The Treasure Island Development Authority (“TIDA”) pitches the 404-acre island as “San Francisco’s Newest, Greenest Neighborhood.” With up to 8,000 homes, 3 hotels, a ferry terminal, and 300 acres of parks and open space, Treasure Island is an ambitious undertaking. Unfortunately, it may be a while before the greenest new neighborhood emerges from the red tape.
After having its lawsuit to overturn the EIR for Treasure Island rejected at trial and in the First District Court of Appeal, the Citizens for a Sustainable Treasure Island (CSTI) have asked the California Supreme Court for a third bite at the apple. As with most things having to do with CEQA, the issues are convoluted. CSTI is urging the Court to overturn the EIR for Treasure Island because:
- The City should have used a “Program EIR” rather than a “Project EIR” because not all of the hypothetical details of development on the island have been resolved. Although the Treasure Island Plan includes detailed development standards, the City built in defined – and limited – flexibility regarding the siting of some features. This, alleges CSTI, precludes the use of a Project EIR.
- By using a Program rather than a Project EIR, the City has telegraphed its intentions to unfairly curtail future environmental review. CSTI claims that further environmental review is more likely—and the legal standard for mandating additional environmental review lower—when there is a Program EIR.
- The Draft EIR should have been recirculated due to the addition of mitigation to prevent the disruption of Coast Guard radar and radio by tall buildings. CSTI argues that the mitigation, which was devised in “private” meetings between the City and the Coast Guard, violated public disclosure requirements and deprived the public an opportunity to comment on significant impacts.
In plain English, CSTI is asking the Supreme Court to send the City back to the drawing board for the EIR it already completed, and to make it easier to do so when individual buildings are approved on Treasure Island in the future. However, if the decisive opinion from the Court of Appeal is any indication, CSTI is fighting an uphill battle.
First, the Court said there is “no authority” that requires the City to prepare a Program rather than a Project EIR. The principal difference between the two is that a project-level EIR focuses on site-specific impacts where all phases of development are defined. Although the plans for Treasure Island are flexible in some regards—e.g., the exact siting of tall buildings within defined “flex zones” – they were sufficiently detailed to serve as the basis for a Project EIR. Though the Court did not give specific examples, Project EIRs have been widely used for other large-scale projects in San Francisco, including Park Merced, Mission Bay, and Phase II of the Candlestick-Hunters Point Shipyard.
Second, the Court rejected the idea that City engaged in an “unlawful attempt to prospectively evade” further environmental review. CSTI’s allegation in this regard is based on the “flawed legal premise” that individual projects following a Program EIR are evaluated under the fair argument standard—a low threshold favoring the preparation of an EIR—while Project EIR’s are not. The Court instead found that both Program and Project EIR’s are subject to the same standard: further environmental review is not required unless there are substantial changes in a project or underlying circumstances that require major revisions of the EIR. And in determining whether these conditions are present, courts defer to the City’s judgment rather than giving credence to any “fair argument” of impacts made by a member of the public.
Finally, the Court found that the City’s agreement to consult the Coast Guard regarding the siting of tall new buildings that could interfere with radar/radio communications is “the way CEQA is supposed to work – the public comment process may reveal new…insights…that will affect the final Project design.” However, the agreement to consult with the Coast Guard did not rise to the level of “significant new information” requiring recirculation of the EIR.
In essence, the Court of Appeal found CSTI’s claims to be much ado about nothing. The Supreme Court has until mid-October to decide whether to accept CSTI’s petition for review.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.