First District Court of Appeal Upholds EIR for Mixed-Use Development Project

In the first published decision to apply the standard of review articulated by the Supreme Court in Sierra Club v. County of Fresno (Friant Ranch), the First District Court of Appeal affirmed the trial court’s decision upholding an EIR for a mixed-use development project in South of Market Community Action Network v. City and County of San Francisco (A151521; filed 2/22/19, ordered published 3/25/19) ___ Cal.App.5th ___.

The project at issue is a mixed-use development that covers four acres of downtown San Francisco and seeks to provide office, retail, cultural, educational, and open-space uses for the property, to support the region’s technology industry and offer spaces for coworking, media, arts, and small-scale urban manufacturing. The city certified an EIR, which described two options for the project—an “office scheme” and a “residential scheme.” The office scheme had a larger building envelope and higher density than the residential scheme but all other project components were the same and the overall square footage was substantially similar. Several community organizations raised a variety of claims challenging the environmental review. The trial court denied relief and the petitioners appealed.

Applying the three “basic principles” set forth by the Supreme Court in Friant Ranch regarding the standard of review for the adequacy of an EIR, the First District held the EIR was legally adequate.

The court rejected the petitioners’ argument that the project description was inadequate because it presented multiple possible projects. The court found that the EIR described one project—a mixed use development involving retention or demolition of existing buildings and construction of new buildings—with two options for different allocations of residential and office units. The court also rejected petitioners’ argument that the final EIR adopted a “revised” project that was a variant of another alternative identified in the draft EIR—emphasizing that the CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project, but to allow consideration of other options that may be less harmful to the environment.

Petitioners alleged that the cumulative impacts analysis was flawed because the EIR used an outdated 2012 project list, developed during the “Great Recession,” which did not reflect a more recent increase in development. The court noted the petitioners did not point to any evidence to establish that the project list was defective or misleading or that the city had ignored foreseeable projects. Accordingly, the court held that the petitioners had not met their burden of proving the EIR’s cumulative impacts analysis was not supported by substantial evidence.

With respect to traffic, the petitioners argued the EIR was inadequate because it failed to (1) include all impacted intersections, (2) consider the impact of the Safer Market Street Plan (SMSP), and (3) adequately evaluate community-proposed mitigation measures and alternatives. The court rejected each argument in turn. First, the court found that the EIR’s explanation for selecting certain intersections and excluding others and the related analysis was supported by substantial evidence. The court further held that the city did not need to include the SMSP in the EIR because it was not reasonably foreseeable when the city initiated the EIR, nor was there evidence that the SMSP would have an adverse impact on traffic and circulation related to the project. Lastly, the court deferred to the city’s selection of alternatives because the petitioners had failed to meet their burden to show the nine alternatives evaluated in the EIR were “manifestly unreasonable.” Similarly, the court found the petitioners had failed to meet their burden to demonstrate their proposed alternatives were feasible and met most of the project objectives.

In addressing wind impacts, an argument petitioners failed to exhaust, the court found such impacts were appropriately addressed in the EIR. The court reasoned an alternative configuration was not required under the city’s comfort criterion for wind speed impacts because the exceedance of the comfort criterion did not establish significant impacts for CEQA purposes.

The court also rejected an argument that the project failed to provide onsite open space because the EIR explained that the project provided more space than the city code required and the impact related to demand on existing parks and open spaces would be less than significant.

The court further upheld the EIR’s shade and shadow analysis, finding no evidence in the record to support that sunlight on a park is not a “special and rare resource” warranting “special emphasis” under CEQA Guidelines section 15125.

The court also held that the city had made a good faith effort to discuss inconsistencies with the applicable general plans, noting that CEQA does not “mandate perfection.”

Finally, the petitioners claimed that the statement of overriding considerations was invalid because the city improperly considered the benefits of the project before considering feasible mitigation measures or alternatives. The court disagreed, emphasizing that the project was modified to substantially conform to the identified environmentally superior alternative and stating that the revised project would not have been adopted if there had been no consideration of mitigation measures or alternatives.