback on the programmatic
area plan EIR.
Following
from this, the city also did not need to study “in-the-pipeline†projects
(already subject to their own CEQA and EIR process) located within the confines
of, and consistent with, the area plan, such as the planned development of 500
residential units at a former UC Berkeley site at 55 Laguna (the LHBHSUD
district) or the construction of a grocery store at 555 Fulton (the Fulton
SUD). The city in fact conducted
environmental review of the 55 Laguna redevelopment project, and in 2010 a
Court of Appeal concluded that review was adequate.
Laguna Street Campus v. City and County of San Francisco (Cal. Ct. App.,
May 25, 2010, A124531) 2010 WL 2059470.)
Also, the city adopted a mitigated negative declaration when approving
the 555 Fulton project. This case is not
akin to San Franciscans for Reasonable
Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61,
67, 73–74 and footnote 2, in which the city simultaneously pursued four
downtown high-rise projects and produced EIRs for each project that unlawfully
ignored the likely impacts of the other three.
That case did not involve tiering development projects atop broader land
use planning, which is what the city has done here. In no sense has the city “ ‘precluded
informed decisionmaking and informed public participation.’ †(City of Long Beach v. Los Angeles Unified
School Dist. (2009) 176 Cal.App.4th 889, 898.)
Finally,
the city was free to postpone analysis of future, hypothetical transportation
initiatives that were not planned for implementation. The city was free to decline implementation
of these changes, and could decline study of them as they were not inevitable
outgrowths of adopting the Area Plan’s land use changes. (See Laurel
Heights, supra, 47 Cal.3d at p.
396; Stanislaus, 48 Cal.App.4th at p.
203.) That is, the city could adopt the
zoning changes and not have, in the language of Stanislaus, a half-built resort on its hands.
3. Baseline
“To decide
whether a given project’s environmental effects are likely to be significant,
the agency must use some measure of the environment’s state absent the project,
a measure sometimes referred to as the ‘baseline’ for environmental analysis.†(
South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315 (
the CEQA Guidelines provides: ‘An EIR
must include a description of the physical environmental conditions in the vicinity
of the project, as they exist at the time the notice of preparation is
published, or if no notice of preparation is published, at the time
environmental analysis is commenced, from both a local and regional
perspective. This environmental setting
will normally constitute the baseline physical conditions by which a lead
agency determines whether an impact is significant.’ [Citation.]â€
(Id. at p. 320, italics
omitted.)
Historic Resources
Baseline
Plaintiffs
criticize the EIR’s treatment of historic resources, claiming it omits a
discussion of certain historic buildings and thereby impedes the public’s
understanding of impacts to them.
Section
4.6.3 of the EIR summarizes architectural resources within the Market and
Octavia neighborhood. It draws on eight
surveys from between 1968 and 2004, plus the city planning department’s Parcel
Information Database. It notes hundreds
of structures “contribute†to historical districts, such as the Hayes Valley
Historic District, or have unique architectural or historical features, such as
Mission Dolores and a U.S. Mint building.
The EIR notes infill development promoted by the area plan could differ
in design and scale from historical resources, thus altering the context in
which those resources exist. On the
other hand, a goal of the area plan is preservation of historic buildings and
the plan’s urban design guidelines “would ensure that new development enhances
the area’s physical fabric.†“Individual
projects proposed within the [neighborhood] would be subject to existing city
land use controls including design review during the permitting stage to ensure
compatibility with adjacent historical resources [and] to avoid demolition of
historic resources.†These controls and
reviews would, claims the EIR, prevent significant impacts at the program
level, but “[s]ite specific impacts would need to be evaluated for individual
projects before they are approved.â€
Thus,
despite plaintiffs’ claim of EIR omissions, the EIR does mention “omittedâ€
buildings by name (such as the U.S. Mint) or acknowledge them by reference to a
group to which they belong (the Tudor on Waller street is one of the 200
structures “contributing†to the Hayes Valley Historic District). Having laid out in broad strokes the
historical resources in the Market and Octavia area, the EIR alerts the public
that the area contains historic structures and promises further environmental
review should any actual development plans threaten those structures.
This level
of detail is sufficient for the program-level EIR at issue. Separate, project-level review of specific
developments will inform the public of impending changes to historic resource,
and the impacts of those changes, including those impacts that would be
cumulative with other projects. To hold
otherwise would defeat the tiering process authorized by the CEQA
Guidelines. (See In re Bay-Delta,
1174–1176.) As each historic resource is
unique, to insist on further review now, at the program level, would not be
cost-effective and could bind the city to a course of action that it later
found to be infeasible.
Moreover,
the promise of later, second-tier review is not an empty one, but rather a
promise courts accept, and will enforce, in the context of an appropriately tiered
EIR. (See In re Bay-Delta,
City of Los Angeles (2002) 103 Cal.App.4th 268, 282 [“A program EIR does
not always suffice for a later project.â€].)
Nonetheless,
plaintiffs are particularly concerned that new 400-foot towers could, if
approved according to the area plan, block views of City Hall, whose spire
reaches only 300 feet. First, as the EIR
discusses, the area around City Hall already has three high-rise towers and a maximum
permitted height of 320 feet, which minimizes the impact of the feared changes
to city views. (Cf. Citizens for East Shore Parks v. State Lands Com. (2011) 202
Cal.App.4th 549, 560-561 [existing conditions are part of the baseline].) Second, as already discussed, future
project-level reviews of the actual buildings that will populate the area plan
will protect particular resources, such as City Hall.
Baseline
including in the traffic baseline the latest data about the new, six-lane
Octavia Boulevard freeway access road, even though the road opened in September
2005, after the public comment period but before the area plan’s EIR was
finalized. They cite a March 2, 2006
city study, not cited in the EIR, showing use of Octavia was then already close
to capacity and resulting in congestion on nearby feeder streets.
But the
city’s draft EIR had accounted for increased use of Octavia as a freeway
feeder, noting “a wide variation in terms of percent contribution at several of
the study intersections . . . as future traffic volumes would be affected by
implementation of the Central Freeway Project.â€
While “future traffic volume†at some intersections “would be reduced
due to the reassignment of vehicles . . . [to] new on- and off-ramps,†the city
more than doubled the estimated use of the Market/Octavia/McCoppin
intersection, the new ramp location, even without the plan.
Then, when
plaintiffs complained in late 2005 during the comment process about the lack of
an evaluation of current Octavia Boulevard conditions, the city responded with
information and action. In its September
2006 response, it told plaintiffs that the Octavia/Market freeway “touchdownâ€
had been approved after environmental review in 2000. The city also collected new traffic data in
“November 2005 to determine actual shifts in traffic patterns related to†the
freeway access changes, data it included with its comment responses. The city also took stock data collected in
October and December 2005, and concluded “the volume estimates [from the draft
EIR] are consistent with actual traffic volumes after the ramps and boulevard
were opened.â€
The city
can only analyze the environmental baseline existing at the time of its
review. (Communities, supra, 48
Cal.4th at p. 321.) The city here used the data available to it
and supplemented its analysis after collecting new data in response to
comments. Plaintiffs have faulted the
city for not incorporating still more-recent data on traffic, available only
months after the public comment period had closed, and making yet another
review of traffic impacts. At some
point, however, review must end.
“ ‘ “ ‘CEQA requires an EIR to reflect a good faith
effort at full disclosure; it does not mandate perfection, nor does it require
an analysis to be exhaustive.’ †’ â€
(City of Maywood v. Los Angeles
Unified School Dist. (2012) 208 Cal.App.4th 362, 385–386.) The city’s efforts here were adequate.
hypothetical conditions in the year 2025 as a baseline for measuring traffic
impacts. The EIR does indeed compare
expected traffic impacts with and without the plan in the year 2025. It also, however, contains information about
actual, observed traffic conditions in the plan area, including data from 32
intersections collected by Wilbur Smith & Associates in 2004 and the
supplemental data collected in late 2005 already discussed.
chart that compares current
intersection traffic with projected traffic in 2025, both with and without the
plan, giving a grade between A and F to each intersection in each scenario,
with E and F representing unsatisfactory conditions. Such information provides a sufficient
traffic baseline, and plaintiffs have not met their burden to show
otherwise. (Pfeiffer v. City of Sunnyvale City Council (2011)
200 Cal.App.4th 1552, 1572 (Pfeiffer).)
“This
court’s decision in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale
City Council (2010) 190 Cal.App.4th 1351 . . . (Sunnyvale West), on
which [plaintiffs] rely, does not compel a different conclusion. The decision in Sunnyvale West
involved a CEQA challenge to the city council’s approval of the proposed Mary
Avenue extension project. (Sunnyvale
West, at p. 1358.) The trial court granted a peremptory writ of
mandate setting aside the approval on the ground that the baseline used to
measure traffic impacts was ‘projected traffic conditions in the year 2020,’
and the final EIR did not consider ‘the project’s traffic and related impacts
on the existing environment.’ (Ibid.) This court affirmed, finding that the city
had erred in when it ‘chose the projected conditions in the year 2020, more
than a decade after approval, as the “baseline†against which to assess the
traffic and related impacts of the proposed project.’ (Id. at p. 1379 . . .
.) ‘Although “[n]either CEQA nor the
CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing
conditions baseline†(Communities For A Better Environment, supra, 48
Cal.4th at p. 328, italics added) nothing in the law authorizes
environmental impacts to be evaluated only against predicted conditions more
than a decade after EIR certification and project approval.’ (Id. at p. 1380.)†(Pfeiffer,
“Sunnyvale West is
therefore distinguishable from the present case, where the traffic baselines
included in the EIR were not limited to projected traffic condition . . . but
also included existing conditions . . . .â€
(Pfeiffer, supra, 200 Cal.App.4th
at p. 1573.) “Moreover, this court acknowledged in Sunnyvale
West that future conditions may be considered in determining a proposed
project’s impacts on the environment. .
. . ‘[S]uch discussions may be necessary
to an intelligent understanding of a project's impacts over time and full
compliance with CEQA.’ (Sunnyvale
West, supra, 190 Cal.App.4th at p. 1381.)†(Ibid.) In fact, “CEQA Guidelines expressly provide
for consideration of potential future conditions. ‘Although “[i]n assessing the impact of a
proposed project on the environment, the lead agency should normally limit its
examination to changes in the existing physical condition in the affected area
. . . ,†the EIR must still clearly identify and describe the “[d]irect and
indirect significant effects of the project on the environment†and give “due
consideration to both the short-term and long-term effects.†(CEQA Guidelines, § 15126.2, subd. (a).) Further, “[w]here a proposed project is
compared with an adopted plan, the [EIR’s] analysis shall examine the existing
physical conditions at the time the notice of preparation is published, or
if no notice of preparation is published, at the time the environmental
analysis is commenced as well as the potential future conditions discussed
in the plan.†(CEQA Guidelines, §
15125, subd. (e), italics added.)’
[Citation.]†(
at pp. 1573–1574.)
claim the EIR compounds its “baseline error†by using its improper baseline as
a starting point for the cumulative impacts analysis. As just discussed, however, the EIR properly
sets forth a traffic baseline reflecting current conditions. Moreover, as shown in the Appendix C chart,
the EIR calculated impacts by starting
with existing conditions and then forecasting traffic in 2025 both with and
without the plan. Those intersections
within the plan expected to receive unsatisfactory traffic grades in 2025
because of “direct impacts†or “cumulative impacts†of the plan, were
highlighted and singled out for further analysis.
numbers for each at-risk intersection:
the percent of estimated total traffic in 2025 generated by the plan
(contribution to total); and the percent of estimated traffic growth, from
current conditions to those expected in 2025, generated by the plan
(contribution to growth). The
“contribution to growth†figure explicitly measures the plan’s impact
intersections that would be negatively impacted by the plan most directly and
those impacted by a combination of the plan and other forces. It concluded the plan would have a significant
impact on seven intersections, but not on the five remaining intersections,
based on “examination of the traffic volumes for the traffic movements which
determine overall . . . performance at the[] intersections.†The five intersections with insignificant
cumulative impacts had the same performance grade in 2025 projections, with or
without the plan.
Parking Baseline
Despite
plaintiffs’ contrary assertion, the EIR adequately describes the existing state
of both on-street and off-street parking within the project area at pages 4-197
to 4-200. For instance, the EIR found
on-street parking on weekdays at midday to be near capacity. It also found, referencing a 2002 report
parking study, on-street and many off-street parking options were full during
performances at Civic Center
name="_ftnref14" title="">[14]
against current conditions, estimating the project could create parking demand
as high a 4,510 spaces during the weekday midday period and 5,640 spaces during
the weekday evening period. (Taking into
account, however, lower vehicle ownership rates within the area—rates likely to
persist under the plan due to the public transit available within the area—the
EIR forecasts the plan would generate demand for 2,430 spaces during the
weekday midday period and 3,050 spaces during the weekday evening period.)
This
baseline is not hypothetical, in contravention of Communities, supra,
48 Cal.4th at pages 320–321, but based on observation of existing
conditions. It is not based on “potential new off-street parking.†Instead projections of future demand, to measure likely impacts, derive from this baseline data.
| Description | After preparing an environmental impact report, respondent City and County of San Francisco (city) approved a project to rezone land along the Market Street corridor near Octavia Boulevard and to redevelop 22 vacant parcels created by the removal of the elevated Central Freeway. The city amended its general plan to include a new Market and Octavia Area Plan and conformed its planning code and zoning maps. Plaintiffs Coalition for Adequate Review and Alliance for Comprehensive Planning filed a writ petition in the trial court challenging the city’s amended general plan and environmental review of the project. The trial court denied relief and we affirm. |
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