Two Steps Forward, One Step Back:  Transit Center EIR Appealed

Last month, the Planning Commission certified the Final Environmental Impact Report (“FEIR”) for the Transit Center District Plan (“Plan”) and Transit Tower after nearly five years of study. The two-inch-thick document covered the potential environmental effects of the Plan and Tower in extensive, if not excruciating, detail. Despite years-and millions in public funds-expended on a thorough and objective document, an appeal was filed yesterday.

The appeal was filed by perennial anti-development attorney, Sue Hestor, on behalf of the Save Our Parks Sunlight Coalition (“Coalition”), a group whose membership is comprised of Ms. Hestor’s organization, San Franciscans for Reasonable Growth (“SFRG”). Presumably, other groups are members of the so-called Coalition, though none are identified by name. Though Ms. Hestor upbraided the Planning Commission at the certification hearing only weeks ago for not possibly having read the voluminous FEIR or absorbed all of its minute details, the appeal now claims without any visible trace of irony that the document was not detailed enough.

As expected, the appeal focuses primarily on the shadows on public parks and other open spaces. Specifically, it alleges that the FEIR:

  • Understates the shadow impacts on parks under the protection of Proposition K, a voter-approved ordinance that precludes new shadows on parks under the jurisdiction of the Recreation & Parks Commission, unless the shadows would not have a significant or adverse effects;
  • Misapplies Proposition K by assuming that the Planning Commission and Recreation & Parks Commission can increase the amount of shadow allowed on downtown parks.

Unsurprisingly, the appeal offers nothing in the way of factual or legal support for any of these claims for one simple reason: there isn’t any. For those unfamiliar, an FEIR is not an approval of a project or plan; it is simply an informational document that must be objective, accurate, and adequately apprise the public and decision-makers of the environmental impacts before a project (or a plan) is approved.

There is no question that the FEIR’s analysis of shadow meets this standard. It devotes more than 81 pages of text and graphics to describing how the new skyscrapers allowed by the Plan would affect parks and open spaces. What’s more the analysis is deliberately conservative: every potential development site was modeled for a building that, in all likelihood, will be bulkier and taller than what eventually gets built. Potential new shadows on major parks were shown in hour-by-hour graphics at different times of year and the percentage of additional time parks could be shaded was quantified down to one-hundredth of one percent. Again, to be conservative, the FEIR didn’t account for real-world conditions like rain and dense cloud cover.

The result of this worst-case analysis? The parks most affected by new shadows could experience one-quarter of one percent (0.25%) more shadow than they do now. At Union Square and Portsmouth Square – the two parks that are the central focus of controversy – new shade would occur before 9:10 a.m. when park use is limited. Though the figures show that effects of new buildings will be minimal, that doesn’t mean they are “understated” or that the FEIR is somehow deficient. It just means that the heated rhetoric of the anti-shadow zealots isn’t grounded in objective reality.

The appeal’s primary legal claim – that the amount of shadow on downtown parks can’t be increased – also falls flat. Proposition K does not flatly prohibit new shadows above certain numeric amounts. It prohibits new shadows that are both “significant” and “adverse.” The interpretation of these subjective terms was left to the Planning Commission and Recreation & Park Commission, which later adopted quantitative limits or “shadow budgets” for parks in the downtown area.

The appeal asserts that these shadow budgets are somehow locked into place as a voter mandate under Proposition K, even though they were adopted by the two commissions some five years after the ballot initiative passed. This position defies both logic and longstanding practice. The Planning Commission and Recreation & Park Commission have, on rare occasions, adjusted shadow budgets to allow construction of projects with clear social benefits and minimal impacts on parks. These include an addition to the Asian Art Museum and several affordable housing projects. As a key source of revenue for the next generation of downtown transit, minor increases in shadow allowances to carry out the Plan are justified, and the FEIR can’t be considered defective for pointing out the Planning and Recreation & Parks Commissions have the discretion to do just that.

Though the appeal is completely without merit, CEQA nonetheless mandates the Board of Supervisors consider it-an exercise that will needlessly consume the time and attention of elected officials and waste public funds. To add insult to injury, none of these costs will be paid by the appellant. San Franciscans for Reasonable Growth, which to most regular observers seems to be an organization consisting of one person, apparently received a fee waiver as a “community organization.” While the City is required to consider CEQA appeals as a matter of law, it should-especially where public projects are concerned-stop encouraging them with what amounts to a hijackers-fly-free policy.

The appeal is expected to be heard by the Board of Supervisors in early July. We encourage you to contact them to urge rejection of the appeal and approval of the Plan.

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, 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.

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