Monday, March 28, 2011

Public Comment on the Parkmerced Project

FROM: Mary Miles (SB #230395) Attorney at Law, San Francisco

TO: Angela Calvillo, Clerk, President David Chiu and Members of the San Francisco Board of Supervisors, City Hall, #1 Dr. Carlton B. Goodlett Pl., San Francisco, CA 94102

DATE: March 28, 2011

Re: BOARD OF SUPERVISORS File No. 110206 [Parkmerced EIR Appeal], Meeting of March 29, 2011; and Files 110300 [Development Agreement]; 110301 [SUD]; 110302 [Zoning Amendments]; 110303 [General Plan Amendments]


This is public comment in support of the appeal(s) of the Planning Commission’s certification of the Environmental Impact Report (“EIR”) on the Parkmerced development project (“the Project”), scheduled for hearing by the Board of Supervisors on March 29, 2011. This comment supports other letters and public comment in support of the appeals and does not attempt to address all pertinent issues.

The EIR is legally inadequate and its certification by the Planning Commission was an abuse of discretion and a failure to proceed as required by law under the California Environmental Quality Act (CEQA) (Pub. Res. Code [“PRC”] §§21000 et seq.)

The Project proposes to construct 8,900 dwelling units, including 5,679 new units, and 1,538 “newly constructed replacement units,” and would add more than 10,000 new residents to an area already overburdened with traffic and lacking adequate transportation. The Project would demolish all existing non-tower units, including 1,538 garden units, while retaining 1,683 existing tower units, and would increase density and eliminate open space by increasing heights and bulk from the existing 2-story garden village-style community to high-rise towers throughout the Project site. (DEIR, p. III.27; V.B.8-9, V.B.12-14)

The Project would clearly have significant impacts on traffic, transit, air quality, land use, open space, historic and aesthetic resources, noise, and community services but propose no effective, funded, or enforceable mitigation. By displacing hundreds of residents, the Project would also have human impacts that are not analyzed or mitigated by the EIR. City relegates their fate entirely to the developer with no City oversight. Even under the proposed development agreement (“DA”), which has had no environmental or public review, existing residents would have to accept smaller units in high-density, high-rise buildings and give up existing open space and nearby parking in exchange for kitchen appliances, an irrelevant and unfair exchange. No other relocation option is offered to units comparable to those that they now occupy, many of which are in two-story garden buildings.

The EIR fails to include the development agreement in the Project description or analysis, and does not mitigate its impacts, violating CEQA’s fundamental requirements of informed decisionmaking and informed public participation in the decisionmaking process.

The EIR also fails to describe the phasing of proposed implementation and the actual dates when the Project would be implemented.

The baseline does not accurately describe existing traffic and transit conditions; instead it extrapolates “existing” year data from future year 2030 computer modeling. The EIR also drastically understates the number of vehicle and transit trips that would be generated by the 10,000 new residents.

The 20- to 30-year construction period would be a near-permanent condition of congestion, noise, nuisance, dust, and contamination impacts to the displaced tenants and the general public as buildings are demolished, streets are changed and closed, and the entire site is torn apart.

The EIR fails to propose and analyze effective mitigations for the Project’s impacts. The EIR fails to analyze mitigations that it does not find feasible, and to support those findings with substantial evidence already in the record.

The EIR also fails to propose a range of reasonable alternatives.

The following are examples of some flaws that invalidate the EIR as a matter of law under CEQA.

1. PROJECT DESCRIPTION: The Project Description Excludes the Development Agreement and Inadequately Describes the HOT Lanes (Congestion Pricing) Proposal.

In addition to the project description flaws described in other comments and during the Planning Commission hearing by Commissioner Moore, the Project description fails to include the Development Agreement, a component of the Project that would have significant impacts on the environment that are required to be identified, analyzed and mitigated in the EIR and the findings.

The Project description fails to adequately describe proposed “High-Occupancy Vehicle/Transit/Toll (HOT) lanes, rather than using [lanes] for mixed-flow traffic” on 19th Avenue, i.e., congestion pricing. While mentioned as a “Project Variant” (DEIR, p.V.E.24), the HOT lanes propose eliminating traffic lanes and parking on 19th Avenue. Nor does the Project description include the amount of the proposed toll. Since the proposal would require a right turn into the HOT lane from the Project, motorists would have to pay the toll to leave Parkmerced. (DEIR, p.V.E.24) The EIR must analyze the Project’s direct, indirect, and cumulative impacts on traffic and transit, and that analysis must include the proposed HOT lanes. Even where the HOT lanes are mentioned as a “Project variant” and “Project Sub-Variant” (DEIR, p.V.E. 37), there is no coherent analysis of the Project’s direct, indirect, and cumulative impacts when combined with the HOT lanes, which the DEIR states would remove the additional southbound lane described as a Project “improvement” and restrict traffic in that lane to “transit vehicles, high-occupancy vehicles, and drivers who pay a toll to use the lane.” (DEIR, p.V.E. 37)

The DEIR needs to describe the HOT lanes in the Project description instead of misleading the public and the decisionmakers by describing it as an “improvement” that adds a traffic lane to mitigate the Project’s traffic and transit impacts. In fact, traffic lanes would be eliminated unless travelers pay to drive in them.

The EIR also fails to identify and describe other known projects in the area that will, in combination with the Parkmerced Project, cause cumulative significant impacts on traffic and transit. These include a new performing arts center and other developments in the area, developments in and around San Francisco State University, Stonestown, and surrounding areas.

By omitting this critical information, the EIR misleads decisionmakers and the public about the true scope and nature of the Project.


a. The EIR Fails to Accurately Describe Existing Traffic and Transit Conditions.

The EIR contains no legally adequate baseline (existing conditions) description of traffic and transit in the area. The EIR uses the “Year 2030” as its existing conditions baseline for “cumulative development and growth through the year 2030.” (DEIR, p.V.E.23, 25) The EIR does not make clear how it arrived at the “existing conditions” for non-cumulative analysis, violating CEQA’s informational requirements. The DEIR contains no traffic count data for the intersections it claims were studied. Elsewhere, the DEIR indicates that it has improperly incorporated “future 2030 baseline transportation improvements” and future “improvements proposed by the Project” into the baselines. (DEIR, p.V.E., 29-39)

For both the impacts and cumulative impacts analyses, the baseline must consist of the actual, physical conditions in the Project area at the time the Notice of Preparation was released (May 20, 2009), including the baseline conditions for the analysis of cumulative impacts. (14 Cal. Code Regs. [“Guidelines”] §15125(a) Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council [“Sunnyvale”] (2010) 190 Cal. App. 4th 1351, 1372-73, 1381-83; Communities for a Better Environment v. South Coast Air Quality Management Dist. [“CBE”] (2010) 48 Cal.4th 310, 328) While identifying and analyzing the Project’s cumulative impacts must encompass foreseeable future development, that future development is not the baseline for that determination. (Sunnyvale, supra, 190 Cal.App.4th at p. 1382; Guidelines, §15226.6(e)(2).)

The EIR must identify and measure existing traffic at intersections in the area when the EIR was initiated, not in the year 2030. That data must then be compared with the traffic that would be generated by the Project’s proposed 10,000 new residents to identify the Project’s inevitable impacts. By using the year 2030, impacts are necessarily minimized, since in 2030 there will be more traffic than there is now. CEQA requires instead that the EIR measure the Project’s impacts on the existing environment. (Sunnyvale, supra, 190 Cal. App. 4th at pp. 1372-73, 1381-83) Courts have consistently rejected EIRs that do not properly describe baseline conditions, since impacts cannot be identified and analyzed without this critical information. (Id.)

The EIR also incorrectly uses “Future year 2030 Cumulative” extrapolations from the SFCTA “CHAMP travel demand model” for the baseline of transit ridership. (DEIR, p. V.E.26) This computerized extrapolation again minimizes the Project’s impacts on transit and violates CEQA. (Sunnyvale, supra, 190 Cal. App. 4th at pp. 1372-73, 1381-83); CBE, supra, 48 Cal.4th at p. 328)

3. IMPACTS: The EIR Fails to Identify and Analyze the Project’s Impacts.

Because the EIR’s Project description and baseline descriptions are defective and omit essential information, the EIR fails to identify the Project’s impacts, and of those identified, underestimates their significance.

a. The EIR Underestimates the Project’s Traffic Trip Generation.

The EIR’s “trip generation” data is also clearly defective in drastically underestimating the trips that would be generated by the Project’s 10,000 new residents.

The EIR’s assumptions that “the higher the project’s density, the less vehicular traffic” would be generated per unit of development, that “an appropriate mix of uses can lead to internalization of trips and trip-linking within a project”; and that “a walkable, pedestrian- and bicycle-oriented circulation system can help to reduce automobile dependence within a Project Site” (DEIR, p.V.E.42), are unsupported and conflict with the SFCTA’s Countywide Transportation Plan, pp. 49-51 (“travel forecasting model”), which predicts higher vehicle ownership and use in San Francisco for the next 30 years, including a 2.7% increase in cars per household and a 13.6% increase in transit use. The EIR’s assumptions do not apply to the Project, because, as the EIR admits, the Project site is isolated and miles away from commuter and employment destinations, requiring more vehicles and transit.

The EIR’s “travel demand analysis” also improperly assumes implementation of the Project’s “improvements to transit service” that are not reality-based, since they are unfunded, and their effectiveness is uncertain. The Project’s significant impacts on traffic and transit are completely unmitigated, as the EIR admits. Thus, the EIR’s travel demand estimate is based on incorrect data and false assumptions, with a resulting drastic underestimate of the transportation needs of the Project’s proposed 10,000 new residents, as well as the cumulative impacts in the area of the Project.

The EIR’s Table V.E.6 “External Person-Trip Generation by Mode” claims that the 10,000 new residents would only generate 5,999 total new trips per day by every mode, 3,087 new trips by vehicles, and, incredibly, only 462 new trips by transit, including all peak, weekday mid-day and weekend midday trips. (DEIR, p.V.E.44)

This misinformation glosses over the Project’s severe impacts and conflicts with the City’s 19th Avenue Corridor Study, which states that the Parkmerced Project would generate 96,684 daily weekday person-trips, including 80.7% by vehicle (78,024 daily trips); 16.3% by transit (15,760 daily trips); and 3.0% by “Other” including bicycles. [footnote number 1] (19th Avenue Corridor Study, February 12, 2010, pp.III.58-59). That study also states that when combined with other known projects in the study area, there will be 155,890 weekday daily person-trips. (Id., p. III.58)

The EIR’s implausible trip-generation figures invalidate the entire DEIR transportation analysis and require correction and recirculation. Those figures affect the analyses of the Project’s direct, indirect, and cumulative impacts on traffic, transit, public safety, air quality, and noise, as well as mitigations and alternatives to the Project’s significant impacts.

b. Transit Impacts

The EIR repeats the baseline error noted above by again using “Future year 2030 Cumulative” extrapolations from the SFCTA “CHAMP travel demand model” for the baseline of transit ridership. (DEIR, p.V.E.26) This computerized extrapolation again minimizes the Project’s impacts on transit and violates CEQA. (Sunnyvale, supra, 190 Cal. App. 4th at pp. 1372-73, 1381-83); CBE, supra, 48 Cal.4th at p. 328) The EIR must analyze transit impacts by measuring the actual transit ridership, and by comparing that data with the Project’s increase in transit ridership. The EIR must also analyze the direct and cumulative delays to transit users caused by the Project’s impacts on traffic congestion.

While claiming that the Project advances City’s 35-year-old “transit first” policy, the EIR drastically underestimates the increased transit ridership that would result from the 10,000 new residents. Even without an increase in the rate of transit use, the Project would generate 1,630 new transit users per day, according to the 19th Avenue Corridor Study (p.III.59), which projects transit use at 16.3% of all travel modes. The EIR, however, claims that there will be only 1,038 “net new trips” by transit generated daily by the Project, or a little over 10% of the mode split, assuming only 518 new round trips by transit per day by the 10,000 new residents. (DEIR, p.V.E.44)

The EIR, nevertheless, admits that “Project-related transit trips would cause the Study Area northeast screenline to exceed Muni’s capacity…during the PM Peak Hour.” (DEIR, p. V.E.80) However, the EIR explains that adding an additional needed rail car to the Muni M Ocean View line and retrofitting platforms “far exceeds the reasonable capability and responsibility of the Project Sponsor and would represent a series of improvements for which no fair share funding mechanism has been established. Therefore, the Proposed Project’s impact…would be significant and unavoidable.” (DEIR, p.V.E.80) The EIR thus permanently excuses the Project sponsor from funding necessary mitigations of the Project’s impacts on transit and traffic.

The EIR admits that the Project’s plan to make the M Ocean View route longer will cause significant impacts, because “Muni would not be able to maintain the existing or planned spacing between vehicles (i.e. headways) unless additional vehicles were purchased. Longer headways would reduce transit capacity, resulting in a significant impact on transit.” (DEIR, V.E.88) The EIR suggests that additional rail cars and platforms would have to be paid for by the San Francisco Municipal Transportation Agency (“SFMTA”), not the developer, and incorrectly claims that “public agencies subject to CEQA cannot commit to implementing any part of a proposed project, including proposed mitigation measures, until environmental review is complete.” (DEIR, V.E.89) That is false and misleading, since CEQA requires enforceable mitigation of a project’s impacts before approval. (PRC §21002; 21081.6(b); Guidelines §15126.4; e.g., Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Cal.4th 105, 134; Woodward Park Homeowners Assn., Inc. v. City of Fresno [“Woodward Park”] (2007) 150 Cal. App.4th 683, 724)

The EIR also says that congestion and passenger loading delays associated with increased ridership would result in significant impacts on the 18 46th Avenue bus line, adding up to 15 minutes of delay per bus during the AM peak hour and over 30 minutes of delay per bus during the PM peak hour. (DEIR, p. V.E.89) The Project would also cause “substantial delays along a key corridor – 19th Avenue.” (DEIR, V.E.90) The EIR, however, again fails to propose effective mitigations, and incorrectly claims that mitigation cannot take place until after certification of the EIR, passing the buck to Caltrans for mitigation, and concluding that even then “feasibility is uncertain.” (DEIR, p.V.E.92)

The EIR must propose effective mitigations, and their effectiveness must be supported by substantial evidence before the Project is approved. (Woodward Park, supra, 150 Cal. App.4th at p. 724)

c. The EIR’s Promised “Transportation Improvements” Are Unfunded, Speculative, and Would Cause Impacts that Are Not Analyzed and Mitigated in the EIR.

The EIR admits that the “Project Site is relatively isolated from the rest of the City,” that “bicycle activity in the project vicinity is low throughout the day,” and that transportation in the Project vicinity is “relatively auto-oriented.” The EIR nevertheless claims that its “improvements” will “facilitate walking and cycling for internal trips, and light rail and bus service for trips elsewhere”; “support a variety of travel modes at moderate to low speeds,” and that “New and improved transit service would be provided to the Project Site.” (DEIR, p. V.E.32) Slowed traffic and increased congestion are well-established as significant impacts measured by the Level of Service standard. Transit crowding is also an impact affecting delays and passenger capacity at peak and other hours. The EIR fails to identify, analyze and mitigate the impacts of causing reduced speeds that will inevitably cause increased congestion and traffic and transit delays.

The promise of “new and improved transit service to the Project Site” (DEIR, p.V.E.32) is unsupported, since there is no evidence of funding by the developer, the City, or Caltrans for the new buses and rail cars that would be needed to accommodate the new transit passengers.

The EIR promises that the “M Ocean View line would be rerouted through the Project Site” (DEIR, p.V.E.32), that the Muni Metro would have a right-of-way through the Project Site (DEIR, p.V.E. 34), that “Three new stations would be created within the Project Site,” and that a “low-emissions vehicle shuttle” would carry travelers to the Daly City BART station, and that a “shopper shuttle” would carry passengers to “nearby shopping centers.” (Id.)

However, these “improvements” and particularly the “new and improved transit service,” “light rail,” and additional buses and railcars are unfunded by the developer, City, or Caltrans. In fact, the EIR elsewhere admits that both the Project’s traffic and transit impacts will be significant and will not be mitigated, claiming that they are “unavoidable.” (DEIR, pp. II.12-27; V.E.80-96). The Project’s admitted significant traffic impacts affecting the entire region would negate any benefit from proposed walking “paseos” and bicycle paths.

Even if the promised “improvements” were not illusory and unfunded, CEQA requires analysis and mitigation of their impacts in the EIR, including delays and overcrowding on Muni, increased traffic congestion and delays from shuttles, and deliberate slowing of existing speeds of “travel modes.” In fact, the EIR admits that the Project’s proposed “improvement” to lengthen the Muni M line will cause significant impacts to transit. (DEIR, p.V.E.80, 88)

The EIR also mistakenly concludes that the Project will have no land use impacts by erroneously using permissible zoning and policy goals as the baseline for analyzing land use impacts, leading to the EIR’s false conclusion that the Project will have no impacts on land use. CEQA has long established that policies, plans, and allowable zoning do not constitute a legally adequate baseline. (E.g., EPIC v. County of El Dorado (1982)131 Cal.App.3d 350, 354, 357-58; CBE, supra, 48 Cal.4th at p. 328)

Finally, the EIR recites City’s familiar conclusory rhetoric that “parking is not an impact in San Francisco,” a factual and legal fallacy. (DEIR, p.V.E.103)

4. MITIGATION: The EIR Fails to Mitigate the Project’s Impacts on Traffic and Transit.

CEQA requires mitigation of the Project’s impacts in the EIR and in all findings. The EIR contains no section on mitigations or even a table showing where they are discussed. There is no discussion of mitigations that have been found to be infeasible. Instead, the EIR recites conclusory statements that either admit it has not analyzed feasibility or that simply pronounce that the Project’s significant impacts “unavoidable.” In addition to being legally inadequate, no substantial evidence supports either conclusion.

CEQA requires public agencies to not approve proposed projects if there are feasible mitigations for each significant impact. (PRC §§21002.1(a); 21100(b)(3); Guidelines §§15126, 15126.2, 15126.4(a)(1), 15002; e.g., Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Cal.4th 105, 134; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1106) The EIR must describe feasible measures that could minimize each significant impact identified in the EIR. (Guidelines §15126.4(a)(1).) The mitigations must be effective to satisfy CEQA, and their effectiveness must be supported by substantial evidence. (Woodward Park, supra, 150 Cal. App.4th at p. 724) Mitigation measures must be binding and fully enforceable. (PRC §§21061.1, 21081.6(b); Guidelines §15126.4(a); Woodward Park, supra, 150 Cal. App. 4th at p. 730) To assure that they will be implemented, mitigation measures are subject to monitoring and reporting. (PRC §21081.6(a).) Proposed mitigations do not relate to and need not accomplish the Project’s objectives.

City may not lawfully pass the buck to outside agencies and avoid its responsibility to analyze and assure mitigation of the Project’s impacts, since it must assure that any mitigations under the jurisdiction of another agency “have been, or can and should be, adopted by that other agency” supported by substantial evidence, before City approves any project. (e.g., PRC §§21081(a)(3); 21081.2(e); 21081.5, 21081.6(c).).

Here, the EIR provides no effective mitigation of any of the Project’s many significant transportation impacts, because there is no funding for more transit. The EIR repeatedly admits that the feasibility analysis by the SFMTA is incomplete and thus defective or nonexistent. (DEIR, pp.II.11-27) The EIR admits that implementation of the Project “would result in significant traffic impacts at study intersections” (e.g., DEIR, p. II.12), but fails to propose effective mitigations, instead passing the buck to either Caltrans or completely abandoning its responsibility to assure mitigation by relegating it to the developer.

For example, the EIR suggests as Mitigation Measure “M-TR-2B” that a traffic signal at Sunset Boulevard and Lake Merced “shall be implemented prior to completion of the Project or as otherwise specified in the Development Agreement.” (DEIR p. II.12) The DA is not included in the EIR, precluding public, agency, and decisionmaking review of its impacts on the environment.

The EIR then admits that the suggested mitigation measure is completely ineffective since it is not funded and there is no feasibility study: “SFMTA is not financially responsible for funding this improvement or the study of its feasibility. The SFMTA shall design and implement the measure as necessary. With implementation of M-TR-2B, operations at this intersection would improve to acceptable LOS D or better in the PM peak hour. However, since SFMTA is currently evaluating the feasibility of this measure and has not yet finalized its evaluation, implementation M-TR-2B is uncertain, and Project-related impacts at this intersection would remain significant and unavoidable.” (DEIR, p. II.12)

The same language about SFMTA not being “financially responsible for funding this improvement or the study of its feasibility” and the contradictory “SFMTA is currently evaluating the feasibility” is pasted onto the identified significant traffic and transit impact on major intersections throughout the area caused by the Project. The “study intersections” where the DEIR makes identical or similar statements about not making required feasibility findings and not proposing effective mitigations include virtually all of the Project’s many significant impacts identified in the EIR. (DEIR pp. II.11-30. [footnote #2]

The EIR misinforms the public and decisionmakers that “Implementation of mitigation measures above that would require discretionary approval actions by the SFMTA or other public agencies is considered uncertain because public agencies subject to CEQA cannot commit to implementing any part of a proposed project, including proposed mitigation measures, until environmental review is complete. Thus, while the SFMTA has reviewed the feasibility of several mitigation measures proposed to address significant impacts, implementation of these measures cannot be assured until after certification of this EIR.” (DEIR, p. II.19) As previously noted, the EIR may not lawfully defer mitigation of the Project’s impacts.

The EIR identifies many significant impacts on traffic and transit but proposes no effective mitigation for them. (DEIR, pp. II.11-27) The EIR repeatedly admits that it has failed to analyze the feasibility and effectiveness of the mitigations that it does propose. (Id.) These admissions of violating CEQA do not excuse those violations.

The EIR must not only propose effective mitigations for each identified significant impact, but it must also describe those mitigations found infeasible and the reasons for those conclusions, and these analyses must be supported by substantial evidence. (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425,449; Lincoln Place Tenants Assn. v. City of Los Angeles (2005) 130 Cal. App. 4th 1491, 1508) The DEIR must prove with substantial evidence that mitigations cannot be accomplished before claiming that they are infeasible, an analysis that is absent from the EIR. (Lincoln Place, supra, 155 Cal.App. 4th at p. 449)

Those mitigations, along with detailed performance objectives for mitigation measures by the lead agency or any agency having jurisdiction over them, had to be published before the close of the public review period for the Draft EIR. (PRC §21081.6(c)) Instead, the EIR simply repeats either that “No feasible mitigation measures have been identified,” or that the feasibility of such mitigations has not been determined with no supporting evidence for either conclusion. (DEIR, p.II.11-27) The EIR then labels the Project’s significant impacts “unavoidable,” as if that conclusion is supported by its failure to analyze the feasibility of mitigations. These circular conclusions are unsupported and violate CEQA.

Even if a proposed mitigation has been proven infeasible in the EIR, that does not mean that a significant impact is “unavoidable.” CEQA requires that mitigation include “Avoiding the impact altogether by not taking a certain action or parts of an action, [and] Minimizing impacts by limiting the degree or magnitude of the action and its implementation.” (Guidelines §15370) The EIR fails to propose such mitigations, and its a priori and per se conclusions that impacts are “unavoidable” violate CEQA. (E.g., Protect the Historic Amador Waterways v. Amador Water Agency, supra, 116 Cal.App.4th at p.1111; Laurel Heights Improvement Association of San Francisco, Inc. v. Regents of the University of California (1988) 47 Cal. 3d 376, 404)

5. Mitigation: The EIR Fails to Mitigate the Project’s Impacts on Historic Resources.

The EIR also fails to mitigate the Project’s impacts on historic resources and their significance under CEQA, the National Historic Preservation Act (NHPA), and the National Environmental Policy Act (NEPA).

The Project proposes the demolition and drastic alteration of historic resources, requiring a mandatory finding of significance under CEQA. (E.g., PRC §§21064; 21064.5; (Guidelines §15064, 15064.7) The EIR misinforms the public and decisionmakers by implying that it may “mitigate” those impacts by making a scrapbook of photos of the existing historic resources and park-like landscaping. Neither CEQA nor the Secretary of the Interior Guidelines allow photographs as mitigation for demolition of historic resources. (See, e.g., League for Protection of Oakland’s Architectural and Historic Resources v. City of Oakland (1997) 52 Cal. App. 4th 896, 909; Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1120); United States Secretary of the Interior’s Standards for the Treatment of Historic Properties)

6. The EIR Fails to Propose a Full Range of Alternatives and Does Not Include Off-Site Alternatives.

The EIR also fails to propose a full range of alternatives that mitigate or eliminate each significant impact in violation of CEQA. For example, the EIR does not contain a no-demolition alternative that would avoid the Project’s impacts on tenants. There is no alternatives range, that, for example proposes a no-demolition alternative or a range encompassing fewer new units. No alternative sites (off-site alternatives) are identified, which might, for example, locate the Project nearer to existing transit, such as in Daly City near the BART Station, instead of creating the Project’s significant impacts on traffic and transportation in an already-congested area. The EIR also erroneously includes the “No Project” alternative in its inadequate “range” of alternatives.

7. The Findings Are Legally Inadequate and Unsupported by Substantial Evidence.

The Findings repeat the flawed conclusions of the EIR, are legally inadequate, and are unsupported by substantial evidence.

8. The Statement of Overriding Considerations Is Legally Inadequate and Unsupported by Substantial Evidence.

The Statement of Overriding Considerations (“SOC”) is erroneously incorporated in the Findings. Only after feasibility findings are made may the agency and decisionmakers consider an SOC. Before it adopted a statement of overriding considerations, the City was required to first propose mitigations in the DEIR for every identified significant impact, and to support findings of their feasibility and infeasibility with substantial evidence in the record, which the EIR failed to do. The agency then had to make further findings and support them with substantial evidence, but instead the Planning Commission’s findings contain no evidence and simply repeat the findings in the EIR. Before it adopted a statement of overriding considerations, City was required to find that all proposed mitigations in the EIR and the Findings were “truly infeasible.” (City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, 368-369) The Planning Commission did not do so. Further, the SOC must be itself be supported by substantial evidence, but was not. (Sierra Club v. Contra Costa County 1992) 10 Cal.App.4th 1212, 1223)

9. The Proposed Development Agreement Violates CEQA.

City proposes to enter into a development agreement that improperly delegates responsibility for mitigating the Project’s impacts to the developer with no public oversight. The EIR fails to include the DA in the Project description, analyze it, and mitigate its impacts in violation of CEQA.

It is also illegal for City to turn over responsibility for mitigating the Project’s impacts and for monitoring mitigation to the developer in the DA. (Riverwatch v. Olivehain Municipal Water Dist. [“Riverwatch”] (2009) 170 Cal.App.4th 1186, 1208-1209) A development agreement having potentially significant impacts must be preceded, not followed by environmental review, including mitigation. (Id.; Save Tara v. City of West Hollywood [“Save Tara”] (2008) 45 Cal. 4th 116, 139)

Courts will look to the terms of a development agreement and to whether “the agency has committed itself to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project.” (Save Tara, supra, 45 Cal.4th at p. 139, emphasis added) Even where a development agreement contains “a provision regarding CEQA responsibility,” it does not satisfy CEQA if the public agency does not retain “complete discretion under CEQA” to consider a final EIR and to thereafter approve the Project, mitigation measures and alternatives. (Riverwatch, supra, 170 Cal.App.4th at p.1214)

Here, the DA precludes mitigation measures and alternatives that CEQA would otherwise require to be considered. While the EIR illegally defers environmental review and mitigation of substantial parts of the Project, the DA requires the City to commit to not “conduct any further environmental review or mitigation under CEQA for any aspect of the Project.” (DA §3.2) Thus, the DA would foreclose future mitigation and mitigation enforcement in conflict with CEQA. (Save Tara, supra, 45 Cal.4th at p. 139; Riverwatch, supra, 170 Cal. App.4th at p. 1211) The DA also contradicts and precludes possible mitigation by allowing the developer without the City’s consent “to sell developable lots or parcels within the Project Site for vertical development not requiring the construction of Community Improvements and Transportation Mitigation Measures.” (DA § 11.1, emphasis added)

The DA also demands that City “cooperate” with the developer in defending against any court challenge. (DA §8.3) The DA also requires City to “cooperate” in opposing any attempt to enforce mitigation. Thus, the DA requires the City to violate its duty under CEQA to effectively mitigate and monitor mitigation of the Project’s impacts. Indeed the DA illegally requires City to aggressively oppose the enforcement of CEQA’s requirements on behalf of the developer.

If an individual is displaced or evicted or if any member of the public or any group seeks redress for the Project’s impacts, they may only sue the developer, and if they lose the suit, they will be liable for the developer’s costs and the developer’s attorney fees. (DA §7.2) This provision is contrary to CEQA, which allows the public to seek judicial redress from the City for violations of CEQA, including enforcement of mitigation measures, without having to pay attorney fees or costs to a real party in interest in the event of unsuccessful litigation.

Of the mitigations proposed, the DA excuses the developer from implementing the proposed “Muni realignment” until at least 2500 new housing units are built. (DA §3.6.9(d)) The DA’s (“Sample Development Phase Application” [“DPA”], pp.5-6) proposes that Phase 1 would construct 2,184 units in five sub phases and demolish all existing structures except Towers 27, 39, 40, and 47. Thus, the claimed mitigation of constructing the MUNI project will not commence until after Phase 1 has constructed 2,184 new units. The only transportation improvements that would be implemented in Phase 1 would be “pedestrian paseos,” discounted transit passes, BART and shopper shuttles,” bicycle lanes, parking for bicycles and car share vehicles, and construction of one alley-way (DPA, p.6-7). There is no indication of when or in what phase the other proposed community improvements would take place.

There is no timetable for mitigating the Project’s traffic and transit impacts and no funding commitment. No provisions for financing of mitigations of traffic and transit impacts are described either in the EIR or the DA.

The DA would replace 1,538 existing dwelling units with new units that would be smaller (DA Table 4.3.4) and have less open space. The DA requires City to agree that by putting a washing machine, dryer and dishwasher inside the replacement units in lieu of existing open space, patios or balconies “shall not violate the Rent Ordinance.” (DA § 4.3.1) The DA demands that City agree that replacement unit parking spaces “may not be located within the building or parcel in which the Replacement unit is located.” (DA § 4.3.1) The replacement units will be be far removed from a parking garage, unlike the existing nearby parking. The DA claims without support that such inconvenience and danger “furthers the City’s Transit First policy.”

The DA calls for City to turn over public rights-of-way “in order to reconfigure the public rights-of-way,” which of course will no longer be “public” after City conveys them to the developer in the proposed quitclaim and abandons “any public rights…in such real property.” (DA §6.1.1, Ex’s. J and K) At an unspecified future time, the developer may or may not sell the reconfigured streets back to the City. The DA provides no public control of the “reconfiguration” of the privatized, formerly public streets, and no public control of mitigations of traffic and transit impacts during the 30-year construction period or when the Project site is built out and occupied by the 10,000 new residents. The DA provides no mitigation plan or time frame when those streets are to be re-acquired by the City through a “grant deed” that may or may not return ownership of the reconfigured streets to the City. (DA § 6.1.1)

The DA gives the developer a vested right to develop the site under the DA’s terms. (DA § 3.1) The DA is a permanently binding contract that is not described or analyzed in the EIR in violation of CEQA. The DA a dangerous, permanent and irrevocable commitment of public resources and an existing residential community to a private developer. Once approved, the DA is binding and the City (i.e., the taxpayers) could be held liable for breaching it. (Mammoth Lakes Land Acquisition LLC v. Town of Mammoth Lakes (3d Dist. App. No. C059239, Dec. 30, 2010, finding agency liable for $32,361,130.00 in damages for breaching a development agreement when that city tried to revise an agreement its decisionmakers voted to adopt)

The DA says that the City can impose conditions on “any new, discretionary permit resulting from material changes to the Project…as such conditions are determined by the City to be necessary to mitigate adverse environmental impacts identified through the CEQA process…provided, however, any such conditions must be in accordance with applicable law.” (DA §6.2.2) However, the “applicable law” on such agreements does not allow City to breach the agreement without risk of liability and for the developer’s attorney fees. (Mammoth Lakes, supra)

More problematic is that under the DA City abandons its legal responsibility under CEQA to monitor mitigations of the Project’s impacts. The DA permanently turns over the responsibility for mitigating the Project’s impacts to the developer, along with ownership of public open space and street space. The DA provides no possibility of public redress through its elected decisionmakers, and instead demands that anyone dissatisfied with the developer’s performance may only sue the developer, in which case the plaintiff would be liable for both costs and the developers’ attorney fees if the action was not successful, thus effectively chilling public redress through the court system, again in violation of CEQA. (DA §7.2)

10. The EIR’s Defects Require Correction, Revision, and Recirculation of the EIR.

CEQA requires correction, revision, and recirculation, because the DEIR is “so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.” (Guidelines §15088.5; PRC §21092.1) The EIR’s omissions and errors require correction, revision, and recirculation of the EIR to give the public and decisionmakers the opportunity to understand and comment on the full impacts of the Project and the DA, which is part of the Project, and to assure the mitigation of the Project’s impacts. The EIR’s flaws infect its analyses and conclusions, and the failure to propose effective, funded and enforceable mitigations require significant new information in the EIR that the public and decisionmakers must have the opportunity to consider.

11. City Is Without Authority to Enact Any Land Use Legislation and/or Legislation Amending Its General Plan, Because the General Plan Does Not Comply with the Requirements of the Government Code.

The City is without authority to approve the Project, because the City’s General Plan does not substantially comply with the requirements of the Planning and Zoning Law (E.g., Gov. Code §§65300 et seq.; Camp v. County of Mendocino (1981) 123 Cal.App.3d 334) City’s General Plan contains no Land Use Element, no Housing Element, and the (non-existent) Land Use Element is not correlated with the Transportation Element. (Ibid.) The proposed “2009 Housing Element” has not been adopted, and it does not comply with the requirements of the Government Code and CEQA. ((Ibid.; and, e.g., Gov. Code §§65302(c) and 65580 et seq., 65583; Buena Vista Garden Apartments Assn. v. City of San Diego Planning Dept. (1985) 175 Cal.App.3d 289, 295)

Further, the City has persistently failed to meet required quotas of middle and low income affordable housing, and the Project does nothing to remedy that deficiency, but instead destroys existing affordable housing and rental housing to build more market rate housing.


For the foregoing and other reasons, the EIR is legally inadequate and must be corrected, revised and recirculated to comply with CEQA. The Board should therefore sustain the appeals of the Planning Commission’s certification of the Parkmerced FEIR, should reverse the Planning Commission’s certification of the Parkmerced FEIR, and should prepare findings accordingly.

Please place a copy of this Comment in all applicable files.

DATED: March 28, 2011

[footnote #1] The May, 2009 entire bicycle count at intersections in the corridor area totaled 36 bicycles. (San Francisco Planning Department: 19th Avenue Corridor Study, February 12, 2010, p.III.32)

[footnote #2] See, e.g., intersection at Lake Merced Boulevard and eastbound Winston Drive (DEIR, p. II.12-13); Lake Merced Boulevard and State Drive (DEIR, II.13-14); 19th Avenue Muni lines (DEIR, p. II.14-15); Brotherhood Way/Arch Street (DEIR II. 15-16); “additional light rail vehicle for the M Ocean View” (DEIR, p. II.17-18); “the Lake Merced Boulevard corridor” and “increase[ed] travel times and impact [on] operations of the Muni 18 46th Avenue bus line” (DEIR, p. II.18-20); contribution to “existing traffic volumes at intersections along the 19th Avenue corridor, which would increase travel times and affect operations of the 17 Parkmerced” (DEIR, p. II. 20) ; contribution to “existing traffic volumes at intersections along the 19th Avenue corridor, which would increase travel times and affect operations of the 28 19th Avenue and 28L 19th Avenue Limited (DEIR, p. II.20-21); contribution to “existing traffic volumes at intersections along the Sunset Boulevard, Lake Merced Boulevard, Winston Drive, and 19th Avenue corridors, which would increase travel times and affect operations of the 29 Sunset” (DEIR, p. II.21-22); contribution to “existing traffic volumes at intersections along the Lake Merced Boulevard corridor, which would increase travel times and affect operations of a SamTrans bus line (DEIR, p. II.22); contribution of the “Project Variant” (HOT lanes) to “existing traffic volumes at intersections along key transit corridors, which would cause congestion and increase travel times and impact operations of transit” (DEIR, p. II.22-27)



At 2:30 PM, Anonymous Anonymous said...

"parking for bicycles"

Whoa, that leaped right out at me. This project needs to be shut down NOW. Bring on the EIR lawsuits!

At 4:18 PM, Anonymous Anonymous said...

Who cares what they do in Montara/Pacifica/Daly City/whatever.

At 10:36 AM, Anonymous Anonymous said...

As long as there's no bike parking, I don't have a problem with it. Bike parking generates huge amounts of greenhouse gasses and has been shown to be a contributor to several kinds of cancer.

At 7:07 PM, Blogger Rob Anderson said...

Even worse if you see a lot of bikes, you know there will be a lot of assholes around.

At 6:05 PM, Anonymous Anonymous said...

Bike parking means more space taken away from my street for bike lanes.

I hate when that happens.


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