I. FACTUAL AND PROCEDURAL BACKGROUND
Forest City proposed the construction of a mixed-use development, the Fifth and Mission Project (the 5M Project or the project), covering four acres in downtown San Francisco. The 5M Project seeks to provide office, retail, cultural, educational, and open-space uses for the property, primarily to support the region's technology industry and provide spaces for coworking, media, arts, and small-scale urban manufacturing. The proposed project site is bounded by Mission Street to the north, Fifth Street to the east, Howard Street to the south, and Mary Street and several adjacent properties to the
The San Francisco Planning Department (Planning Department), as the lead agency responsible for administering environmental review of the project, released its draft EIR (DEIR) on October 15, 2014. The report described two "options" for the 5M Project, an " 'Office Scheme' " and a " 'Residential Scheme.' " Under both schemes, the project would result in new active ground floor space (with office, retail, educational, and cultural uses), office use, residential dwelling units, and open space. Both schemes would preserve and rehabilitate the Chronicle and Dempster Printing Buildings, demolish other buildings on site, and construct four new buildings with heights ranging from 195 to 470 feet. The overall gross square footage was substantially the same in both schemes, with varying mixes of office and residential uses. The office scheme had a larger building envelope and higher density than the residential scheme.
The DEIR discussed nine alternatives to the proposed project, rejecting five of them as infeasible. Among the four feasible alternatives, it considered: (1) a "No Project" alternative, (2) a "Code Compliant" alternative, (3) a "Unified Zoning" alternative, and (4) a "Preservation" alternative. The DEIR concluded the preservation alternative was the environmentally superior alternative because it would "achieve some of the project objectives regarding the development of a dense, mixed-use, transit-oriented, job-creating project" but avoid the "irreversible impact" created by demolition of the Camelline Building, avoid regional pollutant impact, and reduce the transportation and circulation impacts.
The San Francisco Planning Commission (Planning Commission) held an informational hearing on the DEIR in November 2014 and accepted public comments through January 7, 2015. In August 2015, after further informational meetings, the Planning Department published its responses to public comments, which, together with the DEIR, made up the final EIR (FEIR).
Following a noticed public hearing, the Planning Commission certified the FEIR as complete, finding it to be adequate, accurate, and objective. The same day, the Planning Commission (1) adopted CEQA
Plaintiffs appealed the project approvals and certification of the FEIR to the San Francisco Board of Supervisors (Board). The Board denied the appeal and affirmed certification of the FEIR. Two weeks later, the Board adopted CEQA findings, and approved the Fifth and Mission Special Use District, the 5M Project, and the development agreement.
In December 2015, plaintiffs filed a petition for writ of administrative mandаte in superior court, alleging CEQA violations and seeking to set aside certification of the FEIR and approval of the 5M Project. The court heard argument and denied the petition.
II. DISCUSSION
A. CEQA Principles and Standard of Review
Plaintiffs' appeal primarily challenges the content and analysis of the EIR. "The basic purpose of an EIR is to 'provide public agencies and the public in general with detailed information about the effect [that] a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.' " ( Sierra Club v. County of Fresno (2018)
" ' " '[A]n EIR is presumed adequate ( Pub. Resources Code, § 21167.3 ), and the plaintiff in a CEQA action has the burden of proving otherwise.' " ' " ( Preserve Wild Santee v. City of Santee (2012)
After reviewing several of its own decisions and those of the Court of Appeal, the court summarized three "basic principles" regarding the standard of review for adequacy of an EIR: "(1) An agency has considerable discretion to decide the manner of the discussion of potentially significant effects in an EIR. (2) However, a reviewing court must determine whether the discussion of a potentially significant effect is sufficiеnt or insufficient, i.e., whether the EIR comports with its intended function of including ' " 'detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.' " ' [Citation.] (3) The determination whether a discussion is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency's factual conclusions." ( Sierra Club , supra , 6 Cal.5th at pp. 515-516,
"The ultimate inquiry, as case law and the CEQA guidelines
Further, " '[i]n determining the adequacy of an EIR, the CEQA Guidelines look to whether the report provides decision makers with sufficient analysis to intelligently consider the environmental consequences of a project. ( [Guidelines,] § 15151.) The CEQA Guidelines further provide that "the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. ... The courts have [therefore] looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." ( [Guidelines,] § 15151.)' [Citation.] The overriding issue on review is thus 'whether the [lead agency] reasonably and in good faith discussed [a project] in detail sufficient [to enable] the public to discern from the [EIR] the "analytic route thе ... agency traveled from evidence to action." ' " ( California Oak Foundation v. Regents of University of California (2010)
With these principles in mind, we turn to the merits.
B. Alleged CEQA Violations
Plaintiffs assert numerous defects in the agency's CEQA review in this case.
Plaintiffs first argue the EIR is inadequate because it failed to provide a stable, accurate project description. They contend because the DEIR presented two alternative schemes, the office scheme and residential scheme, it was "confusing" and hampered commenters' ability to understand which project was actually proposed and analyzed.
A draft EIR must include a project description. ( Washoe Meadows Community v. Department of Parks & Recreation (2017)
"[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." ( County of Inyo v. City of Los Angeles (1977)
Plaintiffs' claim that the DEIR presented "multiple possible Projects rather than a finite description of a single project" is specious. Plaintiffs do not dispute the DEIR's project description met CEQA technical requirements, and do not describe any information that was requirеd to be included in the project description but was not. (See Guidelines, § 15124 [describing information that must be included in EIR].) Nor was the information provided in
Plaintiffs contend the agency's response to public comments regarding confusion over the two schemes was insufficient, because it stated in part that the project has similar square footage but with a varying mix of residential and office uses. The agency's response to public comments, however, was far more explicit. The Planning Department referenced tables in the DEIR providing a clear description of the proposed uses and corresponding square footage for each development option, with the key differences between the two schemes further explained on pages 41 through 44 of the DEIR. The agency noted the evaluation of environmental impacts in the DEIR focused on the office scheme because it "represents the largest development envelope" and the "more intensive" of the two schemes, resulting in a "conservative assessment of the [DEIR] Project's impacts." As the agency explained, the "analysis in the [DEIR] was intended to present the development program associated with both design options and to identify the associated environmental impacts and required mitigation measures side-by-side and in sufficient detail so that decision-makers would have the option of approving either of the development schemes as part of the overall project approval."
Plaintiffs also complain the DEIR was inadequate because it did not include renderings showing the specific architectural detailing, "street level" views of the code compliant alternative, or perspectives of how the development would appear from surrounding neighborhoods. They also argue the use of a "design for development" document and references to the proposed Fifth and Mission Special Use District delayed disclosure of important details about the project.
County of Inyo, supra,
Plaintiffs' reliance on Washoe Meadows, supra,
Plaintiffs also complain that the FEIR adopted a proposed plan based on neither the office scheme nor the residential scheme, but a "revised" project that was a variant of the preservation alternative identified in the DEIR. They fail, however, to identify any component of the revised project that was not addressed in the DEIR or subject to public comment. Further, "[t]he CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project; indeed, new and unforeseen insights may emerge during investigation, evoking revision of the original proposal." ( County of Inyo, supra,
In sum, we conclude the project description was adequate under CEQA.
2. Cumulative Impacts
Cumulative impacts are "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts." (Guidelines, § 15355.) An adequate discussion of significant cumulative impacts may be based either on a list of "past, present, and probable future projects producing related or cumulative impacts," or "[a] summary of projections contained in an adopted local, regional or statewide plan, or related planning document, that describes or evaluates conditions contributing to the cumulative impact." (Guidelines, § 15130, subd. (b)(1)(A)-(B).)
Plaintiffs argue the EIR used an outdated 2012 project list that was developed during the Great Recession to analyze the cumulative impact of probable future projects. They point to two comments made during the review process that in the years since 2012, San Francisco " 'has been subjected to a tremendous uptick in development pressure and applications to increase the development potential of property in the vicinity of the Project Site' " and " 'obviously development is rampant right now,' " to argue the 2012 project list is no longer reflective of current conditions and is not an accurate baseline for fair assessment of the project's cumulative impacts.
Apart from general observations that development is " 'rampant' " and there has been " 'a tremendous uptick in development pressure' " in San
Nor is plaintiffs' claim the City should not have relied on a project list from 2012 persuasive. Indeed, plaintiffs concede that physical conditions existing when the notice of preparation is published normally are used to establish the baseline for cumulative impacts. (Guidelines, § 15125, subd. (a)(1).) The DEIR was issued in January 2013. The City had discretion to determine a reasonable date as a cutoff for which projects to include in the cumulative impacts analysis, and plaintiffs have not shown the City's decision to use a 2012 project list was unsupported by substantial evidence. (See, e.g., Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010)
Plaintiffs also claim the EIR "artificially constrained the study area" to only include future projects in the vicinity of the site, rather than the entire downtown area. An agency's selection of the geographic area impacted by a proposed development, however, falls within the lead agency's discretion, based on its expertise. (Guidelines, § 15130, subd. (b)(3); City of Long Beach v. Los Angeles Unified School Dist. (2009)
San Franciscans for Reasonable Growth v. City and County of San Francisco (1984)
Plaintiffs also contend the project would result in density-related cumulative impacts because it did not include a stepdown transition for building heights as proposed in the Central SoMa Plan. Plaintiffs forfeited this argument by raising it for the first time on appeal.
Plaintiffs further claim that it is unclear whether population projections cited in the EIR were actually applied to the cumulative traffic impacts analysis and whether a memorandum on "Population and Employment Projections for the 5M Development"
In sum, plaintiffs have failed to show the EIR was deficient for failing to properly consider the project's cumulative impacts.
3. Traffic and Circulation Impacts
Plaintiffs next argue the EIR failed to adequately consider traffic and circulation impacts from the proposed project. Specifically, plaintiffs argue the City failed to (1) include intersections adjacent to impacted ones in its analysis of potentially significant impacts, (2) consider the impact of the Safer Market Street Plan, and (3) adequately identify or discuss specific mitigation measures and evaluate community-proposed alternatives.
a. Adjacent Intersections
Plaintiffs argue the EIR failed to adequately analyze traffic impacts by using an artificially small study area to avoid review of potentially significant impacts. They contend existing traffic conditions will be made worse with the proposed project, and the EIR failed to review the traffic impacts at intersections adjacent to the project development area and the Interstate 280 on- and off-ramps. After oral argument, we asked the parties for additional briefing on the effect, if any, of the Supreme Court's recent Sierra Club decision on plaintiffs' argument that the EIR failed to adequately consider direct traffic and circulation impacts due to use of an artificially small study area that avoided review of impacted intersections.
As in City of Long Beach, plaintiffs have failed to demonstrate an abuse of discretion in the City's selection of intersections to analyze for traffic impacts. The DEIR set forth detailed significance criteria and an analytical methodology for determining adverse traffic and circulation impacts, none of which plaintiffs specifically challenge.
Plaintiffs contend generally that "[t]he area is well known to be severely congested with traffic" and argue the traffic and circulation analysis "failed to fully disclose the Project's direct traffic impacts" to other intersections outside the study area. In support of this argument, they cite approximately a dozen general comments about how bad traffic is in the project vicinity and at intersections studied in the EIR. Apart from quoting one specific public comment,
In any event, the FEIR explained why additional intersections were not included: "The intersections included for analysis of the [DEIR] Project's traffic impacts were identified based on criteria developed by the Planning Department, and represent a reasonable representation of the probable impacts of the [DEIR] (and Revised Project). Further from the project site, traffic is dispersed among numerous streets and the project vehicle contributions to the intersections further away are decreased. The intersections selected for analysis include the intersections adjacent to the project site, the intersections used for access to and from the Fifth and Mission Garage, and key intersections to the south providing access to and from the nearby [Interstate] 80 and [Interstate] 280 freeways (the study intersection of Sixth/Brannan includes the [Interstate] 80 ramp operations). Seventh Street would not serve as a primary access route to or from the project site because Fourth, Fifth, and Sixth Streets provide more direct access to the project site and the nearby Fifth and Mission Garage." Though plaintiffs argue it was reasonably feasible to include analysis of a larger geographic area, our courts have repeatedly emphasized that an EIR must demonstrate a good faith effort at full disclosure; it does not require perfection, nor exhaustive analysis. (See Sierra Club , supra ,
b. Safer Market Street Plan
Plaintiffs also complain the City did not evaluate the significance of the
Plaintiffs next complain the City failed to consider particular mitigation measures including: (1) reducing the amount of trip-generating uses, (2) providing funds to enhance public transportation service in the area, (3) implementing a transportation demand management (TDM) plan that is specific to the project, or (4) reviewing alternatives suggested by plaintiffs to reduce the amount of traffic generated by the 5M Project. The record reflects otherwise.
The DEIR determined that both the office and residential schemes of the proposed 5M Project would cause significant and unavoidable cumulative impacts at nine intersections. In the impact analysis of the identified project alternatives, the DEIR analyzed the potential for reducing traffic impacts at intersections by reducing the amount of trip-generating uses. Specifically, the DEIR concluded three of the feasible alternatives explored would generate fewer vehicle trips during the peak weekday hour than the proposed project, which would produce 730 vehicle trips under the office scheme and 705 vehicle trips under the residential scheme. The code compliant alternative would generate 417 vehicle trips, the unified zoning alternative would generate 489 vehicle trips, and the preservation alternative would generate 548 vehicle trips. As adopted, the revised project described in the FEIR, which was largely based on the preservation alternative, further reduced the number of vehicle trips during the peak weekday hour to 465 vehicle trips from the 548 identified in the preservation alternative. The revised project also reduced the cumulative impacts at three intersections to a less-than-significant level; thus reducing the total number of significant and unavoidable cumulative impacts from nine to six intersections between the DEIR and the FEIR.
The DEIR also considered requiring the developers to contribute funds to public transportation, but rejected the option because the project did not result in significant transit impacts and the project area was already well served by public transit, with available capacity to accommodate the additional transit trips generated by the project. The City also noted, "Because of the availability of both local and regional transit routes in the project vicinity with
Finally, we reject plaintiffs' claim the City was required to evaluate the "Community" and "Zero-Parking" alternatives. "CEQA does not require that an agency consider specific alternatives that are proposed by members of the public or other outside agencies." ( City of Maywood, supra,
Courts will defer to an agency's selection of alternatives unless the petitioners (1) demonstrate that the chosen alternatives are " ' "manifestly unreasonable and ... do not contribute to a reasonable range of alternatives," ' " and (2) submit evidence showing the rejected alternative was both "feasible" and "adequate," because it was capable of attaining most of the basic objectives of the project, taking into account site suitability, economic viability, availability of infrastructure, general plan consistency, and othеr relevant factors. ( Center for Biological Diversity v. Department of Fish & Wildlife (2015)
Moreover, while they argue the City unreasonably failed to consider their proposed "Community" and "Zero-Parking" alternatives, plaintiffs did not meet their burden to show those alternatives were feasible and adequate because they were capable of attaining most of the basic objectives of the project. The proponents of the "Community Preferred Project Alternative"
With respect to the zero-parking alternative, plaintiffs likewise fail to cite any evidence it was a feasible, adequate alternative that could meet the objectives of the 5M Project. The City considered nine alternatives to the 5M Project, including a "No Project" and an "Off-site" alternative, both of which would have contributed no traffic or additional parking spaces to the area, but which were rejected for failure to meet the objectives of the development program. Plaintiffs fail to explain how their zero-parking proposal would have fared better.
4. Wind Impacts
Plaintiffs raise several complaints with respect to the EIR's analysis of wind impacts resulting from the 5M Project. First, they argue the EIR inappropriately compares the revised project to the office and residential schemes initially proposed, rather than to existing conditions as required by CEQA. Second, they complain the revised project failed to comply with San Francisco Planning Code section 148, which requires an applicant for a project exceeding particular wind effect limits to show that the building could not be designed to avoid the exceedance or that redesign would unduly restrict the development potential. Third, they complain the EIR inappropriately relies on "wind baffling measures" in the design for development document to address wind impacts, in contravention of CEQA Guidelines requiring mitigation measures be addressed directly in the EIR and not left to future determination.
Even if the arguments had been adequately raised, however, they fail on the merits. Plaintiffs' complaint that that revised project must be compared to existing conditions as opposed to the schemes proposed in the DEIR is addressed in the passage they quote at length from the FEIR.
We also reject plaintiffs' argument that Forest City was required to prove that an alternative configuration of the project was infeasible under San Francisco Planning Code section 148. Section 148 establishes a hazard criterion for wind speed impacts, whiсh is a 26-mile-per-hour (mph) wind speed for a single
Rather than discuss the CEQA significance criterion for wind impacts, plaintiffs instead point to the EIR's discussion of exceedances of the 11-mph "comfort" threshold established by San Francisco Planning Code section 148. As the DEIR explains, the comfort criterion is "to be
5. Open Space
Plaintiffs also argue the project failed to provide adequate onsite open space. In particular, they emphasize that the San Francisco Park Recreation and Open Space Advisory Committee expressed concern about the lack of a formal presentation on open space and passed a resolution requesting the
In response to public comments, the EIR noted the 5M Project provides more open sрace than the San Francisco Planning Code requires,
6. Shade and Shadow Impacts
Plaintiffs contend the EIR is inadequate with respect to the 5M Project's impacts to shade and shadow at two places in San Francisco-Boeddeker Park and Yerba Buena Gardens. As to both locations, plaintiffs contend the City failed to proceed in the manner required by law when it adopted an EIR that failed to disclose shadow impacts, failed to propose adequate
Regarding Boeddeker Park, plaintiffs argue the 5M Project will increase the absolute and cumulative shadow limits and the City's decision to raise the threshold for those limits rather than considering an alternative configuration is "almost" without precedent for a for-profit development. They point to various comments that the shade and shadow increase will fall on the park's vegetable and flower garden. They also argue that when it was found the 5M Project would violate City policy mandating " 'no net new shadow,' " mitigation measures or alternatives should have been considered before considering the benefits of the project.
Under the significance criteria for shadow impact in the EIR, a shadow has a significant effect if it "substantially affects outdoor recreation facilities or
It is true San Francisco's Planning Code and General Plan discourage the creation of new shadows on parks, plazas, and open spaces. (See S.F. Planning Code, §§ 146, 147, 295.) It is also true the Planning Commission and Recreation and Park Commission adopted a joint resolution
Plaintiffs alsо argue commenters urged the City to consider the increase in shadow limits in the context of Boeddeker Park as a "special and rare resource" in the Tenderloin, contending such resources warrant "special emphasis" under the CEQA Guidelines, section 15125.
As to Yerba Buena Gardens, plaintiffs note the revised project increases the shadow effect on Yerba Buena Gardens and the children's play area to 29 percent compared to 21 percent with the schemes proposed in the DEIR, but the FEIR found no significant impact. They contend the City failed to proceed in the manner required by law when it adopted an EIR without disclosing the shadow impacts to Yerba Buena "Park," but they provide no record citations for that argument. To the contrary, the EIR disclosed there
Plaintiffs also complain the EIR did not consider mitigation measures or alternatives that would have reduced the shade and shadow impact, but fail to cite record evidence in support of their contention. In fact, the DEIR analyzed wind and shadow impacts for each of the four feasible project alternatives, and noted that for two of them (the Unified Zoning and No Project alternatives), the alternative would reduce the 5M Project's less-than-significant impacts or have no adverse shadow impact on open spaces in the vicinity of the site. Further, because the EIR did not identify impacts from new shadow or shade as a significant environmental effect, the City was not required to consider mitigation measures as cursorily argued by plaintiffs. (See San Franciscans for Reasonable Growth v. City and County of San Francisco, supra,
7. Inconsistency with Area Plans and Policies
Plaintiffs contend the EIR failed to adequately account for inconsistencies between the 5M Project and applicable area plans and policies and thus failed to serve as the required informational document under CEQA.
In their opening brief, plaintiffs contend the 5M Project is inconsistent with various policies and objectives of the East SoMa portion of the general plan and Draft Central SoMa Plan. As Forest City notes, however, the 5M Project
Plaintiffs further argue the 5M Project exceeds the height and intensity limits for the SoMa Youth and Family Special Use District (SUD), Residential/Service Mixed Use (RSD), and Downtown Support (C-3-S) zoning districts, and complain the project is "made to appear to be consistent with surrounding zoning" even though it is not. The record reflects, however, that the EIR disclosed that the 5M Project would require amendments to the general plan, the rezoning of portions of the site, and modification of existing development standards. The DEIR described the existing land use, bulk and height requirements on the project site, and compared existing planning controls to those proposed as part of the project. Plaintiffs have not shown how this discussion was misleading or inhibited informed decisionmaking or public participation.
Nor are we convinced by plaintiffs' argument the DEIR does not contain any meaningful discussion of the project's consistency with the Draft Central SoMa Plan. As its "draft" designation suggests, the Draft Central SoMa Plan had not been approved at the time of the EIR, and thus the EIR was not required to consider it. (See Chaparral Greens v. City of Chula Vista (1996)
Finally, plaintiffs raise a number of purported inconsistencies with the current zoning regulations, the City's "Transit-First Policy," the San Francisco Planning Code, and shadow limits on Boeddeker Park. Plaintiffs' contentions that (1) the provision of parking spaces was inconsistent with the Transit-First Policy, and (2) the wind impacts are inconsistent with criterion established in the Planning Code, were not raised during the administrative process or in the trial court, and are therefore waived.
" 'CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.' " ( Chaparral , supra,
8. Statement of Overriding Considerations
Plaintiffs argue the statement of overriding considerations adopted by the City when approving the project is not supported by substantial evidence because the City improperly considered the benefits before considering feasible mitigation measures or alternatives. They also assert Forest City had
For several reasons, these arguments lack merit. First, the EIR did consider a no project alternative, which would have resulted in no new shadow impacts to Boeddeker Park and Yerba Buena Gardens, but rejected it because that alternative would not meet any of the project objectives except retention of the Chronicle Building and Dempster Printing Building. Second, as Forest City notes, the 5M Project was modified to substantially conform to the identified environmentally superior alternative. If there were no consideration of mitigation measures or alternatives, the revised project would not have been adopted. Finally, the statements plaintiffs cite in support of their argument regarding the "benefits" of the project were made by Commissioners Low and Levitan and Planning Director Rahaim during the hearing at which CEQA findings and the statement of overriding considerations were adopted-the precise point at which they were supposed to be weighing the benefits against the environmental impacts. (Guidelines, § 15093, subd. (a) ["CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits ... of a proposed project against its unavoidable environmental risks when determining whether to approve the project."].) Plaintiffs have failed to demonstrate the statement of overriding considerations was not supported by substantial evidence.
III. DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur:
Humes, P. J.
Kelly, J.
Notes
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq. ).
Subsequent references to "Guidelines" are to the CEQA guidelines found in title 14 of the California Code of Regulations, section 15000 et seq.
The office scheme proposed a total of 1,827,000 gsf comprised of 871,900 gsf of office uses, 802,500 gsf of residential uses, 663 parking spaces, and 44,600 gsf of publicly accessible open space. The residential scheme would consist of 1,808,800 gsf, consisting of 598,500 gsf of office space, 1,057,700 gsf of residential uses, 756 parking spaces, and 62,100 gsf of open space.
Plaintiffs cite a comment from Planning Commissioner Kathrin Moore that a phased project could have been proposed, which is what occurs in a "normal" approval process. Commissioner Moore's comments, however, do not describe a deficiency in the EIR's project description, nor do they express any confusion over the proposed options for the office and residential schemes. Further, as the trial court noted, Commissioner Moore voted to certify the EIR.
This issue is also forfeited because plaintiffs have not shown it was raised during the administrative process.
As to the code compliant alternative, plaintiffs state thе axonometric (without perspective) drawing looking down on the site made it look misleadingly small. They note their request for a complete study and presentation was denied, precluding their ability to assess the difference between the proposed scheme and the code compliant alternative. It appears the code compliant alternative, however, was rendered in the same perspective as the other alternatives, including the preservation alternative, on which the revised project was based. Plaintiffs do not explain how that makes comparison difficult.
Plaintiffs argue Dusek is factually distinguishable from this case, but do not explain why the legal principle that decision makers should have flexibility to adopt portions of a project (or environmentally superior alternative) to address environmental concerns does not apply.
The SFMOMA Expansion Project, Mexican Museum, and Moscone Center Expansion Project were also listed as reasonably foreseeable projects within the vicinity of the site in the DEIR project description.
Plaintiffs also claim the City's reliance on data from the Draft Central SOMA Plan EIR for the 5M Project cumulative impacts analysis was improper "because it constituted deferral of analysis to a future plan." Plaintiffs do not explain this conclusory contention, nor is it supported by the authority they cite. Sundstrom v. County of Mendocino (1988)
On reply, plaintiffs argue they raised the issue in their opening brief in the trial court by "referenc[ing] the letter from SoMa concerning the lack of a step-down transition area." The letter they reference is one of a string of citations to the administrative record in support of the general argument that "The EIR fails to adequately analyze cumulative impacts as noted in the DEIR comment letters by attorneys Eric Phillips and Susan Brandt-Hawley and by Save our SoMa, South of Market Community Action Network and San Franciscans for Reasonable Growth." It hardly merits mention that a record citation, standing alone, does not suffice to raise a legal or factual issue.
In their supplemental brief, plaintiffs assert the FEIR failed to divulge what criteria were used by the Planning Department, precluding their ability to evaluate the efficacy of that selection. Plaintiffs did not raise this issue in their briefs or at oral argument. In any event, it lacks merit, because the DEIR disclosed both the significance criteria and analytical methodology used for the traffic analysis.
One public comment (repeated verbatim by several commenters) stated the DEIR failed to analyze impacts to the intersection of Third and Howard Streets, impacts to Seventh Street along Folsom Street, Bryant Street or Brаnnan Street, and impacts to the on- and off-ramps near Interstate 280. With respect to the intersection of Third and Howard Streets, the City conducted an additional study of traffic impacts following the public comment period. The study concluded there was no significant impact at that intersection. With respect to Seventh Street, the FEIR explained it was not a primary access route to or from the project. And with respect to Interstate 280 ramps, the FEIR explained that the Sixth and Brannan study intersection includes the Interstate 280 ramp operations.
Plaintiffs also rely on Bozung v. Local Agency Formation Com. (1975)
Plaintiffs quote the following excerpt from the FEIR regarding the project's wind impacts: "Compared to the Draft EIR Project, wind conditions at the project site would vary slightly and the intensity of wind impacts would be less under the Revised Project given that the 195-foot-tall Building N-2 would not be developed, which would allow for an overall reduction in building heights and mass within the interior of the site. Under existing conditions, the Draft EIR identified 31 locations (out of 78 evaluated locations) that have wind speeds that exceed the pedestrian comfort criterion of winds greater than 11 miles per hour (mph) more than 10 percent of the time. The Draft EIR Project's Office Scheme would change wind patterns such that new exceedances would occur at 32 locations (Draft EIR page 478). As shown in Figure RTC II-9 , [fn. omitted] compared to existing conditions, the Revised Project would result in 43 total exceedances, or 20 new exceedances compared to existing conditions and nine fewer exceedances than the Draft EIR project. Overall, the Revised Project would increase the average wind speed at test locations from 12 mph to 12.8 mph, a modest increase and less of an increase than the 2 mph increase identified for the Draft EIR Project. The highest wind speed (22 mph) would occur at the southwest corner of Fifth and Tehama Streets (Location 6), an increase from 17 mph under existing conditions. The 11 mph comfort criterion would be exceeded 17.4 percent of the time (compared to 14 percent of the time under existing conditions or the 21 percent inсrease identified for the Draft EIR Project). Similar to the Draft EIR Project, the Revised Project would result in a relatively modest worsening of wind comfort conditions."
Under existing conditions, the three locations with wind speeds over the hazard criterion did so for 79 hours a year, while under the revised project, exceedances of the hazard threshold would occur for a total of 4 hours per year (a reduction of 75 hours compared to existing conditions).
The San Francisco Planning Code would require approximately 33,600 gsf of open space for the revised project, whereas 59,450 gsf would be provided. Further, the revised project would meet the required square footage without the rooftop space.
Plaintiffs also rely on a comment from Attorney Eric Phillips that the EIR failed to disclose that without this special approval to raise the shadow limit on Boeddeker Park, the project would result in a significant impact. But Phillips's comment suffers the same logical fallacy of equating the City policies on shade and shadow with CEQA criteria for a significant impact without explaining why the shadow would create a significant environmental effect. Plaintiffs also assert the City's increase of the shadow limits was "an almost unprecedented action in approving a for-profit development," but the record reflects this was the fifth time the City had authorized shadow increases for Boeddeker Park.
Guidelines, section 15125 regarding the EIR's description of the physical environmental conditions in the vicinity of the project provides, in relevant part: "Knowledge of the regional setting is critical to the assessment of environmentаl impacts. Special emphasis should be placed on environmental resources that are rare or unique to that region and would be affected by the project . The EIR must demonstrate that the significant environmental impacts of the proposed project were adequately investigated and discussed[,] and it must permit the significant effects of the project to be considered in the full environmental context." (Guidelines, § 15125, subd. (c), italics added.)
Plaintiffs also make a cursory claim that "The City's findings that the Project is consistent with area plans and policies is not supported by substantial evidence" (italics added), but they do not discuss that contention substantively or provide any record citations to support it. Accordingly, we will not address it. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C).)
Plaintiffs argue the 5M Project is inconsistent with "East SoMa Area Plan Policy 7.1," which they contend requires height and building intensity limits for new developments which would preserve the existing scale. Forest City assumes this is a reference to the Draft Central SoMa Plan because there is no "Policy 7.1" in the East SoMa Area Plan. For reasons discussed above, the East SoMa Area Plan does not apply to the 5M Project, and plaintiffs do not address this issue further on reply.
Plaintiffs contend the issue of inconsistency with the City's Transit-First Policy was raised by the Sierra Club in connection with the need to consider a zero-parking alternative, but plaintiffs did not assert the EIR was inadequate because it failed to disclose or analyze any inconsistency with the Transit-First Policy.
As to the changes in floor area ratio (FAR) requirements for the Downtown Support (C-3-S) zoning district, however, we note the DEIR discussed the changes that would be required if the project were approved.