South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal. App. 5th 321

November 21st, 2019

By: Thomas Law Group

of Market Community Action Network v. City and County of
San Francisco
(2019) 33 Cal. App. 5th 321

In 2014, Forest
City California Residential Development, Inc. proposed a mixed-use business and
residential project known as “5M” in the area bounded by Mission, Fifth, Howard,
and Sixth Streets in San Francisco. The 5M site included seven parking lots and
eight buildings with office and commercial uses. The San Francisco Planning Department
released a DEIR on October 15, 2014, which described two “options” for 5M—an “office
scheme” and a “residential scheme”. Under both, 5M would result in new active
ground floor space, office use, residential dwelling units, and open space. Both
schemes would reserve and rehabilitate two of the existing buildings on the
site, and demolish the six remaining structures. The DEIR discussed nine
alternatives to 5M, and rejected five as infeasible.

The San
Francisco Planning Commission held an informal hearing on the DEIR, accepted public
comment until January 2015, and published the FEIR. Following certification of
the EIR, South of Market Community Action Network, Save Our SOMA, and Friends
of Boeddeker Park (collectively, Plaintiffs) appealed the decision to the San Francisco
Board of Supervisors. The Board of Supervisors denied the appeal. Plaintiffs filed
a petition for writ of mandate in superior court alleging CEQA violations. The court
heard arguments and denied the writ. Plaintiffs appealed to the Fifth District Court
of Appeal, arguing deficiencies in the EIR’s discussion of the project
description, cumulative impacts, traffic and circulation impacts, wind impacts,
open space impacts, shade and shadow impacts, area plan consistency, and statement
of overriding considerations. (For the purposes of this outline, only the project
description portion of the Opinion is analyzed in detail.)

alleged the EIR failed to provide a stable and accurate project description.
They argued that the “office scheme” and “residential scheme” alternatives were
“confusing” and hampered commenters’ ability to understand the project that was
actually proposed and analyzed. The Court found Plaintiffs’ claim that the DEIR
presented multiple possible Projects (rather than a description of a single
project with two possible buildout schemes) “specious”. The Court noted that Plaintiffs
failed to attack the project description on grounds related to CEQA’s technical
requirements, or point to erroneously omitted information.

The DEIR’s
project description stated that 5M is a mixed-use project on a four-acre site
in downtown San Francisco featuring two project options with substantially the
same overall gross square footage but with a varying mix of residential and
office uses. It set forth measurements of gross square footage for each scheme along
with site plans, illustrative massing, building elevations, cross sections, and
representative floor plans. The DEIR also evaluated the environmental impacts
of each scheme independently. The Court found that this level of detail, along
with response to public comment when contentions of confusion arose, constituted
an appropriate project description and served the informational nature of the
document to allow for public participation.

The Court
dispensed with Plaintiff’s reliance on County of Inyo v. City of Los Angeles
(1977) 71 Cal. App. 3d 185and Washoe Meadows Community v. Department
of Parks and recreation
(2017) 17 Cal.App.5th 277, noting that unlike those
cases, here, there were no fluctuations in the project description during the
EIR process, the initial project description was not misleading and a small
fragment of the ultimately approved project, and the project description clearly
identified what was going to be built in either proposed scheme.

alternatively alleged the 5M project description was deficient because the FEIR
ultimately adopted a proposed plan based not on the two described schemes, but
rather, based on a “revised” variant of the preservation alternative identified
in the DEIR. The Court found Plaintiffs failed to identify any component of the
revised project unaddressed in the DEIR, and stated that the CEQA reporting process
is intended to be flexible to allow for the implementation of “unforeseen insights”
gained during the project consideration. The Court stated that the whole point
of requiring evaluation of alternatives in a DEIR is to allow thoughtful
consideration and public participation regarding other options that may be less
harmful to the environment. If the approved action must be a blanket approval
of the entire project as initially described in the EIR, the informational
value of the document would be “sacrificed”. The Court concluded that although
the project description did not include a verbatim description of the ultimately
approved Project, the adopted characteristics came from one of the proposed
alternatives; satisfying “one of the key purposes of the CEQA process”.

The First
District similarly dismissed Plaintiffs’ remaining arguments relating to cumulative
impacts, traffic and circulation, wind, open space, shade and shadow, area plan
consistency, and statement of overriding considerations. Accordingly, the Court
upheld the judgement of the superior court in full.

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