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EIR for Downtown San Francisco Mixed-Use Project Upheld Under Supreme Court’s Newly Articulated Standard of Review

The belatedly published South of Market Community Action Network v. City and County of San Francisco (2019) ___ Cal.App.5th ___ (“South of Market”), is the first published decision in which the court applies the principles articulated by the California Supreme Court in the recent Sierra Club v. County of Fresno decision (commonly referred to as “Friant Ranch”) regarding the standard of review for the adequacy of an EIR (discussed in detail here).

The challenged EIR in South of Market set forth two proposed schemes for a mixed‑use development (the “5M Project”) on a 4-acre site in downtown San Francisco: an “Office Scheme” and a “Residential Scheme.” Under both schemes, the overall gross square footage was substantially the same, with varying mixes of office and residential uses. Additionally, each scheme would result in new active ground floor space, office use, residential dwellings, and open space. Both schemes would also preserve and rehabilitate the Chronicle and Dempster Printing Buildings, demolish other buildings on site and construct new buildings ranging from 195 to 470 feet in height.

Petitioners alleged a litany of CEQA violations in their petition, including claims regarding traffic and circulation, open space, inconsistencies with area plans and policies, and the adequacy of the statement of overriding considerations. Applying existing law and specifically relying on Friant Ranch, the South of Market court looked to whether the EIR at issue contained the details necessary for informed decision-making and public participation. The court emphasized that when assessing the legal sufficiency of an EIR, perfection is not required as long as a good faith effort at full disclosure has been made. Contrary to the petitioners’ allegations, the court held this standard was met here, demonstrating that, in this case at least, Friant Ranch does not appear to have led to a significantly different approach to resolving the various CEQA challenges alleged in the petition for writ of mandate.

To avoid redundancy and for the sake of brevity, the remainder of this post will address in detail only the more novel and/or nuanced holdings of the court.

Evaluation of Alleged CEQA Violations

I. Project Description

Petitioners argued the EIR failed to provide a stable and accurate project description because it presented both the Office Scheme and the Residential Scheme. Petitioners further argued that the final EIR set forth a revised version of the 5M Project that was a variation of the draft EIR’s “preservation alternative.” In a de novo review, the court determined the project description contained in the draft EIR was adequate as a matter of law.

The court dismissed petitioners’ claim that the EIR presented “multiple possible projects rather than a finite description of a single project” as misleading and inaccurate. While to two schemes have many similarities, the Office Scheme and the Residential Scheme were each described separately in detail and evaluated independently in a way that was not misleading or inconsistent. Instead, the court found the EIR conservatively focused its impact analysis on the Office Scheme, which presented the more significant impacts due to its larger building envelope and higher density, and “fully disclosed the maximum possible scope of the project.” The court emphasized that the resulting project description “enhanced, rather than obscured, the information available to the public.”

The court further rejected the petitioners’ argument that the final EIR was inadequate for adopting a “revised” project that was a variation of the draft EIR’s “preservation alternative.” Notably, the draft EIR concluded the preservation alternative was the environmentally superior alternative because it avoided the irreversible impact created by demolition of the Camelline Building, avoided regional pollutant impact, and reduced the transportation and circulation impacts. In support of its decision, the court noted: “We do not conclude the project description is inadequate because the ultimate approval adopted characteristics of one of the proposed alternatives; that in fact, is one of the key purposes of the CEQA process.”

II. Cumulative Impacts

Next, petitioners argued that the cumulative impact analysis was flawed because it relied on a project list from 2012, which petitioners claimed was outdated and not representative of the more recent increase in development. The court rejected this argument, noting that the draft EIR was issued in January 2013 and the City of San Francisco (“City”) had discretion to determine a reasonable cutoff date for the consideration of cumulative projects. Petitioners were unable to present any evidence that the 2012 project list was inaccurate or misleading. Accordingly, the court held that petitioners failed to show that the City’s decision to use the 2012 list was not supported by substantial evidence. 

III. Wind Impacts

In challenging the EIR’s analysis of wind impacts, the court determined petitioners failed to raise the exact issues during the administrative process, and therefore were waived. But the court did not stop there and found the arguments also failed on the merits. Specifically, petitioners were unable to show the City’s conclusion that the 5M Project created no significant wind impacts was not supported by substantial evidence. Per the court, the City was entitled to use a hazard standard rather than a comfort standard because the exceedance of a comfort standard does not establish a significant impact for CEQA purposes. 

IV. Shade and Shadow Impacts

The court also rejected petitioners’ arguments that the EIR failed to properly analyze and mitigate the shade and shadow impacts of the 5M Project on a nearby park and garden. The City did not violate CEQA by relying on a joint resolution of the Planning Commission and Park Commission to permit an increased shadow limit for the park because “the shadow limits were policy restrictions, not a CEQA threshold.” Additionally, the court found no evidence in the record to support petitioners’ claim that sunlight on a park is a “special and rare resource” that would warrant “special emphasis” under CEQA Guidelines section 15125. Accordingly, the court upheld the EIR’s finding that there would be no significant environmental impacts from new shading or shadows created by the 5M Project and, therefore, it was not necessary for the City to consider mitigation measures.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

John E. Ponder Real Estate Lawyer Sheppard Mullin Law Firm San Diego
Partner

John E. Ponder is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm's San Diego office.

Areas of Practice

Mr. Ponder specializes in the representation of clients involved in real estate development. His practice focuses on advising and representing major residential, industrial, commercial, Native American Indian tribes, and renewable energy developers through all phases of the land use regulatory process and environmental compliance. His land use experience includes real estate due diligence investigations, negotiating and drafting...

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Jennifer L. Gunsch, Real Estate, Land Use Attorney, Sheppard Mullin
Associate

Jennifer Gunsch is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm's San Diego office.

Areas of Practice

Ms. Gunsch's practice focuses on all aspects of commercial and residential real estate projects, including common interest development. Ms. Gunsch works with the firm’s residential and commercial developers in connection with the drafting and preparation of CC&Rs, disclosures and other agreements associated with common interest developments.

619-338-6679