Filed 12/20/16 Certified for Publication 12/22/16 (order and unmodified opn. attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE COMMITTEE FOR
RE-EVALUATION OF THE T-LINE
LOOP, et al., A147498
Plaintiffs and Appellants,
(San Francisco County
v. Super. Ct. No. CPF-14-513887)
SAN FRANCISCO MUNICIPAL
TRANSPORTATION AGENCY, et al.,
Defendants and Respondents,
MITCHELL ENGINEERING,
Real Party in Interest.
BY THE COURT:
It is ordered that the opinion filed herein on November 29, 2016, be modified as
follows:
1. On page 18, the fourth sentence, beginning “In any case,” is replaced with:
“The Committee does not fairly summarize the evidence in the
administrative record that supports the City‟s decision.”
2. On page 18, the text of footnote 16 is replaced with:
“In its reply brief on appeal, the Committee claims that it timely objected to
these documents „being considered as “substantial evidence” for the truth of their
contents.‟ The Committee objected below „to the “judicial notice” or admissibility
1
or other consideration of the contents, truth, credibility, relevance, interpretation,
enforceability and/or legal significance of any of the documents included in the
Record of Proceedings.‟ In arguing the objection at trial, counsel for the
Committee stated, „while we have no objections to the materials lodged by the
City or the materials that were included on our own record obviously, [¶] I did at
least want to offer the [objection] to emphasize the point that just because it‟s in
this record does not mean that it‟s entitled to any particular evidentiary weight.‟
The trial court overruled the objection, explaining, „There is no basis for [the
Committee‟s] request that the Court disregard the entire administrative record. As
in any CEQA action, this Court must evaluate and review the administrative
record to determine whether the administrative record reflects compliance with
CEQA, and whether the administrative record supports the actions of the agency
that approved the project.‟ The Committee does not challenge the trial court‟s
evidentiary ruling on appeal.”
The petition for rehearing is denied. This modification does not change the
judgment.
Dated: _______________________ ________________________________
Kline, P.J.
2
Filed 11/29/16 (unmodified version) Certified for Publication 12/22/16 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE COMMITTEE FOR
RE-EVALUATION OF THE T-LINE
LOOP, et al., A147498
Plaintiffs and Appellants,
(San Francisco County
v. Super. Ct. No. CPF-14-513887)
SAN FRANCISCO MUNICIPAL
TRANSPORTATION AGENCY, et al.,
Defendants and Respondents,
MITCHELL ENGINEERING,
Real Party in Interest.
In 2014, the San Francisco Municipal Transportation Agency (Muni) approved a
contract to install the last 900 feet of light rail line needed to complete a partially
constructed “Loop” around a city block in the Dogpatch neighborhood of San Francisco.1
The Loop—bounded by Third, Illinois, 18th and 19th Streets—will allow trains on the T-
1
The administrative record describes the neighborhood: “Dogpatch is the Central
Waterfront area of San Francisco, bordering Mission Bay to the north and Potrero Hill to
the west. The historic neighborhood contains some of the city‟s oldest residential and
industrial developments, many of which have been rezoned to accommodate a mix of
uses. . . . [¶] While some of the industrial and maritime character of the neighborhood
remains, the Dogpatch will continue to densify. Developers have been constructing new
residential units and offices in the area at a fast pace.”
1
Third light rail line to turn around to meet service needs for special events and peak travel
periods. Track for the Loop on Third Street was laid more than 10 years ago, and
operates as part of the T-Third line; spur track was laid on most of 18th and 19th Streets
between Third and Illinois when the T-Third line was constructed. In approving the 2014
contract, Muni authorized the construction of light rail line on Illinois Street and parts of
18th and 19th Streets to connect the existing spurs.
Plaintiffs filed suit to stop construction of the Loop, claiming that Muni failed to
comply with CEQA.2 When Muni‟s Board of Directors approved the contract to
complete the Loop, it relied in part on an environmental impact report that was certified
in 1998 (the FEIR, discussed further below) in connection with plans to connect the
southeastern portion of San Francisco to the rest of the city. It also relied on statements
by the San Francisco Planning Department that no further assessments or environmental
impact reports for the project were required under CEQA. On appeal, Plaintiffs the
Committee for Re-Evaluation of the T-Line Loop, William Schwartz and Richard Weiner
(collectively, the Committee) claim that Muni, the Muni Board of Directors, Muni‟s
Director of Transportation, and the City and County of San Francisco (collectively, the
City) abused its discretion under Public Resources Code section 21151 by failing to
conduct a new CEQA analysis and instead relying on the 1998 environmental study,
which, according to the Committee, did not analyze the Loop. The Committee also
claims that even if the 1998 study did analyze the Loop, the City abused its discretion
under Public Resources Code section 21166 by not requiring supplemental CEQA
analysis examining conditions as they existed in 2014. We conclude that substantial
evidence supports the City‟s determination to proceed under Public Resources Code
section 21166 rather than section 21151. We also conclude that substantial evidence
supports the City‟s determination that no further environmental impact report for the
Loop was required. Consequently, we find no abuse of discretion, and we will affirm.
2
The California Environmental Quality Act, Public Resources Code section 21000
et seq.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Third Street Light Rail Project Is Approved
In the 1990‟s, Muni‟s predecessor agency proposed to connect the southeastern
part of San Francisco to the rest of the city by means of the Third Street Light Rail
Project (the Project), which would link the Visitacion Valley/Little Hollywood and
Bayview Hunters Point neighborhoods with Chinatown, Downtown, and South of
Market.3 The Project was divided into two phases: the Initial Operating Segment, from
the southern border of the city, along Third Street, past the Caltrain Station at King Street
to the Embarcadero; and the New Central Subway, from the Caltrain Station at King
Street to Chinatown.
In 1998, the San Francisco Planning Department and the Federal Transit
Administration published the Third Street Light Rail Project Final Environmental Impact
Statement/Final Environmental Impact Report (FEIR) under CEQA and the National
Environmental Policy Act (NEPA).4 The FEIR discussed both phases of the Project, but
at different levels of detail. The FEIR stated that the two phases were related but distinct,
and “subject to separate advancement decisions on separate schedules.” Preliminary
engineering had been conducted for the Initial Operating Segment, but not the New
Central Subway. Accordingly, the FEIR evaluated impacts and alternatives for Initial
Operating Segment, but provided only “planning-level information with less engineering
3
When the Third Street Light Rail Project was first proposed, the San Francisco
Municipal Railway was the project sponsor. As the result of Proposition E, passed by the
voters in November 1999, the San Francisco Municipal Transportation Agency (Muni)
was created, consolidating the San Francisco Municipal Railway and the Department of
Parking and Traffic. (https://www.sfmta.com/about-sfmta/our-history-and-fleet/history-
sfmta [as of Nov. 29, 2016].)
4
CEQA calls for the preparation of an environmental impact report (EIR) (Pub.
Resources Code, § 21061). NEPA, 42 United States Code section 4321 et seq., calls for
the preparation of an environmental impact statement (EIS). (See 42 U.S.C. § 4332.)
The FEIR in this case is a “combined NEPA/CEQA document,” as authorized under
CEQA and NEPA, which provide for cooperation between state and federal agencies in
the environmental review of projects, including the preparation of joint documents. (Pub.
Resources Code, §§ 21083.6, 21083.7; 42 U.S.C. § 4332.)
3
detail about the impacts and alternatives” for the New Central Subway, which would be
further analyzed in the future.5
The FEIR describes the 5.4-mile-long Initial Operating Segment as composed of
six smaller segments of light rail line running generally south to north, with Segment 1
beginning near the southern border of San Francisco. Segment 4 runs along Third Street
from Kirkwood Avenue north to 16th Street, and includes a “short-turn loop from Third
[Street] following 18th, Illinois, and 19th Streets,” which would allow the extension of an
existing line to serve Mission Bay and provide an area for two 2-car trains to lay over.
The San Francisco Planning Commission certified the FEIR as objective,
complete, and in compliance with CEQA and the CEQA Guidelines in December 1998.6
B. The Initial Operating Segment, Including Part of the Loop, Is Constructed
Anticipating construction of the Initial Operating Segment, in August 2000 the
San Francisco Board of Supervisors (Supervisors) approved a resolution restricting turns
and eliminating parking on Third Street. In April 2001, the Supervisors approved a
resolution eliminating parking on 18th Street, 19th Street, and Illinois Street, where the
Loop was to be constructed.7 By 2003, construction of the Initial Operating Segment was
5
The Central Subway is now under construction and is scheduled to begin service
in 2019. ( [as of Nov. 29, 2016].) It
is not at issue in this appeal.
6
The CEQA Guidelines are found in California Code of Regulations, title 14,
sections 15000-15387. Our Supreme Court “has not decided „ “whether the Guidelines
are regulatory mandates or only aids to interpreting CEQA.” ‟ (Committee for Green
Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 48, fn. 12.)”
(California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62
Cal.4th 369, 381, fn. 7.) “At a minimum, however, courts should afford great weight to
the Guidelines except when a provision is clearly unauthorized or erroneous under
CEQA.” (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 391, fn. 2.)
7
In a footnote, the Committee claims that the City requested judicial notice of this
2001 resolution, and that the request is “subject to objection” because the City has
“offered no evidence purporting to explain why that action was taken or linking it to the
proposed Loop Project.” (Bolding and underlining in original.) Points raised on appeal
must be stated under separate headings (Cal. Rules of Court, rule 8.204(a)(1)(B)), and we
4
completed, including Segment 4 along Third Street and much of the Loop. Loop turnouts
from Third Street were built, with track extending two-thirds of the way east from Third
Street to Illinois Street on 18th and 19th Streets, but the Loop was not fully completed
due to budget constraints.8 Construction of the rest of the Loop was deferred because
“the bulk of the increased service the Loop was intended to accommodate is not needed
until the beginning of the operation of the Central Subway planned for 2019.” The Initial
Operating Segment began service as the T-Third Line in 2007.
C. Muni Receives a Federal Grant to Complete the Loop
In 2013, the Federal Transit Administration awarded Muni a $10 million grant
under the Transportation Investment Generating Economic Recovery (TIGER) program
to fund the completion of the Loop as well as other roadway and surface improvements in
the vicinity of Mission Bay.
In connection with applying for the grant, in 2012 Muni prepared a memorandum
to the San Francisco Planning Department, seeking the department‟s concurrence that
CEQA Guidelines sections 15162 through 15164 did not require the preparation of a
Subsequent EIR, a Supplement to the FEIR, or an Addendum to the FEIR for the Loop to
decline to consider this issue, which the Committee raises only in a footnote. (Sabi v.
Sterling (2010) 183 Cal.App.4th 916, 947 [“Footnotes are not the appropriate vehicle for
stating contentions on appeal.”].) In any event, the resolution is part of the administrative
record that was prepared by the Committee and certified by the City.
8
In a footnote in its reply brief on appeal, the Committee claims there is “no
competent or credible evidence to support this „funding constraint‟ assertion.” The
Committee refers us to its “Objections to Unauthenticated Evidence and Inadmissible
Hearsay,” filed in the trial court. The Committee objected below to what it characterized
as the City‟s request for judicial notice of the administrative record, including these
documents, but conceded that its objections went to the weight of the evidence rather
than the admissibility. The trial court overruled the objection, explaining that, “There is
no basis for [the Committee‟s] request that the Court disregard the entire administrative
record. As in any CEQA action, this Court must evaluate and review the administrative
record to determine whether the administrative record reflects compliance with CEQA,
and whether the administrative record supports the actions of the agency that approved
the project.” The Committee does not challenge the trial court‟s evidentiary ruling on
appeal.
5
be completed. In the memorandum, Muni stated that the environmental impacts of the
Loop had been analyzed in the FEIR; there had been no changes to the Loop design since
certification of the FEIR; part of the Loop had been built; two new housing developments
had been built on 18th Street since certification of the FEIR; several new housing
developments had been built along Third Street and in the “near vicinity” since
completion of the T-Third Line; and the new residential and commercial developments
“were assumed to occur in the area as part of the background growth in the [FEIR]
analysis.”9 Nine days later, the Planning Department responded, “The Project [i.e., the
Loop] was evaluated in the [FEIR], certified by the San Francisco Planning Commission
on December 3rd, 1998. No further assessment is required.”
On the federal side, to determine whether NEPA required a supplemental
environmental impact statement, an environmental assessment of the Loop was
conducted to update the analysis in the FEIR.10 The Federal Transit Administration
reviewed the environmental assessment, as well as comments from the public (including
comments from appellants) and responses to those comments, and in July 2013 it issued a
“Finding of No Significant Impact,” in which it concluded that Muni “incorporated
mitigation measures into the project to reduce or eliminate potentially adverse
environmental impacts on traffic, air quality, noise and construction.” With this finding,
9
The FEIR anticipated a 39 percent increase in population and a 35 percent
increase in employment in the Third Street Corridor by 2015. “Much of the population
and employment growth will result from development in Mission Bay which is projected
to include a new University of California campus, research and development functions,
over 6,000 dwelling units, a cineplex, a 500-room hotel, and commercial uses. Other
development proposals in the Corridor, such as the new Giants ballpark (Pacific Bell
Ballpark), Candlestick Mills Mall and the new 49ers stadium, San Francisco Executive
Park development, and Hunter‟s Point Reuse plan would contribute to this growth.”
10
Under NEPA, an environmental impact statement that is more than five years
old generally requires a careful reexamination to determine whether a supplement is
needed. (Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark (9th Cir. 1983)
720 F.2d 1475, 1480 [citing Council on Environmental Quality, Forty Most Asked
Questions Concerning CEQA’s National Policy Act Regulation, 46 Fed.Reg. 18026,
18036 (March 23, 1981)].)
6
the Federal Transit Administration determined that NEPA did not require the preparation
of a new environmental impact statement for the Loop. (See 40 C.F.R. §§ 1501.4(e)(1),
1508.13.)
The TIGER grant agreement was signed by Muni and the federal government in
August 2013.
D. Muni Prepares to Complete the Loop
Once the grant agreement was signed, the project design for the Loop was
finalized. In August 2014, Muni prepared another memorandum to the Planning
Department about the Loop, asked the Department to review the Loop‟s “environmental
clearance” under CEQA, noting that it had been nearly two years since the Planning
Department‟s October 2012 statement that no further assessment was required. In the
memorandum, Muni stated that “[t]he major change in land use plans that has occurred in
the vicinity of the Loop since 2012 is the proposal to construct an 18,000 seat arena for
the Golden State Warriors basketball team at the northeast corner of 3rd and 16th
streets.” The memorandum explained that the arena would likely increase demand for
transit, and that the Loop would allow increased service in the high-demand area between
Market Street and the arena, as well as allowing “storage of light rail transit vehicles just
south of the arena prior to the end of arena events for quick response to post-event surges
in transit demand.” The memorandum stated that storage could be detrimental to traffic
flow on southbound Illinois Street, where traffic volumes were generally light, and that
storage would likely be minimal during the periods when traffic was heavy. On August
27, 2014, Muni received written confirmation from the Planning Department that the
Loop “is still covered by the Third Street Light Rail FEIR. No additional review is
necessary.”
On September 16, 2014, the Muni Board of Directors adopted a resolution
authorizing the execution of a contract for physical construction of the Loop. The
resolution describes the Loop as “a project to install trackwork” around a city block “to
create a short line loop” for the T-Third Line, that will allow trains to turn around to meet
service needs for special events, such as baseball games, and during peak periods. The
7
resolution stated that the Loop “was initially reviewed and analyzed in the [FEIR], which
the City certified in 1998; on October 12, 2012, the San Francisco Planning Department
determined that no further assessment or supplemental or subsequent EIR was required
under [CEQA] for the [Loop] under CEQA Guidelines Sections 15162(a)-(d), Section
15163(a)-(e) and 15164(a)-(e); and on August 27, 2014, the Planning Department further
determined that there were no circumstances occurring since October 2012 that would
require additional environmental review under the above-referenced CEQA Guidelines.
The [Muni] Board relies on the [FEIR], the above mentioned Planning Department
determinations, and the administrative record for purpose of the actions set forth in this
Resolution; these documents and determinations are incorporated herein by reference.”
E. The Committee Files a Mandamus Action to Prevent Completion of the Loop
Ten days later, the Committee filed a Petition for Writ of Mandate and Complaint
for Injunctive and Declaratory Relief (Petition) in the superior court, alleging that the
City failed to comply with CEQA in approving the Loop. After the superior court denied
the Committee‟s request for a preliminary injunction preventing physical work on the
Loop, the Committee appealed the denial to this court. (The Committee for Re-
Evaluation of the T-Line Loop, et al. v. San Francisco Municipal Transportation Agency,
et al., Case No. A144340.) The Committee filed a petition for writ of supersedeas in that
appeal, and requested an immediate stay of construction on the Loop. We granted the
writ petition and issued the requested stay.
While the appeal was pending, the superior court held a trial on the merits of the
Petition. In December 2015 the superior court denied the Petition on the merits, and on
January 19, 2016, judgment was entered for the City. In ruling that the City had
complied with CEQA, the superior court concluded that the Loop was included in the
Initial Operating Segment that was discussed and analyzed in the FEIR, and that the City
did not abuse its discretion in deciding not to prepare a new EIR. The court concluded
that substantial evidence supported the City‟s decision, and that neither the passage of
time from 1998 to 2014, nor additional development in Dogpatch during that period,
8
required a new EIR. We then dismissed the appeal of the preliminary injunction as moot
and dissolved the stay.
The Committee appealed the superior court‟s denial of the Petition, and filed a
new petition for supersedeas and request for a stay in this appeal, which we denied.
DISCUSSION
The Committee asks us to review the City‟s determinations that the Loop was
reviewed in the FEIR and that further environmental analysis of the Loop was not
required under CEQA.
A. CEQA Principles and Standards of Judicial Review
CEQA requires local agencies, such as Muni, to “prepare, or cause to be prepared
by contract, and certify the completion of, an [EIR] on any project that they intend to
carry out or approve which may have a significant effect on the environment.” (Pub.
Resources Code, § 21151, subd. (a).)11 CEQA requires an agency to prepare an EIR
“whenever substantial evidence[12] supports a fair argument that a proposed project „may
have a significant effect on the environment.‟ ” (Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal.4th 1112, 1123 (Laurel Heights II.) If
there is substantial evidence of such an effect, “contrary evidence is not adequate to
support a decision to dispense with an EIR.” (Sierra Club v. County of Sonoma (1992) 6
Cal.App.4th 1307, 1316 (County of Sonoma).) “The fair argument standard creates a
„low threshold‟ for requiring an EIR, reflecting a legislative preference for resolving
doubts in favor of environmental review.” (Latinos Unidos de Napa v. City of Napa
11
All further unspecified statutory references are to the Public Resources Code.
12
Under CEQA, substantial evidence is defined to include “fact, a reasonable
assumption predicated upon fact, or expert opinion supported by fact” (§ 21080,
subd.(e)(1)), and to exclude “argument, speculation, unsubstantiated opinion or narrative,
evidence that is clearly inaccurate or erroneous, or evidence of social or economic
impacts that do not contribute to, or are not caused by, physical impacts on the
environment.” (§ 21080, subd. (e)(2).) “ „Substantial evidence‟ ” is “enough relevant
information and reasonable inferences from this information that a fair argument can be
made to support a conclusion, even though other conclusions might also be reached.”
(CEQA Guidelines, § 15384, subd. (a).)
9
(2013) 221 Cal.App.4th 192, 200 (Latinos Unidos), citing County of Sonoma, supra, 6
Cal.App.4th at pp. 1316-1317.)
However, once an EIR has been prepared for a project, CEQA prohibits the
agency from requiring further EIR‟s “unless one or more of the following events occurs:
[¶] (a) Substantial changes are proposed in the project which will require major revisions
of the environmental impact report. [¶] (b) Substantial changes occur with respect to the
circumstances under which the project is being undertaken which will require major
revisions in the environmental impact report. [¶] (c) New information, which was not
known and could not have been known at the time the environmental impact report was
certified as complete, becomes available.” (§ 21166.)
When we review the City‟s determinations here “for compliance with CEQA, we
ask whether the agency has prejudicially abused its discretion; such an abuse 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.‟ ( . . . § 21168.5.) In
determining whether there has been an abuse of discretion, we review the agency‟s
action, not the trial court‟s decision. „[I]n that sense appellate judicial review under
CEQA is de novo.‟ (Vineyard Area Citizens for Responsible Growth, Inc. v. City of
Rancho Cordova (2007) 40 Cal.4th 412, 427 . . . .)” (Center for Biological Diversity v.
California Dept. of Fish and Wildlife (2015) 62 Cal.4th 204, 214-215 (Center for
Biological Diversity), fn. omitted.) We determine de novo whether the agency has
followed the proper procedures, and we review the agency‟s substantive factual
conclusions for substantial evidence. (Id. at p. 215.) In our review, we may not interpret
CEQA or the CEQA Guidelines “in a manner which imposes procedural or substantive
requirements beyond those explicitly stated.” (§ 21083.1.)
In reviewing an agency‟s decision not to prepare an EIR in the first instance under
section 21151, we “must set aside the decision if the administrative record contains
substantial evidence that a proposed project might have a significant environmental
impact; in such a case, the agency has not proceeded as required by law.” (County of
Sonoma, supra, 6 Cal.App.4th at p. 1317.) An agency‟s decision not to prepare an EIR in
10
the first instance is upheld “only when there is no credible evidence to the contrary.” (Id.
at p. 1318.)
In contrast, we apply a more deferential test to an agency‟s decision not to prepare
a further EIR under section 21166: the agency‟s decision in that case is upheld if it is
supported by substantial evidence in the agency‟s record. (Moss v. County of Humboldt
(2008) 162 Cal.App.4th 1041, 1058 (Moss); Citizens for a Megaplex-Free Alameda v.
City of Alameda (2007) 149 Cal.App.4th 91, 110 (City of Alameda); see also CEQA
Guidelines § 15162 [agency determination to be made “on the basis of substantial
evidence in the light of the whole record”]; 2 Kostka & Zischke, Practice under the Cal.
Environmental Quality Act (Cont.Ed.Bar 2nd ed. 2008 [March 2016 supp.]) Subsequent
and Supplemental EIRs, § 19.55, pp. 19-58 to 19-60.) A party challenging an agency‟s
decision under section 21166 has the burden to demonstrate that the agency‟s decision is
not supported by substantial evidence and is therefore improper. (Latinos Unidos, supra
221 Cal.App.4th at p. 206.) The court defers to the agency as finder of fact, and indulges
all reasonable inferences from the evidence that support the agency‟s findings, and
resolves conflicts in the evidence in favor of the agency‟s decision. (Mani Brothers Real
Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397 (Mani Brothers);
see also Latinos Unidos, supra, 221 Cal.App.4th at p. 205.)
Until recently, the law was unclear as to the appropriate level of judicial scrutiny
to be applied to an agency‟s determination whether section 21151 (review in the first
instance) or 21166 (subsequent review) applies to a particular project. (Moss, supra, 162
Cal.App.4th at p. 1051.) Our Supreme Court has now ruled that the substantial evidence
standard applies. (Friends of the College of San Mateo Gardens v. San Mateo
Community College Dist. (2016) 1 Cal.5th 937, 953 (San Mateo.) Noting that “[a]
decision to proceed under CEQA‟s subsequent review provisions must . . . necessarily
rest on a determination—whether implicit or explicit—that the original environmental
document retains some informational value” (id. at p. 951), our Supreme Court held that
the question “whether an initial environmental document remains relevant . . . is a
predominantly factual question. It is thus a question for the agency to answer in the first
11
instance, drawing on its particular expertise. (Center for Biological Diversity[, supra,] 62
Cal.4th [at p.] 215.) A court‟s task on review is then to decide whether the agency‟s
determination is supported by substantial evidence; the court‟s job „ “ „is not to weigh
conflicting evidence and determine who has the better argument.‟ ” ‟ (Ibid.)” (San
Mateo, supra, 1 Cal.5th at pp. 952-953.) As a result, “occasions when a court finds no
substantial evidence to support an agency‟s decision to proceed under CEQA‟s
subsequent review provisions will be rare, and rightly so; „a court should tread with
extraordinary care‟ before reversing an agency‟s determination, whether implicit or
explicit, that its initial environmental document retains some relevance to the
decisionmaking process.‟ (Moss[, supra] 162 Cal.App.4th [at p.] 1052, fn. 6.)” (Id. at p.
953.)13
B. Substantial Evidence Supports the Application of Section 21166
to the Loop Project
The Committee argues that the Loop project described in the 2014 construction
contract was not reviewed in the FEIR, and that therefore we must evaluate Muni‟s
decision not to prepare a new EIR under the fair argument standard of section 21151.
The City argues that because the Loop project had previously been described and
evaluated in the FEIR as part of the Initial Operating Segment, we must evaluate Muni‟s
decision not to prepare a new EIR under the substantial evidence standard of section
21166. The City has the better argument. From our review of the record, we conclude
that substantial evidence supports the determination that the Loop project described in the
September 2014 resolution was analyzed as part of the Initial Operating Segment as
described in the FEIR, and also supports the determination, implicit in the City‟s decision
to proceed under section 21166, that the FEIR retains informational value with respect to
the Loop.
13
The Supreme Court issued its decision in the San Mateo case after briefing in
this case was complete. The City directed our attention to the San Mateo opinion, and the
parties discussed their view of its application to this case at oral argument.
12
We begin with the language of the FEIR and the 2014 resolution. The FEIR
describes the Initial Operating Segment as including “a short-turn loop from Third
[Street] following 18th, Illinois, and 19th Streets,” and discusses the potential impact of
that loop on parking and pedestrians, among other things. The September 2014
resolution describes a light rail project to “install trackwork around the 3d Street/18th
Street/Illinois Street/19th Street block to create a short line loop.”
We then consider the contents of the FEIR, a document of almost 600 pages,
which discusses the Loop exactly where we would expect it to be discussed as part of the
Initial Operating Segment. For example, the estimated capital cost of the Loop, described
as the “Mission Bay Turnback Facility,” is included in the FEIR as part of the estimated
cost of the Initial Operating Segment.
Chapter Two of the FEIR describes the alternatives being considered in the report.
The Light Rail Alternative consists of two phases, the Initial Operating Segment,
discussed in section 2.4.1, and the New Central Subway, discussed in section 2.4.2. The
Loop is described in section 2.4.1 of the FEIR, as part of segment 4 of the Initial
Operating Segment, which includes “[a] short-turn loop from Third [Street] following
18th, Illinois, and 19th Streets,” to allow an existing line, the N-Judah, to be extended to
serve Mission Bay, and to provide an area for trains to layover. It is not surprising that
the Loop is not mentioned in section 2.4.2 of the FEIR, which describes the New Central
Subway. However, section 2.4.2 makes clear that the Loop is part of the Initial Operating
Segment, because the New Central Subway operating plan calls for a new line of one-car
trains to “provide additional service between Chinatown and Third/Mariposa,” which is
one block north of the Loop. The new line would “replace the N-line extension into
Mission Bay (refer to the IOS operating plan).” The N-line extension was to be made
possible by the Loop, hence the reference to the “IOS operating plan.” The FEIR
acknowledged that the need for the N-line extension would not arise until sometime after
the rest of the Initial Operating Segment went into operation.
Chapter Three of the FEIR is a transportation analysis. Section 3.1.5 addresses the
availability of parking along the Initial Operating Segment at the time the FEIR was
13
prepared. That section of the FEIR discusses available parking on the streets designated
for the Loop as part of segment 4 of the Initial Operating Segment: “[A] „loop‟ track is
proposed around 18th, Illinois, and 19th Streets. There are eight existing parking spaces
on the south side of 19th Street and five spaces on the north side of 18th Street. All of
these 13 spaces are usually full during weekdays.” Similarly, section 3.2.5 of the FEIR,
which addresses impacts on parking from the construction and operation of the Initial
Operating Segment, discusses the Loop in connection with the impacts on parking
associated with segment 4 of the Initial Operating Segment. The FEIR states that, “[t]he
proposed light rail loop track along 19th, Illinois, and 18th Streets would displace all
eight parking spaces on the south side of 19th Street and all five spaces on the north side
of 18th Street between Third and Illinois Streets. . . . Reserve parking capacity exists on
Illinois Street to accommodate displaced vehicles.” Section 3.1.6 of the FEIR addresses
impacts to pedestrian circulation, and discusses the effect of the Loop on the Bay Trail as
part of the Initial Operating Segment: “The Bay Trail follows Illinois Street between
Mariposa and 24th Streets. A light rail „loop‟ track is proposed around 18th, Illinois, and
19th Streets. The sidewalks on both sides of Illinois Street would be about 4.6 meters (15
feet) wide. Bay Trail users would primarily use the eastern sidewalk, but those on the
western sidewalk would cross the light rail tracks twice (at Illinois Street‟s corners with
18th and 19th Streets). Light rail train velocities around the corners would be slow and
the trains would yield to sidewalk traffic, similar to automobiles turning right. No
significant impacts would result.”
Substantial evidence external to the FEIR also indicates that the Loop is part of the
Initial Operating Segment and not part of the Central Subway or an independent project:
a significant portion of the Loop, specifically trackwork on 18th and 19th Streets, from
Third Street toward Illinois Street, was installed in 2003, during the period of
construction for the Initial Operating Segment, which began operation in 2007.
In sum, there is substantial evidence that the Loop described in the September
2014 resolution is the same Loop was that was described in the FEIR as part of the Initial
Operating Segment, and that the FEIR, which among other things discussed the Loop‟s
14
effects on parking and pedestrians and the interrelationship between projected growth in
population and employment in the southeastern part of San Francisco and the operation
of the Loop, retained informational value. In light of this substantial evidence, it was not
an abuse of discretion to proceed under section 21166 rather than section 21151.
The Committee, however, contends that to the extent the Loop is discussed in the
FEIR, it is not discussed as part of the Initial Operating Segment, but rather as part of the
New Central Subway phase of the Project, which was not fully analyzed in the FEIR.
The only support the Committee offers for this claim is this: in the FEIR, a diagram of
the Initial Operating Segment makes no reference to the Loop, while a diagram of the
New Central Subway indicates the Loop as a “light rail short-turn.”14 The Committee‟s
claim lacks merit. The Committee does not identify any portion of the text or tables in
the FEIR where the Loop is discussed as part of the New Central Subway, and our review
of the record has revealed none. Furthermore, in 2008, a Supplemental Environmental
Impact Statement/Supplemental Environmental Impact Report (SEIR) was prepared for
the Central Subway portion of the Project. Nothing in the SEIR indicates that the Loop is
or was viewed as part of the Central Subway project, which is to provide service “from
the present terminus of the T-Third Line at Fourth and King Streets through South of
Market, Downtown and Chinatown in the Central Subway Corridor.” Indeed, the parties
agree that the SEIR does not analyze the Loop. And trackwork for the Loop was
installed on 18th and 19th Streets in 2003, years before the Central Subway SEIR was
prepared.
The Committee also argues that even if the FEIR discussed the Loop as part of the
Initial Operating Segment, the FEIR did not provide a detailed, CEQA-compliant
analysis of the Loop. This argument amounts to an untimely challenge of the FEIR,
which was certified in 1998. Under section 21167.2, an EIR is conclusively presumed
14
The City explains the absence of the notation for the Loop in the Initial
Operating Segment figure as a “graphic design issue,” claiming that “the notation would
likely be covered up” by the legend for the figure, which is larger than the legend for the
New Central Subway figure.
15
valid unless a lawsuit has been timely brought to contest its validity, which no one
contends to have happened here. “This presumption acts to preclude reopening of the
CEQA process even if the initial EIR is discovered to have been fundamentally
inaccurate and misleading in the description of a significant effect or the severity of its
consequences. After certification, the interests of finality are favored over the policy of
encouraging public comment.” (Laurel Heights II, supra, 6 Cal.4th at p. 1130.)
C. Substantial Evidence Supports the Decision under Section 21166
Not to Prepare a New EIR for the Loop in 2014
1. Applicable Law
It is well-established that under section 21166 we apply the deferential substantial
evidence test in reviewing the determination that no further CEQA review was required
for the Loop. (San Mateo, supra, 1 Cal.5th at p. 944; Moss, supra, 162 Cal.App.4th at p.
1058.) Despite this, the Committee argues we should use the fair argument test, resolve
all doubts in favor of environmental review, and set aside the City‟s decision if the
administrative record contains substantial evidence that a proposed project might have a
significant environmental impact. The Committee‟s argument is meritless.
The Committee relies on inapposite quotations from Sierra Club v. County of San
Diego (2014) 231 Cal.App.4th 1152, 1164 (County of San Diego) and County of Sonoma,
supra, 6 Cal.App.4th 1317-1319 for the proposition that it is a question of law, subject to
de novo review, whether the City‟s “decision not to prepare any new second tier or
supplemental CEQA analysis before approving the [Loop] was justified, or whether there
was evidence raising a „fair argument‟ that the [Loop] might arguably have
environmental impacts that were not examined in the [FEIR].” The quotations are
inapposite because they concern the judicial standard of review under sections of the
Public Resources Code other than section 21166. Some are drawn from a discussion of
the judicial standard of review under section 21151. (County of Sonoma, supra, 6
Cal.App.4th at pp. 1317-1318 [“A court reviewing an agency‟s decision not to prepare an
EIR in the first instance must set aside the decision if the administrative record contains
substantial evidence that a proposed project might have a significant environmental
16
impact. . . . Stated another way, the question is one of law, i.e., „the sufficiency of the
evidence to support a fair argument.‟ ” (Emphasis added.)].) Others are drawn from a
discussion of the judicial standard of review under section 21094, which applies when “a
prior environmental impact report has been prepared and certified for a program, plan,
policy, or ordinance.” (§ 21094, subd. (a); (County of San Diego, supra, 231 Cal.App.4th
at p. 1164 [“when a prior EIR has been prepared and certified for a program or plan, the
question for a court reviewing an agency‟s decision not to use a tiered EIR for a later
project „is one of law . . . .‟ ” (Emphasis added.)]; County of Sonoma, supra, 6
Cal.App.4th at p. 1319 [“if there is substantial evidence in the record that the later project
may arguably have a significant adverse effect on the environment which was not
examined in the prior program EIR, doubts must be resolved in favor of environmental
review and the agency must prepare a new tiered EIR, notwithstanding the existence of
contrary evidence” (emphasis added)].)
The FEIR is not a program or plan EIR with respect to the Initial Operating
Segment or the Loop: it is a project-level EIR that evaluated impacts and alternatives. A
project-level EIR is prepared for a particular project, and examines site-specific
considerations in detail, including planning, construction and operation (Town of
Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 344;
CEQA Guidelines, § 15161), which is exactly what the FEIR examined for the Initial
Operating Segment, including the Loop.15 We therefore apply the section 21166
substantial evidence standard here. (Moss, supra, 162 Cal.App.4th at p. 1058.)
15
In contrast, a program EIR is prepared for a series of related “actions that can be
characterized as one large project.” (CEQA Guidelines, § 15168, subd. (a).)
“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).) In County of San Diego, the Court of Appeal concluded
that the county was required to prepare a supplemental EIR for a later project, because
there was no substantial evidence in the record to support the county‟s conclusion that the
later project was within the scope of the previously certified program EIR. (County of
San Diego, supra, 231 Cal.App.4th at p. 1174.)
17
2. Analysis
The Committee has the burden to show an absence of substantial evidence
supporting Muni‟s 2014 decision not to prepare a further EIR. (Latinos Unidos, supra,
221 Cal.App.4th at p. 206.) The Committee contends that there is “no evidence,
„substantial‟ or otherwise” to support Muni‟s refusal to prepare a supplemental EIR. We
disagree. In any case, because the Committee disregards the evidence in the record that
supports the City‟s decision, the Committee has failed to meet its burden. (City of
Alameda, supra, 149 Cal.App.4th at pp. 112-113; see also Mani Brothers, supra, 153
Cal.App.4th at p. 1402 [“As with all substantial evidence issues, an appellant challenging
the evidence must lay out the evidence favorable to the other side and show why it is
lacking”].)
The 2012 and 2014 statements from the Planning Department that the Loop had
been analyzed in the FEIR and that no further CEQA analysis was needed, and the
memoranda from Muni to which those statements respond constitute substantial evidence
that there were no substantial changes proposed to the Loop project that was analyzed in
the FEIR and no substantial changes in the area that would require major revisions to the
FEIR or the preparation of further environmental impact reports.16 (§ 21166, subds. (a)
& (b); CEQA Guidelines, §§ 15162, 15163, 15164.)
On two separate occasions, the Planning Department responded to memoranda
from Muni by writing that the Loop had been evaluated in the FEIR and that no further
16
In its reply brief on appeal, the Committee claims that it timely objected to these
documents “being considered as „substantial evidence‟ for the truth of their contents.”
The Committee objected below to what it characterized as the City‟s request for judicial
notice of the administrative record, including these documents, but conceded that its
objections went to the weight of the evidence rather than the admissibility. The trial
court overruled the objection, explaining that, “There is no basis for [the Committee‟s]
request that the Court disregard the entire administrative record. As in any CEQA action,
this Court must evaluate and review the administrative record to determine whether the
administrative record reflects compliance with CEQA, and whether the administrative
record supports the actions of the agency that approved the project.” The Committee
does not challenge the trial court‟s evidentiary ruling on appeal.
18
assessment under CEQA is required. Both memoranda describe the Loop in the same
terms as it was described in the FEIR, and the 2012 memorandum states that there have
been no changes to the Loop design since the FEIR certification. The memoranda
therefore constitute substantial evidence that the project had not been changed. (§ 21166,
subd. (a); CEQA Guidelines, § 15162, subd. (a)(1).) The memoranda also constitute
substantial evidence that there have not been changes in the circumstances under which
the Loop would be constructed that would lead to new significant environmental effects
or an increase in the severity of previously identified effects. (§ 21166, subd. (b); CEQA
Guidelines, § 15162, subd. (a)(2).) The memoranda describe the changes in the area of
the Loop since the FEIR was certified, including the completion of two housing
developments and a proposal to construct an arena for the Golden State Warriors nearby.
The FEIR assumed extensive new residential and commercial developments in the area
and analyzed the impacts of constructing and operating light rail in residential areas,
including the area of the Loop.
The 2013 environmental assessment, which resulted in a finding of no significant
impact by the Federal Transit Administration, provides further evidentiary support for the
decision not to prepare a new EIR for the Loop, including support that new information
does not show new significant effects or more severe significant effects, or reveal any
new or different mitigation measures that would reduce significant effects but that the
City refuses to adopt. (§ 21166, subd. (c); CEQA Guidelines, § 15162, subd. (a)(3).)
The environmental assessment evaluated the construction and operation of the Loop with
respect to aesthetics, air quality, climate change, environmental justice, historic and
archaeological preservation, land use, noise and vibration, parks and recreation areas,
safety and security, transportation, and cumulative effects, and concluded as follows: no
adverse effects on aesthetic resources; no adverse effects on air quality, with the
implementation of best management practices recommended by the Bay Area Air Quality
Management District; no adverse effect on greenhouse gas emissions during operation,
and only temporary and insignificant contributions to greenhouse gas emissions during
construction; no adverse effects to historic properties, so long as specified procedures are
19
followed in connection with ground-disturbing activities; no substantial change to the
existing character or land uses of the site and vicinity;17 no adverse noise or vibration
effects from operation and, with the implementation of certain best management
practices, no adverse noise or vibration effects from construction; no adverse effects to
recreation resources; no adverse effects to safety and security; no adverse effect on
transportation including parking; and no disproportionate adverse effect on minority or
low-income populations.
The Committee identifies just one substantial change in the Loop that could
require a subsequent or supplemental EIR under section 21166, subdivision (a): the
Committee claims that the decision to defer construction of the Loop constituted a change
to the project after the spur tracks on 18th and 19th Streets were built in 2003. But the
Committee does not cite any authority holding that mere delay in completing construction
constitutes a substantial change in a project under section 21166. Rather, the Committee
cites two CEQA cases that involved not only delays in construction, but also major
changes to project design. (Ventura Foothill Neighbors v. County of Ventura (2014) 232
Cal.App.4th 429, 431-432 [changing height and location of building after passage of
more than 10 years] and Concerned Citizens of Costa Mesa v. 32nd Dist. Agricultural
Assn. (1986) 42 Cal.3d 929, 934-935 [expanding the size of an amphitheater from six to
10 acres, expanding capacity from 5,000 fixed seats to 7,000, and reorienting the stage,
after passage of about two years].) The Committee also cites a case decided under the
Hawaii Environmental Policy Act and the Hawaii Administrative Regulations, which,
unlike CEQA and the CEQA Guidelines, specify that the timing of an action is to be
considered in determining whether to require a supplemental environmental impact
statement. (Unite Here! Local 5 v. City and County of Honolulu (Hawaii 2010) 231 P.3d
423, 450.)
17
The environmental assessment noted that the construction and operation of the
Loop “is consistent with the city‟s ordinances, regulations, plans, and policies concerning
land use and would be consistent with regional transportation and development plans.”
20
The Committee claims that the City disregarded substantial evidence showing
“changed circumstances, changes to the Loop Project itself, and new information of
environmental significance” that raised a fair argument that the Loop could not been
approved without further CEQA review under section 21166 and CEQA Guidelines
sections 15162 through 15164. Here again, the Committee disregards the standard of
review under section 21166: the question is not whether substantial evidence would
support a different decision from the one the agency made; the question is whether the
agency‟s decision is supported by substantial evidence. (See Latinos Unidos, supra, 221
Cal.App.4th at p. 206.) The Committee does not even discuss its own “substantial
evidence” in any depth, but simply refers us to various documents and pages in the
record. For example, the Committee claims that the “Dogpatch Neighborhood Parking
Background Report” prepared by Muni in November 2013, constitutes substantial
evidence of changed circumstances in the area of the Loop and new information of
environmental significance because the report study recognizes “significant changes in
the project area.”18 But changes in a neighborhood do not constitute a change in
circumstances that requires a new EIR under section 21166, unless the changes require
“major revisions” to an existing EIR. (§ 21166, subd. (a); see also CEQA Guidelines,
§ 15162, subd. (a)(2).) Here, however, the FEIR anticipated an increase in residential use
and other development and analyzed the impacts of constructing and operating light rail
in residential areas, including the area of the Loop. Among other things, the FEIR
addressed the environmental effects of which the Committee complains: noise and
vibration, dust, air quality, parking, and roadway capacity.
Similarly, new information does not require a new EIR unless it shows effects that
were not addressed in the previous EIR or effects that would be “substantially more
18
The streets where the Loop is to be constructed are on the eastern border of the
northern portion of the Dogpatch parking study area. The study area covered about 25
square blocks of various sizes, and included Third Street between 18th and 19th Streets,
where the T-Third line was already operating by 2013, and 18th and 19th Streets between
Third and Illinois Streets.
21
severe” than those addressed, or shows that the agency refuses to adopt certain new or
feasible mitigation measures or alternatives. (CEQA Guidelines, § 15162, subd. (a)(3).)
The Committee makes no such showing. Rather, the Committee asserts that the City
“admit[s] that the Loop Project contract does not include any specific mitigation
measures,” citing to an email from Muni to the Committee‟s attorney in which Muni
responds to a public records request. The apparent omission from the record of the
Committee‟s request renders the email uninformative. Besides, the contract includes
more than 20 pages that detail the “environmental mitigation measures and temporary
controls” required for construction.
The Committee argues that the City abused its discretion by failing to follow
required procedures in making its determination that no further CEQA analysis was
necessary. The Committee contends that Muni relied on only “an unsupported staff
conclusion” that no further CEQA review was necessary, and that Muni failed to make
the required “public, evidence-based, analysis and determination.” These are not
procedural flaws, because CEQA does not set forth any particular procedure to support an
agency‟s decision that a new EIR is not required. CEQA does not require an initial study
or public hearing in these circumstances.19 (A Local and Regional Monitor v. City of Los
Angeles (1993) 12 Cal.App.4th 1773, 1804-1806.) At any rate, the record shows that that
Muni relied on more than just a staff conclusion in determining that no further CEQA
review was necessary, and also shows that there was support for the staff conclusions on
which Muni relied. Moreover, the environmental assessment prepared under NEPA is
approximately equivalent to an initial study under CEQA. (CEQA Guidelines, § 15063,
subd. (a)(2) [an “agency may use an environmental assessment or a similar analysis
prepared pursuant to [NEPA]” to meet a requirement to conduct an initial study].) The
19
An agency conducts an initial study to determine whether a project may have a
significant effect on the environment. (CEQA Guidelines, § 15063, subd. (a).) When an
initial study shows that a project may have a significant effect on the environment, an
EIR is usually required, but if the project is revised to eliminate or avoid significant
effects on the environment by incorporating mitigation measures, an agency may adopt a
mitigated negative declaration. (CEQA Guidelines, § 15064, subd. (f)(2).)
22
record shows that the 2013 environmental assessment here was made available to the
public, and the Committee even commented on it. Also, the Board of Supervisors‟ Land
Use and Economic Development Committee held a public hearing on the status of the
Loop in July 2014, at which the Committee appeared and made comments.
We conclude that substantial evidence supports the City‟s decision in September
2014 not to undertake further CEQA analysis of the Loop; the Committee has not met its
burden to show otherwise.
DISPOSITION
The judgment is affirmed. The City shall recover its costs on appeal.
23
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
A147498, Committee for Re-Evaluation of the T-Line Loop, et al. v. SFMTA, et al.
24
Filed 12/22/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE COMMITTEE FOR
RE-EVALUATION OF THE T-LINE
LOOP, et al., A147498
Plaintiffs and Appellants,
(San Francisco County
v. Super. Ct. No. CPF-14-513887)
SAN FRANCISCO MUNICIPAL
TRANSPORTATION AGENCY, et al.,
Defendants and Respondents,
MITCHELL ENGINEERING,
Real Party in Interest.
BY THE COURT:
The opinion in the above-entitled matter filed on November 29, 2016, was not
certified for publication in the Official Reports. For good cause and pursuant to
California Rules of Court, rule 8.1105, it now appears that the opinion should be
published in the Official Reports, and it is so ordered.
Dated: _______________________ ________________________________
Kline, P.J.
Trial Court: Superior Court of San Francisco
Trial Judge: Hon. Garrett Wong
Attorney for Appellants David P. Lanferman
Attorneys for Respondents Dennis J. Herrera
City Attorney
James M. Emery
Audrey W. Pearson
Andrea Ruiz-Esquide
Deputy City Attorneys