First District Upholds Project EIR; Denies Challenge to San Francisco Mixed-Use Project

Environmental/Land Use Alert (April 2019)

In South of Market Community Action Network v. City and County of San Francisco, a decision filed February 22, 2019 and published on March 25, 2019, the California Court of Appeal, First Appellate District, Division One, affirmed a trial court decision upholding the City and County of San Francisco’s certification of an EIR and approval of a mixed-use business and residential project on four acres in downtown San Francisco. The Court held the EIR demonstrated a “good faith effort at full disclosure,” and adequately informed the public of potential environmental effects.  

Project Background

Two options – an “Office Scheme” and a “Residential Scheme”– were proposed for the Fifth and Mission or “5M” Project (Project), containing a varying mix of residential and office uses. The two schemes had substantially the same gross square footage and would involve construction of new active ground floor space; similar massing and land use; retention and rehabilitation of the Chronicle and Dempster Printing Buildings, with demolition of all other existing buildings onsite; and construction of four new buildings ranging from 195 to 470 feet in height. In addition to the two Project options, the Draft EIR discussed nine alternatives to the Project. Decision-makers ultimately adopted a “revised” Project that was a variant of the “preservation” alternative identified in the Draft EIR.

Standard of Review

Citing and summarizing the California Supreme Court’s recent Sierra Club v. County of Fresno (2018) decision, the Court ultimately looked to “whether the EIR includes enough detail to enable those who did not participate in its preparation to understand and consider meaningfully the issues raised by the proposed project.” While an EIR must demonstrate a good faith effort at full disclosure, it does not require perfection, nor exhaustive analysis.

Evaluation of CEQA Claims

Project Description

Plaintiffs argued the Draft EIR’s project description was inadequate and confusing because it presented two development schemes and omitted requested architectural renderings. Plaintiffs further complained that the Final EIR set forth a “revised” version of the Project that combined elements of the original proposal and “preservation” alternative. The Court rejected each claim.

The Court first held the project description was not inadequate for presenting one Project with two potential allocations of residential and office units. The description met all the technical informational requirements of CEQA Guidelines section 15124. The description was not curtailed, misleading, or inconsistent. To the contrary, the EIR “carefully articulated two possible variations and fully disclosed the maximum possible scope of the project.” The description accordingly “enhanced, rather than obscured, the information available to the public.”

Second, the EIR was not required to provide the additional architectural renderings and specific views sought by plaintiffs. The EIR provided a number of visual simulations demonstrating a good faith effort at full disclosure. The additional renderings were not “crucial to a review of …environmental effects.”

Third, the lead agency was allowed to adopt a “revised” Project variant of the “preservation” alternative evaluated in the Draft EIR—in fact, the Court endorsed such revision. The CEQA process “‘is not designed to freeze the ultimate proposal in the precise mold of the initial project,’” and “‘[d]ecisionmakers should have the flexibility to implement that portion of a project which satisfies their environmental concerns.’” Consideration of alternatives is one of the key purposes of the CEQA process. The description in the Final EIR was accordingly not inadequate for incorporating and adopting beneficial characteristics the “preservation” alternative.

Cumulative Impacts

Plaintiffs next argued that the cumulative impact analysis was deficient for using an “outdated” project list developed in 2012, during the economic recession. Rejecting this contention, the Court held the City had discretion to adopt this reasonable cutoff for cumulative projects, as the Draft EIR was issued in January 2013. Absent a showing that the list had become inaccurate, reference to the older list of cumulative projects was not improper.

Plaintiffs also argued the EIR’s traffic analysis artificially constrained the study area for future projects and undercounted density. The Court deferred to the agency’s discretion to select the geographic study area, and found its density calculations were supported by substantial evidence.

Traffic and Circulation Impacts

The Court rejected each of plaintiffs’ traffic contentions in turn. First, the Court again deferred to the lead agency’s selection of the study area. The EIR provided a clear explanation as to why additional intersections were not included in its evaluation. The agency was not required to undertake an exhaustive analysis of a larger geographic area; the EIR already evidenced a good faith effort at full disclosure.

The lead agency also was also not required to consider the “significance of the Safer Market Street Plan (SMSP),” as the plan was approved over two years after publication of the Project’s notice of preparation of its EIR. The SMSP was not a probable future project at that time (NOP publication) and, therefore, not evaluated.

Regarding traffic alternatives, the Court held the EIR was not required to evaluate proponent-proposed “Community” and “Zero-Parking” alternatives. The alternatives were described only generally, submitted after certification of the EIR, substantially similar to alternatives proposed in the EIR, lacking evidence of their feasibility, and/or failed to meet Project objectives.

Shade and Shadow Impacts

Plaintiffs also challenged the EIR’s analysis of shade and shadow at Boeddeker Park and Yerba Buena Gardens, making the novel argument that sunlight on a park or open space is a “rare or unique resource” warranting special emphasis under CEQA Guidelines section 15125. Discussing the lengthy explanation and analysis of shadow impacts in the EIR, the Court again rejected plaintiffs’ contention. The Court declined to expand the “rare or unique resource” language of CEQA to encompass sunlight, noting plaintiffs’ argument was unsupported.

Other Issues

After close consideration of the facts, the Court applied existing law to reject plaintiffs’ further contentions regarding wind impacts, open space, inconsistency with area plans, and the statement of overriding considerations. The EIR’s analysis was sufficiently clear, detailed and adequate.

Conclusion

The Court in South of Market Community Action Network v. City and County of San Francisco reminds us to consider an EIR’s purpose: to evaluate environmental impacts in enough detail that the community is able to understand and assess a project’s impacts, and to facilitate the adoption of appropriate mitigation and alternatives. With this perspective in mind, this decision reaffirms the discretion granted to an agency to select the methodology and study area used in an EIR; and to ultimately determine whether to approve a project as proposed or some improved version thereof. Further, an EIR that provides a careful analysis compliant with CEQA’s technical requirements, and which is supported by evidence, will not be overturned because of minor technicalities or project opponents’ continued call for additional information.

[This case alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]