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

in the superior court. The trial court denied relief. We affirm.

F

orest 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

reporting program; (2) raised the shadow limit for Boeddeker Park (a park near the 5M

Sierra Club, supra, 6 Cal.5th at p. 515, 241 Cal.Rptr.3d 508 , 431 P.3d 1151 ["We also affirm that in reviewing an EIR's discussion, we do not require technical perfection or scientific certainty ...."].) "Although an agency's failure to disclose information called for by CEQA may be prejudicial 'regardless of whether a different outcome would have resulted if the public agency had complied' with the law (§ 21005, subd. (a) ), under CEQA, 'there is no presumption that error is prejudicial' (§ 21005, subd. (b) ). Insubstantial or merely technical omissions are not grounds for relief. [Citation.] 'A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.' " ( Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 , 463, 160 Cal.Rptr.3d 1 , 304 P.3d 499 ; id. at pp. 464-465, 160 Cal.Rptr.3d 1 , 304 P.3d 499 [failure to comply with CEQA's informational mandate "did not deprive agency decision makers or the public of substantial information relevant to approving the project, and is therefore not a ground for setting that decision aside"].)

With these principles in mind, we turn to the merits.

B. Alleged CEQA Violations

Plaintiffs assert numerous defects in the agency's CEQA review in this case.

San Joaquin Raptor Rescue , supra , 149 Cal.App.4th at pp. 655-656, 57 Cal.Rptr.3d 663 .) Further, "[a] curtailed, enigmatic or unstable project description draws a red herring across the path of public input." ( County of Inyo , at p. 198, 139 Cal.Rptr. 396 .) "Whether an EIR correctly describes a project is a question of law, subject to de novo review." ( Rodeo Citizens Assn. v. County of Contra Costa (2018) 22 Cal.App.5th 214 , 219, 231 Cal.Rptr.3d 332 .)

Plaintiffs' claim that the DEIR presented "multiple possible Projects rather than a finite description of a single project" is specious. Plaintiffs do not dispute the DEIR's project description met CEQA technical requirements, and do not describe any information that was required to be included in the project description but was not. (See Guidelines, § 15124 [describing information that must be included in EIR].) Nor was the information provided in

Thus, the record reveals the EIR in this case described one project-a mixed-use development involving the retention of two historic buildings, the demolition of all other buildings on the site, and the construction of four new buildings and active ground floor space-with two options for different

small increase in pumping of water for unanticipated uses in Inyo and Mono Counties. ( Id. at pp. 189, 195, 139 Cal.Rptr. 396 .) Moreover, throughout the EIR process, the project description varied, with the result that the "small-scale groundwater project described at the outset was dwarfed by the 'recommended project' ultimately endorsed" that dealt with "important, large-scale phases of the city aqueduct management program." ( Id. at pp. 196-199, 139 Cal.Rptr. 396 .) The court concluded the agency's selection of a "narrow project as the launching pad for a vastly wider proposal frustrated CEQA's public information aims." ( Id. at pp. 199-200, 139 Cal.Rptr. 396 .) Here, there were no similar fluctuations in the project description during the EIR process, nor is the initial project description a misleadingly small fragment of the ultimately approved project.

Plaintiffs' reliance on Washoe Meadows, supra, 17 Cal.App.5th 277 , 225 Cal.Rptr.3d 238 , is also misplaced. In that case, the draft EIR identified five "very different" alternatives as potential projects. ( Id. at p. 281, 225 Cal.Rptr.3d 238 .) Critically, the draft EIR did not identify a preferred or proposed project at all , but indicated it would determine "which alternative or combinations of features from multiple alternatives" would become the preferred alternative after receiving public comments. ( Id. at p. 283, 225 Cal.Rptr.3d 238 .) As our colleagues in Division Five explained, "[w]hile there may be situations in which the presentation of a small number of closely related alternatives would not present an undue burden on members of the public wishing to participate in the CEQA process, in this case the differences between the five alternative projects was vast, each creating a different footprint on public land. Each option created a different set of impacts, requiring different mitigation measures. ... [¶] ... The [draft EIR] in this case was not simply lacking in details that could not be reasonably supplied as yet; rather, it failed to identify the project being proposed." ( Id. at pp. 288-289, 225 Cal.Rptr.3d 238 , fn. omitted.) In this case, by contrast, the project description clearly identified a mixed-use development project at a specific, defined location with two options for allocations of office and residential use.

Plaintiffs also complain that the FEIR adopted a proposed plan based on neither the office scheme nor the residential scheme, but a "revised" project that was a variant of the preservation alternative identified in the DEIR. They fail, however, to identify any component of the revised project that was not addressed in the DEIR or subject to public comment. Further, "[t]he CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project; indeed, new and unforeseen insights may emerge during investigation, evoking revision of the original proposal." ( County of Inyo, supra, 71 Cal.App.3d at p. 199, 139 Cal.Rptr. 396 .) The whole point of requiring evaluation of alternatives in the DEIR is to allow thoughtful

and validated" with (2) a "list-based approach." It is well established an agency has discretion in selecting the methodology to be used in evaluating environmental impact, subject to review for substantial evidence. (See Sierra Club, supra, 6 Cal.5th at p. 514, 241 Cal.Rptr.3d 508 , 431 P.3d 1151 .) Plaintiffs have not shown the City's choice of methodologies was unsupported by substantial evidence.

Nor is plaintiffs' claim the City should not have relied on a project list from 2012 persuasive. Indeed, plaintiffs concede that physical conditions existing when the notice of preparation is published normally are used to establish the baseline for cumulative impacts. (Guidelines, § 15125, subd. (a)(1).) The DEIR was issued in January 2013. The City had discretion to determine a reasonable date as a cutoff for which projects to include in the cumulative impacts analysis, and plaintiffs have not shown the City's decision to use a 2012 project list was unsupported by substantial evidence. (See, e.g., Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 , 328, 106 Cal.Rptr.3d 502 , 226 P.3d 985 [agency has discretion to determine existing conditions baseline, subject to review for substantial evidence]; Gray v. County of Madera (2008) 167 Cal.App.4th 1099 , 1128, 85 Cal.Rptr.3d 50 [county had discretion to set date of application for current project as cutoff date for deciding which projects to include in cumulative impacts analysis].) Further, though the list of projects was first obtained in 2012, the City reviewed the list prior to publication of the DEIR to verify it remained representative of past, present, and reasonably

point to nothing in the record showing the study area as defined in the EIR excluded a portion of the affected setting or that studying the entire "downtown area" would have altered the City's analysis of environmental impacts.

San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61 , 198 Cal.Rptr. 634 , relied on by plaintiffs, is inapposite. In that case, the city simultaneously pursued four downtown high-rise projects and produced EIR's for each project that unlawfully ignored the likely impacts of the other three. ( Id. at pp. 67-68, 74-75, 80-81, 198 Cal.Rptr. 634 .) The court concluded that by leaving out "closely related projects that were currently under environmental review, the Commission applied an unreasonably narrow interpretation of the Guidelines, and in so doing, abused its discretion." ( Id. at p. 74, 198 Cal.Rptr. 634 , fn.omitted.) Here, as discussed above, plaintiffs do not identify closely related, foreseeable projects that were actually excluded from the EIR's cumulative impacts analysis.

from Michael Nimon and Tepa Banda to Forest City was used in the DEIR to assess cumulative traffic impacts. But the record shows that the cumulative traffic impacts analysis relied on the SF-CHAMP model, which incorporates, among other things, population, housing units, and employment growth assumptions developed by the Association of Bay Area Governments (ABAG) and under the City's General Plan. Plaintiffs further assert the information cited in the Nimon/Banda memorandum should have been included in the body of the

to question whether discussion of environmental impact in EIR is conclusory, which is subject to de novo review]; City of Long Beach, supra, 176 Cal.App.4th at p. 898, 98 Cal.Rptr.3d 137 [substantial evidence test applies to challenges to methodology].)

In any event, the FEIR explained why additional intersections were not included: "The intersections included for analysis of the [DEIR] Project's traffic impacts were identified based on criteria developed by the Planning Department, and represent a reasonable representation of the probable impacts of the [DEIR] (and Revised Project). Further from the project site, traffic is dispersed among numerous streets and the project vehicle contributions to the intersections further away are decreased. The intersections selected for analysis include the intersections adjacent to the project site, the intersections used for access to and from the Fifth and Mission Garage, and key intersections to the south providing access to and from the nearby [Interstate] 80 and [Interstate] 280 freeways (the study intersection of Sixth/Brannan includes the [Interstate] 80 ramp operations). Seventh Street would not serve as a primary access route to or from the project site because Fourth, Fifth, and Sixth Streets provide more direct access to the project site and the nearby Fifth and Mission Garage." Though plaintiffs argue it was reasonably feasible to include analysis of a larger geographic area, our courts have repeatedly emphasized that an EIR must demonstrate a good faith effort at full disclosure; it does not require perfection, nor exhaustive analysis. (See Sierra Club , supra , 6 Cal.5th at p. 515, 241 Cal.Rptr.3d 508 , 431 P.3d 1151 [courts look for " ' " 'adequacy, completeness and a good-faith effort at full disclosure' " ' "]; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 , 415, 253 Cal.Rptr. 426 , 764 P.2d 278 ["A project opponent or reviewing court can always imagine some additional study or analysis that might provide helpful information. It is not for them to design the EIR. That further study ... might be helpful does not make it necessary."].) On this record, we

Safer Market Street Plan (SMSP) in the EIR. An EIR must consider conditions that are present, or reasonably foreseeable, as of publication of the notice of preparation (NOP). (Guidelines, § 15125, subd. (a)(1).) The NOP for the 5M Project was published in January 2013. The SMSP was approved two and a half years later, in June 2015. Plaintiffs cite no evidence the SMSP was a " 'probable future project[ ]' " when the NOP was published. ( Gray v. County of Madera , supra , 167 Cal.App.4th 1099 , 1127, 85 Cal.Rptr.3d 50 ["[M]ere awareness of proposed expansion plans or other proposed development does not necessarily require the inclusion of those proposed projects in the EIR. Rather, these proposed projects must become 'probable future projects.' "]; City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362 , 397-398, 145 Cal.Rptr.3d 567 ( City of Maywood ).) Further, plaintiffs point to no evidence in the record to indicate the SMSP would have any adverse impact on traffic and circulation related to the 5M Project. In support of their contention it was "generally known" the SMSP would cause more traffic, plaintiffs cite to letters from citizens' groups, which in turn, fail to cite any traffic studies or similar evidence. On this record, we cannot conclude the agency's failure to consider the SMSP in the EIR was an abuse of discretion.

available capacity, a substantial increase in transit service would be needed to shift mode of travel from auto to transit. In addition, providing additional funds for transit is not usually considered a feasible mitigation measure in San Francisco, the ability of the SFMTA [ (San Francisco Municipal Transportation Agency) ] and/or regional transit operators to provide additional transit vehicles and operators needed to reduce transit impacts to less than significant levels is uncertain," and the City already imposes "transit-related exactions through its exiting Transit Impact Development Fee."

project until after certification of the EIR. Moreover, as Forest City notes, the proponents of the community alternative also noted it was substantially similar to the code compliant alternative proposed in the DEIR with respect to reducing the number of intersections with significant traffic impacts (as well as other proposed mitigation measures). The City declined to separately analyze the community alternative, noting (1) the proponents failed to "specify the overall development program ... or how these elements would be achieved," (2) the alternative was similar to those already considered in the DEIR, and (3) it was not clear the alternative could meet the basic objectives of the 5M Project. Plaintiffs have failed to establish the City abused its discretion in refusing to consider the community alternative. (See Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966 , 1018-1019, 204 Cal.Rptr.3d 224 [agency did not abuse discretion by refusing to consider alternative proposed by citizens group]; California Native Plant Society v. City of Santa Cruz, supra, 177 Cal.App.4th at p. 995, 99 Cal.Rptr.3d 572 [sufficient evidence in administrative record as a whole supported agency's decision concerning which alternatives to analyze and which to omit].)

With respect to the zero-parking alternative, plaintiffs likewise fail to cite any evidence it was a feasible, adequate alternative that could meet the objectives of the 5M Project. The City considered nine alternatives to the 5M Project, including a "No Project" and an "Off-site" alternative, both of which would have contributed no traffic or additional parking spaces to the area, but which were rejected for failure to meet the objectives of the development program. Plaintiffs fail to explain how their zero-parking proposal would have fared better.

4. Wind Impacts

Plaintiffs raise several complaints with respect to the EIR's analysis of wind impacts resulting from the 5M Project. First, they argue the EIR inappropriately compares the revised project to the office and residential schemes initially proposed, rather than to existing conditions as required by CEQA. Second, they complain the revised project failed to comply with San Francisco Planning Code section 148, which requires an applicant for a project exceeding particular wind effect limits to show that the building could not be designed to avoid the exceedance or that redesign would unduly restrict the development potential. Third, they complain the EIR inappropriately relies on "wind baffling measures" in the design for development document to address wind impacts, in contravention of CEQA Guidelines requiring mitigation measures be addressed directly in the EIR and not left to future determination.

used in the evaluation of proposed buildings," but in the CEQA context, "these comfort criteria are compared to a project's anticipated wind speeds for informational purposes, not to identify significant effects. " (Italics added.) Because exceedances of the comfort criterion did not establish significant impacts for CEQA purposes, the City was not required to propose mitigation measures to address them. (§ 21100, subd. (b)(3); Guidelines, § 15126.4, subd. (a)(1)(A) [EIR shall identify mitigation measures for each significant environmental effect identified in EIR]; San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d 1502 , 1517, 258 Cal.Rptr. 267 ; Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342 , 360, 110 Cal.Rptr.2d 579 [once significant effect has been identified, EIR must propose mitigation measures].) Accordingly, we reject plaintiffs' contentions that the City was required to show the building could not be redesigned to address the comfort exceedances and that the reference to wind baffling measures in the design for development document was an inadequate description of a proposed mitigation measure.

5. Open Space

Plaintiffs also argue the project failed to provide adequate onsite open space. In particular, they emphasize that the San Francisco Park Recreation and Open Space Advisory Committee expressed concern about the lack of a formal presentation on open space and passed a resolution requesting the

mitigation, and failed to consider feasible alternatives.

Regarding Boeddeker Park, plaintiffs argue the 5M Project will increase the absolute and cumulative shadow limits and the City's decision to raise the threshold for those limits rather than considering an alternative configuration is "almost" without precedent for a for-profit development. They point to various comments that the shade and shadow increase will fall on the park's vegetable and flower garden. They also argue that when it was found the 5M Project would violate City policy mandating " 'no net new shadow,' " mitigation measures or alternatives should have been considered before considering the benefits of the project.

Under the significance criteria for shadow impact in the EIR, a shadow has a significant effect if it "substantially affects outdoor recreation facilities or

authorizing an increase to the shadow limit at Boeddeker Park, the Planning Commission approved a motion allocating additional shadow to the 5M Project, and the Recreation and Park Commission adopted a resolution recommending the 5M Project's new shadow on Boeddeker Park would not

to city general plan if approved].) On reply, plaintiffs do not dispute these facts or explain why the City would be required to evaluate the alleged inconsistencies.

Plaintiffs further argue the 5M Project exceeds the height and intensity limits for the SoMa Youth and Family Special Use District (SUD), Residential/Service Mixed Use (RSD), and Downtown Support (C-3-S) zoning districts, and complain the project is "made to appear to be consistent with surrounding zoning" even though it is not. The record reflects, however, that the EIR disclosed that the 5M Project would require amendments to the general plan, the rezoning of portions of the site, and modification of existing development standards. The DEIR described the existing land use, bulk and height requirements on the project site, and compared existing planning controls to those proposed as part of the project. Plaintiffs have not shown how this discussion was misleading or inhibited informed decisionmaking or public participation.

Nor are we convinced by plaintiffs' argument the DEIR does not contain any meaningful discussion of the project's consistency with the Draft Central SoMa Plan. As its "draft" designation suggests, the Draft Central SoMa Plan had not been approved at the time of the EIR, and thus the EIR was not required to consider it. (See Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134 , 1145, fn. 7, 58 Cal.Rptr.2d 152 ( Chaparral ) ["applicable" plan within meaning of Guidelines, § 15125, subd. (d) is plan that has already been adopted and thus legally applies to project; draft plans need not be evaluated].) Regardless, the DEIR compared the 5M Project with the Draft Central SoMa Plan and concluded it "generally implements the vision of the Central SoMa Plan" and "would not be expected to conflict with [it]," while noting the 5M Project would not be subject to the Central SoMa Plan. Moreover, though plaintiffs complain about the EIR's failure to divulge the Project's inconsistencies with the Draft Central SoMa Plan, plaintiffs themselves do not identify any.

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

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.

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 .)

de novo review, but to the extent factual questions (such as the agency's decision which methodologies to employ for analyzing an environmental effect) predominate, a substantial evidence standard of review will apply. ( Ibid . )

Further, " '[i]n determining the adequacy of an EIR, the CEQA Guidelines look to whether the report provides decision makers with sufficient analysis to intelligently consider the environmental consequences of a project. ( [Guidelines,] § 15151.) The CEQA Guidelines further provide that "the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. ... The courts have [therefore] looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." ( [Guidelines,] § 15151.)' [Citation.] The overriding issue on review is thus 'whether the [lead agency] reasonably and in good faith discussed [a project] in detail sufficient [to enable] the public to discern from the [EIR] the "analytic route the ... agency traveled from evidence to action." ' " ( California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227 , 262, 115 Cal.Rptr.3d 631 ( California Oak Foundation ); see

1. Project Description

Plaintiffs first argue the EIR is inadequate because it failed to provide a stable, accurate project description. They contend because the DEIR presented two alternative schemes, the office scheme and residential scheme, it was "confusing" and hampered commenters' ability to understand which project was actually proposed and analyzed.

A draft EIR must include a project description. ( Washoe Meadows Community v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277 , 287, 225 Cal.Rptr.3d 238 ( Washoe Meadows ).) The project description must contain (1) the precise location and boundaries of the proposed project; (2) a statement of the objectives sought by the proposed project, including the underlying purpose; (3) a general description of the project's technical, economic, and environmental characteristics; and (4) a statement briefly describing the intended uses of the EIR. (Guidelines, § 15124.) The description should not, however, "supply extensive detail beyond that needed for evaluation and review of the environmental impact." ( Ibid .) The description must include the entirety of the project, and not some smaller portion of it. ( San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645 , 654, 57 Cal.Rptr.3d 663 ( San Joaquin Raptor Rescue ).)

"[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." ( County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 , 199, 139 Cal.Rptr. 396 ( County of Inyo ).) "Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal ... and weigh other alternatives in the balance." ( Id. at pp. 192-193, 139 Cal.Rptr. 396 .) A project description that gives conflicting signals to decision makers and the public about the nature of the project is fundamentally inadequate and misleading. (

had been ordered to prepare an EIR for a project involving pumping of groundwater for export from the Owens Valley via two above-ground aqueducts, but the EIR as prepared had a much narrower description of the project as involving only the relatively

consideration and public participation regarding other options that may be less harmful to the environment. ( San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 , 695, 125 Cal.Rptr.2d 745 [CEQA's purpose is to encourage project sponsors to consider and adopt " feasible alternatives and mitigation measures. ... to lessen or avoid adverse environmental impacts"].) "CEQA does not handcuff decisionmakers .... The action approved need not be a blanket approval of the entire project initially described in the EIR. If that were the case, the informational value of the document would be sacrificed. Decisionmakers should have the flexibility to implement that portion

EIR and not buried in an appendix or some other document referenced but not included in the EIR. But the Nimon/Banda memorandum was discussed in the DEIR in the project description, and its projected employee and resident counts were set forth in the body of the DEIR. Further, the DEIR noted the document was available for review at the Planning Department. (Guidelines, § 15150, subd. (a) [EIR may incorporate publicly available documents by reference].) The cases relied on by plaintiffs are distinguishable, as they involved circumstances in which the EIR entirely omitted critical information or made it very difficult to find. (See Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 , 442, 53 Cal.Rptr.3d 821 , 150 P.3d 709 [county could not rely on information not actually incorporated or described and referenced in the EIR]; San Joaquin Raptor Rescue , supra , 149 Cal.App.4th at p. 659, 57 Cal.Rptr.3d 663 [EIR should not force public and decision makers to "sift through obscure minutiae or appendices" to determine the "fundamental baseline assumptions" used for the environmental analysis]; California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219 , 1239-1240, 35 Cal.Rptr.3d 434 [critical information was added to EIR shortly before certification and appeared only in an appendix with inadequate facts and analysis].)

In sum, plaintiffs have failed to show the EIR was deficient for failing to properly consider the project's cumulative impacts.

3. Traffic and Circulation Impacts

Plaintiffs next argue the EIR failed to adequately consider traffic and circulation impacts from the proposed project. Specifically, plaintiffs argue the City failed to (1) include intersections adjacent to impacted ones in its analysis of potentially significant impacts, (2) consider the impact of the Safer Market Street Plan, and (3) adequately identify or discuss specific mitigation measures and evaluate community-proposed alternatives.

a. Adjacent Intersections

Plaintiffs argue the EIR failed to adequately analyze traffic impacts by using an artificially small study area to avoid review of potentially significant impacts. They contend existing traffic conditions will be made worse with the proposed project, and the EIR failed to review the traffic impacts at intersections adjacent to the project development area and the Interstate 280 on- and off-ramps. After oral argument, we asked the parties for additional briefing on the effect, if any, of the Supreme Court's recent Sierra Club decision on plaintiffs' argument that the EIR failed to adequately consider direct traffic and circulation impacts due to use of an artificially small study area that avoided review of impacted intersections.

As discussed above with respect to cumulative impacts, the agency's selection of the geographic area impacted by a proposed development falls within the lead agency's discretion, and " ' "[a]bsent a showing of arbitrary action, we must assume that the agencies have exercised this

intersections outside the study area that they argue should have been included. Further, plaintiffs' argument that adjacent intersections should have been included in the study area challenges the City's method for conducting its traffic analysis, not the adequacy of its discussion of traffic impacts in the EIR. (See, e.g., Sierra Club, supra, 6 Cal.5th at p. 514, 241 Cal.Rptr.3d 508 , 431 P.3d 1151 [substantial evidence review applies to challenges to methodology used for studying an impact, as opposed

c. Mitigation Measures

Plaintiffs next complain the City failed to consider particular mitigation measures including: (1) reducing the amount of trip-generating uses, (2) providing funds to enhance public transportation service in the area, (3) implementing a transportation demand management (TDM) plan that is specific to the project, or (4) reviewing alternatives suggested by plaintiffs to reduce the amount of traffic generated by the 5M Project. The record reflects otherwise.

The DEIR determined that both the office and residential schemes of the proposed 5M Project would cause significant and unavoidable cumulative impacts at nine intersections. In the impact analysis of the identified project alternatives, the DEIR analyzed the potential for reducing traffic impacts at intersections by reducing the amount of trip-generating uses. Specifically, the DEIR concluded three of the feasible alternatives explored would generate fewer vehicle trips during the peak weekday hour than the proposed project, which would produce 730 vehicle trips under the office scheme and 705 vehicle trips under the residential scheme. The code compliant alternative would generate 417 vehicle trips, the unified zoning alternative would generate 489 vehicle trips, and the preservation alternative would generate 548 vehicle trips. As adopted, the revised project described in the FEIR, which was largely based on the preservation alternative, further reduced the number of vehicle trips during the peak weekday hour to 465 vehicle trips from the 548 identified in the preservation alternative. The revised project also reduced the cumulative impacts at three intersections to a less-than-significant level; thus reducing the total number of significant and unavoidable cumulative impacts from nine to six intersections between the DEIR and the FEIR.

The DEIR also considered requiring the developers to contribute funds to public transportation, but rejected the option because the project did not result in significant transit impacts and the project area was already well served by public transit, with available capacity to accommodate the additional transit trips generated by the project. The City also noted, "Because of the availability of both local and regional transit routes in the project vicinity with

Contrary to plaintiffs' contentions the EIR also addressed a TDM plan. The EIR identified a TDM plan as a potential mitigation measure, and noted while it was not required, the developer included one as part of the revised project and as part of the development agreement. Further, the FEIR specifically discusses the TDM plan's goal to reduce the number of vehicle trips generated by the proposed project by 20 percent, belying plaintiffs' claim it only addressed impacts in the context of air quality.

Finally, we reject plaintiffs' claim the City was required to evaluate the "Community" and "Zero-Parking" alternatives. "CEQA does not require that an agency consider specific alternatives that are proposed by members of the public or other outside agencies." ( City of Maywood, supra, 208 Cal.App.4th at p. 420, 145 Cal.Rptr.3d 567 ; California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957 , 999, 99 Cal.Rptr.3d 572 ["potentially feasible alternatives 'are suggestions which may or may not be adopted by the decisionmakers' "].) Rather, the City was responsible for selecting a range of project alternatives that could feasibly accomplish most of the basic objectives of the project and could avoid or lessen one or more of its significant impacts. (Guidelines, § 15126.6.) "The range of alternatives required in an EIR is governed by a 'rule of reason' that requires the EIR to set forth only those alternatives necessary to permit a reasoned choice." (Guidelines, § 15126.6, subd. (f); see Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022 , 1029, 185 Cal.Rptr. 41 [EIR need not " 'consider in detail each and every conceivable variation of the alternatives stated' "].)

Courts will defer to an agency's selection of alternatives unless the petitioners (1) demonstrate that the chosen alternatives are " ' "manifestly unreasonable and ... do not contribute to a reasonable range of alternatives," ' " and (2) submit evidence showing the rejected alternative was both "feasible" and "adequate," because it was capable of attaining most of the basic objectives of the project, taking into account site suitability, economic viability, availability of infrastructure, general plan consistency, and other relevant factors. ( Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234 Cal.App.4th 214 , 256, 183 Cal.Rptr.3d 736 ; Guidelines, § 15126.6, subd. (f); City of Maywood, supra, 208 Cal.App.4th at pp. 421-422, 145 Cal.Rptr.3d 567 .) Here, plaintiffs do not show the nine alternatives evaluated in the EIR were manifestly unreasonable.

Moreover, while they argue the City unreasonably failed to consider their proposed "Community" and "Zero-Parking" alternatives, plaintiffs did not meet their burden to show those alternatives were feasible and adequate because they were capable of attaining most of the basic objectives of the project. The proponents of the "Community Preferred Project Alternative"

submitted only general descriptions of the proposed alternative, and did not provide any renderings of the proposed

As an initial matter, we find these arguments were waived by failure to raise them during the administrative process. ( Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523 , 535, 78 Cal.Rptr.3d 1 [under exhaustion of administrative remedies doctrine, the " ' "exact issue" ' " must be presented to agency].) Though plaintiffs note commenters raised concerns regarding wind impacts during the public comment period, the remarks reflected general concerns about the amount of wind generated by the 5M Project, "wind tunnel" effects, and requests for mitigation measures. Such general comments are insufficient to raise the specific issues plaintiffs assert on appeal. (See North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614 , 631, 157 Cal.Rptr.3d 240 [letters that failed to apprise agency of any specific

other public areas." Plaintiffs do not challenge that standard for significance nor the City's authority to establish it. (See Guidelines, § 15064, subd. (b).) In the DEIR, the City explained in detail the new shadow impacts that would result in Boeddeker Park as a result of the project, and why they did not meet that significance threshold: "Under existing conditions, Boeddeker Park is shaded about 41.59 percent of the time. (Shadow cast under existing conditions and project conditions was calculated in the quantitative study conducted, consistent with the protocols Section 295 analysis.) The Office Scheme would shade Boeddeker Park only in the early morning hours during the winter months, generally between October 25 and November 29, as well as between January 11 and February 15, when the sun is at a low angle and extensive shadows are cast by buildings in and around Downtown San Francisco. The Office Scheme would not cast shadow during other times of the year, including the spring, summer, and fall. On the worst-case shadow days, November 8 and February 1, a maximum of 742 square feet of new shadow would be cast only before 8:15 a.m. in and around the northern entry gate to the park. Implementation of the proposed project would result in a very small (about 0.004 percent) increase in shadow cast on Boeddeker Park. The net new shadow that would fall on Boeddeker Park would cover part of the entry gate area of the park. This entry gate area does not contain tables or chairs, and is not expected to be subject to stationary use. Because the new net shadow generated by the Office Scheme would cover an area of the park that would be used primarily for entering and existing [ sic ] the park, and because the net new shadow would occur during the early morning hours during a time of year when park use tends to diminish, the shadow would not adversely affect the use of Boeddeker Park." The EIR thus clearly set forth specific information about the shade and shadow impacts, and analyzed why they would not produce a significant environmental effect. Plaintiffs have not demonstrated the agency abused its discretion by omitting or failing to discuss those impacts, nor do they suggest the City's discussion precluded participation or informed decision making. (See Sierra Club, supra, 6 Cal.5th at p. 516, 241 Cal.Rptr.3d 508 , 431 P.3d 1151 [ultimate inquiry is whether EIR includes enough detail " 'to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project' "].)

It is true San Francisco's Planning Code and General Plan discourage the creation of new shadows on parks, plazas, and open spaces. (See S.F. Planning Code, §§ 146, 147, 295.) It is also true the Planning Commission and Recreation and Park Commission adopted a joint resolution

would be an increase of 0.09 percent of total shadows cast on Yerba Buena Gardens North in the winter months, when the park is least in use. The EIR explained the increase is relatively small compared to existing conditions and the use of the space would not be adversely affected.