The Court of Appeal rejected petitioner’s argument that the city was required to prepare a program-level EIR rather than project-level EIR for a long-term development plan in the San Francisco Bay.  In Citizens for a Sustainable Treasure Island v. City and County of San Francisco (July 7, 2014, Case No. A137828), the court held that the EIR provided sufficient project-level information and properly relied on regulatory standards and guidelines. The court also upheld the EIR’s project description, analyses of hazardous substances and historic resources, and its discussion regarding conformity with the Tidelands Trust. In addition, the court held that the draft EIR did not need to be recirculated.

Background

The Treasure Island/Yerba Buena Island Project is a comprehensive plan to redevelop the former naval station located on Treasure Island and Yerba Buena Island in San Francisco into a mixed-use community. Among other amenities, the project will include up to 8,000 residential units, up to 140,000 square feet of commercial and retail space; up to 100,000 square feet of office space; 300 acres of parks, playgrounds, and open public space; restoration and reuse of historic buildings; bike and transit facilities; and a new ferry terminal and intermodal transit hub. Build-out of the project is planned to occur in phases over a 15- to 20-year period.

The City and County of San Francisco, along with the Treasure Island Development Authority, approved the project in June 2011. A group called Citizens for a Sustainable Treasure Island (CSTI) filed a petition for writ of mandate challenging the EIR for the project on various grounds. The trial court denied the petition in its entirety and CSTI appealed.

The Appellate Court’s Opinion

Before reaching the merits of CSTI’s arguments, the court clarified the applicable standard of review. Despite CSTI’s efforts to frame the issues to allege procedural violations under CEQA, the court determined that most of the issues raised on appeal were properly reviewed under the substantial evidence standard because they involved the sufficiency of the information provided to the public and to the decision makers. The court clarified that because CEQA requires an EIR to reflect a good faith effort at full disclosure, rather than perfect or exhaustive analysis, the absence of information in an EIR will normally rise to a failure to proceed in the manner required by law only if the analysis in the EIR is clearly inadequate or unsupported.

Project-Level v. Program-Level Analysis

CSTI’s primary argument on appeal was that the city was required to prepare a program EIR rather than a project EIR. It claimed that the project was only developed at a conceptual level by design, and therefore, the city was required to prepare a program EIR and analyze the project using “tiered” environmental review. The court rejected the argument, pointing out that CSTI failed to cite any authority suggesting that the city was required to prepare any particular type of EIR. The court emphasized that the label assigned to an EIR is less important than the EIR’s sufficiency as an informative document. Instead of focusing on labels when reviewing EIRs for legal adequacy, courts focus on whether EIRs provides decision makers and the public with sufficient analysis to intelligently consider the environmental consequences of a project. 

Adequacy of Project Description

The court next addressed CSTI’s argument that the project description was inadequate. Similar to its previous argument, CSTI claimed that the EIR analyzed only an “abstract and indeterminate ‘conceptual’ development scenario” lacking necessary project-level detail. It complained, for example, that the specific configuration and design for particular buildings is left for future review and the street layout is only conceptual, with the final layout also subject to future review by responsible agencies.

The court rejected these criticisms. While the EIR did not include the exact, final plans for each building or street, it identified numerous design standards “governing virtually every aspect of project development.” The court determined these design standards provided stable information regarding final building details, including heights, mass, bulk, and other design specifications, while still allowing flexibility at the early stage in the planning process to allow future revisions. The court also noted that future revisions would likely be the subject of further supplemental environmental review. Accordingly, the court determined the EIR’s project description was adequate.

Presence and Remediation of Hazardous Substances

The court next rejected CSTI’s argument that the EIR did not include enough detail about the hazardous materials on the project site and how the city might remediate them. It explained that the EIR included extensive information on the presence of toxic or hazardous substance in the project area. It also noted that the Navy assumed primary responsibility for the remediation of each parcel of land before transferring it to the City. Further, in the event the city or developer assumed responsibility for any cleanup efforts in the future, they would be subject to the same environmental regulations and regulatory oversight as the Navy, and these numerous regulatory requirements were described in a mitigation measure adopted with the EIR.

CSTI also argued the mitigation measure was improperly deferred because a remediation plan would not be developed until a future time. The court found this argument unconvincing. The EIR relied on the existing regulatory scheme and performance standards to ensure any potential future remediation would occur without generating significant environmental impacts.

Recirculation

CSTI also argued that the City was required to recirculate the draft EIR in light of “significant new information.” During the comment period, the Coast Guard submitted a comment suggesting the project could interfere with vessel safety and homeland security on San Francisco Bay by interfering with the Coast Guard’s Vessel Traffic Service (VTS).

In response to the comment, the City met with the Coast Guard and conducted additional technical studies to determine potential impacts of buildings on VTS equipment operations. The final EIR amended design standards for the project to require consultation with the Coast Guard if future proposals included buildings tall enough to interfere with VTS equipment. The design standards also require any building developer to work with the Coast Guard to make space for additional equipment, or reach a similar solution, to preserve the effectiveness of the VTS. The Coast Guard submitted an additional comment letter, indicating the consultation process addressed the agency’s prior concerns. When approving the project, the city explicitly found that this binding consultation process would eliminate any impacts to vessel safety on San Francisco Bay.

Finding that the Coast Guard’s letter did not raise significant new information within the meaning of CEQA, the court explained that the record contained substantial evidence indicating the continued effectiveness of the VTS system would be ensured, despite urban development on Treasure Island and the refinements made to the EIR to satisfy the Coast Guard’s concerns did not constitute the type of significant new information requiring recirculation of an EIR.

Historic Resources

CTSI also argued the EIR did not adequately disclose or mitigate potential impacts to two historic buildings in the project area because the EIR did not identify the precise and final disposition of those buildings. But again, the EIR identified binding design standards which would apply to any final architectural design proposals. The design standards require that rehabilitation of the historic buildings be conducted in accordance with the Secretary of the Interior’s Standards for the Rehabilitation and Guidelines for Rehabilitating Historic Buildings. The court noted that these standards serve as an explicit benchmark to establish whether a project will have a significant adverse impact to historic buildings. The court also noted that if a non-conforming use of the historic buildings was proposed in the future, the use would not be covered in the EIR and would therefore require supplemental environmental review. But the city was not required to study a hypothetical future change to the project in the current EIR.

Consistency with the Tidelands Trust

Finally, CSTI argued the EIR did not adequately discuss and analyze the potential impacts of the project on land subject to the Tidelands Trust. CSTI’s argument again centered on that fact that not all proposed uses within the Project area are known at this time. But the court rejected CSTI’s insinuations that non-trust uses would be permitted on lands subject to the trust. The EIR explained that the project must conform to the legal requirements of the Trust. The EIR also acknowledged the use restrictions the trust would impose on tidelands. And any proposed use is subject to the Tidelands Trust overlay zone and final approval and review by the Treasure Island Development Authority.

RMM Partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest and Cross-Appellant Treasure Island Community Development, LLC.

This week, Sacramento Kings CFO John Reinhart stated in court papers filed by the Kings and the city that even a short delay in the arena construction could result in huge losses for the team. Both parties urged the Sacramento Superior Court to require petitioners who oppose the project to post a hefty bond covering the potential losses.

If the arena does not open by 2017, the NBA has a right to buy back the team and move them out of town—a transfer the team avoided last year when it was purchased by Vivek Ranadive after the league vetoed another group’s attempt to move the Kings to Seattle. The team has already spent $60 million purchasing the Downtown Plaza and paying architect fees.

The NBA’s 2017 buy-back deadline is not the only source of potential loss, however. A delay could push completion of excavation activities into the winter rainy season, which would cause serious problems for the construction timeline. With arena construction delayed, the team would also face increased financing costs, potential NBA penalties, and substantial revenue losses.

The bond request comes after a group of petitioners filed a CEQA lawsuit seeking to enjoin the $477 million project.  In total, two groups have filed CEQA lawsuits against the city. The hearing on the injunction request is set for July 25. The Kings request that the petitioners post a $100 million bond, and the city requests an additional $5.7 million bond to cover its own investments.

The bond request was reported by the Sacramento Bee. Click here for the full article.

In a decision published July 7, 2014, the First District Court of Appeal upheld the EIR for a project designed to transform a former naval station on San Francisco’s Treasure Island into a vibrant mixed-use community. The project is a comprehensive plan to redevelop Naval Station Treasure Island, which ceased operations in 1997.  The project will be constructed over 15 to 20 years. It includes up to 8,000 new homes (with at least 25 percent designated as affordable units available at below-market prices); 500 hotel rooms; commercial, retail, and office space; and 300 acres of parks, playgrounds, and open space. The project also includes restoration and re-use of historic buildings, public utilities, bike and transit facilities, updated infrastructure, and a new Ferry Terminal and intermodal Transit Hub. Because the project will be built over time, with changing market conditions, it includes flexible parameters for certain project elements. All told, the project is expected to cost around $1.5 billion.

The City and County of San Francisco, along with the Treasure Island Development Authority, certified the EIR for the Treasure Island / Yerba Buena Island Project in June 2011. A group called Citizens for a Sustainable Treasure Island challenged the decision, claiming the environmental documents violated CEQA on several grounds. The trial court denied the petition in its entirety. On appeal, the First District Court of Appeal affirmed the trial court’s judgment.

The petitioner’s main argument on appeal was that the lead agencies abused their discretion by preparing a “project” EIR instead of a “program” EIR. Essentially, the petitioner argued that the project was too “flexible” and uncertain to support project-level review.  The court disagreed, noting that the question under CEQA case law is not whether a particular type of EIR is prepared, but rather whether the EIR meets CEQA’s mandate to adequately identify and address the environmental impacts of a project.

The court also upheld the EIR’s project description, analyses of hazardous substances and historic resources, and its discussion regarding conformity with the “Tidelands Trust.” In addition, the court held that the draft EIR did not need to be recirculated.

RMM partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest Treasure Island Community Development, LLC, in the case. (Citizens for a Sustainable Treasure Island v. City and County of San Francisco, Case No. A137828, can be read here.)

The Supreme Court denied a petition for review in Rocky Mountain Farmers Union v. Corey, letting stand the Ninth Circuit’s holding that the state’s low carbon fuel standard (LCFS) is constitutional on its face. RMM previously wrote about the Ninth Circuit decision here. The issue before the court was whether the LCFS discriminates against out-of-state businesses, thereby violating the dormant commerce clause. The court held that the LCFS is neither facially discriminatory nor discriminatory in purpose or effect with respect to the regulation’s crude oil provisions.

On remand, the district court will be tasked with determining whether the regulation’s ethanol provisions place burdens on interstate commerce that outweigh the benefits, rendering the LCFS invalid, and also whether the Clean Air Act preempts the LCFS program.

The court held that the State Water Resources Control Board has broad regulatory authority to prevent the unreasonable use of water, upholding a Board regulation that prohibits certain diversions by grape growers in the Russian River watershed. The First District Court of Appeal issued a partially published opinion in Light v. State Water Resources Control Board (2014) __Cal.App.4th __ (Case No. A138440) on June 16, 2014.

In April 2008, young salmon were found to have been fatally stranded along the banks of the Russian River stream system. Scientists from the National Marine Fisheries Service concluded the deaths were caused by abrupt declines in water level that occurred when water was drained from the streams and sprayed on vineyards and orchards to prevent frost damage, a common practice in the watershed.

Following a series of hearings and the preparation of an EIR, the Board adopted Regulation 862 in September 2011. Regulation 862 is likely to require a reduction in diversion of water from the stream system for frost protection, at least under certain circumstances. It applies to “any diversion of water from the Russian River stream system … for purposes of frost protection from March 15 through May 15.” The regulation itself contains no substantive regulation of water use, instead delegating the task of formulating regulatory programs to “water demand management programs” (WDMPs), which will be created by self-organized groups of agricultural diverters who will act as the “governing bodies.” Each WDMP must be submitted annually to the Board for approval. The regulation declares that any water use inconsistent with the programs, once they have been formulated and approved by the Board, is unreasonable, and therefore prohibited.

Regulation 862 was challenged in two petitions for writ of mandate. The petitions alleged that the Board lacked regulatory authority to adopt the regulation and that the regulation would unlawfully interfere with plaintiffs’ use of water drawn from the Russian River stream system. The trial court granted a writ invalidating the regulation on several grounds. The Board appealed. The Court of Appeal reversed.

The Court of Appeal first addressed plaintiffs’ argument that Regulation 862 was invalid because the Board lacked sufficient regulatory authority to adopt the regulation. Plaintiffs argued that the Board lacked authority to adopt the regulation because, according to them, the Boards’ authority to regulate the unreasonable use of water was limited to enforcement actions. The Court of Appeal disagreed, finding that the Board may exercise its regulatory powers through the enactment of regulations, as well as through the pursuit of judicial and quasi-judicial proceedings. The court noted that the Board is charged with acting to prevent unreasonable and wasteful uses of water, regardless of the claim of right under which the water is diverted, and that the Board’s authority to enact regulations in furtherance of this purpose was addressed and upheld nearly 40 years ago in People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743. The court concluded that, given the Board’s statutory charge to “prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in this state” and the recognized power of the Legislature to pass legislation regulating reasonable uses of water, the Board’s grant of authority to “exercise the … regulatory functions of the state” necessarily includes the power to enact regulations governing the reasonable use of water.

The Court of Appeal next addressed Plaintiffs’ contention that the Board lacks regulatory authority to limit water use by riparian users and early (pre-1914) appropriators, whose diversion is beyond the permitting authority of the Board. Rejecting this argument, the court explained that, although the Board has no authority to require such users to obtain a permit to divert, that does not mean their use of California’s water is free from Board regulation. Preventing these users from the unreasonable use of water necessarily requires the imposition of limits on that use by the Board. The Court explained that there is “no question” the Board has the power to prevent riparian users and early appropriators from using water in an unreasonable manner.

The court also determined that the regulation did not violate the rule of priority. When the supply of water is insufficient to satisfy all persons and entities holding water rights, it is ordinarily the function of the rule of priority to determine the degree to which any particular use must be curtailed. Yet, as the court explained, even in these circumstances, the Board has the ultimate authority to allocate water in a manner inconsistent with the rule of priority, when doing so is necessary to prevent the unreasonable use of water. Because no one can have a protectable interest in the unreasonable use of water, when the rule of priority clashes with the rule against unreasonable use of water, the latter must prevail. The court was careful to point out that since this was a facial challenge, its holding extended only to whether the regulation was valid on its face. It explained that the regulation does not declare any specific diversion of water for frost protection unreasonable, much less all such use. Rather, frost protection diversion is unreasonable only when it occurs in violation of the WDMP. As among individual water rights holders, the regulation requires the WDMP’s to respect the rule of priority in assigning corrective actions. Thus, a determination of whether specific regulatory measures adopted by the WDMP’s violate the rule of priority, must await implementation of the regulation.

The court also concluded that the Board properly found the regulation to be necessary to enforce water use statutes and did not unlawfully delegate its authority by requiring local governing bodies to formulate the substantive regulations.

Lastly, in an unpublished portion of the opinion, the court upheld the Board’s certification of the EIR for the regulation.