In a partially published opinion filed September 20, 2023, the First District Court of Appeal (Div. 3) affirmed the Alameda County Superior Court’s judgments denying writ petitions in three partially consolidated CEQA actions challenging the 2021 project/program EIR for the Comprehensive Parnassus Heights Plan. Yerba Buena Neighborhood Consortium, LLC, et al v. Regents of the University of California/San Franciscans for Balanced and Livable Communities v. Regents of the University of California (2023) 95 Cal.App.5th 779.
The new plan drew fire from neighborhood groups due to UCSF’s “change of heart” since its 2014 long-range development plan (2014 LRDP); it presents a “thorough rethinking” of the 107-acre Parnassus campus’s design that increases building space 50% – from 4 to 6 million gross square feet (gsf) – and adds a new hospital and over 200 new hospital beds while also adding other new buildings and substantially upgrading still other aging buildings and infrastructure, necessarily entailing the demolition of numerous historic structures to make room. The goal is to “re-envision and revitalize” the neglected Parnassus campus to retain UCSF’s status as a leading and “world-renowned medical complex, research center, and professional school.”
In the published portions of its opinion, discussed further below, the Court of Appeal held: (1) the EIR considers a reasonable range of alternatives; (2) the EIR improperly declines to analyze public transit impacts, but the error is not prejudicial; (3) the EIR does not need to analyze visual impacts, which are deemed not significant as a matter of law under Public Resources Code § 21099(d)(1); (4) the EIR is not required to adopt mitigation preserving historically significant buildings; and (5) the EIR’s wind impacts mitigation measure has a sufficiently specific performance standard.
The Published Portions of the Court of Appeal’s Opinion
The EIR considered five alternatives in detail (including two “no-project” alternatives) and dismissed three others without in-depth analysis for failure to satisfy project objectives. Applying CEQA’s “rule of reason” requiring an EIR to “set forth only those alternatives necessary to permit a reasoned choice” (CEQA Guidelines, § 15126.6(f)), the Court held petitioners failed to satisfy their burden to show the EIR’s alternatives “are manifestly unreasonable and . . . do not contribute to a reasonable range[.]” (Citing Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 703.)
The EIR’s multiple project objectives aim to enhance the campus’s educational, research and clinical functions by fostering collaboration and facilitating interdependence and connectivity of the uses in close proximity, and to expand inpatient capacity while addressing severe space constraints. The plan’s primary environmental impacts are those associated with large building construction and increasing overall campus development, including wind hazards from tall building construction, construction noise, harms to historical resources (i.e., demolition to make room for new construction), and air quality impacts.
Per the Court, EIR’s alternatives provide a range of different amounts of new development: none in the no-development alternative, a little in the 2014 LRDP alternative, a medium amount in the Reduced Project alternative, and a large amount in the remaining alternatives.” In addition to this “quantitative variety,” the EIR’s alternatives address the plan’s environmental harms: for example, the Reduced Project alternative preserves all architecturally significant buildings and reduces wind hazards by reducing the new hospital’s size and height, and also reduces air quality and noise effects, as does the no-growth 2014 LRDP alternative. In addressing these and the other alternatives, the Court held “the considerable variation among these alternatives and their differing approaches to addressing environmental harms are sufficient to foster informed decision making and public participation, as required by CEQA.”
Significantly, the Court rejected the argument that the analysis was faulty for failing to consider an offsite alternative for the new hospital, holding CEQA does not require consideration of such an alternative to a project, let alone a project component (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 993), and noting that substantial evidence supported the EIR’s rejection of such an alternative as inconsistent with the plan’s fundamental objectives given their emphasis on “collaboration among those involved in clinical care, research, and education.”
Public Transit Impacts
In the face of substantial evidence that the plan might have a significant impact on public transit service near the campus, the Court held the EIR errs in disclaiming an obligation under CEQA to discuss ridership impacts, capacity, and delays, and in relegating the same to a brief appendix discussion “for informational purposes only.” (See, e.g., Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, 13.) Nonetheless, the Court held “the error was not prejudicial because the EIR and the appendix, taken together, contain sufficient information about transit impacts to serve the EIR’s function as an informational document, especially in light of the CEQA guidance regarding the transportation impacts of infill development near major traffic stops.” As distinct from vehicle traffic delays, which do not constitute a significant impact under CEQA, an EIR should discuss a project’s impacts on public transit when relevant. (CEQA Guidelines, § 15064.3(a); Pub. Resources Code, § 21099(b)(3).) The EIR’s error in not doing so here is harmless, however, “for reasons peculiar to the assessment of transit impacts in ‘transit priority areas’” – areas, like the campus, “within one-half mile of a major transit stop” (Pub. Resources Code, § 21099(a)(7)) – which are generally “presumed to cause a less than significant transportation impact.” (CEQA Guidelines, § 15064.3(b).) The Court also summarily rejected petitioners’ related argument that the EIR’s VMT analysis was inadequate for failing to analyze alleged indirect impacts on VMT from transit delay, finding the argument speculative and contrary to substantial record evidence supporting the opposite conclusion.
The Court had little trouble rejecting petitioner’s argument that the EIR improperly failed to adopt feasible mitigation – namely, preservation and repurposing of buildings – that would avoid the plan’s demolition of several historic structures eligible for listing in the state and national registers. The Reduced Project alternative that would have preserved the structures was rejected because it did not fully achieve the project’s objectives, and the EIR considers the adverse impacts from demolition significant and unavoidable. Per the Court, petitioner’s argument that “preserving the buildings is feasible because they are not beyond repair” lacks merit because it “takes too narrow a view of the concept of ‘feasibility.’” CEQA broadly defines a feasible mitigation measure as one “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Citing and quoting City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 363.) Per the Court: “Given this broad definition, feasibility is ultimately a policy judgment, not a narrowly technical assessment, and one we must review with deference. [Citing California Native Plant Society, 177 Cal.App.4th at 1001.] An EIR is not required to adopt a mitigation measure or alternative simply because doing so would reduce a significant impact.”
The Court noted that while “the impact on historic buildings could be eliminated by canceling the portions of the Plan” requiring their demolition, “an alternative that ‘is impractical or undesirable from a policy standpoint’ may be rejected as infeasible’” (Quoting California Native Plant Society, at 1001.) The Regents thus permissibly rejected the Reduced Project Alternative and adopted a statement of overriding considerations with respect to the significant, unmitigated impact on cultural resources.
The Court rejected petitioner’s attacks on the EIR’s analysis of the plan’s impacts to views from surrounding neighborhoods because Public Resources Code § 21099(d) (1) mandates that “any aesthetic effect of the plan must not be considered significant .” Interpreting the statute’s scope under de novo review, the Court held the plan was an “employment center project” that is located on commercially-zoned property under the statute’s relevant definitions, rejecting petitioner’s arguments that the plan was not a project covered by the statute. The Legislature did not “carve out university-owned property from the incentives it was establishing [through the statute] to promote infill development” and “the EIR [thus] properly concluded the aesthetic effects of the Plan may not be considered significant environmental impacts.”
Wind Impacts Mitigation Issues
Finally, the Court rejected petitioner’s argument that the details of the EIR’s wind impacts mitigation were improperly deferred without a sufficiently specific performance standard. The EIR’s threshold of significance, taken from the City’s Planning Code, is the “wind hazard criterion” of “creation of winds sustained at a speed of 26 miles per hour for one full hour of the year.” The EIR found that New Hospital could cause significant and unavoidable impacts without mitigation.
The mitigation adopted to mitigate such impacts “required wind-tunnel testing of the design of any new building higher than 80 feet, evaluated under conditions representative of anticipated Plan buildout.” If the testing indicates increased hours of exceedance of the significance threshold over then-existing conditions, UCSF must “work with the wind consultant to identify feasible mitigation strategies, including design changes (e.g., setbacks, rounded/chamfered building corners, stepped facades, etc.), to eliminate or reduce wind hazards to the maximum extent feasible.” If UCSF finds mitigation strategies infeasible because “they would unduly restrict the proposed building’s space program, result in operational deficiencies, and/or [impose] substantially higher costs, the building(s) may nonetheless be approved provided that the project incorporates wind-speed reduction strategies to the maximum feasible extent, as determined by UCSF in consultation with the wind consultant. Wind speed reduction strategies could also include features such as landscaping, localized installation of porous/solid screens, installation of canopies along building frontages, and the like.”
The Court readily held that UCSF properly deferred specific details of its formulated mitigation because design planning for new hospital was a work in progress, and its specific building design was still being developed and subject to change. It found the issue whether the mitigation sufficiently required compliance with the identified performance standard – i.e., mitigating new exceedances of the 26 mph standard in pedestrian areas – to be a closer call, but ultimately upheld the measure as articulating a sufficiently specific performance standard because it defined feasibility in sufficiently concrete terms referring to the building’s space program, operational inefficiencies, and substantially higher costs.
Considered in context, the measure is more specific than a similar measure that was found inadequate in East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, and differs enough from the measure rejected there to “articulate a ‘reasonably clear and objective measure of compliance’ and adequately inform the public where the balance between wind mitigation and commercial functionality has been struck.” (Quoting East Oakland, at 1274.) Further, the measure did not have to mitigate the wind impacts to a less-than- significant level, as the Regents adopted a statement of overriding considerations with respect to wind impacts; while these factors did not excuse the obligation to establish a specific performance standard, they did change the nature of the standard required, which did not need to “specify an inflexible goal,” but only “describe in a reasonably clear and objective manner what the university will and will not do to reduce the wind impacts of the Plan’s buildings.”
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