Archive for August, 2014


In a partially published opinion, the court upheld San Francisco’s approval of the Parkmerced project, concluding that the San Francisco General Plan contains adequate standards for population density and building intensity, the city did not violate due process rights in approving a development agreement for the project, and the administrative record properly included certain hearing transcripts. The court affirmed the judgment below. San Francisco Tomorrow v. City and County of San Francisco, Case No. A137753.

Parkmerced is an existing 3,221-unit residential complex on 152 acres in southwest San Francisco. The housing is currently divided between 13-story towers and 2-story townhouses. The proposed project is a comprehensive mixed-use redevelopment plan that proposes, over the course of 20 to 30 years, to demolish all the townhouse units, build an equal number of replacement units, and add 5,679 units. The project also envisions providing new commercial and retail services, transit facilities, parks, and open-space amenities, and improving existing utilities and stormwater management systems. The project would also include office space, a new school, daycare facilities, and a fitness center. The Planning Commission certified the final EIR for the project, after which the Board of Supervisors approved the project. San Francisco Tomorrow and Parkmerced Action Coalition filed a petition for writ of mandate. The trial court denied the petition on all counts. Petitioners argued that the San Francisco General Plan’s Urban Design Element is inadequate for failing to include standards for population density and building intensity as required by Government Code section 65302. “Population density,” the court noted, refers to the number of people in a given area rather than the concentration of dwelling units. The court emphasized that the actual layout of a general plan is for the most part within the local agency’s discretion. Here, the section of the Housing Element describing existing housing stock contained a table and map that together provided an adequate description of the population densities for the Parkmerced area. The table and map also projected the likely future densities throughout the city. The court found this adequate. The Urban Design Element was adequate in establishing maximum dimensions of buildings only above specified heights, as this type of standard was contemplated by case law and the general plan. The court afforded the city broad discretion as to the degree that the circulation element correlated with the changes in population density and building intensity.

Petitioners also contended the trial court erred in dismissing Parkmerced Action Coalition’s due process claim. Petitioners argued that as tenants of Parkmerced, members of the coalition held property rights associated with their rent-controlled units, and those rights had been violated by the failure to provide proper notice. The court found no error. The court noted that the only governmental decisions subject to procedural due process principles are decisions that are adjudicative in nature. Legislative action is generally not governed by procedural due process requirements. To conform to this rule, appellants posited that a development agreement is an entitlement, rather than a law of general applicability. While a few cases support the expansion of due process protection where a legislative act exceptionally affects a small number of people, under state law the approval of a development agreement is a legislative act. The court was unwilling to subject the approval to due process requirements simply because it affected property rights in some manner.

Finally, the court held that the trial court had not erred in including in the administrative record transcripts of a set of hearings before a board committee. Though the audio recordings and their transcriptions constituted “other written materials relevant to the agency’s decision on the merits of the project,” no cases held that such documents must be identified in the motion affirming certification of the EIR in order to be “before the decisionmaker.” Furthermore, the hearings occurred before the board’s decision, and thus the recordings and transcripts were properly part of the administrative record. Even if the transcripts were not part of the administrative record, the court held that petitioner had failed to meet their burden of showing such error was prejudicial.

The Governor’s Office of Planning and Research released a preliminary discussion draft of revisions to the CEQA Guidelines implementing Senate Bill 743 on August 6, 2014. Currently, transportation impacts are typically evaluated based on the delay in traffic flows that vehicles experience at intersections and roadway segments. Delay is measured by the “level of service” or LOS. Mitigation for these impacts often takes the form of traffic improvements focused on increasing roadway capacity such as adding lanes. Recognizing that this practice may actually be counter to public policy by encouraging auto use and emissions, and discouraging alternative forms of transportation, OPR has proposed changes to how transportation impacts are evaluated. Specifically, OPR’s draft revisions to the CEQA Guidelines propose analysis of vehicle miles traveled (VMT), in lieu of LOS, for evaluating transportation impacts.

Most notably, OPR proposes to add Section 15064.3, a new section of the CEQA Guidelines that addresses new methods of measuring transportation impacts. Because Section 15064.3 would be added to Article 5 of the CEQA Guidelines, which relates to the “preliminary review of projects and conduct of initial study,” the new section would apply in the context of negative declarations and EIRs. To conform to the proposed Section 15064.3, OPR has also proposed amendments to the questions in Section XVI, Transportation and Traffic, of Appendix G.

Draft Section 15064.3 includes four subdivisions. Subdivision (a) discusses the purpose of the new section, stating that the primary considerations of a project’s transportation impacts are the amount and distance of vehicle travel associated with a project. Subdivision (a) expressly states that “[a] project’s effect on automobile delay does not constitute a significant environmental impact.” The draft section does not modify CEQA’s general rules regarding the determination of a project’s significant impacts, including the need to consider substantial evidence of a project’s environmental impacts.

Subdivision (b) specifies the criteria for determining the significance of transportation impacts. As stated in subdivision (b), VMT is “generally” the best measurement of transportation impacts, thus allowing agencies room to tailor their analyses to include other measures if appropriate. The draft section describes factors that might indicate whether a project’s VMT is less than significant or not, and gives examples of projects that might have less-than-significant impacts with respect to VMT, such as projects that would result in decreased VMT. Subdivision (b) recognizes that not all transportation projects will induce vehicle travel, such as projects improving transit operations, and thus would not result in a significant transportation impact. In addition to a project’s impact on VMT, “a lead agency may also consider localized effects of project-related transportation on safety.” Finally, subdivision (b) states that a lead agency’s evaluation of a project’s VMT “is subject to a rule of reason,” but also states that “a lead agency generally should not confine its evaluation to its own political boundaries.”

Subdivision (c) refers to proposed amendments in Appendix F, which addresses energy impacts. The proposed amendments to Appendix F acknowledge that VMT may be relevant to the analysis and mitigation of energy impacts. The proposed amendments to Appendix F include examples of mitigation measures and alternatives that may reduce VMT. Examples include improving the jobs/housing balance and improving access to transit. Subdivision (c) clarifies that the proposed revisions in the CEQA Guidelines and Appendix F do not limit an agency’s ability to condition a project pursuant to other laws. For example, agencies may continue to require projects to meet LOS designations set out in applicable general plans or zoning codes. Nor do the proposed revisions prevent an agency from enforcing previously adopted mitigation measures.

Finally, subdivision (d) proposes a phased approach to implementing Section 15064.3. OPR proposes that Section 15064.3 shall apply prospectively to new projects that have not started environmental review. Section 15064.3 shall apply immediately upon the filing of Section 15064.3 with the Secretary of State. After January 1, 2016, Section 15064.3 shall apply statewide.

Under the second part of OPR’s proposed revisions, OPR proposes amendments to Appendix F, which discusses the evaluation of energy impacts under CEQA noted above.

The draft guidelines can be viewed at:

http://opr.ca.gov/docs/Final_Preliminary_Discussion_Draft_of_Updates_Implementing_SB_743_080614.pdf

OPR is requesting that comments be submitted by October 10, 2014.

OPR Releases Draft SB 743 CEQA Guidelines

August 7th, 2014 by admin

Governor Brown signed SB 743 into law in September of 2013. Among other things, SB 743 requires the Governor’s Office of Planning and Research to propose and adopt amendments to the CEQA Guidelines to provide an alternative criteria to “level of service” for evaluating transportation impacts. The alternative criteria must “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.” The draft guidelines provide that “[g]enerally, transportation impacts of a project can be best measured using vehicle miles traveled.” The draft guidelines state that to the extent a transportation project increases physical roadway capacity for automobiles in a congested area, the transportation analysis “should analyze whether the project will induce additional automobile travel compared to existing conditions.”

The draft guidelines can be viewed here.

OPR is requesting that comments be submitted by October 10, 2014.

The California Supreme Court held that CEQA review is not a prerequisite to directly adopting a voter initiative under Elections Code section 9214, subdivision (a), when it decided Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores), Case No. S207173, on August 7, 2014. The Court reversed the Fifth District Court of Appeal’s opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court (2012) (previously reported at 210 Cal.App.4th 1006).

A Wal-Mart store in the City of Sonora sought to expand into a Supercenter. Before the City Council voted on the project, voters circulated the “Wal-Mart Initiative,” which proposed to adopt a specific plan for the contemplated expansion in order to streamline approval of the Supercenter’s construction and operation. The petition was signed by over 20 percent of the City’s registered voters. The City then prepared a report on the initiative examining its consistency with previous approvals for the expansion pursuant to Election Code sections 9212, and 9214, subdivision (c), and adopted the ordinance. The Tuolumne Jobs & Small Business Alliance sued. The Court of Appeal held in favor of the Alliance, expressly disagreeing with the only published authority on point, Native American Sacred Site & Environmental Protection Assn. v. City of Juan Capistrano.

The issue before the Supreme Court was whether a legislative body must obtain full CEQA review before directly adopting a voter initiative under Elections Code section 9214, subdivision (a). Case law has established that CEQA compliance is not required before a legislative body submits an initiative to voters under section 9214, subdivision (b), and the Court held that the result should be the same where the legislative body adopts an ordinance put forth by voters. In reaching this conclusion, the Court noted that the statutory language of section 9214 makes no mention of CEQA. Furthermore, requiring CEQA compliance would effectively nullify the condensed deadlines in the Elections Code, and the abbreviated report provided for in the Code would be superfluous. CEQA would impliedly repeal contrary Elections Code procedures, and the Court emphasized the strong presumption against repeal by implication. The Court also found that application of CEQA to voter initiatives is contrary to Legislative intent, as Legislative history supported the conclusion that CEQA does not apply to any ordinances enacted by initiative, whether through an election or direct adoption.

Finally, the Court noted that direct adoption without CEQA review would not offend public policy. The possibility that interested parties may attempt to use initiatives to advance their own aims, it stated, is part of the democratic process. If direct adoption of an initiative were to result in the enactment of an undesirable law, voters have statutory remedies available to them.

(2014) 227 Cal.App.4th 1036 

The First District Court of Appeal upheld the EIR for a project designed to transform a former naval station into a vibrant mixed-use community. The project is a comprehensive plan to redevelop Naval Station Treasure Island, which ceased operations in 1997. The City and County of San Francisco, along with the Treasure Island Development Authority, certified the EIR for the Treasure Island / Yerba Buena Island Project in June 2011. A group called Citizens for a Sustainable Treasure Island challenged the decision, claiming the environmental documents violated CEQA on several grounds. The trial court denied the petition in its entirety. On appeal, the First District Court of Appeal affirmed the trial court’s judgment.  

The project, which will be constructed over 15 to 20 years, includes up to 8,000 new homes (with at least 25 percent designated as affordable units available at below-market prices); 500 hotel rooms; commercial, retail, and office space; and 300 acres of parks, playgrounds, and open space. The project also includes restoration and re-use of historic buildings, public utilities, bike and transit facilities, updated infrastructure, and a new ferry terminal and intermodal transit hub. Because the project will be built over time, with changing market conditions, it includes flexible parameters for certain project elements. All told, the project is expected to cost around $1.5 billion. 

The petitioner’s main argument on appeal was that the lead agencies abused their discretion by preparing a “project” EIR instead of a “program” EIR. Essentially, the petitioner argued that the project was too “flexible” and uncertain to support projectlevel review.  The court disagreed, noting that the fact that an EIR is labeled a “project” or “program” EIR matters little. Rather, the level of detail required in an EIR is determined by the nature of the project.  

The court also upheld the EIR’s project description, analyses of hazardous substances and historic resources, and its discussion regarding conformity with the “Tidelands Trust. In addition, the court held that the draft EIR did not need to be recirculated in light of modifications made to the project to address Coast Guard concerns. (RMM partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest Treasure Island Community Development, LLC, in the case.)

(2014) 225 Cal.App.4th 173 

The Third District Court of Appeal held that the City of Woodland’s EIR for a regional shopping center failed to comply with CEQA. The shopping center, known as “Gateway II,” was planned for undeveloped agricultural land on the outskirts of the city. The city prepared a programmatic EIR for the project, reduced its size from 234 acres to 61.3 acres as a result, and approved the project.  

In the published portion of the opinion, the court considered the sufficiency of five mitigation measures for urban decay impacts caused by the project. The court found that one measure, which served to ensure that the primary retail uses for the development would be regional and not compete with retailers in downtown Woodland, was permissible under CEQA. By itself, however, this measure did not constitute adequate mitigation of anticipated urban decay from the project. The court found the other measures inadequate because they lacked specificity or adequate commitments for future action. The court also held that the city’s treatment of energy impacts was inadequate, and that the city failed to comply with CEQA when it rejected a mixed-use alternative as infeasible. 

In the unpublished portion of the case, the court rejected the petitioner’s claim that the city’s actions in approving the shopping center violated the State Planning and Zoning Law because the project was inconsistent with the city’s general plan policy of revitalizing its downtown. The court held that the petitioner failed to preserve this argument because the petition did not plead a separate violation of the State Planning and Zoning Law. (RMM partners Whitman F. Manley and Sabrina Teller, associate Amanda Berlin and former RMM associate Holly Roberson represented the City of Woodland in the case.)

A Ventura County Superior Court judge held that the EIR for a water plan that would alter historic usage of Kern River water is inadequate and must be redrafted and recirculated as a focused EIR. The ruling marks the latest legal development in a longstanding dispute over Kern River flows.

At issue in the case was the Kern River Water Allocation Plan proposed by the Kern Delta Water Storage District. The plan calls for diverting about 33,000 acre-feet per year from the Kern River that historically have been released to junior water rights holders, including the North Kern Water Storage District and the City of Bakersfield. The Kern Delta district has sought to provide these “release waters” to other users. In litigation over the years, the North Kern district and Bakersfield have argued that the Kern Delta district forfeited portions of its appropriative water rights due to nonuse (i.e. due to the longstanding releases).

The EIR for the plan concluded that the Kern Delta district’s retention and diversion of the 33,000 acre-feet per year of water would cause no significant and unavoidable environmental impacts. The EIR acknowledged that groundwater levels would decline in the North Kern district service area between two to three feet and that some areas near recharge basins could experience water level decreases of up to 12 feet. The EIR concluded, however, that any immediate impacts to ranches, farms, and urban needs would “equilibrate” over time because the release of water to points south of the river in the Kern Delta district would benefit the large subbasin (known as the Kern River Fan) underlying the entire region.

The Kern Delta district’s board certified a final EIR for the plan in September 2012. The North Kern district, along with two other water agencies and the city of Shafter, sued, claiming multiple CEQA violations as well as violation of a prior injunction order. The petitioning water agencies’ counsel included James G. Moose, senior partner at Remy Moose Manley, LLP. The city of Bakersfield sued on similar grounds.

In his ruling (North Kern Water Storage District v. Kern Delta Water Storage District, June 5, 2014, Case No.: 56-2012-00425941-CU-WM-VTA), Ventura County Superior Court Judge Glen M. Reiser provided an extensive discussion of California’s water rights system and the complex history behind present-day allocations of Kern River water. The opinion is lengthy and sprinkled with literary passages from the Book of Proverbs, Leonardo da Vinci, and others.

The judge agreed with the petitioners that under CEQA, the EIR’s analysis of off-site impacts to groundwater was “opinion unsupported by any substantial evidence.” In particular, the court noted that the EIR lacked adequate “temporal context” involving timing, water levels, and water volumes to support its assertion that the Kern Fan would, at some point, “equilibrate.” The court also found the EIR’s analysis of land subsidence and cumulative losses of surface waters beyond the Kern Delta district’s boundaries to be inadequate.

The court issued a peremptory writ of mandate setting aside the final EIR’s certification and orderering the Kern Delta district to redraft and recirculate a supplemental “focused” EIR. The supplemental focused EIR must incorporate nine requirements aimed at adequately analyzing project-related impacts, including quantifying “equilibration” as it relates to the timing of aquifer recharge under the plan to divert 33,000 acre feet per year of water to users south of the Kern River.