In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011.  San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.  San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court.  It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.

In affirming the judgment in favor of the City, and rejecting all of SFLN’s arguments on appeal, the First District’s opinion contained a number of interesting points:

  • Under settled law, a program EIR like that for City’s Housing Element is properly “prepared on a series of activities that can be characterized as one large project and are related… [a]s individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways.” (CEQA Guidelines, § 15168(a)(4).)  A comprehensive program EIR can avoid multiple EIRs, simplify later environmental review, and consider broad “programmatic” issues at an early stage allowing greater flexibility to deal with basic issues and cumulative impacts.  The EIR’s level of specificity will correspond to that of the project at issue, and is governed by the “rule of reason” rather than the EIR’s “semantic label.”
  • The Housing Element Law, of course, seeks to assure cities will recognize their responsibilities to contribute to attaining the state housing goal, and requires the general plan housing element of each jurisdiction to include a housing needs assessment; resources and constraints inventory; inventory of land suitable for residential development; and a program to implement the element’s policies and achieve its goals and objectives. The element must identify actions to make sites available to meet the local government’s fair share of housing as developed through the regional housing needs assessment (known as “RHNA”) procedure to address the state’s shortage of affordable housing.  (Gov. Code, §§ 65580(a), 65584 – 65589.)
  • The City’s challenged 2009 Housing Element here had a specific mission under this important law: it examined the type, amount and affordability of new construction needed to meet the determination of the Association of Bay Area Governments (“ABAG”) that the City’s fair share of regional housing from January 2007 – June 2014 would be 31,190 units, i.e., 4,160 units per year.  Based on the RHNA, it sought to provide a “policy framework” to address housing needs for a range of income categories.  To this end, it focused on strategies to implement four “core housing values”: (1) prioritize permanently affordable housing; (2) recognize and preserve neighborhood character; (3) integrate planning of housing, jobs, transportation, and infrastructure; and (4) cultivate the City as a sustainable model of development.  As should not be surprising, given the clearly daunting task of realizing these “core values” in a large, dense and diverse city like San Francisco, the Housing Element acknowledged “tension” among its various housing goals, while providing objectives and policies to address the State’s goals and the City’s own pressing housing issues.
  • The Court first rejected SFLN’s claim that the Housing Element EIR improperly employed a year 2025 baseline, using future conditions projected by ABAG instead of existing conditions, in analyzing traffic and water impacts. CEQA provides that the environmental setting – i.e., existing physical environmental conditions in the project’s vicinity – normally constitutes the “baseline” against which a project’s environmental impacts are measured.  But conditions may fluctuate over time, and the rule for determining existing conditions is not inflexible.  Moreover, projected future conditions may be used as the sole baseline if the agency finds in its discretion based on substantial evidence that analyzing impacts with an existing conditions baseline would be uninformative or misleading to decision-makers and the public.  (Neighbors for Smart Nail v. Exposition Metro Construction Line Authority (2013) 57 Cal.4th 439, 451 – 452, 457.)
  • As a factual matter, the Court noted the EIR compared existing traffic conditions at 60 studied intersections (based on an expert traffic consultant’s actual observations of 2010 conditions) to projected traffic in 2025, and explained that while traffic is expected to worsen, the Housing Element itself does not generate new trips, but provides direction for how inevitable new residential development should occur, emphasizing affordability. The EIR’s water analysis similarly identified existing demand and analyzed whether Housing Element policies would result in a need for additional water beyond that provided by existing entitlements and resources; it used projections drawn from various existing plans and studies and properly concluded the Housing Element’s policies would not increase water demand beyond that assumed in the 2009 San Francisco Public Utility Commission’s Water Supply Availability Study (“WSAS”).  The Court held: “City was within its discretion to adopt a baseline calculation forecasting traffic and water impacts in 2025, rather than comparing the existing conditions with and without the Housing Element.”  A key factor in this analysis, per the Court, was that:  “The Housing Element… is not designed to induce population growth, and is distinguishable from cases where approvals of projects clearly would result in population growth in previously underdeveloped areas.”
  • Explaining its rationale for rejecting SFLN’s “baseline” arguments more specifically, the Court stated: “SFLN’s principal claim is that the Housing Element will lead to increased growth in the City with consequent environmental impacts.  This is not a baseline or project description argument.  It is a causal argument.  It is premised on the isolation of the increased-density policies from the causes of population growth, which are a multi-faceted product of births, deaths, migration, household size, labor force participation rates, and job growth over the next 20 years.  [¶]  Here, the City did not simply decline to consider the impacts by saying the growth was inevitable.  Rather, the City engaged in considerable discussion of projected growth and analyzed the traffic and water supply impacts based on these projections.  This is what CEQA requires.  [citations]  [¶]… A determination that an existing conditions analysis would be misleading or without informational value is primarily factual and must be upheld if supported by substantial evidence.  [citation]  The EIR analyzes likely future conditions in the context of current ones and concludes there will be no immediate increase in traffic or water demand in the short-term.  SFLN’s disagreement with the EIR’s analysis is insufficient to establish that the City abused its discretion in utilizing a future baseline.  [citation].”
  • The Court summarized its general view of the “baseline” issue, in the relevant context of a long-term general plan to accommodate inevitable population growth in a lawful, orderly manner, as follows: “It would be absurd to ask the City to hypothesize the impacts of a long-term housing plan taking hold immediately.  When an amendment to a general plan takes a long view of city planning, the analysis of the amendment’s impacts should do so as well.  [citation].”
  • In a terse, fact-specific, and somewhat ambiguous legal analysis (mixing CEQA’s “tiering” and “modified project” rules), the Court rejected SFLN’s specific contention that the EIR relied on the Housing Element’s maximum allowable density and height requirements as the baseline for its land use and aesthetic impacts analysis. It noted that the EIR “[c]ompar[ed] the existing environment to the changes proposed in the 2009 Housing Element” and determined that the incremental increases in residential development would not result in significant impacts in those areas.  But it added that an EIR need not always compare a project’s impacts to the existing physical environment, and “where a local agency has already prepared a program EIR, it need not prepare a subsequent one in connection with later activities unless those activities would have effects that the program EIR did not examine.  (CEQA Guidelines, § 15168[ ](c)(1).)  The relevant question is whether new significant environmental effects or a substantial increase in the severity of previously identified significant effects will result from a substantial change to the project.  (§ 21166; CEQA Guidelines, § 15162.)  Comparison to theoretical impacts is generally necessary to answer this question.”  It then seemed to retreat somewhat from reliance on this analysis by adding that the baseline used by the City “is not hypothetical, [citation], but based on observation of existing conditions” and that “projections of future development, to measure likely impacts, derive from this baseline.”  In any event, what is clear from the opinion is that Appellant SFLN decisively lost on all of its baseline arguments.
  • The Court also rejected SFLN’s challenges to the EIR’s impact conclusions under CEQA’s applicable deferential standard of review, noting that: “An agency decision to not identify an impact as significant is reviewed for substantial evidence.  (California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 281 – 282.)”  Rejecting SFLN’s contrary contention, the Court held that “[e]limination of potential impacts… is not the standard” for finding a project impact to be “less than significant” and that “[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 could be better mitigated.”  (Quoting Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 900.)  The opinion’s application of this law in its further, extended and fact-bound discussion of the EIR’s land use and visual impacts analysis unsurprisingly culminated in deference to the City’s “less than-significant” impact conclusions in these areas.
  • The Court quickly dispatched SFLN’s contention that the EIR failed to disclose potentially significant traffic impacts of three other “in-the-pipeline” development projects – Treasure Island, Candlestick Point – Hunters Point, and Parkmerced. Per the Court:  “[T]he City was not required to study these in-the-pipeline projects as they are already subject to their own CEQA and EIR process.”  Moreover, and in any event, “the pipeline projects were included in the cumulative 2025 traffic conditions[,]” as explained earlier in the opinion.  “[T]he EIR justifies its conclusion of no significant [traffic] impact, explaining that although some policies could result in certain areas experiencing greater levels of congestion, policies that encourage a reduction of vehicle miles traveled – such as locating housing near jobs and transit – could improve projected 2025 conditions over what would be expected without those policies.”
  • Relying in part on important fundamental premises unique to this planning context, and noted throughout its opinion – that “the City’s projected population increase is not due to the changes in the Housing element” which is “a growth-accommodating rather than growth-inducing measure” – the Court also rejected SFLN’s challenges to the EIR’s water supply impacts analysis. The opinion contains an extended and detailed discussion of the EIR’s analysis and its conclusions that changes to the Housing Element would not significantly impact water demand or supply.  Per the court:  “The EIR’s analysis of water supply impacts was appropriate for a general plan or program EIR, in that it provided decision makers with sufficient analysis to consider the environmental consequences of the revisions.  [citation].”  Addressing the principles enunciated in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 434, the Court held:  “The Housing Element, as a policy document for implementing change, is not required to establish a likely source of water . . . . [¶]  In sum, the EIR adequately addresses the reasonably foreseeable impacts of supplying water to the future housing proposed by the Housing Element.  The City reasonably relied on the information in the WSAS, and the EIR’s finding that impacts to water would be less than significant is supported by substantial evidence.”
  • The Court held recirculation of the Final EIR was not required by the post-publication, but pre-certification, issuance of a memorandum updating the WSAS and indicating a water deficit anticipated after 2030 could come much sooner (i.e., between 2013 and 2018) due to decreases in the water available from three creeks. The Court found the memorandum was “comprehensively address[ed]” by the Planning Commission in the Final EIR, and the City did not abuse its discretion in determining recirculation was not required.
  • The Court rejected SFLN’s argument that the EIR failed to analyze the allegedly growth-inducing impacts on population from the Housing Element’s “serving regional goals” of ABAG’s Land Use Policy Framework. Again, the Court pointed out “the Housing Element is not a growth-inducing plan” but, rather, “serves as a growth accommodating plan for the inevitable population increase.”  The EIR’s treatment of designated Priority Development Areas (“PDAs”) comprising less than 5% of the Bay Area’s total land area, but potentially accommodating over half its projected housing growth to 2035, was appropriate.  Viewing this “regional impacts” argument as a disagreement over the wisdom of public policy, the Court noted “the EIR identified the impacts of its policies encouraging residential development along transit corridors that is consistent with ABAG’s regional smart growth strategies” and held “SFLN’s disagreement with this analysis is insufficient to establish that the City abused its discretion in determining that the Housing Element is consistent with the Land Use Policy Framework and impacts related to land use conflicts are less than significant.”
  • The Court held the EIR considered a range of reasonable project alternatives, and rejected SFLN’s arguments that it failed to adequately consider feasible reduced-density alternatives and additional mitigation measures for transit impacts. An EIR need not consider every conceivable project alternative; agencies are guided by “feasibility,” and the “rule of reason,” which requires the EIR set forth only those alternatives necessary to permit a reasoned choice, and analyze in detail only those the agency determines could feasibly attain most of the project’s basic objectives (as well as a “no project” alternative).  Here, the EIR analyzed three alternatives in depth, and scoped out three others as infeasible, and SFLN failed to meet its burden to demonstrate this did not amount to a reasonable range or that a particular potentially feasible alternative was excluded.  Citing Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 1811, the Court also pointedly rejected SFLN’s contention “that [as a matter of law] consideration in the EIR only of a proposed project and a no project alternative is inadequate[.]”
  • Addressing SFLN’s arguments regarding the EIR’s analysis of the sole significant effect it identified – a potential cumulative effect on transit – the Court found the alternatives analysis was adequate and provided decision makers with sufficient information about feasible alternatives. The City’s responses to comments explained why SFLN’s proposed “RHNA-focused reduced-density” alternatives would not reduce transit impacts, added nothing meaningful to the analysis, and were infeasible.  Accordingly, “the City’s choice of alternatives was not manifestly unreasonable.”  Finally, and similarly, the Court held substantial evidence supported the EIR’s assessment and rejection (as infeasible) of SFLN’s proposed transit impact mitigation measures in its responses to comments.

As suggested by this post’s title, the “growing pains” experienced by lead agencies from population increases in California are viewed by the courts in the context of CEQA litigation as inevitable.  Planning documents – and particularly housing elements – must address and accommodate this growth, and CEQA challenges to required jurisdiction-wide planning updates that are framed in the inapposite terms of arguments generally aimed at individual development projects will not likely succeed in court.  Most certainly, such litigation will not succeed in stopping population growth or the need to accommodate and plan for it.  As the Court aptly noted, the causes of such growth are multi-faceted, but they do not include – and should not be conflated or confused with – the planning policies that the law wisely requires to deal with their effects.



Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit