Citations
- 6 Cal. App. 5th 160
Full opinion text
Opinion
POLLAK, J.
Plaintiffs Mission Bay Alliance and others appeal from the trial court’s denial of two consolidated petitions to set aside the certification of the environmental impact report and related permits for the construction of an arena to house the Golden State Warriors basketball team, as well as other events, and the construction of adjacent facilities, in the Mission Bay South redevelopment plan area of San Francisco.
The project proposed by real parties in interest GSW Arena LLC, an affiliate of Golden State Warriors LLC, and David Kelly is to construct a 488,000-square-foot multipurpose event center with a capacity of up to 18,500 seats and a variety of mixed-use structures, including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space. The proposed event center is designed to host the Golden State Warriors basketball team during the National Basketball Association season and to provide a venue for a variety of other uses, including concerts, family shows, other sporting events, cultural events, conferences, and conventions. The arena is projected to host over 200 events annually. The project purports to incorporate on-site and off-site improvements to accommodate traffic and to include a transportation management plan “to facilitate multimodal access at the event center during project operation.”
The project is proposed to be constructed on an approximately 11-acre site (blocks 29 through 32) in the Mission Bay South redevelopment plan area in the southeastern part of San Francisco. Attached as appendices to this opinion are a diagram and an aerial photograph showing the location of the proposed project and the approved uses of the immediately surrounding parcels, which include the Mission Bay campus and medical center of the University of California at San Francisco (UCSF) and a mix of residential, fight industrial, office and open space uses.
The relevant development history of the area begins in 1990 with the adoption by the San Francisco Board of Supervisors of the Mission Bay plan, an area plan of the San Francisco general plan. A Mission Bay final environmental impact report (1990 FEIR) was certified in connection with the approval of the Mission Bay plan. That plan was never implemented but in 1997 the former San Francisco Redevelopment Agency (subsequently replaced by defendant Office of Community Investment and Infrastructure (OCII)) proposed a new project for the Mission Bay area, consisting of two separate development plans: Mission Bay North redevelopment plan and Mission Bay South redevelopment plan. Both plans were approved in late 1998 after certification of a combined Mission Bay final subsequent environmental impact report (1998 FSEIR), which incorporated information from the 1990 FEIR and applied to both the north and south redevelopment plans.
In April 2015, the Governor certified the currently proposed project as an “environmental leadership development project” within the meaning of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), specifically section 21178 et seq., requiring expedited environmental review and litigation. On June 5, 2015, OCII, as the lead agency, released a draft supplemental environmental impact report (DSEIR) for the project, tiered to the 1998 FSEIR. (§ 21094; CEQA Guidelines, § 15152.) Following the receipt of public comments and responses thereto and a public hearing, on November 3, 2015, OCII certified the final supplemental environmental impact report (FSEIR) now under consideration. OCII found that the project would have certain significant and unavoidable effects on the environment and adopted a statement of overriding considerations, and authorized the executive director to implement a “mitigation monitoring and reporting program.” OCII’s executive director adopted secondary use findings for the proposed event center. On December 8, 2015, the board of supervisors rejected plaintiffs’ appeal from the actions taken by OCII, approved certification of the FSEIR, adopted the CEQA findings, and approved the project.
Plaintiffs filed two separate actions seeking to set aside the certification of the FSEIR, approval of the secondary use findings, and several other approvals relating to the project. Following transfer of one action from the Sacramento County Superior Court to the San Francisco Superior Court, the superior court heard argument on the consolidated petitions. On July 18, 2016, the court issued a 54-page order, substantially as proposed by defendants, rejecting all of plaintiffs’ contentions and denying their petitions for a writ of mandate. This appeal promptly followed.
We have carefully considered each of plaintiffs’ contentions raised on appeal. Although in some instances defendants’ analysis of potential environmental impacts might have been expanded, as is commonly the case, in general the record reflects a thorough and exhaustive study of all environmental impacts to be anticipated that were not considered in the 1998 FSEIR, and identification of numerous mitigation measures to lessen adverse impacts to the extent feasible. We conclude there is no merit to plaintiffs’ objections to the sufficiency of the city’s environmental analysis and its approval of the proposed project.
DISCUSSION
The 1998 FSEIR provides a portrait of the Mission Bay project area as it existed at that time. The area was described as “a primarily industrial area occupied by block-long warehouses, concrete and gravel processing facilities, truck terminals, and surface parking with large tracts of undeveloped land that previously contained rail lines and a rail yard. Building heights generally range from one to two stories. The conveyor towers of two concrete and gravel processing facilities dominate the landscape at heights of about three stories. There are truck terminals and about 50 warehouses, buildings, other structures, and recreational uses including a golf driving range and in-line skating facility. Buildings range from small materials sheds to large warehouses. . . . Building uses include distribution and storage facilities for food products, clothing, rental furniture, and personal effects; light manufacturing; and some office uses. Uses of undeveloped areas include maintenance yards, parking areas for container trucks and commercial buses, and storage areas for construction materials.” The baseball stadium, with over 40,000 seats, was under construction and would not open for another two years.
The 1998 FSEIR proposed a complete redevelopment of the area ‘“intended to eliminate blight by facilitating development on primarily vacant and underutilized land” and “demolition of almost all existing buildings.” The project area “would change from an underdeveloped industrial area with large swaths of vacant land, to a fully developed mixed use urban area, with 30,000 employees and about 11,000 residents” and change the landscape from “industrial areas into residential and commercial neighborhoods.” In the Mission Bay South project area of 238 acres, approximately 61 acres were planned for development by UCSF with most of the remaining area—about 128 acres—planned for commercial industrial development. An arena is not mentioned in the 1998 FSEIR. The 1998 FSEIR states that secondary uses in the commercial industrial designated areas could include “nighttime entertainment.”
The November 1998 redevelopment plan for Mission Bay South lists seven principal land uses: residential, hotel, commercial industrial, commercial industrial/retail, UCSF, public facility (such as a police station), and open space. Potential secondary use as nighttime entertainment was defined to include “dance halls, discotheques, nightclubs, private clubs, and other similar evening-oriented entertainment activities.”
Much has changed in Mission Bay South since preparation of the 1998 FSEIR. As the initial study notes, “large portions of the Mission Bay plan area have been built out. The UCSF Mission Bay campus is located west, northwest, southwest, and partially south of the project site, and it currently includes a mix of parking structures, office buildings, research buildings, student housing, and hospital buildings. Other office buildings and vacant lots are located north and south of the site
Environmental review of the proposed project was made in the context of this setting, with which all parties are in agreement. Plaintiffs contend that the environmental review was inadequate both because several issues requiring consideration were not addressed in the FSEIR and because several issues that were addressed assertedly were not analyzed correctly. We consider each of these contentions in turn.
I. Sufficiency of the environmental review
A. Issues excluded from review in the FSEIR
1. Land use in Mission Bay South
The Mission Bay FSEIR adopted in 1998 is a “program” environmental impact report (EIR). “A program EIR is an EIR which may be prepared on a series of actions that can be characterized as one large project and are related” geographically, “[a]s logical parts in the chain of contemplated actions,” or in other relevant respects. (CEQA Guidelines, § 15168, subd. (a).) Adoption of a program EIR allows for “tiering,” in which a program EIR “cover[s] general matters and environmental effects” and is followed by “narrower or site-specific” EIRs as needed. (§ 21068.5.) “Subsequent activities in the program must be examined in the light of the program EIR to determine whether an additional environmental document must be prepared.” (CEQA Guidelines, § 15168, subd. (c).)
OCII conducted an initial study to determine if the arena project “may have a significant effect on the environment.” (CEQA Guidelines, § 15063, subd. (a).) The initial study concluded that some of the project’s effects warranted more detailed environmental analysis, leading to the 2015 FSEIR, while other effects were insignificant or adequately examined in the 1998 FSEIR. The initial study determined that a supplemental EIR would be prepared to discuss, among other subjects, the project’s potential impact on transportation and circulation, noise, air quality, greenhouse gas emissions, wind and shadow, utilities and service systems, public services and hydrology and water quality.
The initial study analyzed potential land use impacts, including whether the arena project would “physically divide an established community,” “conflict with any applicable land use plans, policies or regulations,” or “have a substantial impact on the existing character of the vicinity.” The initial study found that the proposed project would be incorporated within the established street plan and would “not include any physical barriers or obstacles to circulation that would restrict existing patterns of movement between the project site and the surrounding neighborhood. To the contrary, the project would include a number of features designed to encourage and promote public access and circulation.” The initial study found no apparent conflict with regional plans or policies, and noted that ‘“[a]s part of the project approval process, OCII, the San Francisco Planning Commission, and other relevant regulatory agencies would determine whether the proposed project is consistent with their respective plans as applicable to the proposed project.”
The initial study also found that the proposed project would not have a substantial impact upon the existing character of the vicinity. It was noted that the 1998 FSEIR contemplated commercial, retail and nighttime entertainment uses. The event center’s commercial and retail character was found compatible with the UCSF medical center and other existing uses in the neighborhood. The event center’s entertainment use was deemed similar to the nighttime entertainment uses analyzed in the 1998 FSEIR although it was acknowledged that ‘“the size and intensity of the event center use was not previously analyzed.” The initial study concluded, nevertheless, that there was no significant adverse impact on community character. “Although the presence of [event center] attendees on streets and sidewalks in the vicinity of medical research, clinic, and office uses in the surrounding Mission Bay neighborhood would be noticeable compared to existing conditions, these additional people would not impede the operation of those existing uses such that adverse land use impacts would occur. Each use would continue to function as intended.” In evaluating cumulative impact, the initial study stated that the proposed project and further planned development would “create a wider mix of uses than currently exists in this portion of the City. Although this would represent a change in land use character, the combined effect would not be adverse. Each use would still function as intended, and many of the uses would be complementary.”
On the basis of these findings, the subject of land use as such was not explicitly analyzed in the FSEIR. Plaintiffs dispute the statement in the initial study that the proposed arena will not impede the operation of existing uses of property in the vicinity, claiming that the project will adversely affect the operation of the hospital, biotechnology companies, and other occupants of the Mission Bay South area. They contend there is a “fair argument” that the project will have an adverse impact on land use so that the issue was required to be fully analyzed in the FSEIR.
Initially, fair argument is not the proper standard of review. Substantial evidence is the proper standard where, as here, an agency determines that a project consistent with a prior program EIR presents no significant, unstudied adverse effect. (Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1049 [174 Cal.Rptr.3d 363] [“For purposes of the standard of review, the same substantial evidence standard applies to subsequent environmental review for a project reviewed in a program EIR or a project EIR.”]; see, e.g., Citizens far Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598, 611 [36 Cal.Rptr.3d 249] [“[T]he fair argument standard does not apply to review of an agency’s determination that a project’s potential environmental impacts were adequately analyzed in a prior program EIR.”]; Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 702 [7 Cal.Rptr.3d 868] [“When an agency has already prepared an EIR, its decision not to prepare an SEIR for a later project is reviewed under the deferential substantial evidence standard.”]; Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1135 [26 Cal.Rptr.2d 231, 864 P.2d 502] [“[T]he ‘fair argument’ test has been applied only to the decision whether to prepare an original EIR or a negative declaration.”].)
There was a reasonable basis for OCII to conclude that the presence of the arena would not necessarily impede the operation of others in the area, including the UCSF hospital facilities. As the initial study observed, most basketball games and concerts drawing large crowds will generally occur during evening hours, “after commercial and medical office hours of nearby uses.” Moreover, the initial study identified the particular impacts that might affect others in the area, including particularly traffic and noise, and designated those impacts for full analysis. It is unclear what additional environmental impacts might have been studied under the labels “land use” or “character of the neighborhood” that were not covered in the FSEIR. In response to questions by this court, plaintiffs have articulated no such subject.
The issue of compatibility of the event center with the surrounding area was addressed in the FSEIR and certainly brought to the attention of the decision makers. OCII received numerous comments during the CEQA review process concerning its land use determination. One comment asserted that the project would disrupt planned development of Mission Bay South as a “biotechnology and medical hub.” A nurse expressed a concern that increased traffic from the project would impede access to the hospital. Other comments asserted the project’s compatibility with the neighborhood’s existing uses and the project’s desirability. One area homeowner said the project’s open space area and entertainment events would enliven the area for child residents and “enhance our neighborhood in a way that few alternatives really could achieve.”
OCII responded at length to the public’s comments. OCII noted that the Mission Bay development plan “contemplates a diverse array of uses to address blight and enhance economic development of the area” and asserted that “operation of office, entertainment and retail uses at the project site would not conflict” with the medical center and other existing uses. In addressing specific concerns about the project’s potential impact on land use, OCII described project construction measures to minimize noise and vibration and thus avoid disruption of local biotechnology operations and transportation plans to assure emergency access to the hospital by ground and air.
Community concerns remained about traffic impeding access to the hospital, especially on those occasions when events are held at both the event center and AT&T Park. In response to those concerns, the city created a dedicated transportation improvement fund generated by project revenues and the project’s sponsor agreed to work with UCSF and the city to manage traffic impacts and to limit overlapping events as necessary. UCSF expressed satisfaction with this resolution and agreed to support the project.
Thus, although—as the initial study recognized—an arena was not contemplated by the 1998 FSEIR and the proposed project “would alter the overall land use character of the project site from that analyzed” in the earlier program EIR, the potential effects of the project on the surrounding neighborhood was neither overlooked in the initial study nor omitted from the FSEIR. OCII concluded that this alteration would not impede the operation of existing uses and that conclusion finds support in the initial study, responses to comments and other information in the record, all of which must be considered. (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 918 [45 Cal.Rptr.3d 102]; see CEQA Guidelines, § 15132.) Petitioner’s land use argument is essentially a policy disagreement with OCII’s determination that an event center will enhance the neighborhood. Under CEQA, “[a] court’s task is not to weigh conflicting evidence and determine who has the better argument.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393 [253 Cal.Rptr. 426, 764 P.2d 278].) Our limited function is “ ‘to compel government at all levels to make decisions with environmental consequences in mind.’ ” (Ibid.) The land use consequences were fully considered here. The fact that land use was not specified as a separate subject for further study did not preclude analysis and disclosure of all aspects of the project bearing upon the impacts to be expected from the project on the character of Mission Bay South and activities of UCSF and others in the vicinity.
2. Biological resources and habitat
The initial study evaluated the project’s potential impact on biological resources and found no significant environmental effects that were not previously identified and assessed in the Mission Bay 1998 FSEIR. Plaintiffs contest this conclusion. They note changes to the physical characteristics of the project site from the time of the prior EIR and claim the site now contains a wetland and other habitat features that will be adversely impacted by development of the site.
At the time of preparation of the Mission Bay FSEIR, the 11-acre project site ‘“contained several buildings and facilities and was noted as lacking any notable vegetative habitat,” with no threatened, endangered or rare plants or animals “known to occur in the upland portion of the Mission Bay plan area, including the project site.” According to the initial study, “Subsequent to that time, the project site has been subject to building removal, grading, excavation, and construction of paved surface parking lots, fencing and utilities on portions of the site.” Today, the project site consists of two paved parking lots and an undeveloped lot “largely covered in gravel” with “sparse” vegetation “dominated by non-native annual grasses and opportunistic weedy species.” Adjacent to one of the parking lots is “a depressed area (measuring approximately 320 feet by 280 feet) created by an excavation and backfill associated with a prior environmental cleanup of that portion of the site. A surface swale extends west within this portion of the site to allow for drainage of surface water into the depression.”
Plaintiffs characterize the excavation pit as a half-acre wetland and argue that draining and filling the pit will significantly impact endemic and migratory birds. The initial study found the project would have no significant effect on biological resources even if the excavation pit were deemed a wetland because its value “is limited due to the sparse and ruderal nature of onsite vegetation, as well as the site’s location in a densely urbanized environment.” A biologist conducted a site survey and found no protected species or “desirable habitat that could support” them. The initial study concluded: “While several bird species were observed foraging and hunting onsite, these species are common to San Francisco and would continue to be supported by vegetation communities and water features found in the project vicinity. Because the excavation depressions on the site are small, isolated features resulting from recently completed hazardous materials remediation activities and are surrounded by paved areas and urban development, these features do not provide the important biological habitat functions and values that are typically associated with federally protected wetlands. As such, the proposed removal of these features would not constitute a significant adverse impact on wetland habitat resources.”
The initial study’s conclusion of no significant impacts on biological resources is well supported by the record. OCII reasonably concluded, following a site survey, that the only impact would be loss of an excavation pit with limited biological value. In response to public comments, OCII noted that “the loss of such marginal habitat on site would not threaten” bird populations as other suitable habitat exists near the project site. Plaintiffs contend the site survey itself supports their claim of a significant impact on biological resources because the survey found the excavation pit and surrounding depressions to be “features that exhibit hydrology and vegetation characteristics of wetlands.” It is true that the biologists who conducted the site survey noted wetland characteristics but they concluded that the site, even if characterized as wetland, did not provide valuable habitat. The biologists found that the “Habitat quality of the wetlands, as with the upland portions of the proposed project site ... is of limited value to resident and migratory birds and common urban wildlife. Occasional visitation by waterfowl ... or by passerine and raptor species stopping over seasonally . . . may occur; however, the site would not be considered essential habitat for these species or of local or regional importance to wildlife due to its overall ruderal nature and surrounding built-up environment. Site conditions suggest that the most likely species to use the site would be common wildlife, described above, which readily adapt to urbanized environments.” No substantial evidence suggests, nor has a fair argument been made, that the project will have a significant adverse effect on biological resources.
3. Hazardous materials
The project site contains soil and groundwater contaminated by the historical operation of heavy industry. The 1998 Mission Bay FSEIR addressed the impact to construction workers, the public, and the ecological environment from exposure to potentially hazardous chemicals in soil and groundwater. Over the years there have been several remediation efforts that removed underground fuel storage tanks and over 100,000 tons of contaminated soil. Nonetheless, the soil at the project site remains contaminated with heavy metals, as revealed in an environmental site assessment completed by the project sponsor in 2015.
OCII concluded that an existing risk management plan adequately addresses human health and environmental risks associated with exposure to contaminated soil and groundwater, making further environmental study unnecessary. Plaintiffs argue that the risk management plan is inadequate because it fails to address contaminated soil imported to the project site following certification of the 1998 FSEIR and because it employs outdated toxicity screening levels.
Plaintiffs’ assertion that “contaminated soils from other parts of Mission Bay were imported to the site” is not supported by their citations to the administrative record and we find no support elsewhere in the record. The assertion may refer to earlier remediation, which removed soil tainted with petroleum hydrocarbons and backfilled the excavations. OCII addressed plaintiffs’ concern with “imported” soil by explaining, in its response to public comments: “in 2005, a portion of the site (located in the south-east area) was excavated as the ‘Pier 64’ response action in order to remove petroleum hydrocarbon free product. After the clean-up was completed, the area was backfilled with concrete rubble and overburden soil that had been excavated and stock-piled in order to remove the hydrocarbon contamination. This material came from the same area that was addressed as part of this cleanup. The Regional Water Quality Control Board—the agency with regulatory authority over the cleanup—determined that this use of the rubble and overburden was appropriate.” (Italics added.) In any event, any “importation” of contaminated soil following adoption of the 1998 FSEIR is accounted for by the 2015 site assessment that identified current conditions at the site.
Likewise, there is no basis for plaintiffs’ claim that impacts related to hazardous materials are inadequately addressed in the initial study because the analysis relies upon a risk management plan that uses outdated methodologies for assessing human health and environmental risk. It is true, as OCII acknowledges, that toxicity screening levels have changed since preparation of the 1999 risk management plan. However, the 1999 plan requires compliance with current regulatory standards, not those that existed in 1999. As OCII explained in its response to public comments, the risk management plan mandates compliance with the current health code to “ensure that remediation of the soil and groundwater would meet current health risk standards, and that the public and site occupants and visitors would not be exposed to unacceptable levels of site contaminants during construction and operation of the project.”
Thus, there was no CEQA violation in the exclusion of hazards and hazardous materials from the scope of the FSEIR.
4. Recreational areas
The initial study also concluded that the ‘“proposed project would not increase the use of existing parks and recreational facilities such that substantial physical deterioration of the facilities would occur or otherwise result in physical degradation of existing recreational resources.” Plaintiffs challenge this conclusion but the conclusion is well-supported by the record. Impact on existing parks will be eased by a planned six-acre Bayfront Park and three acres of open space within the 11-acre project site. Plaintiffs contend that the event center will attract more visitors to Bayfront Park than previously expected, but ample evidence supports the initial study’s finding that the planned park will not be physically degraded by event center visitors, especially given the project’s inclusion of on-site open space. The exclusion of this issue from the scope of the FSEIR did not violate CEQA.
B. Adequacy of analysis of issues in the FSEIR
1. Transportation impacts
Chapter 5.2 of the FSEIR analyzes the potential project-level and cumulative impacts on transportation and circulation during construction and operation of the proposed project. ‘“Transportation-related issues of study include transit, vehicle traffic on local and regional roadways, bicycles, pedestrians, loading, emergency vehicle access, parking, and construction-related transportation activities.”
The FSEIR does not mask the significant traffic and congestion concerns presented by the proposed project. There is no doubt that traffic in the area will be heavy before and after basketball games and other events attended by more than 18,000 people, especially when overlapping with a game at AT&T Park, which may draw more than 45,000 people. For this reason, the project was defined to include a transportation management plan (TMP) to address and mitigate the transportation and circulation impacts of the arena. The project also includes new or upgraded traffic signals or lane reconfigurations at 20 intersections and construction of six new street segments, as well as expansion or modification of light rail passenger platforms, construction of new sidewalks and bicycle lanes and expansion or relocation of existing sidewalks and bicycle lanes.
Following circulation of the DEIR, the city received approximately 80 comments predicting “traffic gridlock” as a result of the project and questioning the impact of traffic congestion on access to adjacent UCSF hospitals and residences. In response, prior to adoption of the FSEIR, the TMP was modified in consultation with city agencies and representatives of UCSF.
As explained in the FSEIR, “The TMP includes various management strategies designed to reduce use of single-occupant vehicles and to increase the use of rideshare, transit, bicycle, and walk modes for trips to and from the project site.” The TMP includes provisions for the expansion of the existing Mission Bay Transportation Management Association shuttle program, as well as event transportation and travel demand management strategies. Event transportation management strategies include, among many other components, designating taxi and shuttle stops, positioning parking control officers at key intersections and a parking control officer supervisor at a command center, and temporarily closing certain traffic lanes post-event. Travel demand management strategies include, among many other elements, participating in pre-tax commuter benefit programs, contributing to and promoting the Mission Bay Transportation Management Association shuttle program, and determining the feasibility of bundling the cost of a round-trip Muni fare into the cost of ticketed events.
The TMP also incorporates the San Francisco Municipal Travel Agency (SFMTA or Muni) special event transit service plan (Muni TSP), which provides for additional transit service during large evening events. The Muni TSP increases the frequency and capacity of fight rail service on the T Third line, adds a Muni Metro shuttle via The Embarcadero, and adds Muni special event shuttles running (1) between the event center and the 16th Street Bay Area Rapid Transit (BART) station, (2) between the event center and Fort Mason, and (3) between the event center and the new Transbay Transit Center and the Ferry Building.
The TMP also includes a “local/hospital access plan” to facilitate emergency access and movement by residents and employees of UCSF in and out of the Mission Bay area. The plan, which is to be implemented by SFMTA before all large weekday evening events at the event center (i.e., events anticipating more than 12,500 attendees starting between 6:00 and 8:00 p.m., approximately 50 times per year), is configured to discourage event attendees who arrive by car from using portions of Fourth Street, Owens Street, UCSF campus internal roads, and local residential streets. Under the plan, special temporary and permanent signage will be positioned at appropriate locations to direct event traffic towards designated routes in order to access off-street parking facilities serving the event center and away from streets within the local/hospital access plan network. In addition, parking control officers will be stationed at key intersections before an event to facilitate local driver access.
Finally, the TMP includes specific performance standards and provisions for monitoring and refinement. “Monitoring methods include field monitoring of operations during the first four years and an annual surveying and reporting program thereafter. Surveys of event attendees and event center employees would be conducted annually, and visitor surveys of Mission Bay neighbors and UCSF staff and emergency providers would be conducted in the initial years of operation.” Performance standards include, among others, a maximum 53 percent of event attendees arriving by car for weekday events and a maximum 59 percent of event attendees arriving by car for weekend events, specified limits on vehicle queuing on city streets, and all patrons able to board Muni fight rail and special event shuttles within 45 minutes after the end of an event. The project proponents are required to meet all identified performance standards by the middle of their third season at the event center and for every Golden State Warriors season thereafter.
According to the FSEIR, “In the event that ongoing monitoring shows at any time that the performance standards outlined above are not being met, the project sponsor would explore additional travel demand strategies, operational efforts, or design refinements to meet the goals identified in the TMP. Revisions to this policy would be brought before the Mission Bay [Community Advisory Committee] or its successor body, for approval.” A representative fist of possible strategies includes, among other things, increasing “project sponsor contribution to the Mission Bay [Transportation Management Association] to directly fund incremental, event-only service, which may include additional shuttle bus purchases and/or expanded hours of operation,” establishing “a partnership with a private shuttle provider for incremental, event-only service to and from satellite parking locations (if designated) or transit centers,” offering “special event ferry service to the closest ferry station to the project site (similar to the existing service provided between AT&T Park and Alameda, Marin and Solano Counties by Golden Gate Transit, Alameda/Oakland and Vallejo ferry service),” and providing “transit fare subsidies to event ticket holders.” Under the mitigation monitoring and reporting program, “If any mitigation and improvement measures are not implemented as required, OCII may, in conjunction with other entities listed above, pursue corrective actions including, but not limited to, the following: (1) a written notification and request for compliance; (2) withholding of permits; (3) administrative fines; (4) a stop-work order; (5) criminal prosecution and/or administrative fines; (6) forfeiture of security bonds or other guarantees; and (7) revocation of permits or other entitlements.”
The FSEIR analyzes transportation impacts based on the type of activity at the event center (no event, a convention event with 9,000 attendees, and a basketball game with 18,000 attendees) at various times of day. The impacts of these activities are evaluated under conditions without a San Francisco Giants (SF Giants) baseball game and conditions with an overlapping SF Giants game. The large event activity is evaluated under these conditions with and without implementation of the Muni TSR
The FSEIR identified significant vehicle traffic impacts at 11 of the 41 study intersections for the overall plan area, seven of which remain significant and unavoidable with mitigation. The FSEIR concludes further that without implementation of the Muni TSP, the proposed project would result in significant traffic impacts at several additional study intersections. With respect to transit, the FSEIR concludes that, with proposed mitigation including enhanced Muni transit service during overlapping events, the proposed project’s impacts on Muni would be less than significant under all conditions. Without implementation of the Muni TSP, however, “the proposed project would result in a substantial increase in transit demand that could not be accommodated by adjacent Muni transit capacity such that significant adverse impacts to Muni transit service” would occur during large arena events.
The FSEIR concludes that significant adverse impacts to regional transit services provided by Caltrain, Golden Gate Transit and the Water Emergency Transportation Authority (WETA) would occur under the basketball game scenario both with and without an overlapping SF Giants baseball game and that significant adverse impacts to BART would occur under the basketball game scenario with an overlapping SF Giants game. The FSEIR explains, “In order to accommodate the additional transit demand to the South Bay during weekday and Saturday evening conditions, one additional train car (average capacity of 130 passengers per car) on at least one inbound train per hour would be needed. For the weekday late evening period, two additional train cars (average capacity of 130 passengers per car) on at least one outbound train per hour would be needed. Alternatively, the transit demand could be accommodated within one special outbound train (total capacity up to 650 passengers) at the end of the basketball game, similar to the service currently being offered for SF Giants home games (two special outbound trains). [¶] In order to accommodate the additional transit demand to the North Bay, four additional Golden Gate Transit buses (40 passengers per bus) plus one ferry boat (250 to 320 passengers per boat) per hour, or alternatively seven additional buses per hour would need to be provided.” The FSEIR continues, “During the weekday late evening following the end of a SF Giants evening game, BART occasionally provides additional capacity to accommodate the SF Giants post-game demand. With overlapping events, additional capacity would be required to accommodate the combined BART East Bay transit demand.” The FSEIR indicates that additional regional transit services “would reduce or minimize the severity of the capacity utilization ex-ceedances for the regional transit service providers, and would not result in secondary transportation impacts” and adopts mitigation measures that require the project sponsor to work with the ballpark/Mission Bay transportation coordinating committee to coordinate with the regional transit providers to provide the needed additional transit service. Nonetheless, the FSEIR concludes that because “the provision of additional East Bay, South Bay, and North Bay service is uncertain and full funding for the service has not yet been identified,” implementation of additional transit service as a mitigation measure are uncertain and the impacts remain “significant and unavoidable with mitigation.”
The city adopted a statement of overriding considerations with respect to the significant impacts on identified intersections and on regional transit. On appeal, plaintiffs contend that the city erred in adopting a statement of overriding considerations for the transit and transportation impacts without adequately considering additional, feasible mitigation measures.
Under CEQA, an agency may approve a project with significant, unavoidable environmental impacts if it adopts a statement of overriding considerations finding that “particular economic, social, or other considerations make the alternatives and mitigation measures infeasible and that particular project benefits outweigh the adverse environmental effects.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1198 [24 Cal.Rptr.3d 543].) “[B]efore adopting a statement of overriding considerations, an agency must show that it has considered the mitigation measures and project alternatives identified in the EIR that would lessen the significant environmental effects.” (Id. at p. 1201.) The agency is not required to ‘“consider additional mitigation measures and project alternatives apart from those identified in an adequate EIR.” {Ibid., italics added.) Plaintiffs do not challenge the sufficiency of the ‘“overriding considerations” identified by the city and challenge only the adequacy of the underlying FSEIR.
(a.) The Muni TSP
Plaintiffs contend that the FSEIR improperly includes the Muni TSP as a component of the project rather than as a mitigation measure, so that the FSEIR fails to consider alternative feasible mitigation measures. The CEQA Guidelines define a ‘“project” as including “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment (CEQA Guidelines, § 15378, subd. (a).) A mitigation measure, by contrast, involves “feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment . . . .” (CEQA Guidelines, § 15041, subd. (a).)
In Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, 656, footnote 8 [167 Cal.Rptr.3d 382] (Lotus), this court observed, “The distinction between elements of a project and measures designed to mitigate impacts of the project may not always be clear.” In that case, the EIR prepared for a highway construction project described “ ‘Avoidance Minimization and/or Mitigation Measures’ ” that were “ ‘incorporated into the project to avoid and minimize impacts as well as to mitigate expected impacts’ ” to the root systems of old growth redwood trees adjacent to the highway project. (Id. at p. 650.) We explained, “[T]he use of ‘Cement Treated Permeable Base ... to minimize the thickness of the structural section, provide greater porosity, minimize compaction of roots, and minimize thermal exposure to roots from Hot Mix Asphalt paving’ might well be considered to define the project itself. It would be nonsensical to analyze the impact of using some other composition of paving and then to consider use of this particular composition as a mitigation measure. However, the same cannot be said of most of the ‘avoidance, minimization and/or mitigation measures’ here, such as the restorative planting and replanting, invasive plant removal, and use of an arborist and of specialized equipment. These are plainly mitigation measures and not part of the project itself.” (Id. at p. 656, fn. 8.)
Other cases have wrestled with this distinction as well. For example, in Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863, 882 [166 Cal.Rptr.3d 253], the court held that the imposition of a 10-cent fee as part of an ordinance restricting the use of disposable bags at retail stores was, “from the inception, ‘part of the project design’ which directly addressed the problem of single-use bags, a problem that preexisted the proposed project. It was not a ‘mitigation measure’ to try to alleviate some perceived difficulties in the original plan.”
Arguably, some components of the TSP might be characterized as mitigation measures rather than as part of the project itself. Any mischaracter-ization is significant, however, only if it precludes or obfuscates required disclosure of the project’s environmental impacts and analysis of potential mitigation measures.
For example, in Lotus, we concluded that the mischaracterization of mitigation measures as part of the project compounded a significant omission in the EIR: the failure to apply a standard of significance to impacts on the root systems of old growth redwood trees. (Lotus, supra, 223 Cal.App.4th at pp. 654-655.) We explained, “Absent a determination regarding the significance of the impacts to the root systems of the old growth redwood trees, it is impossible to determine whether mitigation measures are required or to evaluate whether other more effective measures than those proposed should be considered. Should Caltrans determine that a specific tree or group of trees will be significantly impacted by proposed roadwork, that finding would trigger the need to consider a range of specifically targeted mitigation measures, including analysis of whether the project itself could be modified to lessen the impact. [Citations.] . . . Simply stating that there will be no significant impacts because the project incorporates ‘special construction techniques’ is not adequate or permissible.” (Id. at pp. 656-657.)
Here, characterization of the Muni TSP as part of the project and not as a mitigation measure did not, as plaintiffs suggest, interfere with the identification of the transportation consequences of the project or the analysis of measures to mitigate those consequences. Unlike the situation in Lotus, the environmental impacts of the project on vehicle traffic and transit are fully disclosed in the FSEIR. The FSEIR includes analysis both with and without implementation of the Muni TSP and applies the same threshold standards to determine the significance of those impacts. By comparing the significance of the impact on local transit with and without the TSP, a reader learns that while implementation of the TSP will reduce impacts on Muni travel to a less than significant level, the impact without the TSP remains significant and unavoidable, even with alternative mitigation measures.
Plaintiffs suggest that by including the TSP in the project description the FSEIR conceals or fails to consider potentially significant impacts on Muni service outside the project area. In response to a comment, the FSEIR explains, ‘“[T]he project includes the provision of additional bus and light rail service to accommodate the transit demand associated with the event center, and this transit demand would be accommodated within the existing and proposed Muni service. On days without events, the additional transit demand generated by the proposed office and retail uses would also be accommodated within the planned transit service.” Substantial evidence supports this conclusion. In addition to the transit information discussed above, the FSEIR also analyzes the project’s impacts on 10 additional Muni lines throughout the city under the ‘“no event” and “convention event” scenarios and determines that the impacts will be less than significant. The data shows that under the convention event scenario, the project is expected to generate a total of 572 trips on the 10 additional Muni lines analyzed. With the additional rides, those lines would operate overall at 70 percent of capacity and no individual line would exceed 84 percent capacity. Under the basketball game scenario, there should be lesser impacts because the Muni TSP shuttle service provides “additional options to accommodate attendees traveling to and from the event center.” The Muni TSP was specifically “intended to avoid the possibility that special events would overwhelm the existing transit system.”
Despite the above, plaintiffs argue that the FSEIR is inadequate because it fails to consider whether the diversion of two streetcars from other lines, as provided for in the Muni TSP (in addition to the purchase of four new Muni streetcars), would cause significant impacts on the Muni lines from which those cars are diverted. Plaintiffs argue the FSEIR should have considered, as alternative mitigation, whether two additional Muni cars should be purchased rather than two cars diverted. Nothing in the record, however, suggests that diversion of two train cars from another line will cause significant impacts to that line. The FSEIR is not rendered inadequate by the failure to consider this entirely speculative environmental impact. (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26 [82 Cal.Rptr.2d 398] [“CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.”].)
Plaintiffs also argue that the FSEIR should have considered “alternate mitigation requiring the Warriors to pay for implementation of the TSP.” However, “ ‘ “CEQA does not require analysis of every imaginable alternative or mitigation measure; its concern is with feasible means of reducing environmental effects.” ’ ” (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 841 [29 Cal.Rptr.2d 492]; see Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1187 [30 Cal.Rptr.3d 738] [Mitigation measures “may be deemed sufficient if those measures are based on a reasonable plan of actual mitigation that the relevant agency commits itself to implementing.”].) The FSEIR determines that the Muni TSP will reduce impacts on local transit to a less than significant level. The FSEIR explains, ‘“San Francisco fully anticipates implementation of [the Muni TSP] and has identified sufficient funding to implement this plan.” The city has approved a Mission Bay transportation improvement fund in which project revenue will be earmarked to cover, among other things, implementation of the Muni TSP. Economic analyses contained in the record support the city’s determination that the project will generate $14.1 million in revenue for the city and exceed estimated city expenses by approximately $1.5 million.
Plaintiffs’ suggestion that the Muni TSP relies on ‘“an admittedly uncertain [funding] scheme” relies on a single statement in the record, taken out of context. The city did not admit that funding for the Muni TSP is uncertain. Rather, the SFMTA stated, in a letter to the OCII, that ‘“The SFMTA cannot unequivocally guarantee future funding for the TSP at the levels analyzed in the project description in perpetuity; nevertheless, I am confident the SFMTA will be able to deliver the proposed service for the following reasons: [¶] 1. In September 2015, an independent fiscal feasibility analysis of the project conducted by economic & planning systems and peer reviewed by Keyser Marston Associates, Inc., shows annual anticipated project-generated city revenues of more than $14 million. This projection is anticipated to more than cover the event center related operating costs as outlined in the attached updated pro forma. [¶] 2. The FY 19 operating costs, the first full year of the event center operations, are estimated at $8.2 million. Of this amount, the SFMTA estimates that $2 million from transit fares and parking revenues will be available to cover these costs. In addition, $3.4 million is projected to be available from incremental general fund baseline and parking tax mandated by the charter associated with the event center. The remaining $2.8 million is projected to be available through the Mission Bay transportation improvement fund (Fund), a reserve fund set aside by the board of supervisors from incremental general fund revenues associated with the event center. [¶] 3. In addition to the operating needs, the project requires capital investments totaling nearly $61.9 million of which $27.4 million is expected to be available from an in lieu transit impact development fee (TIDF) payment and general fund sources associated with the event center. The remaining $34.5 million will require financing that will be paid back from the Fund. Therefore, it is expected that the city and SFMTA will apply project-generated one-time and annual revenues to address these capital needs for the project without impacting SFMTA operations or other capital projects underway or planned by the city and SFMTA.” Nothing in this letter from SFMTA, or elsewhere in the record, suggests that the city will be unable to fund the Muni TSP as planned. Accordingly, the FSEIR is not inadequate because it fails to consider alternative funding for the Muni TSP.
Moreover, should a problem with funding the Muni TSP arise at some future date, the performance standards and alternative mitigation strategies identified in the TMP will require the project operators to mitigate impacts on local transit. For example, if the 45-minute Muni boarding standard is not met, the Warriors must employ additional strategies to mitigate the delay. These additional measures may include the Warrior’s funding the purchase of additional shuttle buses or contracting with private shuttle services to transport passengers.
(b.) Regional Transit Services (BART, Caltrain, Golden Gate Transit, WET A)
As set forth more fully above, the FSEIR determines that the project will have significant impacts on regional transit and identifies the additional regional transit service necessary to mitigate these impacts. The mitigation measures adopted in the FSEIR require the Warriors to “work with” the regional transit agencies “to provide” the necessary additional service.
Initially, we reject plaintiffs’ argument that the proposed mitigation measures are unenforceable and improperly defer mitigation. Although the mitigation measures call for cooperation in the provision of additional transit services, contrary to plaintiffs’ argument these mitigation measures do not “allow the Warriors’ owners to determine how much additional transit service is needed at a later date . . . without a performance standard in place.” The mitigation measures require the Warriors to gather data on transit use and to coordinate the provision of regional transit based on the information gathered. And, as noted above, the TMP imposes specific performance standards, including target auto usage and Muni boarding times. The mitigation monitoring and reporting program requires ongoing monitoring and reporting to the OCII and authorizes the OCII to take corrective action against the Warriors if mitigation measures are not implemented as required. Although there are no specific standards with respect to the capacity of regional transit carriers, if regional carriers should fail to provide additional capacity following arena events, automobile usage may be expected to exceed targeted limits, triggering the necessity of corrective action by the Warriors. The FSEIR observes that “[d]espite the lack of any guaranteed outcome,” the cooperative efforts of the agencies and the Warriors are expected to be successful ‘“based on past experience.” The FSEIR adds that “[t]he provision of additional regional transit service during special events is common in San Francisco.” Substantial evidence supports the city’s confidence that these mitigation measures will reduce the impacts on regional transit to a less than significant level.
Each of the impacted agencies has indicated a willingness to work with the coordinating committee to meet the transit demands and the record demonstrates a successful history of cooperation between the regional transit agencies. Caltrain and BART regularly provide additional transit service before and after SF Giants baseball games and special event ferries are provided between the ballpark and Alameda, Marin, and Solano Counties following games. In response to public comment, the FSEIR offers another example of how agencies are cooperating to reduce regional transit impacts: “[T]he city is working with BART on the Embarcadero-Montgomery capacity implementation plan study in a regionally coordinated approach to develop improvements to accommodate the current and increased ridership at the Montgomery Street and Embarcadero Muni/BART stations. The SFMTA and [San Francisco County Transportation Agency] are working with BART to develop concepts to increase platform capacity at these two stations, including a potential project to build new side platforms on the opposite side of the existing tracks. Matching funds for this study were provided by the SFMTA (Proposition K), the Golden State Warriors, and the San Francisco Giants.” (See Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 465 [160 Cal.Rptr.3d 1, 304 P.3d 499], citing § 21081, subd. (a) and CEQA Guidelines, § 15091, former subd. (b) (now subd. (a)(2)) [“CEQA . . . allows an agency to approve or carry out a project with potential adverse impacts if binding mitigation measures have been ‘required in, or incorporated into’ the project or if ‘[t]hose changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency.’ ”].)
Although a specific funding source has not been secured, there is substantial evidence that funding will be available to provide any additional transit service that may be required. As the chief planning and development officer at BART noted, a portion of the additional costs would be offset through farebox recovery. The FSEIR explains further that San Francisco funds “a large number of transportation improvements to local and regional transportation facilities. Funding for these improvements comes from a variety of sources including state and federal grants, tolls collected from Bay Area bridges, and a countywide ½-cent sales tax dedicated toward funding transportation improvements authorized under San Francisco’s Proposition K. The [Metropolitan Transportation Commission (MTC)], as the transportation planning, coordinating and financing agency for the nine-county San Francisco Bay Area, administers and distributes federal, state and regional moneys among the various regional transit operators. For example, MTC’s Core Capacity Challenge Grant Program commits $7.5 billion (including federal, state and regional funds) over 15 years to fund high-priority transit capital improvements to the region’s largest transit systems, including BART. The grant program will fund transit vehicle replacement fleet expansion, and key facility upgrades noted in the comments.” The record also includes a letter from the planning director of the MTC indicating that because the arena is located in a ‘“priority development area” it would qualify for consideration under the One Bay Area Grant program to which the MTC has “committed $320 million through 2017 (and $14.6 billion through 2040—the life of the plan), from federal surface transportation legislation.”
Finally, as noted above, the FSEIR requires that additional actions be taken to reduce impacts should the performance standards not be met. The identified options include, in addition to the provision of additional shuttle busses, providing special event ferry service to the closest ferry station to the project site (similar to the existing service provided by the SF Giants after baseball games). These strategies can be employed to mitigate impacts on regional transit in the unlikely event that some or all of the additional regional transit services identified cannot be provided.
Despite the reasonable certainty that these regional transit impacts will be mitigated, the FSEIR deems the impacts to regional transit remain significant and unavoidable because “full funding for the service has not yet been identified.” On appeal, plaintiffs fault the FSEIR for not considering alternative mitigation requiring the Warriors to guarantee funding for the regional transit service.
CEQA, however, does not require identification of a guaranteed funding source for mitigation measures specified in the EIR. (Santa Clarita Organization for Planning