89 Cal.App.5th 1226
Cal. Ct. App.2023Background
- Project: redevelopment of Howard Terminal for a 35,000‑seat A’s ballpark plus ~3,000 housing units, extensive commercial space, ~8,900 parking stalls, and public open space on ~55 acres.
- Site conditions: long industrial history with contaminated soil and groundwater under DTSC oversight; current uses (truck parking, container storage, training, repairs) will be displaced.
- Transportation constraint: active passenger and freight rail tracks run at‑grade down the middle of Embarcadero West adjacent to the site, creating safety and access concerns.
- CEQA process: City prepared a Draft and Final EIR; City Council certified the Final EIR and adopted findings including a statement of overriding considerations for several significant impacts.
- Litigation/result below: consolidated writ petitions challenged the EIR; trial court upheld the EIR except it found one deferred wind mitigation measure legally deficient and required revision; judgments were appealed and cross‑appealed.
- Appellate holding: the Court of Appeal affirmed the trial court — rejecting most petitioners’ CEQA claims and agreeing the wind mitigation measure lacked a sufficiently specific performance standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Railroad safety mitigation (fence / multi‑use path) | Multi‑use path infeasible because UPRR won’t allow use of right‑of‑way, so related mitigation fails. | The mitigation is the fence; the path is an amenity. Fencing remains feasible and effective even without the path. | The court upheld fence mitigation as feasible; infeasibility of the path alone does not invalidate the fence. |
| Pedestrian/bicycle overcrossing effectiveness | Overcrossing location and assumptions make it ineffective to divert enough users from at‑grade crossings. | Overcrossing will materially reduce at‑grade crossings (3,000–6,000 users); precise siting and final design are CPUC jurisdictional and uncertain. | Substantial evidence supports the EIR’s conclusion that the overcrossing will mitigate substantially though not eliminate risks; court defers to agency. |
| Closure of intersections (temporary) | EIR failed to consider temporary closures of Embarcadero West intersections during events. | The comment record did not fairly present temporary closure as a standalone mitigation; only permanent closure and grade separation were analyzed. | Claim was not exhausted: isolated, unelaborated comment about temporary closure did not fairly apprise the City. No relief. |
| Displacement / seaport parking assumptions | EIR’s assumption displaced overnight truck parking can be accommodated at Roundhouse and OAB lacks substantial evidence. | Seaport Forecast projects 30 acres needed through 2050; Roundhouse + OAB provide that capacity; reliance on forecast is reasonable. | Substantial evidence (Seaport Forecast and EIR analysis) supports the City’s parking relocation assumptions. |
| Relocation outside Port (air quality) | EIR should have analyzed emissions if displaced uses relocated outside the Port. | Relocation location and extent are speculative and cannot be reliably predicted; EIR properly treated such effects as speculative. | Court agrees relocations outside the Port were speculative; agency’s refusal to quantify those off‑Port impacts was reasonable. |
| Emergency generator and GHG mitigation (deferred plan) | EIR understated generator hours; GHG mitigation improperly deferred without a specific enforceable standard. | Generator hours estimate (50 hrs) is a reasonable, site‑specific forecast; Mitigation Measure GHG‑1 commits to a quantified, enforceable standard (no net additional GHGs) and detailed plan requirements. | Generator analysis adequate; GHG mitigation deferral upheld because Measure GHG‑1 sets a specific, quantitative performance standard (no net additional emissions) and prescribes monitoring and measures. |
| Hazardous materials (HOPs, RAP, recirculation) | EIR failed to separately analyze hydrocarbon oxidation products (HOPs); draft RAP issued later required recirculation. | TPH testing before/after silica gel cleanup captured HOPs; DTSC reviewed and approved approach; RAP requirement and DTSC oversight provide public review. | Court finds substantial evidence supports inclusion of HOPs within TPH analysis, and no recirculation was required; deferral of remedial details to DTSC/RAP met Section 15126.4 criteria. |
| Wind mitigation (cross‑appeal) | Respondents argued trial court erred in finding wind mitigation insufficient. | Wind mitigation deferred to later wind tunnel analyses; obligation to mitigate "to the extent feasible" suffices. | Court affirms trial court: wind mitigation measure lacked the required specific performance standard (vague terms like “maximum feasible extent” and “unduly restricting development potential” made compliance uncertain). |
| Cumulative impacts (Port turning basin) | EIR should have included Port’s potential turning basin expansion in cumulative analysis. | Turning basin expansion was speculative and under feasibility study; not a "probable future project." | Court upheld omission: turning basin expansion was not sufficiently probable or certain to require inclusion in cumulative analysis. |
Key Cases Cited
- Friends of the Eel River v. North Coast R.R. Auth., 3 Cal.5th 677 (Cal. 2017) (CEQA’s informational and environmental protection purposes)
- County of Butte v. Dep’t of Water Resources, 13 Cal.5th 612 (Cal. 2022) (EIR must identify effects, mitigation, and alternatives)
- Sierra Club v. County of Fresno, 6 Cal.5th 502 (Cal. 2018) (agencies must implement all feasible mitigation measures)
- Communities for a Better Environment v. City of Richmond, 184 Cal.App.4th 70 (Cal. Ct. App. 2010) (deferred GHG mitigation invalid when no specific, enforceable standard and discretion left to later process)
- POET, LLC v. State Air Resources Bd., 218 Cal.App.4th 681 (Cal. Ct. App. 2013) (deferred regulatory promises must include objective performance criteria)
- City of Maywood v. Los Angeles Unified Sch. Dist., 208 Cal.App.4th 362 (Cal. Ct. App. 2012) (EIR must address safety impacts caused by changes in project design)
- Rodeo Citizens Assn. v. County of Contra Costa, 22 Cal.App.5th 214 (Cal. Ct. App. 2018) (agencies may decline speculative downstream analyses)