Yerba Buena Neighborhood etc. v. Regents of the University of Cal. (2023) · DecisionDepot

Yerba Buena Neighborhood etc. v. Regents of the University of Cal.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Court of Appeal Sep 20, 2023 No. A166091Published

Filed 9/20/23 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

YERBA BUENA NEIGHBORHOOD CONSORTIUM, LLC, Plaintiff and Appellant, A166091

v. (Alameda County THE REGENTS OF THE Super. Ct. No. RG21090517) UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

PARNASSUS NEIGHBORHOOD COALITION et al., Plaintiffs and Appellants, v. (Alameda County Super. Ct. No. RG21088939) THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

SAN FRANCISCANS FOR BALANCED AND LIVABLE COMMUNITIES, A166094 Plaintiff and Appellant, v. (Alameda County Super. Ct. No. RG21089332) THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this *

opinion is certified for publication with the exception of sections IV through VII, IX, and XI of the Discussion. 1

Petitioners in these consolidated appeals challenge the adequacy of an environmental impact report (EIR) prepared in connection with the Comprehensive Parnassus Heights Plan (Plan), a long-range planning document intended to guide future development of a campus of the University of California, San Francisco (UCSF or university). The Plan stirred controversy because it anticipates considerably more intensive development on that campus than was projected in the university’s existing long-range development plan, which was prepared only a few years prior. Petitioners contend that, for a variety of reasons, the EIR fails to comply with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).1 The trial court found the EIR compliant and entered judgment for the Regents of the University of California (Regents). We will affirm. In the published portions of this opinion, we hold (1) the EIR considers a reasonable range of alternatives to the Plan and need not have considered in detail an alternative that placed some of the anticipated development off campus; (2) the EIR improperly declines to analyze the impact of the Plan on public transit, but the error is not prejudicial because the EIR adequately informs the public and decisionmakers regarding that impact; (3) we need not scrutinize the EIR’s analysis of visual impacts because section 21099, subdivision (d)(1) directs that aesthetic effects of an “employment center project on an infill site within a transit priority area” be deemed not significant; (4) the EIR is not required to adopt a mitigation measure preserving certain historically significant buildings merely because it is possible to restore and repurpose the buildings; and (5) the EIR’s

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argument that mitigated TAC emissions are “very close to the applicable significance standard of ten,” petitioners sum the TAC emissions from all four of the initial-phase projects, assuming that the threshold applies to the projects jointly. The BAAQMD threshold of significance of 10 cases per million persons, however, is intended to be applied to an “Individual Project.” (BAAQMD 2017 CEQA, supra, § 2 & Table 2-1, at p. 2-2.) That phrase is ambiguous because it could refer either to a CEQA “Project,” that is, the subject of an EIR, or more generally to an individual construction project. The EIR elects to apply the threshold individually to each of the four initial- phase construction projects. Applying the threshold in this manner was well within the Regents’ discretion and is supported by substantial evidence. (Mission Bay, supra, 6 Cal.App.5th at p. 206.) These are discrete construction projects. One of the four is the New Hospital. Two others are the Research and Academic Building and the new housing. We see no reason all of these, plus the fourth project, must be considered as a single project, especially since the largest contribution comes from the New Hospital, which will be the subject of a separate project-level EIR. With that understanding, the individual excess cancer risks to an “Offsite Receptor” from TAC emissions during construction for the four projects are 0.67, 1.17, 2.91, and 4.72. Each of these is less than half of the project threshold of 10, and petitioners provide no evidence to suggest that the purportedly omitted sources of TACs would raise the risk of any of these projects to 10 or above. Petitioners therefore provide no reason to doubt the EIR’s conclusion that mitigated TAC emissions from construction of the initial-phase projects will not cause a significant environmental effect. Petitioners YB argue that applying the significance threshold to the buildings individually was improper because “nowhere does UC claim that

building. The remaining 12,300 anticipated new trips are mostly taken by faculty, staff, and students, though some are by residents. We find in the EIR no evidence directly addressing the health impact of these trips, but the EIR does provide evidence that allows us to understand the order of magnitude for the increased cancer risk they cause. The EIR estimates that traffic on Parnassus Avenue, which bears more than 10,000 vehicles a day, is responsible for an increased cancer risk of 0.9 per one million persons. Even if we generously assume that all 12,300 of the new trips not associated with patients and visitors are associated with the initial-phase project that already entails the highest increase in cancer risk from operations, the Research and Academic Building, they do not cause the increased cancer risk from this building project to exceed the 10 per one million threshold. One can double or triple (or even double and then triple) 0.9 per one million and add it to the increased cancer risk of 0.26 associated with operations at the Research and Academic Building, and the result still leaves the risk well below 10 per one million. This is true even if, as petitioners contend is appropriate, the operational and constructional risks are combined. Thus, the omission of new vehicle trips from the EIR’s analysis of TACs did not affect the EIR’s conclusion that such impacts are not significant. We further find no error in the EIR’s decision to analyze the remaining TAC emissions only as cumulative impacts. These emissions are associated with future projects that will, at an appropriate time, be the subject of individual project EIRs. Given the uncertainty surrounding the precise nature of their impacts and the university’s obligation to evaluate them under the project EIR standard in the future, we find the Regents’ decision to evaluate them only as cumulative impacts and to apply the significance threshold applicable to such impacts to be supported by substantial evidence.

feasibility with reference to “the proposed building’s space program, . . . operational inefficiencies, and/or substantially higher costs.” But we acknowledge that petitioner SF’s argument finds some support in the recent East Oakland decision, which reached a contrary conclusion regarding a similar mitigation measure. The project there was a new professional baseball park, situated in a sizable proposed commercial development that would feature several other large new buildings. (East Oakland, supra, 89 Cal.App.5th at p. 1237.) Because the size, design, and location of buildings other than the ballpark had not yet been determined, the project sponsor was unable to determine wind impacts with precision but anticipated they would be significant and unavoidable. (Id. at p. 1273.) The mitigation measure in East Oakland required wind-tunnel analysis for any building exceeding 100 feet in height, and defined a significant wind impact as winds over 36 miles per hour for an hour. (Ibid.) If wind-tunnel analysis determined that a building’s design would cause an increase in significant wind impacts, the project sponsor was required to “ ‘work with the wind consultant to identify feasible mitigation strategies, including design changes (e.g., setbacks, rounded/chamfered building corners, or stepped facades), to eliminate or reduce wind hazards to the maximum feasible extent without unduly restricting development potential. Wind reduction strategies could also include features such as landscaping and/or installation of canopies along building frontages, and the like.’ ” (Ibid.) The East Oakland court held that for two reasons this mitigation measure failed to satisfy Guidelines section 15126.4, subdivision (a)(1)(B). (Id. at pp. 1273–1274.) First, the performance standard was not “ ‘specific’ ” because it required “a reduction in wind impacts ‘to the maximum feasible extent without unduly restricting development potential.’ ” (East Oakland,

commercial functionality has been struck. (East Oakland, supra, 89 Cal.App.5th at p. 1274.) Our conclusion is influenced by the nature of wind impacts and their mitigation. As noted above, significant wind impacts are caused primarily by building size, particularly building height. The best way to reduce wind impacts is to reduce the size of the building causing the impact. Reducing building size, however, risks frustrating the project sponsor’s objectives. Other types of mitigation are less effective but also have less impact on the building’s utility. Under the EIR’s wind mitigation measure, the university must “identify feasible mitigation strategies . . . to eliminate or reduce wind hazards to the maximum feasible extent.” The word “feasible” is key. “If UCSF finds that . . . wind speed reduction strategies are not feasible as they would unduly restrict the proposed building’s space program, result in operational inefficiencies, and/or [impose] substantially higher costs, the building(s) may nonetheless be approved. . . .” In other words, the university is required to apply the modest mitigation strategies identified by the measure—“design changes” such as “setbacks, rounded/chamfered building corners, stepped facades, etc.” and “landscaping, localized installation of porous/solid screens, installation of canopies along building frontages, and the like”—to the extent those measures can be successfully employed to reduce the wind impact of the offending building, but the university will not be required to implement these or other measures to the extent they would reduce the project’s “space program,” which we understand to mean requirements for a building’s floor space, or impose “operational inefficiencies and/or substantially higher costs.” The EIR discusses in several places the Plan’s requirements for new space and the concepts of space utilization and operational inefficiencies, putting some meat on the bones of those phrases.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

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