South of Mkt. Cmty. Action Network v. City and County of San Francisco

• Decision Date: 22 February 2019
• Docket Number: A151521
• Citation: 245 Cal.Rptr.3d 174,33 Cal.App.5th 321
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTH OF MARKET COMMUNITY ACTION NETWORK et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; Forest City California Residential Development, Inc., et al., Real Parties in Interest and Respondents.

33 Cal.App.5th 321

245 Cal.Rptr.3d 174

SOUTH OF MARKET COMMUNITY ACTION NETWORK et al., Plaintiffs and Appellants,

v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent;Forest City California Residential Development, Inc., et al., Real Parties in Interest and Respondents.

A151521

Court of Appeal, First District, Division 1, California.

Filed February 22, 2019

Provencher & Flatt, Rachel Mansfield-Howlett, Santa Rosa, for Plaintiff and Appellants.

Dennis Herrera, City Attorney and Audrey Pearson, Deputy City Attorney for Defendant and Respondent.

Coblentz Patch Duffy & Bass, Jonathan R. Bass, Charmain G. Yu and Skye D. Langs, San Francisco, for Real Parties in Interest and Respondents.

Margulies, Acting P.J.

After preparing an environmental impact report (EIR) and holding public hearings, the City and County of San Francisco (City) approved a mixed-use business and residential project proposed by real parties in interest Forest City California Residential Development, Inc. and Hearst Communications, Inc. (collectively Forest City) in the area bounded by Mission, Fifth, Howard, and Sixth Streets in San Francisco. In approving the project, the San Francisco Board of Supervisors also voted to amend the San Francisco general plan to establish a Fifth and Mission Special Use District and approve the development agreement. South of Market Community Action Network (SOMCAN), Save Our SoMa (SOS), and Friends of Boeddeker Park (collectively plaintiffs) challenged the environmental review by filing a petition for writ of mandate in the superior court. The trial court denied relief. We affirm.

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 west. The existing area is occupied by eight buildings, with approximately 317,700 gross square feet (gsf) of office and commercial uses, as well as seven surface parking lots. The largest building in the existing space is the Chronicle Building, which is proposed to be renovated as part of the 5M Project.

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 CEQA¹ findings, a statement of overriding considerations, and a mitigation monitoring and reporting program; (2) raised the shadow limit for Boeddeker Park (a park near the 5M Project); (3) approved a design for development document for the 5M Project; (4) recommended amendments to the general plan, San Francisco Planning Code, and zoning map to create the Fifth and Mission Special Use District; and (5) recommended adoption of a development agreement for the project.

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 mandate 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) 6 Cal.5th 502, 511, 241 Cal.Rptr.3d 508, 431 P.3d 1151 ( Sierra Club ).) " ‘ "The EIR is the heart of CEQA" and the integrity of the process is dependent on the adequacy of the EIR.’ " ( Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 924, 146 Cal.Rptr.3d 12.)

" ‘ " ‘[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) 210 Cal.App.4th 260, 275, 148 Cal.Rptr.3d 310.) As our Supreme Court recently explained in Sierra Club : "The standard of review in a CEQA case, as provided in sections 21168.5 and 21005, is abuse of discretion. Section 21168.5 states in part: ‘In any action or proceeding ... to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion.’ [Citation.] Our decisions have thus articulated a procedural issues/factual issues dichotomy. ‘[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater deference to the agency’s substantive factual conclusions. In reviewing for substantial evidence, the reviewing court "may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable," for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." ’ " ( Sierra Club , supra , 6 Cal.5th at p. 512, 241 Cal.Rptr.3d 508, 431 P.3d 1151.)

The court explained that this "procedural issues/factual issues dichotomy" has worked well for courts reviewing agency determinations. ( Sierra Club , supra , 6 Cal.5th at p. 512, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) Some procedural questions, such as whether the agency has provided sufficient notice and opportunity to comment on a draft EIR, or whether it has entirely omitted a required discussion, have clear answers. "But the question whether an agency has followed proper procedures is not always so clear. This is especially so when the issue is whether an EIR’s discussion of environmental impacts is adequate, that is, whether the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.’ " ( Id. at pp. 512–513, 241 Cal.Rptr.3d 508, 431 P.3d 1151.)

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 sufficient 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...