San Francisco Tomorrow v. City & County of S.F. ( 2014 )

Filed 9/4/14 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SAN FRANCISCO TOMORROW et al.,
Plaintiffs and Appellants,
v.
CITY AND COUNTY OF SAN A137753
FRANCISCO et al.,
(City and County of San Francisco
Defendants and Respondents, Super. Ct. No. CPF11511439)
PARKMERCED INVESTORS
PROPERTIES, LLC., ORDER MODIFYING OPINION
Real Party in Interest and AND CERTIFYING OPINION FOR
Respondent. PARTIAL PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on August 14, 2014, was certified
for partial publication in the Official Reports. After the court’s review of requests under
California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it
is hereby ordered that part II.A. of the opinion should be published in the Official
Reports.
Date: ______________________ _______________________________
Kline, P.J.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III.
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Trial Court: San Francisco Superior Court
Trial Judge: Hon. Teri L. Jackson
Attorneys for Plaintiffs and Appellants: Law Offices of Stuart M. Flashman
Stuart M. Flashman
Attorneys for Amicus Curiae on behalf of Chatten-Brown & Carstens
Plaintiffs and Appellants: Jan Chatten-Brown
Josh Chatten-Brown
Attorneys for Defendants and Respondents: San Francisco City Attorney
City Attorney Dennis J. Herrera
Kate H. Stacy
Audrey Williams Pearson
Brian F. Crossman
Attorneys for Real Parties in Interest: Gibson Dunn & Crutcher
Daniel Kolkey
Jeffrey D. Dintzer
Matthew C. Wickersham
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Filed 8/14/14 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SAN FRANCISCO TOMORROW et al.,
Plaintiffs and Appellants,
v.
CITY AND COUNTY OF SAN
FRANCISCO et al.,
A137753
Defendants and Respondents;
PARKMERCED INVESTORS (City and County of San Francisco
PROPERTIES, LLC., Super. Ct. No. CPF11511439)
Real Party in Interest and
Respondent.
INTRODUCTION
Appellants San Francisco Tomorrow and Parkmerced Action Coalition (PMAC)
appeal the San Francisco Superior Court’s denial of appellants’ petition for writ of
mandate seeking to overturn the decision by respondents City and County of San
Francisco (City) and its Board of Supervisors (Board) approving the Parkmerced
Development Project (the project). The project involves the long-term redevelopment of
the privately owned, 152-acre Parkmerced Property by real party in interest Parkmerced
Investors Properties, LLC.
Appellants challenge the court’s denial of their writ petition contending: (1) The
Land Use Element (sometimes called the Urban Design Element) of the San Francisco
General Plan (General Plan) is inadequate for failing to include standards for population
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.A. through III.
1
density and building intensity. (Gov. Code, § 6302, subds. (a), (b).) (2) The project and
the various project approvals are inconsistent with the “priority policies” and other
policies of the General Plan. (3) The environmental impact report (EIR) and the findings
underlying the City’s approval of the project were inadequate under standards established
by the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et
seq.). (4) The court erred in sustaining a demurrer to appellant PMAC’s cause of action
for violation of its due process rights. (5) The court erred in including in the
administrative record, transcripts of proceedings before an advisory body that were not
before the Board when it certified the EIR and approved the project. We shall affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Project
The Parkmerced Project involves major modifications to Parkmerced, a 3,221 unit
residential rental complex on 152 acres. The site is located near Lake Merced, in the
southwest corner of San Francisco. It is surrounded by the Stonestown Galleria shopping
mall, San Francisco State University, two golf courses, and residential neighborhoods.
The original Parkmerced complex was built in the 1940s by MetLife as one of
eight large-scale developments created around the country to provide affordable middle-
income housing. The architect for Parkmerced was the New York City firm Leonard
Schultze & Associates and its design involved noted San Francisco architect Frederick H.
Meyer. The landscape plan was designed by famed San Francisco architect Thomas
Church, designer of the master plans for University of California Berkeley and Santa
Cruz Campuses, among other notable landscapes. Originally consisting of 192 acres and
3,483 residential units, significant portions of the site were sold-off to San Francisco
State University and to various private owners. The remaining complex, which is the
subject of the project and resulting CEQA review, consists of 152 acres and 3,221
residential units. Parkmerced Investors has owned the complex since October 2005. The
complex’s housing is currently divided between eleven 13-story towers containing 1,683
rental units and 170 2-story “townhouse” buildings containing 1,538 units. Over the
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course of 20 to 30 years, the project would demolish all townhouse units, build an equal
number of replacement units and add 5,679 units for a total of 8,900 units. Of the new
non-replacement units, some would be rental units, while others would be sold. Some of
the new units would be below-market-rate units, as required by City ordinance. The
remainder would be market-rate units.
As described, “The proposed Project is a long‐term (approximately 20‐30 years)
mixed‐use development program to comprehensively re‐plan and re‐develop the
approximately 116‐acre Site (152‐acres including streets). The Project proposes to
increase the residential density, provide new commercial and retail services, provide new
transit facilities, new parks and open space amenities and improve existing utilities and
stormwater management systems within the development Site. Of the existing 3,221
residential units on the Site, approximately 1,683 units located within the 11 existing
towers would remain and approximately 1,538 existing apartments would be demolished
and replaced in phases over the approximately 20 to 30‐year development period. As
provided in the proposed [d]evelopment [a]greement, all 1,538 new replacement units
would be subject to the San Francisco Rent Stabilization Ordinance and existing tenants
in the to‐be‐replaced existing apartment units would have rights to relocate into new
replacement units of equivalent size with the same number of bedrooms and bathrooms at
their existing rents. An additional 5,679 net new units would also be added to the Site for
a project total of 8,900 units. New buildings on the Site would range in height from 35
feet to 145 feet, and would not be taller than the existing towers, which will remain.
“Neighborhood‐serving retail and office space would also be constructed as part of
the proposed Project and concentrated on Crespi Drive, near the northeast part of the Site
and the light‐rail line. The proposed new neighborhood core would be located within
walking distance of all the residences within Parkmerced. In addition, small
neighborhood‐serving retail establishments would be constructed outside of the
neighborhood core, in proximity to residential units throughout the Site. A new
preschool/elementary school and daycare facility site, fitness center, and new open space
uses including athletic fields, walking and biking paths, a new farm, which the Sponsor
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proposes will be organic, and community gardens would also be provided on the Project
Site. Infrastructure improvements would include the installation of bioswale system to
retain and treat stormwater on‐site and renewable energy sources, such as wind turbines
and photovoltaic cells, which are detailed in the Sustainability Plan. Transportation
improvements would include the realignment of the Muni M‐Oceanview light‐rail line
through the Project Site, redesign and redevelopment of all public streets within the
Project Site to meet the City’s Better Streets design standards, provision of car‐share and
bike‐sharing stations throughout the Project Site, pedestrian safety and traffic
improvements to intersections adjacent to the Project Site, construction of new bicycle
paths, provision of a free shuttle service to Daly City BART and other items detailed in
the Transportation Plan.”
B. Project Approvals
In addition to an EIR, prepared pursuant to CEQA, project approval also required
amendments to the City’s General Plan, Zoning Map, and Planning Code (to add the
Parkmerced Special Use District [sometimes referred to as the SUD]), as well as approval
of a Local Coastal Zone Permit and the negotiated development agreement between the
City and real party (collectively Project Approvals).
Real party applied to the City for environmental review of the project in January
2008. In May 2009, the City issued a Notice of Preparation for the project EIR. The
Draft EIR (DEIR) was released for public review on May 12, 2010. A 60-day public
comment period followed. The City’s Historical Preservation Commission held a hearing
to receive input on the DEIR. The Comments and Responses document was released on
October 28, 2010, and informational meetings were held by the Planning Commission.
On February 10, 2011, the Planning Commission held a formal public hearing and voted
to certify the project’s Final EIR (FEIR) and to recommend that the Board of Supervisors
approve the project and related Project Approvals.
On March 1 and 2, 2011, appellants and others filed timely appeals with the Board
of Supervisors contesting certification of the FEIR. The Board heard the appeal on
March 29, 2011, and took public comment. After close of the public comment, the Board
4
voted to continue the item. Meanwhile, the Board’s Land Use and Economic
Development Committee (LUEDC) took additional public comment on the remaining
Project Approvals. The LUEDC held four hearings—on March 28, April 18, May 16,
and the morning of May 24, 2011. At the May 16 and May 24 meetings, the LUEDC
discussed and approved amendments to the approvals. At the end of the May 24 hearing,
the LUEDC forwarded the amended documents to the Board without recommendation.
On the afternoon of May 24, 2011, the Board of Supervisors held a hearing on the
continued EIR appeal and the Project Approvals. At the end of that meeting, the Board
denied the appeal, upheld certification of the EIR and approved the project. On June 6,
2011, the Board of Supervisors finalized the Project Approvals. The mayor signed the
approvals on June 10, 2011, and a Notice of Determination was filed that day.
C. The Petition for Writ of Mandate
Appellants filed their “Verified Petition for Peremptory Writ of Mandate and
Complaint for Injunctive and Declaratory Relief” on July 11, 2011. Disputes over the
content of the record followed and appellants moved to “Clarify the Extent of the
Administrative Record,” seeking to exclude certain hearings from the record. The court
granted in part and denied in part the motion, ordering hearings before the LUEDC and
the Historic Preservation Commission to be transcribed and included in the record and
excluding two hearings occurring after the Board’s certification of the EIR. The trial
court also granted real party’s demurrer (joined in by the City) to the seventh and eighth
causes of action of PMAC for declaratory relief and for violation of due process rights.
The operative pleading, the “Verified Third Amended Petition for Peremptory Writ of
Mandate,” was filed on April 6, 2012. Following a hearing on the merits of the petition,
the trial court took the matter under submission. It issued its order denying the petition
on all counts on December 14, 2012. Judgment was entered on January 16, 2013, and
this timely appeal followed.
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DISCUSSION
I. General Plan Adequacy
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. . . .’ (Gov.
Code, § 65300.) A general plan provides a ‘ “charter for future development” ’ and sets
forth a city or county’s fundamental policy decisions about such development.” (Friends
of Lagoon Valley v. City of Vacaville (2007) 154 Cal. App. 4th 807, 815 (Friends of
Lagoon Valley).)
“ ‘[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].’ ” (Fonseca v. City of
Gilroy (2007) 148 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.) “[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.” (Garat v. City of
6
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.)
Appellants attack the San Francisco General Plan itself, arguing the Urban Design
Element of the General Plan is inadequate for failing to include standards for population
density and building intensity as required by Government Code section 65302,
subdivision (a), which provides in pertinent part: “The [general] plan shall include the
following elements: [¶] (a) A land use element that designates the proposed general
distribution and general location and extent of the uses of the land . . . . The land use
element shall include a statement of the standards of population density and building
intensity recommended for the various districts and other territory covered by the
plan. . . .”
The trial court concluded that a reasonable person could conclude, as did the City,
that Table I-27 and Map I-2 in the General Plan’s Housing Element, and Maps 4 and 5 in
the Urban Design Element provide the information described in Government Code
section 65302, subdivision (a). We agree.
1. Population density. The terms “population density” and “building intensity”
are not defined by the statute. In Twain Harte Homeowners Assn. v. County of Tuolumne
(1982) 138 Cal. App. 3d 664 (Twain Harte), the court determined “the 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 and not to dwelling units per
acre, unless the basis for correlation between the measure of dwelling units per acre and
numbers of people is set forth explicitly in the plan.” (Id. at p. 699, fn. omitted.)
The Urban Design Element of the General Plan includes a Land Use Index. This
index includes land use maps and references to land use policies scattered through other
elements. Appellants acknowledge, as they must, that the actual layout of a general plan
is generally within the local agency’s discretion. (Gov. Code, § 65301; see Garat v. City
of Riverside, supra, 2 Cal. App. 4th 259, 296 [plan may be adopted in any format deemed
appropriate or convenient, including combining of elements, a single document or group
of documents relating to subjects or geographic segments of the planning area].) The
7
Land Use Index has a section labeled “Population Density and Building Intensity
Standards.” This section points to density and intensity standards in the commerce,
industry and housing elements, and various area plans. It also has a series of maps
depicting citywide guidelines for building height and building bulk, and which depict a
citywide commercial and industrial density plan expressing densities in terms of a FAR
(Floor Area Ratio), the ratio between gross floor area to lot area. However, the identified
“area plans” do not include the Parkmerced area.
The section of the Housing Element describing the existing housing stock contains
a Table (I-27, “Generalized Housing Densities Allowed by Zoning”) and corresponding
Map (I-2, “Generalized Housing Densities Allowed by Zoning”) that together provide an
adequate description of the population densities for the Parkmerced area. Table I-27 of
the Housing Element set forth five categories of housing density (low, moderately low,
medium, moderately high, and high) and specifies the types of zoning districts that relate
to each category. For each category, the Table states both the “average units per acre”
and the “population density,” in addition to describing the general locations where these
density levels may be found. Map I-2, on the following page, shows the locations of each
housing density category throughout the City. A narrative preceding the table and map
describes them: “Table I-27 offers a listing of the City’s zoning categories that permit
residential development, grouping these by generalized housing density levels. Map I-2
provides a generalized illustration of housing densities citywide.” The map identifies
portions of the Parkmerced site as “medium density,” corresponding to an average
population density of 124 persons per acre, and other portions as “high density”
corresponding to an average population density of 651 persons per acre. Accordingly,
the General Plan includes a statement of population density (numbers of people) for the
territory it covers. (See Twain Harte, supra, 138 Cal.App.3d at p. 699; see also Camp v.
Board of Supervisors (1981) 123 Cal. App. 3d 334, 350 [there must be a perceptible
connection between density standards and locations within the jurisdiction].)
Government Code section 65302, subdivision (a) does not require a general plan’s
population density statement be “prescriptive,” rather than “descriptive,” as appellants
8
suggest. Rather, that section requires a statement of recommended densities, not binding
or inflexible limits on density. (See Sequoyah Hills Homeowners Assn. v. City of
Oakland (1993) 23 Cal. App. 4th 704, 718, fn. 7 (Sequoyah) [map that is “ ‘largely
illustrative in nature’ ” is a standard of population density under Government Code
section 65302, subdivision (a), even though the City’s approvals may occasionally
deviate from details of the map].)
Moreover, respondents dispute appellants’ claim that Table I-27 only describes
existing densities. The averages in the table correspond to specific zoning designations
and general locations throughout the City, as also identified in the table. Therefore,
respondents maintain, geographic locations and the zoning designations throughout the
City also signal the generally recommended population density. Further, the Housing
Element contemplates that new housing will generally be constructed at densities similar
to the surrounding development. Therefore, Table I-27 and Map I-2 also project the
likely future densities throughout the City. (See Housing Element Part I, pp. 92-93
[discussion projecting future residential development on in-fill sites at lower densities in
neighborhoods characterized by single-family homes, and higher densities closer to
downtown and in the City’s mixed-use districts].) We conclude the General Plan
adequately states population densities.
2. Building intensity. Terming the General Plan building intensity standards
“marginally better” than its “population density” standards, appellants argue that the
Urban Design Element inclusion of a citywide map of maximum building heights, and its
map identifying building bulk standards are insufficient, as the standards do not contain
the usual measure of FIR (floor intensity ratios) and bulk limits are set only for parts of a
building exceeding a certain height.1
1
Policy 3.6 of the Urban Design Element states in pertinent part that “extremes in
bulk should be avoided by establishment of maximum horizontal dimensions for new
construction above the prevailing height of development in each area of the city. [¶] . . .
[¶] The guidelines for building bulk expressed in this Plan are intended to form an urban
design basis for such regulation. These guidelines favor relatively slender construction
above prevailing heights, but would not limit the horizontal dimensions of buildings
9
The Urban Design Element includes a map of the various permitted building
heights citywide and a separate map addressing building bulk. (Land Use Index, pp. 108-
109, Figures VI.4, “Urban Design Guidelines for Height of Buildings” and VI.5 “Urban
Design Guidelines for Bulk of Buildings Map.”) The bulk map establishes maximum
dimensions of buildings above specified heights. These height and size limitations help
define the envelope or “intensity” of buildings throughout the City. They include
standards for the Parkmerced site.
Building intensity for the site is further regulated through the project’s General
Plan amendment and SUD. Project approvals amend Height Map 4 to establish a
boundary around the Parkmerced site and replace existing height regulations with a
notation to “ ‘See Parkmerced Special Use District, Section 249.64 of the Planning Code
and Sectional Map HT13 of the Zoning Maps.’ ” The SUD, in turn, establishes building
height and bulk for the site through amendments to the applicable zoning height map and
a bulk table. The ordinance establishing the Parkmerced SUD also contained
amendments to the Planning Code identifying permitted uses in each of the newly
established Parkmerced classes of use districts, as well as prohibited uses in the SUD as a
whole.
The standards for building heights and the bulk limits for buildings above
specified heights are precisely the sorts of standards called for in Twain Harte, supra, 138
Cal.App.3d at page 699 (standards might include “restrictions such as height or size
limitations, restrictions on types of buildings or uses to be permitted within a designated
area”). The building intensity requirement of Government Code section 65302,
subdivision (a) was satisfied here.
below those heights. Generally speaking, the guidelines would not limit the total floor
space that could be built, but would help to shape it to avoid negative external effects. If
two or more towers are to be built on a single property, their total effect should be
considered and a significant separation should be required between them. The precise
form of the building or buildings would in large measure be left to the individual
developer and his architects under these guidelines.” (Policy 3.6, italics added.)
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3. Correlation of circulation element with changes in population density and
building intensity. Appellants suggest the General Plan is also deficient in that the
Transportation Element is not correlated with the Land Use Element, as required by
Government Code section 65302, subdivision (b). In a single paragraph in their opening
brief, appellants argue that without adequate building intensity standards, the General
Plan “cannot predict the increased transportation demand associated with future
development and adjust the circulation element accordingly.” As we have determined
building intensity standards were adequate, we reject this claim.
Furthermore, as recognized in Federation of Hillside & Canyon Assns. v. City of
Los Angeles, supra, 126 Cal.App.4th at page 1196, “the 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. [Citation.]”
As respondents point out, the Project Approvals reflect the City’s decision to limit
parking and roadway capacity in areas well served by transit. We do not second guess
such a policy choice.
II. Project Consistency with the General Plan
As is often the case, the standard of review and the degree of deference this court
is to apply to the decision of the City is determinative of many of the issues presented.
Appellants, joined by amici curiae Sierra Club and California Preservation Foundation,
contend that deference to City’s interpretation of the priority policies of the General Plan
was unwarranted, because the priority policies had been enacted via a citizen’s initiative,
Measure M, rather than authored by the City itself. Appellants and amici argue that the
initiative must be interpreted to effectuate the intent of the voters and that the City’s
11
intent and its interpretation of the meaning of the policies are irrelevant and entitled to
little, if any, deference.
Appellants and amici further maintain that the priority policies must be strictly
construed, as Measure M requires that the City make findings of consistency with those
priority policies for all future projects, and that the plain language of Measure M requires
a specific finding of consistency with each and every priority policy identified therein.
Consequently, appellants and amici assert that the consistency findings here were
inadequate, insofar as they were based on determinations that the project was generally
compatible with the priority policies or that “on balance” the project will further the
priority policies and not obstruct their attainment. We disagree.
A. Deference to the City’s Interpretation of the General Plan Priority Policies
As stated by the Sixth Appellate District in Pfeiffer v. City of Sunnyvale City
Council (2011) 200 Cal. App. 4th 1552, 1562-1563 (Pfeiffer): “Our evaluation of
appellants’ contention is governed by well established standards.” “ ‘ “ ‘An action,
program, or project is consistent with the general plan if, considering all its aspects, it
will further the objectives and policies of the general plan and not obstruct their
attainment.’ [Citation.]” [Citation.] State law does not require perfect conformity
between a proposed project and the applicable general plan. . . . [Citations.]’ (Friends of
Lagoon Valley, supra, 154 Cal.App.4th at p. 817.) In other words, ‘it is nearly, if not
absolutely, impossible for a project to be in perfect conformity with each and every
policy set forth in the applicable plan. . . . It is enough that the proposed project will be
compatible with the objectives, policies, general land uses and programs specified in the
applicable plan. [Citations.]’ (Sierra Club v. County of Napa (2004) 121 Cal. App. 4th
1490, 1510-1511 [(Sierra Club)].)” (Pfeiffer, at pp. 1562-1563.)
We addressed the applicable standard of review—abuse of discretion—more than
two decades ago in Sequoyah, supra, 23 Cal.App.4th at page 717: “The city council’s
determination that the . . . project is consistent with the [city’s general plan] comes to this
court with a strong presumption of regularity. [Citation.] To overcome that presumption,
an abuse of discretion must be shown. (Code Civ. Proc., § 1094.5 [citation].) An abuse
12
of discretion is established only if the city council has not proceeded in a manner required
by law, its decision is not supported by findings, or the findings are not supported by
substantial evidence. (Code Civ. Proc., § 1094.5, subd. (b).) We may neither substitute
our view for that of the city council, nor reweigh conflicting evidence presented to that
body. [Citation.]” (Accord, e.g., Pfeiffer, supra, 200 Cal.App.4th at p. 1563 [according
“great deference” to the agency’s consistency determination]; Friends of Lagoon Valley,
supra, 154 Cal.App.4th at p. 816; Endangered Habitats League, Inc. v. County of Orange
(2005) 131 Cal. App. 4th 777, 782 (Endangered Habitats); Sierra Club, supra, 121
Cal.App.4th at pp. 1509-1510.)
Even those cases relied upon by appellants for the proposition that the priority
policies must be strictly construed recognize and apply the abuse of discretion standard of
review. Endangered Habitats, supra, 131 Cal. App. 4th 777, agreed that appellate courts
“review decisions regarding consistency with a general plan under the arbitrary and
capricious standard. These are quasi-legislative acts reviewed by ordinary mandamus,
and the inquiry is whether the decision is arbitrary, capricious, entirely lacking in
evidentiary support, unlawful, or procedurally unfair. [Citations.] Under this standard,
we defer to an agency’s factual finding of consistency unless no reasonable person could
have reached the same conclusion on the evidence before it. [Citation.]” (Id. at p. 782.)
Similarly, Families Unafraid to Uphold Rural El Dorado County v. El Dorado County
Board of Supervisors (1998) 62 Cal. App. 4th 1332 (FUTURE), also acknowledged: “The
Board’s determination that [the project] is consistent with the Draft General Plan carries a
strong presumption of regularity. (Sequoyah, supra, 23 Cal.App.4th at p. 717.) This
determination can be overturned only if the Board abused its discretion—that is, did not
proceed legally, or if the determination is not supported by findings, or if the findings are
not supported by substantial evidence. (Ibid.) As for this substantial evidence prong, it
has been said that a determination of general plan consistency will be reversed only if,
based on the evidence before the local governing body, ‘. . . a reasonable person could
not have reached the same conclusion.’ [Citation.]” (Id. at p. 1338.)
13
No case cited by appellants or found by us refuses to apply this deferential
standard to the determination by a local agency that a particular project was consistent
with its general plan.
Appellants and amici argue that the reason for deference to the local legislative
body is absent where, as here, the amendment to the General Plan that set forth the
priority policies was not proposed by City, but was the result of an initiative adopted by
the voters over opposition of many members of the Board. It is true that many cases
explain that reviewing courts accord great deference to the agency’s determination
“ ‘because the body which adopted the General Plan policies in its legislative capacity
has unique competence to interpret those policies when applying them in its adjudicatory
capacity. [Citation.]’ ” (Pfeiffer, supra, 200 Cal.App.4th at p. 1563; see, e.g., Friends of
Lagoon Valley, supra, 154 Cal.App.4th at p. 816; Sierra Club, supra, 121 Cal.App.4th at
p. 1509; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001)
87 Cal. App. 4th 99, 142 (Save Our Peninsula).)
However, the Board’s role in implementing the General Plan, including its
discretion to determine whether proposed projects are consistent with the General Plan, is
at least as important. The above cases also recognize that “ ‘[b]ecause policies in a
general plan reflect a range of competing interests, the governmental agency must be
allowed to weigh and balance the plan’s policies when applying them, and it has broad
discretion to construe its policies in light of the plan’s purposes. [Citations.]’ ” (Pfeiffer,
supra, 200 Cal.App.4th at p. 1563; Sierra Club, supra, 121 Cal.App.4th at pp. 1509-
1510; Save our Peninsula, supra, 87 Cal.App.4th at p. 142.) Such deference to the
actions of the legislative body stems from well-settled principles of court respect for the
separation of powers. (See Western States Petroleum Assn. v. Superior Court (1995) 9
Cal. 4th 559, 572 (Western States) [“[E]xcessive judicial interference with the [agency’s]
quasi-legislative actions would conflict with the well-settled principle that the legislative
branch is entitled to deference from the courts because of the constitutional separation of
powers. (Cal. Const., art. III, § 3; see [citations])”].) Furthermore, the agency’s
decisions regarding project consistency with a general plan are reviewed by ordinary
14
mandamus. The inquiry in such cases is “whether the decision is arbitrary, capricious,
entirely lacking in evidentiary support, unlawful, or procedurally unfair. [Citations.]”
(Endangered Habitats, supra,131 Cal.App.4th at p. 782; cf., Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 8:128.2, p. 8-90
[EIR determinations upheld if supported by substantial evidence].)
Nor do we find persuasive the claims of appellants and amici that policy reasons
supporting liberal interpretation of citizens’ initiative measures suggest affording less
deference to the City’s consistency findings here. Unlike Perry v. Brown (2011) 52
Cal. 4th 1116, 1165, holding that sponsors of citizens’ initiatives must be allowed to
defend their validity, this case does not involve a challenge to the validity of a citizen’s
initiative. Rather, it is a challenge to the City’s application of the General Plan and,
specifically, to the City’s interpretation and application of the priority policies adopted by
Proposition M and found today in section 101.1(a) of the City’s Planning Code. The
same rules of construction that apply to other amendments to the Planning Code or to the
General Plan apply here. “Once an initiative measure has been approved by the requisite
vote of electors in an election, . . . the measure becomes a duly enacted constitutional
amendment or statute.” (Perry, at p. 1147.) As our Supreme Court has observed,
“ ‘Although the initiative power must be construed liberally to promote the democratic
process [citation] when utilized to enact statutes, those statutes are subject to the same
constitutional limitations and rules of construction as are other statutes.’ (Legislature v.
Deukmejian (1983) 34 Cal. 3d 658, 675.) The same is true when a local initiative is at
issue.” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal. 3d 531,
540.)
Any other conclusion would undermine the well-established limited role of
judicial review in these types of cases and could lead to unworkable results, such as
requiring application of different standards of review to consistency determinations in the
15
same proceeding where some General Plan policies were adopted by initiative and others
by the agency.2
B. Priority Policies Need Not be Strictly Construed
Relying upon Endangered Habitats, supra, 131 Cal. App. 4th 777 and FUTURE,
supra, 62 Cal. App. 4th 1332, appellants and amici argue that the priority policies of the
General Plan were fundamental, mandatory and clear. Consequently, they contend,
project approval required findings that the project complied with each and every one of
the strictly construed priority policies and the Board was not permitted to weigh and
balance the various policies when considering project compliance. Again, we disagree.
When we apply the abuse of discretion standard of review, “ ‘the nature of the
policy and the nature of the inconsistency are critical factors to consider.’ (FUTURE,
supra, 62 Cal.App.4th at p. 1341.) In addition, general consistencies with plan policies
cannot overcome ‘specific, mandatory and fundamental inconsistencies’ with plan
2
Respondents contend Proposition M was not a pure citizen’s initiative, as four
members of the Board of Supervisors acted to put Proposition M on the ballot. The
parties disagree whether such act was “ministerial” or done independently by the
members in accordance with the San Francisco Charter. Such dispute only further
supports our view that the standard of review for consistency determinations should not
hinge on the method by which a general plan was adopted or amended.
We do not agree with amici’s argument based upon Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal. 4th 1 (Yamaha), that less judicial deference
should be afforded to the City’s interpretation of its General Plan in this case, as the
standard of review is “fundamentally situational.” (Id. at p. 12.) The situation here does
not change based on the author of the relevant part of the general plan any more than
changing membership in the agency that adopts a general plan would result in a changing
standard of review. Further, we observe that Yamaha was cited in San Franciscans
Upholding the Downtown Plan v. City & County of San Francisco (2002) 102
Cal. App. 4th 656, as authority for application of the traditional, highly deferential
standard of review in a challenge to a project’s compliance and consistency with the
City’s General Plan: “The inquiry for the issuance of a writ of administrative mandamus
is whether the agency in question prejudicially abused its discretion; that is, whether the
agency action was arbitrary, capricious, in excess of its jurisdiction, entirely lacking in
evidentiary support, or without reasonable or rational basis as a matter of law. (Code
Civ. Proc., § 1094.5, subds. (b), (c); Yamaha[, supra,] 19 Cal.4th [at pp.] 10-12;
[citations].)” (Id. at pp. 673-674.)
16
policies. (Id. at p. 1342.)” (Clover Valley Foundation v. City of Rocklin (2011) 197
Cal. App. 4th 200, 239.)
As we recognized in Sequoyah, supra, 23 Cal. App. 4th 704, “[N]o project could
completely satisfy every policy stated in the [general plan], and . . . state law does not
impose such a requirement. [Citations.] A general plan must try to accommodate a wide
range of competing interests—including those of developers, neighboring homeowners,
prospective homebuyers, environmentalists, current and prospective business owners,
jobseekers, taxpayers, and providers and recipients of all types of city-provided
services—and to present a clear and comprehensive set of principles to guide
development decisions. Once a general plan is in place, it is the province of elected city
officials to examine the specifics of a proposed project to determine whether it would be
‘in harmony’ with the policies stated in the plan. [Citation.] It is, emphatically, not the
role of the courts to micromanage these development decisions. Our function is simply
to decide whether the city officials considered the applicable policies and the extent to
which the proposed project conforms with those policies, whether the city officials made
appropriate findings on this issue, and whether those findings are supported by
substantial evidence. [Citations.]” (Id. at pp. 719-720; accord, Pfeiffer, supra, 200
Cal.App.4th at p. 1563; Sierra Club, supra, 121 Cal.App.4th at pp. 1509-1510.)
In Endangered Habitats, supra, 131 Cal. App. 4th 777, and FUTURE, supra, 62
Cal. App. 4th 1332, appellate courts held the findings of consistency made by the
respective counties were unsupported by substantial evidence (FUTURE, at p. 1342) and
that “no reasonable person could have made the consistency finding on the record”
(Endangered Habitats, at p. 789.) In each case, the appellate court determined the land
use project at issue to be inconsistent with very specific and mandatory policies of the
applicable general plan. (Endangered Habitats, at pp. 785-786, 789; FUTURE, at p.
1342.)
As described by Friends of Lagoon Valley, supra, 154 Cal.App.4th at page 819,
“the general plan in Endangered Habitats[, supra, 131 Cal. App. 4th 777,] required the
maintenance of specific levels of service at certain intersections as computed using a
17
specific methodology.[3] (Id. at pp. 782-783.) Although an EIR determined cumulative
traffic impacts were not significant under a different methodology, the court remarked
this fact was ‘of no import’ given the unambiguous requirements of the general plan. (Id.
at p. 783.)” The traffic level service policy, by establishing a particular performance
standard to be evaluated by a particular methodology was “mandatory” and “clear,” such
that the project that could not meet the performance standard under the required
methodology, was inconsistent with the general plan. (Endangered Habitats, at pp. 782-
783.) Furthermore, the general plan at issue in Endangered Habitats explicitly did not
allow balancing of certain identified policies. Rather, it mandated compliance with a
specific plan in order to maintain a buffer between urban development and a national
forest. The specific plan distinguished between mandatory and permissive provisions and
a consistency checklist explained that “ ‘ “shall” indicates a mandatory [r]egulation to
which there are no exceptions, while “should” indicates a non-mandatory [g]uideline.’ ”
(Id. at pp. 785-786.) The Endangered Habitats court concluded that the specific plan
amendment allowing the specific plan regulations to be balanced was in direct conflict
with the general plan policy that new development must comply with all specific plan
policies. (Id. at p. 787.) The balancing provision of the amendment was held to be
inconsistent with the general plan and no reasonable person could find it consistent. (Id.
at p. 788.)
3
In Endangered Habitats, supra, 131 Cal. App. 4th 777, “A ‘traffic level of service
policy’ addresses the need for highway improvements when development increases
traffic. County policy is that improvements must be made within a stated time after
issuance of various permits so as to achieve level of service (LOS) D at intersections, and
LOS C on Santiago Canyon Road. Here is the relevant language: ‘LOS C shall . . . be
maintained on Santiago Canyon Road links until such time as uninterrupted segments of
roadway (i.e., no major intersections) are reduced to less than three miles.’ This policy
requires compliance to be evaluated according to the county’s Transportation
Implementation Manual, which in turn provides that traffic analysis on Santiago Canyon
Road ‘shall’ use the methods described in the highway Capacity Manual (HCM).” (Id. at
pp. 782-783.)
18
Similarly, the general plan in FUTURE, supra, 62 Cal. App. 4th 1332, specified
without exception that the designation “ ‘low density residential’ ” would be restricted to
certain areas. The project proposed to develop “ ‘low density residential’ ” in another
area. It was “readily apparent” the project directly conflicted with a mandatory policy set
forth in the general plan. (Id. at pp. 1340-1341.) The appellate court held there was no
substantial evidence supporting the county’s implied finding of consistency, concluding
that “no reasonable person, on the evidence before the Board, could conclude otherwise.”
(Id. at p. 1341; see also, Sierra Club, supra, 121 Cal.App.4th at p. 1511.)
As stated above, the priority policies adopted by Measure M are found in section
101.1 of the City’s Planning Code, which provides in relevant part:
“SECTION 101.1. MASTER PLAN CONSISTENCY AND
IMPLEMENTATION
“(a) The Master Plan shall be an integrated, internally consistent and compatible
statement of policies for San Francisco. To fulfill this requirement, after extensive public
participation and hearings, the City Planning Commission shall in one action amend the
Master Plan by January 1, 1988.
“(b) The following Priority Policies are hereby established. They shall be
included in the preamble to the Master Plan and shall be the basis upon which
inconsistencies in the Master Plan are resolved:
“1. That existing neighborhood-serving retail uses be preserved and enhanced and
future opportunities for resident employment in and ownership of such business
enhanced;
“2. That existing housing and neighborhood character be conserved and protected
in order to preserve the cultural and economic diversity of our neighborhoods;
“3. That the City’s supply of affordable housing be preserved and enhanced;
“4. That commuter traffic not impede Muni transit service or overburden our
streets or neighborhood parking.
19
“5. That a diverse economic base be maintained by protecting our industrial and
service sectors from displacement due to commercial office development, and that future
opportunities for resident employment and ownership in these sectors be enhanced;
“6. That the City achieve the greatest possible preparedness to protect against
injury and loss of life in an earthquake;
“7. That landmarks and historic buildings be preserved; and,
“8. That our parks and open space and their access to sunlight and vistas be
protected from development.”
Subdivisions (c) and (d) of section 101.1 provide that the City may not adopt any
zoning ordinance or development agreement authorized pursuant to Government Code
section 65865, unless, “prior to that adoption it has specifically found that the ordinance
or development agreement is consistent with” the priority policies and the Master Plan.
Subdivision (e) of section 101.1 provides that similar consistency findings “shall” be
made by City before “issuing a permit for any project or adopting any legislation which
requires an initial study under [CEQA], and prior to issuing a permit for any demolition,
conversion or change of use, and prior to taking any action which requires a finding of
consistency with the Master Plan.”
The language of section 101.1(b) of the City’s Planning Code that “the Priority
Policies are to be the basis upon which inconsistencies in the Master Plan are resolved,”
does not remotely provide the type of specificity and clarity that is found in the general
plan policies of either FUTURE, supra, 62 Cal. App. 4th 1332 or Endangered Habitats,
supra, 131 Cal. App. 4th 777. A reasonable person could conclude that such language
allows the City to weigh and balance the priority policies and to construe them in light of
the purposes of the General Plan. As for the specific priority policies themselves, the
plain language of these policies lack the type of directive courts use to determine whether
a policy is mandatory—use of words such as “must” or “shall.” Our reading of the
priority policies here persuades us they are neither “mandatory” nor “clear,” and the
project does not directly conflict with them, unlike the plans in FUTURE and
Endangered Habitats, where the project in each case directly conflicted with one or more
20
specific and mandatory policies set forth in the general plans to the degree that no
reasonable person could conclude they were consistent. While the City Planning Code
requires that procedurally, a project must be found consistent with the policies, the
policies themselves contain no objective standards, but only subjective standards that
neither prohibit any particular development or type of development nor command any
particular outcome.
Nearly 30 years ago, immediately after passage of Proposition M, the San
Francisco City Attorney issued an analysis of that measure, observing that, “[t]here is no
evidence that in passing Proposition M, the voters intended to alter the City’s practice of
determining consistency by considering the relevant policies as a whole” and concluding
that, “the consistency requirement of Proposition M calls for a balancing of the eight
Priority Policies rather than strict compliance with each and every one. Subject to the
other provisions of Proposition M and the Code, the City Planning Commission [or other
entity required to make the consistency finding] may approve each project . . . if, after
considering all aspects of the project, the Commission concludes that approval of the
project would further the Priority Policies and not obstruct their attainment. If a
particular action would advance some Policies while frustrating others, a finding of
consistency would be proper only if the Commission concludes that the benefits in
furthering some of the Policies outweigh the harm in impeding others.” (S.F. City Atty.,
Opn. No. 86-17 (Dec. 16, 1986) pp. 15-16, fn. omitted.) The opinion pointed out that
“[t]here is no evidence that in passing Proposition M, the voters intended to alter the
City’s practice of determining consistency by considering the relevant policies as a
whole”—an approach approved by this division in Foundation for San Francisco’s
Architectural Heritage v. City and County of San Francisco (1980) 106 Cal. App. 3d 893,
915-916. (S.F. City Atty. Opn. No. 86-17, pp. 14-15.) Furthermore, applying this
standard to Proposition M comports with the settled rule that where legislation is
ambiguous, courts should give it “ ‘a reasonable and common sense construction in
accordance with the apparent purpose and intention of the lawmakers—one that is
practical rather than technical and that will lead to a wise policy rather than mischief or
21
absurdity [citation].’ [Citation.]” (County of Orange v. Barratt American, Inc. (2007)
150 Cal. App. 4th 420, 432- 433.) As the City Attorney observed at the time, “Construing
proposition M to require that every action be consistent with each of the eight Priority
Policies would lead to the extreme result of blocking most planning actions.” (S.F. City
Atty. Opn. No. 86-17, p. 15.) In two somewhat prescient examples, the City Attorney,
pointed out that priority policy No. 3, encouraging affordable housing projects, would
likely violate priority policies Nos. 1 and 2, if the projects replaced existing housing or
existing retail businesses and that the priority policy of preserving existing affordable
housing (priority policy No. 3) could easily conflict with the priority policy of achieving
the greatest possible earthquake preparedness (priority policy No. 6). (Ibid.) We agree
with the City Attorney’s long-settled construction of this legislation and with its
observation that “requiring perfect consistency with each of the Priority Policies could
prevent many, if not all, affordable housing projects.” (Ibid.)
C. Priority Policy Consistency Determination
Appellant challenges the City’s findings that the project and its accompanying
approvals were consistent with priority policies Nos. 2, 4, 6, 7 and 8. Amici join
appellants in arguing that the project is inconsistent with policies Nos. 2 and 7. In finding
that the development agreement was in conformity with the General Plan, as amended,
and the eight priority policies of Planning Code section 101.1, the Board adopted and
incorporated by reference the findings made by the Planning Commission. The Planning
Commission had found that the development agreement and related approval actions
were, “on balance,” consistent with the General Plan and with the priority policies of
Planning Code section 101.1(b), stating its reasons, in relevant part as follows:
[Priority Policy No. 2] “The existing housing and neighborhood character will be
conserved and protected in order to preserve the cultural and economic diversity of our
neighborhoods:
“The proposed Project would preserve the existing diversity and character of
Parkmerced by maintaining the same number of rent controlled units (3,221 rent
controlled units) that currently exist at Parkmerced. The Project would accomplish this
22
by conserving 1,683 existing rent controlled apartments, which would remain subject to
the Rent Stabilization Ordinance, and replacing all 1,538 existing rent controlled
apartments that would be demolished by the Project with a new unit that would be subject
to the same protections as contained in the Rent Stabilization Ordinance for the life of the
building. In addition, under the proposed Project, residents of buildings proposed for
demolition would be given the opportunity to relocate to such replacement units in a new
building and would be assessed the same rent as their previous unit. The Project would
also enhance the diversity of Parkmerced by constructing a large number of new
BMR [below market rate] affordable units. Currently, Parkmerced has no BMR units.
Further, the proposed Project would enhance the character of the Parkmerced
neighborhood by establishing a social and commercial core, improving pedestrian
accessibility, and creating open space and recreational opportunities.”
“[Priority Policy No. 4] The commuter traffic will not impede MUNI transit
service or overburden our streets or neighborhood parking:
“The proposed Project would enhance MUNI transit service by re‐routing the
MUNI M‐Oceanview light‐rail line through the Project Site, creating two new stations
and relocating the existing Parkmerced/SFSU station. These improvements would
alleviate the overcrowding issues at the existing Parkmerced/SFSU station and improve
the connection to SFSU by requiring riders to cross Holloway Avenue as opposed to
Nineteenth Avenue. The realignment would also reduce the walking distance to transit
for residents of Parkmerced, thereby encouraging the use of public transportation. In
addition, the proposed roadway re‐alignments would ease the burden on City streets in
the Parkmerced area by improving traffic flow. Finally, the proposed Project would add
approximately 90 on‐street and 6,252 off‐street parking spaces, ensuring that residents of
the proposed Project do not rely on parking in the adjoining neighborhoods.
“[Priority Policy No. 6] The City will achieve the greatest possible preparedness
to protect against injury and loss of life in an earthquake.
“The proposed Project would help the City achieve the greatest possible
preparedness to protect against injury and loss of life in an earthquake because the new
23
buildings would be constructed in accordance with all applicable building codes and
regulations with regard to seismic safety.
“[Priority Policy No. 7] That landmark and historic buildings will be preserved:
“The proposed Project would not adversely impact any City landmarks because
there are no City-designated landmarks on the Project Site. Although none of the
buildings on the Project Site are designated City landmarks, as mitigation for the
Proposed Project’s impacts to historic resources under [CEQA], the Project Sponsor will
prepare documentation of the site based on the National Park Service’s Historic
American Building Survey/Historic American Engineering Record Historical Report
Guidelines and provide a permanent display of interpretative materials concerning the
history of the original Parkmerced complex.
“[Priority Policy No. 8] “Parks and open space and their access to sunlight and
vistas will be protected from development:
“The proposed Project would provide 68 acres of open space in a network of
publically accessible neighborhood parks, athletic fields, public plazas, greenways and a
farm. The Project would provide significant additional open space in the form of private
or semi‐private open space areas such as centralized outdoor courtyards, roof decks, and
balconies. These private and semi‐private open spaces would be required within the
development of each residential building within Parkmerced. The parks and open space
would be more accessible and usable than the current open spaces. Parks and open space
within, and in the vicinity of, the proposed Project would continue to receive a substantial
amount of sunlight during the day when use is at its highest rate. Existing coastal views
from parks located to the east and north of the Project Site would be maintained with
implementation of the proposed Project.”
The priority policy consistency findings made by the City are supported by the
reasons given by the Planning Commission and are supported by the record. We cannot
conclude that no reasonable person would make such determinations. Appellants’ and
amicis’ challenges to these findings are based upon their rigid reading of the priority
24
policies and their refusal to recognize the general rule giving discretion to the Board to
balance the numerous General Plan priorities.
D. Project Consistency with other General Plan Policies
Appellants contend that other policies in the General Plan echo the priority
policies and that project approvals are also inconsistent with those policies.4 Having
rejected appellants’ premise—that the project and Project Approvals were inconsistent
with the priority policies—we also reject their conclusion. Nevertheless, we briefly
address the claims of inconsistency.
1. Housing element policy 3.6 consistency determination. Housing element
policy 3.6 states: “Preserve Landmark and Historic Residential Buildings.” This policy
is by its terms more narrow than priority policy No. 7, as it is limited to historic
residential buildings. Parkmerced does not contain any landmark or historic buildings,
residential or otherwise. A reasonable person could conclude the project and project
approvals were not inconsistent with this general plan element.
2. Community Safety Element Policy 2.11 regarding hazards from gas lines.
Appellants contend Community Safety Element Policy 2.11 which states “reduce hazards
from gas fired appliances and gas lines” is similar to priority policy No. 6. Appellants
argue the project site is located “very close to major PG&E gas pipelines” and that the
“Planning Department attempted to belittle the risk involved using data . . . that antedated
the San Bruno [pipeline] explosion of the previous fall.” Appellants urge the data used
by the City antedated the San Bruno explosion and they speculate that the project “will
impede emergency response to a foreseeable catastrophic failure . . . .” The City
consulted federal authorities as to the location of gas pipelines (noting that “the closest
gas transmission line to the Project Site is PG&E’s Line 109, which generally follows
4
Appellants appear to have reversed the order of priority policies Nos. 6 and 7 in
arguing that other policies, analogous to priority policies, were violated. We address the
issue as appellants appear to have intended, pairing housing element policy 3.6, relating
to landmark and historic residential buildings with priority policy No. 7 (landmark and
historic building preservation) and community safety element policy 2.11 with priority
policy No. 6 (earthquake preparedness).
25
Alemany Boulevard,” outside project boundaries) and as to the risk of gas line
explosions, finding them “rare.” The City’s risk assessment did take into consideration
the San Bruno incident.5 The City’s reliance on building codes and regulations to assist
in its determination that a project will reduce potential hazards was proper. (See Oakland
Heritage Alliance v. City of Oakland (2011) 195 Cal. App. 4th 884, 904 [compliance with
building codes and the other regulatory provisions, in conjunction with a detailed
geotechnical investigation, provided substantial evidence that the mitigation measures
would reduce seismic impacts to a less than significant level].) Also relevant is the City’s
response to the earthquake preparedness priority policy No. 6, that “new buildings would
be constructed with all applicable building codes and regulations with regard to seismic
safety,” including recommendations from the geologic, geotechnical and seismic study
conducted for the project in May 2008. The City determined appellants’ argument was
“speculative” as it had been presented with no data or evidence that PG&E pipelines in
the vicinity of the project posed a hazard to residents or visitors that would result from
implementation of the proposed project.
We conclude a reasonable person could have reached the conclusion reached by
City here that the project was consistent with community safety element policy 2.11.
E. Project Consistency With Numerous Other Additional General Plan Objectives
and Policies
As in Sequoyah, supra, 23 Cal. App. 4th 704, appellants here challenge the project
on the basis of seven of the numerous policies and objectives encompassed in the General
5
“In California, the 10-year average (2001-2010) of significant incidents relating
to gas distribution pipelines is 6 incidents, 0 fatalities, 1 injury, and $1,438,746 worth of
property damage per year based across 102,659 miles of pipeline. The 10-year (2001-
2010) average of significant incidents relating to gas transmission incidents is 2 incidents,
1 fatality, 5 injuries, and $1,240,998 in property per damage per year. This average,
taken over a 10-year period, includes 1 fatality that occurred in 2003, and 8 fatalities that
occurred in San Bruno in 2010. Furthermore, according to data from PHMSA, when
incidents do occur, most injuries due to gas transmission pipeline incidents were to
pipeline operator employees or operator contractors, and not to the general public in the
vicinity of the pipeline.” (FEIR Response to Comments No. 3.3.)
26
Plan (which City numbers at 78 or more). Given the standard of review here and the
discretion vested in the City to weigh and balance General Plan policies in its
determination whether the project is consistent with the General Plan (id. at p. 719), we
would be hard pressed to overturn the City’s determination in this case were we to find it
unsupported with respect to a single policy. After identifying at least 78 objectives and
policies in the Housing, Urban Design, and Transportation Elements with which the
project is consistent, the City found that replacing the Parkmerced housing development,
designed to separate land uses and rely extensively on automobile use, with a modern and
sustainable development that will alleviate the City’s housing shortage, promote transit
use, and increase energy efficiency without displacing any tenant furthers the General
Plan’s purposes and is “on balance” consistent with the General Plan. Based on
substantial evidence in the record, we conclude that a reasonable person could reach the
same conclusion.
III. CEQA
A. CEQA Overview
“Among other requirements, an EIR must describe the proposed project and its
environmental setting, state the objectives sought to be achieved, identify and analyze the
significant effects on the environment, state how those impacts can be mitigated or
avoided, and identify and analyze alternatives to the project. ([Pub. Resources Code,]
§§ 21100, subd. (b), 21151; Cal. Code Regs., tit. 14, §§ 15124, 15125, 15126.6.)[6] As
our Supreme Court has . . . emphasized, ‘The preparation and circulation of an EIR is
more than a set of technical hurdles for agencies and developers to overcome. The EIR’s
6
Hereafter, all statutory references are to the Public Resources Code, unless
otherwise indicated. All future references to Guidelines are to the CEQA Guidelines
(Cal. Code Regs., tit. 14, § 15000 et seq.) “developed by the Governor’s Office of
Planning and Research and adopted by the California Resources Agency. (§ 21083.)
‘[C]ourts should afford great weight to the Guidelines except when a provision is clearly
unauthorized or erroneous under CEQA. [Citation.]’ (Laurel Heights Improvement Assn.
v. Regents of University of California (1988) 47 Cal. 3d 376, 391, fn. 2 (Laurel
Heights I).)” (Communities for a Better Environment v. City of Richmond (2010) 184
Cal. App. 4th 70, 80, fn. 4 (Communities).)
27
function is to ensure that government officials who decide to build or approve a project
do so with a full understanding of the environmental consequences and, equally
important, that the public is assured those consequences have been taken into account.
[Citation.] For the EIR to serve these goals it must present information in such a manner
that the foreseeable impacts of pursuing the project can actually be understood and
weighed, and the public must be given an adequate opportunity to comment on that
presentation before the decision to go forward is made.’ (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 449–450
[(Vineyard)].)” (Communities, supra, 184 Cal.App.4th at pp. 79-80.)
“ ‘In 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.” [Citation.]’ [Citation.]” (California Oak Foundation v. Regents of
University of California (2010) 188 Cal. App. 4th 227, 262.)
“In reviewing compliance with CEQA, we review the agency’s action, not the trial
court’s decision. (Vineyard . . . , supra, 40 Cal.4th at p. 427.) In doing so, our ‘inquiry
“shall extend only to whether there was a prejudicial abuse of discretion.” [Citation.]’
Abuse of discretion is established ‘if the agency has not proceeded in a manner required
by law or if the determination or decision is not supported by substantial evidence.’
(§ 21168.5.) Substantial evidence in this context 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.’ (Guidelines,
§ 15384, subd. (a).)” (Communities, supra, 184 Cal.App.4th at pp. 79-80.)
28
Plaintiffs assert numerous defects in City’s CEQA review.
B. Project 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[(County of Inyo)]; accord Communities, supra, 184 Cal.App.4th at
p. 80; see Guidelines § 15124 (14 Cal. Code Regs. § 15124.7) “Without an accurate
7
Guidelines section 15124, “Project Description” provides:
“The description of the project shall contain the following information but should
not supply extensive detail beyond that needed for evaluation and review of the
environmental impact.
“(a) The precise location and boundaries of the proposed project shall be shown
on a detailed map, preferably topographic. The location of the project shall also appear
on a regional map.
“(b) A statement of the objectives sought by the proposed project. A clearly
written statement of objectives will help the lead agency develop a reasonable range of
alternatives to evaluate in the EIR and will aid the decision makers in preparing findings
or a statement of overriding considerations, if necessary. The statement of objectives
should include the underlying purpose of the project.
“(c) A general description of the project’s technical, economic, and environmental
characteristics, considering the principal engineering proposals if any and supporting
public service facilities.
“(d) A statement briefly describing the intended uses of the EIR.
“(1) This statement shall include, to the extent that the information is known to
the lead agency,
“(A) A list of the agencies that are expected to use the EIR in their decision-
making, and
“(B) A list of permits and other approvals required to implement the project.
“(C) A list of related environmental review and consultation requirements
required by federal, state, or local laws, regulations, or policies. To the fullest extent
possible, the lead agency should integrate CEQA review with these related environmental
review and consultation requirements.”
(2) If a public agency must make more than one decision on a project, all its
decisions subject to CEQA should be listed, preferably in the order in which they will
occur. On request, the Office of Planning and Research will provide assistance in
identifying state permits for a project.”
29
description on which to base the EIR’s analysis, CEQA’s objective of furthering public
disclosure and informed environmental decision making would be stymied. A project
description that omits integral components of the project may result in an EIR that fails to
disclose all of the impacts of the project. [Citation.]” (1 Kostka & Zischke, Practice
Under the California Environmental Quality Act (Cont.Ed.Bar 2d ed., March 2014
update) § 12.2, p. 12-3 (Kostka & Zischke).) An EIR project description must comply
with various technical requirements and must also: (1) constitute an accurate description
that does not minimize project impacts; (2) include discussion of reasonably foreseeable
activities; and (3) be stable and consistent throughout the EIR. (Id. at § 12.2, pp. 12-2,
12-3.) At the same time, the project description “should not supply extensive detail
beyond that needed for evaluation and review of the environmental impact. (Guidelines,
§ 15124.)
“The EIR’s project description, and the accompanying analysis, must be consistent
throughout the EIR. If the project description is inconsistent (e.g., if a project is
described differently in different sections of the EIR), these shifts prevent the EIR from
serving as a vehicle for intelligent public participation in the decision-making process.
[Citation.]” (1 Kostka & Zischke, supra, § 12.11, pp. 12-16, 12-17, citing County of
Inyo, supra, 71 Cal.App.3d at p. 193 [description was neither stable nor consistent where
project was described first as increased groundwater pumping to provide additional water
for city-owned lands in Inyo and Mono Counties; elsewhere as an expanded project to
increased pumping as part of a larger operation of the Los Angeles aqueduct system; and
finally as operation of the entire aqueduct system in an environmentally sensitive manner,
including groundwater pumping to serve Inyo and Mono County city lands].)
The consistency requirement does not mean that the project cannot change as it
proceeds throughout the CEQA review. (County of Inyo, supra, 71 Cal.3d at p. 199; e.g.
Western Placer Citizens for an Agr. and Rural Environment v. County of Placer (2006)
144 Cal. App. 4th 890, 898; 1 Kostka & Zischke, supra, § 12.11, p. 12-17.)
1. Project duration. Appellants here contend the project description
“metamorphosed several times, both in terms of timing and in terms of what the project
30
included.” They first challenge the description of the project’s duration, arguing it was
ambiguous as having changed from the pre-EIR application which identified construction
of new residences and a neighborhood core occurring “[o]ver a period of 15 to 30 years”
to the DEIR and responses to comments that identified a duration of “approximately 20
years,” but also referenced a 30-year term for the development agreement and a
pedestrian wind study that used a 30-year time frame.
CEQA does not require a project description to identify a specific completion date.
(See Guidelines, § 15124.) Rather, CEQA requires that the EIR contain “an accurate,
stable and finite project description . . . .” (County of Inyo, supra, 71 Cal.App.3d at
p. 199.) We agree that the significance of project impacts may vary depending upon the
length and duration of the project. However, there is no significant discrepancy in the
length or duration of the project.
The EIR here consistently assumed that construction of the project would last for
20 years. It used the 20-year estimate to analyze potential impacts that might be
dependent on the duration of the project, including its analysis of priority policies, land
use, aesthetics, population and housing, direct temporary population growth,
transportation, noise, air quality, greenhouse gasses, recreation, utilities, public services,
biological resources, geology, hydrology, and hazardous materials. It used the 20-year
duration in responding to comments.
The EIR also acknowledged the possibility that full development could take longer
than 20 years. However, it made the reasonable assumption of a 20-year construction
period. As explained in footnotes in the DEIR and the FEIR describing the phasing and
construction of the project “over an approximately 20-year period”: “The Project
Sponsor expects the phasing of the Proposed Project to occur over 20 years, but the full
development could extend for a longer period. Consequently, the [d]evelopment
[a]greement would likely cover a 30-year projected buildout.” The FEIR also
acknowledges that “[s]ince preparation of the NOP [Notice of Preparation] in May 2009,
several modifications have been made to the Proposed Project. Buildout of the Proposed
Project has been reduced from 30 to 20 years.”
31
The 30-year duration of the development agreement is not inconsistent with the
EIR estimate that the project will take 20 years to complete. The 20-year project duration
is a reasonable description of the length of time it will take to complete construction and
development of the project and to facilitate a realistic evaluation of project impacts over
that period for EIR purposes. The development agreement, on the other hand, is a
contract between the City and real party in interest, the project sponsor, assuring that real
party can proceed with the project in accordance with existing policies, rules and
regulations, subject to project approval. (Gov. Code, § 65864, subd. (b); see also, id.
§§ 65865.4, 65866.) This 30-year period provides added certainty that each side will
obtain the negotiated benefits in the agreement regardless of any possible delays in
project construction.
The wind study cited by appellants mentions that construction would take
approximately 30 years. However, changes in the wind environment at the project site
will not depend on the duration of the construction. Consequently, this discrepancy is
irrelevant to the wind study.
Although appellants argue that emissions from construction activities would be
more prolonged (though less intense) over a 30-year period than a 20-year period, they
also acknowledge that the EIR here assumes a more concentrated period of emissions
over the shorter period. The EIR makes the reasonable assumption that the construction
period will be 20 years. It concludes that the project will create significant and
unavoidable impacts associated with construction emissions. Such conclusion appears
reasonable and appellants present no evidence that the possible extension of the
construction period from 20 to 30 years due to delay or other causes would significantly
vary that analysis.
“CEQA requires only that the agency ‘use its best efforts to find out and disclose
all that it reasonably can’ (Guidelines, § 15144), and that the EIR display ‘adequacy,
completeness, and a good faith effort at full disclosure’ (Guidelines, § 15151).”
(Planning and Conservation League v. Castaic Lake Water Agency (2009) 180
32
Cal. App. 4th 210, 253.) The description of the project duration provided in the EIR
satisfies these criteria.
2. Eleven tower buildings located within the project site. Appellants contend the
project description is ambiguous as to whether the project includes the 11 existing tower
buildings. Not so. The EIR clearly states that the 11 tower buildings are located within
the project site and the project does not propose any modifications to them. (FEIR Part 1,
§ III.1 [“The existing on-site residential units are located in towers and 170 two-story
buildings. . . . About 1,683 of the existing apartments located in 11 tower buildings
would be retained”]; FEIR Part 2, § V.N.12 [“The 11 existing towers on the Project Site
are not proposed to be changed as a result of the Proposed Project; seismic hazards
related to these buildings would remain as at present”].)
We conclude the EIR’s project description is sufficiently “accurate, stable and
finite” to “ensur[e] [that] the lead agency and the public have enough information to
ascertain the project’s environmentally significant effects, assess ways of mitigating
them, and consider project alternatives . . . .’ ” (Sierra Club v. City of Orange (2008) 163
Cal. App. 4th 523, 533.)
C. Identification of Significant Impacts
Appellants argue that although the FEIR identified numerous significant and
unavoidable impacts, it failed to identify all the project’s significant impacts.
Specifically, appellants contend the FEIR failed to identify significant seismic safety,
displacement, public safety, land use, and greenhouse gas production impacts.
The Guidelines require that “[a]n EIR shall identify and focus on the significant
environmental effects of the proposed project. In assessing the impact of a proposed
project on the environment, the lead agency should normally limit its examination to
changes in the existing physical conditions in the affected area as they exist at the time
the notice of preparation is published . . . .”8
8
Guideline section 15126.2(a) also provides in relevant part that:
33
1. Seismic safety. The FEIR identified impacts based upon the seismic safety of
new buildings proposed to be constructed as part of the project and found the impacts not
significant.9 With respect to the existing 11 towers, the FEIR acknowledged that strong
ground shaking would affect them, stating: “Strong seismic ground shaking could occur
at the Project Site during an earthquake on one of the nearby active faults such as the San
Andreas and Hayward faults. Strong ground shaking would affect existing and new
buildings on the Project Site. The 11 existing towers on the Project Site are not proposed
“The EIR shall also analyze any significant environmental effects the project might cause
by bringing development and people into the area affected. For example, an EIR on a
subdivision astride an active fault line should identify as a significant effect the seismic
hazard to future occupants of the subdivision. The subdivision would have the effect of
attracting people to the location and exposing them to the hazards found there.”
Similarly, the EIR should evaluate any potentially significant impacts of locating
development in other areas susceptible to hazardous conditions (e.g., floodplains,
coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments
or in land use plans addressing such hazards areas. This provision of the Guidelines has
been held to be inconsistent with provisions in the statute defining an environmental
impact as a change in the physical environment affected by a proposed project (. . .
§§ 21060.5, 21100) in South Orange County Wastewater Authority v. City of Dana Point
(2011) 196 Cal. App. 4th 1604, 1616 and Ballona Wetlands Land Trust v. City of Los
Angeles (2011) 201 Cal. App. 4th 455, 474 (Ballona). As Ballona explained, “identifying
the effects on the project and its users of locating the project in a particular environmental
setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA
statutes.” (Ballona, at p. 474.) (See 1 Kostka & Zischke, supra, § 13.5, p. 13-7.)
This issue is now before the Supreme Court in California Bldg. Industry Assn. v.
BAAQMD (S213478) (rehg. granted Nov. 26, 2013 [“[u]nder what circumstances, if any,
does the [CEQA] require an analysis of how existing environmental conditions will
impact future residents or users (receptors) of a proposed project”].)
9
“New buildings at Parkmerced would be designed and constructed in accordance
with the most up-to-date version of the San Francisco Building Code, which incorporates
CBC requirements that specify procedures used to calculate seismic forces on structures
during ground shaking and address them. . . . [¶] . . . [¶] Given compliance with the
requirements of the San Francisco Building Code, including review and enforcement of
geotechnical reports and review of building plans and site-specific soils report(s) by DBI
in order to determine necessary engineering and design features, there would be no
significant impacts related to seismic hazards. The exposure of people or structures to
potential adverse effects due to seismic hazards would be less than significant. No
mitigation is required.”
34
to be changed as a result of the Proposed Project; seismic hazards related to these
buildings would remain as at present.”
Respondents maintain that the 11 existing towers are not part of the proposed
project and their seismic safety would not be affected by it. They point out that “[t]he
structural condition of these buildings (all of which meet current building code
requirements) is an existing condition of the [p]roject.” “The purpose of an EIR is to
identify and discuss the impact of the proposed project on the existing environment.”
(Watsonville Pilots Assn. v. City of Watsonville (2010) 183 Cal. App. 4th 1059, 1094
[rejecting a claim that the EIR must resolve an existing groundwater overdraft problem].)
“Because the purpose of an EIR is to assess the project’s effects on the existing
environment, an EIR need not resolve existing environmental problems that will not be
made worse by the project. [Citation.]” (1 Kostka & Zischke, supra, § 13.4, p. 13-6,
citing Watsonville Pilots.)10
Appellants also contend that the EIR failed to disclose the cumulatively significant
seismic impacts of leaving the towers unprotected in the midst of the project, arguing that
after a future major earthquake they would need to be vacated and demolished. This, in
turn, would lead to cumulatively significant displacement impacts for tower tenants and
also cumulatively significant noise, air quality and toxics impacts associated with the
tower demolition, both for remaining residents and the nearby community. Appellants
point to no evidence in the record that construction elsewhere on the project site would
decrease the safety of the 11 towers. Nor do the speculative scenarios posited by
10
Compare with In re Bay-Delta etc. (2008) 43 Cal. 4th 1143, 1167 [“Under
CEQA, the range of alternatives that an EIR must study in detail is defined in relation to
the adverse environmental impacts of the proposed project. An EIR must include a
description of feasible project alternatives that would substantially lessen the project’s
significant environment effects. (Pub. Resources Code, § 21061; Cal. Code Regs., tit. 14,
§ 15126.6, subds. (d), (f).) The project’s environmental effects, in turn, are determined
by comparison with the existing ‘baseline physical conditions.’ (Cal. Code Regs., tit. 14,
§ 15125, subd. (a); see County of Amador v. El Dorado County Water Agency (1999) 76
Cal. App. 4th 931, 952)”].)
35
appellants result from the project evaluated by the EIR. (See Guidelines, § 15130, subd.
(a)(1).11)
Appellants’ claim that demolition of the towers is the likely result of an
earthquake is shear speculation and belied by the record. Although the seismic
conditions of the 11 towers remaining on the site were not affected by the proposed
project, nevertheless, the FEIR included a summary of an analysis performed by qualified
geotechnical consultants and structural engineers on existing conditions and how existing
buildings on site performed during past seismic events and how they would be expected
to perform in future events. This September 2005 detailed analysis “concluded the
towers were expected to perform adequately in a major earthquake from a life safety
perspective, although significant structural and non-structural damage may occur, such as
extensive cracking in the exterior and interior concrete walls, floor, and roof slabs.
‘Performing adequately from a lifesafety perspective’ indicates that the structures would
not fail and occupants would be able to exit the structures. The habitability of the
structure after a major event would have to be separately assessed at that time.” Studies
on damage and repairs after the Loma Prieta Earthquake indicated non-structural damage
in many towers, but all were safe to occupy. “The structural system worked as was
expected and the present condition is completely stable.” Recommended repairs were
effected and “[i]t was concluded that the repair work was satisfactory and the buildings
had been restored to their pre-earthquake structural capacity.”
2. Displacement impacts. The FEIR finds: “The Proposed Project would not
displace substantial numbers of people and/or existing housing units . . . . (Less than
Significant)”
11
Guidelines section 15130(a)(1) provides:
“(1) As defined in Section 15355, a cumulative impact consists of an impact
which is created as a result of the combination of the project evaluated in the EIR
together with other projects causing related impacts. An EIR should not discuss impacts
which do not result in part from the project evaluated in the EIR.”
36
Appellants challenge the FEIR finding that the project will have no significant
displacement impacts. They argue that tenant displacement will occur, despite the
promise in the development agreement between City and real party that real party will
provide replacement units of equivalent value to the Parkmerced townhouse unit tenants
now occupy before their existing units are demolished. In fact, the development
agreement states that the “Tenant Relocation Plan” to be submitted before the first
building permit application for a replacement building will “ensure that Relocating
Tenants within an existing block . . . shall be provided the opportunity to move to
Replacement Units located on the same block, so that the Relocating Tenants can remain
neighbors of the same block despite their relocation.” Appellants contend that the
development agreement’s relocation plan provision is at best a mitigation measure that in
City’s estimate would reduce displacement impacts to less than significant. They argue
that City made no findings to that effect, rendering the FEIR and CEQA findings
defective.
The tenant relocation program is not a mitigation measure. Rather, it is one of the
project sponsor’s objectives and part of the project description as follows: “Protect and
enhance the diversity of Parkmerced by protecting existing residents from displacement
through a phasing plan designed to ensure that all existing residents will be able to
remain at Parkmerced while having to relocate once only and into a new apartment, if
necessary, and that this new apartment would be rented at the same rent-controlled rate as
the resident’s existing apartment prior to demolition (and also subject to the existing
protections against rent increases of the San Francisco Rent Control Ordinance).” The
FEIR further explains in “Project Characteristics” that, “Development of the Proposed
Project would not displace existing Parkmerced residents. Residents of existing
apartments that are proposed to be replaced would be provided with the opportunity to
move to a new apartment before their unit is demolished. Construction and demolition
would be phased to ensure that the residents of these units would be required to move
into a new apartment only once. . . . Existing residents would not be required to move off
site at any point during any phase of the Proposed Project.”
37
The foregoing provides substantial evidence supporting the findings that the
proposed project would not displace substantial numbers of people and the further finding
that the proposed project would not physically disrupt or divide an established
community, would not adversely affect the existing character of the vicinity, and that in
this respect, it would have a less-than-significant impact on land use such that no
mitigation was required.
Appellants further contend that the provision of the development agreement
requiring real party to construct an equal number of equal value replacement units and to
rent them at the same rent-controlled rents residents currently pay may be unlawful under
the 1996 Costa-Hawkins Rental Housing Act (Civ. Code, §§ 1954.50-1954.535). That
act includes a general prohibition against applying rent control to any units built
subsequent to the act’s enactment (Civ. Code, § 1954.52, subd. (a)), but excepts units
“where the owner has otherwise agreed by contract with a public entity in consideration
for a direct financial contribution or any other forms of assistance specified in Chapter
4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code
[the state’s density bonus housing law].” (Civ. Code, § 1954.52, subd. (b).) Appellants
contend the City’s position that this exception applies, despite the explicit reference in the
statute to the state’s density bonus housing law (Gov. Code, § 65915, et seq.), is
“untested.” The development agreement attempts to minimize any uncertainty by
providing that in the event a court challenge invalidates the rent control provision, real
party will provide the tenants with relocation assistance and damages that will
compensate them for the loss.
Appellants speculate that any court that finds the rent control provisions unlawful,
will also find the provisions compensating tenants for the loss of their rent-controlled
units also void as against public policy.12 Such speculation is not sufficient to counter the
12
We note appellants’ citation of City of Santa Barbara v. Superior Court (2007)
41 Cal. 4th 747, in support of their claim that public policy would prevent enforcement of
the compensation provision. The case is completely inapposite. In that wrongful death
case, the court refused to read a waiver of liability for negligence to release liability for
38
reasonable determination of the lead agency that the exception applies, that the rent-
control provision would survive legal challenge and, if not, that the damages provision
would suffice to make tenants whole.
Furthermore, not only is this worst-case scenario (from the tenant’s perspective)
completely speculative, but it ignores the discussion of “assumptions” in Village Laguna
of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal. App. 3d 1022, in which
appellants challenged the EIR “for making assumptions about the proposed project but
failing to consider the environmental effects should any of those assumptions prove
erroneous.” (Id. at p. 1029.) The court rejected the claim stating: “Appellants are asking
more of the EIR than is legally required. The ‘assumptions’ referred to are actually
integral portions of the proposed project. If they fail to become reality (e.g., if the
transportation corridor is not built), we are dealing with a different project. However,
CEQA only requires that an EIR discuss ‘[t]he significant environmental effects of the
proposed project.’ (§ 21100, subd. (a), italics added.) The proposed project, which
includes the transportation corridor, a preserved Greenbelt and 25 percent affordable
housing, was evaluated in the EIR. CEQA requires nothing more.” (Id. at p. 1030, italics
added; accord Environmental Council of Sacramento v. City of Sacramento (2006) 142
Cal. App. 4th 1018, 1036 [“Rather than demonstrating a lack of substantial evidence to
support the baseline assumptions, . . . the opponents of the projects have mischaracterized
the assumptions as something they are not. A public agency can make reasonable
assumptions based on substantial evidence about future conditions without guaranteeing
that those assumptions will remain true”].)
future gross negligence, where such a provision would be generally unenforceable and
the agreement in the case did not specifically release such liability. In that context, the
court said, “we conclude that public policy generally precludes enforcement of an
agreement that would remove an obligation to adhere to even a minimal standard of care.
Applying that general rule here, we hold that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child who
participates in a recreational camp designed for the needs of such children violates public
policy and is unenforceable. (Id. at p. 777, fn. omitted.)
39
The City in this case has made reasonable assumptions about the enforceability of
the commitments made in the development agreement.
3. Public safety impact – gas pipelines. Appellants contend the EIR did not
discuss the effects of a potential failure of the PG&E gas pipelines located a few blocks
from the project site.13
As we have noted previously, numerous cases emphasize that “CEQA is
implicated only by adverse changes in the environment.” (Baird v. County of Contra
Costa (1995) 32 Cal. App. 4th 1464, 1468 [“[t]he purpose of CEQA is to protect the
environment from proposed projects, not to protect proposed projects from the existing
environment”]; accord Ballona, supra, 201 Cal.App.4th at p. 474 [holding an EIR is not
required to identify or analyze “an effect on the project caused by the environment”];
South Orange County Wastewater Authority v. City of Dana Point, supra, 196
Cal.App.4th at p. 1618 [“[t]he effect with which SOCWA is concerned—odors from the
sewage plant—is not an adverse change in any of the physical conditions within the area
affected by the . . . project].”)
The location and existence of pipelines is a preexisting environmental condition
that will not be impacted or altered because of the proposed project. Appellants do not
argue the proposed project will have any adverse effect on the likelihood of a pipeline
explosion. For this reason alone, substantial evidence supports the City’s decision that
pipeline explosions did not warrant discussion in the EIR.
The question whether this rule remains the law is currently on review before the
California Supreme Court. (See ante, fn. 8 at pp. 33-34.) Therefore, in the alternative,
we conclude that the City reasonably determined on the evidence before it that a gas
pipeline explosion was extremely unlikely and hence, not reasonably foreseeable.
“An EIR is to disclose and analyze the direct and the reasonably foreseeable
indirect environmental impacts of a proposed project if they are significant. (Guidelines,
13
According to the City, the closest gas transmission line is a PG&E pipeline that
generally follows along Alemany Boulevard, which is about a quarter of a mile from the
project site.
40
§§ 15126.2, 15064, subd. (d)(3).) . . . An impact ‘which is speculative or unlikely to
occur is not reasonably foreseeable.’ (Guidelines, § 15064, subd. (d)(3).)” (Anderson
First Coalition v. City of Anderson (2005) 130 Cal. App. 4th 1173, 1182.) “[A]n EIR is
not required to engage in speculation in order to analyze a ‘worst case scenario.’ ” (Napa
Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91
Cal. App. 4th 342, 373.)
Appellants provide no evidence undermining the City’s determination that the
potential for a gas pipeline explosion was not significant. We have addressed and
rejected a similar claim in connection with appellants’ challenge to the project’s
consistency with the community safety element of the General Plan. (Ante, Part II.D.(2),
p. 25.) Based on the San Bruno pipeline explosion in 2010, appellants dispute the staff
report that dismissed the risk of a pipeline rupture as speculative. In the appellants’
appeal to the Board of Supervisors, the City responded that it had no data or evidence in
its possession nor had it been presented with any data or evidence that PG&E pipelines in
the project vicinity pose a hazard to existing residents, visitors or to new residents and
visitors resulting from implementation of the project.14 A public agency is not required
to analyze impacts that are speculative, and “argument, speculation, unsubstantiated
opinion” does not constitute substantial evidence for the purpose of determining whether
an impact may be potentially significant. (§ 21082.2; Guidelines, § 15064, subd. (f)(5).)
The data considered by the City covered a 10-year period from 2001-2010 and included
the eight fatalities occurring in San Bruno in 2010. The City could reasonably determine
on the evidence before it that significant gas pipeline incidents in California are “rare,”
such that impacts of such an unlikely event need not be addressed in the EIR.
14
Appellants have tried to introduce evidence concerning the alleged risks from
gas pipelines. We denied appellants’ request for judicial notice, that improperly
requested we consider evidence that had never been submitted to the City. The trial court
also denied appellants’ request for judicial notice and appellants have not argued such
denial was improper. (Western States, supra, 9 Cal.4th at p. 574, fn. 4 [the only evidence
relevant to the substantial evidence question under section 21168.5 is that which was
before the agency at the time it made its decision].)
41
4. Land use impacts. Appellants challenge the FEIR and the City’s findings that
the project will have no significant land use impacts. Relying upon the checklist in
Guidelines Appendix G, appellants assert this project will have significant land use
impacts because it would physically divide an established community and conflict with
an applicable land use plan, policy, or regulation adopted for the purpose of avoiding or
mitigating an environmental effect.
Appellants contend there is no “guarantee” tenants will remain together in the
replacement units, as assignment of replacements will be based on seniority of tenancy so
that newer tenants would have less control. Additionally, appellants argue that there are
no semi-private shared gardens or analogous amenity in the replacement units to promote
a sense of community.
Substantial evidence supports the City’s determination that the project would not
physically divide an existing community. Certainly the project will not result in a
physical barrier dividing the community. (Gentry v. City of Murrieta (1995) 36
Cal. App. 4th 1359, 1419; Cathay Mortuary, Inc. v. San Francisco Planning Com. (1989)
207 Cal. App. 3d 275, 280.) As recognized in Gentry, “ ‘A project will normally have a
significant effect on the environment if it will . . . [¶] [d]isrupt or divide the physical
arrangement of an established community.’ (Guidelines, appen. G, subd. (u).) ‘[T]his
guideline was intended to apply to projects, such as highway construction, that would
constitute physical barriers dividing a community.’ (Cathay, . . . at p. 280.)”
Appellant’s second claim—that the project conflicts with an applicable land use
plan, policy, or regulation adopted for the purpose of avoiding or mitigating an
environmental effect—restates their claim that the project conflicts with or is inconsistent
with the priority policies of Measure M. We have rejected that claim in the previous
portion of this opinion and it founders here for the same reasons.
5. Greenhouse gas production impact. Appellants challenge the FEIR
conclusion that the project will not cause a significant impact due to greenhouse gas
(GHG) emissions. Their argument appears to be focused not upon the determinative
question whether the finding of insignificance is supported by substantial evidence, but
42
rather, upon their claim that any increase in GHG emissions before 2020 must be deemed
significant based on the target goals set forth in Assembly Bill No. 32 (AB 32). 15 16 We
disagree with appellants’ approach and find that substantial evidence supports the City’s
finding of insignificance.
“When analyzing potentially cumulative GHG emission impacts, lead agencies
should ‘make a good-faith effort, based to the extent possible on scientific and factual
data, to describe, calculate or estimate the amount of [GHG] emissions resulting from a
project.’ (Guidelines, § 15064.4, subd. (a).) In assessing the significance of these
emissions, the lead agency should consider the extent to which the project may affect
emissions levels; whether emissions exceed an applicable threshold of significance; and
whether the project complies with regulations or requirements adopted to implement
statewide, regional, or local plans to reduce GHGs. (Citizens for Responsible Equitable
Environmental Development v. City of Chula Vista (2011) 197 Cal. App. 4th 327, 335-336,
citing Guidelines, § 15064.4, subd. (b).)” (North Coast Rivers Alliance v. Marin
Municipal Water Dist. Bd. of Directors (2013) 216 Cal. App. 4th 614, 650.)
There is no requirement that a lead agency must find a project causes a significant
impact simply because it may not result in decreased GHG emissions by 2020. (Martin
v. City and County of San Francisco (2005) 135 Cal. App. 4th 392, 402 [“CEQA is not to
15
Appellants do not even refer to the substantial evidence standard as to this GHG
issue until the last sentence of their closing brief, wherein they argue that “the EIR
underestimated the Project’s GHG emissions, especially in the pre-2020 period, and that
the EIR’s analysis of GHG emissions did not even address the stated threshold of whether
the Project would impede achieving AB 32’s standard for reducing GHG emissions by
2020. Together, these errors meant that the EIR’s conclusion that the Project would not
have a significant GHG production impact was not supported by substantial evidence.”
16
AB 32 is state legislation addressing GHG emissions the California Global
Warming Solutions Act of 2006). (Health & Saf. Code, § 38500 et seq., enacted by
Assem. Bill No. 32 (2005-2006 Reg. Sess.) (See Friends of Oroville v. City of Oroville
(2013) 219 Cal. App. 4th 832, 840.) As the EIR states, AB 32 establishes a state goal of
reducing greenhouse gases to 1990 levels by the year 2020 (a reduction of approximately
25 percent from forecast emission levels) with further reduction to follow. (See also
Friends of Oroville, at p. 840.)
43
be stretched beyond the ‘reasonable scope of the statutory language.’ [Citations.] CEQA
is not to be interpreted ‘in a manner which imposes procedural or substantive
requirements beyond those explicitly stated in this division or in the state guidelines.’
(Pub. Resources Code, § 21083.1)”].) Pursuant to Guidelines section 15064.4, the lead
agency has discretion to select the model or methodology it considers most appropriate to
quantify GHGs and retains the discretion to determine the threshold of significance that
applies to the project.17 (Guidelines, § 15064.4, subd. (a); Citizens for Responsible
Equitable Environmental Development v. City of Chula Vista, supra, 197 Cal.App.4th at
17
“Determining the Significance of Impacts from Greenhouse Gas Emissions.
“(a) The determination of the significance of greenhouse gas emissions calls for a
careful judgment by the lead agency consistent with the provisions in section 15064. A
lead agency should make a good-faith effort, based to the extent possible on scientific
and factual data, to describe, calculate or estimate the amount of greenhouse gas
emissions resulting from a project. A lead agency shall have discretion to determine, in
the context of a particular project, whether to:
“(1) Use a model or methodology to quantify greenhouse gas emissions resulting
from a project, and which model or methodology to use. The lead agency has discretion
to select the model or methodology it considers most appropriate provided it supports its
decision with substantial evidence. The lead agency should explain the limitations of the
particular model or methodology selected for use; and/or
“(2) Rely on a qualitative analysis or performance based standards.
“(b) A lead agency should consider the following factors, among others, when
assessing the significance of impacts from greenhouse gas emissions on the environment:
“(1) The extent to which the project may increase or reduce greenhouse gas
emissions as compared to the existing environmental setting;
“(2) Whether the project emissions exceed a threshold of significance that the
lead agency determines applies to the project.
“(3) The extent to which the project complies with regulations or requirements
adopted to implement a statewide, regional, or local plan for the reduction or mitigation
of greenhouse gas emissions. Such requirements must be adopted by the relevant public
agency through a public review process and must reduce or mitigate the project’s
incremental contribution of greenhouse gas emissions. If there is substantial evidence
that the possible effects of a particular project are still cumulatively considerable
notwithstanding compliance with the adopted regulations or requirements, an EIR must
be prepared for the project.” (Guidelines, § 15064.4.)
44
p. 336 [“When assessing the significance of impacts from greenhouse gas emissions on
the environment the lead agency should consider the extent the project may increase or
reduce greenhouse gas emissions; whether the project emissions exceed a threshold of
significance that the lead agency determines applies to the project; and the extent the
project complies with regulations or requirements adopted to implement a statewide,
regional, or local plan for the reduction or mitigation of greenhouse gas emissions.
(Guidelines, § 15064.4, subd. (b).) Thus, under the new guidelines, lead agencies are
allowed to decide what threshold of significance it will apply to a project”].)
The EIR here acknowledged that construction of the project would result in an
increase in the amount of GHG emissions—approximately four times the amount
produced annually by the project’s operation. It included both an extensive quantitative
and qualitative analysis of the greenhouse gas emissions expected to result from the
proposed project. The EIR evaluated the increased GHG activity onsite during the 20-
year construction phase and the GHG contributed annually by the new residential,
commercial and retail services upon completion. It also considered the “quantifiable
effects of reduced motor vehicle trips and increased mass transit service . . . caused by the
mixed-use and pedestrian-oriented nature of the Proposed Project.” “As infill
development, constructed in an urban area with high levels of transit access, the project
would result in reducing regional vehicle trips and miles traveled.” Further, the EIR
observed, “the proposed project would also include the proposed Sustainability Plan and
electricity, natural gas, and water conservation features to avoid GHG emissions that
would otherwise be created by motor vehicle use, electricity consumption, and use of
other resources including water.”
The EIR also discussed City regulations aimed at further reduction of GHG and
San Francisco’s progress toward that end, stating that compliance with City’s regulations
and incorporation of various project design features as required by City regulations would
reduce the project’s overall GHG emissions and concluded, “Given that San Francisco
has implemented binding and enforceable programs to reduce GHG emissions applicable
to the proposed project and that San Francisco’s sustainable policies have resulted in the
45
measured success of reduced GHG emissions levels, the proposed project’s GHG
emissions would result in a less than significant impact.” (Italics added.) The foregoing
provides substantial evidence supporting the EIR’s conclusion that: “The Project would
not result in a substantial contribution to global climate change by increasing GHG
emissions in a manner that conflicts with the state goal of reducing GHG emissions in
California to 1990 levels by 2020 (e.g., a substantial contribution to global climate
change). (Less than Significant).”
The EIR also discussed AB 32 and the requirement that local governments “play
the role of an ‘essential partner’ and to use local planning and permitting processes to
achieve GHG reductions.” After discussing City’s implementation of many measures for
increasing energy efficiency in new construction and other measures aimed at reduction
of GHG emissions to 20 percent below 1990 levels by the year 2012, in furtherance of
the state’s efforts to reduce statewide GHG emissions as mandated by AB 32, the EIR
concluded: “The proposed project would be required to comply with GHG reduction
regulations as discussed above, as well as applicable AB 32 Scoping Plan measures that
are ultimately adopted and become effective during implementation of proposed project.
Given that the City has adopted numerous GHG reduction strategies recommended in the
AB 32 Scoping Plan, that the City’s GHG reduction strategy includes binding,
enforceable measures to be applied to development projects, such as the proposed project,
and that the City’s GHG reduction strategy has produced measurable reductions in GHG
emissions, the proposed project would not conflict with either the state or local GHG
reduction strategies. In addition the proposed project would not conflict with any plans,
policies, or regulations adopted for the purpose of reducing GHG emissions. Therefore,
the proposed project would have a less than significant impact with respect to GHG
emissions. No mitigation is required.”
The EIR anticipated the adoption by the Bay Area Air Quality Management
District (BAAQMD) of thresholds of significance for GHG emissions, by analyzing the
project operational GHG emissions under the proposed efficiency-based threshold of
significance option and concluded: “Because the Proposed Project-related operational
46
emissions would be less than the BAAQMD draft guideline level of 4.6 MTCO2E per
service population per year, project-related GHG emissions would result in a less-than-
significant impact on climate change. No mitigation is required.”
The EIR fully disclosed the increased GHG emissions from construction-related
activities. Notwithstanding this increase, the EIR concluded that GHG emissions would
not reach a threshold of significance for the reasons discussed above. The foregoing
constitutes substantial evidence supporting the City’s determination that the GHG
impacts of the project would be less than significant.
D. Reasonable Range of Feasible Alternatives
Appellants contend the City did not consider a “range of reasonable alternatives to
the project” (Guidelines, § 15126.6) as required by CEQA. Appellants focus upon
“historic preservation” alternatives.
The six project alternatives analyzed in the EIR included a “No Project
Alternative”; an alternative that would fully avoid the project’s impact to a Parkmerced
historic district (“Retention of the Historic District Central Core Alternative”); an
alternative that would minimize but not fully avoid this impact (“Partial Historic District
Alternative”); and three other alternatives proposing different configurations of
development and transit options (“Buildout Under Current Zoning Regulations
Alternative,” “Full Project Buildout with Transit Options Alternative,” and “No Muni
Realignment Alternative”).
The FEIR also discussed three alternatives that were considered, but not analyzed
further because they were rejected as “infeasible” or failed to meet most of the project
sponsor’s objectives, although they might have reduced the project’s significant impacts.
These included an “Infill Development within the Historic District Alternative,”
suggested by letters from the National Trust for Historic Preservation and the City’s
Historic Preservation Commission, that would retain existing garden apartments, but
construct new buildings within the garden apartment blocks; a “West-Side Partial
Historic District Alternative,” that would partially, but not fully, avoid the impact to
historic resources; and an “Alternative Location” option. Both of the rejected historic
47
district alternatives presented similar benefits and impacts to the “Partial Historic
District” that was included in the EIR.18 The EIR described how each of the two rejected
alternatives would still cause significant adverse impacts on the Parkmerced historical
resource and explained that they did not meet most of the project sponsor’s objectives,
18
The EIR described the “Infill Development within the Historic District”
alternative as one that “would retain the majority of the existing buildings and landscape
features at Parkmerced, and include new construction of a series of 3- to 14-story infill
buildings on the sites of the existing carports and adjacent to the existing towers. . . .
Under this scenario, all of the existing 3,221 residential units would remain, and about
1,400 new units would be constructed (a total of 4,621 residential units on site). There
would be no transit or infrastructure improvements made under this scenario, nor would
there be any combination of renewable energy sources, such as wind turbines and
photovoltaic cells, to offset any portion of energy demand.”
The EIR explained that “[t]his potential EIR alternative was considered but not
selected for analysis in this EIR because it would not achieve most of the Project
Sponsor’s objectives including those related to maximizing the opportunity to create
high-density housing near a commercial core, transportation and infrastructure
improvements, and sustainability. Additionally, although this potential EIR alternative
would reduce impacts on the Parkmerced historic district resource by retaining most of its
existing physical features, this potential EIR alternative would not retain this resource’s
essential integrity as it would require demolition of the carports within the garden
apartment courtyards and construction of new residential structures within the courtyards.
As such, this potential alternative would result in a significant adverse impact on the
Parkmerced historic district resource.” (Fn. omitted.)
The EIR recognized “The West Side – Partial Historic District” alternative
preserving a partial historic district would retain some of the garden courtyard apartment
blocks on the west side, for a total of 2,365 existing units. 4,100 new residential units
would be constructed. However, unlike the proposed project, there would be no
renewable energy sources to offset any portion of energy demand. The alternative was
considered but not selected for analysis in the EIR because it, too, would not achieve the
project sponsor’s objectives “related to maximizing the opportunity to create high-density
housing near a community center, sustainability, and financial feasibility.” Further,
although a portion of the existing historic district resource would be retained as a
representative sample, the retained portion would not be sufficient to convey its historic
and architectural significance to justify its eligibility for inclusion in the California
Register for Historic Resources. “The Historic District Core Alternative was chosen for
analysis since it would retain eligibility as an historic district.”
48
including those related to high-density housing near a commercial core, transportation
and infrastructure improvements, and sustainability.
The EIR explained that “[t]he alternatives analyzed in the EIR were developed in
part to identify those that could avoid or substantially lessen one or more of the
significant impacts identified for the Proposed Project,” including some impacts related
to Historic Architectural Resources. However, the EIR also recognized that some of the
impacts on Historic Architectural Resources were unavoidable, even with implementation
of mitigation measures. In addition to the “no project” alternative, the EIR identified the
environmentally superior alternative—that having the fewest significant environmental
impacts from among the alternatives evaluated—as the “Retention of the Historic District
Central Core Alternative,” “due to its reduced historic and cultural resource impacts.”
“An EIR shall describe a range of reasonable alternatives to the project, or to the
location of the project, which would feasibly attain most of the basic objectives of the
project but would avoid or substantially lessen any of the significant effects of the
project, and evaluate the comparative merits of the alternatives. An EIR need not
consider every conceivable alternative to a project. Rather it must consider a reasonable
range of potentially feasible alternatives that will foster informed decisionmaking and
public participation. An EIR is not required to consider alternatives which are infeasible.
The lead agency is responsible for selecting a range of project alternatives for
examination and must publicly disclose its reasoning for selecting those alternatives.
There is no ironclad rule governing the nature or scope of the alternatives to be discussed
other than the rule of reason. (Citizens of Goleta Valley v. Board of Supervisors (1990)
52 Cal. 3d 553 [(Goleta)] and Laurel Heights [I, supra, ] 47 Cal. 3d 376).” (Guidelines
§ 15126.6, subd. (a), italics added.)
“CEQA establishes no categorical legal imperative as to the scope of alternatives
to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be
reviewed in light of the statutory purpose.” (Goleta, supra, 52 Cal.3d at p. 566.) Goleta
reaffirmed “the principle that an EIR for any project subject to CEQA review must
consider a reasonable range of alternatives to the project, or to the location of the project,
49
which: (1) offer substantial environmental advantages over the project proposal
(. . . § 21002); and (2) may be ‘feasibly accomplished in a successful manner’
considering the economic, environmental, social and technological factors involved.
(. . . § 21061.1; Guidelines, § 15364; [citation].)” (Goleta, at p. 566.) We believe the
EIR in this case has done precisely that.
“[I]t is appellants’ burden to demonstrate that the alternatives analysis is deficient.
‘Where an EIR is challenged as being legally inadequate, a court presumes a public
agency’s decision to certify the EIR is correct, thereby imposing on a party challenging it
the burden of establishing otherwise.’ [Citation.]” (California Native Plant Society v.
City of Santa Cruz (2009) 177 Cal. App. 4th 957, 987 (California Native Plant Society ).)
Furthermore, under the Guidelines, an EIR need discuss only a range of reasonable
alternatives. (Guidelines, § 15126.6, subds. (a), (c); California Native Plant Society,
supra, 177 Cal.App.4th at p. 992; 1 Kostka & Zischke, supra, § 15.17, p. 15-24.) “An
EIR that discusses a reasonable range of alternatives is not deficient simply because it
excludes other potential alternatives from its analysis. [(City of Maywood v. Los Angeles
Unified Sch. Dist. (2012) 208 Cal. App. 4th 362, [421];19 Cherry Valley Pass Acres &
Neighbors v. City of Beaumont (2010) 190 Cal. App. 4th 316, [348, 354-355].)] Each case
must be reviewed on the facts, and the facts must, in turn, be reviewed in light of the
purpose of CEQA’s alternatives requirement. [Citations.]” (1 Kostka & Zischke, p. 15-
19
“CEQA does not require that an agency consider specific alternatives that are
proposed by members of the public or other outside agencies. Rather, the EIR need only
discuss ‘a range of reasonable alternatives.’ (Guidelines, § 15126.6, subd. (a).) ‘To be
legally sufficient, the consideration of project alternatives in an EIR must permit
informed agency decisionmaking and informed public participation. [Citation.] . . . We
judge the range of project alternatives in the EIR against “a rule of reason.” [Citations.]
The selection will be upheld, unless the challenger demonstrates “that the alternatives are
manifestly unreasonable and that they do not contribute to a reasonable range of
alternatives.” [Citation.]’ (California Native Plant Society, supra, 177 Cal.App.4th at p.
988.) [¶] This FEIR contains a reasonable range of alternatives. It compared and
contrasted several project alternatives, including a no project alternative . . . .” (City of
Maywood v. Los Angeles Unified School Dist., supra, 208 Cal.App.4th at pp. 420-421.)
50
24; citing Goleta, supra, 52 Cal. 3d 553 and Sierra Club v. City of Orange, supra, 163
Cal.App.4th at p. 546.)
Appellants’ argument appears to assume that all feasible alternatives must be
considered, as it refers to “numerous alternatives other than those that the DEIR
analyzed” and particularly to “numerous alternatives” proposed by Aaron Goodman, a
former Parkmerced resident. This is not the case. As Kostka and Zischke observe,
“[l]anguage in several cases implies that an EIR must discuss ‘all reasonable alternatives’
to the project. [Citations.] These statements, which recite a dictum in Wildlife Alive v.
Chickering (1976) 18 C[al.]3d 190, 197, an exemption case, are inconsistent with the
Guidelines standard providing that an EIR should contain a reasonable range of
alternatives sufficient to foster informed decision making. [(Guidelines, § 15126.6, subd.
(a).)] Under the applicable standard, an EIR may be found legally inadequate only if the
range of alternatives it presents is unreasonable in the absence of the omitted
alternatives.” (1 Kostka & Zischke, supra, § 15.17, p. 15-26.)
Appellants cite Preservation Action Council v. City of San Jose (2006) 141
Cal. App. 4th 1336 (Preservation Action Council) as “instructive” on the question of
whether any of the various “historic preservation” alternatives was feasible. As described
and distinguished in Tracy First v. City of Tracy (2009) 177 Cal. App. 4th 912, 929-930:
In Preservation Action Council, the city considered an EIR for a project to build a
Lowe’s store. The significant environmental impact of the project would be to demolish
a historic building. The EIR included an alternative that would have allowed the building
of the Lowe’s, although at a reduced size, without demolishing the historic building. The
EIR rejected this alternative but did not include evidence that the reduced-size alternative
was infeasible. (Preservation Action Council, at pp. 1352-1358.) The Court of Appeal
concluded: “Neither the [FEIR] nor the administrative record contains any meaningful
detail or independent analysis of the validity of Lowe’s claim that the reduced-size
alternative is infeasible, and the City Council made no specific finding validating that
claim. On this record, the trial court correctly held that the City’s rejection of the
reduced-size Lowe’s alternative cannot be upheld.” (Id. at p. 1357.) Tracy First’s
51
reliance on Preservation Action Council is misplaced. In that case, the reduced-size
alternative would have saved the historic building, thus eliminating the adverse
environmental impact. Here, there is no such clear-cut reason to require a reduced-size
alternative—that is, no evidence that it would substantially mitigate the significant
environmental impacts. The city council acted reasonably in certifying the EIR with the
listed alternatives.
So too, in this case, there is no evidence that the two scaled-down historic district
alternatives that were described, but not analyzed by the EIR—the “Infill Development
within the Historic District Alternative,” or the “West-Side Partial Historic District”—or
other alternatives raised by comments to the DEIR would have substantially mitigated the
significant environmental impacts to the historic district or that they would meet most of
the objectives of the project sponsor. In fact, Preservation Action Council, supra, 141
Cal. App. 4th 1336, rejected the trial court’s conclusion that an additional alternative—
Alternative 2—should also have been analyzed in the EIR, observing that, “The City had
already analyzed a range of alternatives directed at the same goal and Alternative 2 did
not appear to be substantially different or potentially feasible. (Id. at p. 1359.)
In the words of the Court of Appeal in California Native Plant Society, supra, 177
Cal. App. 4th 957: “We find no violation of CEQA’s informational mandates in the
alternatives analysis. The EIR presented sufficient information to explain the choice of
alternatives and the reasons for excluding [the proposed alternatives]. The information
‘did not preclude informed decisionmaking or informed public participation and thus did
not constitute a prejudicial abuse of discretion.’ [Citation.] [¶] As to the [public
agency’s] substantive decisions concerning which alternatives to analyze and which to
omit, we find sufficient evidence in the administrative record as a whole to support those
determinations. Judged against the rule of reason that governs our review, a reasonable
range of alternatives was selected for analysis in the EIR; ‘no more was required.’
[Citation.]” (Id. at p. 995.)
52
E. Responses to Comments
Appellants contend the FEIR failed to provide reasoned responses to comments on
the DEIR. Specifically, they contend the FEIR failed to provide adequate responses to
Goodman’s comments on project alternatives. “A lead agency need not respond to each
comment made during the review process, however, it must specifically respond to the
most significant environmental questions presented.” (Browning-Ferris Industries v. City
Council (1986) 181 Cal. App. 3d 852, 862.) Although they contend this was “merely one
of many examples where the FEIR failed to adequately respond to comments,” appellants
do not point to other such claimed deficiencies in this section of their opening brief. It is
appellants’ burden to show the responses were inadequate. (See Inyo Citizens for Better
Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal. App. 4th 1, 13; California
Native Plant Society, supra, 177 Cal.App.4th at p. 987.)
Goodman proposed numerous alternatives other than those analyzed in the EIR.
In their opening brief challenge to the adequacy of the EIR’s alternatives analysis,
appellants do not describe these alternatives, but only refer to Goodman’s “two very
extensive letters” commenting on the alleged failure of the DEIR to adequately address
feasible alternatives and appellants cite to the pages of the record where some of the
numerous alternatives suggested by Goodman appear. Nor do appellants attempt to
describe how these suggested alternatives are significantly different from the alternatives
discussed in the EIR. Instead, appellants challenge the FEIR’s use of a Master Response
on alternatives and separate Master Responses on historical resources and transportation,
by which the FEIR generally responded to many of the hundreds of comments raised. As
appellants recognize, the Master Responses and the responses to individual comment
letters, pointed to similarities between proposed alternatives raised by Goodman and
alternatives that were either studied or that were considered and rejected and concluded
that the additional alternatives need not be considered. Appellants challenge the Master
Responses as failing to respond to each of the numerous proposed alternatives and as
failing “to c[o]me to grips with the specifics of the many alternatives proposed.” Such a
generalized challenge to the FEIR is inadequate. (Eisenberg et al., Civil Appeals and
53
Writs, supra, ¶ 9:21, pp. 9-6 to 9-7 [“appellate court can treat as waived, forfeited or
meritless any issue that, although raised in the briefs, is not supported by pertinent or
cognizable legal argument or proper citation of authority”]; e.g., In re Marriage of
Falcone and Fyke (2012) 203 Cal. App. 4th 964, 1004].)
Only in appellants’ reply brief do they describe a single alternative suggested by
Goodman as to which the FEIR is alleged to have inadequately responded—Goodman’s
“Tower Demolition” alternative.20 Raising the issue in this manner is not sufficient. It is
well established that “[p]oints raised for the first time in a reply brief ordinarily will not
be considered because such consideration would either deprive respondent of an
opportunity to counter the argument or require the effort and delay of an additional brief
by permission. [Citations.]” (Eisenberg et al., Civil Appeals and Writs, supra, ¶ 9:78.2,
p. 9-28 and cases there cited.) Appellants have waived their claim that the FEIR response
to comments was inadequate by their failure to describe in their appellants opening brief
the specific comments to which they maintain the FEIR did not adequately respond and
the particular respects in which the responses were inadequate.
F. Recirculation
Appellants maintain recirculation of the DEIR was required in response to
significant new information. (§ 21092.1; Guidelines, § 15088.5, subd. (a).)21
20
We note real party contends that the alternative for “Full Buildout Under
Existing Zoning Conditions” similarly involved demolition of existing towers and was
fully analyzed in the EIR, along with other alternatives relating to preservation of the
historic core without demolition of the towers.
21
“ ‘A lead agency must recirculate an EIR when “significant new information” is
added to an EIR after the [DEIR] has been circulated for public review. (. . . § 21092.1;
Guidelines, § 15088.5, subd. (a).) New information added to an EIR is not “significant”
unless “the EIR is changed in a way that deprives the public of a meaningful opportunity
to comment upon a substantial adverse environmental effect of the project or a feasible
way to mitigate or avoid such an effect (including a feasible project alternative) that the
project’s proponents have declined to implement.” (Guidelines, § 15088.5, subd. (a).)’
(Clover Valley, supra, 197 Cal.App.4th at p. 223, 128.) [¶] . . . This guideline, however,
was ‘not intend[ed] to promote endless rounds of revision and recirculation of EIR’s.’
(Laurel Heights Improvement Assn. v. Regents of the University of California (1993)
54
Specifically, they contend the San Bruno gas pipeline explosion and fire was potentially
significant new information. We have heretofore addressed the PG&E pipeline issue,
observing the EIR discussion of the PG&E pipeline took into account the San Bruno
pipeline explosion and the finding of no significant impact was supported by substantial
evidence. Other than the bald assertion that the San Bruno accident “raised serious
public safety impact issues about the two major PG&E pipelines bracketing the Project
site,” the opening brief presents no new argument demonstrating recirculation was
warranted.
The only other reference in this section of their opening brief was an unspecific
“new project alternatives proposed in the EIR comments” as significant new information.
Again, appellants have failed to support their claim that recirculation was warranted.
G. CEQA Findings
Appellants next contend that the CEQA findings made by the City were not
supported by substantial evidence. We disagree.
“Section 21081 requires a public agency to make findings for project approvals
under CEQA. The CEQA Guidelines require written findings on each significant
environmental effect of a project, with each finding supported by substantial evidence
and accompanied by a brief explanation of the rationale behind it. (CEQA Guidelines,
§ 15091, subds. (a) & (b).)[22] Put simply, the findings must ‘bridge the analytic gap
6 Cal. 4th 1112, 1132 (Laurel Heights II).) Rather, recirculation is ‘an exception, rather
than the general rule.’ (Ibid.) [¶] ‘Recirculation is not required where the new
information added to the EIR merely clarifies or amplifies or makes insignificant
modifications in an adequate EIR.’ (Guidelines, § 15088.5, subd. (b).) An agency’s
decision not to recirculate the [DEIR is entitled to substantial deference; the petitioner
bears the burden of proof to show no substantial evidence supports the agency’s decision.
(Guidelines, § 15088.5, subd. (e); [citations.]” (North Coast Rivers Alliance v. Marin
Municipal Water Dist. Bd. of Directors, supra, 216 Cal.App.4th at pp. 654-655.)
22
Guidelines section 15091, subdivisions (a) and (b) provide:
“(a) No public agency shall approve or carry out a project for which an EIR has
been certified which identifies one or more significant environmental effects of the
project unless the public agency makes one or more written findings for each of those
55
between the raw evidence and ultimate decision’ so as to allow a reviewing court . . . ‘to
trace and examine the agency’s mode of analysis.’ (Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515, 516.)” (Mira Mar
Mobile Community v. City of Oceanside (2004) 119 Cal. App. 4th 477, 496; see
(Environmental Protection Information Center v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal. 4th 459, 516 (EPIC).)
“The findings do not need to be extensive or detailed. ‘ “[W]here reference to the
administrative record informs the parties and reviewing courts of the theory upon which
an agency has arrived at its ultimate finding and decision it has long been recognized that
the decision should be upheld if the agency ‘in truth found those facts which as a matter
of law are essential to sustain its . . . [decision].’ ” ’ (Sierra Club v. California Coastal
Commission [(1993)] 19 Cal.App.4th [547,] 556.) On the other hand, mere conclusory
findings without reference to the record are inadequate. (See Village Laguna [of Laguna]
Beach, Inc. v. Board of Supervisors[, supra,] 134 Cal.App.3d [at p.] 1035.)” (EPIC,
supra, 44 Cal.4th at pp. 516-517.)
Appellants suggest, but do not argue, that the Board of Supervisor’s adoption of
findings originally made by the Planning Commission is problematic. That is not so.
(E.g., Mira Mar Mobile Community v. City of Oceanside, supra, 119 Cal.App.4th at
significant effects, accompanied by a brief explanation of the rationale for each finding.
The possible findings are:
“(1) Changes or alterations have been required in, or incorporated into, the project
which avoid or substantially lessen the significant environmental effect as identified in
the [FEIR].
“(2) Such changes or alterations are within the responsibility and jurisdiction of
another public agency and not the agency making the finding. Such changes have been
adopted by such other agency or can and should be adopted by such other agency.
“(3) Specific economic, legal, social, technological, or other considerations,
including provision of employment opportunities for highly trained workers, make
infeasible the mitigation measures or project alternatives identified in the [FEIR].
“(b) The findings required by subdivision (a) shall be supported by substantial
evidence in the record.”
56
p. 497 [“The environmental findings provide the required link between the facts
contained in the record and the ultimate findings. . . . [I]ncorporation by reference of the
earlier EIRs and associated documents was sufficient to provide the required link”];
Vedanta Society of So. California v. California Quartet, Ltd. (2000) 84 Cal. App. 4th 517,
528 [“We do not disagree with the idea that an elected body can adopt the findings and
explanations of the lower body”]; 2 Kostka & Zischke, supra, §§ 17.37, 17.38, pp. 17-38,
17-39.)
Appellants argue the CEQA findings are inadequate as they fail to identify the
evidence relied upon. They maintain that referring to the evidence contained in the FEIR
as the evidence supporting the findings is insufficient. Again, not so. There is no
requirement that the findings themselves specifically identify the particular pieces of
evidence and their precise locations in the record that support the findings. (See
Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24
Cal. App. 4th 826, 848-849 [upholding findings based on substantial evidence in the
record with no suggestion that citations to the evidence were required].) “Detailed
findings on an issue are not required if the basis for the agency’s decision is found in the
EIR and the agency’s findings incorporate or adopt the EIR’s discussion and analysis.
[Citations.]” (2 Kostka & Zischke, supra, § 17.37, p. 17-38.) The requirement is that the
findings disclose the reasons for the agency’s decision. (Id. § 17.38, p. 17-39, citing to
Guideline, § 15091, subds (a), (c) [“The findings need disclose no more than the reasons
for the agency’s decision].”)
The CEQA findings here provide ample explanation of the reasons for the City’s
decision. The “Parkmerced Project [CEQA] Findings: Findings of Fact, Evaluation of
Mitigation Measures and Alternatives, and Statement of Overriding Considerations”
adopted by the Planning Commission and in turn adopted and incorporated by the Board
of Supervisors, allows the public and this court “to trace and examine the agency’s mode
of analysis.” (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra,
11 Cal.3d at pp. 515-516.) The findings made by the City about the FEIR’s
determinations regarding significant environmental impacts and the mitigation measures
57
proposed to address them are contained in Sections II, III and IV of the document. The
findings are adequately detailed and specific and we have “ ‘no trouble under the
circumstances discerning “the analytic route the administrative agency traveled from
evidence to action.” [Citations.]’ [Citation.]” (Great Oaks Water Co. v. Santa Clara
Valley Water Dist. (2009) 170 Cal. App. 4th 956, 971.)
Appellant appears to contend the City took an impermissible “shortcut” in
referring to the FEIR and adopting and incorporating the conclusions of that document,
rather than repeating at length the entire analysis for each impact.23 We find no fault in
23
The CEQA findings document explains:
“The following Sections II, III and IV set forth the Planning Commission's
findings about the [FEIR’s] determinations regarding significant environmental impacts
and the mitigation measures proposed to address them. These findings provide the
written analysis and conclusions of the Planning Commission regarding the
environmental impacts of the Project and the mitigation measures included as part of the
FEIR and adopted by the Planning Commission as part of the Project. To avoid
duplication and redundancy, and because the Planning Commission agrees with, and
hereby adopts, the conclusions in the FEIR, these findings will not repeat the analysis and
conclusions in the FEIR, but instead incorporates them by reference herein and relies
upon them as substantial evidence supporting these findings.
“In making these findings, the Planning Commission has considered the opinions
of Department and other City staff and experts, other agencies and members of the
public. The Planning Commission finds that the determination of significance thresholds
is a judgment decision within the discretion of the City and County of San Francisco; the
significance thresholds used in the FEIR are supported by substantial evidence in the
record, including the expert opinion of the EIR preparers and City staff; and the
significance thresholds used in the FEIR provide reasonable and appropriate means of
assessing the significance of the adverse environmental effects of the Project.
“These findings do not attempt to describe the full analysis of each environmental
impact contained in the FEIR. Instead, a full explanation of these environmental findings
and conclusions can be found in the FEIR and these findings hereby incorporate by
reference the discussion and analysis in the FEIR supporting the determination regarding
the Project impacts and mitigation measures designed to address those impacts. In
making these findings, the Planning Commission ratifies, adopts and incorporates in
these findings the determinations and conclusions of the FEIR relating to environmental
impacts and mitigation measures, except to the extent any such determinations and
conclusions are specifically and expressly modified by these findings. As set forth
below, the Planning Commission adopts and incorporates the mitigation measures set
58
this process, provided the findings satisfy the requirement that they disclose the reasons
for the decision and are supported by substantial evidence. Appellants have failed to
carry their burden in showing that the findings in the FEIR were inadequate.
Appellants contend the “FEIR did not contain substantial evidence to support its
rejection of numerous impacts as significant.” We have previously rejected this claim.
Further, appellants fail to identify what specific impacts they contend were insufficiently
addressed in the findings. They have failed to meet their burden to overcome the
presumption that the City’s actions were appropriate.
Appellants argue that various project alternatives were impermissibly rejected as
“infeasible” without City’s identification of evidence in the record demonstrating
infeasibility. They specifically call out the “Buildout Under Current Zoning Regulations
Alternative,” the “Retention of the Central Core Historic District Alternative,” and the
forth in the FEIR and the attached MMRP, except as to mitigation measures specifically
rejected in Section V below, to substantially lessen or avoid the potentially significant
and significant impacts of the Project. The Planning Commission intends to adopt the
mitigation measures proposed in the FEIR, with the exception of those specifically
rejected in Section V below. Accordingly, in the event a mitigation measure
recommended in the FEIR has inadvertently been omitted in these findings or the
MMRP, such mitigation measure is hereby adopted and incorporated in the findings
below by reference. In addition, in the event the language describing a mitigation
measure set forth in these findings or the MMRP fails to accurately reflect the mitigation
measures in the FEIR due to a clerical error, the language of the policies and
implementation measures as set forth in the FEIR shall control. The impact numbers and
mitigation measure numbers used in these findings reflect the information contained in
the FEIR.
“In the Sections II, III and IV below, the same findings are made for a category of
environmental impacts and mitigation measures. Rather than repeat the identical finding
dozens of times to address each and every significant effect and mitigation measure, the
initial finding obviates the need for such repetition because in no instance is the Planning
Commission rejecting the conclusions of the FEIR or the mitigation measures
recommended in the FEIR for the Project, except as specifically set forth in Section V
below.”
59
“No Project” alternative as lacking substantial evidence in the record to show
infeasibility. The findings are set forth in relevant part in the margin.24 25 26
24
The City adopted the findings made by the Planning Commission with respect
to the “Buildout Under Current Zoning Regulations” alternative. The findings included a
description of the pros and cons of the alternative and then continued:
“The Commission rejects the Buildout under Current Zoning Regulations
Alternative because it would not reduce any of the other significant and unavoidable
impacts of the Proposed Project; would not reconfigure the Project Site’s streets in
accordance with the Better Streets Plan, would not provide new and more usable open
spaces such as a park; would not provide a more fine-grained system of streets and
pathways and therefore correct the deficiencies of the current site plan; would not provide
neighborhoodserving retail and commercial uses in close proximity to residential uses,
and therefore would not provide the same opportunities to reduce automobile use; it
would increase the severity of traffic impacts on local intersections; it would not reduce
stormwater flows in the City’s combined sewer collection and treatment system; and it
would not provide open space in such usable configurations as that in the Proposed
Project and therefore would not provide high-quality open space to serve the residents
within walking distance.
“For these reasons, the Commission finds that, on balance, the Proposed Project is
preferable to the Buildout under Current Zoning Regulations Alternative, and that
alternative is rejected as infeasible.”
25
Similarly, the findings regarding the “Retention of the Historic District Central
Core Alternative” set out a description of the pros and cons of the alternative (including
recognition that “[t]his alternative would result in the addition of about 2,346 new units
to the City’s housing stock, about 3,300 fewer than in the Proposed Project. This
alternative would include about 205,000 sq. ft. of retail, commercial, and community
uses, about 100,000 sq. ft. less than in the Proposed Project”) and then continued:
“The Commission rejects the Retention of the Historic District Central Core
Alternative because it would add fewer residential units to the City’s housing stock and
therefore contribute less to the City and regional housing needs allocation; it would add
fewer residential units in [an] urban infill location; it would provide less residential
density and therefore would be less consistent with the City’s goal to create a sustainable
and self-sufficient ‘better’ neighborhood that supports neighborhood serving retail,
community facilities and tran[si]t infrastructure and service; although it would reduce, it
would not eliminate significant transportation impacts; it would require that the majority
of new housing be situated on a portion of the project site that is farthest from the Muni
M Ocean View light rail line and therefore would be less likely to result in a reduction of
automobile dependency; it would not reduce wet-weather flows in the City’s combined
wastewater collection and treatment system; it would provide fewer employment
60
Appellants argue that the alternatives would reduce or eliminate one or more of
the project’s significant environmental impacts, and that the findings and the FEIR do not
identify any factual basis for finding these alternatives to be infeasible. First, the
suggestion that an alternative may not be rejected as infeasible so long as it would result
in fewer significant environmental impacts is mistaken. Alternatives may properly be
rejected as infeasible based on economic, social, or other conditions, notwithstanding that
the alternatives may cause fewer significant environmental impacts than the proposed
opportunities both during construction and in new retail and office space; it would not
provide the reconfiguration of the street system in accordance with the Better Streets
Plan; would not provide a more fine-grained system of streets and pathways and therefore
correct the deficiencies of the existing automobile-oriented streets and site plan; would
not reconfigure the open space at the Project Site to provide more usable open spaces
such as a park; and would not re-route the M Ocean View light rail line into the Project
Site, because doing so would negatively impact the historic resource, and therefore would
be less consistent with the City’s Transit First policy. For these reasons, the Commission
finds that, on balance, the Proposed Project is preferable to the Historic District Central
Core Alternative, and this alternative is rejected as infeasible.”
26
The City found with respect to the “No Project” alternative:
“Under the No Project Alternative, the site would remain in its existing condition,
no existing buildings or landscaping would be demolished and no new buildings would
be constructed. No on- or off-site infrastructure improvements would be constructed.
The physical impacts identified in the [FEIR] for the Proposed Project would not occur.
“The No Project Alternative would not provide additional density in an
underutilized area of the City, would not add up to 5,679 additional residential units to
the City’s housing stock, would not help reduce the shortage of affordable housing in the
City, would not help the City meet its regional housing needs allocation, would not
improve transit service and facilities in the southwest quadrant of the City, would not
reduce wet-weather flows in the City’s combined wastewater collection and treatment
system, would not provide employment opportunities either during construction or in new
retail and office space in the neighborhood core, and would not provide opportunities for
renewable energy generation.
“Further, this alternative would not improve the City’s revenues by adding new
residential and commercial space to the City’s inventories.
“For these reasons, the Commission finds that, on balance, the Proposed Project is
preferable to the No Project Alternative and that the No Project alternative is rejected as
infeasible.”
61
project. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692, 731
[CEQA does not compel adoption of one of the alternative projects if it would avoid the
identified environmental damage. It merely required the agency to weigh the feasibility
of the proposed alternatives and to make findings regarding feasibility]; see San
Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra,
102 Cal.App.4th at p. 695 [“CEQA does not require that an agency select the alternative
course most protective of the environmental status quo”].)
Second, the term “feasible” does not simply mean “possible.” If so, few projects
would go forward. (Sierra Club, supra, 121 Cal.App.4th at p. 1510 [applying CEQA
case law to interpretation of “infeasible” in a specific plan].) “ ‘[F]easibility’ under
CEQA encompasses ‘desirability’ to the extent that desirability is based on a reasonable
balancing of the relevant economic, environmental, social, and technological factors.’ ”
(City of Del Mar v. City of San Diego (1982) 133 Cal. App. 3d 401, 417.) To determine
whether an alternative is infeasible, “an agency must necessarily weigh and balance its
pros and cons taking account of a broad range of factors. [Citations.]” (2 Kostka &
Zischke, supra, § 17.29, p. 17-29, citing Pub. Res. Code §§ 21061.1, 21081, subd. (a)(3);
and Guidelines, §§ 15091, subd. (a)(3), 15346.) “After weighing these factors, an agency
may conclude that a mitigation measure or alternative is impractical or undesirable from
a policy standpoint and reject it as infeasible on that ground.” (Ibid; see also, California
Native Plant Society, supra, 177 Cal.App.4th at p. 1001 [where alternatives would not
accomplish city’s policy goals of promoting transportation alternatives and access to
persons with disabilities, agency was allowed to weigh policy considerations in rejecting
alternatives as infeasible]; City of Del Mar, at p. 417 [alternatives found infeasible where
they conflict with agency planning goals].)
In this case, findings on the three alternatives identified by appellants were
adequate and were supported by substantial evidence in the record.
IV. Due Process
Appellants contend the trial court erred in dismissing appellant PMAC’s due
process claim upon real party’s demurrer. We find no error.
62
The eighth cause of action alleged that as tenants of Parkmerced, members of
PMAC hold property rights associated with their rent-controlled units, that they will be
displaced by the Project Approvals and the development agreement, that they have a due
process right to notice and an opportunity to be heard, and that these rights were violated
by the refusal to properly provide notice to them and to allow them to re-address the
Board following significant changes to the development agreement and to Project
Approvals affecting their property rights. The last minute changes to the development
agreement added provisions that in the event a court challenge invalidates the rent control
provision, real party will provide the tenants with relocation assistance and damages that
will compensate them for the loss. These changes were made in the attempt to minimize
any uncertainty about tenants’ ability to retain rent control in the new units whatever the
impact of Costa-Hawkins Rental Housing Act.
Appellants acknowledge the well-settled rule that “only those governmental
decisions which are adjudicative in nature are subject to procedural due process
principles.” (Horn v. County of Ventura (1979) 24 Cal. 3d 605, 612 (Horn).) “Legislative
action generally is not governed by these procedural due process requirements because it
is not practical that everyone should have a direct voice in legislative decisions; elections
provide the check there. [Citation.]” (Calvert v. County of Yuba (2006) 145 Cal. App. 4th
613, 622; see Horn, at p. 613; Nasha v. City of Los Angeles (2004) 125 Cal. App. 4th 470,
482.) Appellants also acknowledge that the approval of a development agreement is a
legislative act. (Gov. Code, § 65867.5, subd. (a) [“A development agreement is a
legislative act that shall be approved by ordinance and is subject to referendum”]; see
generally, Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal. 3d 511, 523
(Arnel) [“past California land-use cases have established generic classifications, viewing
zoning ordinances as legislative and other decisions, such as variances and subdivision
map approvals, as adjudicative”].) Nor do appellants dispute that the approvals at issue
here are classified as legislative acts.
Nevertheless, appellants posit the novel theory that a development agreement,
while not a project approval, is an entitlement and not a “law of general applicability.”
63
Therefore, appellants contend, approval of the development agreement is subject to due
process protections, despite its characterization by statute as a legislative action. No case
cited by appellants supports this argument—that a legislative act may trigger procedural
due process rights when it is arguably not a law of general applicability. Such holding
would upset well-established legislative-adjudicative act categorical distinctions and
likely would cause uncertainty and confusion. California courts are not required to
conduct an individualized assessment into the type of land use decision at issue. (Arnel,
supra, 28 Cal.3d at p. 517.) In Arnel, the California Supreme Court held that a zoning
ordinance is a legislative act that may be enacted by initiative, whatever the size of parcel
or number of landowners affected, unlike administrative zoning decisions, adjudicatory in
nature, such as the grant of a variance or the award of a conditional use permit. (Id. at pp.
514-515.) The court emphasized the “problems courts will face if we abandoned past
precedent and attempted to devise a new test distinguishing legislative and adjudicative
decisions.” (Id. at pp. 522-523.)
As respondents point out, appellants rely on a handful of cases as supporting the
expansion of due process protection where a legislative act “exceptionally affected” a
small number of people. (See Bi-Metallic Inv. Co. v. State Board of Equalization (1915)
239 U.S. 441, 446 (Bi-Metallic) [distinguishing Londoner v. Denver (1908) 210 U.S. 373,
as involving a “relatively small number of persons, . . . who were exceptionally affected,
in each case upon individual grounds”]; Harris v. County of Riverside (9th Cir. 1990) 904
F.2d 497, 502 [holding that due process applied to zoning ordinance that “ ‘exceptionally
affected’ ” Harris’s land].) None of these cases would apply due process requirements to
the approval of a general plan amendment, zoning ordinance or development agreement
encompassing 152 acres and affecting renters in more than 1,500 units. (See Arnel,
supra, 28 Cal.3d at pp. 522-523.) As Bi-Metallic recognized in finding no due process
right at issue in that case: “Where a rule of conduct applies to more than a few people, it
64
is impracticable that every one should have a direct voice in its adoption.” (Id. at p.
445.)27
Moreover, insofar as approval of the development agreement requires
consideration of broad-based policy issues and the exercise of legislative discretion, it is
conduct that does not fit well within the framework of adjudicatory decisions. (See
Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191
Cal. App. 4th 435, 443-444 (Mammoth Lakes).)28 Whether or not approval of the
development agreement here is conduct applying to more than a few people, it is
undisputed that under state law the approval of the development agreement is a
27
Contrary to appellants’ characterization, Bi-Metallic, supra, 239 U.S. at page
445, did not strike down a Colorado statute that established a procedure for taxing
property owners for the cost of street improvements, without affording them prior notice
and an opportunity for hearing. Rather, the Supreme Court concluded that an order of the
tax commissioner and State Board of Equalization requiring local taxing officer to
increase assessed valuation did not violate due process and it affirmed the lower court’s
order dismissing the action. (Id. at pp. 444, 446.)
28
“A development agreement is a statutorily authorized agreement between a
municipal government . . . and a property owner for the development of the property.
(Gov. Code, § 65865, subd. (a).) One of the main components of a development
agreement is a provision freezing the municipality’s rules, regulations, and policies
governing permitted uses of land and density of the land use, as well as standards and
specifications for design, improvement, and construction. (Gov. Code, § 65866.) This
provision allows a developer to make long-term plans for development without risking
future changes in the municipality’s land use rules, regulations, and policies. (Santa
Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000)
84 Cal. App. 4th 221, 227 (SMART).)
“The development agreement must be approved by ordinance and is, therefore, a
‘legislative act.’ (Gov. Code, § 65867.5, subd. (a).) Because the development agreement
is approved by ordinance, it is subject to referendum, which allows the electorate to
overturn approval of the agreement. (Ibid.) While, as a legislative act, a development
agreement can be disapproved by referendum, an unchallenged development agreement
is an enforceable contract between the municipality and the developer. Depending on its
terms, it may create vested rights in the developer with respect to land use. (See SMART,
supra, 84 Cal.App.4th at p. 230 [development agreement creates commitments to
developers].)” (Mammoth Lakes, supra, 191 Cal.App.4th at pp. 443-444.)
65
legislative act. As such, it has long been held that no procedural due process rights
attach.
Nor do we find persuasive appellant’s theory that because the development
agreement granted a vested right to the developer, “locking in” the regulatory framework
under which further approvals would be considered, Parkmerced tenants necessarily
acquired vested rights entitling them to procedural due process. That the development
agreement may provide a vested right to the developer does not necessarily take away
vested rights from PMAC or its members. Moreover, courts have repeatedly rejected the
claim that an approval should be subject to procedural due process requirements simply
because it affects property rights in some manner. Legislative actions often involve
approvals affecting individual property rights. (E.g., Oceanside Marina Towers Assn v.
Oceanside Community Development Com. (1986) 187 Cal. App. 3d 735, 745 (Oceanside
Marina Towers) [despite “substantial impact on surrounding properties,” public entity’s
selection of a site for a new public improvement consistently has been held to be a quasi-
legislative act exempt from due process hearing requirements].)
Appellant contends that under Horn, supra, 24 Cal. 3d 605, a property owner
whose property interest would be directly and significantly affected by granting a vested
right to another property has a right to due process. However, Horn first concluded that
approval of a tentative subdivision map was “adjudicatory” in nature. (Id. at p. 614
[“Subdivision approvals, like variances and conditional use permits, involve the
application of general standards to specific parcels of real property. Such governmental
conduct, affecting the relatively few, is ‘determined by facts peculiar to the individual
case’ and is ‘adjudicatory’ in nature”].) Only thereafter did the court address the
argument of the subdivider that the plaintiff neighbor had suffered no significant
deprivation of property which would invoke constitutional rights to notice and hearing.
As to that point, the court held that “whenever approval of a tentative subdivision map
will constitute a substantial or significant deprivation of the property rights of other
landowners, the affected persons are entitled to a reasonable notice and an opportunity to
be heard before the approval occurs.” (Id. at p. 616, italics added.) In this case, having
66
properly determined the first question, that a legislative act was involved to which act
procedural due process did not attach, the trial court was not required to analyze whether
the members of PMAC suffered a substantial or significant deprivation of property rights.
(See Oceanside Marina Towers, supra, 187 Cal.App.3d at p. 744.)
Because the character of the development agreement approval is a legislative act,
and it has long been established that procedural due process rights to notice and hearing
do not attach to such acts, we conclude the court did not err in sustaining the demurrer to
the eighth cause of action.29
V. Administrative Record
Appellants contend the trial court erred in including in the administrative record
transcripts of a set of hearings before the LUEDC of the Board. Appellants contend
transcripts of the LUEDC hearings were not relevant to the City’s decision because these
documents were not before the decision maker—the Board—when it certified the EIR for
the project on June 6, 2010.
A. Facts
From August 10, 2010 to May 24, 2011, the LUEDC, a committee of the Board,
held five meetings to consider the project and development agreement. The last of these
was held the morning of May 24, hours before the Board considered and certified the EIR
appeal and the project. At both the May 16 and May 24 meetings, the LUEDC discussed
and approved amendments to the approvals. At the end of the May 24 hearing, the
LUEDC forwarded the amended documents to the Board without recommendation.
On the afternoon of May 24, the Board heard the appeal of the EIR, denied the
appeal and approved the project. On June 6, 2011, the Board finalized the Project
Approvals. In certifying the EIR, the Board found that “the FEIR files and all
29
Our determination of this issue makes it unnecessary to address respondents’
further claim that appellants failed to adequately allege they had insufficient opportunity
to present their case against approval of the development agreement and the project to the
Board or that they could have been prejudiced by the strengthening of the tenant
relocation program protections.
67
correspondence and other documents have been made available for review by this Board
and the public. These files are available for public review by appointment at the Planning
Department offices at 1650 Mission Street, and are part of the record before this Board
by reference in this motion . . . .” (Italics added.) (§ 21081.6, subd. (a)(2).) Audio and
video files of the LUEDC hearings were televised on SFGovTV and those hearings were
generally available for viewing in the Board of Supervisors’ offices and on the City’s
website.
Following the filing of their petition for writ of mandate in the superior court,
appellants moved to “clarify the record” (Madera Oversight Coalition, Inc. v. County of
Madera (2011) 199 Cal. App. 4th 48, 62 (Madera), disapproved on other grounds in
Neighbors for Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Cal. 4th
439), seeking to exclude from the administrative record transcripts of various hearings on
the project, including the LUEDC hearings.30 The trial court granted the motion in part
and ordered: “The transcripts for San Francisco’s Historic Preservation Commission
hearing on June 2, 2010, and for all of the hearings of the Board of Supervisors’
[LUEDC] relating to the Parkmerced Project, are within the scope of the administrative
record, and shall be included in the record. The transcripts for these hearings are within
the scope of [section] 21167.6. Transcripts of these hearings must be prepared, certified
as a true and accurate record of the proceedings, and included in the administrative
record. . . .”
B. Standard of Review
“We review a trial court’s determination to include or exclude a document from
the administrative record pursuant to the mandatory language of subdivision (e) of
30
Respondents contend that as to LUEDC hearings, appellants’ motion objected
only the transcript for the May 24, 2011—the last hearing before the Board’s EIR
certification. Although the record is not entirely clear, we tend to agree with respondents
that only the May 24, 2011 hearing was specifically challenged. However, the court
obviously believed appellants were challenging a group of LUEDC hearings. As our
analysis applies to the LUEDC hearing of May 24, 2011, it necessarily applies to LUEDC
hearings preceding that date as well.
68
section 21167.6 by applying the following ordinary principles of appellate practice. [¶]
The trial court’s findings of fact are reviewed under the substantial evidence standard.
[Citation.] The trial court’s conclusions of law are subject to independent review on
appeal. [Citation.] [¶] In addition to the foregoing standards of review, appellate review
of a trial court’s determinations regarding the scope of the administrative record is
subject to the principle that appellate courts presume the trial court’s order is correct.
[Citation.] This presumption produces the corollaries that (1) an appellant must
affirmatively demonstrate an error occurred and (2) when the appellate record is silent on
a matter, the reviewing court must indulge all intendments and presumptions that support
the order or judgment. [Citation.] The intendments and presumptions indulged by the
appellate court include inferring the trial court made implied findings of fact that are
consistent with its order, provided such implied findings are supported by substantial
evidence.” (Madera, supra, 199 Cal.App.4th at p. 65, fn. omitted.)
C. Section 21167.6
As Madera, supra,199 Cal. App. 4th 48, recognized: “The contents of the
administrative record are governed by subdivision (e) of section 21167.6,[31] which
31
“(e) The record of proceedings shall include, but is not limited to, all of the
following items: [¶] . . . [¶]
“(2) All staff reports and related documents prepared by the respondent public
agency with respect to its compliance with the substantive and procedural requirements
of this division and with respect to the action on the project. [¶] . . . [¶]
“(4) Any transcript or minutes of the proceedings at which the decisionmaking
body of the respondent public agency heard testimony on, or considered any
environmental document on, the project, and any transcript or minutes of proceedings
before any advisory body to the respondent public agency that were presented to the
decisionmaking body prior to action on the environmental documents or on the project.
[¶] . . . [¶]
“(7) All written evidence or correspondence submitted to, or transferred from, the
respondent public agency with respect to compliance with this division or with respect to
the project. [¶] . . . [¶]
“(10) Any other written materials relevant to the respondent public agency’s
compliance with this division or to its decision on the merits of the project, including the
69
begins: ‘The record of proceedings shall include, but is not limited to, all of the
following items: . . . .’ Subdivision (e) then enumerates 11 categories of material that
must be included in the administrative record. . . . [¶] The quoted statutory language is
relevant to establishing the legal context for this appeal. First, the language is
mandatory—all items described in any of the enumerated categories shall be included in
the administrative record. [Citation.] Second, the statutory phrase ‘include, but is not
limited to’ indicates the extensive list provided in the statute is not exclusive. ‘It has been
observed that this section “contemplates that the administrative record will include pretty
much everything that ever came near a proposed development or to the agency’s
compliance with CEQA in responding to that development.” (County of Orange v.
Superior Court (2003) 113 Cal. App. 4th 1, 8, italics omitted . . . .)’ (Eureka Citizens for
Responsible Government v. City of Eureka, supra, 147 Cal.App.4th at pp. 366-367.)” (Id.
at pp. 63-64.)
Section 21167.6, subdivision (e)(10) includes “[a]ny other written materials
relevant to the respondent public agency’s compliance with this division or to its decision
on the merits of the project . . . .” A broad “interpretation of ‘other written materials,’ . . .
stands in harmony with the introductory language in section 21167.6, subdivision (e) that
states the ‘record of proceedings shall include, but is not limited to . . . .’ (Italics added.)
This language demonstrates that the Legislature intended courts to avoid narrowly
applying the 11 categories set forth in section 21167.6, subdivision (e) when such an
application would subvert the purposes underlying CEQA.” (Consolidated Irrigation
Dist. v. Superior Court (2012) 205 Cal. App. 4th 697, 718 (CID).) The audio recordings
of the LUEDC hearing (and their later transcriptions) constitute “ ‘other written materials
initial study, any drafts of any environmental document, or portions thereof, that have
been released for public review, and copies of studies or other documents relied upon in
any environmental document prepared for the project and either made available to the
public during the public review period or included in the respondent public agency’s files
on the project, and all internal agency communications, including staff notes and
memoranda related to the project or to compliance with this division.” (§ 21167.6, subd.
(e).)
70
relevant to’ ” the agency’s “ ‘decision on the merits of the project’ ” (id. at pp. 714, 716)
and, therefore, were required to be included in the administrative record.32 (Id. at p. 703
[“tape recordings of public agency hearings qualify as ‘other written materials’ for
purposes of [this subdivision], and, therefore, copies of tape recordings should have been
included in the record of proceedings that City lodged with the trial court”].)
Relying upon Western States, supra, 9 Cal.4th at pages 571-572, appellants
contend the LUEDC hearings evidence was not before the decisionmakers when they
made their decision. However, Western States did not concern the issue of what
documents were properly included in the administrative record. Rather, it addressed the
issue whether evidence admittedly not contained in the administrative record was
admissible in a traditional mandamus action under CEQA to determine that the agency
had abused its discretion within the meaning of section 21168.5. (Western States, at
p. 565.) The Supreme Court held “courts generally may not consider evidence not
contained in the administrative record when reviewing the substantiality of the evidence
supporting a quasi-legislative administrative decision under . . . section 21168.5” and
that “extra-record evidence is generally not admissible to show that an agency ‘has not
proceeded in a manner required by law’ in making a quasi-legislative decision.” (Ibid.)
Appellants contend that it is not sufficient documents were “available to” the
decisionmakers before they made their decision. Western States, certainly stands for the
proposition that documents generated after the Board decision are generally inadmissible
on the abuse of discretion issue. However, it nowhere holds that the documents must be
identified in the motion affirming certification of the EIR in order to be “before the
decisionmaker.” Appellants’ attempt to extract support for their position from CID,
supra, 205 Cal.App.4th at pages 718-723, is unavailing. That part of the CID opinion
addressed whether documents referenced in comment letters on the DEIR should be
32
The court also properly required transcripts to be prepared for each hearing
pursuant to California Rules of Court, rule 2.1040(a), requiring audio recording
introduced into evidence be accompanied by a typewritten transcript. (See Darley v.
Ward (1980) 28 Cal. 3d 257, 263.)
71
included in the administrative record under section 21167.6, subdivision (e)(7). In
determining whether such documents were “ ‘submitted to” the public agency, the court
used the general meaning of “presented or made available for use or study.” (CID, at pp.
723-724.) The court held documents that were “readily available for use by City
personnel” and documents named in a comment letter along with a specific Web page at
which the document could be easily located, together with a specific request that they be
included in the record satisfied the statute; whereas documents referenced with a citation
to a general Website were “not made readily available to City and, therefore, are not part
of the record of proceedings under section 21167.6, subdivision (e)(7).” (Id. at p. 724.)
Not only does this portion of CID interpret a different part of the statute, but the question
whether documents and other evidence referenced in comment letters by the public are
“readily available” to the City is patently distinguishable from the question of the ready
availability to the City of the City’s own hearings. The court could certainly conclude
that members of the Board of Supervisors did not need instruction on where to find the
recordings of its committee meetings.
Furthermore, the LUEDC hearings undisputedly occurred before the Board of
Supervisor’s decision. The Board’s motion that it had “heard testimony and received
public comment regarding the adequacy of the FEIR” is reasonably determined to include
public testimony before Board committees. Under the Board’s Rules of Order, the full
Board did not take separate public testimony on matters that were before a Board
Committee. (Former Board of Supervisors’ Rule of Order 1.5(b), effective February 15,
2011 [“If a committee has provided the opportunity for public testimony and forwarded
an ordinance, resolution, or motion to the full Board, the Board does not provide a second
opportunity for public testimony at the full Board meeting”].) Testimony received by the
Board as to the adequacy of the FEIR includes the testimony submitted on project
approvals at committee hearings preceding the determination.
Appellants have failed to show that the trial court erred in determining the
LUEDC hearings were properly part of the administrative record.
72
D. No Prejudice
Finally, we agree with respondents that even if the LUEDC committee’s
transcripts were not part of the administrative record, the trial court’s order of inclusion
would not constitute reversible error, absent a showing by appellants as to how they were
prejudiced by the inclusion of the transcripts. Appellants have not tried to demonstrate
actual prejudice, but rely upon a theory that any violation of CEQA’s procedural
mandates is “presumptively prejudicial,” citing Mountain Lion Foundation v. Fish &
Game Com. (1997) 16 Cal. 4th 105, 137.33
Recently, our Supreme Court has explained: “An omission in an EIR’s significant
impacts analysis is deemed prejudicial if it deprived the public and decision makers of
substantial relevant information about the project’s likely adverse impacts. Although an
agency’s failure to disclose information called for by CEQA may be prejudicial
‘regardless of whether a different outcome would have resulted if the public agency had
complied’ with the law (§ 21005, subd. (a)), under CEQA ‘there is no presumption that
error is prejudicial’ (§ 21005, subd. (b)). Insubstantial or merely technical omissions are
not grounds for relief. ([EPIC], supra, 44 Cal.4th at pp. 485-486.) ‘A prejudicial abuse
of discretion occurs if the failure to include relevant information precludes informed
decisionmaking and informed public participation, thereby thwarting the statutory goals
of the EIR process.’ [Citation.]” (Neighbors for Smart Rail v. Exposition Metro Line
Const. Authority (2013) 57 Cal. 4th 439, 463, italics added.)
Insofar as prejudice resulting from the inclusion of too much information in the
administrative record is concerned, the court in County of Orange v. Superior Court,
33
In Mountain Lion Foundation, the court held the Fish and Game Commission
had abused its discretion in delisting the Mojave ground squirrel where it failed to
respond in writing to significant environmental opposition and gave no meaningful
consideration to the “no project” alternative to delisting the species. Consequently it did
not proceed in accordance with procedures mandated by law. The court cited Sierra Club
v. State Board of Forestry (1994) 7 Cal. 4th 1215, 1235-1237, and in ellipses
characterized its holding as “[failure to proceed in accordance with law presumptively
prejudicial when mandatory procedures not followed].” (Mountain Lion Foundation,
supra, 16 Cal.4th at p. 137.)
73
supra, 113 Cal. App. 4th 1, had this to say: “[W]hen it comes to the administrative record
in a CEQA case, any reduction in its contents is presumptively prejudicial to project
proponents. [Citation.] It is, after all, the project proponents who will be saddled with
the task of pointing to things in the record to refute asserted inadequacies in the EIR. By
all rights, then, the burden of showing prejudice from any overinclusion of materials into
the administrative record must be on the project opponents, who have the most to gain
from any underinclusion. [Citations.]” (Id. at p. 13, italics added.) We agree.34
DISPOSITION
The judgment in favor of respondents is affirmed.
34
Appellants’ motion to strike portions of respondents’ answer to the brief of
amici curiae Sierra Club and California Preservation Foundation has been granted in part
in our order filed October 28, 2013. We hereby deny the motion as to the remaining
portions of respondents’ answer to the amici brief.
74
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Brick, J.*
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A137753, San Francisco Tomorrow et al. v. City and County of San Francisco et al.
75
Trial Court: San Francisco Superior Court
Trial Judge: Hon. Teri L. Jackson
Attorneys for Plaintiffs and Appellants: Law Offices of Stuart M. Flashman
Stuart M. Flashman
Attorneys for Amicus Curiae on behalf of Chatten-Brown & Carstens
Plaintiffs and Appellants: Jan Chatten-Brown
Josh Chatten-Brown
Attorneys for Defendants and Respondents: San Francisco City Attorney
City Attorney Dennis J. Herrera
Kate H. Stacy
Audrey Williams Pearson
Brian F. Crossman
Attorneys for Real Party in Interest and Gibson Dunn & Crutcher
Respondent: Daniel Kolkey
Jeffrey D. Dintzer
Matthew C. Wickersham
76