In a lengthy opinion filed February 22, and belatedly ordered published on March 25, 2019, the First District Court of Appeal (Div. 1) affirmed the trial court’s judgment denying a petition for writ of mandate challenging the EIR for a mixed use business and residential project (the “5M Project”) on 4 acres in downtown San Francisco. South of Market Community Action Network v. City and County of San Francisco (Forest City California Residential Development, Inc., et al., Real Parties in Interest) (2019) ___ Cal.App.5th ___. The 5M Project includes a general plan amendment and development agreement, and would provide “office, retail, cultural, educational, and open-space uses …, primarily to support the region’s technology industry and provide spaces for co-working, media, arts, and small-scale urban manufacturing” on a site bounded by Mission, Fifth, Howard, and Sixth Streets. The project site is currently occupied by eight buildings with approximately 317,700 gross square feet (gsf) of office and commercial uses (including the Chronicle Building, which the project would renovate), and seven surface parking lots.

South of Market Community Action Network, Save Our SoMa, Friends of Boeddeker Park (“Plaintiffs”) filed a writ petition challenging the project based on numerous alleged EIR deficiencies. The trial court denied relief and the Court of Appeal affirmed.

Standard Of Review

In assessing the Plaintiffs’ challenges to the EIR’s content and analysis, the Court of Appeal recited and applied settled principles of judicial review, as well as the significant new “gloss” on those principles provided by the Supreme Court’s recent “Friant Ranch” case decision (my 12/28/18 post on which can be found here). An EIR is presumed adequate, with the challenger bearing the burden of proving otherwise. Under CEQA’s abuse of discretion standard, as the Supreme Court has recently explained, the “decisions have articulated a procedural/factual issues dichotomy” under which an agency abuses its discretion “by failing to proceed in the manner [required by] CEQA … or by reaching factual conclusions unsupported by substantial evidence.” (Quoting the Friant Ranch decision, Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512.) Procedural errors are reviewed de novo and scrupulously enforced, while substantive factual conclusions are reviewed for substantial evidence support and awarded greater deference. While this “procedural issues/factual issues” dichotomy has generally worked well for reviewing courts, the issue of an agency’s compliance with procedural requirements is not always clear, such as in the area of the adequacy of an EIR’s discussion of environmental impacts and whether it sufficiently facilitates informed agency decisionmaking and public participation. (Id. at 512-513.)

While an agency has “considerable discretion” to decide the manner in which an EIR discusses potentially significant effects, a reviewing court may determine the sufficiency of the discussion based on whether it contains “detail sufficient to enable to those who did not participate in [the EIR’s] preparation to understand and to consider meaningfully the issues raised by the proposed project” and this determination “is not solely a matter of discerning whether … substantial evidence … support[s] the agency’s factual conclusions.” (Id. at 515-516.) This inquiry generally presents a mixed question of law and fact reviewed de novo, but to the extent factual questions (e.g., choice of methodology for impact analysis) predominate, the substantial evidence standard of review applies. (Id. at 516.)

The sufficiency of an EIR’s analysis to allow decision makers to intelligently consider a project’s environmental consequences is reviewed in light of what is reasonably feasible; perfection is not required, and the courts look for “adequacy, completeness and a good faith effort at full disclosure.” Citing to and quoting from its decision in California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 262, the Court of Appeal stated the “overriding issue on review” to be “whether the [lead agency] reasonably and in good faith discussed” the project in the EIR in sufficient detail for “the public to discern … the analytic route the … agency traveled from evidence to action.” (Excess quotations omitted.)

Finally, there is no presumption that error is prejudicial; insubstantial and technical omissions are not grounds for relief; and prejudicial error occurs when the failure to include relevant information precludes informed decisionmaking and informed public participation. (Citing Neighbors For Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463-465.)

The Court Of Appeal’s Holdings

In applying the foregoing principles to reject Plaintiffs’ numerous assertions of EIR and CEQA defects, the Court of Appeal made the following holdings and determinations:

Project Description

  • The DEIR’s project description, reviewed by the Court de novo, was adequate as a matter of law. The DEIR described the 5M Project generally as a mixed-use project, and also described two project options – office and residential – with substantially the same overall gross square footage but with a varying mix of residential and office uses. Both schemes had similar massing and land use; retention, rehabilitation, and demolition of the same buildings; construction of new active ground floor space; and new buildings ranging from 195 to 470 feet in height. Each scheme’s impacts were evaluated independently, and each was described in detail in non-confusing fashion. Further, the DEIR’s impact analysis conservatively focused on the office scheme, which represented the largest development envelope, and presented sufficient detail to give the decisionmakers the option to approve either scheme. Per the Court: “[The EIR] carefully articulated two possible variations and fully disclosed the maximum possible scope of the project. The project description enhanced, rather than obscured, the information available to the public.”
  • Plaintiffs’ arguments that specific types of architectural renderings were needed for adequate analysis lacked merit; they failed to explain why the renderings provided in the EIR were inadequate, or why the additional renderings they desired were critical to assessing environmental impacts or for meaningful public participation.
  • The case law plaintiffs cited in support of their project description challenge was inapposite. Unlike County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, there were no fluctuating EIR project descriptions, nor was there a misleadingly minimized initial project description. Unlike Washoe Meadows Community v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277, in which the DEIR identified five very different alternatives as potential projects but no proposed project at all, the DEIR here, “by contrast, [contained a] … project description [that] clearly identified a mixed-use development project at a specific, defined location with two options for allocations of office and residential use.”
  • Nor was the FEIR defective for proposing a “revised” project that was a variation of the DEIR’s “preservation alternative.” Plaintiffs failed to identify any component of the revised project that was not addressed in the EIR or subject to public comment, and the CEQA “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.” (Citing and quoting County of Inyo, 71 Cal.App.3d at 199.) “The whole point of requiring evaluation of alternatives in the DEIR is to allow thoughtful consideration and public participation regarding other options that may be less harmful to the environment.” (Citing San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 695.) “CEQA does not handcuff decisionmakers[.]” (Quoting Dusek v. Redevelopment Agency (1985) 173 Cal.App.3d 1029, 1041.) Per the Court: “We do not conclude the project description is inadequate because the ultimate approval adopted characteristics of one of the proposed alternatives; that in fact, is one of the key purposes of the CEQA process.”

Cumulative Impacts

  • Under CEQA, an adequate cumulative impacts discussion may be based on either (1) a list of past, present, and probable future projects producing related or cumulative impacts, or (2) a summary of projections contained in relevant adopted planning documents that describe conditions contributing to the cumulative impact. Plaintiffs’ argument that the EIR improperly used an outdated 2012 project list that failed to reflect current development conditions failed; they did not cite to record evidence that showed it to be defective or misleading, or that the City ignored projects in the “pipeline,” and the record showed that the cumulative traffic analysis actually included the projects plaintiffs claimed it did not. The City had discretion to use the list-based methodology it did to analyze cumulative impacts, and to determine a reasonable cutoff date for which projects to include in it, and plaintiffs failed to show City’s decision to use the 2012 list was not supported by substantial evidence.
  • The City’s “study area” for future projects was not artificially constrained or unduly narrowed so as to exclude a portion of the affected setting. Plaintiffs failed to identify any closely related, foreseeable projects excluded from the cumulative impacts analysis, and the City was also entitled to rely on the density‑of-development calculations of its own experts and consultants in conducting the analysis.

Traffic And Circulation Impacts

  • The City’s selection of intersections to study for potentially significant impacts in the EIR was not artificially small, as Plaintiffs argued. The lead agency has discretion to select the geographic area impacted by a proposed development, and Plaintiffs failed to demonstrate City’s abuse of that discretion in selecting the 21 study intersections in the project site’s vicinity that it did. The DEIR’s detailed significance criteria and analytic methodology were not specifically challenged by Plaintiffs, and City chose the study intersections it did “because they would capture the relative change in levels of service that could be associated with the project” and it deemed “the study intersections … [to be] those most likely to accommodate project trips.” Similar considerations have been upheld under relevant case law as supporting the non-arbitrary selection of a traffic study area. (Citing City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 907-908.)
  • Plaintiffs’ general arguments and citations to general comments about bad traffic in the project vicinity were unavailing. Significantly, the Court held their “argument that adjacent intersections should have been included in the study area challenges the City’s method for conducting its traffic analysis, not the adequacy of its discussion of traffic impacts in the EIR.” (Citing Sierra Club, 6 Cal.5th at 514, and Long Beach, 176 Cal.App.4th at 898, for rule that deferential substantial evidence rule applies to such methodology challenges.)
  • Also, and in any event, the FEIR explained why additional intersections were not included, and notwithstanding Plaintiffs’ argument it would have been reasonably feasible for the City to include such intersections, it was not required by CEQA to do so. (Citing Sierra Club, 6 Cal.5th at 515, and Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 415, for principles that “adequacy, completeness and good-faith effort at full disclosure” are sufficient, agency may design its own EIR, and fact that further studies may be helpful does not make them necessary.)
  • The EIR’s failure to consider the Safer Market Street Plan (SMSP) was not an abuse of discretion. While an EIR must consider conditions present or reasonably foreseeable as of publication of the notice of preparation (NOP), the 5M Project’s NOP was published in January 2013, while the SMSP was approved 2-1/2 years later in June 2015. Plaintiffs did not cite any evidence that the SMSP was a “probable future project” when the NOP was published or that it would adversely affect traffic and circulation related to the 5M Project.
  • The record did not support Plaintiffs’ argument that the City improperly failed to consider certain traffic/transportation mitigation measures. The DEIR found both the office and residential project schemes would cause significant and unavoidable cumulative impacts at nine intersections, studied several feasible alternatives for reducing trip-generating uses, and ultimately the adopted revised project described in the FEIR reduced cumulative impacts at three intersections to a less-than-significant level, thus reducing the number of SAU intersections from 9 to 6 between the DEIR and FEIR. The EIR was not required to evaluate the “Community” and “Zero-Parking” alternatives recommended by Plaintiffs, only a range of reasonable alternatives that could feasibly accomplish most of the project’s basic objectives while avoiding or lessening one or more of its impacts. The City’s selection of alternatives was not shown to be “manifestly unreasonable” under the governing “rule of reason,” nor did plaintiffs show their recommended alternatives were feasible and adequate as capable of attaining most of the 5M Project’s basic objectives.

Wind Impacts

  • The Court of Appeal rejected Plaintiffs’ improper baseline, Code violation, and improper deferral of mitigation arguments directed to the EIR’s analysis of the project’s wind impacts; the arguments were waived for failure to raise the exact issues during the administrative process (e.g., Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535) and also failed on their merits. While the FEIR did discuss improvements in wind impacts under the revised, as compared to the originally proposed project, it also specifically compared the 5M Project’s wind impacts to existing conditions. City properly used a “hazard” rather than “comfort” criterion under its Planning Code as the significance threshold for wind impacts; plaintiffs did not assert the threshold was inappropriate and did not argue or show the City’s “no significant wind impact” conclusion was unsupported by substantial evidence. The City was not required to propose mitigation measures for effects not found to be significant.

Open Space

  • Plaintiffs’ “lack of adequate open space” argument, made in the face of the EIR’s response to comments noting that the 5M Project provides more open space than the City’s Planning Code requires, was unaccompanied by any explanation of how the alleged deficiencies in the open space provided would violate CEQA, and also lacked citation to supporting legal authority, and the Court thus rejected it. (Citing Cal. Rules of Ct., rule 8.204(a)(1)(B); Murphy v. Murphy (2008) 164 Cal.App.4th 376, 405-406.)

Shade And Shadow Impacts

  • The Court rejected plaintiffs’ arguments that the EIR failed to disclose and mitigate the 5M Project’s shade and shadow impacts on Boeddeker Park and Yerba Buena Gardens. “The EIR … clearly set forth specific information about the [project’s] shade and shadow impacts, and analyzed why they would not produce a significant environmental effect.” Plaintiffs failed to show the EIR’s discussion precluded public participation or informed decision making.
  • While the Planning Code and General Plan do discourage creating new shadows on parks, plazas, and open spaces, and the Planning Commission and Park Commission did jointly resolve to increase the shadow limit at Boeddeker Park, these provisions and actions involved policy restrictions, not CEQA thresholds, and City’s actions did not constitute CEQA violations.
  • Plaintiffs’ argument that shadow increases should have been analyzed in the context of Boeddeker Park as a “special and rare” Tenderloin resource also failed. The Court noted “plaintiffs do not cite any authority that sunlight on a park or open space, even in a dense urban area, constitutes a “rare or unique” resource for CEQA purposes” and it distinguished the cases they cited as inapposite and unhelpful to them. Ultimately, the DEIR found there would be no significant environmental impacts from new shadow or shade, and the City was thus not required to consider mitigation measures.

Inconsistency With Area Plans/Policies

  • The DEIR contained 36 pages of analysis comparing the 5M Project to various area plans and policies, and analyzed a “Code Compliant” alternative based on the development intensity that would be allowed without amending any existing zoning or planning restrictions. Plaintiffs’ arguments that the 5M Project is inconsistent with the East SoMa portion of the general plan and Draft Central SoMa Plan failed because the project is not in the East SoMa area and is not subject to the Draft Central SoMa Plan, which had not been approved at the time of the EIR and was thus not an “applicable” plan it was required to consider.
  • Plaintiffs’ complaint that the EIR makes the project appear consistent with surrounding zoning, even though it is not, lacked merit because “the EIR disclosed that the 5M Project would require amendments to the general plan, the rezoning of portions of the site, and modification of existing development standards. The DEIR described the existing land use, bulk and height requirements on the project site, and compared existing planning controls to those proposed as part of the project.” Per the Court: “Plaintiffs have not shown how this discussion was misleading or inhibited informed decisionmaking or public participation.” Other purported zoning, code and policy inconsistencies alleged by Plaintiffs were not raised in the administrative proceedings or trial court and were thus waived, or were not supported by reasoned argument and thus summarily rejected.

Statement Of Overriding Considerations

  • Plaintiffs’ arguments challenging the City’s statement of overriding considerations likewise failed because the City properly considered mitigation measures before adopting the statement, and plaintiffs failed to show it was not supported by substantial evidence.

Conclusion And Implications

This case had all the earmarks of one in which Plaintiffs threw every conceivable argument “against the wall” to see if anything would stick, and hoped that the Friant Ranch/Sierra Club case’s newly articulated standard of review for the adequacy of EIR analysis would carry the day for them on at least one of their arguments. It obviously did not. In fact, the Court of Appeal’s repeated citation of the Supreme Court’s recent decision, along with other governing authorities, demonstrates that it had little or no impact on the resolution of the particular EIR challenges brought here. Overall, that may be the most significant takeaway from this lengthy opinion.