In Yerba Buena Neighborhood Consortium, LLC v. Regents of the University of California (2023) 95 Cal.App.5th 779, the First District Court of Appeal affirmed the trial court’s judgment upholding the University of California Regents’ EIR for the Comprehensive Parnassus Heights Plan (Plan) against multiple CEQA challenges.
The Plan sparked neighborhood opposition because it calls for substantially more intensive development at the Parnassus Heights campus than what was previously envisioned in the Regents’ recent long-range development plan. Central to the Plan is the construction of two new facilities—a new large hospital and an eight-story research and academic building. To make room for these buildings, the Plan would require demolition of historic structures, including a historic hospital building. The extensive redevelopment aims to maintain UC San Francisco’s reputation as a top-tier medical, research, and educational institution.
In the published portion of the Opinion, the Court of Appeal held: (i) CEQA did not require the EIR to include an alternative off-campus location for the proposed new hospital; (ii) although the Regents’ EIR violated CEQA by not analyzing impacts on public transit, this error was not prejudicial; (iii) substantial evidence supported the Regents’ conclusion that avoiding demolition of several historic structures is infeasible; (iv) the Regents were not required to treat visual impacts as environmental impacts under CEQA; and (v) the EIR’s mitigation measures for wind impacts were not improperly deferred.
The petitioners argued that the EIR failed to include a reasonable range of alternatives to the project because it did not include an alternative that would locate the new hospital off campus. The court rejected this contention, explaining that the range of alternatives already included in the EIR represented a reasonable range. The Regents properly rejected an off-campus location for the new hospital because substantial evidence supported the Regents’ conclusion that maintaining the new hospital in close proximity to the Parnassus campus was crucial to meeting the project’s basic objectives to promote clinical, research, and educational collaboration.
Impacts on Public Transit
The EIR did not evaluate impacts on transit ridership, capacity, and delays based on the Regents’ mistaken belief that such impacts are outside the scope of CEQA. The EIR did, however, include an appendix that provided information on transit “for informational purposes.” The court held that the Regents were legally mistaken in concluding that impacts on transit need not be evaluated in the EIR. The court declined to overturn the EIR, however, because the EIR, including the transportation appendix, provided sufficient information on the topic of public transit impacts to allow for informed public participation and informed decision-making. In support of this conclusion, the court emphasized that the project is an infill development near major transit stops and the Regents had agreed to donate $30 million to the local public transit provider.
Demolition of Historic Buildings
The Plan necessitates the demolition of several historic buildings, an impact the EIR identified as significant but unavoidable. The petitioners contended that it is feasible to preserve these buildings, citing the recent long-range development plan, which had proposed their retention, suggesting the buildings were repairable. The court determined that the petitioners’ argument took too narrow a view on the concept of “feasibility.” The petitioners overlooked the fact that the demolition of the historic structures was integral to the Plan’s aim to create space for new developments. The Plan represents a distinct initiative from the long-range development plan, with distinct goals and components. Maintaining the historic buildings would mean scrapping essential parts of the Plan that involve their removal. It was within the Regents’ discretion to deem alternatives infeasible if they are impractical or misaligned with policy objectives.
The petitioners claimed that the EIR inadequately assessed visual impacts, neglecting perspectives from nearby residential areas and incorrectly deeming the visual impacts of the new hospital insignificant. The court concluded, however, that these issues did not require consideration because, under section 21099 of the Public Resources Code, the aesthetic effects of the Plan are not recognized as environmental impacts, as the Plan calls for infill development of an employment center in a transit priority area.
The petitioners contended that section 21099 was inapplicable, arguing that the Plan does not fit the definition of a “residential, mixed-use residential, or employment-center project,” as the campus site is not zoned commercial. The court rejected this argument, explaining that the campus is not governed by standard zoning regulations and is designated as “P-Public” in the City’s zoning code. This classification gives the university discretion over land use decisions on the site. Consequently, the university has sanctioned commercial development in the areas targeted by the Plan, effectively aligning the property with zoning that permits “commercial use.” Therefore, section 21099 applied and the EIR was not required to address aesthetic impacts.
The EIR’s significance thresholds for wind impacts were based on the City of San Francisco’s wind ordinances, which define a “wind hazard criterion” as winds reaching 26 miles per hour sustained over an hour. The EIR concluded that, in certain locations, the new hospital might generate winds surpassing this limit. To mitigate this, the Regents adopted mitigation measures requiring wind-tunnel testing for new buildings over 80 feet tall, under conditions mirroring those expected after the Plan’s implementation. If testing reveals an increase in either the duration of hazardous wind conditions or the number of locations affected compared to current conditions, the university is required to collaborate with wind consultants to identify viable mitigation strategies. These may include design modifications such as building setbacks, rounded or chamfered corners, or stepped facades, aimed at minimizing wind hazards as much as possible. Should the university find these strategies infeasible because “‘they would unduly restrict the proposed building’s space program, result in operational deficiencies, and/or [impose] substantially higher costs, the building(s) may nonetheless be approved provided that the project incorporates wind-speed reduction strategies to the maximum feasible extent, as determined by [the university] in consultation with the wind consultant. Wind speed reduction strategies could also include features such as landscaping, localized installation of porous/solid screens, installation of canopies along building frontages, and the like.’”
The petitioners contended that wind-tunnel testing should have been completed before the final EIR. The court rejected this argument because the EIR made it clear that the new hospital’s design was still evolving and would necessitate a subsequent, more detailed project-level EIR. Given the ongoing development of the hospital’s specific design at the time of the final EIR, the petitioners’ argument was baseless.
The petitioners also argued that the wind mitigation lacked sufficiently specific performance standards. The court disagreed, finding the requirement to “reduce wind hazards to the maximum feasible extent” as sufficiently specific, particularly given the EIR’s acknowledgement that wind impacts may be significant and unavoidable. Further, the measure’s definition of feasibility took into account factors like the proposed building’s functionality, potential operational inefficiencies, or significant cost increases, which provided sufficiently specific direction on when the university may properly reject wind minimization strategies.
In upholding the wind mitigation measures, the court distinguished East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, in which the court invalidated a wind mitigation measure that required the project sponsor to work with a wind consultant to identify feasible mitigation strategies, including design changes, to reduce wind hazards as to the extent feasible “without unduly restricting development potential.” The East Oakland court found this standard insufficient as it provided too much discretion to the overseeing agency in determining what constituted “undue” development potential, and the EIR failed to clarify the concept of “development potential.” In contrast, in the present case, while reducing the building size is the primary method to mitigate wind impacts, such a reduction could potentially compromise the project’s objectives as outlined in the EIR. Therefore, the mitigation measure provided adequate direction.
– Laura Harris Middleton