By William W. Abbott & Kristen Kortick

South of Market Community Action Network v. City & County of San Francisco, (2019) ___ Cal.App. 5th ____.

In 2014, real parties Forest City California Residential Development and Hearst Communications, Inc. (collectively “real parties”) sought to redevelop the San Francisco Chronicle building and surrounding structures and parcels and create a special use district (“the ‘5M’ project”). The developer advanced two options for redevelopment with one plan utilizing a residential scheme and one plan utilizing an office scheme. The DEIR and FEIR included analysis evaluating the potential alternatives for both schemes as well as a combination of both. After the public comment period and the San Francisco Board of Supervisors (“the City”) certified the FEIR, plaintiffs sought a writ of mandate in San Francisco Superior Court including alleged violations of CEQA requesting that the trial court set aside the certification of the FEIR and approval of the project. The trial court denied the writ of mandate and the First Appellate District affirmed the trial court’s decision.

On the merits, the appellate court held that the two alternate schemes were clear and provided an accurate project description. Plaintiffs argued the two schemes confused the project description; thus, the project description mislead members of the public who were unclear which project scheme would be ultimately decided upon. The appellate court disagreed. The court’s reasoning stated that the project description detailed one project with two options for different allocations of space. As such, the court found that there was more than sufficient information and clarity in the EIR and “enhanced, rather than obscured, the information available to the public.” The court further held that the project description is supposed to be treated as a fluid initial understanding of the project. Approval of the EIR need not be a blanket acceptance of the entire project description at its inception, but rather “approval of adopted characteristics of one of the proposed alternatives.” 

Plaintiffs further argued that the City incorrectly analyzed cumulative impacts by relying on projects during the recession of the last decade when San Francisco has “seen a tremendous uptick in development since the recession rendering the project list defective or misleading”. The court rejected this argument. As the court explained, it is within the agency’s discretion to select the methodologies used when evaluating cumulative impacts. Plaintiffs failed to show where the City’s methodologies were “unsupported by substantial evidence.” The court further articulated that the City re-reviewed its list of projects and methodologies prior to publication of the DEIR to verify the reasonable alternatives. 

As to the traffic impacts, plaintiffs asserted that the City failed to include key intersections in its  analysis. As to this claim, the court held that it is within an agency’s discretion which traffic resources to evaluate. Plaintiffs had yet again failed to prove that the City committed an abuse of discretion when completing its traffic and circulation studies and plaintiffs had offered no evidence to prove an abuse of discretion. Similarly, Plaintiffs had argued that the 5M Project failed to consider the concerns of the San Francisco Park Recreation and Open Space Advisory Committee about the lack of sunlight and open spaces on the project site. The court rejected this argument stating that plaintiffs failed to show the City violated CEQA or cite any legal authority to support their argument. 

Plaintiffs also asserted that the EIR’s analysis of wind impacts insufficiently examined existing conditions rather than the revised project proposal. As to this, the court held that plaintiffs failed to exhaust their administrative remedies claim with respect to the wind impacts. Nevertheless, the court did reach the merits of the claims brought by plaintiffs. The court held that plaintiffs improperly relied on the threshold established under San Francisco Planning Code Section 148 when they should have relied on CEQA Guidelines § 15126.4, subd. (a)(1)(4). Under the CEQA guidelines, a project proposal must merely identify mitigation measures for each significant impact, not redesign the project specs to encompass the “comfort threshold” requirement under San Francisco Planning Code Section 148.

Where raising concerns over the 5M Project’s shade and shadow impacts analysis, plaintiffs contended the City failed to propose proper mitigation measures for the shade and shadow impacts on the project. The court disagreed, determining that the plaintiffs failed to prove that the City abused its discretion when evaluating the shadow impacts from the project and further held that the City had the discretion to increase the shadow limits of the parks affected by the 5M Project.

Lastly, plaintiffs contended that the EIR fails to conform to existing city area plans, policies, and the City Planning Code. More specifically, plaintiffs argued that the DEIR failed to adhere to the regulations established in the Draft Central SoMa Plan. The court disagreed with plaintiffs claim holding that at the time the DEIR was in circulation the Central SoMa Plan was not adopted and therefor the City did not need to consider whether the 5M Project followed regulations outlined in a draft area plan. Further, the court rejected with plaintiffs’ argument that the City created “in essence spot zoning” to allow for approval of the 5M Project. The court summarily rejected each additional argument raised about the Project’s conformance with city policies and the City Planning Code. The court held that plaintiffs failed to provide reasoned arguments to prove the City neglected preexisting regulations and codes. The court further found that the administrative record demonstrated that the “City made a good faith effort to discuss inconsistencies with applicable policies and codes.” The court pointed out plaintiffs consistently failed to substantiate these claims with supporting evidence or legal authority.  

William Abbott is a shareholder and attorney at Abbott & Kindermann, Inc.  Kristen Kortick is a law clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.