By William W. Abbott

Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549 (Saltonstall II)

The court of appeal affirms sufficiency of EIR for downtown entertainment and sports complex and concludes that the city had not pre-committed itself through eminent domain proceedings prior to EIR certification.

No doubt about it: cities love their sports teams or covet a team that plays elsewhere. With an undersized arena facility, the City of Sacramento faced the all too real prospect that the National Basketball Association would compel relocation of the Kings, the city’s long standing professional sports franchise. In an effort to keep the Kings in Sacramento, the city and local investors undertook a planning effort for a new downtown entertainment and sports complex. To that end, the city council in March 2013 approved a preliminary term sheet with the local investment group. The term sheet was expressly non-binding and reserved to the city the sole discretion to weigh the environmental consequences and to reject the project. In May of the same year, the NBA approved the transfer of ownership, but retained the right to relocate the team if a new arena did not open by 2017. Concurrent with the city’s and NBA’s consideration, special legislation was enacted amending the Public Resources Code which allowed for limited eminent domain acquisition in advance of the EIR, expedited judicial review and a prohibition on the issuance of a preliminary injunction during the pendency of litigation. Public Resources Code section 21168.6.6.

The downtown complex required demolition of existing buildings, construction of a new facility along with 1.5 million square feet of related downtown development. The city agreed to transfer ownership of other city property along with six off-site municipally owned digital billboards. In April 2013, the city posted a Notice of Preparation of an EIR, resulting in a certified EIR May 2014, at which time the city council approved the project.

Immediately following project approval, Saltonstall filed suit, sought a preliminary injunction and argued the unconstitutionality of the special legislation. In a separate decision, the court of appeal upheld the constitutionality of the statute, and declined to reverse a trial court decision denying the preliminary injunction. Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837 (Saltonstall I). At the trial on the merits of the EIR, the trial court rejected the CEQA challenges. Saltonstall appealed, and the court of appeal affirmed the lower court decision.

The threshold issue was had the city engaged in improper pre-commitment to the project in advance of EIR certification? This allegation was triggered by the city’s use of the term sheet, public relations coordination and use of eminent domain (January 2014) and loan forgiveness by the city to Crocker Art Museum in exchange for wavier of interests in nearby city park facilities included in the term sheet. The court considered each of these alleged commitments and in relying upon the express non-binding nature of the term sheet, the express legislative authorization, and the prior decision in Golden Gate Land Holdings v. East Bay Regional Park District (2013) 215 Cal.App.4th 353, the appellate court concluded that the city had not improperly crossed the line in advance of the EIR certification.

Next, the appellants urged reversal based upon the city’s failure to study remodeling of the existing arena as an alternative. The EIR evaluated continued use of the existing arena as well as a new arena to be constructed next door to the existing arena. The EIR also included a detailed analysis of why an arena in the vicinity of the existing arena would be considered infeasible, including flood risk, suburban setting and lack of economic revitalization benefits to downtown Sacramento. The appellate court rejected the appellants’ argument, finding that the city had considered a reasonable range of alternatives and had established a sufficient basis to not consider further the alternative of remodeling the existing arena complex.

Saltonstall also complained of the traffic impact analysis to Interstate 5, located in close proximity to the arena complex. The EIR, based upon the Transportation Research Board 2010 Highway Capacity Manual, documented the LOS F condition. Caltrans concurred with the report but commented as to the potential for impacts to other state highway facilities. The FEIR acknowledged Caltrans comments, disagreed with certain of Caltrans conclusions, add mitigation for coordination and concluded that the impacts would be significant and unavoidable. The court of appeal applied the deferential substantial evidence standard of review to the city’s analysis and affirmed its sufficiency. The court of appeal also rejected Saltonstall’s argument that the city was obligated to separately evaluate the impacts to long haul Interstate 5 users from other users generally. The court, again relying upon substantial evidence in the record, rejected Saltonstall’s companion argument suggesting that attendance numbers would be greater than projected. By using existing user numbers as well as data from other arenas, the lead agency had sufficient evidence to support the EIR’s conclusions.

Saltonstall also alleged potential impacts due to crowd violence. Both the police and fire departments indicated acceptability of the proposed project and ability of the respective departments to respond. The court of appeal rejected this argument on two grounds. First, crowd violence was not covered by CEQA. Second, there was no evidence in the record which suggested the potential for impacts.

The final claim related to omitted emails sought under the Public Record Act from the administrative record. At the trial court, Saltonstall sought to add 62,000 emails to the administrative record. The trial had concluded that the matter was not properly before it. Saltonstall repeated its argument again on appeal, but the appellate court concluded that the Public Records claim could only be brought up via a writ, not an appeal and rejected the argument. The final argument pertained to two documents, which the trial court had rejected for inclusion in the record based upon lack of relevance. On appeal, Saltonstall failed to sufficiently argue the trial court’s error or to develop the argument for inclusion under the special Public Resources Code provisions for CEQA litigation and thus were forfeited on appeal.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.