Tag: Traffic Impacts

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

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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 (2019) 33 Cal.App.5th 321.

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Petitioners alleged that the cumulative impacts analysis was flawed because the EIR used an outdated 2012 project list, developed during the “Great Recession,” which did not reflect a more recent increase in development.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.

First District Court of Appeal upholds EIR for San Francisco’s Housing Element

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On August 22, 2018, the First District issued its decision in San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. The appellate court upheld an EIR that San Francisco prepared for its 2004 and 2009 Housing Elements, notably rejecting a challenge to the use in the EIR of a future-conditions baseline for the plan’s traffic and water supply impacts.

In an earlier appeal involving San Francisco’s 2004 Housing Element, the First District concluded that the City should have prepared an EIR rather than a negative declaration. By the time the trial court issued an amended writ in April 2009 requiring the preparation of an EIR for the 2004 Housing Element, the City was already in the process of preparing its 2009 Housing Element. Consequently, the City combined the environmental review of the two versions and prepared one EIR for both the 2004 and 2009 Housing Elements. After the City adopted the 2009 Housing Element in June 2011, San Franciscans for Livable Neighborhoods (SFLN) filed a new suit and this appeal followed.

For traffic and water supply impacts, the EIR used a baseline of 2025 conditions based on population projections from the Association of Bay Area Governments (ABAG). The court concluded that the City was “within its discretion to adopt a baseline calculation forecasting traffic and water impacts in 2025” rather than “comparing the existing conditions with and without the Housing Element.” Citing POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (“POET II”), SFLN argued that the City took an improperly narrow view of the Housing Element and “sidestepped review of the reasonably foreseeable indirect physical changes in the environment.” The court was unpersuaded because the Housing Element consisted of growth-accommodating policies but did not induce or lead to population growth. Discussing the rule described in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, the court found that substantial evidence supported the City’s determination that an existing-conditions baseline would be misleading as to traffic and water supply impacts. The court also rejected SFLN’s corollary argument about the baseline for land use and visual resources impacts, noting that the EIR did compare the changes in the Housing Element to the existing environment.

Second, the court tackled SFLN’s challenges to the EIR’s analysis of various impacts. It found that substantial evidence supported the EIR’s analysis, explaining that: (1) the EIR reasonably concluded that the 2009 Housing Element would not result in significant impacts on visual resources or neighborhood character because there would be no changes to allowable land uses or building heights, and residential growth would be directed to areas with existing residential uses; (2) the EIR for the Housing Element was not required to study traffic impacts of specific development projects in the pipeline because those projects were proceeding under their own EIRs or CEQA documents; (3) the EIR for the Housing Element was not required to establish a likely source of water and satisfied CEQA by acknowledging the possibility of a post-2030 water supply shortfall during a multiple-dry-year event and discussing the water rationing plan that would balance supply and demand; and (4) the City did not abuse its discretion in determining that the Housing Element was consistent with ABAG’s Land Use Policy Framework because policies would further the goals of the Framework by placing housing near transit and encouraging infill development.

Third, the court turned to SFLN’s argument that the EIR failed to consider feasible reduced-density alternatives. The EIR analyzed three alternatives, including a No Project Alternative, a 2004 Housing Element Alternative, and an Intensified 2009 Housing Element Alternative. The 2004 Housing Element Alternative was identified as the environmentally superior alternative because it would reduce the sole significant and unavoidable impact (cumulative impact on transit) even though it would not reduce the impact to a less than significant level. The court concluded that this was a reasonable range of alternatives. In particular, the court approved of the City’s explanation in responses to comments that the reduced density alternatives suggested by SFLN would not add any meaningful analysis to the EIR because they would not reduce the project’s potential cumulative transit impacts. The court also found that substantial evidence supported the EIR’s conclusion that the SFLN-proposed alternative dubbed the No Additional Rezoning Alternative was infeasible because increasing the density of two major projects within existing neighborhoods as suggested would require rezoning.

Finally, the court rejected SFLN’s argument that the City should have considered additional mitigation measures to reduce transit impacts. The EIR explained that the only way to eliminate the significant transit impacts would be to increase the number of transit vehicles or reduce transit travel time. Since funding for these measures is uncertain and cannot be guaranteed, the EIR deemed them infeasible. Although SFLN suggested two mitigation measures, one was simply a permutation of the No Project Alternative and the other was infeasible because it involved imposing transit impact fees that the City had already decided would be infeasible because they cannot be guaranteed.

Elizabeth Sarine

First District Finds a “Fair Argument” in Comments that a Project’s Height and Density Were Incompatible with a Historic Overlay District and that Traffic Safety and Congestion Issues Could Be Worsened

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In Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, the First District Court of Appeal held that the record contained a “fair argument” that a mixed-use project in an historic district might have significant aesthetic impacts on the historic character of the community due to the project’s size and scale. The court also cited residents’ concerns regarding traffic hazards and congestion, and concluded that the city was required to prepare an EIR.

The City of Fremont adopted a zoning overlay district to protect the historic character of the community of Niles, a small commercial strip dating to the 19th century. A developer proposed a mixed-use project with 98 residential units on a vacant six-acre property at the gateway to this district. Neighbors complained that the buildings were too tall, and the project was too dense, so that it was incompatible with the area and would increase traffic congestion. The city’s architectural review board recommended denying the project. The planning commission recommended approval, and the city council adopted a mitigated negative declaration and approved the project. Neighbors sued. The trial court found that the record contained a “fair argument” of potentially significant impacts relating to aesthetics and traffic, and granted the writ. The developer appealed.

In May 2018, the city published a draft EIR for the project. The neighbors moved to dismiss the appeal as moot because the city had decided to comply with the trial court’s writ. The appellate court declined to dismiss the appeal. The city was not a party to the appeal. The developer’s submittal of a revised application did not mean the original project was abandoned. Moreover, the appeal was not moot because, were the developer to prevail, the city’s original approvals would be reinstated regardless of the new application.

Turning to the merits, the court concluded that the project’s visual impact on its setting – in this case, an historic commercial “main street” recognized as sensitive by the city – was a proper subject of review, over and above the analysis of the project’s impact on historic resources. According to the court, the record “clearly” contained a fair argument that the project would have a significant aesthetic impact on the historic district. The city’s initial study found that the project was aesthetically compatible with the district because it reflected the architectural style of the industrial buildings that previously occupied the site, and the city’s design guidelines recognized that architecture within the district was varied. Members of the architecture review board and of the public, however, stated that the project was too tall and dense, and inconsistent with Niles’ village-like character. These complaints continued even after the developer modified the project. The court recognized the “inherently subjective” nature of aesthetic judgments, but found that the comments “were not solely based on vague notions of beauty or personal preference, but were grounded in inconsistencies with the prevailing building heights and architectural styles of the Niles [district] neighborhood and commercial core.” Commenters included members of the city’s historic architectural review board, who recommended denial.

The court rejected the developer’s various arguments that the project’s aesthetic impact was not significant. First, although the site was largely vacant and unkempt, that did not automatically mean that development of the site would be an upgrade. Second, the site, though on the edge of the historic district, was nevertheless located at a recognized gateway to Niles, and was within the district’s boundaries. Third, the architectural review board’s recommendation to deny the project was not a bare conclusion, but was supported by record evidence of the board members’ (whom the court presumed to have historic aesthetic expertise) underlying aesthetic judgments about the effect of the project. Thus, the board’s “collective opinions” on project compatibility with the historic overlay district were substantial evidence supporting a fair argument that the project may have significant aesthetic impacts. Though the court noted that, were the city to prepare an EIR, the city could conclude that the project would not have a significant impact on aesthetics “because aesthetics is an inherently subjective assessment.”

The court also found that the record contained a fair argument concerning traffic safety. The project’s traffic study concluded a left-turn pocket lane was warranted at the project entrance. Staff did not recommend the pocket, however, because left-turn pocket lanes generally were not located elsewhere along the street, and because omitting a pocket would make vehicles slow down. Testimony from residents, however, stated that drivers did not adhere to the posted speed limit, and sight lines might not be adequate if multiple drivers queued up to turn left into the project site. These “fact-based comments” were substantial evidence supporting a fair argument that a new intersection at the project entrance could have significant traffic impacts.

The record also contained a fair argument that the project could contribute to existing traffic congestion. Residents testified that traffic at a nearby intersection was already terrible, and that during the morning commute traffic already backed up from this intersection to the project site. The city’s own traffic study found that traffic at this intersection was Level of Service (“LOS”) E – an unacceptable level of congestion under the city’s standards – and that project-related traffic would cause congestion there to worsen to LOS F. The developer argued that, under the city’s thresholds of significance, a shift from LOS E to LOS F was not a significant impact. The court held, however, that the city’s significance threshold could not be applied to foreclose consideration of substantial evidence that the impact might be significant. The court again found that the “fact-based comments of residents and city staff and officials supported a fair argument that unusual circumstances in Niles might render the thresholds inadequate to capture the impacts of congestion on Niles Boulevard.”

Third District Court of Appeal Upholds EIR for Sacramento Kings’ Downtown Arena Project

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The Third District Court of Appeal held that the City did not prematurely commit to the arena project by entering into a nonbinding term sheet with the Sacramento Kings or by engaging in land acquisition through eminent domain before the EIR process was complete. The court further determined that the EIR included an appropriate range of alternatives and adequately analyzed traffic and safety impacts. Saltonstall v. City of Sacramento (Feb. 18, 2015) ___ Cal.App.4th ___, Case No. C077772.

The case involves a challenge to the certification of an EIR and approval of a new entertainment and sports arena in downtown Sacramento that will eventually house the Sacramento Kings. To facilitate the timely opening of the new downtown arena, the Legislature modified several deadlines under CEQA by adding section 21168.6.6 to the Public Resources Code.

The City certified the EIR and approved the project in May 2014. Opponents of the project immediately filed a lawsuit against the City and sought a preliminary injunction to stay construction. The trial court denied the preliminary injunction, and the Court of Appeal affirmed that decision. The appellate court ruled that petitioners failed to satisfy the requirements for a preliminary injunction and held that section 21168.6.6 was not unconstitutional. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837.) The trial court subsequently rejected the lawsuit in its entirety. Petitioners appealed.

In the appeal, petitioners argued (1) the City violated CEQA by committing itself to the downtown arena project before completing the EIR process, (2) the City’s EIR failed to consider remodeling the current Sleep Train Arena as a feasible alternative to building a new downtown arena, (3) the EIR did not properly study the effects of the project on interstate traffic traveling on the nearby section of Interstate Highway 5, and (4) the City did not account for large outdoor crowds expected to congregate outside the downtown arena during events. Petitioners also argued that the trial court erred in denying their motion to augment the record and in denying their Public Records Act request to the City to produce e-mail communications with the NBA. The Court of Appeal rejected all of petitioners’ claims.

The Third District first dismissed the claim that the City prematurely committed itself to approving the project. Petitioners claimed the City violated CEQA by engaging in land acquisition for its preferred site and entering into a preliminary term sheet with Sacramento Basketball Holdings LLC before finishing the EIR. Rejecting this argument, the Court held that the City was allowed to engage in land acquisition for its preferred site before finishing its EIR under CEQA Guidelines section 15004 and Public Resources Code section 21168.6.6. Guidelines section 15004, subdivision (b)(2)(a), expressly provides that “agencies may designate a preferred site for CEQA review and may enter into land acquisition agreements when the agency has conditioned the agency’s future use of the site on CEQA compliance.” Moreover, Public Resources Code section 21168.6.6 expressly allowed the City to exercise its eminent domain power to acquire the 600 block of K Street as the site of the arena before finishing the EIR. Finally, the court held that the preliminary term sheet did not improperly commit the City to approving the arena as proposed. The preliminary nonbinding term sheet constituted an agreement to negotiate regarding the project and did not foreclose environmental review, mitigation, or even rejection of the project.

Turning to petitioners’ claim that the alternatives analysis was inadequate, the court held that the City was not required to study remodeling the current Sleep Train Arena as a project alternative in the EIR. The City studied a “no project” alternative involving continued use of the Sleep Train Arena and an alternative that involved building a new arena next to the current arena in Natomas. Both the no project and new Natomas arena alternatives failed to meet most of the City’s objectives for the project to revitalize its downtown area. The remodel alternative suggested by petitioners would have suffered the same problems of location that caused the City to reject the two Natomas-based alternatives. Noting that “infeasible alternatives that do not meet project objectives need not be studied[,]” the court held the Sleep Train Arena remodel alternative did not need to be analyzed.

The court next addressed petitioners’ claim that the EIR’s traffic analysis was defective for failure to adequately analyze interstate traffic on I–5. The EIR studied and disclosed existing problems with the nearby section of I–5 at peak traffic times as well as how the downtown arena project would worsen traffic congestion. The EIR reached the conclusion that levels of service would—at times—reach the worst rating given by Caltrans for traffic flow. Even with proposed mitigation measures, the City acknowledged the adverse impact of the project on I–5 traffic would be significant and unavoidable. While petitioners acknowledged the City did study local I–5 traffic congestion, they argued the study was inadequate for not considering “mainline” I–5 traffic ranging from Canada to Mexico. Rejecting this argument, the court explained that the City was not required to separately study the effect on interstate motorists who will be impacted in the same way as other, local motorists sharing the same section of I–5. The court also noted the EIR did account for mainline traffic because it used the sampling data of mainline freeway traffic collected by Caltrans.

Petitioners also argued the City’s traffic study was deficient because the EIR understated the number of persons who would surround the downtown arena. The court again was not persuaded. The City’s review of crowd size included a national survey of similar entertainment and sports facilities as well as review of crowd sizes during the Sleep Train Arena’s history. The court held that the City did not err “in declining to speculate that the same games played a few miles away would suddenly and inexplicably draw large crowds of persons who would not watch the game but simply mill about in the winter nighttime.”

Addressing petitioners’ final CEQA claim, the court held that petitioners’ contention regarding failure to study post-event crowd safety and potential for violence did not implicate CEQA because petitioners failed to show any potential for environmental impacts. Petitioners argued the EIR both understated the number of persons who can be expected to congregate around the downtown arena as well as their proclivities toward drunken violence. The court ruled that the argument focused on a social issue for which no environmental effect was described.

Finally, regarding petitioners’ attempt to augment the administrative record, the court held that their challenge to the trial court’s denial of their Public Records Act request seeking over 62,000 emails related to communications between the City and the NBA was not properly before the court. Denial of such a request is reviewed only by petition for writ of mandate, not direct appeal. The court also held that petitioners forfeited their argument regarding the introduction of certain additional materials because they failed to offer any meaningful analysis on the issue.

OPR’s Preliminary Recommendations for Evaluation of Alternative Methods of Transportation Analysis Available for Review

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Senate Bill 743, passed on September 27, 2013 directs the Governor’s Office of Planning and Research (OPR), in part, to prepare revisions to the CEQA Guidelines establishing criteria for measuring the significance of projects’ transportation impacts. OPR has produced a Preliminary Evaluation of Alternative Methods of Transportation Analysis, which develops those recommendations by exploring new ways to measure environmental impacts related to transportation. The goal of the new transportation-impact metrics is to both reduce environmental review costs and achieve better economic, health, and environmental outcomes from such review.

Currently, CEQA review of transportation impacts uses the Level of Service (LOS) metric, which focuses on vehicle delay at intersections and on roadways. Mitigation measures to increase traffic flow typically involve increasing the capacity (i.e., width) of the intersection or road, rather than encouraging alternate lower-emission forms of transportation. LOS has thus been criticized as working against state goals like GHG emissions reductions, infill development, and multimodal transportation networks. Other criticisms of the metric are that LOS is difficult and expensive to calculate; LOS measures motorist convenience rather than physical impact to the environment; and LOS skews environmental priorities by characterizing bicycle and pedestrian improvements as detrimental to transportation, thereby discouraging more environmentally friendly modes of travel.

SB 743 requires OPR to provide non-LOS evaluation methods for transportation impacts. These criteria must promote the reduction of greenhouse gases and the development of transportation networks, particularly in areas with transportation infrastructure already in place. The most important way in which SB 743 facilitates achievement of state goals is that once the new criteria are in place, LOS-measured traffic will not be considered a significant impact on the environment. The bill does not limit the type of projects to which the new transportation criteria would apply.

OPR’s preliminary evaluation studies a number of suggested alternative measures of transportation impacts including vehicle miles traveled per automobile or per capita, automobile trips generated, fuel use, and motor vehicle hours traveled. The agency’s analysis highlights the difficulty of using each metric and identifies which mitigation measures and project alternatives might result from the use of each metric.

Comments on the proposed metrics are due by February 14, 2014 to [email protected]. OPR must produce a draft of the Guidelines revisions by July 1, 2014.