Anderson v. City of S.F.

• Decision Date: 14 January 2013
• Docket Number: A129910
• Court: California Court of Appeals Court of Appeals
• Parties: ROB ANDERSON, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

ROB ANDERSON, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

A129910

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Filed: January 14, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City & County Super. Ct. No. CPF-05-505509)

In recent years, many cities have decided that promoting the increased use of bicycles improves the quality of life and promotes a variety of public policies. Since 1997, San Francisco has been one of these cities. A decade later, an upgrade to the City's statutory Bicycle Plan generated an Environmental Impact Report (EIR) of more than 2,000 pages that was certified by the City's Board of Supervisors. Two groups and one individual objected, to no avail, to the trial court ruling that that the EIR complied with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.¹). Only the individual, Rob Anderson, continues the attack, appealing from the trial court's order. He contends that the EIR is riddled with fundamental procedural andsubstantive legal error, and that the massive administrative record of more than 36,000 pages will not support numerous findings of the trial court. Aided in large measure by the trial court's comprehensive written decision, we reject all of Anderson's challenges to the EIR itself. However, he does identify a defect in the process when the EIR was certified by the Board of Supervisors, which failed to make a handful of findings required by CEQA. We therefore must reverse in order that this omission may be corrected.

BACKGROUND

In 2005, the San Francisco Board of Supervisors decided to upgrade the City's Bicycle Plan, which had been adopted in 1997.² In adopting the upgrade, City authorities initially determined that no further CEQA review was needed. Anderson—together with the unincorporated associations Ninety-Nine Percent and the Coalition for Adequate Review (hereinafter collectively designated as petitioners by the trial court)—filed a petition for a writ of administrative mandate to overturn that decision. In November 2006, the trial court ordered issuance of the requested writ directing the City to comply with CEQA.

In its order granting relief, the trial court concisely spelled out the nature of the controversy:

"San Francisco first adopted a bicycle plan in March 1997 . . . . The 1997 Plan . . . had one goal: to 'provide a comprehensive guide for efforts that will make San Francisco a more "bicycle-friendly" city.' Within that overall goal, the Plan contained four objectives: 1) improve facilities for bicycles; 2) improve bicycle safety; 3) promote bicycling in the City; and 4) increase funding for bicycle projects."

"The Bicycle Plan originated in the City's Department of Parking and Traffic (DPT) as a complex, far-reaching plan to alter streets in San Francisco to accommodateSan Francisco residents who ride bicycles. To achieve the Bicycle Plan's goal of increasing the number of City residents who ride bicycles, the Bicycle Plan mandates a number of actions including: eliminating traffic lanes and street parking throughout the City to create bicycle lanes, requiring that cars, buses and trucks 'share' lanes with bicyclists regardless of speed, allowing bicycles inside Muni and other public transit vehicles, eliminating parking in existing and newly constructed buildings, allowing bicycles in exclusive bus lanes, installing physical impediments to motorized traffic or 'traffic calming,' allowing bicycles on sidewalks, and closing streets to vehicles to create exclusive 'bicycle boulevards.' The Bicycle Plan also contemplated the City doing away with established Level of Service (LOS) measurement of traffic impacts in CEQA analysis, and requiring that CEQA review of any proposed project in the City must resolve any 'traffic impacts or conflicts of parking access' by giving 'full or partial priority for bicycles,' that any proposed Area Plan in the City must be 'consistent' with the Bicycle Plan, and that automatic amendments of the City's General Plan will roll in '[a]s changes to the network occur.' "

In September 2009, the City filed a return to the writ, advising the court that the Board of Supervisors had completed certification of an EIR³, by virtue of which the Citysought the court's determination that "[t]he City has fulfilled its obligations under CEQA and the Court's Peremptory Writ of Mandate."

To summarize, the EIR identified 60 "near-term" "improvements" or "projects" that were geographically organized in eight area "clusters," plus an unspecified number of "minor," and "long-term" improvements.⁴ A number of these projects, 27 in the DraftEIR, had two different "options" as to how the improvements would be made. Five of the 27 involved more significant, lengthy, or heavily traveled streets, which five were subdivided into "segments," in one instance producing as many as eight options for a single improvement.

In the "Project Description" of "Existing Site Conditions," the EIR stated: "The project site is primarily along the public street right-of-way, but also includes bicycle facilities on other public land. The existing site conditions consist of the existing bicycle route network that is lain out primarily along streets and thoroughfares throughout the City." The proposed location of each "Off-Street Path," "Bicycle Lane," "Wide Curb Lane," and "Signed Route" were shown on a map. Each of the projects was analyzed in terms of "existing transportation conditions," including descriptions of "roadway access, traffic, transit, parking, pedestrian, bicycle and loading conditions."

As required by the Guidelines, the "Comments and Responses" of the Planning Department, together with four appendices, constitute the final 600 pages of the EIR.⁵(Guidelines, § 15132(b), (d).) The public responses may have been responsible for the "staff-initiated text changes" that were explained as follows:

"Following distribution of the Draft EIR, MTA [Municipal Transportation Agency] has refined the draft San Francisco Bicycle Plan. The changes are minor and . . . include a few editorial revisions. These changes are not substantive and do not affect the analysis or conclusions regarding significant impacts . . . .

"In addition, SFMTA also has refined the near-term improvements and developed preferred project designs for most near-term improvements since distribution of the Draft EIR. The staff-initiated text changes below indicate the preferred project design for each near-term improvement including a description regarding how or if the preferred designs differ from project options analyzed in the draft EIR . . . . The preferred project designs are within the range of project alternatives originally anticipated for these near-term improvements and fall within the analytic framework and conclusions presented in the Draft EIR. The project refinements are based upon input from stakeholder groups and City agencies . . . .

"Over half of the 60 near-term improvements remain unchanged from projects described and analyzed in the Draft EIR. Eleven of the near-term improvements have minor modifications and 13 others have additional modifications. ⁶ All of these design refinements are fully described and analyzed in this document. As set forth, and based upon substantial evidence in the record, these project changes, both individually and cumulatively, do not create any new significant impacts or a substantial increase in environmental impacts from those identified in the Draft EIR. Nor do they trigger any ofthe other provisions that would necessitate recirculation . . . . Moreover, the limited extent of project design refinements and relatively small number of projects affected by measurable changes has not been denied the public a meaningful opportunity to comment on said projects in the context of the Draft EIR."

The petitioners, holding a very different opinion of the 2,052-page EIR, urged the court not to discharge its writ: "Far from complying with CEQA and the Court's orders, City's certification of the EIR was an abuse of discretion and a failure to proceed in a manner required by law. The EIR is inadequate [and] in violation of CEQA by failing to mitigate and offer alternatives to the Project's significant impacts, by failing to set forth an accurate Project description, by its flawed baseline, by its failure to identify and analyze air quality and parking impacts, by its failure to analyze impacts from minor and long-term improvements, and by its last-minute changes that precluded required public participation and by failing to meet other requirements for legally adequate environmental review under CEQA. The Court should not discharge the Writ until City has complied with the law."

On June 22, 2010, the court heard extensive arguments on the City's return and the petitioners' criticisms. On August 6, the court entered an exhaustive 30-page order overruling the objections and discharging the writ of mandate. Anderson alone then perfected this timely appeal.⁷

REVIEW

Anderson advances a number of contentions aimed at perceived instances of reversible error. The final contention in his opening brief challenges the integrity and validity of the entire process undertaken by the City in response to the trial court's writ of mandate, and should be considered at the outset. We thus begin with it, and with the preliminary observation that considerable portions of this opinion will be comprised of lengthy quotation, with minor nonsubstantive editorial changes, from the trial court'sorder. This is done for two reasons. The first is to underscore the deep and...