Saturday, June 23, 2007

SF Loses again: Housing Element must have an EIR

The City of San Francisco has lost again in court, as the First Court of Appeals threw out the city's 2004 Housing Element because the city failed to do the required environmental review under state law. You can view and/or print out the decision from this site, and the case number is A112987. The city was rebuked by the court for failing---again---to do an EIR on a project that clearly required one. The city's policy evidently is to do whatever it wants, forcing citizens and neighborhood groups to litigate to get it to obey the law. And the Bicycle Plan and the Housing Element were not isolated instances of this policy. The latest example is the city's Wi-Fi agreement with Earthlink.

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The Market/Octavia Plan: Destroying the heart of San Francisco

Market & Octavia Plan Area
Market & Octavia Plan

Last Tuesday the Board of Supervisors passed the Market and Octavia Neighborhood Plan, which will essentially give developers a number of incentives to build on thousands of parcels in the heart of San Francisco, including an undetermined number of 40-story highrises in the Market/Van Ness area. 

The Plan rezones more than 3,000 parcels---it's hard to determine the exact number, since the Planning Dept. continued to amend the ordinances long after public comment ended---to allow developers to build with no set-backs, no backyards, and more liberal height limitations. Planning's goal is to allow a radical increase in population density in an area that already has more than 26,000 people.

The Plan is aggressively anti-car and anti-parking, limiting the amount of parking that can be included with the new housing units, which is why the SF Bicycle Coalition endorses this destructive Plan. 

The fiction that Planning bases this imprudent policy on is the Transit Corridors myth, that the city can build an almost unlimited amount of new housing in the area, because it's near city transit corridors. Of course as anyone who lives in SF knows, Muni already struggles to cope with its current passenger load of 685,000 boardings on a typical workday. 

The Plan will encourage 6,000 new housing units and, by its own conservative reckoning, 10,000 new residents in a part of town that is in traffic gridlock much of the day due to the revamped Octavia Blvd. that now carries much of the traffic that used to use the Central Freeway through the heart of Hayes Valley. Not surprisingly, "progressive" political lemming and District 5 Supervisor Ross Mikarimi voted for the destructive Plan.

The comment below---written by attorney Mary Miles and submitted as part of CFAR's appeal of the Planning Commission's vote to the board---explains exactly how the Board of Supervisors is going to allow the Planning Dept. to destroy a huge part of the heart of San Francisco, including the Civic Center, which will be put in shadows by the new highrises in the Market/Van Ness area.


Planning Department Case No. 2003.0347

by Mary Miles
Attorney at Law

This is public comment on the Market and Octavia Better Neighborhoods Plan (hereinafter “Project” or “Plan”), the environmental impact report (“EIR”) on the Project, proposed legislation on the Project, and our Appeal of the Planning Commission’s actions on the Project. The Coalition for Adequate Review (CFAR) is an unincorporated association dedicated to assuring complete and accurate review, informed decision-making and public participation in the review of major projects proposed in the Project Area, other areas, and citywide in San Francisco, assuring that environmental and other impacts are properly analyzed and mitigated, and that alternatives are analyzed and offered. This Comment is submitted in the public interest.

If approved, this Project will have significant adverse impacts on the environment of the Project Area, the entire City, its residents, visitors and future generations. The Project will rezone 3,255 to 4,773 parcels in the center of San Francisco, removing all existing regulation of bulk, density, open space, setback, height, and parking in the Project area, and introducing 40-story high-rises into the City’s center where they have never before existed. The Project will radically alter the physical landscape of the Project Area and the heart of the City by introducing high-rise, high density, unregulated development that will dwarf the graceful, historic character of the Civic Center and surrounding areas, cause immitigable adverse impacts on traffic, public transit, parking, open space, growth, air quality, historic, visual and aesthetic resources.

In spite of its size and voluminous addenda, the EIR fails to comply with CEQA’s requirements to identify and analyze the significant adverse impacts this Project will cause. There is no coherent analysis of the Project’s significant adverse impacts on parking, traffic, transit, growth, views, and aesthetic and historic resources.

The Project will destroy the character of the entire area, swallowing up older, smaller residential neighborhoods that give San Francisco its unique character with large, bulky, ugly, incompatible box structures, “street walls,” residential high-rises built to the property lines and “infill” box structures. The Project creates new zoning designations and legislation changing the Planning Code, General Plan and Zoning Maps removing all density limitations in the Project area, and introducing 400-foot high-rises where they have never existed before. There is no serious evaluation of alternatives or mitigation proposed. The Project is also inconsistent with the General Plan, the Planning Code, Zoning Maps, and the threshold requirements of Planning Code §101.1 (Proposition M).

The Project foreseeably portends the demolition of older, smaller structures with its financial incentive to fill lots now occupied by smaller, older and even historic structures with larger structures under no restrictions on density, bulk, height, setback, and parking. No analysis of these obvious adverse impacts appears in the EIR.

The Project’s high-rise incursion into the City’s central core will permanently obstruct, dwarf and degrade views of the historic Civic Center and surrounding areas from every public and private vantage point for miles around. The EIR unlawfully defers analysis of significant impacts on historic resources throughout the Project Area, and fails to propose effective measures to protect the character of historic neighborhoods.

While touting “transportation options,” the EIR’s true objective is to remove the transportation option already chosen by the vast majority of residents and visitors, the automobile. The Project’s anti-car ideology and its fiction that the Project Area and San Francisco are “transit rich” are contradicted by its own source data that disclose the dismal performance and overcrowded conditions on Muni buses throughout the Project area. Muni cannot efficiently meet present demand, much less accommodate the travel needs of the proposed “healthy infusion” of 10,000 new residents under this Plan. The existing severe lack of parking and open space in the Project Area will be vastly worsened by the Project. No mitigations are proposed in the Plan.

The claim that “affordable” housing will result from the Plan is fiction, like the notion that the residents of the 5,960 new market-rate housing units and other residents of the area will abandon automobiles for public transit. The Project requires no inclusionary affordable housing in the Project area, in conflict with the General Plan and Planning Code §101.1. In fact, the Project’s elimination of existing density, height, bulk, setback, rear yard, parking, and open space requirements invites the demolition of existing older, smaller structures and neighborhood character (DEIR, p. 4-71) in violation of CEQA, the General Plan and the Planning Code’s requirements at §101.1. Hence, the Plan will promote less housing affordability while degrading and ultimately destroying the character of existing neighborhoods. Similarly, by requiring that housing and rental costs not include parking, costs for most residents will increase because they will have to pay for parking in addition to market-rate housing costs. Nothing in the Project directs developers to establish any particular figure for housing or parking costs.

Since the “objectives” of “affordability” claimed by the Project are unrelated to the Project’s actual provisions that require no inclusive affordable housing, the claimed reason for the Project to meet needs of “moderate income households” (e.g. 254-page Ordinance at §326.1(B)) is neither the Project’s true goal nor will it be achieved by the Project, rendering it of no benefit to the general public. Instead the Project will degrade the entire center of San Francisco to give a windfall to private market-rate development interests, a loss of public input into the environment of this area, and an inevitable increase in the cost of infrastructure to accommodate the 9,875 new residents of the Project’s market-rate housing. The Project includes no provision for funding for public transit, traffic, parking, parks, schools, post offices, libraries, or other facilities for existing residents, visitors and commuters in the center of the city, whose environment will be adversely affected by the Project’s infusion of 9,875 new residents.

The Project couches its development mandate in Orwellian language: In this Plan, density development is “livability.” Demolition is “reweaving neighborhood fabric.” High-rises result in “vibrant neighborhood places.” Eliminating parking provides “transportation options.” Parks and open space are in reality minuscule “hardscape plazas” in the middle of 400-foot high-rise clusters (“Brady Park”), freeway touchdowns (“McCoppin Plaza”), and widened sidewalks (“pedestrian realm improvements”). This verbiage does not mitigate the significant impacts from this Project, and the failure to properly analyze and mitigate this Project’s significant impacts violates CEQA.

Therefore, any approval of the Project, its EIR, and the proposed legislation would be an abuse of discretion and a failure to proceed in a manner required by law.


A. The Many Substantial Changes Require a Supplemental DEIR and Recirculation.

The Project sponsor, the San Francisco Planning Department (“Planning”) released a Draft Environmental Impact Report (“DEIR”) on June 25, 2005, followed by a period of public comment.

The Project began in 2000 as a proposal for residential development on 22 parcels transferred to the City by the State (Caltrans) when it removed the elevated Central Freeway (see footnote #1 below). At some point not defined in any Project documents, those 22 “freeway parcels” metastasized into the huge present Plan to rezone up to 4,773 parcels in the heart of San Francisco for unrestricted density and high-rise development and parking elimination. (DEIR, Fig. 3-2) The Project area was fictitiously coined the “Market and Octavia Neighborhood,” though such a “neighborhood” does not exist. In fact, the Project now encompasses a large part of central San Francisco, including all or parts of the Hayes Valley, Civic Center, Van Ness, Mid-Market, South of Market, Inner Mission, Castro, Upper Market, Mission Dolores, Mint Hill, Western Addition, Duboce Triangle, Eureka Valley, and other neighborhoods.

On September 28, 2006, Planning released a document called “Market and Octavia Neighborhood Plan Comments and Responses” (“C&R”). The C&R document substantially revised the Project and added a body of new data. Hundreds of pages of addenda, attachments, exhibits, and revisions of the proposed legislation were released in September, November, and December, 2006, and January, February, and March, 2007. The revisions substantially changed the Project, Planning’s evaluation of impacts on the environment and underlying data, and proposed mitigations and alternatives.

In the C&R, Planning introduced entirely new policies that significantly revised the Plan, including, among others, the correction of the claim of promoting affordable housing, conceding that the Plan in fact contains no provision requiring inclusionary affordable housing anywhere in the Project area. The C&R also included new information on significant impacts, including but not limited to impacts on transportation, traffic, parking, historic, visual and aesthetic resources, and open space. Some of the new information is inconsistent with information in the DEIR, and some of the new information is incomplete and/or contains substantial errors.

The EIR changed data from that contained in the DEIR. For example, the data on growth caused by the Project was significantly increased on September 18, 2006, from 4,400 to 5,960 new market-rate housing units, with 9,875 new residents. (Ex. P-1 at p. 11, revised February 8, 2007; Ex. P-1-B, again revised March 20, 2007 at p. 10). No impacts from this increase were evaluated, such as on parking, traffic, transit, open space, historic, visual and aesthetic resources, and others. None of the Ordinances, which are referred to as “Exhibits” in the Planning Commission’s legislation, were ever labeled as such, making it impossible to ascertain what the Exhibits are. All of the Exhibits referred to in the legislation and the Project contain the actual text of the ordinances, proposed mitigations, and “improvements.” Each was substantively changed at every hearing and thereafter with no public notice.

The Project’s “Exhibit Z-3-A,” dated February 1, 2007, contained a listing of the thousands of parcels to be rezoned, a total of 4,773 parcels, consuming a Proposed Ordinance (unlabeled) that was 49 pages long. On April 17, 2007---after adoption of Resolution No. 17410 referring to it---that Exhibit was changed to “Exhibit Z-3-B” with parcels added for rezoning, and a new total of 119 pages rezoning 3,255 parcels. Neither was placed before the public before the close of public comment in 2005, making it impossible to ascertain which parcels were affected and how. “Exhibit Z-3-B” did not exist on April 5, 2007 when the Planning Commission voted. It remains impossible to determine how many thousands of parcels this Project will rezone for density, high-rise development and parking removal in the heart of San Francisco. When Project boundaries are changed, the EIR must be recirculated.

Among many other substantial revisions of the Project, Planning now admits that the Project contains no requirement of inclusionary affordable housing, though the Project claims its primary objective is to “provide additional housing, especially affordable housing.” (Exhibit M-1 at p. 7; and Executive Summary Addendum for Hearing February 8, 2007 at p. 12.) In fact, as the revisions show, the Project requires no inclusionary affordable housing. (Ibid.) Of 5,960 projected new housing units (see footnote #2 below), only 400 of the 800 on the “freeway” parcels given to the Redevelopment Agency by the City are projected to be affordable, and those are reserved for special groups and not the general public. (E.g., C&R, pp. 5-31 - 5-32)

Other substantial changes include but are not limited to a five-foot height “bonus” throughout the Plan area, new high-rise development (up to 400 feet) in areas not described in the DEIR, substantial height increases on “freeway parcels” given to the Redevelopment Agency, new provisions on bulk, parking, transportation, historic preservation, boundaries, “land use controls,” and proposed new mitigations. (C&R, pp. 5-1--6-16.) Several newly proposed mitigations are enjoined by court order in other litigation. All of these changes are significant and require recirculation and a new public comment period.

No environmental review has been conducted on any of the added material, and no further public input has been allowed. Since September 28, 2006, Planning has stated on its web site that the public cannot submit comment on the Project’s many amendments and changes, itself a violation of CEQA.

As late as February 8, 2007, more than 1,000 pages of new revisions were released on Planning’s web site, with the hard copy dated February 1, 2007. The revisions significantly changed the Project, including several other documents, such as a revised “Community Improvement Program.” The addenda included hundreds of pages of revised proposed Ordinances and Resolution(s). All of these documents were changed with no public notice again on or after the Planning Commission’s April 5, 2007 vote. Some are dated as late as April 17, 2007, giving neither the decision-makers nor the public opportunity to comprehend their contents before they were approved. That legislation proposes radical changes to the City’s Planning Code, Zoning Maps and General Plan. This huge volume of material, by its bulk alone, renders the EIR incomprehensible, incoherent, inconsistent and impossible for the public to assimilate, much less to give informed public input, defeating CEQA’s primary purpose of informed decision-making and informed public participation.

With no public notice or mailed announcement, even to those, like the Appellants, who requested it, Planning first released its proposed legislation after September 26, 2006, by placing the huge legislative documents referring to attachments that were not attached on its website in PDF format, making it impossible for the public without advanced downloading and reproduction capabilities to get copies. The Planning Commission began a series of eight hearings, announcing before each that it would not accept any further public comment. (See Agendas of San Francisco Planning Commission, October 26, 2006, November 2, 2006, November 9, 2006, December 7, 2006, January 11, 2007, February 8, 2007, February 15, 2007, and March 22, 2007.)

Planning has never publicly released any coherent Final Environmental Impact Report (“FEIR”), claiming instead that the FEIR consisted of the DEIR, the C&R, and proposed legislation. In its Motion No. 17406, the Planning Commission claimed that the FEIR now consists of “the DEIR, any consultations and comments received during the review process, any additional information that became available, and the Summary of Comments and Responses all as required by law.” (San Francisco Planning Commission Motion No. 17406 at ¶4). Those materials were never made available to the public in a coherent form. Instead, thousands of pages were changed from week to week, with the changes announced after the fact.

After hearings began on October 26, 2006, Planning made major changes to the legislation, adding more documents to the FEIR at every hearing and between hearings, with no public notice or announcement. Planning added Exhibits to the FEIR consisting of hundreds of pages of material and then changed the content of these documents, the addenda, its Community Improvement Plan, the Plan itself, and proposed mitigations at least nine times, requiring reproduction of revised lengthy documents of more than 1,000 pages with each change.

Planning made a major revision of the entire package in December, 2006, then another major revision on February 8, 2007, with no advance public notice or announcement.

The proposed legislation, including hundreds of pages of ordinances, resolutions, motions, addenda, and exhibits, was also changed at least nine times between the release of the C&R and the Planning Commission’s actions of April 5, 2007.

On April 5, 2007, all of the documents contained in the FEIR were again substantively changed. Copies of the Planning Commission’s actions were not made publicly available until April 19, 2007, even though Planning demanded that appeals of the Commission’s actions must be submitted by April 25, 2007, less than one week later.

Revisions of the Project and FEIR were substantive, including revisions to proposed rezoning, height, density, bulk, parking, and even the borders of the Project area. The most recent revised legislation was not available to the public until May 15, 2007, one week before the Planning Commission hearing, with some of it dated after the Planning Commission’s vote. Thus the material voted on could not have been before the Commission when it voted on April 5, 2007.

The Legislation as of this Comment consists of hundreds of pages of material, including:

1) MOTION NO. 17406 (“Adopting Findings Related to the Certification of a Final Environmental Impact Report for the Proposed Market and Octavia Plan, Amendments to the San Francisco Planning Code and Zoning Maps, Amendments to the San Francisco General Plan, Adoption of Urban Design Guidelines, and Amendments to the Western Addition A-2 Redevelopment Plan. The Plan Area Is Generally Located to the West of the City’s Downtown Area and Includes Portions of Civic Center, Hayes Valley, Western Addition, South of Market, Inner Mission, the Castro, the Duboce Triangle, Eureka Valley, and Upper Market Neighborhoods of San Francisco”);

2) ATTACHMENT A to Motion 17406, consisting of CEQA “Findings of Fact, Evaluation of Mitigation Measures and Alternatives, and Statement of Overriding Considerations;

3) MOTION 17407 (“Adopting Environmental Findings (and a Statement of Overriding Considerations) Under the California environmental Quality Act and Site Guidelines in Connection with the Adoption of the Market and Octavia Area Plan and Related Actions Necessary to Implement Such Plan.”);

4) RESOLUTION NO. 17408 (recommending that the Board of Supervisors adopt amendments to the General Plan attached in an Ordinance as “Exhibit M-3-B”) (No Exhibit was attached in the copy provided the Appellants.)

5) Unnumbered ORDINANCE amending the San Francisco General Plan related to Market & Octavia Area Plan, dated April 17, 2007;

6) RESOLUTION NO. 17409 (recommending that the Board of Supervisors amend the San Francisco Planning Code by an ordinance attached as “Exhibit T-3-B”) (No “Exhibit” was attached in the copy provided the Appellants.);

7) Unnumbered ORDINANCE amending the San Francisco Planning Code (hereinafter “254-page Ordinance”), dated April 17, 2007;

8) RESOLUTION NO. 17410 (recommending that the Board amend the San Francisco Zoning Maps via an ordinance [referred to as “Exhibit Z-3-B”]) (No “Exhibit” was attached in the copy provided the Appellants.);

9) Unnumbered ORDINANCE amending the San Francisco Zoning Maps 2, 2H, 2SU, 7, 7H, and 7SU in the City Zoning Maps, dated April 17, 2007 (hereinafter “119-page Ordinance”);

10) MOTION NO. 17411 enacting “interim procedures” due to Planning’s failure to conduct a historic resources survey in compliance with CEQA, and referring to “Exhibits U-3-B” and “U-4-B.” (No “Exhibit” was attached in the copy provided the Appellants);

11) “Exhibit U-3-B”;

12) “Exhibit U-4-B”;

13) “Exhibit P-1-B,” “Draft Community Improvements Document,” March 20, 2007 (113 pages);

14) “Mitigation Monitoring and Reporting Program” (“MMRP”), April 5, 2007
(28 pages, of which 17 pages are devoted to archaeological and human remains);

15) Other “Exhibits,” proposed Ordinances and addenda which remain undefined, as well as the DEIR and C&R documents.

At the final Planning Commission meeting on April 5, 2007, Planning staff referred to new documents that were not publicly announced or provided, yet were included in the substance of the Commission’s votes. Some documents approved by the Commission on April 5, 2007, were created after the Commission’s vote. Planning did not make publicly available its motions, resolutions and attached documents reflecting the actions of the Planning Commission on April 5th until after the deadline for filing an Appeal of the Planning Commission’s actions (April 25th). Planning did not provide signed copies of the Commission’s legislation until May 14, 2007, and documents referred to in those actions still have not been provided to the Appellants and the public.

At public hearings since October 26, 2006, and in non-public sessions with private interests, including selected private organizations calling themselves “neighborhood groups,” the Planning Department has changed the Plan as it goes along, making exceptions to its purported physical “controls” on behalf of various projects that will have significant impacts. (E.g., Planning Commission Resolution No.17408.) The resulting deals exempt developers from Plan height and bulk requirements, including but not limited to, freeway parcels and properties at 555 Fulton, while dismissing the concerns of those affected by the new height-bulk-setback-no yard requirements. Neither the exceptions nor the public concerns have been included in the additional documents or in Planning’s selective “summary” of the public comments made since release of the DEIR. For example, while supporting exceptions to the Project’s “restrictions” on behalf of developers, Planning summarily dismissed the large amount of negative public comment on a proposed nine-story box of condominiums on Market Street that will destroy the character of the Mint Hill neighborhood and obscure the view of the historic Mint.

Where a “new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented,” the EIR must be recirculated. (Guidelines §15088.5(a)(1).) Significant impacts will result from the changes to the Project proposed after release of the DEIR. Where a “substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance,” the EIR must be recirculated. (Guidelines §15088.5(a)(2).) The new additions and information require revision and recirculation of the EIR for public comment. Planning’s new “Community Improvements Program” document of February 8, 2007, containing proposals that have been enjoined by the Court, will have significant adverse impacts, some of which are preempted under the State Constitution. Planning revised that document, back-dating the revision to April 5, 2007, when it changed its mind about mitigating significant adverse impacts on traffic, transit and parking by eliminating westbound traffic lanes on Hayes Street between Van Ness and Gough, changing Hayes to a two-way street, after demands from the San Francisco Bicycle Coalition. Yet even the latest version of that document still contains misinformation, such as its claim that Hayes will remain a one-way street. (MMRP, April 5, 2007, Item D). The Commission took action claiming such mitigation would be “infeasible.” (Planning Commission Motion No. 17406, Attachment A (CEQA Findings), April 5, 2007, at ¶F, pp. 20-21.) Thus, many documents are deceptive and incorrect, even after numerous revisions, making it impossible to ascertain the actual contents of the ever-changing FEIR and legislation.

The large number of revisions in many documents render the EIR incomprehensible, defeating CEQA’s central purpose of informed decision-making and informed public participation. The public has had no opportunity to formally comment on the substantive changes Planning has made to the Project’s EIR.

On March 2, 2007, March 22, 2007, and April 3, 2007, the Appellants requested recirculation of the EIR to allow public input and informed decision-making, but that request was denied without a response. This Comment renews our Request for Recirculation and incorporates those Requests by reference. Planning should have created and circulated a Supplemental DEIR (“SDEIR”) encompassing its substantial revisions to the EIR and the Project, new information and data, and revised legislation. (Pub. Res. Code §21092.1; 14 Cal. Code Regs. (“Guidelines”) §15088.5)

B. Planning Has Misled the Public and Decisionmakers by Claiming There Will Be Future Review of Developments in the Project Area.

Planning has misled the public and decisionmakers by claiming that many of the Project’s impacts would occur without the Project. In fact, if this Project and EIR are approved, the public will no longer have any redress under CEQA to Planning’s approval of any proposed project in this Project Area. (See, e.g., Pub. Res. Code § 21083.3; Guidelines §15183.) Public participation in the decision-making process under CEQA will no longer exist for any development under this Plan.

Planning’s claim that, for example, the incursion of high-rise construction into the city’s central core and removal of parking would occur without this Project is misleading. The Project’s primary aim is to eliminate CEQA and public review of every development proposal in this large area in the center of San Francisco. Without the Project, proposals for developments are individually reviewed with opportunity for public input. With the Project, there will be NO individual review or opportunity for public input on development proposals, but instead only an internal approval by the Planning Department stating that they conform with the “Market and Octavia Neighborhood Plan.”

Nothing in the proposed legislation, the EIR or other Project documents provides for any future review or input by the public. Misleading the public and the decision-makers about the nature of future “discretionary” review of proposals in the Project Area itself violates CEQA. If this Project is approved, the public will be permanently excluded from any say about what takes place in the Project Area. Thus, the Project is not only a giveaway of San Francisco’s central core area to unrestricted development, but it will also shut the door on public input and permanently exempt any project within its boundaries from public review under CEQA.

The Project states that it will “function as a model for reweaving the urban fabric in other neighborhoods that are interested in amplifying the benefits of a vibrant transit-oriented settlement pattern for such neighborhoods.” (DEIR at p.3-1) Thus it is not just a giveaway to unrestricted development in the Project Area but will also serve as a blueprint for development throughout the city, creating a model for exemption from CEQA by simply creating fictitious new “neighborhoods.” (DEIR at p. 3-1)


The purpose of an EIR is to “inform the public and its responsible officials of the environmental consequences of their decisions before they are made.” Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 355.) Thus, CEQA “protects not only the environment but also informed self-government.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392; Guidelines §15003.) An EIR is required, among other things, to identify the significant effects of the Project on the environment. (Pub. Res. Code §21100(b)(1); Guidelines, §15126(a).) A “significant effect” is a “substantial or potentially substantial adverse change in the environment.” (Pub.Res.Code §21068). Once a significant effect has been identified, the EIR must propose and describe mitigation measures that will minimize the significant environmental effects. (Pub.Res.Code §21100(b)(3), Guidelines §15126(e). “The failure to provide enough information to permit informed decisionmaking is fatal,” and approval of any EIR that does not fulfill the informational requirements of CEQA is a failure to proceed in a manner required by law. (Napa Citizens for Honest Government, supra, 91 Cal. App.4th at 361.)

The following are some examples of the EIR’s deficiencies. This list is not inclusive, and this commenter reserves the right to augment and amend the comment in further proceedings.


The Plan and the Ordinance eliminate parking requirements for new and existing developments, prohibit the construction of parking facilities, the ingress/egress of cars, and set nearly impossible conditions on the construction of public parking facilities in the Plan Area. The Plan aggressively eliminates parking in new and existing buildings and garages and access to parking, claiming with no supporting evidence that “parking facilities…have an overall negative effect on the neighborhood.” (DEIR at p. 3-27) The facts indicate the contrary, since most city residents and visitors own, drive, and need a place to park cars. The EIR fails to note that the Project Area serves not only area residents but employees, jurors and visitors to the courts, cultural and educational institutions in the Civic Center area, and visitors viewing the City’s historic landmarks and amenities, all of whom need parking.

The Plan proposes “several parking policy bring about a change in the transportation conditions in the Project Area.” (DEIR at p. 3-27) With no supporting evidence, the Plan “recognizes that parking availability influences mode choices and therefore proposes to limit the amount of required on-site parking, and discourages new parking facilities.” (DEIR at p. 1-5) The Project eliminates minimum parking requirements in newly constructed buildings, and instead requires maximum caps on the amount of parking permitted in new developments. (DEIR at 3-18; Proposed 254-page Ordinance entitled “Planning Code Amendments to Implement the Market and Octavia Area Plan,” April 17, 2007, [hereinafter “254-page Ordinance”] at, e.g., §151.1)

For projects with 50 units or more, the Project requires that all parking spaces “in excess of 0.5 spaces per unit shall be stored and accessed by mechanical stackers or lifts, valet, or other space-efficient means…” (254-page Ordinance at §151.1(f) (2)(A).) The Ordinance requires no off-street parking for freight loading, assuring that large delivery vehicles will double and triple park in city streets. (254-page Ordinance at §152). The Ordinance imposes a lengthy list of criteria for parking garages in new or existing buildings. If expanding an existing facility, that facility must prove it has “already maximized capacity through use of all feasible space efficient techniques, including valet operation or mechanical stackers” and must produce “a survey of the supply and utilization of all existing publicly-accessible parking facilities, both publicly an privately owned, within one-half mile of the subject site, and has demonstrated that such facilities do not contain excess capacity, including via more efficient space management or extended operations.” (Id. at §158.1(a)(3-5).) The ordinance allows convenience stores in the Project area only if no off-street parking is permitted. (Id. at §230.)

The Ordinance exempts parking for City and other government employees vehicles from all its requirements. (254-page Ordinance at §158.1(d).) This privileged class of drivers will not be subject to the punitive parking measures inflicted on the general public by this Project.

The Plan announces that it will not analyze the Project’s drastic impacts on parking in direct violation of CEQA. (DEIR 3-29)

The Project claims that it gives the “option” to residents to not own a car, but that option already exists throughout San Francisco and the densely-populated and heavily trafficked Project Area. What the Project really does is remove the option that most city residents have already chosen: owning and driving a car. The Project’s “transit-rich corridor” mantra is repeated hundreds of times throughout the EIR and other documents, along with the unproven assertion that if the city makes parking more expensive and difficult people will abandon their cars and instead board the city’s already crowded Muni buses.

The Plan also eliminates minimum required parking for commercial uses, replacing those requirements with maximum parking caps of less than half the current minimum. (DEIR at pp. 3-18, and 3-27 through 3-28). Neighborhood-serving ground-floor retail is urged throughout the Plan area, but parking and loading for “neighborhood-serving retail” is prohibited or severely curtailed. (254-page Ordinance at, e.g., §151.1, 152-155.)

The Plan further proposes citywide (not just in the Project Area) parking policy changes, such as “revising the Residential Parking Permit program.” (DEIR at p. 3-27).

Among other measures to punish car users, the Project prohibits curb-cuts (driveways), requires a 25-foot setback for parking, both from the fully built-out bulk structures and from smaller structures, proposing that existing residential garages be converted to living quarters. The Project also mandates that parking costs must be “unbundled” from housing costs, enabling developers and landlords to charge additional fees for parking, above and beyond the market-rate housing proposed by the Project. (E.g., 254-page Ordinance at §167) (see footnote #3 below)

NO parking facilities would be permitted to be built, or existing ones expanded, in the entire Project area without first proving that such measures as lifts and valet parking had been tried in every existing facility in the Project Area. (254-page Ordinance at, e.g., §158.1(b)(3)) (Id. at §158.1)

The Project not only endorses the severe existing parking shortage but will eliminate existing parking throughout the Project area. The Project calls for the construction of dense, bulky structures containing 5,960 new residences and commercial businesses with no parking requirement and a maximum parking cap that is severely inadequate. Incredibly, the Project claims that turning this anti-car political ideology into reality for residents who need to park does not require analysis under CEQA.

The Project claims that, in spite of its 5,960 new housing units and 9,875 new residents in the area, it will only generate a “range of new parking spaces from 0 to 3,160, depending on the individual development proposals.” (DEIR 3-4) However, the Project requires no parking in any development and imposes maximum caps on parking, radically changing the Planning Code’s existing one-to-one parking requirements, guaranteeing impacts on parking. It provides no mitigation for its impacts, incorrectly denying that parking is an impact under CEQA. Even though the EIR further states that development under the Project will eliminate 980 more parking spaces, it does not recommend their replacement or the development of other parking in the Project Area. (C&R, p. 3-60). Nor does it propose any mitigation for the parking shortage created by 9,875 new residents, which adds to the existing severe parking shortage, as does the Project’s elimination of 980 existing parking spaces.

1. The EIR’s Conclusions On Parking Impacts Are Legally Incorrect.

The EIR misstates that parking is not an impact in San Francisco. (C&R, p. 3-54)We are told that “San Francisco does not consider parking supply as part of the permanent physical environment,” and that “Parking deficits are considered to be social effects, rather than impacts on the physical environment as defined by CEQA.” (C&R, p. 3-54) These conclusions are incorrect as a matter of law.

Impacts on parking have long been recognized as a significant under CEQA, and must be analyzed and mitigated. (E.g., Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1003 (Loss of on-street parking “indicated that a finding of significant environmental effect was mandatory.”); Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal.App.3d 1011, 1028 (“[T]raffic and parking have the potential…of causing serious environmental problems.”); San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 696-98, Fn.24 (Parking deficits were significant impact requiring mitigation). Here, the proposed Project not only worsens an already severe parking shortage, but it physically changes the environment by further eliminating parking, parking facilities, and access to parking. The Project also eliminates existing parking requirements in new construction, substituting mandatory caps on parking that will necessarily create an even worse parking shortfall under its extreme-density-development imperative. These are direct, physical changes that must be analyzed under CEQA, along with indirect significant impacts.

CEQA also requires that the EIR analyze and mitigate indirect and cumulative impacts on parking from existing shortages, the removal of existing parking, and the creation of future shortages by limiting and eliminating parking in new development.(See, e.g., Guidelines §15065(a)(2)-(3), and Appendix G, §§XV (f) and XVII(b) and (c).)

The Project’s aggressive removal of existing and future parking will also have significant effects on the business environment, economic and social changes that may determine that a physical change is a significant effect (Guidelines §§15064(e); 15382). Such changes may themselves cause a physical change and a significant effect.(Guidelines §15065(e).)

Lack of parking is also recognized as a “Physical and economic condition…that cause[s] blight.” (Cal. Health & Safety Code §33031(a)(2); Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1149-50.) CEQA recognizes that, as here, the potential to indirectly cause urban blight is a significant impact on the environment.(Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1204-05.)

The Public Resources Code section 21083(b)(3) requires finding that a project may have a significant effect on the environment if it will cause substantial adverse effects on human beings, either directly or indirectly. Eliminating parking affects people adversely, particularly those who have chosen to drive a car, as well as those subjected to increased traffic, congestion, air pollution, and a degraded quality of life by forcing them to spend more time, resources, and money to park.

Thus, the EIR’s conclusion that parking is not considered an impact in San Francisco is both arrogant---the City is still part of California---and against the law. The Project will clearly have significant impacts on parking that must be evaluated and mitigated. To approve this EIR under these circumstances is an abuse of discretion.

2. The EIR’s Conclusions on Parking Are Not Supported by Substantial Evidence.

a. The EIR’s Baseline Is Incorrect.

While admitting the Project will cause a severe parking shortfall, the Project makes no effort to evaluate these significant impacts on existing residents of the Project Area or on the new residents, who it hopes, without supporting evidence, will not have cars.

The EIR misstates both the existing parking shortfall in the Project Area and the additional impacts of the Project’s removal of hundreds of parking spaces, as well as the impacts of the Project’s removing the minimum parking requirements in the Planning Code for new housing units. (See, e.g., San Francisco Planning Code §§150 et seq.) Instead, the Project places caps on parking that cut that requirement in half, along with other punitive measures removing access to parking and regulations that make construction of new parking facilities nearly impossible.

The following are some, but not all, of the incorrect, unsupported and misleading statements in the EIR on existing parking in the area

(1) The EIR continues to mislead the decision-makers and the public by including the Civic Center parking garage in its “existing supply” figures. The Civic Center Garage is not in the Project Area. It is often also closed to the public on weekdays when those working in and/or visiting courts, government offices, cultural and educational facilities in the Civic Center area fill the garage beyond capacity, even with valets. The Civic Center Garage currently has a two-year waiting period for monthly parking permits and is 106% occupied on most days. (EIP Associates: Hastings Parking Garage Project Supplemental Environmental Impact Report, April 22, 2006, p. III.B-8.) It serves a large commuting population of workers in the courts, government offices, cultural venues, Main Library, and educational institutions, as well as tourists and visitors. Including the Civic Center garage in the Project area inflates the EIR’s data on existing supply by 843 to 1010 (with “valet”). (C&R, p. 3-28, Table C-5, Revised). By including the Civic Center Garage, the EIR falsely gauges the parking shortfall caused by the Project, which will be 3,930 to 7,090 or more parking spaces in the Project Area if an accurate baseline is used.

(2) The EIR includes in its existing supply a number of facilities that no longer exist or are closed to the public, though City and Planning employees park their cars in reserved spaces in them, even as they create Projects that remove parking for the general public. (see footnote #4 below)

The EIR claims that there were 3,804 existing spaces in the “Off-Street Parking Supply in the Market Octavia Project Area” in December, 2005. (C&R at p. 3-27 - 3-28, Table C-5, Revised). That is plainly false, since the C&R points out that at least 2626 to 2793 of these parking spaces are not available to the public, including the Civic Center Garage. (Ibid.) Likewise, the C&R’s “Figure 4-22” at p. 4-199, claiming to depict “Existing Year Off-Street Parking,” is false and misleading. Nearly all of the lots described are either closed to the public, no longer in existence, and/or not in the Project Area, according to data appearing elsewhere in the C&R document. Without this incorrect data, the existing supply in the Project Area would be 1973 parking spaces, including the Performing Arts Garage, containing 600 parking spaces (630 with valet parking).

(3)The C&R incorrectly claims that only 340 off-street parking spaces have been eliminated within the Project Area since 2002. (C&R at p. 3-50). The MTA’s Director of Parking, Ron Szeto, has set that figure at more than 1,000 spaces lost due to the Central Freeway removal and development. (Letter from Ron Szeto to Dean Macris, June 1, 2006.) Accurate revision would conservatively reduce the “existing supply” to 973.

(4) Not included in the EIR are data on the elimination in the past three years of hundreds of spaces of public street and metered parking on major streets throughout the area, including but not limited to, Market, Gough, Octavia, Hayes, Haight, Page, Fell, Oak, and others due to development, the Bicycle Plan, and other projects.

(5) Planning further claims that “approximately 980” more spaces would be “eliminated as part of the Plan or other private development projects within the Project Area,” not including the freeway parcels. (C&R, p. 3-50.) Yet Planning does not subtract this number from its existing supply, which it instead claims increased to 3,805 in 2005. (C&R, p.3-51)

(6) Also unmentioned in the EIR are 626 spaces guaranteed by union contracts to employees of the opera, ballet and symphony that will be eliminated by the Project.

(7) The Mid-Market Redevelopment Project EIR in 2004 found a parking deficit of 2000 spaces in the greater Civic Center area. (at p. 3-85, 3-87)

According to the EIR’s own data and source material, the overall parking space reduction between 2002 and the Plan’s completion date is “ approximately 1,320 spaces” (C&R, p.3-50). Under the MTA’s data, that reduction would be 1,980 spaces. City erroneously states that the “existing supply” is 3,804 or 3,805 existing spaces in the “Off-Street Parking Supply in the Market Octavia Project Area” in December, 2005. (C&R at p. 3-27 - 3-28, Table C-5, Revised, or C&R, p. 3-50). However, according to the EIR’s own data, that existing supply has already been reduced by 2,811 spaces, which would decrease that figure to 993.

Without the EIR’s erroneous inclusion of the Civic Center Garage, the existing supply of public parking is between 150 to minus-17. Adding MTA’s estimate of lost parking due to the freeway removal, the existing parking supply becomes minus-850 to minus-1,017 spaces. This does not include the aforementioned elimination of hundreds of public (white curb) and metered parking spaces throughout the area. Therefore, the EIR’s claim that there are 3,805 existing spaces is not supported by any reliable evidence. Rather, according to the City’s own source data, there is an existing shortfall of more than 1,000 parking spaces throughout the Project Area that already presents serious hardship and difficulty for residents, workers and commuters.

The Project will also remove 980 or more parking spaces for its proposed developments, while increasing the population of the area by 9,875 new residents in 5,980 new market-rate dwellings (or 1.65 persons per unit).

If 9,875 new residents each have one car (see footnote #5 below) and no parking is provided, the shortfall created by the Project will be 10,855 (9,875 + 980 spaces removed by the Project), in addition to the existing shortfall of more than 1,000 spaces.

If only half the new residents have cars, the shortfall created by the project will be 5,918 (4938 + 980 removed by the Project) in addition to the existing shortfall of more than 1,000 spaces.

If developers could theoretically (under the Project they cannot) build one parking space for each unit, and each new resident has a car, the shortfall created by the Project will be 4,875 in addition to the existing shortfall of more than 1,000 spaces. (9,875 residents - 5,980 spaces + 980.)

If developers choose to build .50 spaces for each unit as mandated by the Project, and each new resident has a car, the shortfall created by the Project will be 7,865 in addition to the existing shortfall of more than 1,000 spaces. (9,875 residents - 2990 spaces = 6,885 + 980.)

If developers choose to build .50 spaces for each unit, and only half the new resident own cars, the shortfall created by the Project will be 2,928 in addition to the existing shortfall of more than 1,000 spaces. (4,938 residents - 2,990 spaces = 1,948 + 980.)

If developers choose to build .75 spaces for each unit and each new resident has a car, the shortfall created by the Project will be 6,370 in addition to the existing shortfall of more than 1,000 spaces. (9,875 new residents - 4485 spaces = 5,390 + 980.)

If developers choose to build .75 spaces for each unit and only half the new residents have cars, the shortfall created by the Project will be 1,433 in addition to the existing shortfall of more than 1,000 spaces. (4,938 new residents - 4,485 spaces = 453 + 980.)

Hence, the actual shortfall directly caused by this Project will be from 1,433 to 10,855 parking spaces, in addition to the existing shortfall of more than 1,000 spaces in the Project area, or 2,433 to 11,855.

An accurate baseline is required under CEQA as the beginning point for the evaluation of impacts from the Project. The severe existing shortfall of parking must be accurately stated to evaluate and mitigate the significant, adverse impacts on parking from this Project, which will physically remove parking throughout the area, a direct impact that will aggravate the severe existing parking shortage, causing cumulative, direct and indirect impacts. The EIR fails to analyze, mitigate and propose alternatives to these significant adverse impacts.

b. The EIR Misstates and Ignores Existing and Future Parking Demand in the Project Area.

According to source material cited in the EIR, vehicle ownership in San Francisco is 1.15 per household. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November 2001 at p. 1) Vehicle ownership rose significantly since 1990, particularly among renters. (Id. at p. 12) In the Project Area, vehicle ownership is 1.12 per household for owners and .75 per household for renters. (Id. at p. 13) By 2010, motor vehicle ownership in the Project Area is projected to increase to 1.17 per household for owners, and .84 per household for renters. The higher the housing prices, the greater the vehicle ownership. (Id. at pp. 18-19) As income levels needed for home ownership are reached, income has little effect on vehicle ownership. (Id. at p. 19)

Increasing transit service levels by 25% in the Project Area is estimated to reduce vehicle ownership by only 6%, from .93 vehicles per household to .87 vehicles per household. Affordability of home ownership increases vehicle ownership. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November 2001, at p. 30, Figure 24)

There is no evidence supporting Planning’s claim that including parking costs in housing costs increases the cost of a home by $30,000 to $60,000. The theory is flawed because it does not include the San Francisco residents who choose to own cars, instead speculating that future residents will be motivated by lack of parking to not own a car. The EIR’s source material is an outdated thesis from 1998, which claims that in 1996 parking added 11.8 to 13% to the cost of 232 housing units studied in San Francisco. (Jia, Wenyu and Wachs, Martin (1998),“Parking requirements and housing affordability: a case study of San Francisco.”) (hereinafter “Jia/Wachs,” cited at Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November 2001, at p. 32.) (see footnote #6 below) Such speculation is not substantial evidence under CEQA.

c. No Evidence Supports the Theory that Removing Parking Requirements from Residences Increases Affordability in San Francisco.

There is no evidence for the theory that by separating the cost of parking from the cost of housing the market rate for housing will be reduced. For those who wish to park their cars anywhere near their homes, the cost will be added to the market-rate they paid for housing. But no evidence indicates that the market rate price will go down. Further, the Jia/Wachs study took place when housing was less than half its present cost. (Id.) (see footnote #7 below)

Income has not risen correspondingly, and therefore, as Nelson\Nygaard found, where anyone can afford to buy or rent a market-rate dwelling in San Francisco, they will own at least one vehicle. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November 2001, at pp. 18-19.)

d. The Project Claims that People Own Cars Only to Park Them.

While admitting that its conclusion “is very difficult to establish directly from data,” the Nelson\Nygaard study concludes that “parking supply is a key cause of vehicle ownership.” (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November 2001, at p. 34.) This deeply flawed and self-contradictory conclusion claims that people do not own vehicles because they need them for travel or commuting, but because parking is supplied. The EIR therefore concludes that if parking is not supplied, residents will not own vehicles. The Project will make this unfounded assumption the law of San Francisco.

e. Residents Near “Transit Corridors” Own Cars and Need Parking.

There is no evidence supporting the EIR’s theory of a decrease in vehicle ownership due to proximity to “transit corridors.” In fact, the experts who formulated the “transit corridor” theory have renounced the Planning Department’s notion that those using transit to commute will not also own a vehicle. Michael Bernick, co-author with Robert Cervero, of Transit Villages in the 21st Century (McGraw-Hill, 1996), a renowned expert on transportation issues, states:

Recently, San Francisco’s Board of Supervisors approved a change to the city’s General Plan, with potentially far-reaching impacts on the city’s neighborhoods. Proponents…claim that it better connects transit and land use by densifying housing and reducing parking requirements near transit corridors. In fact, the policy completely misunderstands the research and theory of transit-based housing as well as the process of community building. These studies…focus on rail transit, particularly heavy-rail transit, such as BART. The data on ridership for light rail and bus, the main transit service in San Francisco, show far less significant tie between transit ridership and station proximity.

[M]ost San Francisco neighborhoods already qualify as transit villages…The Housing Element…ignores neighborhood character. It seeks to squeeze persons into these neighborhoods, often in odd configurations and against neighborhood opposition. It assumes that many new residents will not own cars--even though our research showed that transit village residents, while using transit for many trips, do own autos and need parking…all of these neighborhoods are fragile and can easily be undermined. City planning needs to support neighborhood-based planning and high-quality Muni service in the built communities and encourage new transit-based communities in the city’s emerging central waterfront and Southern areas. (Bernick, Michael: “San Francisco’s Housing Element--Built on Misunderstanding,” San Francisco Chronicle, November 23, 2004.) (emphasis added)

f. The EIR Omits Commuting Workers, Tourists, and Visitors from Its Conclusions.

The EIR concludes that the total parking shortfall with the Project will be between 2,250 to 5,410 parking spaces. (C&R at p. 3-181, Table B)(see footnote #8 below) But the EIR excludes commuting workers, tourists, visitors, and existing residents from its conclusions. In fact, the shortfall will be between 5,485 to 11,855 spaces, not counting parking for the 4,290 new jobs, retail and visitor destinations that will be created in the Project area. (DEIR at p. 4-67, Table 4-2; and 4-69.)

According to the San Francisco County Transportation Authority’s Countywide Transportation Plan, July 2004, the commute mode of San Francisco residents is as follows: Drive Alone: 40.5%; Carpool: 10.8%; Transit: 31.1%; Walk: 9.4% Other: 3.6%; Work at Home: 4.6%. (Id. at p. 40) The most pronounced demographic in the past 35 years is the number of people commuting into and out of the city to work (as opposed to living and working in San Francisco). (Id.) 22.5% of San Francisco residents commute to other counties to work. 27% of workers in San Francisco commute into the city from other counties. Additionally, the city attracts more than 14 million visitors per year (Id. at p. 41).

Thus, if this commute mode continues as the SFCTA predicts, 78.3% of persons working at those 4,290 new jobs in the Project area will commute by car. That will create an additional parking demand for 3,359 parking spaces. If new commuters by vehicle are added, the total parking shortfall in the Project Area will then be 8,844 to 15,214 spaces, assuming that the Project’s objective of building no new parking facilities is achieved.

(1) The EIR Omits Demand from Surrounding Institutions and Cultural Venues, including but not limited to the parking demand created by:

* School of Arts at 135 Van Ness, which will have 1000 students and faculty, with a 1200-seat auditorium used several days and nights per week;
* Conservatory of Music at 50 Oak Street, with 260 students, 30 staff and a 400-capacity recital hall (Nelson\Nygaard: Civic Center Parking Analysis, p. 6-8, June, 2001;
* Conservatory Theater at 25 Van Ness;
* National Center for International Schools, including the French and Chinese American Schools at 150 Oak Street (230 staff, 300 high-school age students Nelson\Nygaard, P.6-8);
* San Francisco Girls Chorus and School at 44 Page Street (300 students);

* and the Progress Foundation at 368 Fell Street;

Commuters who work or visit government, court, cultural, or institutional centers in and immediately around the Project Area, including the Civic Center. The EIR incorrectly claims it does not need to evaluate the additional demand from these institutions because that increased demand would occur regardless of the residential and commercial development proposed by the Project. (C&R at p.3-33)

2) 626 existing parking spaces guaranteed by union contracts to employees of the Opera, Ballet and Symphony will be eliminated by developments proposed by the Project. (C&R, pp. 3-59 - 3-60).

3) The EIR does not include the hundreds of existing parking spaces exclusively reserved for City employees.

4) The EIR does not include the parking spaces needed for thousands of employees and visitors to the large new Federal Building at 7th and Mission.

5) The EIR does not include the estimated 6,000 visitors per week to the Asian Art Museum.(C&R at p.3-85)

6) The EIR does not evaluate the cumulative impacts of the existing shortfall of parking, the removal of 980 spaces for development, the demands of commuters and visitors to the area, and the needs of the nearly 10,000 new residents of the market-rate housing units it proposes.

The cumulative impacts of the Project’s additional demands, as well as its imperative to remove 980 existing parking spaces for development, must be added to existing and projected demands, regardless of whether they are part of the Project. (Guidelines §§15130; 15064; 15065; 15355; and, e.g., San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61,75-79; Communities for a better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 117.)

Basing its predictions on its false baseline and demand data, the EIR claims that expansion of the Performing Arts Garage could “replace about 35% of the parking spaces that are expected to be eliminated in the Project Area.” (C&R, p.3-34) Under its own erroneous data, such a replacement would require more than doubling the size of that garage. (see footnote #9 below) Yet the Project requires that any expansion of existing parking facilities must, as a condition, first demonstrate that every parking facility in the Project area has tried car “stacking” and “valets,” and many other requirements. (254-page Ordinance at, e.g., §158.1(b)(3).)

7) The EIR says that of the 9,875 new residents under the Project, 7,870 would be employed, but that only 60 new jobs would be in the Project Area. (DEIR, pp. 4-67) The EIR says that without the Project, the Project Area will see an increase of “about 4,230 jobs by 2025” (DEIR, p. 4-69). The EIR says that those jobs will only “generate demand for about 1,495 new housing units that would represent 98 percent of new housing development (about 1,520 units) that would be built without the proposed Plan. The proposed Plan would increase housing supply that could accommodate projected job growth in the Project Area and provide surplus housing to serve the rest of the city.” (DEIR, p. 4-70) No data supports the EIR’s conclusion that new employees in the area would also buy new market-rate units in the area, or that the huge number of government and City employees already in the area would live in the new units and not have cars, especially since many City employees already receive reserved free parking throughout the Project area. Nor is there any support for the theory that a surplus of market-rate units in the Project area would serve “the rest of the city.” Analysis and mitigation of parking, transit and traffic impacts of the 7,870 new employed residents are absent from the EIR.

8) The Plan hypocritically exempts the hundreds of spaces devoted to free parking for thousands of City and other government employees from all of the Project’s punitive parking requirements.(E.g., C&R, pp. 3-27 - 28; and 254-page Ordinance at §158.1(d).)

9) The EIR contains no analysis of the parking, transportation, or traffic impacts from the large number of new residents who will commute to work outside of Project Area from their new market-rate residences in the Project Area. There is no substantial evidence supporting any presumption that the new residents will work anywhere near their residences. Although the Project claims that 4,290 new (mostly government) jobs are projected in the Project area by 2025, there is no data supporting the speculation that they will be the same people who can afford the market-rate residences in the Project area.

10) The data cited in the EIR and in the San Francisco Transportation Authority’s Countywide Transportation Plan, July 2004, p. 40, indicates that most residents in San Francisco, including those living in the Project Area, have already made their transportation choices and have chosen the automobile. The Project thus disserves the vast majority of existing residents who drive.

11) No data supports the EIR’s theory that commuters will choose a different mode of transportation if parking is made more difficult and expensive. The Project’s source data proves that even if parking costs increase and availability decreases, few, if any, (perhaps 6%) of car commuters will take public transit. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Civic Center Parking Analysis Existing Conditions Report, June, 2001, at p. 4-17)

g. The Project Will Have Significant Adverse Impacts on Housing Affordability, Neighborhood “Livability,” and Retail Uses.

The DEIR at p. 4-53 claims, with no supporting evidence, that “Reduction of parking space requirements would decrease the amount of auto traffic in the Project Area, suggesting that, over time, the pedestrian land use environment would be enhanced by fewer curb-cuts and widened sidewalks, retail uses would be improved by more vibrant continuous street frontages, and auto-related noise and air pollution impacts on neighborhood livability would be reduced. Overall, the reduction in land and building space devoted to parking could increase the potential for housing development and reduce housing unit costs.”

No substantial evidence supports an actual reduction in housing costs anywhere in San Francisco due to lack of parking or not requiring parking with housing. More likely, residents will face added costs for parking where it once was included with housing. And, as the DEIR admits, its maximum caps resulting in inadequate parking throughout the area, “could create a disincentive to developers to construct housing by lowering the sale value of housing units.” (DEIR, p. 4-230, Fn.5)

“Neighborhood livability” is not improved by removing parking. Rather, it results in degrading the quality of life for every resident who has to endure the miserable experience of searching for parking, moving cars, double parking, parking on sidewalks, and other desperate measures, not to mention getting expensive citations. Lack of parking disproportionately affects the elderly, families with young children, and the disabled, as well as those who have to commute to jobs.

Requiring residents to pay more for parking will cause economic hardship for those least able to afford it. (C&R at Letter AA-4) The EIR dismisses these important indirect impacts of the Project. (C&R at p.3-303) Nor does any evidence support the notion that eliminating parking “would decrease the amount of auto traffic.” More likely, the Project’s removal of parking will increase traffic, since visitors, shoppers, commuters, and residents will have to search for parking, an indirect impact on traffic and air quality that the EIR does not analyze.

3. The EIR Admits the Project Will Cause Significant Adverse Impacts on Parking but Proposes No Mitigation.

Throughout administrative proceedings, Planning has dismissed the large amount of negative public comment on the Project’s significant adverse impacts on parking.(C&R at, e.g., Letters A, B, C, D, U, V, X, AA, pp. 4-2, 4-6, 4-13, and in Planning Commission Hearings.)

CEQA requires that where there will be a significant impact, either direct or indirect, on the environment, that those impacts must be mitigated. As noted above, CEQA recognizes that impacts on parking are significant impacts, and they must be mitigated to achieve compliance with the law. The EIR does not analyze or mitigate parking impacts from this Project and cannot survive a court challenge to its plain violations of CEQA on this issue. Further, because the EIR contains no substantial evidence to support its conclusions, any approval of the EIR is an abuse of discretion and a failure to proceed in a manner required by law.


The EIR fails to accurately analyze existing traffic, effects of the freeway removal and installation of the Octavia Boulevard freeway ingress-egress, effects of large-scale parking removal on traffic, effects of 9,875 new residents in the market-rate dwellings proposed by the Project, effects of more buses, effects of slower signalization on congestion, and effects of 4,290 new jobs in the Project area, among other things. (DEIR, 4-67) The EIR includes no Level of Service (“LOS”) data on most streets in the Project area, and proposes no effective mitigation for increased traffic on any streets. Indeed the Project admits that its proposed “mitigations” for several streets would increase impacts on traffic and congestion. (DEIR at pp. 5-14 - 5-18.) Proposed mitigation measures are unfunded, ineffective, and some have even been enjoined by the Superior Court because of the Bicycle Plan litigation.

The Project “cannot state a policy of reducing traffic congestion, recognize that an increase in traffic will cause unacceptable congestion and at the same time approve a project that will increase traffic congestion without taking affirmative steps to handle that increase.” (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 380.) The County must make a “binding commitment” to alleviate the impacts the Project will have on traffic and housing. (Id.)

Mitigation measures must be funded and proportional to the impacts of a project. (Guidelines §15126.4(a)(4)(B); Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 364.) Mitigation for cumulative impacts must also be funded. (Id. at 364-65.)

1. There is NO Up-to-Date Baseline Accurately Showing Existing Traffic Conditions Since the New Octavia Boulevard Placed the Freeway Traffic on Neighborhood Streets.

The Project is severely flawed in omitting traffic impact analyses at the appropriate baseline, as they exist today, since they will be adversely affected by the Project.

Incredibly, the EIR includes no analysis of the impacts of the new Octavia Boulevard that opened in September, 2005, the six-lane surface freeway ingress-egress that cuts through the Project area that replaced the Central Freeway. The former freeway touchdown ramps carried 93,100 vehicles per day. (San Francisco Department of Parking & Traffic [“DPT”], “Octavia Boulevard Operation, Six Month Report March 2, 2006, p. 2.) (see footnote #10 below)

Only a few months after its opening, the DPT recognized major congestion at many intersections in the Project area, none of which appear anywhere in the EIR, either as a baseline of “existing” conditions, or in an analysis of significant impacts on traffic from the Project. (DPT,“Octavia Boulevard Operation, Six Month Report March 2, 2006, p. 2.) For example, the Fell-Laguna intersection experienced a 92% increase in a.m. traffic and a daily 24-hour increase in traffic of 78%. (Id. at p. 3) “Recurrent congestion” was noted on Oak St. at Octavia Blvd. on weekdays and weekends, “with traffic backed up several blocks.” (Id. at pp.3, 7 and 8.) Northbound congestion at Market Street caused by the no-right-turn lane onto the freeway often backs traffic onto Market for several blocks.(Id. at p. 4, 10) Increased congestion was also noted at the South Van Ness freeway on-ramp. (Id. at pp. 6, 8) Queuing backed up for several blocks is also present on Page (96% increase in a.m. traffic, and 41% increase in 24-hour traffic), Haight (270% increase in a.m. traffic and 112% increase in 24-hour traffic) (Id. at pp. 11-12). DPT noted nearly a year ago that the new Octavia Boulevard was “close to…capacity that we estimated when the new design was proposed” and represented only “about half the previous capacity of the elevated freeway structure. The current surface roadway can carry approximately 1,400 vehicles per direction per hour before congestion sets in.” (Id. at p. 2.)

None of this information appears in the EIR’s analysis of “existing conditions” or of impacts from the Project.

No LOS analysis appears in the EIR for any of these and other streets in the Project Area and in the cumulative area affected by the Project. The SFCTA’s Congestion Management Program 2005/6 November 2005, shows severe congestion, LOS “F” existing in the Project area on Fell from Gough to Market; Duboce from Market to Mission and Potrero to Mission and Duboce/Division; Gough from Golden Gate to Market; Van Ness from Golden Gate to 13th; and Van Ness to I-80. (Id. at pp. 30-34.) However, the SFCTA document does not analyze other streets in the Project Area. (see footnote #11 below)

The EIR makes no attempt to accurately establish the existing conditions in the Project Area, and therefore cannot accurately identify impacts from the Project.

2. There Is NO Accurate Analysis of the Project’s Impacts on Traffic.

Also omitted from the EIR is any coherent, up-to-date data on the impacts on transportation, transit, and traffic from the removal of the Central Freeway and the construction of a six-lane ingress-egress cutting through the Project Area on Octavia Boulevard, causing significant traffic impacts on that and many other streets. There is no coherent analysis or mitigation of traffic impacts caused by the Project. That information is crucial to informed decisionmaking, and its omission is unlawful under CEQA.

The EIR says that the Plan would generate “about 35,970 person-trips and 10,955 vehicle trips per day.” (DEIR at p. 4-208) The EIR admits the Project will have significant adverse impacts on traffic at many major intersections. (DEIR at pp. 4-212-213). Yet, incredibly, the EIR concludes that the Project would not have adverse impacts on most streets but would only result in significant and unavoidable impacts at the Laguna/Market/Hermann/ Guerrero intersection. (DEIR at pp. 4-216).

The EIR admits that the Project will have cumulative impacts at the Hayes/Van Ness; Mission Otis/S. Van Ness; Market/Church/14th; and Market/Sanchez/15th intersections and would “add substantial numbers of vehicles to multiple movements which determine overall LOS performance at these four intersections,” and would have a "significant impact on a total of 7 of the 12 intersections” considered. (DEIR at p. 4-222)

In view of the SFCTA’s data, the EIR implausibly claims that the Project would not have significant cumulative impacts on the Market/Octavia/McCoppin; Market/Van Ness-S.Van Ness; Duboce/Mission/Otis/101 Off-Ramp; Oak/Octavia; and Duboce/S.Van Ness intersections. (DEIR at 4-222).

A recent poll found that the biggest concern of San Francisco and Bay Area residents was transportation.“Transportation dominated the survey, as it has every year over the past decade…traffic congestion, the condition of roads and bridges, and public transit” was the most important Bay Area problem, exceeding housing. (Gordon, Rachel: “Biggest Concern in Poll,” San Francisco Chronicle, March 1, 2007.)

Yet the EIR proposes nothing to mitigate this Project’s direct, indirect, and cumulative impacts on traffic and transit.

The Project recently released a “Community Improvements Program” document (Ex. P-1-A, February 1, 2007, revised as Ex. P-1-B, March 20, 2007)) that calls for measures that would further adversely affect both traffic and transit throughout the Project area, yet it does not analyze or mitigate their impacts. (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 380 [The Project “cannot state a policy of reducing traffic congestion, recognize that an increase in traffic will cause unacceptable congestion and at the same time approve a project that will increase traffic congestion without taking affirmative steps to handle that increase.” The County must make a “binding commitment” to alleviate the impacts the Project will have on traffic and housing.].)

For example, reducing the lanes on State Highway 101 (Van Ness Blvd.) to two traffic lanes to create a “BRT” project (“bus rapid transit”) is proposed on that major interstate highway and thoroughfare at an estimated cost of $58,340,000. (Ex. P-1-A, February 1, 2007, at p. 15) That proposal would certainly have severe, immitigable, adverse impacts on traffic and transit that are not analyzed in the EIR. Since Van Ness is a State Highway, the City has no authority to take any action on it. (E.g. Cal. Const., art. XI, §7)

As noted in the Project’s source data, buses do not benefit from dedicated rights of way or other priority measures, such as transit-preferential signals. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Market/Octavia Study Area Existing Conditions Report, August 2001, at “Transit,” p. 1-3.) This data invalidates any proposed “mitigations” consisting of “BRT” or other dedicated lanes.

The “Community Improvements Program” also calls for lane reduction, removal of parking and/or or closing of other streets to vehicle traffic, a proposal certain to have severe impacts on traffic congestion on streets throughout the area. (Ex. P-1-A, February 1, 2007, at pp. 15 and 23, and e.g., Market Street Bicycle Lane; Page Street Bicycle Boulevard) These proposals for bicycle facilities are unlawful, having been enjoined by order of the San Francisco Superior Court. (Coalition for Adequate Review v. City and County of San Francisco, S.F.Sup.Ct. Case No. 505509, Order of November 7, 2006.) (see footnote #12 below) Even if these proposals were lawful, their significant adverse impacts have not been identified or mitigated.

The Bay area is in non-attainment status for air quality. (DEIR on “55 Laguna Mixed Use Project” at III.D-5, III.D-9, etc.) This Project will plainly cause criteria air pollutant emissions from a variety of emissions sources, including stationary sources and as traffic congestion directly and cumulatively resulting from the Project. Even a small part of the Project resulted in Planning’s finding that, “Project-related traffic could not only increase existing traffic volumes, but also cause existing non-project traffic to travel at slower, more polluting speeds,” with “hot spot” air pollution potential. (Id. at III.D-13 - 14.) The 39,970 person-trips per day and 10,955 vehicle trips per day by 9,875 new residents will obviously cause impacts on air quality which are not identified, analyzed or mitigated in this EIR.

The EIR’s failure to provide this and other information on traffic impacts and to propose meaningful mitigation severely flaw it as an informational document.

3. There Is No Commitment to Any Mitigation of Significant Impacts on Traffic.

The Planning Commission claimed that its proposed mitigation of the Project’s traffic impacts on Hayes Street (Van Ness to Gough) by not eliminating a westbound traffic lane and parking on Hayes Street is “infeasible,” because, by not snarling traffic on Van Ness and Hayes, the Project cannot satisfy demands of private organizations such as the San Francisco Bicycle Coalition for a “healthy pedestrian environment” on Hayes Street. (Motion No. 17406, Attachment A, CEQA Findings at pp. 23-27, 41.) No feasibility study has been conducted, and no evidence supports the idea that backing up traffic creates a healthier pedestrian environment.

The EIR proposes signal timing changes as mitigations, (DEIR at p. 5-16), admitting they would have to “ensure that the changes would not substantially affect Muni bus operations.” These proposed “mitigations” are not explained or analyzed. Will the lights slow traffic? Will the lights be red longer, delaying intersection traffic even more? The EIR’s mitigations are couched in disclaimers: “As the feasibility of the signal timing changes has not been fully assessed, the potential for a significant and unavoidable impact would still exist.” (DEIR, p. 5-16, 5-18).

The EIR ultimately throws up its hands and says that significant impacts on traffic cannot be mitigated at all and are “unavoidable.” (DEIR at pp. 6-1 - 6-2) However, the EIR then admits that under the No Project Alternative, congestion, parking and transit impacts would be minimized because of the “lower amount of density development” and existing parking requirements in the Planning Code. (DEIR at p. 7-6)

Meanwhile, we are told, with no substantial evidence, that the Plan “proposes to mitigate these impacts by providing extensive pedestrian, transit, traffic-calming and other streetscape improvements that will encourage residents to make as many daily trips as possible on foot, by bicycle or on transit.” (254-page Ordinance at §326.1(C).) This unsubstantiated speculation proposed as city law is not mitigation and does not comply with CEQA. No transit improvements are proposed or funded. Wider sidewalks will not solve traffic problems, and bicycle and “traffic calming” “improvements” are enjoined by a court order, because the City previously failed to analyze and mitigate their significant impacts on traffic for the Bicycle Plan Project.

There is NO evidence that the thousands of new residents in market rate housing units in this Plan will be inspired by wider sidewalks to walk, ride a bicycle, or take a bus to jobs or other destinations, particularly those that are not located in the immediate area. Where proposed measures will not effectively mitigate traffic congestion and delays, the EIR is legally insufficient. (E.g., Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 784.)


Though the Project repeats the myth that the area is “well-served” by transit, there is no data or substantial evidence to back up this claim. In fact, both the Project’s data and public comment bear out the larger complaint of residents that San Francisco’s Muni is substandard, overcrowded, particularly during commute hours, rarely on time, and will need a huge outlay of cash to accommodate any increase in ridership. Since residential fees do not fund transit, the Project would provide no funding for the kind of improvements needed to accommodate the many new residents who are supposed to ride Muni. The Project shows no funding for additional buses, even in the long term. (SFCTA, Congestion Management Program 2005/6 November 2005, at p. 77; and see Rachel Gordon, "When It's Bad, It's Really Bad: Unreliability Makes Muni Reviled; Agency's Chief Admits 'Status Quo Is Not Acceptable,'" San Francisco Chronicle, June 10, 2007, p. 1)

Even though the Project relies on the assumption that these new residents will abandon their cars and get on Muni, its conclusion of no impacts on transit is based on the opposite: that very few new residents will use transit. The Project’s principle fiction is that the area is “transit rich,” while its own data shows an unreliable, overcrowded transit system that cannot accommodate thousands of new riders. The Project’s theories do not jibe with its data or predictions, and its conclusion of “no impacts” is not valid without accurate information.

CEQA requires analysis and mitigation of direct, indirect and cumulative impacts on transit. (E.g., San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 78-79.) There is no accurate information or coherent analysis or mitigation of the Project’s significant impacts on transit in the EIR.

1. The EIR Contains NO Analysis of the Impacts of Thousands of New Residents on the Already Severely Inadequate Public Transit in the Project Area and Elsewhere.

The Project’s source data notes that although the Project area is a “key transit node in San Francisco,” that in the area, “on-time performance is extremely poor,” with only four of 23 lines surveyed meeting the Proposition E standard that 65% of runs should be on time. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Market/Octavia Study Area Existing Conditions Report, August 2001, at “Transit,” p. 1-1.) The study further notes that both bus and streetcar lines serving Market/Octavia have extremely poor on-time performance, with only one line, the F-Market inbound, meeting the Proposition E standard. Virtually every line has gaps of 25 minutes between trips. Some lines have gaps of one to two hours. (Id. at “Transit,” p. 1-2) Possibly due to poor on-time performance, with high loads following a gap in service, capacity on many lines exceeds Muni standards, and there is no room for more passengers to board. (Id. at “Transit,” p. 1-3)

According to the Project’s source data, buses do not benefit from dedicated rights of way or other priority measures, such as transit-preferential signals. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Market/Octavia Study Area Existing Conditions Report, August 2001, at “Transit,” p. 1-3.) This data invalidates any proposed “mitigations” consisting of “BRT” or other dedicated lanes.

Virtually all transit riders in the area (96%) are traveling within San Francisco.(Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Market/Octavia Study Area Existing Conditions Report, August 2001 at “Transit,” p. 1-4.) In the Project area, “origins are highly concentrated around Church Street Station, and along the Church-Fillmore corridor. Destinations largely lie downtown, and along the Church-Fillmore Corridor.” (Id.) Commuting is the dominant trip purpose, whether to work (64%) or school (16%). (Id.)

While claiming the Project will promote greater use of transit, the EIR claims the Project will add only 225 Muni riders (DEIR at p. 4-225), and would “generate about 658 transit trips as a primary mode,” concluding that the Project would have no impact on “peak hour capacity.” (DEIR at p. 4-226). The EIR says that if “Project-generated transit riders chose to use the Muni bus lines that are at or near capacity (such as the Van Ness Avenue bus lines), they would contribute to already crowded conditions. As there would be an increase of one or two percent due to project-generated riders on all corridors, and because there are Muni bus lines within each corridor with available capacity, this would not be a cumulatively considerable impact.” (Id.) This “analysis” does not comply with CEQA. It is based on a presumption that Muni riders don’t have to take a particular bus to get to a particular place at a particular time.

Most San Franciscans have already chosen cars as their mode of transportation. Of those traveling within San Francisco, even if parking were removed in the area, 56% of commuters said that taking Muni would be “out of the question.” (Nelson\Nygaard, San Francisco Planning Department Better Neighborhoods 2002 Civic Center Parking Analysis Existing Conditions Report, June, 2001, at p. 4-18.)

However, a significant number of city residents do use public transit, and the EIR’s figures do not jibe with those of the SFCTA, which found that in 2003 35% of San Franciscans commuted by transit. (San Francisco County Transportation Authority, Countywide Transportation Plan, July, 2004, at p. 41) If the same percentage of the Project’s proposed 9,875 new residents in the Project area use public transit, that would mean 3,500 more people would be crowding the already packed Muni. The EIR says that the Project would generate “about 35,970 person-trips…per day.” (DEIR at p. 4-208) Thus, the 35% of person-trips by public transit would be 12,590 transit trips per day by new residents, a severe impact that is neither analyzed nor mitigated in the EIR.

2. The EIR Proposes NO Meaningful Mitigation of the Significant Impacts on Transit from Thousands of New Users and NO Provisions for Funding.

No meaningful mitigations of the Project’s significant impacts on transit are proposed. Instead, the EIR “proposes improvements to transit operations, by upgrading transit street car platforms on Church Street and Duboce Avenue; redesigning Muni Metro entrances to impart a sense of identity; and using design treatments such as colored asphalt overlay to distinguish transit lanes on Market Street” and “disallowing curb-cuts on transit preferential streets identified in the Plan” (DEIR, p. 3-27) None of these “improvements” will mitigate overcrowding. Only more buses will resolve that problem, but no funding for more buses is proposed. (SFCTA, Congestion Management Program 2005/6 November 2005, at p. 77.)


Missing from the EIR is any analysis of existing conditions, impacts, or mitigation of historic resources in the Project area. Any alteration of historic resources or their significance is a mandatory finding of significant impacts, requiring an EIR under CEQA. (Pub. Res.Code §§ 21084.1; Guidelines §15064.5(b); 21065.5; 21001.) After identifying significant impacts on historic resources, the EIR must identify feasible measures to “mitigate significant adverse changes in the significance of historical resources,” and must insure that such mitigations are “fully enforceable.” (Guidelines §§15064.1(b)(4); 15026.4; Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 596-97, 54 Cal.Rptr.3d 366, 373-75.)

Planning urges approval of the EIR and the Project before completion of a “Historic Resources Survey,” which it claims it has commissioned. Approval of this EIR without identifying historic resources, allowing public participation in analyzing the Project’s impacts and mitigating impacts on historic resources is an abuse of discretion and a failure to proceed in a manner required by law.

After February 1, 2007, Planning proposed that in lieu of a lawful analysis of historic resources in the EIR, “areas of increased scrutiny” would receive an undefined “discretionary review” for construction over 50 feet in height. The “areas of increased scrutiny” were established by a “windshield survey of Market Street.” (Ex. U-3, February 15, 2007, at p. 1.) The “areas of increased scrutiny” do not include major portions of the Project area. (Id. at p. 3.) In fact, the Project expressly permits demolition of existing dwelling units as a “conditional use” in all new “RTO” and “NCT” Districts. (254-page Ordinance at §207.7.)

1. The EIR Violates CEQA by Failing to Identify Existing Historic Resources in the Project Area, Information that May not Be Lawfully Deferred.

The EIR must identify existing historic resources in every part of the Project area, not just in “areas of increased scrutiny.” Historic resources are not limited to those listed in official registers or areas. This analysis may not be lawfully deferred.

Promising that environmental review of parts of this Project will take place later is unlawful and cannot excuse the City from complying with CEQA before adopting and implementing the Project and amending its General Plan. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307 (Deferring environmental assessment to a future date runs “counter to that policy of CEQA which requires environmental review at the earliest feasible stage in the planning process.”); Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376, 394-95; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68, 79, Fn.8 (“CEQA requires that an agency determine whether a project may have a significant environmental impact … before it approves that project.”)(emphasis in original); City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 408; Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 154.)

2. There is no Analysis of Significant Impacts on Historic Resources in and Around the Project Area, Including the Civic Center.

The EIR must analyze not only the direct impacts from demolishing old buildings to make way for density development. It must also analyze the impacts on the significance of those structures. The Project proposes the full build-out of clusters of incompatible high-rise structures up to 400 feet high in the immediate area of the Civic Center on both sides of Market Street that will dwarf the historic beaux arts complex and obliterate the view of the City Hall’s graceful dome from many vantage points in the city. (Ex. Z-1-a-2, February 15, 2007) The Project admits that the high-rises will cause “incremental shading” on the United Nations Plaza in the Civic Center complex, but it contains no shadow studies and no meaningful mitigation.(Planning Commission Resolution No. 17406, April 5, 2007, Attachment A, CEQA Findings at pp. 22-23)

To the north along Franklin, the Project envisions more high-rises of 120 feet (12 stories), with “street walls” 85+ feet high along the rest of Market Street and on Franklin Street in the Project area, and in the large area currently zoned public at the UC Extension (“55 Laguna”) site. (Ex. Z-1-a-1, and Ex. Z-1-a-2, February 15, 2007). The Project’s “CEQA Findings,” released after the April 5, 2007 Planning Commission vote adopting them, admit that the Franklin developments will “cast mid-afternoon shadows year round on the War Memorial Open space,” but proposes no meaningful mitigation.(Resolution No. 17406, April 5, 2007, Attachment A, CEQA Findings at p. 22). The Project also approves, e.g., a 90-foot condominium complex at 1960-1998 Market Street, and a huge development extending the length and breadth of the Safeway lot at Market and Church, completely obliterating public view of the historic Mint, destroying the character of historic surrounding neighborhood structures. (E.g., DEIR, Figure 4-15.)

There is no analysis in the EIR of the impacts of the Project on these historic resources and their significance, which are degraded and subsumed by the sheer size, bulk and height of proposed Project development.

3. There is NO Mitigation of Site-Specific and Cumulative Impacts from the Project. “Scrutiny” Is Not Mitigation.

The EIR’s proposed “discretionary review” is unexplained and is not a mitigation. Without first identifying historic resources throughout the Project area, the EIR and the Project cannot lawfully proceed. The analysis must take place before---not after---Project approval. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 79-80. An agency cannot “’hide behind its own failure to gather relevant data.’” (City of Redlands v. County of San Bernardino (2002) 96 398, 408, quoting Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.) Nor may review be lawfully deferred to a future date. (Ibid.) CEQA requires that unless an entire property, or as here Project area, is rendered useless, every historic building on the Project site must be preserved. (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 602-603.)

The California Supreme Court has held:

“A fundamental purpose of an EIR is to provide decision makers with information they can use in deciding whether to approve a proposed project, not to inform them of the environmental effects of projects that they have already approved. If post approval environmental review were allowed, EIR’s would likely become nothing more than post hoc rationalizations to support action already taken. We have expressly condemned this use of EIR’s.”(Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376, 394.)(Emphasis in original.)


1. The EIR’s Conclusions that High-Rise Incursion into the Civic Center Will Not Have Significant Impacts on the Area and the Entire City Are Incorrect.

San Francisco’s Civic Center is both a National and regional Historic District with a “group of primarily public buildings that makes up what is considered by many scholars as the nation’s finest and most complete collection of buildings in the Beaux Arts inspired City beautiful movement.” (DEIR at p. 4-77.) These buildings are approximately 80 feet tall, with surrounding cultural and other public buildings between 90 and 130 feet tall. (DEIR at pp. 4-79, 4-83) The pinnacle of the Civic Center’s graceful complex is the City Hall dome, with the tip of its spire at 300 feet.

The Project would place a cluster of high-rise market-rate residential towers up to 400 feet high in the south part of the Civic Center area, north and south of Market Street from Gough to Larkin, and to the immediate northwest of the Civic Center up to 120 feet high on Franklin, between Golden Gate and McAllister. These huge towers of private residential units would be incompatible architecturally, in purpose, bulk and density with the graceful old Civic Center buildings. The Project’s high-rises would create a wall of structures that would be three to five times the height of the Civic Center buildings, dwarfing them in height and scale, obliterating all public views of them from many vantage points in the city. Their grandeur would be diminished by comparative scale, and the significance of their unique, beautiful architecture would be degraded to antique curiosities by much larger, incompatible modern boxes.

In the March 22, 2007 Planning Commission meeting, the Planning Department’s MEA spokesperson admitted that these skyscrapers would cast shadows over the UN Plaza in the middle of the Civic Center throughout the day. In spite of this, the Commission adopted unsupported findings that those impacts are unavoidable and the high-rises must be constructed. (Motion 17406, Attachment A, CEQA Findings at pp. 22-23. Significant wind impacts will magically disappear after construction of the high rises, id. at p.7. Wind effects on pedestrians from high-rise development are significant under CEQA) There is no shadow or wind study or any substantial evidence showing the impacts on the historic Civic Center and public space, and these significant impacts are not identified, analyzed or mitigated. Although Planning has received design proposals for several high-rises, it persists in disingenuously claiming that their impacts cannot be evaluated.

The EIR admits that Planning’s past “visionary” forays resulted in high-rises that are “architecturally incompatible” with the “historic setting of the Civic Center.” (DEIR at p. 4-173)
* the Fox Plaza residential tower (29 stories, 1964, now housing the City Attorney’s offices);
* the white CSAA office building at 100 Van Ness (1976, 29 stories) now housing the San Francisco County Transportation Agency (“SFCTA”) and others;
* and the windowless Bank of America building, now housing the city’s MTA and the Redevelopment Agency. (DEIR at p. 4-173)

Yet the Project proposes many more “architecturally incompatible” high-rises in the immediate area of the Civic Center. The Project’s high-rises will be much higher than existing ones (to 400 feet), though the EIR claims that this height limit increase “would be incremental.” (E.g.¸ Ex. Z-1-a-2, February 15, 2007.) The EIR claims that its high-rises would be “tall, slender, widely-spaced buildings,” but that they would be clustered “by concentrating height and bulk where core transit services converge” at Market Street and Van Ness Avenue. (DEIR at p. 4-98, DEIR Fig. 4-14 - 4-15) The myth of “slender, elegant” high-rises is already in our face: Fox Plaza and the CAAA building are both “slender.” High-rises proposed in the area will receive no further review or public input under CEQA if this Project is approved.

The EIR ultimately announces that, “Although visual quality is subjective, it can reasonably be concluded that the proposed buildings themselves would not result in a substantial, demonstrable negative aesthetic effect on the existing visual character or quality of the area and its surroundings. The visual impacts would be less than significant. No mitigation measures would be required.” (DEIR at p. 4-100) This statement is contradicted by projects in the pipeline before Planning right now. Yet, in plain violation of CEQA, the EIR claims these plans are too “speculative” for analysis.

The EIR does not analyze the effect on views of the Civic Center area in violation of CEQA. It concludes, with no substantial evidence and contrary to its own admission that the Project “could alter existing views from public viewpoints,” (DEIR at p. 4-100), but “would not result in a demonstrable negative visual impact on views, would not obstruct publicly accessible scenic views,” and that “impacts related to view would be considered less than significant.” (DEIR at p. 4-105)

Elsewhere, the EIR says that its new high-rises “could combine with the previous incompatible development, alterations to the setting of the Civic Center Historic District would be relatively minor compared to the previous alterations discussed above.” (DEIR 4-173) The EIR’s astonishing conclusion is that “new development adjacent to the Civic Center Historic District resulting from the Plan would not be considered a cumulatively significant impact to historical resources. No mitigation would be required.” (DEIR at p. 4-173)

These conclusions are illegal under CEQA. “An EIR should not discuss impacts which do not result in part from the project evaluated in the EIR.” (Guidelines §15130(a)(1).) The baseline for analyzing impacts is the existing uniquely beautiful Civic Center Historic District itself, not the ugly high-rise structures that Planning has previously allowed in the area. The baseline is the scenic vista or object itself, not detractions and degradations of it.

Furthermore, past impacts are not mitigated by compounding them. (Guidelines §15355(a).) CEQA assumes that any impact that adds to an existing significant impact is significant. (Id.; and, e.g., Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 117; San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 73) While existing high-rise structures are a visual degradation that is an enduring reminder of the importance of CEQA’s mandate of careful analysis, informed decisionmaking and informed public participation and review, they are not the subject of this EIR and do not justify more high-rises. CEQA requires more than the EIR’s cursory conclusion that since three ugly structures are already there, impacts from constructing many more incompatible high-rise structures will not be significant.

Cumulative impacts refer to “two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” (Guidelines §15355(a).) A cumulative impact from “several projects” is “the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.” (Guidelines §15355(b).) The EIR recognizes that three high-rise structures in the Civic Center have already caused adverse significant impacts on the historic and aesthetic enjoyment of the Civic Center. (DEIR at p. 4-173). However, the EIR erroneously concludes that no cumulative impact will occur by compounding the impacts from those structures by building many more that are higher, forming a barrier to the view of the Civic Center from the south and west. That conclusion clearly violates CEQA.

In fact, the incursion of more high-rise structures will further diminish the grandeur and scale of the Civic Center and City Hall. The highest point of the spire on the City Hall dome is 300 feet. (DEIR at p. 4-79) The dome will not be visible from the south since 400-foot high structures will block it. The beautiful civic structures in the famous beaux arts complex will be reduced in comparative scale to small curiosities by the sheer size, bulk, and height of much larger, much higher, architecturally incompatible, high-rise structures.

The grand public character of the area devoted to libraries, museums, cultural amenities, courts, educational institutions and government offices will be walled in and stand in the shadows of huge private structures with no public purpose.

The EIR must analyze these impacts and not just observe that three ugly buildings are already there. This Project’s rezoning for high-rises is inappropriate for the Civic Center area and must not be approved.

2. Architecturally Incompatible and Scale, Bulk, and Density-Incompatible Structures Will Have Significant Impacts on Other Parts of the Project.

The Project further proposes “street walls” of structures 90 to 120 feet tall, built out to the property lines along Market and Franklin Streets, filling every space in the Project area with density box housing that is architecturally incompatible, bigger and higher than the existing old, 2- and 3-story structures throughout the area. (See, e.g., C&R at Figures 4-14, 4-15.) The 3,000-plus parcels that the Project will rezone will no longer be required to have setbacks or back yards. CEQA has long recognized that such street walls and linear massing are significant adverse impacts. (E.g., Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 937 [“’tunneling’ or ‘canyoning’ effect” and “overall degradation of existing visual character of the site from the excessive massing of housing with insufficient front, rear, and side yard setbacks” held significant adverse impact].) The Project does not analyze the visual and aesthetic impacts from the site-specific and cumulative changes it proposes in any part of the Project area.

The Project’s descriptions are misleading. For example, the diagrams of heights on freeway parcels that will be 55 to 130 feet high are shown as comparable to the heights of surrounding old dwellings that are only two or three stories high or lower than streetlamps that are less than 20 feet high. (E.g., C&R at Figure 4-16.) This type of disinformation defeats the EIR’s purpose as an informational document.

CEQA requires careful analysis and real mitigation of visual impacts, including regional and cumulative visual impacts beyond the Project’s boundaries. (E.g., Guidelines §15126.2(a) and Appendix G; and e.g., Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1604-06 (replacing one-story structures with two-story homes has adverse effect on public views; and mitigations are insufficient where views would remain partially obstructed.) In February, 2007, Planning announced it would give a 5-foot height “bonus” to most proposed developments. No analysis of impacts of either the height increases in any area or the bonus appears in any document in Planning’s EIR. (A four-foot height increase required mitigation in Quail Botanical Gardens, supra.) Here, no analysis of the impacts of any height increase has been conducted. Mitigation of view impacts may not be deferred. (Id. at 1607-08; Guidelines §15070.) CEQA applies whether it is a one-story view obstruction or a 40-story blockage of every public view.

Planning makes much of its restrictions on heights in alleys, as if that were mitigation for the high-rises. But that tiny portion of this Project is largely meaningless since the alleys have already been built out. Further, by eliminating density restrictions, the old residential alleys themselves could become even more congested with in-law structures, converted garages and other sub-standard structures that the Project will allow as “residences.”

The Project’s “urban design guidelines” are unenforceable fictions. This Project will affect the city permanently. Past mistakes are not going away, and compounding these errors is illegal under CEQA.

3. The Rezoning Removes More than 3,000 Parcels from the Planning Code’s and General Plan’s Requirements of Conformity with Residential Design Guidelines.

The Project re-zones more than 3,000 parcels to new zoning designations that remove them from the strictures of the Planning Code §311(c)(1), which provides that Residential Design Guidelines shall be used to review plans for all new construction and alterations. The Planning Department’s Residential Design Guidelines, December 2003, apply to all past residential projects in RH (Residential House) and RM (Residential Mixed) zoning districts. By changing the zoning, these requirements that protect and preserve neighborhood character no longer apply to this large area in the heart of the city.

The Project substitutes meaningless “urban design guidelines” for specific density, bulk, setback, height, and parking requirements in the existing Planning Code. Planning has already abandoned its subjective “guidelines” to approve incompatible box structures that conform to nothing. There will be no opportunity for public input or review of any development proposal if this Project is adopted.

4. The EIR Contains NO Meaningful Alternatives or Mitigations for Visual Degradation of the Area and City by the Project.

Since it incorrectly finds no impacts, the EIR further violates CEQA by not identifying and evaluating alternatives and mitigations for the Project’s significant adverse visual and aesthetic impacts. (Motion No. 17406, Attachment A, CEQA Findings at p.4.)


The Commission makes the plainly false claim that there will be no growth and other impacts from the Project. (Motion No. 17406, Attachment A, CEQA Findings at p.4) There is no coherent analysis of growth impacts in the EIR, and the public was thus deprived of its right to comment on such impacts. CEQA requires such analysis. (E.g., Guidelines, §§15126; 15126.2(d).) The Project rezones more than 3,000 existing parcels in the Project area, removing all existing density requirements in the Planning Code for the new zoning designations.

The DEIR said the Project would cause an increase of 4,400 new housing units in the Project Area. (DEIR at p. 4-337) That figure was revised and substantially increased in September, 2006, to an estimated 5,960 new housing units with 9,875 new residents in the Plan Area. (Ex. P-1, at p. 19.) Even the new projection falls far short of foreseeable reality, excluding large projects known to be proposed, such as the “55 Laguna” (UC Extension), and the “1998 Market” (Mint Hill) projects, with those two proposals alone adding more than 600 more market-rate units.

The Project area is already densely populated with 26,650 residents. (DEIR at p. 4-67) The Project’s addition of 9,875 new residents will cause a population increase of 37% in the Project area. Population increases impose new burdens on existing community service facilities and infrastructure, which are neither analyzed nor mitigated by the EIR.

The EIR says that, “New housing stock would be encouraged by eliminating housing density maximums…reducing residential parking requirements and establishing a maximum parking cap; encouraging new accessory units in existing residential uses through additions or garage conversions, without requirement for additional parking; and reducing discretionary review and conditional use requirements.” (DEIR at p. 3-21) The Project also removes rear yard and setback requirements, raises heights throughout the area, and proposes high-rise residential development up to 400 feet. The Project does not explain how it reached the projected growth figures or whether it accounts for demolition and expansion of existing structures, add-ons and conversions, or whether its figures only include new “infill” development construction. Further, the EIR’s figures do not anticipate that more people will have to inhabit each new housing unit to afford their market rate prices. Thus, the actual growth caused by the Project could be significantly greater than the new figures in the EIR addenda. There is no analysis of the human and urban blight impacts of overcrowding from the elimination of density limitations in the market-rate dwellings.

1. The Project Will Not Provide Affordable Housing in the Project Area.

Although the Project and addenda claim there may be “inclusionary” affordable housing, the fact is that the Project does not require any affordable housing in the Project area. The EIR explains that, “As a policy document, the proposed Plan cannot require that affordable housing be developed under the Plan beyond existing city requirements.” (DEIR at p. 4-69) The “city requirement” allows fudging of “inclusionary” housing by either paying a fee to the Mayor’s Office of Housing that is a fraction of the cost of housing in San Francisco, or to build affordable housing somewhere else in the city at some undefined time. (San Francisco Planning Code, §§315 et seq.) While the Redevelopment Agency claims it will build a total of 400 affordable units (6.7% of the 5,980 projected units), those affordable units are reserved for designated groups, not the general public. (E.g., DEIR at p. 4-69). All remaining units will be the equivalent of gated communities for the rich.

Planning’s March 16, 2007 Memorandum claims that Planning is preparing a “study of the potential for an increased affordable housing requirement for parcels that are granted significant upzoning through the Market and Octavia Plan,” but, like the rest of the Project, does not propose that any new affordable units be constructed in the Project area.

Indeed, while making radical changes to many parts of the city’s Planning Code, the Project does nothing to change Section 315 or to include diverse economic classes in the Project area. Instead, the Project promotes exclusionary, economically segregated housing in San Francisco.

Thus, the type of growth this Project induces is exclusively that of an affluent demographic that can afford the market-rate San Francisco housing, defeating the purported objective of the Project “to provide increased housing opportunities affordable to a mix of households at varying incomes.” (DEIR, at p. 4-69; Fn. 5, supra; and see e.g., Barbara Tannenbaum, “San Francisco 2020,” San Francisco Magazine, February 2007, p. 20.) The Project’s market-rate housing is exclusionary, not inclusionary, and it conflicts with the Planning Code’s and General Plan’s threshold requirement that “existing neighborhood character be conserved and protected in order to preserve the cultural and economic diversity of our neighborhoods,” and “That the City’s supply of affordable housing be preserved and enhanced.” (San Francisco Planning Code, §101.1(b)(2, 3 and 5); and see Fn. 5, supra.)

The EIR fails to conduct the proper analysis of comparing the income of the existing residents of the Project area with the income of the area after building 5,960 new market-rate dwellings in the area. There is no analysis of this impact, and how much displacement will occur because of it, or any mitigation proposed.

Nor does the EIR analyze the urban blight impacts of the Project’s economic segregation, either in the Project area or in other areas where the elusive affordable housing may be located.

2. The Project Promotes Demolition and Development with Market-Rate Incentives and the Removal of Density, Bulk, Height, Setback and Parking Restrictions.

The Project invites and foreseeably portends demolition of older, smaller structures with its financial incentive to fill lots now occupied by smaller, older and even historic structures, with larger structures with no restrictions on density, bulk, height, setback, and parking. In fact, the Project expressly permits the demolition of existing dwelling units as a “conditional use” in all new “RTO” and “NCT” Districts.(254-page Ordinance at §207.7.) No analysis of these obvious adverse impacts appears in the EIR.

3. The EIR Fails to Analyze Impacts from the Project’s Displacement of Existing Dwellings and Residents.

The EIR admits that “some displacements of existing businesses or residences could occur as specific sites are developed due to market pressures for higher density residential development with proposed new zoning or to accommodate planned transportation and public open space improvements.” (DEIR at p. 4-71). The Project explicitly permits demolition. (254-page Ordinance at, e.g., §207.6(b).) The EIR claims that the Project would mandate a “replacement requirement” of at least 3:1, thus further encouraging demolition of lower-density structures to build high-density structures “due to market pressures.” The EIR says that “Residential displacement would not be considered a significant environmental impact, as implementation of the proposed Plan would not be expected to displace a substantial number of residential units or businesses,” claiming that “any major displacement” would “be subject to further environmental review.” Since there is no environmental review here of the impacts of displacement, either on the people who are displaced or on the physical character of areas affected by it, this glib conclusion is completely unsupported by substantial evidence and violates CEQA. There is no proposed mitigation for any displacement.

4. The EIR Fails to Analyze the Project’s Impacts on Infrastructure, Sewers, and Other Resources.

CEQA requires evaluation of irretrievable commitments of resources, such as nonrenewable energy use, water and sewage, and the need for highway improvements. (Guidelines §15126.2(c). The EIR contains no evaluation of these issues.

High-rise and high-density residential structures use huge amounts of nonrenewable energy---far more than cars---since they consume energy for ventilation, climate control, heat, and lighting. The EIR contains NO analysis of the huge increase in use of nonrenewable energy required for all of the proposed bulky and dense residential developments. The EIR fails to identify these impacts and mitigate them. (DEIR at p. 6-2)


In plain conflict with the city’s General Plan and Planning Code, the Project eliminates open space requirements within developments and in public areas. Nor is there any evaluation or mitigation of the Project’s significant impacts on existing public open space in violation of CEQA.

The Project redefines “open space” as widened sidewalks, “pedestrian amenities,” “an unenclosed plaza at street grade” of no particular size, and “a terrace or roof garden.” (254-page Ordinance at §249.33.)

Within its market-rate private developments, the Project eliminates all density limitations, yards and front and rear setbacks at the ground floor of any structure under the new zoning designations. (254-page Ordinance at, e.g., §§102.5, 121.1, 121.2, 121.5, 124, 132, 134, 135, 206.4, 207.4, 207.6, 207.7, 208, 209, 209.1-209.6, 249.33, 270, 702.1, 720-720.1, 720.10, 720.91-720.92)

Heights are raised in every area except alleys, and applications exceeding the Project’s height limits in new “RTO” districts need not apply for conditional use permits. (254-page Ordinance at §253)

The Project urges full build-out to every property line with no density limits. (E.g., 254-page Ordinance at §249.33) The full build-out may extend to 120 feet (12 stories) in height before being required to fractionally recede from property lines. (Id. at §270) Driveways and access to extremely limited parking are restricted, assuring that streets will be filled with both parked vehicles and motorists searching for parking.

The EIR admits that the existing open space is already inadequate and over-used in the entire Project Area. (DEIR at p. 4-61) The Project area contains no parks of any size and describes children’s playgrounds as “existing open space”:

* The “Hayward Playground” between Turk and Golden Gate containing playgrounds and the City’s 911 emergency operations center. (DEIR at p. 4-113)
* “Koshland Park”: A tiny area occupying one-quarter of a block, containing a children’s plastic play structure, basketball hoop and small garden area that will be entirely shadowed for several hours by the Project’s proposed 400-foot high-rises on Market Street (DEIR at p. 4-113 and 4-121);
* “Duboce Park”: A small area containing a basketball court and dog-soiled turf area, bounded by Duboce Avenue and Hermann, Steiner and Scott Streets, described as “well trafficked by pedestrians and dog-walkers from surrounding neighborhoods.” (DEIR at p. 4-115)
* “Patricia’s Green”: A small, open median strip terminating the freeway ingress-egress on Octavia Boulevard, diverting and obstructing through-traffic on Octavia, containing a small area of dog-soiled turf, faux-deco benches, and a McDonald’s style children’s plastic play structure.

The EIR proposes the following as new “open space” for the Project’s 9,875 new residents (with 36,525 people estimated in the area if the Plan is implemented):

* “Brady Park”: A tiny hardscape plaza surrounded by high-rises on an “80-foot-square BART-owned parcel that provides access to its tunnel below, and through purchase, an additional 100 foot by 80 foot parcel, currently surface parking.” (Id.) (Ex. P-1-A, February 8, 2007, at Appendix C-50; Ex. P-1-B, April 17, 2007, at Appendix C-51) The new “park” will purportedly be “a magnificent centerpiece for this intimate mini-neighborhood. The park will be surrounded by several housing opportunity sites.” “The BART vent shaft rather than a hindrance, could be the site of a central wind driven, kinetic sculpture.” (Ex. P-1-A, February 8, 2007, at Appendix C-50; Ex. P-1-B, April 17, 2007, at Appendix C-51))
* “McCoppin Plaza”: A hardscape strip on the south side of Market Street at the freeway touchdown. (Ex. P-1-A, February 8, 2007, at Appendix C-52; Ex. P-1-B, April 17, 2007, at Appendix C-53.)
* “Under Freeway Park”: Existing public parking would be removed to develop “a dog run and/or temporary structures housing cultural arts programs” under the freeway. (Ex.P-1-A, February 8, 2007, at Appendix C-56; Ex. P-1-B, April 17, 2007, at Appendix C-57).)
* Concrete “pedestrian refuges” and widened sidewalks, described as “a more sophisticated type” of “open space.” (Ex. P-1, at p. 20)

The Project’s proposed “open spaces” are a distortion of the concept of open space that plainly conflict with General Plan and Planning Code requirements. Because it will cause significant direct and cumulative adverse impacts on already overcrowded open space in the Project Area, the EIR violates CEQA’s requirements to identify and mitigate significant impacts.

The EIR’s failure to mitigate the cumulative significant impacts on existing open space from adding 9,875 new residents in the Project area violates CEQA. The EIR’s failure to identify and mitigate the direct significant impacts of not creating sufficient open space for the new residents also violates CEQA. The EIR’s failure to identify and mitigate other significant adverse impacts, such as overcrowding and urban blight also violates CEQA.


The EIR contains no analysis, mitigation or findings on Air Quality impacts, in plain violation of CEQA. The Bay area is in non-attainment status for air quality. (DEIR on “55 Laguna Mixed Use Project” at III.D-5, III.D-9, etc.) This Project will plainly cause criteria air pollutant emissions from a variety of sources, including stationary sources as well as traffic congestion directly and cumulatively resulting from the Project. Even a small part of the Project (the “55 Laguna” proposal) has resulted in Planning’s finding that, “Project-related traffic could not only increase existing traffic volumes, but also cause existing non-project traffic to travel at slower, more polluting speeds,” with “hot spot” air pollution potential. (Id. at III.D-13 - 14.) The 35,970 person-trips per day by 9,875 new residents (DEIR 4-208) will obviously cause impacts on air quality that are not identified, analyzed or mitigated in this EIR, violating CEQA and federal statutes.

The EIR concludes, with no substantial supporting evidence, that there will be no impacts on air quality from the Project. There is no substantial evidence to support the notion that thousands of new residents in the Project area will not have cumulative impacts on air quality and infrastructure in the city and Bay area.


The EIR does not propose meaningful mitigations for the potential impacts of placing high-rise density residential development in areas known to be subject to liquefaction and other severe damage from earthquakes. (DEIR at pp. 4-299 - 4-316) The EIR admits that “more intense development of residences and businesses in the Project Area would expose larger numbers of people to death and injury in the event of a major earthquake,” but claims that developers’ compliance with Building Codes would make these deaths a “less-than-significant” impact. (DEIR at p. 6-3)


The EIR contains no meaningful analyses or mitigations of the Project’s significant cumulative impacts. The cumulative impacts on traffic, transit and parking alone will affect every resident and visitor in the Project area and throughout the city and region. The aesthetic impacts will change the face of the central part of San Francisco forever, from historic smaller buildings of aesthetic and historic merit to the generic box-development model that can be viewed in any urban city in the U.S. The financial incentive for demolition of older structures is foreseeable and obvious, yet is unanalyzed and unmitigated in this EIR. Cumulative impacts analysis and mitigation are necessary because “the full environmental impact of a proposed project cannot be gauged in a vacuum…environmental damage often occurs incrementally from a variety of small sources.” (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 118; CEQA Guideline §§15061(b)(3); 15065(a)(3); 15355; Friends of the Eel River v. Sonoma County Water Agency (2003)108 Cal.App.4th 859, 872 (abuse of discretion to omit cumulative impacts analysis.)

Furthermore, the Project admits that it is the model for development throughout other large areas of San Francisco. Foreseeable domino/cumulative impacts have already been announced. The draft “Eastern Neighborhoods Plan” incorporates the Project’s rezoning, elimination of density, bulk, setback, yard, and parking restrictions, and other features to a huge area to the south, east and west of the Project area.


1. The EIR Proposes NO Meaningful Mitigations for the Project’s Significant Impacts.

“Once a significant effect has been identified, the EIR must propose and describe mitigation measures that will minimize the significant environmental effects that the EIR has identified.” (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 360; Pub. Res. Code §21100(b)(1); Guidelines, §15126(a).) CEQA requires that an agency take steps to ensure that any mitigation measures “will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded.” (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261; Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 358-59, 380)

CEQA requires that the EIR describe feasible measures to minimize significant adverse impacts. (E.g., Guidelines §15126.4.) The EIR’s discussion of mitigation measures must distinguish between measures proposed by Project proponents and those proposed by others. (Guidelines §15126.4(a)(1)(A).) “Where several measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified. Formulation of mitigation measures should not be deferred until some future time.” (Guidelines §15126.4(a)(1)(B).) If proposed mitigations will cause one or more significant effects in addition to those caused by the proposed Project, they must also be discussed in the EIR. (§15126.4(a)(1)(D).) Mitigation measures must be fully enforceable and legal.

The EIR fails to identify the Project’s significant impacts, including those described above, thus denying its responsibility to mitigate them, in violation of CEQA. Of the few identified adverse impacts from the Project (DEIR at pp. 6-1 - 6-2), the EIR proposes no relevant or meaningful mitigation. For example, eliminating parking requirements does not mitigate traffic circulation impacts or open space impacts. Where proposed measures will not effectively mitigate traffic congestion and delays, the EIR is legally insufficient. (E.g., Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 784.)

2. Newly Proposed “Community Improvements” Do Not Mitigate Impacts Caused by the Project, Will Have Significant Impacts, Have Been Enjoined under Other Litigation, and May Be Preempted.

Plans for bicycle lanes, bicycle boulevards, and “traffic calming” impediments on City streets are enjoined by Order of the Superior Court. (Case No. 505509, Coalition for Adequate Review v. City and County of San Francisco, November 7, 2006). City’s attempt to legislate these acts under a different project is an abuse of process in contempt of the Court’s order. Far from being “mitigations,” these measures have already been found to have their own significant impacts, and any further attempt by City to enact or implement them, including the legislation before the Board of Supervisors, may subject the City to contempt charges. These proposals are also preempted under the California Constitution.

Even if they were not illegal, these proposals do not mitigate impacts of development and growth on transit, traffic, and parking, and will in fact aggravate those significant impacts, and, because they are enjoined, must be removed from this Plan.

3. The EIR Fails to Properly Identify and Analyze Alternatives to the Project.

The EIR discusses only two alternatives to this massive Project: the No Project Alternative, and a “Reduced Height/Reduced Density Alternative,” which would be identical to the Project but would reduce high-rise heights from 400 feet to 320 feet. There is no proposal for alternatives that would, for example, retain the existing parking requirements in the Planning Code, though that would reduce the Project’s severe parking impacts. There is no alternative that would reduce heights of proposed residential towers from 400 feet to 85 or 120 feet, reducing the Project’s impacts on views, wind, shadows, open space, and others. Instead, only an artificially limited set of options is offered.

The EIR’s failure to describe more options is contrary to CEQA’s requirement of a “range of reasonable alternatives to the proposed project, or to the location of the project, that could feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (Guidelines §15126.6(a).) The EIR should also briefly “describe the rationale for selecting the alternatives to be discussed,” and should “identify any alternatives that were considered by the lead agency but were rejected as infeasible” and the reasons for that rejection. (Guidelines §15126.6(c).) CEQA requires that “public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects…” (Pub.Res.Code §21002; 21081; and, e.g., Uphold Our Heritage v. Town of Woodside (2007)147 Cal.App.4th 587, 596-97, 54 Cal.Rptr.3d 366, 374.) Substantial evidence must support any claim of infeasibility.

The EIR should propose and discuss a much larger range of alternatives for a Project of this size and importance.

4. The Project Proponents Have Rejected a Feasible Project Alternative that Would Clearly Lessen the Significant Environmental Impacts of the Project, Requiring Recirculation.

The Project fails to propose a full range of alternatives, reducing its analysis to a perfunctory exercise. A number of alternatives have been proposed in public comments that would clearly lessen the significant environmental impacts of the Project. For example, numerous public comments have proposed that the Plan dispense with its punitive parking restrictions, such as its proposed changes to the Planning Code’s 1:1 requirements of minimum parking in new housing construction, its imposition of maximum caps on parking, its limits on public parking facilities, demands of no curb cuts (driveways) on city streets, no parking and loading provisions for commercial uses, etc. The Project Proponents have rejected all of these comments and suggestions. The same is true of the Project’s elimination of the rear yard requirement, full build-out requirements, high-rise development and other parts of the Project. Under these circumstances the EIR must be recirculated. (Guidelines, §15088.5(a)(3).) Even if a proper range of alternatives is proposed, the EIR must be recirculated to allow public consideration and comment. (E.g., Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1358.) (see footnote #13 below)


The city’s General Plan is its “‘constitution for all future developments.’” (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 354.) General Plan consistency is required by both CEQA and the Government Code.

Any amendment to the General Plan is a project under CEQA. (City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 409.) CEQA requires more than a recital of blanket statements that the Project conforms with the General Plan. (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App. 4th 342, 379-80.) “CEQA reaches beyond the mere changes in the language in the agency’s policy to the ultimate consequences of such changes to the physical environment.” (City of Redlands, supra, 96 Cal.App.4th at 409.) The agency may not defer analysis and mitigation of impacts from General Plan amendments to a future time. (Id.) Environmental review of the impacts of General Plan amendments and the Project must include all foreseeable actions related to the original Project. (Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376, 396.)

Any General Plan must be internally consistent under the California law and the San Francisco Planning Code. (E.g., Gov. Code §65454; SF Planning Code §§101, 101.1) A zoning ordinance that is inconsistent with the General Plan is invalid when passed. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544; Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698, 704.) The General Plan may not be changed to conform to a zoning ordinance. (Lesher Communications, supra, 52 Cal.3d at 541 [“The tail does not wag the dog. The general plan is the charter to which the ordinance must conform.”]) “‘The consistency doctrine has been described as ‘the linchpin of California’s land use and development laws; it is the principle which infuse[s] the concept of planned growth with the force of law.’” (Napa Citizens for Honest Government, supra, 91 Cal.App.4th at 355; quoting Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336.) A specific plan like the Project is valid only to the extent that it is consistent with the General Plan’s objectives, policies, general land uses and programs. (Napa Citizens for Honest Government, supra, 91 Cal.App.4th at 355; Gov. Code §65454.)

The following are examples (not inclusive) of the Project’s inconsistencies with the Planning Code and General Plan.


The San Francisco Planning Code §101.1(e)(Proposition M) requires that any proposed legislation requiring an initial study under CEQA, or requiring a permit for demolition, conversion or change of use, or a finding of consistency with the General Plan, first requires a finding of consistency with the eight Priority Policies set forth in the Planning Code §101.1(b). (see footnote #14 below) Consistency with the Priority Policies must precede CEQA review. (Planning Code §101.1(e).) Examples of the Project’s inconsistencies with the eight Priority Policies are:

* §101.1(b) (1) “ That existing neighborhood-serving retail uses be preserved and enhanced” By eliminating parking, the Project adversely affects neighborhood-serving retail uses.
* §101.1(b) (2) “That existing housing and neighborhood character be conserved and protected in order to preserve the cultural and economic diversity of our neighborhoods.” The Project proposes density infill and high-rise development, eliminates existing setback and yard requirements, eliminates parking requirements, allows and encourages demolition for density development, and contains no requirement of on-site affordable units.
* §101.1(b) (3) “That the City’s supply of affordable housing be preserved and enhanced.” The Project includes no inclusionary “affordable” housing anywhere in the Project area.
* §101.1(b) (4) “That commuter traffic not impede Muni transit service or overburden our streets or neighborhood parking.” The Project worsens the existing severe parking shortage and causes significant direct adverse impacts on neighborhood parking by aggressively eliminating parking, access to parking, existing parking facilities, and by making construction of new parking facilities nearly impossible, and is therefore inconsistent with the Code’s requirement to not overburden streets or neighborhood parking. The Project will introduce 9,875 new residents in the Project Area with no proposed or funded mitigation of impacts on traffic or public transit. Muni transit service is already overburdened in the Project Area, and, although Muni can clearly not accommodate the Project’s new residents or any part of them, the Project funds no Muni improvements, and would severely overburden public transit. Both the severe parking shortfall and the impacts of the Project on transit and traffic directly conflict with this Priority Policy.
* §101.1(b) (6) “That the City achieve the greatest possible preparedness to protect against injury and loss of life in an earthquake.” The Project proposes to build dense high-rise development on corridors known to be most vulnerable to earthquakes.
* §101.1(b) (7) “That landmarks and historic buildings be preserved.” The Project contains no historic resources survey or plan, and does not include most of the Project Area in its proposed “historic resources” survey. The Project provides no protection from impacts of incompatible density development on historic buildings, and only “discretionary review” of projects directly involving historic structures. The Project authorizes demolition as a conditional use, and encourages demolition by eliminating density, height, bulk, yard, setback, and parking requirements for market-rate development.
* §101.1(b) (8) “That our parks and open space and their access to sunlight and vistas be protected from development.” The Project contains no protection for existing small park areas, and will allow a 400-foot high-rise to shade the tiny Koshland Park---one of the few parks in the entire Project Area---as well as high-rise shadowing of the Civic Center, War Memorial and UN Plaza, and does not conform with the General Plan’s requirements for open space. The Project would invite nearly 10,000 new residents to crowd already-inadequate open space in the Project Area, while proposing no meaningful mitigations.


The following are examples (not inclusive) of the Project’s inconsistencies with the General Plan:

* Air Quality Element
Objective 1: “Adhere to state and federal air quality standards and regional programs.”
Objective 3: “Decrease the air quality impacts of development by coordination of land use and transportation decisions.”
Policy 3.1: “Take advantage of the high density development in San Francisco to improve the transit infrastructure…”
The Project will cause further traffic congestion and increased emissions and degradation of air quality by inducing growth and not mitigating the Project’s traffic, transit and parking impacts.

* Commerce and Industry Element
Objective 6: “Maintain and strengthen viable neighborhood commercial areas easily accessible to city residents.”
The Project directly conflicts with this objective by aggressively eliminating neighborhood parking, curtailing and prohibiting parking for retail uses, prohibiting loading areas, removing accessibility to parking facilities, and other anti-parking measures that will adversely affect neighborhood commercial areas and accessibility to them.
Policy 6.9: “Regulate uses so that traffic impacts and parking problems are minimized.”
The Project will cause severe parking impacts and traffic and transit impacts, but proposes no mitigations for its impacts.

* Environmental Protection Element
Objectives 9 - 11.2: “Reduce transportation-related noise.”
Octavia Boulevard has already caused a severe increase in traffic noise. The Project’s impacts on parking, traffic, and transit will increase transportation-related noise by causing more congestion and traffic. No noise measurement study has been conducted on the new Octavia Boulevard. No analysis of existing traffic noise has been conducted, and no mitigations are proposed. The Project will bring nearly 10,000 new residents into the area, causing impacts on traffic and transit noise.

* Housing Element
Objective 1: “To provide new housing, especially permanently affordable housing…and take into account the demand for affordable housing created by employment demand.”
Objective 1: “Retain the existing housing supply.”
Policy 2.1: “Discourage the demolition of sound existing housing.”
Objective 4: “Support affordable housing production by increasing site availability and capacity.”
Policy 4.1: “Actively identify and pursue opportunity sites for permanently affordable housing.”
Policy 4.2: “Include affordable units in larger housing projects.”
Policy 4.4: “Consider granting density bonuses and parking requirement exemptions for construction of affordable housing and senior housing.”
Objective 6: “Protect the affordability of exiting housing.”
The Project directly conflicts with all affordability objectives, by requiring no
affordable housing anywhere in the Project Area. The Project encourages demolition by removing all regulation of density, bulk, setback, rear yard and parking in new developments. The Project does nothing to identify or support siting of affordable housing in the Project area. The Project effectively grants density bonuses and parking requirement exemptions not for affordable units, but to encourage market-rate units. The Project will reduce affordability of existing housing by encouraging market-rate density development throughout the Project area. The Project directly conflicts with these Policies.
Policy 6.5: “Monitor and enforce the affordability of units provided as a condition of approval of housing projects.”
Objective 7: “Expand the financial resources available for permanently affordable housing.”
Policy 7.1: “Enhance existing revenue sources for permanently affordable housing.”
Objective 8: “Ensure equal access to housing opportunities.”
Policy 8.1: “Encourage sufficient and suitable rental housing opportunities and emphasize permanently affordable rental units wherever possible.”
Policy 8.2: “Employ uniform definitions of affordability that accurately reflect the demographics and housing needs of San Franciscans.”
Policy 8.3: “Ensure affirmative marketing of affordable housing.”
Policy 8.4: “Encourage greater economic integration within housing projects and throughout San Francisco.”
Policy 8.5: “Prevent housing discrimination.”
Policy 8.9: “Encourage the provision of new home ownership opportunities though new construction so that increased owner occupancy does not diminish the supply of rental housing.”
Objective 9: “Avoid or mitigate hardships imposed by displacement.”
Policy 9.2: “Offer displaced households the right of first refusal to occupy replacement housing units that are comparable in size, location, cost and rent control protection.”
Policy 10.2: “Aggressively pursue other strategies to prevent homelessness and the risk of homelessness by addressing its contributory factors.”
Policy 11.1: “Use new housing development as a means to enhance neighborhood vitality and diversity.” (“the design of all housing sites and related amenities [will] make a positive contribution to surrounding public space and to overall neighborhood vitality.”
Policy 11.2: “Ensure housing is provided with adequate public improvements, services, and amenities.”
Policy 11.3: “Encourage appropriate neighborhood-serving commercial activities in residential areas, without causing affordable housing displacement.”
Policy 11.5: “Promote the construction of well-designed housing that enhances existing neighborhood character.” (“provide adequate on-site usable open space and relate the type, amount and location of open space to the types of households expected to occupy the building. (See Figure 9 ‘Residential Open Space Guidelines’ in the Recreation and Open Space Element, for more specific guidelines.)”
Policy 12.3: “Encourage jurisdictions throughout the Bay Area to recognize their share in the responsibility to confront the regional affordable housing crisis.”
The Project directly conflicts with all of the above Housing Policies by promoting dense market-rate housing throughout the Project area with no requirement of on-site affordable units, and no requirement of affordable units anywhere in the Project area.

* Recreation and Open Space Element
Objective 2: “Develop and maintain a diversified and balanced citywide system of high quality open space.”
Policy 2.1: “Provide an adequate total quantity and equitable distribution of public open spaces throughout the City.”
Policy 2.2: “Preserve existing public open space.”
Policy 2.3: “Preserve sunlight in public open spaces.”
Objective 4: “Provide opportunities for recreation and the enjoyment of open space in every San Francisco neighborhood.”
Policy 4.4: “Acquire and develop new public open space in existing residential neighborhoods, giving priority to areas which are most deficient in open space.”
The Project will cause significant adverse impacts on existing open space. The Project proposes no high quality open space, and there is no high quality open space in the Project area. The Project will cast shadows on the tiny Koshland Park with a 400-foot high-rise. The Project will not add to total quantity of open space to the Project area or the city. The Project redefines “open space” as freeway touchdowns and sidewalks, a gross adulteration of the meaning of the term as described in the General Plan.
Policy 5: “Require private usable outdoor open space in new residential development.”
The Project directly conflicts with this requirement by eliminating the Planning Code’s requirement of rear yards and setbacks in new development.
Policy 6: “Assure the provision of adequate public open space to serve new residential development.”
Figure 9: “Residential Open Space Guidelines”
Policy 7: “Provide open space to serve neighborhood commercial districts.”
The Project conflicts with all of the above Policies.

* Transportation Element
Objective 1: “Meet the needs of all residents and visitors for safe, convenient and inexpensive travel within San Francisco and between the city and other parts of the region while maintaining the high quality living environment of the Bay Area.”
By causing significant impacts on parking and traffic, the Project fails to meet the needs of most residents and visitors who choose to drive automobiles and need a place to park.
Policy 1.6: “Ensure choices among modes of travel and accommodate each mode when and where it is most appropriate.”
The Project punishes the vast majority of residents and visitors who drive automobiles by eliminating parking.
Policy 10.4: “Consider the transportation system performance measurements in all decisions for projects that affect the transportation system.”
The EIR includes no coherent or up-to-date performance measurements for traffic or transit.
Policy 17.2: “Encourage collaboration and cooperation between property owners and developers to allow for the most efficient use of existing and new parking facilities.”
The Project does not encourage efficient use of existing and new parking facilities. Rather, it eliminates parking facilities and causes severe parking impacts and deficits.
Objective 20: “Give first priority to improving transit service throughout the city, providing a convenient and efficient system as a preferable alternative to automobile use.”
The Project proposes no improvements to transit and will cause severe impacts on already overcrowded transit in the Project area.
Policy 30.1: “Assure that new or enlarged parking facilities meet need, locational and design criteria.”
The Project directly conflicts with this Policy by assuring that parking needs of residents and visitors will not be met.
Policy 30.6: “Make existing and new accessory parking available to nearby residents and the general public for use as short-term or evening parking when not being utilized by the business or institution to which it is accessory.”
The Project seeks to remove and eliminate accessory parking throughout the Project area.
Objective 33: “Contain and lessen the traffic and parking impact of institutions on surrounding residential areas.”
The Project removes parking in and near the Civic Center and throughout the Project area, introduces density development without adequate parking, and worsens a severe existing parking deficit.
Policy 33.2: “Protect residential neighborhoods from the parking impacts of nearby traffic generators.”
The Project does nothing to protect residential neighborhoods from nearby traffic generators, makes no attempt to mitigate the loss of over 1,000 spaces caused by the new Octavia Boulevard, and will create severe parking impacts with density development throughout the area, while removing the Planning Code’s requirements to provide parking.
Policy 34.1: “Regulate off-street parking in new housing so as to guarantee needed spaces…”
The Project creates a severe parking shortfall by not guaranteeing needed spaces for new housing developments.
Policy 34.2: “Use existing street space to increase residential parking where off-street facilities are inadequate.”
The Project will remove hundreds of street parking spaces for development.
Objective 35: “Meet short-term parking needs in neighborhood shopping districts consistent with preservation of a desirable environment for pedestrians and residents.”
Policy 35.1: “Provide convenient on-street parking specifically designed to meet the needs of shoppers dependent upon automobiles.”
The Project eliminates on-street parking and prohibits accessory parking adequate for residential and shopping use.

* Urban Design Element
Objective 1: “Emphasis of the characteristic pattern which gives to the city and its neighborhoods an image, a sense of purpose, and a means of orientation.”
Policy 1.1: “Recognize and protect major views in the city, with particular attention to those of open space and water.”
Policy 1.3: “Recognize that buildings, when seen together, produce a total effect that characterizes the city and it districts.”
Policy 1.4: “Protect and promote large-scale landscaping and open space that define districts and topography.”
Policy 1.7: “Recognize the natural boundaries of districts, and promote connections between districts.”
Policy 1.8: “Increase the visibility of major destination areas and other points for orientation.”
Objective 2: “Conservation of resources which provide a sense of nature, continuity with the past, and freedom from overcrowding.”
Policy 2.1: “Preserve in their natural state the few remaining areas that have not been developed by man.”
Policy 2.2 “Limit improvements in other open spaces having an established sense of nature to those that are necessary, and unlikely to detract from the primary values of the open space.”
Policy 2.4: “Preserve notable landmarks and areas of historic, architectural or aesthetic value, and promote the preservation of other buildings and features that provide continuity with past development.”
Policy 2.6 “Respect the character of older development nearby in the design of new buildings.”
Policy 2.7 “Recognize and protect outstanding and unique areas that contribute in an extraordinary degree to San Francisco’s visual form and character.”
Objective 3: “Moderation of major new development to complement the city pattern, the resources to be conserved, and the neighborhood environment.”
Policy 3.1: “Promote harmony in the visual relationships and transitions between new and older buildings.”
Policy 3.2: “Avoid extreme contrasts in color, shape and other characteristics which will cause new buildings to stand out in excess of their public importance.”
Policy 3.3: “Promote efforts to achieve high quality of design for buildings to be constructed at prominent locations.”
Policy 3.4: “Promote building forms that will respect and improve the integrity of open spaces and other public areas.
Policy 3.5: “Relate the height of buildings to important attributes of the city pattern and to the height and character of existing development.”
Policy 3.6: “Relate the bulk of buildings to the prevailing scale of development to avoid an overwhelming or dominating appearance in new construction.”
Policy 3.7: “Recognize the special urban design problems posed in development of large properties.”
Policy 3.8: “Discourage accumulation and development of large properties, unless such development is carefully designed with respect to its impact upon the surrounding area and upon the city.”
Policy 3.9: “Encourage a continuing awareness of the long-term effects of growth upon the physical form of the city.”
Objective 4: “Improvement of the neighborhood environment to increase personal safety, comfort, pride and opportunity”
Policy 4.1: “Protect residential areas from the noise, pollution and physical danger of excessive traffic.”
Policy 4.10: “Encourage or require the provision of recreation space in private development.”
Policy 4:15: “Protect the livability and character of residential properties from the intrusion of incompatible new buildings.”
The Project conflicts with all of the above Policies.

* Community Safety Element
Policy 2.9: “Consider information about geologic hazards whenever City decisions that will influence land use, building density, building configurations or infrastructure are made.”

* Civic Center Area Plan
Objective 1: “Maintain and reinforce the Civic Center as the symbolic and ceremonial focus of community government and culture.”
Policy 1: “Emphasize key public buildings, particularly City Hall, through visually prominent siting.”
Policy 2: “Maintain the formal architectural character of the Civic Center.”
Objective 2:“Develop the Civic Center as a cohesive area for the administrative functions of city, state and federal government, and as a focal point for cultural, ceremonial, and community activities.”
The Project’s proposal for high-rise residential development in the Civic Center area clashes with the formal architectural character and public purpose of the Civic Center, and will dwarf and diminish the grand public buildings, particularly City Hall, by sheer size, height, bulk, and incompatible architecture.
Objective 3: “Provide convenient access to and circulation within the Civic Center, and support facilities and services.”
Policy 1: “Locate buildings employing large numbers of employees and/or attracting large numbers of visitors in convenient pedestrian proximity to…of street parking facilities.”
Policy 2: “Locate parking facilities beyond the western periphery of the Civic Center core, with direct vehicular access to major thoroughfares.”
The Project removes parking and will cause severe adverse impacts on parking throughout the Civic Center and its western periphery. The Project will bring nearly 10,000 more residents to the nearby areas with no mitigation of their impacts on parking, transportation and transit.

* Van Ness Avenue Area Plan
Policy 8: “Require residential parking at a ratio of one parking space per dwelling unit.”
Policy 9: “Make accessory parking spaces available to the general public for use as short-term day or evening parking whenever possible.”


The Project drastically changes the actual provisions and substance of the Planning Code, removing longstanding protections against unrestricted density development and harming the vast majority of residents who have cars and need parking.


The Plan does not specify in detail “the proposed distribution, location, and extent and intensity of major components of public and private transportation, sewage, water, drainage, solid waste disposal, energy, and other essential facilities proposed to be located within the area covered by the plan and needed to support the land uses described in the plan.” (Gov. Code §65451(a)(2).) Missing from the Plan are the “extent and intensity of major components of public and private transportation.” We are told innumerable times that the area is “transit rich,” but there is no evaluation of the actual existing transit use, the projected transit use, the impacts on existing overcrowded transit, and what will be done to accommodate the thousands of new residents who are supposed to use transit in lieu of automobiles. Nor is there any analysis or mitigation or commitment to mitigate traffic, parking, and other impacts.


The EIR admits that the entire Project is an experiment imposing “an innovative set of land use controls…” Indeed, the City has not produced any substantial evidence supporting any of its theories. Planning proposes to use the heart of the City in this experiment and then ominously says it will inflict the experiment on other “neighborhoods” throughout the City: “The Plan will function as a model for reweaving the urban fabric in other neighborhoods that are interested in amplifying the benefits of a vibrant transit-oriented settlement pattern for such neighborhoods.”(DEIR, at 3-1)

The impacts of this Project on other parts of the city must be explained, including the impacts of new zoning designations and changes in the General Plan and Zoning Code, and the direct and cumulative impacts on transit, traffic and other resources caused by this Project. Because of its magnitude, its basis in unproven theory, and its location in the center of the city, the Project is of citywide, regional and statewide significance, and its impacts must be analyzed objectively and accordingly.

The Project inappropriately considers the proposed development of 500 market-rate units on the UC Extension site (“55 Laguna”) as a done deal, and has even changed its zoning map from “Public/Open Space” to 85-foot height limits on the site. (Ex. Z-1-a-2, February 15, 2007) That public site may not be lawfully rezoned within this Project or any other, and the proposed development may not be lawfully approved within this Project or any other.


Notice of proceedings before this Board of Supervisors has not been given to the Appellants, general public, and residents of the Plan area and other areas affected in violation of CEQA, the Government Code, and constitutional due process. While Planning has exempted developers from the Plan’s requirements, it has dismissed public comments on specific development proposals. Planning has dismissed the large body of substantive public comment protesting the impacts of the Project on parking, transit, transportation, and historic resources and other impacts. The huge bulk of addenda and revisions added long after the public comment period on the DEIR require that a revised DEIR be recirculated for public input. That requirement still stands.

Planning did not make the subject of this Appeal, the Planning Commission’s actions of April 5, 2007, publicly available until April 19, 2007, and properly signed copies were unavailable until May 15, 2007, cutting short the public’s time to assimilate huge volumes of documents, many of which were changed on and after April 5, 2007. The public was denied adequate time and the opportunity to be heard on this major Project and Planning’s voluminous changes to it after September, 2006. CEQA’s primary goals of informed decision-making and public participation in that decision-making were obstructed by a refusal to provide adequate time and the materials necessary for informed participation.

For all of the above-described and other reasons, the Board of Supervisors must not approve the EIR, the Project, and proposed legislation.

(footnote #1) Of the 22 freeway parcels, only half are projected to include affordable housing. The City has now transferred several freeway parcels to private ownership for market-rate residential development. Coherent information about the disposition of these parcels has not been provided, in spite of plans already approved or under construction, and with at least one market-rate condominium development already constructed with no public review. The descriptions of developments in the EIR (DEIR 4-55 - 4-60) are inconsistent with proposed and ongoing developments already implemented on these parcels.

(footnote #2)The baseless 5,950 figure is itself a dubious understatement that appeared after the close of public comment. (See FN. 1, supra.) Given the huge number of parcels listed for rezoning (3,000 to 5,000 or more) and the Project’s removal of density, height, setback, yard, open space, parking, and other requirements, the number of new housing units encouraged by the Project is likely to be much higher. Regardless of how many existing structures will be demolished to make way for more profitable density and high-rise development, there is no requirement in this Project for affordable housing on-site anywhere in the Project area.

(footnote #3)The lucky recipients of non-existent affordable housing in the Project Area would be unaffected, since they would receive discounts on the “unbundled” parking as well as on the housing they received through the Mayor’s Office of Housing. (254-page Ordinance at §167). The vehicle ownership rate in affordable owned units in San Francisco in 2000 exceeded that in market-rate owned units, but in 2000 it was slightly less in affordable-rented units than in market-rate rented units. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department, Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November, 2001, at “Figure 24.”)

(footnote #4) According to the C&R at pp. 3-27 through 3-28, “Table C-5 Revised,” the public cannot park in the following spaces:
401 Grove: 67 spaces reserved for City employees only;
475 Hayes: 84 spaces reserved for City employees only;
399 Fell: 29 spaces eliminated by development in 2005;
1355 Market: 200 spaces privately reserved;
298 Oak: 28 spaces eliminated in 2005;
50 Ninth Street: 160 spaces eliminated by development;
299 Oak Street: 28 spaces eliminated in 2005;
15 Oak Street: reserved for private use;
1 Franklin: 40 spaces, reserved for private use;
170 Octavia: Eliminated in 2005;
70 Gough: 32 spaces, eliminated in 2005;
1525 Market: 68 spaces, reserved for private use;
98 Haight: 27 spaces, fenced and closed;
Brady: 105 spaces reserved for City employees only;
1500 Mission: 40 spaces privately reserved;
1537 Mission: 20 spaces privately reserved;
490 Fulton: 90 spaces reserved for Opera, Ballet and Symphony employees;
495 Fulton: 63 spaces reserved for Opera, Ballet and Symphony employees;
700 McAllister:70 spaces reserved for SFUSD, Opera, Ballet, and Symphony employees;
398 Franklin: 52 spaces privately reserved;
450 Hayes: 36 spaces reserved for Opera, Ballet and Symphony employees;
325 Grove: 12 spaces privately reserved;
51 Hayes: 411 spaces closed at 8 p.m.;
302 Oak St.: 56 privately reserved.
101 Fell: 48 spaces removed by development.

(footnote #5) According to the Project’s source data, vehicle ownership in the Project area is 1.12 vehicles per household for owners and .75 vehicles per household for renters. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November 2001, at p. 13.) By 2010, vehicle ownership is projected to increase to 1.17 per household for owners and .84 per household for renters. (Id.)

(footnote #6)The EIR’s theory that including parking in the cost of housing increases the cost of housing excludes all residents who own cars and park them where they live. It only includes individuals who do not want parking included with their housing. The EIR relies on the theory promulgated by Jia/Wachs, supra, dated 1996; on another student thesis produced for the anti-car group “Transportation for a Livable City” (C&R at Fn.27) (not provided after requests by Appellants); and on a study for the “Victoria Transport Policy Institute” (C&R at Fn.26) (not provided after requests by Appellants). The EIR cites no other data for its theory.

(footnote #7) The Planning Department finally produced the Jia/Wachs study on May 15, 2007. That study is useless because it is outdated, unsupported and speculative. Jia/Wachs considered only 232 “dwelling units listed for sale in 1996.” (Jia/Wachs study at p. 7.) The Jia/Wachs study was made when the median value of a house (not condominium) in San Francisco was $394,779 with parking and $348,388 without parking, and a condominium was $303,856 with parking and $265,053 without parking. (Id. at p. 8.) Jia/Wachs’s flawed conclusion, which forms the central basis for the Market-Octavia Project, is that people earning $67,000 per year could afford a house in San Francisco if it did not include parking, and those earning only $51,000 per year could afford to buy a condominium in San Francisco without parking.

However, according to the United States Census, in 2005 the median price of housing (including condominiums) in San Francisco was $726,700. (U.S. Census, On May 17, 2007, the San Francisco Chronicle reported that the median cost of a house in San Francisco was $850,000 (Carolyn Said, “Bay Area’s housing prices buck national trend,” San Francisco Chronicle, May 17, 2007). The median income in San Francisco did not rise with the rise in cost of housing. The census places the median income of San Francisco households at $57,496, less than the amount required for a condominium with no parking even in the outdated Jia/Wachs study ten years earlier. Quoting Ken Rosen, chairman of the Fisher Center for Real Estate and Urban Economics at UC Berkeley, the Chronicle reported that the Bay Area’s rise in real estate prices has defied national trend of falling prices, because it is driven by “strong activity at the upper end,” while losing the “bottom 20 to 30 percent of the market that can’t qualify for mortgages,” as realtors claim that housing in the “over-$2 million range is absolutely on fire.”

At prevailing prices, even if the Project’s unsupported claim that a parking space costs $30,000 to $60,000, that amount would be only 3 to 7 percent of the median price of a home in San Francisco, not the 13% claimed by Jia/Wachs. Thus, the Project’s more recent source data, Nelson\Nygaard, concludes that parking cost is irrelevant to both need and demand and has no influence on the affluent demographic that can afford to buy housing in San Francisco. (Nelson\Nygaard Consulting Associates, San Francisco Planning Department Better Neighborhoods 2002 Technical Memorandum Vehicle Ownership in San Francisco, November 2001, at pp. 18-19.)

Although Jia/Wachs notes that 70.4% of residents in their study area were renters, the study did not bother assessing renters’ parking needs. (Id. at p. 5) The Jia/Wachs study does not support the EIR’s conclusions, but instead asks only unsupported rhetorical questions, e.g., “If parking and housing were marketed separately in inner-city urban neighborhoods, wouldn’t everyone choose not to pay for parking and instead park free on local streets?” (Id. at p.10, italics in original.) Jia/Wachs then makes the entirely speculative claim that “owners with sufficient income would probably choose to purchase or lease parking spaces,” while “[o]thers, wishing to save money, would give up cars they rarely use…and pay less for housing.” (Id.) Jia/Wachs furnishes no evidence in support of its speculation, while the city’s own data, as well as that of noted experts, contradict Jia/Wachs unsupported conclusions. Nevertheless, that speculation is repeated as fact throughout the Project documents.

(footnote #8) The DEIR admits it has no data on existing parking demand, but instead bases its claims on “the number and size of the units.” (DEIR, p. 4-209). The outdated figures were derived by counting the number of studio, one-bedroom, two-bedroom, etc., units existing in 2000 in the Project Area and deducting parking spaces for “affordable” units. (DEIR, p. 4-211). From these figures are extrapolated “Midday Parking Demand Rate” per unit size, and “Evening Parking Demand Rate” per unit size. No data is given on how many of each unit size now exists in the Project area or will exist under the Project.

(footnote #9) The EIR erroneously claims the shortfall would only be from 2,250 to 5,410 parking spaces. (C&R at p. 3-181, Table B.) However, even using data from the EIR, 35% would require more than doubling the size of the garage to create an additional 788 to 1,893 parking spaces, while eliminating reserved parking for City and other employees now occupying most available lots in the area, plus the performing arts employees who also receive reserved parking.

(footnote #10) The EIR’s LOS analysis (DEIR, p. 4-185-186) was conducted before the opening of the new Octavia Boulevard, which has caused major increases in traffic congestion on that boulevard and surrounding streets.

(footnote #11) SFCTA’s “Congestion Management Plan” oddly excludes most affected streets. SFCTA has also violated the Government Code by failing to come up with a “Deficiency Plan” for more than five years. (Gov. Code §§65089, 65089.4) If litigated, the city could lose billions in income from taxes on the drivers it punishes with this Plan.

(footnote #12) The Project calls for obstructing or totally closing Page Street to motor traffic to create a “bicycle boulevard,” though this would back up vehicles and Muni traffic, as well as other modes of transportation, affecting schools and the needs of a densely populated residential street. Previous attempts to install traffic circles on Page were overwhelmingly rejected by neighborhood residents, the Fire Department, and pedestrian groups, and had to be removed because they obstructed passage of emergency vehicles. Bicycle facilities and “bicycle boulevards” are also preempted under the State Constitution, art. XI § 7.

(footnote #13) As noted above, the public has not been given the opportunity for input on the Project’s voluminous addenda and changes since the DEIR comment period ended in June, 2005, which significantly change the EIR, the Project, and the proposed legislation to adopt it. The volume of material, its importance and significant impacts require a new period of public comment that will be accomplished only by revision and recirculation.

(footnote #14) The City may not adopt any legislation that conflicts with the Planning Code §101.1, because that provision was adopted with a voter-approved Ordinance, Proposition M, in 1986. (Cal. Elections Code §9217).

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