San Franciscans for Livable Neighborhoods v. City and County of San Frnacisco

Filed 6/22/07 San Franciscans for Livable Neighborhoods v. City and County of San Frnacisco CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

Appellant San Franciscans for Livable Neighborhoods (SFLN) challenges the denial of its petition for a writ of mandate to compel respondent City and County of San Francisco (the City) to set aside the approval of the housing element of its general plan and to prepare an environmental impact report (EIR) pursuant to the California Environmental Quality Act (CEQA). (Pub. Resources Code,  21000 et seq.)[1] Appellant claims that there is substantial evidence to support a fair argument that amendments to the housing element may have a significant impact on the environment, thus requiring the preparation of an EIR. We agree and reverse.

I.
Factual and Procedural
Background

The City is required by state law to prepare a general plan for the development of the City that includes, among other elements, a housing element that analyzes existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing. (Gov. Code,  65583; see also Gov. Code,  65300, 65302, subd. (c).) The housing element must be updated at least every five years. (Gov. Code,  65588, subd. (b).)

The City revised its housing element in 1990, when it adopted the 1990 Residence Element (Residence Element). An EIR was prepared to evaluate the revision. Meeting the housing goals in the Residence Element would reduce traffic congestion and thus improve air quality, according to the EIR, because people who work in the City would have shorter commutes. The EIR concluded that reaching the housing goals in the Residence Element could be achieved without any significant adverse effects to the environment.

The Residence Element was not updated again until May 13, 2004, when the Citys planning commission adopted a revision following nearly three years of public comment and draft revisions. The revised element, now called the 2004 Housing Element (Housing Element), is the subject of the current appeal.

The Association of Bay Area Governments (ABAG) projected that the population of San Francisco would increase by almost 32,500 people by 2010 to about 809,200. ABAG determined that San Franciscos share of the regional housing need for January 1999 through June 2006 would be 20,374 units, or 2,717 units annually. The Housing Element was designed to address those housing needs.

The Citys planning department (Department) prepared an initial study to evaluate whether proposed changes to the Housing Element would have a significant effect on the environment. As part of its analysis, the Department examined only new policies that were being added to the Housing Element; it apparently did not evaluate the effects of policies that contained no text change or that were modified, or the effect of removing certain policies from the 1990 Residence Element. The initial study emphasized that although proposed revisions to the Housing Element were meant to promote increased housing production, no environmental effects would result from the adoption of the element because it did not specify any development, rezoning, or area plans. In evaluating whether the Housing Element would affect various aspects of San Franciscos environment, the initial study repeatedly stated that any environmental impact analysis would be conducted in connection with the approval of any future development projects, area plans, or rezoning. The Department then prepared a negative declaration, which concluded that revisions to the Housing Element could not have a significant effect on the environment. SFLN[2] appealed a preliminary negative declaration, but the planning commission voted unanimously to uphold the negative declaration on the same day it adopted the Housing Element.

SFLN appealed the approval of the negative declaration to the Board of Supervisors. The Board of Supervisors denied the appeal on June 29, 2004, and the 2004 Housing Element was thereafter approved by operation of law. (S.F. Charter,  4.105 [proposed general plan amendment deemed approved by Board of Supervisors if board fails to act within 90 days of receiving amendment]; S.F. Planning Code,  340, subd. (d) [same].) The City filed a notice of determination on November 2, 2004.

The revised Housing Element describes several projects that already have been approved by the Department, and for which permit applications either have been approved or filed with the department of building inspection. One such project is the Better Neighborhoods Program, a program currently planned for three pilot neighborhoods to link land use and transportation development so that each element supports the other. The Housing Element identifies areas for potential housing development, and it includes specific policies and implementation strategies to increase building densities, especially in areas well served by transit, and to advocate reducing or removing minimum parking requirements in order to increase the land available for housing development. The Housing Element also includes a list of future actions to implement the elements objectives and policies.

SFLN filed a petition for writ of mandate with the trial court challenging the Citys decision to adopt the Housing Element without preparing and considering an EIR. The petition sought to vacate and set aside the Citys decision to approve the Housing Element and to order the City to prepare and consider an EIR.

The trial court denied the petition on the grounds that the 2004 Housing Element did not vary greatly from the 1990 Residence Element, and that SFLN had not provided sufficient evidence to support a fair argument that the revised Housing Element might significantly affect the environment. SFLN timely appealed the subsequent judgment.

II.
Discussion

A.     General Legal Principles and Standard of Review.

A government agency shall prepare an EIR on any proposed project that may have a significant effect on the environment. ( 21100, subd. (a); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927.) The purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment. ( 21061; see also Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354.) The amendment of an element of a general plan is considered a project for purposes of the statute. (Cal. Code Regs., tit. 14,  15378, subd. (a)(1);[3] see also Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 202; Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 985; City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 526, 534.)

A significant effect on the environment is defined as a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project. (Guidelines,  15382.)  If there is a possibility that the project may have a significant environmental effect, the agency must conduct an initial threshold study. [Citation.] If the initial study reveals that the project will not have such effect, the lead agency may complete a negative declaration briefly describing the reasons supporting this determination. [Citations.] However, if the project may have a significant effect on the environment, an EIR must be prepared. [Citations.] (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 304-305; see also Guidelines,  15002, subd. (k)(1)-(2), 15063, subd. (a), 15365.) The initial study is designed to inform the choice between a negative declaration and an environmental impact report, as well as eliminate unnecessary EIRs. (Guidelines,  15063, subd. (c)(1), (6).) The initial study must include a description of the project. The study must also [p]rovide documentation of the factual basis for the finding in a Negative Declaration that a project will not have a significant effect on the environment.  (City of Redlands v. County of San Bernardino, (2002) 96 Cal.App.4th 398, 406, fns. omitted.)

Absent substantial evidence of any significant environmental impact, the agency shall adopt a negative declaration. ( 21080, subd. (c); City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 405.) A negative declaration is a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental report. ( 21064; see also Guidelines,  15371.) [S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. ( 21080, subd. (e)(1); see also Guidelines,  15384, subd. (b); City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 410.) Substantial evidence means 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. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. (Guidelines,  15384, subd. (a).) Substantial evidence does not include argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment. ( 21080, subd. (e)(2); see also Guidelines,  15064, subd. (f)(5), 15385, subd. (a).)

In reviewing an agencys decision to adopt a negative declaration, a trial court applies the fair argument test. Under this test, the agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment. . . . If such evidence exists, the court must set aside the agencys decision to adopt a negative declaration as an abuse of discretion in failing to proceed in a manner as required by law. (City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 405, fns. omitted; see also  21082.2, subd. (d).) The act or decision we review here is not the decision that the project may or may not have a significant environmental impact, but the decision that it can or cannot be fairly argued that the project may have a significant environmental impact. (City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 541.) The fair argument standard is a low threshold test for requiring the preparation of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agencys determination. Review is de novo, with a preference for resolving doubts in favor of environmental review. [Citations.] (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th 903 at p. 928.)

B.     CEQA Favors Early Review of Environmental Issues.

We agree with SFLN that the City should not be excused from conducting an EIR simply because the Housing Element is a policy document, with more specific developments to follow. The general plan is atop the hierarchy of local government law regulating land use. It has been aptly analogized to a constitution for all future developments. [Citation.] (Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1183.) A general plan embodies an agencys fundamental policy decisions to guide virtually all future growth and development. (City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 409.) This was acknowledged in the initial study here, which noted that the revised Housing Element would be used to frame the discussion of future Area Plans, rezoning proposals and specific development proposals, in the same way that all of the elements of the General Plan provide a framework for decision-making about the future of the City.

Even if a general plan amendment is treated merely as a first phase with later developments having separate approvals and environmental assessments, it is apparent that an evaluation of a first phase-general plan amendment must necessarily include a consideration of the larger project, i.e., the future development permitted by the amendment. Only then can the ultimate effect of the amendment upon the physical environment be addressed. (Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 194 [EIR required for general plan amendment, even though amendment required a special use permit and additional EIR before any specific development could take place].) CEQA mandates that environmental considerations not become submerged by chopping a large project into many little oneseach with a minimal potential impact on the environmentwhich cumulatively may have disastrous consequences. (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284.) Generally, in cases involving general plan amendments, the local agency has either prepared an EIR or was required to do so. [Citations.][4] (Christward Ministry, supra, at pp. 193-194.)

Because San Franciscos population will increase whether or not the City plans for it, the City argues, the Housing Element will not cause any population growth, as SFLN claims. The City argues that determinations about its housing needs are statutorily exempt from environmental review under Government Code section 65584, subdivision (f), which provides that determinations made by the states Department of Housing and Community Development, ABAG, or the City about existing and projected housing needs are exempt from CEQA. (See also Gov. Code,  65582, subds. (b) & (c).) Just because the specific determinations about existing and projected housing needs are exempt, that does not necessarily mean that environmental review of the planning efforts to accommodate those needs also are exempt. We agree with the general proposition that the Housing Element is not designed to induce population growth, and that this case is therefore distinguishable from those cited by SFLN, where approvals of projects clearly would result in population growth in previously undeveloped areas. (Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333, 1345, 1347-1348 [approval of 21-house project in area with limited services]; Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 352, 371 [development of airport industrial area expected to add nearly 10,000 employees to area].) It does not follow, however, that planning for growth in a major urban area automatically should be exempt from environmental review.

The City argues that it would be entirely speculative to guess where any new area plans, zoning changes, or development might occur in the future as a result of the revised Housing Element. The Guidelines recognize that an EIR on an amendment to a general plan may lack specificity, and indicate that it should thus focus on any foreseeable secondary effects on the environment. (Guidelines,  15146, subd. (b); see also Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at p. 195 [difficulty in assessing environmental impact of general plan affects specificity of, not requirement to conduct, EIR].) The City also suggests that it is excused from conducting an EIR because any developments that occur under the revised Housing Element would necessarily require their own environmental review. Again, the Guidelines recognize that the EIR need not be as detailed as an EIR on the specific construction projects that might follow. (Guidelines,  15146, subd. (b), italics added; City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 412 [environmental study of general plan will not have same degree of specificity as for specific construction project]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 625 [environmental studies on general plan amendments usually general in nature].) In other words, just because future EIRs may be conducted, that does not automatically excuse the City from conducting an EIR now.

The Citys reliance on Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556 (Pala Band), which did not involve the amendment of a general plan, is misplaced. In that case, San Diego County designated potential landfill sites as  tentatively reserved  when it adopted an integrated waste management plan pursuant to the Integrated Waste Management Act of 1989 ( 40000 et seq.) (Waste Act). (Pala Band at pp. 560, 566, 575.) The court noted that the  tentatively reserved  designation did not make it reasonably foreseeable that any development would actually occur. (Id. at pp. 575-576.) The court upheld a negative declaration, and held that the county was not required to conduct an EIR because to do so would be premature as any analysis of potential environmental impacts would be wholly speculative. (Id. at p. 576.)

The City claims that it would likewise be premature to evaluate any potential environmental effects of the Housing Element because any such effects would be speculative. The Citys actions in amending the Housing Element, however, are far different from the actions taken by the county in Pala Band. There, the county designated 10 proposed landfill sites as  tentatively reserved  pursuant to specific provisions of the Waste Act. (Pala Band, supra, 68 Cal.App.4th at p. 575; see also  41710.) The court concluded that it was not reasonably foreseeable that any of the sites would actually be developed, because a  tentatively reserved  designation under the Waste Act could be made before an actual commitment to develop a specific landfill was made. (Pala Band at pp. 575-576.) In order to actually develop a landsite, the county would be required to take additional steps under the Waste Act, and environmental review could be undertaken when a specific site was proposed. (Id. at pp. 576-578.)

Here, by contrast, the Housing Element identifies specific housing goals and implementing strategies. As the court recognized in City of Santa Ana v. City of Garden Grove, supra, 100 Cal.App.3d at page 532, general plans now embody fundamental land use decisions that guide the future growth and development of cities and counties. The adoption or amendment of general plans perforce have a potential for resulting in ultimate physical changes in the environment and were properly included in [the Guidelines] as projects subject to CEQA. (Italics added; see also  21080, subd. (a); Guidelines,  15378, subd. (a)(1).) CEQA and its guidelines focus on the ultimate impact of a project, not on whether the project is tangible or intangible. (City of Livermore v. Local Agency Formation Com., supra, 184 Cal.App.3d at p. 539 [ordering preparation of EIR where county amended sphere of influence guidelines].)

The City also relies on Atherton v. Board of Supervisors (1983) 146 Cal.App.3d 346, 351, for the proposition that no purpose can be served by requiring an EIR [that forces the agency] to engage in sheer speculation as to future environmental consequences. In fact, the agency in Atherton actually completed an EIR in connection with an amendment to the transportation element of a general plan. (Id. at p. 349.) The court upheld a challenge to the adequacy of the EIR, finding that the degree of specificity in the EIR was appropriate for the conceptual nature of the amendment. (Id. at pp. 350-351.)

Because the Housing Element is not linked to any specific plan, legislation, or development, the City argues, the cases cited by SFLN are distinguishable as they involve specific rezoning or development. (Bozung v. Local Agency Formation Com., supra, 13 Cal.3d at p. 281 [annexation of agricultural land proposed to be used for development]; Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at p. 190 [general plan amendment authorized potential new use at specific landfill site]; City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 235, 246 [rezoning that would permit development near wetlands]; Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 156-157 [general plan amendment in connection with proposed shopping center].) Although it may be technically true that the Housing Element is not linked to any specific rezoning, ordinance changes, or future development,[5] as the City emphasizes, it is not a vague policy document, completely unconnected to future development or potential physical changes to the environment. The Housing Element identifies areas for potential development, encourages development in neighborhood commercial areas, promotes the construction of well-designed housing that enhances existing neighborhood character, [s]trongly encourage[s] housing project sponsors to take full advantage of allowable building densities, and advocates reducing or removing minimum parking requirements in order to increase the land available for housing development. While no specific developments are connected with these policies, given the expected population growth and the number of construction projects already underway, the possibility of future development is not merely theoretical. (Cf. Pala Band, supra, 68 Cal.App.4th at pp.575-576.) The initial study recognizes that the updated Housing Element is one component of a comprehensive planning effort called the Citywide Action Plan (CAP), and that the Housing Element was updated to provide a policy basis for more specific planning efforts, such as Better Neighborhoods Program, the Eastern Neighborhoods Community Plans for the Mission District, Bayview, Showplace Square/Potrero Hill, and the Downtown Neighborhoods, such as the C-3-O District and Rincon Hill district. (Italics added.)

Moreover, consistent with the mandate of Government Code section 65583, subdivision (c), that a housing element contain a five-year schedule of actions that the City is undertaking or plans to undertake to implement the element, the Housing Element includes an appendix titled preliminary work program for implementing the housing element that lists various [i]mplementation [a]ction[s] for the elements objectives and policies, including beginning a Geary Boulevard Better Neighborhood program.[6] (Italics added; see also Hoffmaster v. City of San Diego (1997) 55 Cal.App.4th 1098, 1108 [housing element shall include schedule of actions].) The planning commission resolution adopting the Housing Element likewise stressed that the Housing Element contained an action program to implement the policies and achieve the goals and objectives of the Housing Element. In other words, the City anticipates future action based on the Housing Element. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 794 [general plans have  potential for resulting in ultimate physical changes to environment ].) In short, an EIR would not be premature.

C.     EIR Required Only For Changes To General Plan.

As the City correctly emphasizes, we must determine whether there were any changes to the Housing Element that were significant enough to warrant conducting an EIR. [W]hen a proposed amendment to a general plan is the subject of an initial study, in most cases the agency will not be required to assess the environmental effects of the entire plan or preexisting land use designations. Instead, the question is the potential impact on the existing environment of changes in the plan which are embodied in the amendment. [Citations.][7] (Black Property Owners Assn. v. City of Berkeley, supra, 22 Cal.App.4th at p. 985.)

In Black Property Owners, the City of Berkeley revised its housing element to include the possible construction of 747 additional housing units over 5 years. (Black Property Owners Assn. v. City of Berkeley, supra, 22 Cal.App.4th at p. 978.) Although no party disputed an initial studys conclusion that the new housing construction would have positive environmental effects, a property owners association challenged the adoption of the housing element revision, alleging that the city should have been required to prepare an EIR on the adverse consequences of its housing policies in general. (Id. at pp. 978, 985 & fn. 7.) The appellate court held that because no changes were proposed to the citys housing-related ordinances, CEQA did not require any assessment of the ordinances environmental effects. (Id. at p. 985.) Further, a rent control ordinance that was ratified and acknowledged in the housing element update was exempt from CEQA. (Id. at p. 986.) To require an EIR on the policies embodied in the rent control ordinance, which was not subject to CEQA when it was enacted 13 years ago by the voters of [Berkeley], and which [Berkeley] has taken no action to change, would not further the statutory purpose of CEQA. (Ibid.)

We disagree with SFLN insofar as it argues that any amendment of the Housing Element necessarily requires an EIR to evaluate each of the elements policies, or that a review of the entire Housing Element is necessary. Again, Government Code section 65588, subdivision (b) requires that a housing element be updated every five years. In doing so, local governments may simply ratif[y] and acknowledge[] previously adopted ordinances and policies, and evaluating policies left unchanged would not further the purpose of CEQA. (Black Property Owners Assn. v. City of Berkeley, supra, 22 Cal.App.4th at p. 986; see also Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at p. 189 [no environmental evaluation necessary based on land use designation unchanged by amendment to general plan]; 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2006)  13.12, p. 638.) Indeed, several Housing Element policies incorporated no text change whatsoever from the 1990 Residence Element, and no purpose would be served in conducting environmental review on policies that were evaluated before the adoption of the 1990 Residence Element. The City need only conduct an EIR on any potential effects to the existing environment that may result from changes in the general plan which are embodied in the amended element. (Black Property Owners Assn. v. City of Berkeley, supra, 22 Cal.App.4th at p. 985; Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at pp. 186-187.)

SFLN relies on cases where courts stressed that when an agency reviews a new project or change to a general plan, it must evaluate the effect of the project or amendment to the existing environment. For example, in Environmental Planning & Information Council v. County of El Dorado, supra, 131 Cal.App.3d at pages 352-353, the El Dorado County Board of Supervisors certified EIRs prepared to evaluate two area plans that were amendments to the boards general plan. The EIRs compared the proposed plans with the existing general plan, which was misleading because it made it appear as if the population capacities of the areas would decrease under the plans. (Id. at pp. 355, 357-358.) In fact, the existing populations were so small that the amendments actually called for substantial increases in population in each area, and the EIRs thus did not evaluate the impacts of the proposed plans on the environment in its then-current state. (Id. at p. 358.) It makes sense that when an agency considers a change to a general plan, it should evaluate how that change may affect the existing environment, not how the amendment compares with the previous general plan.

Here, by contrast, it does not make sense to evaluate policies from the 1990 Residence Element that were left unmodified, even if the physical environment in San Francisco has changed since 1990. This case is distinguishable from other cases SFLN relies on to support its argument that the entire Housing Element should be subject to environmental review, as the courts in those cases stressed that when evaluating new plans or changes to general plans, agencies must focus on the possible effect to the existing environment. (Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at pp. 186-187 [agency must assess effect of amendment to general plan on existing physical environment, not simply compare proposed amendment and existing general plan]; Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 697, 711 petn. for review pending, petn. filed May 24, 2007, S152886 [EIR improperly compared proposed project with theoretical construction permitted by existing zoning, rather than with actual existing vacant lot].)[8]

With these general legal principles in mind, we now consider whether an EIR is required here.

D.    Housing Element Contains Changes That Necessitate an EIR.

The City relies on Black Property Owners, supra, 22 Cal.App.4th 974 when it states that it did not analyze the effects of the policies and objectives in the 2004 Housing Element that remain consistent with those policies and objectives contained in the 1990 Resident Element and other elements of the General Plan. It stresses that any changes to the Housing Element were so minor in scope that a full environmental review was unnecessary. SFLN argues that unlike in Black Property Owners, the Housing Element here was significantly modified and calls for a broad range of future development, necessitating environmental review. We agree with SFLN that the Housing Element contains changes, that some of those changes are not minor (as the City argues), and that there is substantial evidence to support a fair argument those changes may have a significant impact on the environment.

For example, policy 11.9 of the Housing Element now provides that densities and parking standards should be set at levels that promote the Citys overall housing objectives while respecting neighborhood scale and character; the Residence Element policy was to set allowable densities at levels that will promote compatibility with prevailing neighborhood scale and character. (Italics added.) A Residence Element policy to adopt specific zoning districts that would set density categories has been eliminated from the Housing Element.

Other Housing Element policies make more significant changes. Policy 11.8, a new policy, provides: Strongly encourage housing project sponsors to take full advantage of allowable building densities in their housing developments while remaining consistent with neighborhood character. Its explanatory text provides that the Department should strongly support projects that creatively address residential parking and open space requirements, resulting in higher densities with a full range of unit sizes. The Department will study the impacts of reduced parking and private open space provisions and will consider revising the Planning Code accordingly. With respect to neighborhood character, new policy 11.1 is to [u]se new housing development as a means to enhance neighborhood vitality and diversity. Its interpretive text states that [m]inimum density requirements and maximum parking standards should be used to encourage a mix of unit sizes in areas well served by transit and neighborhood retail. Whereas a previous Residence Element policy was to [p]romote construction of well designed housing that conserves existing neighborhood character, policy 11.5 of the Housing Element now [p]romote[s] the construction of well-designed housing that enhances existing neighborhood character. (Italics added.)

The 1990 Residence Element contained a policy to [r]elate land use controls to the appropriate scale for new and existing residential areas. The interpretive text stated that zoning envelopes should be tailored to the prevailing built pattern to maintain the low density character [of single- and two-family neighborhoods]. One stated objective of the policy was to allow some expansion of height and depth controls in one- and two-family areas to accommodate contemporary living space needs and still be compatible with the neighborhood scale. Modified policy 11.6 of the Housing Element now states: Employ flexible land use controls in residential areas that can regulate inappropriately sized development in new neighborhoods, in downtown areas and in other areas through a Better Neighborhoods type planning process while maximizing the opportunity for housing near transit. Its implementation action states: The City will continue to promote increased residential densities in areas well served by transit and neighborhood compatible development with the support and input from local neighborhoods.

New policy 1.7 is to [e]ncourage and support the construction of quality, new family housing. Finally, although policy 1.6, to [c]reate incentives for the inclusion of housing, particularly permanently affordable housing, in new commercial development projects, is almost identical to a policy in the 1990 Residence Element, an implementation provision now calls for reviewing the possibility of removing parking and density requirements as incentives.

The City argues that for purposes of CEQA, there was no change to the Citys policy of increasing density while maintaining neighborhood character that was significant. We disagree. Taken together, the changes to the Housing Element cited above reflect a shift away from preserving existing housing density and a movement toward allowing denser housing development, and decreased off-street parking, which in turn could lead to increased traffic congestion, air pollution, and noise, as well as a change in the aesthetic quality of City neighborhoods. (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at pp. 936-937 [CEQA addresses enjoyment of aesthetic qualities].)[9]

We find City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th 398 instructive. There, a county board of supervisors adopted general plan amendments relating to the countys sphere of influence over future land use planning and development. (Id. at pp. 403-404.) The trial court disagreed with the countys characterization of the amendments as mere clarifications of existing policy. (Id. at p. 404.) The appellate court affirmed the issuance of a writ of mandate to set aside the amendments, noting that the county had replaced mandatory language with more permissive or discretionary language, that the amendments granted the county more discretion in land use matters relating to unincorporated territory, and that the amendments made substantive changes to the countys policies and procedures. (Id. at pp. 406-407.) In fact, the difference in policies before and after the amendments, standing alone, constituted substantial evidence of a fair argument that the amendments could have a significant effect on the environment. (Id. at p. 414.)

Similarly, here, the Housing Element does more than simply clarify or affirm existing policies with respect to housing density. It now encourage[s] developers to take full advantage of allowable building densities, and stresses the enhancement of neighborhood character instead of conservation of neighborhood character. Although we are sympathetic to the Citys argument that this case is distinguishable because the amendments to the Housing Element are not as  drastic  as those in City of Redlands, supra, 96 Cal.App.4th at page 414, it does not follow that the amendments will not lead to changes to the physical environment. In fact, any future housing promoters could argue that a high density development was compatible with the revised Housing Element. Not only does CEQA apply to revisions or amendments to an agencys general plan, but CEQA reaches beyond the mere changes in the language in the agencys policy to the ultimate consequences of such changes to the physical environment. (Id. at p. 409.)

Moreover, the City fails to distinguish City of Redlands in another important respect. The court found that the initial study in City of Redlands was inadequate because it fail[ed] to provide sufficient evidence or analysis of the potential environmental effects of the [general plan] amendments. (96 Cal.App.4th at p. 408.) Instead, for each environmental factor, the county simply stated that no changes were proposed for any goals, policies, or action items, and that the proposed amendments were not expected to result in any significant change to the environment. (Ibid.) The court concluded that the initial study was an impermissible attempt to evade environmental review by failing to address the consequences of the revisions to its policy and procedures, and that the countys efforts were  a token observance of regulatory requirements.  (Id. at pp. 408-409.)

We conclude that the City here likewise failed to adequately address in the initial study the consequences of the revisions to the Housing Element. The initial study repeatedly emphasizes that the Housing Element alone will not produce new housing, and that environmental review will be deferred until any specific development, rezoning, planning code revision, or area plan is proposed. The same theme is repeated under each of the environmental factors considered in the initial study, with the City concluding that it would be premature to analyze any possible environmental effects of the proposed amendments. For several of the environmental factors, the City simply includes the following conclusion, with slight variations: [T]he proposed new policies of the Housing Element would encourage the provision of additional housing in the City. However, at the policy level, it would be speculative to estimate the level and location of new residents that would result from their adoption. Again, the amount of new housing cited in the Data Needs and Analysis section of the revision represents the Citys share of housing calculated by ABAG, and is not a proposed new policy or stated goal of the Housing Element. Thus, while [various] effects of the proposed revisions cannot be accurately predicted, future plans, rezoning and specific development proposals that arise out of the Citys comprehensive effort to encourage more housing could lead to increased [various] impacts, and these would be analyzed and reported in the environmental documents that would be prepared for them.

As we explained above, however, the City may not defer analysis of general plan amendments simply because more specific proposals may come later. CEQA advances a policy of requiring an agency to evaluate the environmental effects of a project at the earliest possible stage in the planning process. We conclude that, by failing to accurately describe the agency action and by deferring full environmental assessment of the consequences of such action, the [City] has failed to comply with CEQAs policy and requirements. (City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 410, fn. omitted.) By simply indicating that the City would defer environmental review until specific developments are proposed, the City failed to provide sufficient information to determine whether significant environmental impacts may occur. (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo, supra, 172 Cal.App.3d at p. 171 [initial study far too conclusionary and inadequate for failure to reveal what evidence, if any, was relied on in reaching conclusions].)

We likewise agree with SFLN that the City failed to adequately analyze the entire project for purposes of CEQA. ( 21100, subd. (a).) The initial study must consider [a]ll phases of project planning, implementation, and operation. (Guidelines,  15063, subd. (a)(1).) Here, however, the City analyzed only new policies that were added to the Housing Element. The City did not analyze, for example, the potential environmental effects of eliminating the policy of increasing the housing supply without overcrowding or adversely affecting the prevailing character of existing neighborhoods. (City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at p. 407 [general plan amendments eliminated provisions containing various requirements or limitations].) The City likewise did not analyze the effect of eliminating a Residence Element policy to adopt specific zoning districts that would set density categories. Moreover, the initial study did not analyze policies that were modified, such as the policy that now promotes construction of housing that enhances rather than conserves neighborhood character. (LighthouseFieldBeach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1200 [initial study inadequate because it failed to consider or assess effect of revisions of off-leash dog policy].)

As in City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at page 410, we conclude that because there was substantial evidence of a significant environmental impact, an EIR (as opposed to a revised initial study) is appropriate here. In fact, we may discern reasonable assumptions of the Housing Elements impact simply from reviewing the language of the amendments themselves, because the amendments now call for possibly removing parking and density requirements as incentives to developers, promoting the construction of housing that enhances (as opposed to conserves) neighborhood character, supporting projects that result in higher densities, and studying the impacts of reduced parking and private open space provisions. (Id. at p. 414.) In short, the amendments do more than simply clarify existing policies. (Id. at p. 407.)

Moreover, SFLN provided substantial evidence to support a fair argument that the Housing Element amendments may have a significant impact on the environment. It relies primarily on a 22-page letter (with attachments) by David Golick, a planning consultant. Golick concluded that the Housing Element contains policies encouraging substantial high-density housing development, which in turn could cause a number of potentially significant effects upon visual quality/neighborhood character, transportation, land use and utilities/public services in San Francisco. For example, he wrote that the revisions could lead to high-density, bulky, potentially 50-foot tall buildings in neighborhood commercial areas and along transit corridors throughout the City [which] could cause myriad environmental effects, including incompatibility with neighborhood character, and a transformation of San Franciscos unique neighborhoods into high-walled canyons.

The City argues that SFLNs evidence does not amount to substantial evidence, because it is speculative. But the City again falls back on its argument that the Housing Element lacks any specific development proposal or zoning change. The City chides SFLN for failing to point to any factual evidence that anyone, anywhere in the City, is proposing specific developments with taller buildings, or residential units above commercial structures. But it is beyond dispute that specific developments will be proposed in the future, and developers would be able to argue that taller buildings are consistent with the Citys general plan. Likewise, the proponent of any new zoning ordinance that calls for denser developments would be able to argue that the ordinance was consistent with the Housing Element. (E.g., S.F. Planning Code,  101.1, subd. (d) [City may not adopt zoning ordinance or development agreement authorized by Government Code section 65865 unless development or ordinance is consistent with general plan].) Moreover, because the initial study lacked any analysis of the potential effects of the revised Housing Element, it is understandable that the evidence cited by SFLN also lacked specificity. As in City of Redlands v. County of Bernardino, supra, 96 Cal.App.4th at page 414, we find it ironic that the City complains about SFLNs lack of evidence, considering it initially set the stage by failing to gather facts and evidence in conducting its initial study of the amendments potential environmental effects.

CEQA places the burden of environmental investigation on government rather than the public. If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences. (Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at p. 311 [inadequate initial study of proposed private sewage treatment plant]; see also Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at p. 197 [citys position there was no fair argument of significant impact to environment based, in part, on failure to complete adequate initial study]; County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544, 1597.) Here, SFLN was permitted to draw reasonable inferences about the possible environmental effects of the amendments, based on facts and reasonable assumptions from those facts. (City of Redlands v. County of San Bernardino, supra, 96 Cal.App.4th at pp. 410-411 [no requirement that expert testimony support fair argument that project may have significant effect on the environment].)

Because there was substantial evidence in the record to support a fair argument that the amendments to the Housing Element may have a significant impact on the environment, the City was required to prepare an EIR, and the trial court erred in denying SFLNs petition for a writ of mandate.

III.
Disposition

The judgment is reversed, and the trial court is ordered 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. Appellant shall recover its costs on appeal.

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SEPULVEDA, J.

We concur:

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REARDON, ACTING P. J.

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RIVERA, J.

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[1] All statutory references are to the Public Resources Code unless otherwise specified.

[2] SFLN is an unincorporated association that includes several neighborhood organizations: the Cow Hollow Association, the Francisco Heights Civic Association, the Greater West Portal Neighborhood Association, the Jordan Park Improvement Association, the Lakeshore Acres Improvement Club, the Laurel Heights Improvement Association of San Francisco, Inc., the Marina-Cow Hollow Neighbors & Merchants, the Miraloma Park Improvement Club, the Pacific Heights Residents Association, the Presidio Heights Association of Neighbors, the Russian Hill Neighbors, the St. Francis Homes Association, the Sunset-Parkside Education and Action Committee, Inc., and the Westwood Highlands Association.

[3] The Guidelines for the Implementation of the California Environmental Quality Act, hereafter Guidelines, are found in California Code of Regulations, title 14, section 15000 et seq. All subsequent regulatory citations to the Guidelines are to title 14 of the Code of Regulations. [C]ourts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA. (LaurelHeights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)

[4] Citing a May 6, 2004, Department memorandum, the City claims that amendments to a Housing Element are often analyzed properly in a negative declaration, as at least five other Bay Area counties and sixteen other Bay Area cities issued negative declarations for their housing elements (on some unspecified dates). The cited memorandum noted that the Department conducted a limited survey of other Bay Area jurisdictions and found that the use of a negative declaration for a housing element update is not in any way unusual. The relevant housing elements apparently are not in the record, as the City does not cite to them. We therefore do not know whether the other housing elements contained any material changes, or whether there were any legal challenges to the adoption of the negative declarations.

[5] For this reason, Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, is less helpful than SFLN suggests. In LaurelHeights, the court concluded that an EIR must analyze the effects of future expansion if it is a reasonably foreseeable consequence of the initial project. (Id. at p. 396.) LaurelHeights did not involve the amendment of a general plan, but instead addressed the sufficiency of an EIR that was prepared in connection with the proposed relocation of the School of Pharmacy at the University of California, San Francisco (UCSF). (Id. at p. 387.) It was undisputed that UCSF intended to expand its use of a specific facility once space became available, and the general type of future use was therefore reasonably foreseeable. (Id. at p. 396.)

[6] Citing Northwood Homes, Inc. v. Town of Moraga (1989) 216 Cal.App.3d 1197, 1204, the City attempts to downplay the importance of the Housing Element, noting that [t]he housing needs identified in the general plan are simply goals, not mandated acts. Northwood Homes is inapposite. There, the court rejected appellants argument that an open space ordinance which limited the density of development on certain lands was invalid because it would cause Moraga to fall short of the housing needs identified in its general plan. (Id. at pp. 1200, 1203-1204.) The court acknowledged that municipalities are required to adopt housing elements that analyze housing needs and schedule development programs; however, it held that appellant failed to meet its burden to show that the ordinance at issue would have a significant effect on the regional housing supply. (Id. at pp. 1202-1204 & fn. 6, citing Gov. Code,  65583.)

[7] We disagree with SFLNs characterization of this passage of Black Property Owners as dicta. The court cited two cases where general plan amendments were passed in connection with a particular development project or land use designation, and concluded in the next sentence that a similar approach to the scope of the required environmental review is appropriate where a general plan amendment is required by statute. (Black Property Owners Assn. v. City of Berkeley, supra, 22 Cal.App.4th at p. 985.) The cited passage was essential to the courts decision.

[8]Meridian Ocean Systems, Inc. v. State Lands Com. (1990) 222 Cal.App.3d 153, 164-165, likewise does not support SFLNs argument that the entire Housing Element is subject to environmental review. The case did not involve the amendment of a general plan. Instead, it analyzed whether the State Lands Commission improperly ordered an EIR for certain geophysical research that previously had been statutorily exempt from environmental review. (Id. at pp. 160, 162-165.) The court addressed the invocation of an exception to a specific statutory exemption that is not at issue here. (Id. at pp. 164-165, 169.)

[9] This case is distinguishable from Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 592, where this court held that [t]he aesthetic difference between a four-story and a three-story building on a commercial lot on a major [urban] thoroughfare was not a significant environmental impact, even under the fair argument standard. Here, changing density requirements in San Francisco could theoretically affect a much larger area, and have a much larger impact, increasing noise, air pollution, and congestion.