Anderson v. City and County
of San Francisco
Filed 1/14/13 Anderson v. City and County of San Francisco
CA1/2
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ROB ANDERSON,
Plaintiff and
Appellant,
v.
CITY AND COUNTY OF SAN FRANCISCO,
Defendant and
Respondent.
A129910
(San Francisco City & County
Super. Ct. No. CPF-05-505509)
In recent years, many cities have
decided that promoting the increased use of bicycles improves the quality of
life and promotes a variety of public policies.
Since 1997,
has been one of these cities. A decade
later, an upgrade to the City’s statutory Bicycle Plan generated an
than 2,000 pages that was certified by the City’s Board of Supervisors. Two groups and one individual objected, to no
avail, to the trial court ruling that that the EIR complied with the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.
the attack, appealing from the trial court’s order. He contends that the EIR is riddled with
fundamental procedural and substantive legal error, and that the massive
administrative record of more than 36,000 pages will not support numerous
findings of the trial court. Aided in
large measure by the trial court’s comprehensive written decision, we reject
all of Anderson’s challenges to the EIR itself.
However, he does identify a defect in the process when the EIR was
certified by the Board of Supervisors, which failed to make a handful of
findings required by CEQA. We therefore
must reverse in order that this omission may be corrected.
BACKGROUND
In 2005, the San Francisco Board of
Supervisors decided to upgrade the City’s Bicycle Plan, which had been adopted
in 1997.
initially determined that no further CEQA review was needed. Anderson—together with the unincorporated
associations Ninety-Nine Percent and the Coalition for Adequate Review
(hereinafter collectively designated as petitioners by the trial court)—filed a
petition for a writ of administrative mandate to overturn that decision. In November 2006, the trial court ordered
issuance of the requested writ directing the City to comply with CEQA.
In its order granting relief, the
trial court concisely spelled out the nature of the controversy:
“San Francisco first adopted a
bicycle plan in March 1997 . . . . The 1997 Plan . . . had one
goal: to ‘provide a comprehensive guide
for efforts that will make San Francisco a more “bicycle-friendly†city.’ Within that overall goal, the Plan contained
four objectives: 1) improve facilities
for bicycles; 2) improve bicycle safety; 3) promote bicycling in the City; and
4) increase funding for bicycle projects.â€
“The Bicycle Plan originated in the
City’s Department of Parking and Traffic (DPT) as a complex, far-reaching plan
to alter streets in San Francisco to accommodate San Francisco residents who
ride bicycles. To achieve the Bicycle
Plan’s goal of increasing the number of City residents who ride bicycles, the
Bicycle Plan mandates a number of actions including: eliminating traffic lanes and street parking
throughout the City to create bicycle lanes, requiring that cars, buses and
trucks ‘share’ lanes with bicyclists regardless of speed, allowing bicycles
inside Muni and other public transit vehicles, eliminating parking in existing
and newly constructed buildings, allowing bicycles in exclusive bus lanes,
installing physical
impediments to motorized traffic or ‘traffic calming,’ allowing bicycles on
sidewalks, and closing streets to vehicles to create exclusive ‘bicycle
boulevards.’ The Bicycle Plan also
contemplated the City doing away with established Level of Service (LOS)
measurement of traffic impacts in CEQA analysis, and requiring that CEQA review
of any proposed project in the City must resolve any ‘traffic impacts or
conflicts of parking access’ by giving ‘full or partial priority for bicycles,’
that any proposed Area Plan in the City must be ‘consistent’ with the Bicycle
Plan, and that automatic amendments of the City’s General Plan will roll in
‘[a]s changes to the network occur.’ â€
In September 2009, the City filed a
return to the writ, advising the court that the Board of Supervisors had
completed certification of an EIR
name="_ftnref3" title="">[3],
by virtue of which the City sought the court’s determination that “[t]he City
has fulfilled its obligations under CEQA and the Court’s Peremptory Writ of
Mandate.â€
To summarize, the EIR identified 60
“near-term†“improvements†or “projects†that were geographically organized in
eight area “clusters,†plus an unspecified number of “minor,†and “long-termâ€
improvements.
title="">[4] A number of these projects, 27 in the Draft
EIR, had two different “options†as to how the improvements would be made. Five of the 27 involved more significant,
lengthy, or heavily traveled streets, which five were subdivided into
“segments,†in one instance producing as many as eight options for a single
improvement.
In the “Project Description†of
“Existing Site Conditions,†the EIR stated:
“The project site is primarily along the public street right-of-way, but
also includes bicycle facilities on other public land. The existing site conditions consist of the
existing bicycle route network that is lain out primarily along streets and
thoroughfares throughout the City.†The
proposed location of each “Off-Street Path,†“Bicycle Lane,†“Wide Curb Lane,â€
and “Signed Route†were shown on a map.
Each of the projects was analyzed in terms of “existing transportation
conditions,†including descriptions of “roadway access, traffic, transit,
parking, pedestrian, bicycle and loading conditions.â€
As required by the Guidelines, the
“Comments and Responses†of the Planning Department, together with four
appendices, constitute the final 600 pages of the EIR.
responsible for the “staff-initiated text changes†that were explained as
follows:
“Following distribution of the Draft
EIR, MTA [Municipal Transportation Agency] has refined the draft San Francisco
Bicycle Plan. The changes are minor and
. . . include a few editorial revisions. These changes are not substantive and do not
affect the analysis or conclusions regarding significant impacts
. . . .
“In addition, SFMTA also has refined
the near-term improvements and developed preferred project designs for most
near-term improvements since distribution of the Draft EIR. The staff-initiated text changes below
indicate the preferred project design for each near-term improvement including
a description regarding how or if the preferred designs differ from project
options analyzed in the draft EIR . . . . The preferred project designs are within the range of project alternatives originally
anticipated for these near-term improvements and fall within the analytic
framework and conclusions presented in the Draft EIR. The project refinements are based upon input from
stakeholder groups and City agencies . . . .
“Over half of the 60 near-term
improvements remain unchanged from projects described and analyzed in the Draft
EIR. Eleven of the near-term
improvements have minor modifications and 13 others have additional modifications. [
name="_ftnref6" title="">[6]] All of these design refinements are fully
described and analyzed in this document.
As set forth, and based upon substantial evidence in the record, these
project changes, both individually and cumulatively, do not create any new significant
impacts or a substantial increase in environmental impacts from those
identified in the Draft EIR. Nor do they
trigger any of the other provisions that would necessitate recirculation
. . . . Moreover, the
limited extent of project design refinements and relatively small number of projects
affected by measurable changes has not been denied the public a meaningful
opportunity to comment on said projects in the context of the Draft EIR.â€
The petitioners, holding a very
different opinion of the 2,052-page EIR, urged the court not to discharge its
writ: “Far from complying with CEQA and
the Court’s orders, City’s certification of the EIR was an abuse of discretion
and a failure to proceed in a manner required by law. The EIR is inadequate [and] in violation of
CEQA by failing to mitigate and offer alternatives to the Project’s significant
impacts, by failing to set forth an accurate Project description, by its flawed
baseline, by its failure to identify and analyze air quality and parking
impacts, by its failure to analyze impacts from minor and long-term
improvements, and by its last-minute changes that precluded required public
participation and by failing to meet other requirements for legally adequate
environmental review under CEQA. The
Court should not discharge the Writ until City has complied with the law.â€
On June 22, 2010, the court heard
extensive arguments on the City’s return and the petitioners’ criticisms. On August 6, the court entered an exhaustive
30-page order overruling the objections and discharging the writ of mandate. Anderson alone then perfected this timely
appeal.
Anderson advances a number of
contentions aimed at perceived instances of reversible error. The final contention in his opening brief
challenges the integrity and validity of the entire process undertaken by the
City in response to the trial court’s writ of mandate, and should be considered
at the outset. We thus begin with it,
and with the preliminary observation that considerable portions of this opinion
will be comprised of lengthy quotation, with minor nonsubstantive editorial
changes, from the trial court’s order.
This is done for two reasons. The
first is to underscore the deep and exhaustive nature of the effort expended by
the court on this matter, specifically, the Honorable Peter J. Busch, who
presided over all aspects of the litigation.
using the trial court’s analysis as the framework for our own.
Standards
Before addressing the particulars in
Anderson’s sometimes intricate—and sometimes overlapping—arguments, we believe
it useful to set out a brief description of how CEQA operates.
“A public agency
must prepare an EIR or cause an EIR to be prepared for any project that it
proposes to carry out or approve that may have a significant effect on the
environment. (Pub. Resources Code, §§
21100, subd. (a), 21151, subd. (a); Guidelines, § 15064, subd.
(a)(1).) The EIR must describe the
proposed project and its environmental setting, state the objectives sought to
be achieved, identify and analyze the significant effects on the environment,
state how those impacts can be mitigated or avoided, and identify alternatives
to the project, among other requirements.
(Pub. Resources Code, §§ 21100, subd. (b), 21151; Guidelines, §§ 15124,
15125.)
“The agency must notify the public of the draft EIR, make
the draft EIR and all documents referenced in it available for public review,
and respond to comments that raise significant environmental issues. (Pub. Resources Code, §§ 21091, subds. (a),
(d), 21092; Guidelines, §§ 15087, 15088.)
The agency also must consult with and obtain comments from other
agencies affected by the project and respond to their comments. (Pub. Resources Code, §§ 21092.5, 21104, 21153;
Guidelines, § 15086.) It must prepare a
final EIR including any revisions to the draft EIR, the comments received from
the public and other agencies, and responses to comments. (Guidelines, §§ 15089, subd. (a), 15132.)
“An agency may not approve a project that will have
significant environmental effects if there are feasible alternatives or
feasible mitigation measures that would substantially lessen those
effects. (Pub. Resources Code, §§ 21002,
21002.1, subd. (b); Guidelines, § 15021, subd (a)(2) . . . .) An agency may find, however, that particular
economic, social, or other considerations make the alternatives and mitigation
measures infeasible and that particular project benefits outweigh the adverse
environmental effects. (Pub. Resources
Code, § 21081, subds. (a)(3), (b); Guidelines, § 15091, subd. (a)(3).) Specifically, an agency cannot approve a
project that will have significant environmental effects unless it finds as to
each significant effect, based on substantial evidence in the administrative
record, that (1) mitigation measures required in or incorporated into the
project will avoid or substantially lessen the significant effect; (2) those
measures are within the jurisdiction of another public agency and have been
adopted, or can and should be adopted, by that agency; or (3) specific
economic, legal, social, technological, or other considerations make the
mitigation measures or alternatives identified in the EIR infeasible, and
specific overriding economic, legal, social, technological, or other benefits
outweigh the significant environmental effects.
(Pub. Resources Code, §§ 21081, 21081.5; Guidelines, §§ 15091, subds.
(a), (b).) A finding that specific overriding
project benefits outweigh the significant environmental effects (Pub. Resources
Code, § 21091, subd. (b)) is known as a statement of overriding
considerations. (Guidelines, § 15093.)
“Thus, a public agency is not required
to favor environmental protection over other considerations, but it must
disclose and carefully consider the environmental consequences of its actions,
mitigate adverse environmental effects if feasible, explain the reasons for its
actions, and afford the public and other affected agencies an opportunity to
participate meaningfully in the environmental review process. The purpose of these requirements is to
ensure that public officials and the public are aware of the environmental
consequences of decisions before they are made.†(Federation
of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th
1180, 1198, fns. omitted.)
CEQA depends on the EIR. “An environmental impact report is an
informational document†the purpose of which “is to provide public agencies and
the public in general with detailed information about the effect which a proposed
project is likely to have on the environment; to list the ways in which the
significant effects of such a project might be minimized; and to indicate
alternatives to such a project.â€
(§ 21061) According to our
Supreme Court: “The purpose of an EIR is
to give the public and government agencies the information needed to make
informed decisions, thus protecting ‘ “not only the environment but also
informed self-government.†’
[Citation.] The EIR is heart of
CEQA, and the mitigation and alternatives discussion forms the core of an
EIR.†(In re Bay-Delta Etc. (2008) 43 Cal.4th 1143, 1162.)
Once the EIR has been adopted, the scope
of judicial scrutiny proceeds along two paths.
“ ‘Section 21168.5 provides that a court’s inquiry in an action to
set aside an agency’s decision under CEQA “shall extend only to whether there
was a prejudicial abuse of discretion.
Abuse of discretion is established if the agency has not proceeded in a
manner required by law or if the determination or decision is not supported by
substantial evidence.†As a result of
this standard, “The court does not pass upon the correctness of the EIR’s
environmental conclusions, but only upon its sufficiency as an informative
document.†[Citation.]’ [Citation.]
‘We 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.’ [Citation.]
[¶] ‘An appellate court’s review of the administrative record for
legal error and substantial evidence in a CEQA case, as in other mandamus
cases, is the same as the trial court’s:
The appellate court reviews the agency’s action, not the trial court’s
decision; in that sense appellate judicial review under CEQA is de novo.’ [Citation.]â€
(In re Bay-Delta Etc.,
“The agency is the finder of
fact and a court must indulge all reasonable inferences from the evidence that
would support the agency’s determinations and resolve all conflicts in the
evidence in favor of the agency’s decision.
[Citation.] ‘ “Technical
perfection is not required; the courts have looked not for an exhaustive
analysis but for adequacy, completeness and a good-faith effort at full
disclosure.†’ [Citation.] ‘A court’s task is not to weigh conflicting
evidence and determine who has the better argument when the dispute is whether
adverse effects have been mitigated or
We have neither the resources nor scientific expertise to engage in such
analysis, even if the statutorily prescribed standard of review permitted us to
do so.’ [Citation.] ‘[T]he relevant inquiry here is not whether
the record establishes compliance but whether the record contains evidence [the
agency] failed to comply with the requirements of its . . .
regulatory program. In the absence of
contrary evidence, we presume regular performance of official duty. (Evid. Code, § 664.)’
Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th
911, 918-919.) Every court “presumes a
public agency’s decision to certify the EIR is correct, thereby imposing on a
party challenging it the burden of establishing otherwise.†(Sierra Club v. City of Orange (2008) 163 Cal.App.4th
523, 530.)
Legal error, in the form of failure
to comply with CEQA, is reviewed independently, but all factual determinations
are reviewed according to the substantial evidence standard. (Vineyard
Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 426-427, 435.) “The
substantial evidence standard is applied to conclusions, findings and
determinations. It also applies to
challenges to the scope of an EIR’s analysis of a topic, the methodology used
for studying an impact and the reliability or accuracy of the data upon which
the EIR relied because these types of challenges involve factual
questions.†(Bakersfield Citizens for Local Control v. City of Bakersfield (2004)
124 Cal.App.4th 1184, 1198.)
But a substantial evidence challenge
is subject to an important proviso: “As
with all substantial evidence challenges, an appellant challenging an EIR for
insufficient evidence must lay out the evidence favorable to the other side and
show why it is lacking. Failure to do so
is fatal. A reviewing court will not
independently review the record to make up for appellant’s failure to carry his
burden.†(Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266;
accord, Sierra Club v. City of Orange,
supra, 163 Cal.App.4th 523,
547.)
The Opportunity To
Process
Concerning
the opportunity for the public to respond to a proposed EIR, CEQA provides:
“(a) A lead agency that is preparing an environmental
impact report . . . shall provide public notice of that fact within a
reasonable period of time prior to certification of the environmental impact
report . . . .
comments will be received on the draft environmental report or negative
declaration, and shall include the date, time, and place of any public meetings
or hearings on the proposed project, a brief description of the proposed
project and its location, the significant effects on the environment, if any,
anticipated as a result of the project, the address where copies of the draft
environmental impact report or negative declaration, and all documents
referenced in the draft environmental impact report or negative declaration,
are available for review, and a description of how the draft environmental
impact report or negative declaration can be provided in an electronic format.
construed in any manner that results in the invalidation of an action because
of the alleged inadequacy of the notice content if there has been substantial
compliance with the notice content requirements of this section.
section shall be given to the last known name and address of all organizations
and individuals who have previously requested notice
. . . .†(§ 21092.)
The trial court concluded that the
City had complied with these requirements, its discussion as follows:
“[T]he Court finds that the public
in general, and Petitioners in particular, were provided adequate notice and
opportunity to participate in the review and certification of the EIR and the
adoption of the Project, and that the City followed all procedures required by
CEQA and the City’s local regulations in preparation of the EIR.
“For example, the Notice of
Preparation[
title="">[9]] and Notice of
Availability of the Initial Study was widely distributed. (AR 10:4935; also 10:4942-5008 [distribution
list for NOP]; AR 25:14625). Between
July and November, 2008, the City staff gave monthly updates on the status of
the EIR to the MTA Board of Directors and Planning Commission. (Id.) The Notice of Availability of the Draft EIR
was also widely distributed and garnered a front page story in the San Francisco Chronicle’s Bay Area
section. (Id.) The official public
comment period began on November 26, 2008 and continued through January 13,
2009. (Guidelines, § 15105(c)
AR 21:11839; AR 21:11758.)
The Planning Department accepted and responded to late comments, either
in the Comments and Responses documents itself, or in writing to the Planning
Commission and Board of Supervisors. (
comments].)
“The Court finds that the size of
the Bicycle Plan EIR did not violate CEQA.
Although CEQA encourages, it does not require that EIR’s be limited to
less than 300 pages. CEQA imposes
no mandatory upper limit on length. [See
fn. 12, post.] The Court recognizes that such a limit could
place a lead agency in a position of not producing the EIR that was adequate or
that analyzed all impacts. Here, the
Bicycle Plan EIR contained an executive summary, and provided tables of both
impacts and mitigation measures to help navigate through the EIR. (AR 1:41-114.) Near-term improvements were grouped
geographically in clusters, which allowed readers to determine how proposed
projects would impact a specific area of the City. (AR 1:304; AR 19:10469.)
“As a project of ‘regional and
statewide significances,’ the Department [of Parking and Traffic] held a
scoping meeting and submitted the Draft EIR to the State Clearinghouse for
review, but no further processes were required.
(Guidelines, § 15082(c)(1); 15206(a)(1); AR 10:4881; 21:11839.)
“The Comments and Responses document
was published on June 11, 2009, more than the 10 days prior to certification
required by CEQA Guidelines § 15088(b).
(AR 22:12251.) Contrary to
Petitioners’ claims, none of the circumstances that can mandate recirculation
of a Draft EIR was present here: none of
the new information was ‘significant’ or changed the EIR ‘in a way that
deprived the public of a meaningful opportunity to comment upon a substantial
adverse environmental effect of the project or a feasible way to mitigate or
avoid such an effect that the project’s proponents have declined to
implement.’ (Guidelines,
§ 15088(a).) Tellingly, Petitioners
provide no examples or evidence or any additions or deletions that met the
criteria for recirculation set forth in Guidelines § 15088.5(a).
“On June 18, 2009, Planning staff
released to the public the proposed CEQA findings for City decision-makers,
including a summary of MTA’s preferred near-term improvements, a list of the
unavoidable significant impacts from the project, and a proposed mitigation and
monitoring and reporting program (MMRP).
(AR:24:13281‑483.) Neither
CEQA nor San Francisco Administrative Code Chapter 31 (the City’s local laws
governing CEQA) require that proposed findings be provided at a particular time
in advance of a certification hearing.
Staff later discovered that the proposed written findings did not
accurately reflect what was contained in the MMRP; staff revised the findings,
and issued a supplemental memo on June 25, 2009 which clearly explained the
differences in the two sets of findings.
(AR 24:13591-853.) Members of the
Planning Commission discussed the timing of this submittal, but stated that
they had read it and were comfortable moving forward, and chose not to, as they
could have, continued the hearing. (AR
8:3991 [‘We sat with these documents for months . . . I’m ready to move forward with it.’].)
“Petitioners argue that the Board of
Supervisors did not conduct a de novo
hearing of the certifications of the EIR because they did not adopt their ‘own’
findings, and instead incorporated by reference the CEQA finding of the
Commission and MTA Board of Directors.
The Court rejects this argument.
Consistent with the San Francisco Administrative Code § 31.16(c),
the Board of Supervisors considered ‘anew all facts evidence and/or issues’
related to the EIR. (S.F. Admin. Code
31.16(c).) The Board specifically found
that they had ‘reviewed and considered the F[inal]EIR, the appeal letters,
[and] the responses to concerns document that the Planning Department
prepared.’ (AR 5:2383.) This finding is evidence that they actually
did review and consider the FEIR. (
153 Cal.App.3d 391, 403.) The Draft EIR,
the comments and responses document, appeal letters, and Department response
were all submitted to the Board prior to the Board hearing. (See
AR 23:14332 [summary of Board submittal].)
Petitioners’ reliance on Vedanta
Society of Southern California v. California Quartet, Ltd. (2000) 84
Cal.App.4th 517, for the proposition that the Board did not conduct a
board cannot adopt the findings and explanations made by the lower unelected
body.’ (Vedanta, supra,
84 Cal.App.4th at 526.) In other
words, the Board reviewed the certification of the EIR using the appropriate
standard, and Petitioners have not shown otherwise.â€
Anderson attacks the trial court’s
reasoning and conclusion, but only obliquely.
He does not mount a head-on assault at the court’s reasoning to
demonstrate its legal flaws, nor does he challenge the evidentiary basis of the
court’s analysis. Indeed, a comparison
of his brief here with that filed below discloses that all he does is reframe
the same arguments with slightly different language. For example, insinuating that he was the
victim of underhanded politics, he reiterates his conclusion that the “time for
public review†was limited and that “Public comment periods were cut short,†but he does
not bother to address the particulars of the trial court’s reasoning and
conclusion that the City’s time for public comment complied with CEQA and the
CEQA Guidelines. Anderson ignores the
trial court’s finding that the draft EIR was actually changed in response to
public feedback. He again emphasizes the
“massive†size of the draft EIR , but he says not a thing about the trial
court’s conclusion that “CEQA imposes no mandatory upper limit on length.â€
glancing pejorative comment to the Board of Supervisors’ adoption of the two
ordinances accompanying certification of the EIR (see fn. 3, ante), but
these are clearly matters collateral to the CEQA process. Finally, Anderson
once more cites the Vedanta decision,
but he makes no effort to establish that it was misread or misapplied by the
trial court.
Almost all of the issues raised by
Anderson involve the structural integrity of the CEQA process, and because
these arguments implicate the validity of the procedures attending
certification of the EIR, they have been considered as issues of law according
to the de novo/abuse of discretion standard of review. (See Sava
Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131 [“we determine de
novo whether the agency has employed the correct proceduresâ€];
Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th 412, 435; Plaggmier
v. City of San Jose (1980) 101 Cal.App.3d 842, 857.) A differing standard must be applied to
Anderson’s remaining claim.
Anderson again cites the need for
recirculating the draft EIR; again, as noted by the trial court, he “provide[s]
no examples or evidence or any additions or deletions that met the criteria for
recirculation set forth in Guidelines § 15088.5(a).†This, despite it being long established that
the addition of new information to an EIR after the public comment period requires
recirculation only if the new information is “significant†(§ 21092.1),
that is, it changes the EIR “in a way that deprives the public of a meaningful
opportunity to comment upon a substantial
adverse environmental impact of the project or a feasible way to mitigate or
avoid such an effect (including a feasible project alternative) that the
project’s proponents have declined to implement,†but “recirculation is not
required where the new information . . . ‘merely clarifies or
amplifies [citations] or makes insignificant modifications
. . . .’ †(
of University of California (1993) 6 Cal.4th 1112, 1129-1130, quoting
Supervisors (1981) 122 Cal.App.3d 813, 822-823.)
The City’s decision not to
recirculate in the wake of the Planning Department’s responses to the public
and governmental comments is to be upheld if supported by substantial evidence,
that is, evidence which, viewed favorably to the City, is consistent with its
evaluation that the near term improvement changes did not qualify as
“significant new information.†(
of University of California, supra,
6 Cal.4th 1112, 1135.) That would
require Anderson to disprove the characterizations that the changes and
modifications were “minor†and the refinements “not substantive,†and also
disprove it was incorrect to claim that all of the “preferred projectâ€
selections were “within the range of project alternatives originally
anticipated for these near-term improvements and fall within the analytic
framework and conclusions presented in the Draft EIR.†Such a presentation would have to be
especially powerful, given that the scope of Anderson’s complaint is directed
at fewer than half of the examples in only one of the three categories of
improvements used in the EIR. (See fn.
4, ante.) In other words, Anderson would have to
demonstrate that the defects affecting only near-term improvements—not the
long-term improvements and not the minor improvements—significantly distorted
the picture of the entire project. Or
even another way, Anderson would have to establish that choosing the “preferred
project design†did not qualify as a insignificant clarification,
amplification, or modification (Laurel
Heights Improvement Assn. v. Regents of University of California,
decision actually increased uncertainty even though one of several options for
development had been definitely chosen.
Anderson makes no real attempt to carry this onerous burden.
Anderson is ignoring the two most
elemental principles of appellate review:
that the judgment under review is presumed correct, and it is the
appellant’s burden to overcome that presumption. (Sierra
Club v. City of Orange, supra, 163 Cal.App.4th
523, 530.)
Simply rehashing or tweaking arguments rejected by the trial court
neither rebuts that presumption nor carries that burden. (Paterno
v. State of California (1999) 74 Cal.App.4th 68, 102;
Cal.App.4th 1108, 1115.) Once a trial
court has produced a written decision that is obviously the result of
considerable labor, it is only fitting that respectful attention be given to
those labors. (Cf. Uriarte v. United States Pipe & Foundry Co. (1996) 51
Cal.App.4th 780, 791 [“The fact that review de novo . . . does not
mean that the trial court is a potted plant in that processâ€];
47 Cal.App.4th 29, 45 [“Although we often exercise de novo review in CEQA
cases, in many such cases, trial courts provide us with a thorough written
opinion which helps to clarify issues for appeal.â€].) Counsel is certainly at liberty to argue that
the lower committed an error of law, or determined an issue of fact that lacks
the support of substantial evidence. But
to totally ignore, as Anderson does here, the particulars of the trial court’s
lengthy opinion is hardly a promising stratagem.
Given the huge record, it is most
appropriate to remind Anderson of what should be an unnecessary
admonition: “ ‘Instead of a fair
and sincere effort to show the trial court was wrong, appellant’s brief is a
mere challenge to respondent[] to prove that the court was right. And it is an attempt to place upon the court
the burden of discovering without assistance from appellant any weakness in the
arguments of the respondents. An
appellant is not permitted to evade or shift his responsibility in this
manner.’ †(Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495,
505 quoting Estate of Palmer (1956)
145 Cal.App.2d 428, 431.)
This admonition is doubly
appropriate concerning any contention challenging the evidentiary sufficiency
of municipal actions. “ ‘ “As
with all substantial evidence challenges, an appellant challenging an EIR for
insufficient evidence must lay out the evidence favorable to the other side and
show why it is lacking. A reviewing
court will not independently review the record to make up for appellant’s
failure to carry his [or her] burden.
[Citation.]â€
[Citation.]’ †(
supra, 200 Cal.App.4th 1552, 1572;
see Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [“We are a
busy court which ‘cannot be expected to search through a voluminous record to
discover evidence on a point raised by [a party] when his brief makes no
reference to the pages where the evidence on the point can be found in the
record.’ â€].)
In the course of its decision, the
trial court noted that “Petitioners fail to provide any evidence of where a
preferred or modified option fell outside the analysis of the Draft EIR.†That observation is still true here. The trial court properly concluded that the
public was not denied the opportunity to participate in the CEQA process.
Was Adequate
“CEQA
does not expressly mention the term ‘project description,’ but numerous
appellate decisions have affirmed the central importance of the project
description to an adequate EIR.†(1 Practice Under the
California Environmental Quality Act, supra,
§ 12.2, p. 577.)
This court is among the many which have recognized that “ ‘an
accurate, stable and finite project description is the sine qua non of an informative and legally sufficient
EIR.’ †(Silveira v. Las Gallinas Valley Sanitary Dist. (1997) 54
Cal.App.4th 980, 990, quoting County of
Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 199; accord,
of Merced (2007) 149 Cal.App.4th 645, 655; Maintain our Desert Environment v. Town of Apple Valley (2004)
124 Cal.App.4th 430, 443.)
The trial court rejected the
petitioners’ claim that the EIR’s description of the project was inadequate for
the following reasons:
“The Court finds that, as CEQA
requires, the project description in the Bicycle Plan EIR provided a general
description of the project’s characteristics, including the project’s integral
components. (Guidelines, § 15124;
Tulare (1999) 70 Cal.App.4th 20, 26; AR 1:125-214 [FEIR]; 19:10312-10379
[DEIR].) The EIR describes each part of
the Project, both generally and specifically:
the policy goals to support in bicycle movement and safety in San
Francisco (AR 1:131; 195 [general]; 231-286 [specific]); the near-term
improvements (AR 1:137-195 [general]; 319-504 [specific].); the minor
improvements (AR 1:200 [general]; 2:1044-1055 [specific]); and the long-term
improvements (AR 1:196-200 [general]; 2:1076-1092 [specific]) to the bicycle
route network.
“Petitioners argue that the EIR’s
project description is insufficient for four reasons. First, Petitioners claim that the description
of near-term improvements as ‘options’ was inappropriate and misleading. Second, Petitioners claim that the Draft EIR
required recirculation because staff ultimately recommended one option for approval. Third, Petitioners claim that the description
of some aspects of the project as ‘minor’ impermissibly exempted them from
review. Finally, Petitioners claim that
by describing some aspects of the project as ‘long-term’ improvements, the EIR
improperly deferred analysis of those improvements. The Court disagrees.
“First, Petitioners allege that the
project description is inadequate because for many of the proposed 60 near-term
improvements, the EIR identified two specific aspects by which a bicycle lane
could be incorporated onto a particular street.
In each case, both designs or ‘options,’ were analyzed at an equal level
of detail. Petitioners contend that
including the analysis of two different designs for many of the projects was
misleading, but it was not. The Court
finds that the Draft EIR specifically noted that both options were alternatives
that could be considered by decision-makers for adoption. (AR 20:11209.) By analyzing each design in an equal level of
detail, the EIR, in essence, included two potentially feasible alternatives to
the improvements, which was an adequate level of detail under CEQA. (Sierra
Club v. City of Orange (2008) 163 Cal.App.4th 523, 547 [discussion and
analysis of alternatives need not be exhaustive].) Rather than violating CEQA,
the EIR met its requirements in this regard.
“Second, Petitioners argue that
because MTA staff ultimately recommended only one of the options after
publication of the Draft EIR, the project description ‘changed’ and
recirculation of the Draft EIR was required.
The Court rejects this argument.
After input from neighbors, bicyclists and other City agencies, MTA
staff recommended for approval their ‘preferred project.’ Some of the preferred designs were exactly
the same as one of the two designs analyzed in the EIR, and some were designs
that had been further refined. (
12574.) But the CEQA allows the
modification of a project design to accommodate ‘new and unforeseen insights’
which come to light during the CEQA review process. (County
of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 199-200.) Thus, it is understood and expected that a
project description may change during the CEQA review process.
“For example, courts have found that
it is proper for an agency to approve a modified project that has no greater
environmental impacts than the one studied, or to approve only part of the
proposed project. (See e.g., Dusek v. Redevelopment Agency (1985) 173 Cal.App.3d 1029,
1040 [CEQA ‘should not handcuff’ decision makers, but provide for flexibility
to implement portions of a project].).
“In addition, CEQA does not require
recirculation of a draft EIR based on such modifications unless those
modifications fall outside the scope of the draft EIR. Here, the modification of some of the designs
and the selection of a preferred project did not introduce new impacts or
otherwise fall outside the scope of the Draft EIR. Petitioners bear the burden of proving that substantial
evidence does not support the City’s decision not to revise and recirculate the
Final EIR, and courts must presume that the City’s determination is
correct. (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490,
1497.) Petitioners fail to provide any
evidence of where a preferred or modified option fell outside the analysis of
the Draft EIR. The Court therefore
rejects this argument.
“Third, Petitioners claim that the
project description is inadequate because the EIR described some of the
improvements as ‘minor.’ ‘Minor improvements’
included treatments such as sharrows, on and off street bike parking, colored
pavement and signage changes.
name="_ftnref13" title="">[13] (AR 5: 2638.)
The Court rejects this argument as well.
The EIR fully addressed the impacts of these improvements at a
programmatic level, and analyzed their potential impacts. (AR 2: 1044-74; 20: 1-129.)
“Finally, Petitioners argue that the
project description is inadequate because the EIR improperly deferred analysis
of the ‘long-term improvements.’ Again,
the Court rejects this argument. The
long-term improvements set forth in the Bicycle Plan were fully and accurately
described in the EIR as projects that might happen at a later date. (AR 1:196-200; AR 2:1076.) Consistent with CEQA’s mandate to analyze the
‘whole’ of a project [see Guidelines § 15378(a), quoted at fn. 4,
foreseeable, but not-yet-designed projects in the project description, and made
it clear that they could happen at a later date. (Id.) CEQA explicitly permits the analysis at a
programmatic level of projects that are planned for a longer-term horizon. (Guidelines, § 15168(a), (c).) The EIR fully disclosed and did not minimize
any potential impacts of the long-term improvements. (AR 2:1093-2:1105.) As a result, the City’s analysis of the
long-term improvements is permissible under CEQA.â€
Anderson recycles the same arguments
presented to the trial court, omitting any discussion as to why the trial court’s reasoning is erroneous or any demonstration
that there is nothing in the 36,000 page administrative record that qualifies
as substantial evidence. The claim fails
for these reasons alone. (
supra, 200 Cal.App.4th 1552, 1572;
on their merits, their
fate here is the same as in the trial court.
Anderson begins by arguing that “by
describing the near-term projects as ‘options,’ the EIR is misleading,
inaccurate, and vague,†thereby contradicting its function “to establish a
stable and finite project description.â€
He apparently reasons that because the EIR does not have an analysis for
every possible specific project, the EIR misled the public, which “never had
the opportunity to understand or comment on an actual project but only on a
shifting set of options that were either eliminated or changed at the last
minute, long after the close of public comment.†This too “defeat[ed] the public’s right to
participate in the environmental review process.â€
The EIR’s “summary of project
alternatives†told the public: “Unlike
most EIRs, this EIR contains no chapter analyzing alternatives to the proposed
project. This is because this EIR does
not analyze a preferred project.
Instead, for many of the near-term improvements, this EIR evaluates two
options as well as a future No-Project scenario . . . at an equal
level of detail, as EIR alternatives.
These options, and analysis of their potential environmental impacts,
are presented throughout this document.â€
We agree that this approach satisfied CEQA.
Anderson appears to believe that an EIR
must cover every eventuality, anticipate every permutation, and analyze every possibility. Not so.
In 1986, this court noted that because an EIR “is designed to provide
comprehensive environmental analysis of the impacts of many different types of
projects[,] . . . . EIR
requirements must be sufficiently flexible to encompass these vastly differing
projects with varying levels of specificity.â€
We drew the conclusion that it was unreasonable and unrealistic to
demand that an EIR “must describe in detail each and every conceivable
development scenario.†(
187 Cal.App.3d 1325, 1336-1337; cf. Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, 398 [“We do not require prophecy. . . . Nor do we require
discussion in the EIR of specific future action that is merely contemplated or
a gleam in the planner’s eye.â€].) This
conclusion has become the basis for repeated holdings that no ironclad rules
should be imposed for the level of detail required of EIRs. (Friends
of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82
Cal.App.4th 511, 534; Al Larson Boat
Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729,
745-746; Rio Vista Farm Bureau
Center v. County of Solano (1992) 5 Cal.App.4th 351, 374.)
According to our Supreme Court, the minimum
for an EIR is “analysis sufficient to allow informed decision making.†(Laurel
Heights Improvement Assn. v. Regents of University of California,
to a general plan, it “need only conform with the general rule of reason in
analyzing the impact of future projects, and may reasonably leave many
specifics to [the ]future . . . . ‘CEQA recognizes that environmental studies
in connection with amendments to a general plan will be, on balance,
general.’ †(Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners,
746-747.) Local authorities are granted
broad discretion in this area (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147
Cal.App.4th 357, 373-374; San Franciscans Upholding the Downtown Plan v. City and County of San
Francisco (2002) 102 Cal.App.4th 656, 677-678), and Anderson makes no real
attempt to establish that discretion was abused.
Finally, neither the Guidelines nor the
courts require perfection. “[A]n EIR
need not include all information available on a subject. An EIR should be ‘analytic rather than
encyclopedic’ and should emphasize portions ‘useful to decision makers and the
public.’ (Guidelines, § 15006, subds.
(o) & (s).)†(Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners,
of a proposed project need not be exhaustive, but the sufficiency of an EIR is
to be reviewed in the light of what is reasonably feasible
. . . . The courts have
looked not for perfection but for adequacy, completeness, and a good faith
effort at full disclosure.†(Guidelines,
§ 15151; see Eureka Citizens for Responsible Government v. City of Eureka, supra, 147 Cal.App.4th
357, 372;
Rio Vista Farm Bureau Center v. County of
Solano, supra, 5 Cal.App.4th 351,
368.) The Guidelines require only “a
range of reasonable alternatives to the project.†(Guidelines, § 15126.6(a).)
The options approach adopted here
satisfied these standards. It identified
the various ways in which particular “near-term†items would be analyzed. It specified how “near-term†improvement was
defined. (See fn. 4,
The location of each of the 60 projects was specified. Drawings showing what each of the options for
each projects would look like were included as Appendix B to the EIR. And the nature of the “objectives†for the
changes to the Bicycle Plan was specified.
However, as previously noted, not every “near-term†improvement had
multiple options, and many of the multiple options were eliminated, which would
reduce much of the confusion feared by Anderson.
Anderson’s second claim, that “the EIR
improperly defers analysis of parts of the Project by categorizing them as ‘long-term
improvements,’ †also fails. The
EIR advised readers that “Long-term improvement projects are either major
improvements to segments of the existing bicycle route network or are potential
future additions of new streets and pathways to the bicycle route network and
may require additional environmental review in the future. Specific designs for these projects have not
been developed as of publication of this document . . . . [¶] The impacts of those future
improvements are evaluated at a program level in this analysis . . .
and may require further project-level analysis that would consider the
potential environmental impacts of those improvements in a separate
environmental review process, once specific project designs are developed.â€
The trial
court’s reading of Guidelines section 15168 as validating the EIR’s approach
was correct. “Under
actions that can be characterized as one large project. If a program EIR is sufficiently
comprehensive, the lead agency may dispense with further environmental review
for later activities within the program that are adequately covered in the
program EIR. (Guidelines,
§ 15168, subd. (c).) Thus, ‘a program EIR may serve as the EIR for
a subsequently proposed project to the extent it contemplates and adequately
analyzes the potential environmental impacts of the project
. . . .’ †(
County of El Dorado (2012) 202 Cal.App.4th 1156, 1171.) And the EIR expressly told readers that it
was adopting a “Program-Level Review.â€
Anderson next reasserts his argument
that the EIR improperly exempted “pieces of the project†by characterizing them
as “minor.†The EIR not only identifies
the improvements it characterizes as minor, it defines that term (see fn. 4,
as it did for each of the 60 near-term improvements. Indeed, the EIR devotes 30 pages to the
topic, includes photographs and charts, and concludes with a “Summary of
Impacts of Minor Improvements.†In sum,
minor improvements were not exempted,
just not analyzed in the manner Anderson wishes.
Finally, Anderson contends that
“fragmenting the project descriptions to avoid and defer analysis violates
CEQA.†We reject this claim because it
was not made to the trial court. (See
(2005) 35 Cal.4th 839, 864, fn. 20; Porterville
Citizens for Responsible Hillside Development v. City of Porterville (2007)
157 Cal.App.4th 885, 912.) In any event
is but a reframing of Anderson’s already rejected second argument.
It appears an open question whether the
inadequacy of a project’s description is analyzed as a question of law or an
issue of fact. The leadings treatise
assigns it to the latter category. (1
Practice Under the California Environmental Quality Act, supra, § 11.39, p. 572, citing Dry Creek Citizens Coalition v. County of Tulare (1999)
70 Cal.App.4th 20.) There is no
need for this court to decide which standard is correct, because the project
description here clearly satisfies both.
Viewed as an informational document, the City’s EIR plainly told
decision makers and members of the public what was intended. (§ 21061;
California,
supra, 47 Cal.3d 376, 404.) Because the EIR complied
with CEQA, no abuse of discretion is present.
(§ 21168.5; Vineyard Area
Citizens for Responsible Growth, Inc v. City of Rancho Cordova,
project description has the support of substantial evidence.
Supports The Trial Court’s Determination
Description Was Adequate
One
of the CEQA Guidelines
specifies that an EIR “must include a description of the physical environmental
conditions in the vicinity of the project, as they exist at the time the notice
of preparation is published, or if no notice of preparation is published, at
time environmental analysis is commenced, from both a local and regional
perspective. This environmental setting
will normally constitute the baseline physical conditions by which a Lead
Agency determines whether an impact is significant.†(Guidelines, § 15125(a).) The trial court
rejected the petitioners’ claim that the City failed to comply with this
directive:
“The Court finds that the EIR’s
description of existing conditions complies with CEQA. Under CEQA, an EIR must contain a description
of existing conditions in the vicinity of the project, usually measured from
the time the notice of preparation for the project is published. (Guidelines, § 15125(a).) Petitioners argue that the EIR’s description
of existing conditions, referred to as the ‘baseline,’ is incomplete and
inaccurate for two reasons: (1) the EIR
contains no baseline date on traffic, bicycle, or pedestrian volumes, and (2)
the EIR does not make clear how it arrived at existing level of service (LOS)
conditions. [Citation.] These issues were specifically addressed in
the hearing on the matter, and the Court finds that these arguments lack merit.
“The EIR describes the traffic
setting for each near-term project, including the LOS of the study intersection
or intersections impacted by that particular project. LOS is a qualitative description of the
performance of an intersection based on the average delay per vehicle. (AR 13:6237.)
The EIR relies on figures and details used to calculate the LOS at each
intersection—such as turning movements, traffic volume and lane
configurations—as well as the dates on which traffic counts were conducted,
which were contained in the City’s Transportation Impact Study, a publicly
available report contained in the Planning Department’s files. (See
AR 23 and 14.) CEQA Guidelines
section 15148 allows an EIR to cite to publicly available reports which
contain the more technical information summarized and relied on in an EIR.
“Petitioners argue that the EIR
number of vehicles using a particular intersection, and that merely including
the LOS calculation was not enough. In
its tentative ruling, the Court posed specific questions regarding whether the
data underlying the LOS calculation was required to be in the EIR. These questions were resolved during the
hearing, and the Court now rejects Petitioners’ argument for two reasons. First, the Court recognizes that traffic
impacts are routinely analyzed under CEQA in terms of LOS: generally, if a proposed project will result
in the deterioration of a signalized intersection from LOS D or better to LOS E
or F, or from LOS E to LOS F, the impact is considered significant. (AR 13:6238.)
Thus, the EIR notes the existing LOS for each intersection studied, as
well as LOS conditions with the projects and in future year 2025. Second, the Court notes that the LOS
calculations are based on numerous factors, not just the number of vehicles
traveling through an intersection during the peak hour. An EIR containing all the information and
calculations that go into an LOS calculation, and which are contained in the
Transportation Impact Study, would not be ‘written in plain language’ or
‘rapidly’ understood by the decisionmakers and the public as contemplated in
CEQA. (CEQA Guidelines
§ 15140.) Moreover, as noted above,
CEQA Guidelines section 15148 allows an EIR to cite publicly available reports
which contain the more technical information summarized in an EIR.
“Furthermore, Petitioners contend
that the City could only rely on data that was available at the time the Notice
of Preparation was issued on June 5, 2007, and the City erred in relying on
data collected from 2007, 2008, and 2009.
Petitioners rely on CEQA Guidelines and Communities for a Better Environment v. South Coast Air Quality
Management District (2010) 48 Cal.4th 310.
CEQA Guidelines section 15125(a) provides: ‘An EIR must include a description of
the physical environmental conditions in the vicinity of the project, as they
exist at the time the notice of preparation is published
. . . .’ In
Environment,
the Court considered the proper baseline physical conditions to use in
determining whether there was a significant impact in the context of a permit
application process for a refinery. The
Court held that the proper baseline to consider was the actual emissions of the
refinery rather than the amount allowable pursuant to the refiner’s permit.â€
“Neither the CEQA Guidelines nor
support Petitioners’ position. There is
nothing which suggests that all information relied upon must be available at
the time the Notice of Preparation is issued.
Rather, Communities for a Better
Environment stands for the proposition that current physical conditions
must be considered rather than allowable amounts. Here, there is nothing to indicate that
traffic conditions were any different in 2007 rather than 2008 or 2009. It would be impractical to collect data for
the entire study on a single date, and data collected on other dates is
nonetheless probative of conditions on the relevant date.
“The Court also finds that the EIR
contained adequate descriptions of the baseline for bicycle and pedestrian
volumes, which were described as ‘low,’ ‘medium’ or ‘high.’ The Court notes that the significance of
impacts to bicyclists was determined by assessing whether the improvement would
‘create potentially hazardous conditions for bicyclists or otherwise
substantially interfere with bicycle accessibility.’ (AR 13:6239.)
Similarly, the significance of impacts to pedestrians was assessed based
on whether the proposal ‘would result in substantial overcrowding on public
sidewalks, create potentially hazardous conditions for pedestrians or otherwise
interfere with pedestrian accessibility.’
(Id.) Contrary to petitioners’ suggestions, the EIR
was not required to analyze bicycle and pedestrian impacts in exactly the same
way as traffic impacts, and likewise did not have to provide the
pedestrians on a particular street in the project description. Rather, the qualitative description of ‘low,’
‘medium’ or ‘high’ was sufficient to understand the significant effects of the
project and the alternatives analyzed.
(Guidelines, § 15125(a).)
“In addition, the Court finds that
the EIR adequately explains the City’s methodology for arriving at existing LOS
conditions. Intersections were analyzed
using the 2000 Highway Capacity Manual
(HCM) methodology, which entails the use of a computer model using field
observations and manual adjustments to observed operating conditions, in order
to a
| Description | In recent years, many cities have decided that promoting the increased use of bicycles improves the quality of life and promotes a variety of public policies. Since 1997, San Francisco has been one of these cities. A decade later, an upgrade to the City’s statutory Bicycle Plan generated an Environmental Impact Report (EIR) of more than 2,000 pages that was certified by the City’s Board of Supervisors. Two groups and one individual objected, to no avail, to the trial court ruling that that the EIR complied with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.[1]). Only the individual, Rob Anderson, continues the attack, appealing from the trial court’s order. He contends that the EIR is riddled with fundamental procedural and substantive legal error, and that the massive administrative record of more than 36,000 pages will not support numerous findings of the trial court. Aided in large measure by the trial court’s comprehensive written decision, we reject all of Anderson’s challenges to the EIR itself. However, he does identify a defect in the process when the EIR was certified by the Board of Supervisors, which failed to make a handful of findings required by CEQA. We therefore must reverse in order that this omission may be corrected. |
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