Mission Bay Alliance v. Office of Cmty. Inv. & Infrastructure

• Citation: 211 Cal.Rptr.3d 327,6 Cal.App.5th 160
• Decision Date: 29 November 2016
• Docket Number: A148865
• Court: California Court of Appeals
• Parties: MISSION BAY ALLIANCE et al., Plaintiffs and Appellants, v. OFFICE OF COMMUNITY INVESTMENT AND INFRASTRUCTURE et al., Defendants and Respondents. GSW Arena LLC et al., Real Parties in Interest and Respondents.

6 Cal.App.5th 160

211 Cal.Rptr.3d 327

MISSION BAY ALLIANCE et al., Plaintiffs and Appellants,

v. OFFICE OF COMMUNITY INVESTMENT AND INFRASTRUCTURE et al., Defendants and Respondents.GSW Arena LLC et al., Real Parties in Interest and Respondents.

A148865

Court of Appeal, First District, Division 3, California.

Filed November 29, 2016

Counsel for plaintiffs and appellants Mission Bay Alliance, SaveMuni, and Jennifer Wade : Brandt–Hawley Law Group, Susan Lynne Brandt–Hawley, Glen Ellen, Law Offices of Thomas N Lipp e, Thomas Neil Lippe, San Francisco, Soluri Meerve, A Law Corporation, Patrick Matthew Soluri and Osha R. Meserve, Sacramento.

Counsel for amicus curiae of Center for Biological Diversity, Coalition for Clean Air Communities for a Better Environment, and Sunset Coalition on behalf of appellants: Chatten–Brown & Carstens, Jan Chatten–Brown, Douglas P. Carstens, Josh Chatten–Brown, Santa Monica, and Michelle Black, Hermosa Beach.

Counsel for defendants and respondents Office of Community Investment and Infrastructure, the City of San Francisco: City and County of San Francisco, Dennis J. Herrera, James M. Emery, and Brian F. Crossman, Office of the Community Investment and Infrastructure, James B. Morales, San Francisco, Thomas Law Group, Tina A. Thomas and Christopher J. Butcher

Counsel for real parties in interest and respondents GSW Arena LLC and David Kelly: Gibson, Dunn & Crutcher LLP, Daniel Miles Kolkey, Mary G. Murphy, Matthew S. Kahn, San Francisco, Kirsten Galler, and Theodore M. Kider, Los Angeles, Remy Moose Manley, LLP, Whitman F. Manley, James G. Moose, and Christopher L. Stiles, Sacramento

Pollak, J.Plaintiffs Mission Bay Alliance and others¹ appeal from the trial court's denial of two consolidated petitions to set aside the certification of the environmental impact report and related permits for the construction of an arena to house the Golden State Warriors basketball team, as well as other events, and the construction of adjacent facilities, in the Mission Bay South redevelopment plan area of San Francisco.²

The project proposed by real parties in interest GSW Arena LLC, an affiliate of Golden State Warriors LLC, and David Kelly is to construct a 488,000-square-foot multipurpose event center with a capacity of up to 18,500 seats³ and a variety of mixed-use structures, including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space. The proposed event center is designed to host the Golden State Warriors basketball team during the National Basketball Association season and to provide a venue for a variety of other uses, including concerts, family shows, other sporting events, cultural events, conferences, and conventions. The arena is projected to host over 200 events annually. The project purports to incorporate on-site and off-site improvements to accommodate traffic and to include a transportation management plan "to facilitate multimodal access at the event center during project operation."

The project is proposed to be constructed on an approximately 11-acre site (blocks 29–32) in the Mission Bay South redevelopment plan area in the southeastern part of San Francisco. Attached as appendices to this opinion are a diagram and an aerial photograph showing the location of the proposed project and the approved uses of the immediately surrounding parcels, which include the Mission Bay campus and medical center of the University of California at San Francisco (UCSF) and a mix of residential, light industrial, office and open space uses.

The relevant development history of the area begins in 1990 with the adoption by the San Francisco Board of Supervisors of the Mission Bay plan, an area plan of the San Francisco general plan.⁴ A Mission Bay final environmental impact report (1990 FEIR) was certified in connection with the approval of the Mission Bay plan. That plan was never implemented but in 1997 the former San Francisco Redevelopment Agency (subsequently replaced by defendant Office of Community Investment and Infrastructure OCII))⁵ proposed a new project for the Mission Bay area, consisting of two separate development plans: Mission Bay North redevelopment plan and Mission Bay South redevelopment plan. Both plans were approved in late 1998 after certification of a combined Mission Bay final subsequent environmental impact report (1998 FSEIR), which incorporated information from the 1990 FEIR and applied to both the north and south redevelopment plans.⁶

In April 2015, the Governor certified the currently proposed project as an "environmental leadership development project" within the meaning of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq. ),⁷ specifically section 21178 et seq., requiring expedited environmental review and litigation.⁸ On June 5, 2015, OCII, as the lead agency, released a draft supplemental environmental impact report (DSEIR) for the project, tiered to the 1998 FSEIR. (§ 21094; CEQA Guidelines, § 15152.)⁹ Following the receipt of public comments and responses thereto and a public hearing, on November 3, 2015, OCII certified the final supplemental environmental impact report (FSEIR) now under consideration. OCII found that the project would have certain significant and unavoidable effects on the environment and adopted a statement of overriding considerations, and authorized the executive director to implement a "mitigation monitoring and reporting program." OCII's executive director adopted secondary use findings for the proposed event center. On December 8, 2015, the board of supervisors rejected plaintiffs' appeal from the actions taken by OCII, approved certification of the FSEIR, adopted the CEQA findings, and approved the project.

Plaintiffs filed two separate actions seeking to set aside the certification of the FSEIR, approval of the secondary use findings, and several other approvals relating to the project.¹⁰ Following transfer of one action from the Sacramento County Superior Court to the San Francisco Superior Court, the superior court heard argument on the consolidated petitions. On July 18, 2016, the court issued a 54-page order, substantially as proposed by defendants, rejecting all of plaintiffs' contentions and denying their petitions for a writ of mandate. This appeal promptly followed.

We have carefully considered each of plaintiffs' contentions raised on appeal. Although in some instances defendants' analysis of potential environmental impacts might have been expanded, as is commonly the case, in general the record reflects a thorough and exhaustive study of all environmental impacts to be anticipated that were not considered in the 1998 FSEIR, and identification of numerous mitigation measures to lessen adverse impacts to the extent feasible. We conclude there is no merit to plaintiffs' objections to the sufficiency of the city's environmental analysis and its approval of the proposed project.

DISCUSSION

The 1998 FSEIR provides a portrait of the Mission Bay project area as it existed at that time. The area was described as "a primarily industrial area occupied by block-long warehouses, concrete and gravel processing facilities, truck terminals, and surface parking with large tracts of undeveloped land that previously contained rail lines and a rail yard. Building heights generally range from one to two stories. The conveyor towers of two concrete and gravel processing facilities dominate the landscape at heights of about three stories. There are truck terminals and about 50 warehouses, buildings, other structures, and recreational uses including a golf driving range and in-line skating facility. Buildings range from small materials sheds to large warehouses.... Building uses include distribution and storage facilities for food products, clothing, rental furniture, and personal effects; light manufacturing; and some office uses. Uses of undeveloped areas include maintenance yards, parking areas for container trucks and commercial buses, and storage areas for construction materials." The baseball stadium, with over 40,000 seats, was under construction and would not open for another two years.

The 1998 FSEIR proposed a complete redevelopment of the area "intended to eliminate blight by facilitating development on primarily vacant and underutilized land" and "demolition of almost all existing buildings." The project area "would change from an underdeveloped industrial area with large swaths of vacant land, to a fully developed mixed use urban area, with 30,000 employees and about 11,000 residents" and change the landscape from "industrial areas into residential and commercial neighborhoods." In the Mission Bay South project area of 238 acres, approximately 61 acres was planned for development by UCSF with most of the remaining area—about 128 acres—planned for commercial industrial development.¹¹ An arena is not mentioned in the 1998 FSEIR. The 1998 FSEIR states that secondary uses in the commercial industrial designated areas could include "nighttime entertainment."

The November 1998 redevelopment plan for Mission Bay South lists seven principal land uses: residential, hotel, commercial industrial, commercial industrial/retail, UCSF, public facility (such as a police station), and open space. Potential secondary use as nighttime entertainment was defined to include "dance halls, discotheques, nightclubs, private clubs, and other similar evening-oriented entertainment activities."

Much has changed in Mission Bay South since preparation of the 1998 FSEIR. As the initial study notes, "large portions of the Mission Bay plan area have been built out. The UCSF Mission Bay campus is located west, northwest, southwest, and partially south of the project site, and it currently includes a mix of parking structures, office buildings, research buildings, student housing, and hospital buildings. Other office buildings and vacant lots are located north and south of the site...."

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