The Sierra Club v. City and County of San Francisco CA1/2 ( 2015 )

Filed 9/30/15 The Sierra Club v. City and County of San Francisco CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE SIERRA CLUB,
Petitioner and Appellant,
A140891
v.
CITY AND COUNTY OF SAN (San Francisco County
FRANCISCO, et al. Super. Ct. No. CPF-12-512566)
Real Parties in Interest and
Respondents.
CITY FIELDS FOUNDATION et al.,
Intervenor and Respondent.
INTRODUCTION
This appeal challenges the decision of the Board of Supervisors for the City and
County of San Francisco (City) to certify the environmental impact report (EIR) for the
Beach Chalet Athletic Fields Renovation Project (the project or Beach Chalet project), a
sports field renovation project in Golden Gate Park. The proposed renovation includes
replacing the existing grass turf fields with synthetic turf fields, installing field lighting,
and other site modifications intended to improve the overall conditions of the facility and
increase the amount of play time on the athletic fields. Petitioners filed a complaint for
declaratory and injunctive relief and sought a writ of mandate in the trial court,
contending, inter alia, that the EIR for the project was inadequate under the California
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Environmental Quality Act, Public Resources Code section 21000 et seq.1 (CEQA).
After a bench trial on the merits, the trial court dismissed the complaint and denied the
petition.
On appeal, petitioners argue that the EIR violated CEQA by failing to disclose and
mitigate significant health risks associated with the styrene butadiene rubber crumb infill
component of the proposed synthetic turf, and by failing to analyze and consider
alternatives to the project that would have met most of the project goals while eliminating
significant environmental impacts. Petitioners also contend the trial court erred in
limiting the administrative record and sustaining without leave to amend a demurrer to
their CEQA claim that the City failed to exercise its independent judgment in allowing
intervenor City Fields Foundation (the Foundation) to choose the synthetic turf for the
project.
Finding no error, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Beach Chalet Athletic Fields Renovation Project
The San Francisco Recreation and Parks Department (SFRPD), the project
sponsor, is proposing to renovate the Beach Chalet Athletic Fields facility (facility), an
approximately 9.4 acre public sports field that was built 75 years ago along the western
edge of Golden Gate Park. The facility includes four grass turf athletic fields, a parking
lot, a restroom building, and a maintenance shed. Golden Gate Park is the fifth most
visited park in the country and is listed on the National Register of Historic Places and
the California Register of Historical Resources as a historic district. Both the athletic
fields and the restroom building at the project site are listed as contributing features of the
historic district.
The facility is one of three primary ground sports athletic facilities in San
Francisco. To allow the natural grass turf to rest and regrow, only three out of the four
athletic fields are open at any one time, and all four fields are closed to the public for
1
All further undesignated statutory references are to the Public Resources Code.
2
three to four months in the fall and winter. The fields are also closed to the public on
Mondays throughout the year for maintenance. The fields are open until dark Tuesday
through Sunday, and are closed during and following rain events. According to SFRPD,
“the fields are subject to heavy use and are characterized by abundant gopher holes and
year-round wet conditions, are considered to be in poor condition, and require a
considerable amount of maintenance.”
The project would include replacing the four natural grass turf fields with
synthetic turf, installing field lighting, renovating the existing restroom building,
installing player benches and seating, and constructing a plaza area with seating. A
playground, picnic tables, and barbecue pits would be added, as would two access paths
from the plaza area to the playing fields. The parking lot would be renovated and
expanded to include a drop-off area and an additional 20 parking spaces for a total of 70
spaces. A new concrete pathway would encircle the four playing fields and connect with
existing pedestrian circulation routes within the park and to the pathway at the nearby
Great Highway.
In their current condition, the fields accommodate approximately 4,738 hours of
annual play. Installation of synthetic turf would allow for use of the fields in wet weather
conditions and eliminate the need for rest and regrowth periods. Installation of lighting
would allow for longer evening use of the fields. The proposed project would add
approximately 9,582 additional hours per year of play time, for a total of 14,320 hours of
annual play, an increase of more than 200 percent over existing conditions.
B. The City’s Partnership with the Foundation
In 2006, the City and the Foundation entered into a Memorandum of
Understanding (MOU) to partner together in upgrading athletic playing fields in the City.
In partnership with the Foundation, the City has installed 14 synthetic turf athletic fields
in seven parks throughout San Francisco.2 This has added approximately 37,000 new
2
We are advised by the City that, in September 2014, after the administrative
record was closed, two new turf fields opened at the Minnie and Lovie Ward Recreation
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hours of play capacity annually to San Francisco’s public soccer fields, enabling 1,800
more San Francisco children to play soccer. The 14 existing synthetic turf fields in San
Francisco use the same infill material, styrene butadiene rubber (SBR) crumb and sand,
that petitioners challenge in this case.
C. Administrative Proceedings
The City’s Planning Department issued a Notice of Preparation/Initial Study for
the Beach Chalet project in February 2011, and released the draft EIR for the project on
October 26, 2011. This 368-page draft EIR disclosed that the Beach Chalet project
would have unavoidable significant impacts on historic resources, incorporated
mitigation measures to reduce impacts on biological resources and exposure to hazardous
materials, and examined in detail four potential alternatives to the project (including a
“no project” alternative). Following the public comment period and a public hearing, the
Planning Department prepared Comments and Responses for the draft EIR, also known
as the final EIR, which addressed environmental issues raised by the public, contained
additional analysis and reports, revised the text of the EIR in response to comments or
based on additional information that became available during the public review period,
and corrected errors in the EIR. The final EIR is over 1,750 pages.
On May 24, 2012, the Planning Commission adopted findings under CEQA
including findings rejecting alternatives as infeasible, adopting mitigation measures, and
adopting a statement of overriding considerations, and certified the final EIR.
On June 12, 2012, petitioners appealed the Planning Commission’s certification of
the final EIR to the Board of Supervisors. After a public hearing on July 10, 2012, the
Board of Supervisors affirmed the Planning Commission’s certification of the EIR.
Center in the Oceanview neighborhood, bringing the number of synthetic turf fields in
San Francisco to 16.
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D. Trial Court Proceedings
On October 12, 2012, petitioners filed this action seeking a writ of mandate
vacating the EIR and its certification and findings, and enjoining the project pending
compliance with CEQA. The trial court granted the Foundation’s motion to intervene.
Petitioners filed a first amended petition in February 2013, adding additional
CEQA counts. Petitioner Sierra Club first appeared in this action with the first amended
petition. Respondents filed a demurrer to the first amended petition which the trial court
partially sustained without leave to amend, dismissing petitioners’ claim that the City
failed to exercise independent judgment in approving the project.
A bench trial was held on August 16 and 21, 2013. On December 3, 2013, the
court issued its order on the merits, denying the petition for writ of mandate and
dismissing the complaint in its entirety.
Petitioners timely appealed from the trial court’s order on the merits and the
judgment.
DISCUSSION
A. CEQA Principles and Standard of Review.
For any proposed project that may have a significant effect on the environment,
CEQA requires the lead agency to analyze the potential effects in an EIR. (§ 21151; Cal.
Code Regs., tit. 14, § 15002, subd. (f) (Guidelines).) The EIR is “the public document
used by the governmental agency to analyze the significant environmental effects of a
proposed project, to identify alternatives, and to disclose possible ways to reduce or avoid
the possible environmental damage.” (Guidelines, § 15002, subd. (f).) Our Supreme
Court has described the EIR as the “ ‘heart of CEQA.’ ” the purpose of which is “to
inform the public and its responsible officials of the environmental consequences of their
decisions before they are made. Thus, the EIR ‘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 [(Laurel Heights)].)” (Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564 (Goleta Valley).) “The
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foremost principle under CEQA is that the Legislature intended the act ‘to be interpreted
in such manner as to afford the fullest possible protection to the environment within the
reasonable scope of the statutory language.’ [Citation.]” (Laurel Heights, supra, 47
Cal.3d at p. 390.)
“[A] court’s inquiry in an action to set aside an agency’s decision under CEQA
‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of
discretion is established if the agency has not proceeded in a manner required by law or if
the determination or decision is not supported by substantial evidence.’ As a result of
this standard, ‘The court does not pass upon the correctness of the EIR’s environmental
conclusions, but only upon its sufficiency as an informative document.’ [Citation.]”
(Laurel Heights, supra, 47 Cal.3d at p. 392, fn. omitted.) “An appellate court’s review of
the administrative record for legal error and substantial evidence in a CEQA case, as in
other mandamus cases, is the same as the trial court’s: the appellate court reviews the
agency’s action, not the trial court’s decision; in that sense appellate judicial review
under CEQA is de novo. [Citations.]” (Vineyard Area Citizens for Responsible Growth,
Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 427.)
“ ‘When the informational requirements of CEQA are not complied with, an
agency has failed to proceed in “a manner required by law” and has therefore abused its
discretion.’ (Save Our Peninsula Committee [v. Monterey County Bd. of Supervisors
(2001) 87 Cal. App. 4th 99,] 118.) Furthermore, ‘when an agency fails to proceed as
required by CEQA, harmless error analysis is inapplicable. The failure to comply with
the law subverts the purposes of CEQA if it omits material necessary to informed
decisionmaking and informed public participation. Case law is clear that, in such cases,
the error is prejudicial.’ (County of Amador v. El Dorado County Water Agency (1999)
76 Cal. App. 4th 931, 946.)” (State Water Resources Control Bd. Cases (2006) 136
Cal. App. 4th 674, 723.) Phrased another way, “[w]hen the specific claim of legal error
concerns an omission of required information from the EIR, the plaintiff must
demonstrate that (1) the EIR did not contain information required by law and (2) the
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omission precluded informed decisionmaking by the lead agency or informed
participation by the public. [Citation.] These two elements constitute an abuse of
discretion and prejudice, respectively, and together form reversible error. [Citations.]”
(Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal. App. 4th 48, 76-
77, disapproved on other grounds by Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority (2013) 57 Cal. 4th 439, 457.)
“In applying the substantial evidence standard, ‘the reviewing court must resolve
reasonable doubts in favor of the administrative finding and decision.’ [Citation.] The
Guidelines define ‘substantial evidence’ as ‘enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached.’ (Guidelines, § 15384,
subd. (a).)” (Laurel Heights, supra, 47 Cal.3d at p. 393.)
“ ‘In reviewing an agency’s decision to certify an EIR, we presume the correctness
of the decision. The project opponents thus bear the burden of proving that the EIR is
legally inadequate.’ [Citation.] However, ‘[w]hile we may not substitute our judgment
for that of the decision makers, we must ensure strict compliance with the procedures and
mandates of the statute.’ [Citation.]” (State Water Resources Control Bd. Cases, supra,
136 Cal.App.4th at p. 723.)
B. The EIR’s Evaluation of Human Health Risks Posed by SBR Infill
In their First CEQA count, petitioners assert that the EIR failed to acknowledge
the toxic chemical impacts of synthetic turf that uses SBR infill. Under CEQA, the EIR
must include, among other things, a detailed statement setting forth “[a]ll significant
effects on the environment of the proposed project,” “[m]itigation measures proposed to
minimize significant effects on the environment,” and “[a]lternatives to the proposed
project.” (Pub. Resources Code, § 21100, subd. (b).) Petitioners contend the EIR was
legally inadequate for failing to disclose that SBR infill poses significant risks to human
health. It is undisputed that SBR infill contains a number of potentially toxic chemicals
that pose both non-carcinogenic and carcinogenic health risks. Petitioners claim the City
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failed to disclose that SBR infill exceeds the threshold of significance for non-cancer
health risks. Petitioners also claim the EIR failed to rebut expert evidence that SBR infill
creates significant cancer risks. We will summarize the analysis provided in the EIR and
then address petitioners’ arguments.
1. Summary of the EIR Analysis
The EIR explained that the proposed synthetic turf is composed of four
components: fiber, infill, backing and underlayment. The fiber, composed of
polyethylene, would be grass-like in appearance. The infill, used to provide stability,
would be comprised of about 70 percent SBR and 30 percent sand. The fiber and infill
would be supported by a backing of woven and unwoven polypropylene fabrics that
provide strength and vertical drainage. Underlayment would consist of a drainage tile or
an aggregate rock base.
The SBR used in the infill “is finely ground rubber derived from recycled scrap
tires, and has been demonstrated to contain a number of volatile organic compounds
(VOCs), semivolatile organic compounds (SVOCs) (including polynuclear aromatic
hydrocarbons), and metals. VOCs in the SBR originate from the use of carbon black and
petroleum oils in the tire production process.” The predominant SVOCs identified are
benzothiazoles, aniline, and phenols. The predominant metals include zinc, iron and
manganese from the steel belts and beads used in the tires, barium, lead and chromium.
“Today, the production of SBR material from tires typically includes a step to remove 99
percent of the steel belting and bead material, which should result in lower levels of iron,
manganese, and chromium in the SBR material relative to earlier products. The SBR
material also contains carbon black, an industrial chemical [composed of nanoparticles
and] used in the manufacturing of automobile tires and other plastic materials.”
The EIR also described the methodology used to determine whether exposure to
the SBR material would pose a health risk. “A human health risk evaluation is used to
assess whether exposure to chemicals would pose a health risk to humans. The
evaluation includes several components, including data evaluation to characterize the
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chemicals present and their concentrations; an exposure assessment to evaluate what
receptors could be exposed to the chemicals and through which pathways (i.e., inhalation,
ingestion, dermal contact); and a risk characterization. The risk characterization includes
the assessment of noncarcinogenic (noncancer) and carcinogenic (cancer) risks to each
potential receptor. [¶] The hazard quotient is used to evaluate potential noncancer health
risks for each chemical. To address potential additive noncancer effects, the individual
hazard quotient for each chemical and exposure route is summed to calculate a hazard
index. A hazard index of less than or equal to 1 is indicative of acceptable levels of
exposure for chemicals having an additive effect.”
“Cancer health risks are defined in terms of the probability of an individual
developing cancer as the result of exposure to a given chemical at a given concentration.
To address potential additive effects, the estimated cancer risks for each chemical and
exposure route are summed to estimate the total excess cancer risk for the exposed
individual. The U.S. Environmental Protection Agency (USEPA) considers estimates of
theoretical excess cancer risk of less than 1 in 1,000,000 [] to be de minimis, or
acceptable. Risks within the range of 1 in 1,000,000 to 100 in 1,000,000 [] may also be
acceptable depending on other risk management factors.”
Having provided this background, the EIR discussed a number of research studies
that assessed the potential risks of exposure to SBR material. The EIR examined a 2007
report published by the California Integrated Waste Management Board, prepared under
contract by the state’s Office of Environmental Health Hazard Assessment (OEHHA).
This report, titled Evaluation of Health Effects of Recycled Waste Tires in Playground
and Track Products, evaluated health risks to children using outdoor playground
equipment and track surfaces constructed from recycled waste tires. Specifically, the
report evaluated health risks associated with children’s exposure to chemicals in the play
surfaces via ingestion of loose tire shreds, ingestion as a result of hand-to-surface-to-
mouth exposure, and skin sensitization as a result of dermal contact. The study examined
the health risks to children through ingestion of tire shreds through both a review of
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existing studies and a gastric digestion simulation. The study concluded that ingestion of
10 grams of loose tire shreds did not represent a serious non cancer risk and posed a de
minimis cancer risk.
The EIR also considered the 2008 findings and recommendations of the Synthetic
Playfields Task Force, which was established by the San Francisco Recreation and Parks
Commission to address public concern over the potential health risks associated with the
use of SBR infill. The task force was formed to review, discuss and vet existing
scientific research on synthetic turf products. The task force made a number of
recommendations, including that SFRPD avoid purchasing turf products containing lead;
when feasible, select manufacturers whose infill products do not include zinc; and that
further study be pursued to evaluate potential hazards such as off-gassing and particulate
emissions.
Other studies examined included a 2009 OEHHA report which assessed the
chemicals present in the air above indoor synthetic turf fields. This report examined
existing studies and, using the data from those studies, found that five of the eight
chemicals found in the air above the synthetic turf were associated with an increased
cancer risk above a de minimis level. The report discussed a number of shortcomings in
the prior studies, but stated that “further studies of the chemicals present above synthetic
turf fields is warranted.” A 2010 study by the California Department of Resources
Recycling and Recovery conducted air sampling above existing synthetic turf fields and
found that exposures to identified VOCs were below noncancer, health-based screening
levels. A 2009 study by the New York Department of Health found noncancer risks from
VOCs and SVOCs were “below hazard quotients for all chemicals.” While potential
cancer risks exceeded the de minimis standard, this result could not be attributed to
emissions from the synthetic turf as the on-field samples were similar to those of the
upwind, background samples. A 2010 study by five Connecticut state agencies examined
air sampling data and found associated cancer risks were only slightly above a de
minimis standard and chronic noncancer risks were not elevated above a hazard index of
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1. The air sampling data included results from an indoor facility, which produced the
highest exposure in the data. Finally, a 2008 evaluation conducted on behalf of the
Bainbridge Island Metro Parks and Recreation District in Washington examined available
scientific literature and conducted a risk assessment based on that data and concluded that
cancer risks did not exceed the de minimis level and that the combined noncancer hazard
index was far below the threshold of 1.
The final step of the risk evaluation is determining whether a particular
environmental impact, here, the hazards associated with the use of SBR infill on the
athletic fields, is significant within the meaning of CEQA. The EIR discussed the
studies, summarized above, relevant to each route of exposure and concluded, for each,
that the health impacts related to the SBR infill would be less than significant. The
Comments and Responses document contained comments submitted by the public, which
included hazardous materials studies not included in the draft EIR and alternate
interpretations of the studies that were included in the draft EIR. The City considered the
comments and studies and concluded that they would not result in changes to the
significance determinations identified in the draft EIR.
2. Noncarcinogenic Toxicity
Petitioners argue that the City abused its discretion in failing to identify the non-
cancer risks of SBR infill as significant. The petitioners’ challenge is legal, not factual.
Specifically, petitioners contend that the City failed to proceed in a manner required by
law by ignoring thresholds of significance adopted by the Bay Area Air Quality
Management District (BAAQMD).3 According to petitioners, under the BAAQMD
standards, there is “no dispute” that the noncancer toxicity of SBR infill is “more than
double the CEQA significance threshold,” but “the EIR failed to disclose, analyze and
3
The EIR explains that the BAAQMD “is the primary agency responsible for air
quality regulation in the nine county San Francisco Bay Area Basin (SFBAAB). As part
of their role in air quality regulation, BAAQMD has prepared the CEQA air quality
guidelines to assist lead agencies in evaluating air quality impacts of projects and plans
proposed in the SFBAAB.”
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mitigate this significant impact.” The City responds that the BAAQMD threshold of
significance upon which petitioners rely is not relevant to an analysis of the health risks
of SBR infill. It further argues that the fact that a single study found that ingestion of
SBR infill could lead to an acute hazard index (AHI) in excess of 1.0 did not compel a
finding that SBR infill creates a significant risk to human health.
In support of their argument that SBR infill creates a significant non-cancer risk to
human health, petitioners rely on the following statement in the EIR which describes the
results of a test simulating the effect of a child consuming 10 grams of tire shreds: “When
tested using a gastric simulation, which is considered more representative of actual
conditions, the hazard index was 2.2 sufficiently close to a hazard index of 1, and deemed
not to represent a serious health hazard by the 2007 OEHHA study.” Based on this
statement, petitioners contend that the noncancer risk of SBR infill is “more than double”
the threshold of significance adopted by BAAQMD and, therefore, significant under
CEQA.
Petitioners argument is premised on the following: In 2010, BAAQMD adopted
“thresholds of significance” for determining whether a project’s “emissions would be
cumulatively considerable, resulting in significant adverse air quality impacts to the
region’s existing air quality conditions.” Relevant to this appeal, these BAAQMD
thresholds of significance included the following threshold for “Risk and Hazards for
new sources and receptors”: “Increased non cancer risk of > 1.0 Hazard Index (Chronic
or Acute).”4 Petitioners’ argument fails, however, because the City did not, and was not
required to, adopt or apply this BAAQMD threshold of significance in the EIR.
4
The BAAQMD Guidelines further describe this threshold of significance by
stating: “If emissions of [toxic air contaminants] or fine particulate matter . . . exceed any
of the Thresholds of Significance listed below, the proposed project would result in a
significant impact. [¶] . . . [¶] An excess cancer risk of more than 10 in one million, or a
non-cancer (i.e., chronic or acute) hazard index greater than 1.0 would be a cumulatively
considerable contribution.” The Guidelines define “Toxic Air Contaminants” as “[a]ir
pollutants which cause illness or death in relatively small quantities. Non-criteria air
contaminants that, upon exposure, ingestion, inhalation, or assimilation into organisms
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CEQA requires that an EIR include, among other things, a “detailed statement
setting forth ‘[a]ll significant effects on the environment of the proposed project’ and
‘[m]itigation measures proposed to minimize significant effects on the environment.’
[Citations.] ‘For each significant effect, the EIR must identify specific mitigation
measures; where several potential mitigation measures are available, each should be
discussed separately, and the reasons for choosing one over the others should be stated.’ ”
(Lotus v. Department of Transportation (2014) 223 Cal. App. 4th 645, 653 (Lotus),
quoting first Pub. Resources Code § 21100, subd. (b), and then Sacramento Old City
Assn. v. City Council (1991) 229 Cal. App. 3d 1011, 1027.) “The determination of
whether a project may have a significant effect on the environment calls for careful
judgment on the part of the public agency involved, based to the extent possible on
scientific and factual data. An ironclad definition of significant effect is not always
possible because the significance of an activity may vary with the setting.” (Guidelines,
§ 15064, subd. (b).) As a result, “a lead agency has the discretion to determine whether
to classify an impact described in an EIR as ‘significant,’ depending on the nature of the
area affected. ” (North Coast Rivers Alliance v. Marin Municipal Water District Board
of Directors (2013) 216 Cal. App. 4th 614, 624.)
The CEQA Guidelines state that “[e]ach public agency is encouraged to develop
and publish thresholds of significance that the agency uses in the determination of the
significance of environmental effects.” (Guidelines, § 15064.7, subd. (a).) A “threshold
of significance is an identifiable, quantitative, qualitative or performance level of a
particular environmental effect, non-compliance with which means the effect will
normally be determined to be significant[.]” (Guidelines, § 15064.7, subd. (a).)
Thresholds of significance that are to be applied for “ ‘general use’ – that is, for use in
evaluating significance in all future projects” must be formally adopted by ordinance,
either directly from the environment or indirectly by ingestion through food chains, may
cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological
malfunctions, or physical deformations in such organisms or their offspring.”
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resolution, rule, or regulation following a public review process. (Save Cuyama Valley v.
County of Santa Barbara (2013) 213 Cal. App. 4th 1059, 1068 (Cuyama Valley); see also
Guidelines, § 15064.7, subd. (b).) The Guidelines do not “require a public agency to
adopt such significance thresholds, however, and [do] not forbid an agency to rely on
standards developed for a particular project.” (Oakland Heritage Alliance v. City of
Oakland (2011) 195 Cal. App. 4th 884, 896 (Oakland Heritage).)
Here, it is undisputed that the City has not formally adopted thresholds of
significance for general use relevant to this appeal. Petitioners argue, however, that
because the City had not adopted a general threshold of significance, it was required to
apply the BAAQMD’s thresholds of significance: “[W]hen an agency has not adopted its
own CEQA significance thresholds, it must apply CEQA thresholds adopted by another
authoritative agency.” We are unpersuaded. As just discussed, the City was free to adopt
a project-specific significance standard and was not required to adopt formally a
threshold of significance. (Oakland Heritage, supra, 195 Cal.App.4th at p. 896 [CEQA
“does not forbid an agency to rely on standards developed for a particular project”].)
This is precisely what the City did in the EIR.
The EIR adopts a standard of significance relating to the use of hazardous
materials for the project and their effect on human health. Specifically, the EIR provides:
“The [City] has not formally adopted significance standards for impacts related to
hazards and hazardous materials, but generally considers that implementation of the
proposed project would have a significant impact if it were to: [¶] . . . Create a significant
hazard to the public or the environment through the routine transport, use, or disposal of
hazardous materials; or [¶] . . . Create a significant hazard to the public or the
environment through reasonably foreseeable upset and accident conditions involving the
release of hazardous materials into the environment.” The EIR goes on to explain that
“[i]mpacts related to the routine use of the synthetic turf would be significant if the use
resulted in adverse health effects due to inhalation of vapors and particulates from the
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synthetic turf, ingestion of the synthetic turf, dermal contact with the synthetic turf
materials, or inappropriate use of detergents and disinfectants to maintain the field.”
The language of this significance standard is derived from Appendix G of the
CEQA Guidelines. “Appendix G of the CEQA Guidelines is an ‘Environmental
Checklist Form’ that may be used in determining whether a project could have a
significant effect on the environment and whether it is necessary to prepare a negative
declaration or an EIR.” (Oakland Heritage, supra, 195 Cal.App.4th at p. 896, fn. 5.)
Under the section entitled “VII. Hazards and Hazardous Materials,” the checklist
recommends that an agency ask whether a project would “[c]reate a significant hazard to
the public or the environment through the routine transport, use, or disposal of hazardous
materials?” (Guidelines, Appendix G.)
A leading CEQA treatise has noted that “[a]lthough Appendix G is designed to
function as an initial study checklist for determining whether an EIR is required, many
lead agencies use the standards in Appendix G as a basis for defining standards of
significance in an EIR.” (1 Kostka & Zischke, Practice Under the Cal. Environmental
Quality Act (2d ed. 2008) § 13.15, at p. 13-16 (Kostka & Zischke).) Courts have
recognized the utility of Appendix G in determining significance standards. For example,
in Oakland Heritage, the court held that an EIR had adequately evaluated the risk of
seismic damage to structures as a potential adverse impact of a project: “[E]ven if the
City were required to use the CEQA Guidelines’ significance criteria, the threshold of
significance used for the project was effectively coextensive with the CEQA Guidelines.
The Revised EIR specifies that a project would have a significant seismic effect if it
would expose people or structures to ‘substantial risk of loss, injury, or death,’ which is,
in substance, the language of Appendix G[.]” (Oakland Heritage, supra, 195
Cal.App.4th at pp. 896-897.) Similarly, in Cuyama Valley, the court, in reviewing an
EIR, stated: “[T]he County was not required to explain why it did not use Appendix G’s
thresholds of significance. Those thresholds are ‘only’ a ‘suggest[ion].’ ” (Cuyama
Valley, supra, 213 Cal.App.4th at p. 1068.)
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In light of the above, petitioners’ contention that the “City has not adopted its own
CEQA significance thresholds” is incorrect. While, as discussed, the City has not
adopted formal “thresholds of significance” generally applicable to all projects in the
City, it did adopt a significance standard for this project based on Appendix G. Further,
petitioners have not provided any authority stating that the City was required to adopt the
thresholds of significance recommended by the BAAQMD. The case upon which
petitioners rely, Lotus, does not stand for that proposition. In Lotus, the court held that an
EIR prepared by Caltrans did not comply with CEQA because it failed to evaluate the
significance of a project’s impact on the root systems of old growth redwood trees
adjacent to a planned roadway. (Lotus, supra, 223 Cal.App.4th at p. 653.) The court
noted that the EIR disclosed that the project activity would “take place within the root
zones of specific old growth redwood trees” and would also result in changes to the
“impermeable area covering the root zones of some of the old growth redwood trees.”
(Id. at p. 654.) The EIR did not, however, “include any information that enables the
reader to evaluate the significance of these impacts.” (Ibid.) The appellants in that case
argued that the proper measure of significance was found in a publication by another
agency, namely the State Parks Natural Resources Handbook. (Ibid.) This handbook
contained various standards for determining the probability that a given tree would be
damaged by construction on or around its root system. (Ibid.) Caltrans “implicitly
acknowledge[d] the value of the handbook” by referring to its standards in its appellate
brief. (Ibid.) Nonetheless, the “EIR itself . . . [did] not reference the handbook or apply
the standards it prescribes to evaluate impacts to the old growth redwoods that may be
expected to result from the highway construction.” (Id. at p. 655.)
The error by Caltrans in Lotus, however, was not its failure to apply the
significance standards in the State Parks’ Handbook in the EIR. Rather, the agency erred
by failing to adopt any standard for determining whether the planned project would have
significant effects on old growth redwood trees: “[T]he EIR fails to identify any standard
of significance, much less to apply one to an analysis of predictable impacts from the
16
project.” (Lotus, supra, 223 Cal.App.4th at p. 655.) While the court discussed the State
Park Natural Resources Handbook standards at length because the parties were in
apparent agreement that they were relevant, the court did not hold that Caltrans had been
required to apply those standards. Rather, the court stated: “We do not suggest that the
handbook is the only or necessarily the best measure for determining significance. The
standard of significance applicable in any instance is a matter of discretion exercised by
the public agency ‘depending on the nature of the area affected.’ ” (Id. at p. 655, fn. 7.)
In contrast to Caltrans in Lotus, here the City exercised its discretion to adopt a
significance standard based on Appendix G of the Guidelines. Accordingly, Lotus does
not advance petitioners’ position.
Petitioners argue that the City’s contention that the BAAQMD threshold of
significance does not apply “ignores the basic purpose of CEQA thresholds – which is to
promote consistency.” Petitioners cite Protect the Historic Amador Waterways v.
Amador Water Agency (2004) 116 Cal. App. 4th 1099, for the proposition that a “ ‘ “lead
agency’s use of existing environmental standards in determining the significance of a
project’s environmental impacts is an effective means of promoting consistency in
significance determinations and integrating CEQA environmental review activities with
other environmental program planning and regulation.” ’ ” (Id. at p. 1107, quoting
Communities for a Better Environment v. California Resources Agency (2002) 103
Cal. App. 4th 98, 111.) While such consistency may be beneficial – and is likely why the
CEQA Guidelines “encourage[]” agencies to develop and publish generally applicable
thresholds of significance (Guidelines, § 15064.7, subd. (a)) – a lead agency is not
required to adopt the significance standards adopted by another agency. In fact, a leading
CEQA treatise, citing the BAAQMD thresholds of significance, states: “[A] number of
air quality management districts have adopted guidelines for assessing air quality impacts
that included suggested quantitative standards for measuring the significance of
emissions. [Citations.] Lead agencies are not required to use the significance standards
17
suggested in regulatory agency guidance documents.” (Kostka & Zischke, supra,
§ 13.14, at p. 13-15.)
In support of their argument that the City’s position undermines CEQA’s goal of
promoting consistency, petitioners cite a 2010 EIR developed by the City of Piedmont
that found that the potential hazardous effects from synthetic turf would be considered a
significant impact. Petitioners contend that “[i]f SBR is toxic in Piedmont, then it is also
toxic in San Francisco.” While petitioners quote the ultimate conclusion by the EIR on
this point, they leave out the introductory phrase to this conclusion: “Therefore, as a
‘conservative’ finding, the potential hazardous effects from the use of the proposed
synthetic turf field at Blair Park and Coaches Field [in Piedmont] would be considered a
significant impact.” (Emphasis added.)5 The Piedmont EIR had found that “the current
body of data . . . concludes synthetic field to have little effect on health or pose risks to
humans,” but the City of Piedmont arrived at its “conservative” conclusion given the
“lack of final consensus among part of the scientific community.” That the City of
Piedmont reached a different conclusion from the City in this matter does not compel a
finding that the City’s conclusion constituted an abuse of discretion.6 (Habitat Trust for
Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal. App. 4th 1306, 1330 [“While
City could have reached a different conclusion than it did based upon the evidence that is
not our concern.”].)
5
The relevant portion of the Piedmont EIR is contained in the administrative
record.
6
The City of Piedmont EIR employed the same significance standard regarding
use of hazardous materials as the City did in the matter before us: “The proposed project
would result in a significant impact related to public health and safety if it would have
any of the following effects: [¶] . . . Create a significant hazard to the public or the
environment through the routine transport, use, or disposal of hazardous materials; [¶] . . .
Create a significant hazard to the public or the environment through reasonably
foreseeable upset and accident conditions involving the release of hazardous materials
into the environment[.]” We note that nowhere in its discussion of the health hazards
posed by synthetic turf does the City of Piedmont EIR cite or discuss the BAAQMD’s
thresholds of significance.
18
Petitioners next argue, apparently in the alternative, that the EIR actually relies
upon BAAQMD’s significance threshold. The City acknowledges that the EIR
references the BAAQMD’s standards, but states that this discussion is “related to the
generation of greenhouse gases.” The City is correct. The BAAQMD’s Air Quality
Guidelines provide a number of different thresholds of significance for different forms of
air pollution. In addition to the “risk and hazard” threshold upon which petitioners rely
and that is discussed above, BAAQMD provides a threshold of significance for
greenhouse gas emissions. The only reference to a BAAQMD threshold of significance
in the EIR is contained in the project’s initial study, attached as Appendix A to the EIR.7
The referenced significance of threshold addresses greenhouse gas emissions – not
exposure to hazardous materials. This threshold provides that a project’s greenhouse gas
emissions are not significant if the project is in “Compliance with Qualified [Greenhouse
Gas] Reduction Strategy.” The initial study found that the project would have less than
significant impacts regarding greenhouse gas emissions.8 Petitioners have cited no
authority that the City, having chosen in its discretion to adopt BAAQMD’s greenhouse
gas emission threshold standard, was therefore required to adopt all of the BAAQMD’s
recommended thresholds of significance.
Petitioners next contend that the EIR itself adopts an AHI of 1.0 as the threshold
of significance for determining whether a non-cancer health risk is significant. Thus,
because the EIR cites the 2007 OEHHA study finding an AHI of 2.2, petitioners contend
the City erred in failing to identify the health risks as significant. The EIR, however,
7
Under CEQA, an initial study is a “preliminary analysis prepared by the lead
agency to determine whether an EIR or a negative declaration must be prepared or to
identify the significant environmental effects to be analyzed in an EIR.” (Guidelines,
§ 15365.)
8
Among the reasons for this conclusion was the fact that “San Francisco’s
Strategies to Address Greenhouse Gas Emissions meet BAAQMD’s requirements for a
Qualified GHG Reduction Strategy, [and thus] projects that are consistent with San
Francisco’s regulations would not contribute significantly to global climate change. The
proposed project would be required to comply with these requirements.”
19
simply states that “[a] hazard index of less than or equal to 1 is indicative of acceptable
levels of exposure for chemicals having an additive effect.” Further, in summarizing the
results of the 2007 OEHHA study involving ingestion of tire shreds, the EIR states:
“When tested using a gastric simulation, which is considered more representative of
actual conditions, the hazard index was 2.2, sufficiently close to a hazard index of 1, and
deemed not to represent a serious health hazard by the 2007 OEHHA study.” The EIR’s
statement that an AHI of less than or equal to 1.0 is “indicative” of acceptable levels of
exposure does not, however, establish a significance standard. Rather, as discussed
above, the significance standard the City adopted in the EIR asks if the use of SBR infill
would result in “adverse health effects” as a result of inhalation of vapors from the turf,
ingestion of the turf, or dermal contact with the turf materials. The statements cited by
petitioners suggest that the City used a concept of AHI to inform its determination of
whether SBR infill would have adverse health effects. However, the fact that a single
study found an AHI greater than 1.0 (but nonetheless found no serious health hazard) 9
did not compel the City to conclude that SBR infill posed a significant health risk under
the significance standard the City had adopted.
9
The EIR discussion of the 2007 OEHHA study makes clear that the study found
the 2.2 AHI was “close to 1,” thus suggesting that the “complex mixture of chemicals [in
tire shreds] does not represent a serious health hazard.” As discussed by the City at oral
argument, the 2007 OEHHA study contained a number of conservative assumptions that
underlie the study’s conclusions that the synthetic turf did not pose serious health risks,
notwithstanding the 2.2 AHI. First, the study noted that the AHI approach “is most
meaningful when applied to chemicals that cause similar effects on the same target organ.
Such is not the case here.” Second, “[c]hemicals released [during the gastric simulation]
were assumed to be 100 percent bioavailable.” Third, the study “assumed that a 15 kg
child might acutely ingest 10 grams of shredded rubber at one time, similar to the upper
limit of soil ingestion recommended for estimating acute exposures in children. This
kind of soil ingestion is not a typical behavior pattern observed in most children, but
rather a poorly characterized behavior seen in a subset of young children.” Such
assumptions may explain the 2007 OEHHA study’s conclusion that there was no serious
health risk, notwithstanding the AHI in excess of 1.0.
20
In sum, the City did not fail to adopt a significance standard for the risks posed by
SBR infill or ignore any legally binding threshold of significance. Accordingly,
petitioners have not shown that the City failed to proceed in a manner required by law.
(Laurel Heights, supra, 47 Cal.3d at p. 392.)10
3. Carcinogenic Toxicity
Petitioners next challenge the EIR’s conclusion that the cancer risks posed by SBR
infill are less than significant. It is undisputed that the draft EIR discussed numerous
studies that examined the cancer risks posed by SBR infill. These studies generally
found that synthetic turf using recycled rubber presented either a de minimis or an
acceptably low risk of cancer. Petitioners argue, however, that they presented studies and
expert reports, postdating those discussed in the EIR, that establish that the carbon black,
dioxins, and polycyclic aromatic hydrocarbons (PAHs) contained in the SBR infill
present a significant risk of cancer. Petitioners contend that the EIR fails to present
substantial evidence to rebut these later studies. The City responds that the EIR
addresses the presence of these substances in SBR infill and discusses studies evaluating
the risks they pose. It contends that substantial evidence supports the EIR’s ultimate
conclusion that SBR infill does not present a significant cancer risk.
In arguing that the EIR failed to produce substantial evidence to rebut the studies
petitioners presented to the City, petitioners rely solely on the case of Berkeley Keep Jets
Over Bay v. Board of Port Commissioners (2001) 91 Cal. App. 4th 1344 (Berkeley Jets).
We begin our analysis by describing our holding in that case. There, we held that an EIR
created by the Board of Port Commissioners for the Port of Oakland was inadequate.
This conclusion was based on the fact that the EIR failed to utilize the best available data
10
On December 30, 2014, we granted the application of the Golden Gate Audubon
Society, Public Employees for Environmental Responsibility, San Francisco Tomorrow,
California Safe Schools, and Jean Barish’s application for leave to file an amicus curiae
brief. In this brief, amici argue that that “the EIR should have found that this SBR infill
poses a significant environmental impact” because the “AHI is twice the CEQA
threshold. For the reasons discussed above, we find this argument unpersuasive.
21
to assess the increased emissions of toxic air contaminants from airplanes that would
result from a proposed airport expansion. (Id. at p. 1364.) The EIR used a 1991
speciation profile11 published by the California Air Resources Board (ARB) to estimate
jet aircraft emissions. During the comment period, an air quality expert criticized the use
of the 1991 speciation profile as outdated because the ARB had drafted a new speciation
profile which included a wider range of air contaminants. (Id. at p. 1365.) The final EIR
responded to this comment by citing a conversation between a port representative and an
air pollution specialist from ARB. The final EIR response claimed that this specialist had
“ ‘expressed concern regarding the accuracy of some of the particular compounds’ ”
specified in the new speciation profile and that the ARB had “not determined what
speciation profile will be included for jet exhaust when it releases its third edition of the
reference manual.” (Id. at p. 1365.) This response turned out to be false. In a
subsequent declaration filed in connection with CEQA litigation, the air pollution
specialist stated he had told the port representative that the new speciation profile “ ‘is the
best profile available. . . . I did not say that I doubted the overall accuracy of the [new
speciation profile]. I did say that the [old profile] should not be used to characterize jet
exhaust speciation.’ ” (Id. at p.1366, italics omitted.)
We held that the EIR’s response to the comments regarding the Port’s use of the
old speciation profile failed to comply with CEQA’s requirement that an EIR make “a
good faith effort at full disclosure.” (Guidelines, § 15151.) “ ‘ “Where comments from
responsible experts or sister agencies disclose new or conflicting data or opinions that
cause concern that the agency may not have fully evaluated the project and its
alternatives, these comments may not simply be ignored. There must be good faith,
reasoned analysis in response.” ’ ” (Berkeley Jets, supra, 91 Cal.App.4th at p. 1367,
quoting Cleary v. County of Stanislaus (1981) 118 Cal. App. 3d 348, 357.) We found the
EIR deficient in this regard because the “Port created the misleading impression that [an
11
A “speciation profile” is a document that provides estimates of the chemical
composition of emissions. (Berkeley Jets, supra, 91 Cal.App.4th at p. 1364.)
22
ARB] official had discouraged the Port from utilizing” the new speciation profile and
failed to disclose the official’s opinion that the older profile “should not be used to
characterize jet exhaust speciation.” (Berkeley Jets, supra, 91 Cal.App.4th at p. 1366.)
This omission was serious because it “prevent[ed] a decisionmaker and the public from
gaining a true understanding of one of the most important environmental consequences of
increasing the number of flights.” (Id. at pp. 1366-1367.) In addition, we held that “[b]y
using scientifically outdated information” derived from the old profile, the “EIR was not
a reasoned and good faith effort to inform decisionmakers and the public about the
increase in . . . emissions that will occur.” (Ibid.)
Accordingly, in reviewing petitioners’ argument here that the City failed to rebut
petitioners’ expert evidence regarding the cancer risk posed by carbon black, PAHs, and
dioxins, we look to determine whether the EIR discussion of these chemicals reflects a
good faith effort to inform decisionmakers and the public on this issue. “CEQA requires
an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor
does it require an analysis to be exhaustive.” (Citizens for a Sustainable Treasure Island
v. City and County of San Francisco (2014) 227 Cal. App. 4th 1036, 1046.) “[A]n EIR
must be upheld if it ‘reasonably sets forth sufficient information to foster informed public
participation and to enable the decision makers to consider the environmental factors
necessary to make a reasoned decision.’ ” (Ibid., quoting Berkeley Jets, supra, 91
Cal.App.4th at p. 1356.) We examine the EIR’s response the studies Petitioners have
cited regarding carbon black, dioxins, and PAHs in light of this standard.
Petitioners first assert that the public provided the City with extensive evidence of
the cancer risk posed by carbon black. They cite the fact that the OEHHA lists carbon
black as a carcinogen and that it comprises approximately 20 percent of the content of
SBR. However, the public comments cited by petitioners merely describe the
carcinogenic properties of carbon black. The EIR disclosed the presence of carbon black
in SBR infill and acknowledged that laboratory research “indicates that there can be
health risks associated with the inhalation of these particles.” In addition, the final EIR
23
included multiple examples of public comments addressing the fact that SBR infill
includes carbon black and that carbon black is a known carcinogen. The EIR addressed
these comments and the studies they referenced by noting that they “describe laboratory
research or evaluate risks in the workplace environment which would be enclosed, and
would result in more intense exposure to nanoparticles. Because of this, and because
wind would disperse the nanoparticles, if generated, it is expected that exposures to
nanoparticles as a result of play on synthetic turf fields that use SBR infill would be
minimal, if any at all[.]”
Petitioners contend that this response is inadequate because the EIR’s “wind
dispersion hypothesis” is a “conclusory analysis without any citation to scientific
evidence.” The EIR, however, discussed studies which found that play on synthetic turf
fields resulted in negligible generation of nanoparticles. Further, three separate studies
discussed in the EIR noted how air samples taken from above indoor synthetic turf fields
contained higher concentrations of potentially hazardous chemicals when compared to
outdoor fields. These studies provide support for the City’s conclusion that carbon black
did not present a significant cancer risk when present in outdoor synthetic fields using
SBR infill.
Regarding the cancer risk posed by dioxins, the City in its brief acknowledges that
the EIR does not address this risk, but maintains “no study, including the one petitioners
cite, suggests any dioxin risk associated with SBR turf.” The City is correct that
petitioners have failed to cite a study discussing the cancer risk posed by dioxins in SBR
infill. Petitioners rely on an abstract from a 2011 study entitled “Artificial-turf playing
fields: contents of metals, PAHs, PCBs, PCDDs and PCDFs, inhalation exposure to
PAHs and related preliminary risk assessment” (2011 Abstract). The 2011 Abstract
states that artificial-turf granulates contain polychlorinated diobenzo dioxins (PCDD).
Petitioners imply that this study concluded that the presence of PCDDs created a cancer
risk by quoting the abstract as follows: “The sums of NDL-PCBs and WRO-TE
PCDDs+PCDFs were, respectively, 0.18 and 0.67 x 10(-5) mglkg . . . Based on the 0.4
24
ng/m(3) concentration, an excess lifetime cancer risk of 1 x 10(-6) was calculated for an
intense 30-year activity.” (Emphases added in appellants brief.)
Petitioner’s reliance on this statement from the 2011 Abstract does not support a
finding that dioxins pose a significant cancer risk for two reasons. First, the United
States Environmental Protection Agency deems an excess lifetime cancer risk of less than
1 x 106 to be de minimis – a fact recognized by petitioners in their briefing. Accordingly,
the 2011 Abstract reports a cancer risk that is at the threshold of being de minimis.
Second, in quoting the 2011 Abstract, petitioners have omitted a key portion of the
quotation, thereby disguising the fact that the abstract was not discussing the cancer risk
posed by dioxins at all. This abstract states that dioxins are present in rubber granulates
used in synthetic turf. It says nothing about the cancer risk associated with dioxins. The
only reference to a cancer risk in the abstract pertains to benzo(a)pyrene (BaP), which is a
polycyclic aromatic hydrocarbon (PAH), not a dioxin.12 The final EIR addresses this
study on which the abstract is based and correctly notes that its cancer findings related to
BaP, not dioxins: “PAH concentrations in air samples from one synthetic turf field
exceeded background concentrations. Using conservative assumptions, the excess cancer
risk level associated with inhalation of benzo(a)pyrine (the PAH modeled for the risk
analysis) was approximately one in a million.” Finally, petitioners’ own purported
expert, Matthew Hagemann, described the finding of the 2011 study as “show[ing a] risk
to be in excess of 106 from particle-bound polycyclic aromatic hydrocarbons.”
(Emphasis added.) As petitioners’ counsel acknowledged at oral argument, PAHs are not
dioxins. Accordingly, petitioners have failed to demonstrate that the City was provided
with any comments relating to the cancer risks posed by dioxins.
12
The full quote from the 2011 Abstract reads: “The sums of NDL-PCBs and
WRO-TE PCDDs+PCDFs were, respectively, 0.18 and 0.67 x 10(-5) mg/kg. The
increased BaP concentrations in air, due to the use of the field, varied approximately from
<0.01 to 0.4 ng/m(3), the latter referring to worst-case conditions as to the release of
particle-bound PARs. Based on the 0.4 ng/m(3) concentration, an excess lifetime cancer
risk of 1 x 10(-6) was calculated for an intense 30-year activity.”
25
Petitioners next contend that the EIR failed to adequately address comments
related to the cancer risk posed by PAHs. Again, the City maintains that the EIR
addressed these chemicals and evaluated the risks they posed. In their brief, petitioners
cite a 2012 study from the scientific journal Chemosphere which found high levels of
PAHs in recycled rubber tire playgrounds and rubber pavers (i.e., rubber tiles). This
study recognized that PAHs are considered carcinogens and concluded: “The present
study highlights the presence of a high number of harmful compounds, frequently at high
or extremely high levels, in these recycled rubber materials. Therefore, they should be
carefully controlled, and their final use should be restricted or even prohibited in some
cases.” This study did not examine use of rubber in synthetic turf or provide an estimate
of the excess lifetime cancer risk posed by synthetic turf. Rather, it discussed the fact
that high levels of PAHs were found in recycled rubber materials. Petitioners argue that
the studies upon which the City relies all pre-date this study and therefore cannot
“possibly rebut” it.
However, the EIR and the studies upon which it relied disclosed the presence of
PAHs in SBR infill as well as their carcinogenic properties. First, in examining the risks
posed by ingestion of SBR through surface-to-hand-to-mouth contact, the 2007 OEHHA
study identified a single PAH was present above the screening level, and disclosed that
the theoretical increased cancer risk posed by this PAH was 2.9 in a million. The study
concluded that “[t]his risk is slightly higher than the benchmark of 1 x 106, generally
considered an acceptable cancer risk due to its small magnitude compared to the overall
cancer rate.” This specific PAH finding was discussed in the EIR.
Second, the 2009 OEHHA study calculated the increased lifetime cancer risk
posed by inhalation of air above indoor synthetic fields. The study found that of eight
carcinogenic chemicals observed in air samples taken from above the indoor fields, five
(including the PAHs benzene and naphthalene) were above the “negligible risk level of
106.” Specifically, these two PAHs were found to present an excess lifetime cancer risk
of 2.8 x 106 and 3.8 x 106, respectively. The ultimate conclusion of the study, however,
26
was not that synthetic turf posed a significant cancer risk, but rather: “Data from indoor
fields were used to estimate outdoor exposures and calculate these cancer risks. In
addition, it was assumed that all organized soccer play over a lifetime occurred on
artificial turf fields. Together, these assumptions tend to overestimate the cancer risks for
soccer players using artificial turf fields.” This PAH finding was also disclosed in the
EIR.
Third, the Bainbridge, Washington study also discussed the presence of PAH in
recycled rubber turf. The study devised a “play scenario” that formulated the cancer risk
a teenager would face if he or she were to play on synthetic turf for three hours a day, 261
days per year, for seven years. The study concluded that this teenager would be exposed
to a lifetime excess cancer risk of 1 x 106 as a result of exposure from PAHs from all
routes of exposure. While this was “at the risk threshold,” the study noted that its
analysis was based on concentrations of chemicals found in indoor facilities rather than
open air environments. This was significant because “[u]sing the indoor air value
overestimates the likely risks associated with inhalation of VOCs in outdoor
environments.”
As these studies demonstrate, the presence of PAHs and the fact that they present
a cancer risk are disclosed in the EIR. Petitioners’ 2012 study does not undermine these
studies or shed additional light on the carcinogenic risk posed by PAHs. Rather, it
simply reinforces the conclusion that PAHs are carcinogenic and are found in recycled
rubber materials. These facts are already disclosed in the EIR.
Finally, petitioners rely on two letters in the administrative record that were
written in response to the draft EIR and addressed the cancer risks of SBR infill in
general. One letter was written by Matthew Hagemann, a professional geologist and
certified hydrogeologist who served as a senior science policy advisor for the
Environmental Protection Agency, and one by Philip Landrigan, a medical doctor.
Petitioners argue that the studies cited in the EIR fail to rebut these materials. However,
neither letter “ ‘ “disclose[s] new or conflicting data or opinions that cause concern that
27
the agency may not have fully evaluated the project.” ’ ” (Berkeley Jets, supra, 91
Cal.App.4th at 1367.)
Hagemann’s letter addressed the 2009 OEHHA study discussed above. According
to his letter, summing the cancer risks presented from the eight carcinogenic chemicals
identified in the air above indoor synthetic fields resulted in a total cancer risk of 19 in 1
million – which is greater than the 1 in 1 million standard. However, as we discussed
above, the 2009 OEHHA study was addressed in the EIR, and both the EIR and the study
itself acknowledged that the study overstated the cancer risks due to its reliance on air
sampling data taken from above indoor synthetic fields. Additionally, the Planning
Department, in recommending that the Board uphold the certification of the final EIR,
addressed the substance of Hagemann’s analysis,13 by pointing out that petitioners argued
“incorrectly that the cancer risks presented for 5 chemicals identified in the 2009
OEHHA study, and disclosed in the EIR, are ‘cumulative’ (i.e., additive). However, this
calculation method is not correct, not representative of the results of the 2009 report, and
does not accurately represent cancer risks.”
Similarly, Landrigan’s letter, cited by petitioners, stated that crumb rubber
contains dangerous chemicals, including known carcinogens. He concluded that “this
remains an area of potential risk that has not been studied to our satisfaction.” As we
discussed above, the presence of known carcinogens in SBR infill was disclosed in the
EIR. The EIR ultimately concluded, after reviewing a number of studies, that the cancer
risk posed by these chemicals was not significant. The fact that two individuals disagree
with the EIR’s conclusions regarding the cited studies does not render the EIR’s
evaluation of SBR infill’s cancer risks inadequate. (See Oakland Heritage, supra, 195
13
Although the recommendation did not cite Hagemann by name, it appears that it
was addressing the substance of his comment, namely the additive nature of the cancer
risks posed by the components of SBR infill.
28
Cal.App.4th at p. 769 [“ ‘[A] public agency may choose between differing expert
opinions.’ ”].)14
As we have noted, the studies and letters upon which the petitioners rely either
failed in fact to actually address increased cancer risks (in the case of dioxins) or were
cumulative of information already contained in the EIR (carbon black and PAHs).
Petitioners have not shown that the City was presented with “ ‘ “ ‘new or conflicting data
or opinions that cause concern that the [City] may not have fully evaluated’ ” ’ ” the
cancer risks posed by SBR infill or its constituent chemicals (Berkeley Jets, supra, 91
Cal.App.4th at p. 1367.) Rather, the EIR included sufficient information to permit
informed decisionmaking and public participation relating to the cancer risks of SBR
infill in general and carbon black and PAHs in particular. (Id. at p. 1355.) This is what
CEQA requires.15
4. Amici’s Precautionary Principle Argument
In their amicus brief, amici contend that the EIR failed to provide a “forthright
discussion” of the City’s “Precautionary Principle” and therefore precluded informed
decisionmaking and informed public participation.
Section 101 of San Francisco’s Environmental Code provides, in relevant part:
“Based on the best available science, the Precautionary Principle requires the selection of
the alternative that presents the least potential threat to human health and the City’s
natural systems. Public participation and an open and transparent decision making
process are critical to finding and selecting alternatives. Where threats of serious or
irreversible damage to people or nature exist, lack of full scientific certainty about cause
and effect shall not be viewed as sufficient reason for the City to postpone cost effective
14
For the reasons stated above, we reject amici’s argument that the EIR failed to
address inadequacies in the studies contained in the EIR or respond to the materials
provided by the petitioners.
15
On January 27, 2015, petitioners’ filed a Request for Judicial Notice asking us
to take notice of Senate Bill 47, introduced on December 17, 2014. The request is
denied.
29
measures to prevent the degradation of the environment or protect the health of its
citizens. Any gaps in scientific data uncovered by the examination of alternatives will
provide a guidepost for future research, but will not prevent the City from taking
protective action. As new scientific data become available, the City will review its
decisions and make adjustments when warranted. Where there are reasonable grounds
for concern, the precautionary approach to decision-making is meant to help reduce harm
by triggering a process to select the least potential threat.”
The final EIR acknowledged the “Precautionary Principle,” and stated that the
“project is consistent with this ordinance because there is no evidence that adverse human
health effects would occur as a result of play on the athletic fields[.]”
Amici argue that the final EIR’s treatment of the Precautionary Principle conflated
CEQA’s “standard of no significant impact” with the standard of “no risk” to human
health. They thus contend that the EIR failed to present any “unbiased analysis of the
application of the Precautionary Principle to the project, and is inconsistent with the
City’s codification of risk aversion when spending the City’s money.” As the City points
out in its brief, however, the City’s Precautionary Principle does not impact the
substantive requirements governing an EIR or a lead agency’s decisionmaking under
CEQA. In fact, San Francisco’s environmental code expressly provides that the
Precautionary Principle “does not impose specific duties upon any City employee or
official to take specific actions.” (S.F. Environmental Code, § 104.) Further, it states
that the Precautionary Principle may not “provide any basis for any other judicial relief
including, but not limited to a writ of mandamus or an injunction.” (Ibid.) Accordingly,
even if the City’s approach to the Beach Chalet project were in violation of its own
Precautionary Principle, this would not require reversal.
C. Consideration of Alternatives to SBR Infill
Petitioners Second CEQA count alleges that the City abused its discretion by
failing to consider alternatives to synthetic turf using SBR infill. “CEQA contains a
‘substantial mandate’ requiring public agencies to refrain from approving projects with
30
significant environmental effects if ‘there are feasible alternatives or mitigation
measures’ that can substantially lessen or avoid those effects.” (County of San Diego v.
Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal. App. 4th 86, 98, italics
omitted, quoting Mountain Lion Foundation v. Fish and Game Commission (1997) 16
Cal. 4th 105, 134.) Because the EIR concluded that the SBR infill would not produce
significant effects, and because we have rejected petitioners’ challenges to these
conclusions, the EIR was not required to examine feasible alternatives or mitigation
measures to the use of SBR infill. (See, e.g., Guidelines, § 15126.6, subd. (b) [“Because
an EIR must identify ways to mitigate or avoid the significant effects that a project may
have on the environment [citation], the discussion of alternatives shall focus on
alternatives to the project . . . which are capable of avoiding or substantially lessening any
significant effects of the project . . . .”].)16
D. The EIR’s Consideration of Alternatives to the Beach Chalet Project
Petitioner’s Sixth CEQA count alleges that the EIR contained an inadequate
analysis of alternatives to the project that would have mitigated or eliminated the
project’s impact on the Beach Chalet Athletic Field’s historic character. The EIR
concluded that the project would have a significant and unavoidable impact on Beach
Chalet Athletic Field’s historic character due to the addition of “spectator seating,
synthetic turf, and field lights.” It is well established that “a project that may cause a
16
In their brief, amici argue that the EIR failed to adequately address the impact of
light pollution that will result from the project. This contention, however, was not raised
by petitioners in their operative third amended petition, in arguments to the trial court, or
before this Court. “Generally, ‘an amicus curiae accepts a case as he or she finds it . . .
[¶] . . . [¶] . . . and [] additional questions presented . . . by an amicus curiae will not be
considered.’ ” (Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City
of Hayward (2011) 200 Cal. App. 4th 81, 95, fn.13, quoting California Assn. for Safety
Education v. Brown (1994) 30 Cal. App. 4th 1264, 1274-1274.) “An amicus curiae
ordinarily must limit its argument to the issues raised by the parties on appeal, and a
reviewing court need not address additional arguments raised by an amicus curiae.”
(Bullock v. Philip Morris USA, Inc. (2011) 198 Cal. App. 4th 543, 572.) For these reasons,
we decline to address the argument.
31
substantial adverse change in the significance of an historical resource is subject to
CEQA.” (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147
Cal. App. 4th 357, 374 (Eureka Citizens).) CEQA provides 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[.]” (§ 21002.) “ ‘Our Supreme Court has described the alternatives and
mitigation sections as “the core” of an EIR.’ ” (Uphold Our Heritage v. Town of
Woodside (2007) 147 Cal. App. 4th 587, 597, quoting Los Angeles Unified School Dist. v.
City of Los Angeles (1997) 58 Cal. App. 4th 1019, 1029.)
Petitioners argue that the City abused its discretion regarding the EIR’s
identification and consideration of alternatives to the Beach Chalet project on two
grounds. First, they contend that the EIR failed to adequately consider a so-called
“hybrid” alternative to the project. Second, they argue that the City failed to select the
allegedly environmentally superior “Off-site Alternative” to the project. The City
responds that the EIR considered a reasonable range of project alternatives as CEQA
requires and that substantial evidence supports its rejection of the off-site alternative. We
consider these arguments in turn.
1. Selection of Alternatives
“The lead agency is responsible for selecting a range of project alternatives for
examination and must publicly disclose its reasoning for selecting those alternatives.”
(Guidelines, § 15126.6, subd. (a).) “There is no ironclad rule governing the nature or
scope of the alternatives to be discussed other than the rule of reason.” (Ibid.) The “rule
of reason” requires an EIR “to set forth only those alternatives necessary to permit a
reasoned choice.” (Id., § 15126.6, subd. (f); Goleta Valley, supra, 52 Cal.3d at p. 566
[“CEQA establishes no categorical legal imperative as to the scope of alternatives to be
analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be
reviewed in light of the statutory purpose.”].)
32
For purposes of the EIR, a “feasible” alternative is one that could accomplish
“most of the basic objectives of the project but would avoid or substantially lessen any of
the significant effects of the project.” (Guidelines, § 15126.6, subd. (a).) “ ‘[I]f a
reasonable basis for the choices the agency makes is found in the EIR or elsewhere in the
record, a reviewing court will defer to the agency’s selection of alternatives.’ ” (Center
for Biological Diversity v. Department of Fish and Wildlife (2015) 234 Cal. App. 4th 214,
256, quoting Kostka & Zischke, supra, § 15.17, pp. 15-24.) We will uphold an agency’s
choice of alternatives unless they are “manifestly unreasonable and . . . do not contribute
to a reasonable range of alternatives.” (Federation of Hillside & Canyon Associations v.
City of Los Angeles (2000) 83 Cal. App. 4th 1252, 1265 (Federation of Hillside).)
The EIR identified eight project objectives: (1) increase the amount of athletic
play time on the Beach Chalet Athletic Fields by renovating the existing athletic fields
and adjacent warm-up areas; (2) improve public access to the Beach Chalet Athletic
Fields by adding new pathways, increasing the size of the existing parking lot, providing
a formal drop-off area, and providing bicycle racks; (3) increase ground-sports athletic
opportunities on the north side of San Francisco commensurate with improvements
elsewhere in San Francisco; (4) provide a safe, optimal recreation facility and amenities
for athletes, spectators, and park users by renovating the existing Beach Chalet Athletic
Fields and the existing restroom building, adding bleachers, and installing a new plaza
area with visitor amenities; (5) reduce ongoing maintenance and resource needs; (6)
comply with current Americans with Disabilities Act (ADA) requirements; (7) improve
safety and increase nighttime use of the west end of Golden Gate Park by installing new
lighting and bringing more recreation facility users to the area; and (8) remain consistent
with the Golden Gate Park Master Plan.
In light of these objectives, the EIR analyzed four alternatives in detail. The first
was the “no project” alternative that the CEQA Guidelines requires a lead agency to
examine. (Guidelines, § 15126.6, subd. (e)(1) [“The specific alternative of ‘no project’
shall also be evaluated along with its impact.].) A “no project” alternative means not
33
going forward with the project at all. The second alternative addressed in the EIR, the
“Off-site Alternative,” involved the construction of renovations to athletic fields located
at West Sunset Playground (eight blocks away from the Beach Chalet facilities) instead
of the Beach Chalet Athletic Fields. The third alternative, the “Grass Turf with Reduced
Lights Alternative,” called for SFRPD to construct most of the improvements described
in the project, but to minimize the impact on historical resources by using natural grass
fields, fewer field lights, smaller-scale removable seating, and circulation paths
composed of decomposed granite. The final alternative, the “Synthetic Turf without
Lights Alternative,” called for construction of all of the renovations to the Beach Chalet
Athletic Fields, with the exception of field lighting.
After the publication of the draft EIR, the City received comments advocating a
compromise or so-called “hybrid” alternative. The hybrid alternative called for
rebuilding the four Beach Chalet athletic fields with natural grass (with improved
drainage and gopher-proofing) and renovation of West Sunset Playground with synthetic
turf and night sports lighting. The final EIR contains approximately 20 pages of
comments explaining the potential benefits of the hybrid alternative. In responding to
these comments about the hybrid alternative, the final EIR stated that the “suggested
alternative would be within the range of alternatives analyzed in the EIR” because the
“Off-site Alternative would include continued use of the existing grass field at the Beach
Chalet Athletic Fields. Under this alternative, turf repair and replacement, gopher
control, and other maintenance activities would continue to occur and could include use
of improved turf maintenance. . . . Thus, the Off-Site Alternative incorporates the
potential for consideration of an Off-site Alternative, with renovation of the Beach Chalet
Athletic Fields with grass turf and no lights.” In its analysis to the Board of Supervisors,
the Planning Department stated that the “hybrid alternative is within the range of
alternatives analyzed in the EIR and does not need to be analyzed as a separate
alternative. Specifically, the hybrid alternative would be similar to a combination of . . .
34
Alternative 2, the Off-Site Alternative and Alternative 3, the Grass Turf with Reduced
Lights Alternative.”
Petitioners argue that the City abused its discretion in refusing to analyze the
hybrid alternative in the EIR. They contend that none of the four alternatives analyzed in
the EIR meet all of the project’s objectives, while the hybrid alternative does. The City
responds that by considering the Off-site Alternative as well as two on-site alternatives
with reduced development, the EIR examined a “reasonable range” of alternatives. It
contends that the hybrid alternative was a permutation of alternatives already included in
the EIR and that the final EIR contained extensive discussion and analysis of the hybrid
alternative.
In support of their legal challenge to the range of alternatives examined in the EIR,
petitioners rely on Watsonville Pilots Association v. City of Watsonville (2010) 183
Cal. App. 4th 1059 (Watsonville Pilots). There, the EIR for the City of Watsonville 2030
General Plan identified significant impacts due to anticipated growth: increased
population, loss of farmland, and increased water usage. (Id. at p. 1067.) Watsonville’s
EIR identified three alternatives (including the required no-project alternative) to the
2030 General Plan, none of which included a reduction in growth. (Id. at p. 1088.)
Watsonville argued that consideration of the no-project alternative was sufficient
consideration of a reduced-growth alternative, even though it met almost none of the
project’s objectives. The court rejected this argument, noting that the “purpose of an EIR
is not to identify alleged alternatives that meet few if any of the project’s objectives so
that these alleged alternatives may be readily eliminated.” (Id. at p. 1089.) Instead, the
“key to selection of the range of alternatives is to identify alternatives that meet most of
the project’s objectives . . . but have a reduced level of environmental impacts.” (Ibid.)
Under this standard, the court found that Watsonville’s failure to consider a reduced-
growth alternative was an abuse of discretion because analysis of this alternative “would
have provided the decisionmakers with information about how most of the project’s
35
objectives could be satisfied without the level of environmental impacts that would flow
from the project.” (Id. at p. 1090.)
Watsonville Pilots is distinguishable because the EIR in this case provided the
City’s decisionmakers with sufficient information about feasible project alternatives. As
an initial matter, as described above, the final EIR contains extensive information
regarding the hybrid alternative. Further, the final EIR noted that the hybrid alternative
was essentially a combination of the Off-site Alternative and the grass turf with reduced
lights alternative – both of which were analyzed in the EIR in detail. The final EIR
identified the possibility of combining aspects of both of these alternatives: “[T]he Off-
Site Alternative incorporates the potential for consideration of an Off-Site Alternative,
with renovation of the Beach Chalet Athletic Fields with grass turf and no lights.”
In addition, the EIR discussed how both the off-site and grass turf with reduced
lights alternatives met many of the project’s objectives, while minimizing or eliminating
the significant impact to Beach Chalet’s historic resources. The EIR found that the Off-
Site Alternative would partially achieve the project objectives of providing safe, optimal
recreation facilities and amenities for athletes and spectators, reduce ongoing
maintenance and resource needs, and comply with ADA requirements. It also noted that
the Grass Turf with Reduced Lights Alternative would meet most of the project
objectives, in full or in part, such as increasing ground-sports opportunities on the north
side of San Francisco; improving public access to the Beach Chalet Athletic Fields; and
providing safe, optimal recreation facilities for athletes and spectators. Accordingly, this
is not a case where the City identified only alternatives that met “few if any of the
project’s objectives” so that they could be readily eliminated. (Watsonville Pilots, supra,
183 Cal.App.4th at p. 1089; see also Habitat and Watershed Caretakers v. City of Santa
Cruz (2013) 213 Cal. App. 4th 1277, 1305 [finding EIR inadequate where it “failed to
discuss any feasible alternative . . . that could avoid or lessen the significant
environmental impact of the project].)
36
We conclude that the City’s choice of alternatives was not manifestly
unreasonable. (Federation of Hillside, supra, 83 Cal.App.4th at p. 1265.) The City
provided a reasonable range of alternatives and the EIR contained sufficient information
to inform the decisionmakers and the public of various alternatives to the project. (Ibid.)
There was no abuse of discretion.
2. Rejection of Off-Site Alternative
In a separate argument, petitioners contend that the City was required to select the
Off-site Alternative at West Sunset Playground as the “environmentally superior
alternative.” Petitioners assert that this alternative would eliminate the impact to Beach
Chalet’s historic resources. They argue that the City’s conclusion that the Off-site
Alternative was infeasible within the meaning of CEQA is not supported by substantial
evidence. The City responds that substantial evidence supports its rejection of the Off-
site Alternative because this alternative did not meet most of the project objectives.
Before a public agency may approve a project for which an EIR identifies a
significant environmental impact, the agency must make a finding that “[s]pecific
economic, legal, social, technological, or other considerations . . . make infeasible the
mitigation measures or alternatives identified in the [EIR].” (§ 21081, subd. (a)(3).) This
finding must be supported by “substantial evidence in the record.” (Id., § 21081.5.) As
referenced above, “substantial evidence” means “enough relevant information and
reasonable inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached.” (Guidelines, § 15384,
subd. (a).) In reviewing for substantial evidence, we presume the agency’s findings are
correct and resolve all conflicts and reasonable doubts in favor of the findings. (Center
for Biological Diversity v. County of San Bernardino (2010) 185 Cal. App. 4th 866, 881-
882.)
In rejecting the off-site alternative as infeasible, the Planning Commission found it
“fail[ed] to meet most of the Project objectives” and that, were it adopted, the “Beach
Chalet Athletic Fields would continue to be used and would continue to degrade.” The
37
Commission specifically noted the off-site alternative would not (1) increase the amount
of athletic play time on the Beach Chalet field by renovating the fields, (2) increase the
safety and use of the west end of Golden Gate Park by installing lights, (3) improve
public access to the Beach Chalet fields, or (4) increase ground-sports athletic
opportunities on the north side of San Francisco. Thus, the Commission concluded that
the “Off-Site Alternative would only partially achieve some of the Project objectives
while all of the same mitigation measures would be required.”
An agency is free to reject an alternative as infeasible if it is inconsistent with
project objectives. For example, in Jones v. Regents of University of California (2010)
183 Cal. App. 4th 818 (Jones), the court found that “substantial evidence supports the
determination that the off-site alternative would not achieve the Lab’s objectives of
creating a more campus-like setting with the goal of enhancing collaboration,
productivity, and efficiency.” (Id. at pp. 828-829.) Here, as the City correctly argues
many project objectives for the Beach Chalet project were directed at developing and
improving the Beach Chalet facilities to increase their use and accessibility. Substantial
evidence supports the Planning Commission’s conclusions that the Off-site Alternative
would not meet these objectives for the simple reason that it involved the development of
a separate facility at a different location with little to no improvement of the Beach
Chalet facilities. For example, the EIR noted a number of factors that limited the use of
the Beach Chalet fields, such as the fact that they are closed during the night because of
the lack of lighting, during and after rain due to the lack of drainage, and for three months
out of the year to permit regrowth of the natural grass. Nothing in the Off-site
Alternative would have changed these conditions to allow for greater use of the Beach
Chalet fields. Substantial evidence therefore supports the Commission’s conclusion that
the off-site alternative would only partially achieve some of the project’s objectives.
In their reply brief, petitioners argue that the City was not free to reject the off-site
alternative simply because it was off-site, because otherwise “the CEQA requirement that
an off-site alternative must be analyzed would be rendered meaningless.” However, there
38
is no such broad requirement. In California Native Plant Society v. City of Santa Cruz
(2009) 177 Cal. App. 4th 957 (California Native Plant Society), the court recognized that
the CEQA regulations required an EIR to describe a range of “reasonable alternatives to
the project, or to the location of the project.” (Id. at p. 980.) The court stated that the use
of the disjunctive implied that “ ‘an agency may evaluate on-site alternatives, off-site
alternatives, or both.’ [Citation.] The Guidelines thus do not require analysis of off-site
alternatives in every case. Nor does any statutory provision in CEQA ‘expressly require
a discussion of alternative project locations.’ ” (Id. at p. 993.) “[W]hen a public agency
seeks to expand operations at an existing location, in many cases no purpose would be
served by studying options for expanding someplace else.” (Kostka & Zischke, § 15.27,
at p. 15-34; see also Jones, supra, 183 Cal.App.4th at p. 828 [“The objectives of the
current project are to expand and update the hill site even further and to consolidate Lab
staff . . . . A complete off-site alternative, however, would result in the division of
facilities and staff and would be contrary to the objective of creating a more cohesive Lab
atmosphere.”].)
Petitioners argue, however, that the final EIR itself found that the Off-site
Alternative was feasible and would meet most project objectives. They rely on the
following statement in the final EIR: “The EIR includes analysis of an off-site alternative
(West Sunset Playground) that would: (1) attain most of the project’s basic objectives; (2)
avoid or substantially lessen one or more of the significant environmental impacts of the
proposed project; and (3) be feasible.” Petitioners claim that this statement in the final
EIR directly contradicts the Planning Commission’s infeasibility finding and as a result,
the Planning Commission’s conclusion is without support in the record. Petitioners rely
on California Clean Energy Committee v. City of Woodland (2014) 225 Cal. App. 4th 173
(California Clean Energy). There, the court found that the City of Woodland had relied
on an unsupported rationale for finding an alternative to a regional shopping center
development project infeasible. The EIR had rejected a “Mixed-Use Alternative” as
economically infeasible. The City of Woodland, however, eventually approved the
39
project and rejected the mixed-use alternative on the ground that it was environmentally
inferior. (Id. at p. 205.) The court stated: “The City adopted a rationale unsupported by
its EIR analysis. The City’s unexplained switch from a rationale of economic
infeasibility to environmental inferiority as the basis for rejecting the mixed-use
alternative conflicts with CEQA’s requirement to ‘disclose “the ‘analytic route . . . the
agency traveled from evidence to action’ ”. . . .’ [Citations.]” (Ibid.)
Unlike in California Clean Energy, the EIR here did not advance a position only
to have the City turn around and adopt a different position that the EIR did not discuss.
Rather, the EIR examined the extent to which the off-site alternative would, and would
not, meet the project’s objectives. The Planning Commission determined that the off-site
alternative would not meet most of the project objectives – namely those associated with
the development and expansion of the Beach Chalet facilities. As discussed above, this
finding is supported by substantial evidence.
Further, even if it is assumed that the final EIR had made a finding that the off-site
alternative was feasible and would meet most of the project objectives, this finding would
not have been binding on the City’s decisionmakers. In California Native Plant Society,
the appellants argued, similar to the petitioners in this case, that a city “cannot in a public
process [the EIR] tell the public that there are feasible alternatives and then at the end of
the process [project approval] make a contrary conclusion.” (California Native Plant
Society, supra, 177 Cal.App.4th at p. 998.) The court rejected this argument as flawed
because “[t]he issue of feasibility emerges at two distinct points in the administrative
review process: first, in the EIR, and next during project approval.” (Ibid.) When
assessing feasibility in connection with the alternatives analysis in the EIR, the “question
is whether the alternative is potentially feasible.” (Id. at p. 999.) While the EIR must
identify alternatives as potentially feasible, the “decision-making body ‘may or may not
reject those alternatives as being infeasible’ when it comes to project approval.” (Ibid.)
When it comes time to approve a project, an agency’s “decision-making body evaluates
whether the alternatives are actually feasible.” (Ibid.) It is at this later stage that the
40
agency must consider whether specific economic, legal, social, technological, or other
considerations make the alternative identified in the environmental impact report. (Id. at
p. 1000). “Broader considerations of policy thus come into play when the
decisionmaking body is considering actual feasibility than when the EIR preparer is
assessing potential feasibility of the alternatives.” (Ibid.)
The statement in the final EIR upon which petitioners rely was made in the context
of explaining the range of alternatives adopted by the EIR and why additional off-site
alternatives did not need to be discussed. In fact, the statement was essentially restating
the CEQA Guideline standard for when an alternative should be discussed in the EIR.
(See Guidelines, § 15126.6, subd. (a) [“An EIR shall describe a range of reasonable
alternatives to the project . . . which would feasibly attain most of the basic objectives of
the project but would avoid or substantially lessen any of the significant effects of the
project . . . .”].) As the California Native Plant Society court noted, the EIR’s finding
that the Off-site Alternative met this standard did not, and could not, bind the City.
(California Native Plant Society, supra, 177 Cal.App.4th at pp. 998-999.)
E. The Scope of the Administrative Record
The administrative record in this matter is over 52,000 pages. Petitioners contend
the trial court erred in ruling that the administrative record did not include documents or
submissions sent to individual members of the Board of Supervisors (Board) concerning
the project prior to the time the project was before the Board for review.
1. Background
Neither the petitioners nor the City have provided an adequate background
regarding their dispute over the scope of the administrative record. They have left it to us
to scour the voluminous trial court record in an attempt to place the challenged trial court
order in its proper procedural context.
We glean from the trial court’s record in this case that the dispute over the scope
of the administrative record dates back to October 24, 2012, when petitioners served their
first Public Records Act request on the City. This request tracked the categories of
41
documents that section 21167.6, subdivision (e) identifies for inclusion in the
administrative record. On November 6, 2012, counsel for the City responded to a letter
from counsel for petitioners regarding preparation of the administrative record,
explaining the process it planned to follow and making suggestions to minimize cost and
delay. As relevant here, the City proposed that “Board of Supervisor files would include
documents related to Board file number 120692, which culminated in approval of Motion
number M12-79, which upheld the Planning Commission’s certification of the FEIR.”
The Board opened file number 120692 on June 12, 2012, when petitioners filed their
administrative appeal to the Board seeking review of the Planning Commission’s
certification of the project’s EIR. It thus appears that the City’s November 6, 2012, letter
meant that the administrative record would not include documents or submissions
provided to it prior to June 12, 2012. Apparently, petitioners never objected to this
proposal.
The record suggests that an informal conference occurred on June 14, 2013,
between counsel for the parties and the trial court, although no official account or
transcript of this conference exists. Based on the parties’ subsequent filings in the trial
court, it appears that during this informal conference, petitioners requested that the City
collect and produce electronic and paper files from individual members of the Board
relating to the Beach Chalet project, beginning with the City’s notice of preparation of its
EIR on February 1, 2011, on the ground that such documents were essential components
of the administrative record. Based on subsequent emails between counsel for both
parties, it appears that the result of this informal conference was the trial court “directed
the [City] to collect only emails from the official email account of each Supervisor (not
staff) from the time period beginning January 1, 2012, until July 10, 2012, when the
Board affirmed certification” of the EIR.
Shortly after the informal conference, the City and petitioners filed briefs
regarding the scope of the administrative record. These briefs addressed whether
correspondence and submissions to individual Board members were properly part of the
42
administrative record, even if they had not been presented to the full Board during its
deliberations regarding the project. On July 2, 2013, the trial court held a hearing on an
unrelated motion for a protective order filed by the City. Although not entirely clear, it
appears from the parties’ subsequent correspondence that the court heard argument on the
scope of the administrative record based on the parties’ June 20 briefing at this hearing.
On July 17, 2013, petitioners served their third Public Records Act request in this
case. This request differed from the October 24, 2012, request. Whereas the October
2012 request tracked the language contained in section 21167.6, subdivision (e), the July
2013 request specifically sought any and all “correspondence (including but not limited
to letters, memoranda, electronic mail messages, text messages, telefax communications,
and any other correspondence) and other communications referring or related to the
Beach Chalet Project” that were sent or received by members of the Board or the clerk of
the Board between February 2, 2011, and September 13, 2012. In an email to petitioners’
counsel, counsel for the City urged the petitioners to withdraw this Public Records Act
request. He stated that the request “involves the same types of documents that petitioners
urged the Court to require San Francisco to provide and to include in the administrative
record.” He noted that the court had already directed the City to produce a “limited
subset” of these documents during the informal conference, ordered briefing on the scope
of the administrative record, and heard argument on this issue at the July 2, 2013 hearing.
Counsel stated that the Public Records Act request “greatly expands the scope of
documents that the Court authorized” and that if petitioners did not withdraw the request,
the City would seek the trial court’s intervention and protection. Petitioners responded
by stating they would not withdraw their request. The parties agreed by email that the
City would present an ex parte protective order to the trial court on July 26, 2013.
On July 19, 2013, the City’s counsel emailed petitioners’ counsel regarding the
production that the court had apparently directed at the June 14 informal conference.
This letter stated that to “comply with the Court’s directions at the June 14 conference,”
the City had retrieved backup tapes for the Board members’ email accounts between
43
January and July 2012. The letter stated that the estimated cost for extracting the emails
from the backup tapes would be $35,000 and that the City would seek to recover this cost
from petitioners if the City ultimately prevailed. On July 22, 2013, petitioners’ counsel
responded stating that he believed it was “improper and contrary to law” for the City to
state that it would seek to recover the $35,000 if it prevailed. Nevertheless, counsel
stated that the “Sierra Club cannot run the risk of such litigation costs. Unless you
withdraw your threat to seek litigation costs for the production of these documents,
Petitioner Sierra Club has no alternative but to ask you not to proceed with any
production of documents , including this email extraction, for which you intend to
recover litigation costs.” (Emphasis added.)
On July 26, 2013, the City filed an ex parte application for protective order
regarding petitioners’ third Public Records Act request. The City argued that the court
should interpret petitioners’ public record act request in light of petitioners’ obligation
under CEQA to limit costs in the preparation of the administrative record. Further, the
City renewed its argument that under CEQA, the administrative record does not include
correspondence to or from individual supervisors prior to the Board’s consideration of the
project. The trial court heard the parties’ arguments regarding the ex parte application at
a hearing later that afternoon. The portion of the hearing addressing the ex parte
application was not reported.
Later in the day, the trial court issued a written order entitled “Order Regarding
Scope of Administrative Record.” The court ordered that section 21167.6, subdivision
(e) did not require the City to supplement the administrative record with documents
submitted to individual members of the Board because petitioners had not shown that
documents submitted to a single supervisor were presented to or considered by the Board
in its deliberations or decision whether to affirm the Planning Commission’s certification
of the FEIR. In reaching this conclusion, the trial court reviewed examples of documents
petitioners had identified as having been submitted to individual Board members and
made factual findings that many did not relate to the Beach Chalet project or to the City’s
44
compliance with CEQA, and that the “correspondence to individual supervisors would be
duplicative and/or cumulative of material already in the administrative record, such that
their omission from the record would cause no prejudice.” Finally, the trial court found
that “petitioners never objected to the City’s proposal” that the Board of Supervisors
portion of the administrative record would be limited as stated in the November 6, 2012
letter, described above. The court concluded that “[t]he parties’ agreement to limit the
Board of Supervisor documents to ‘documents related to Board file no. 120692’ appears
inconsistent with any requirement to include documents from the Board of Supervisors
that predate Petitioners’ June 2012 administrative appeal.”
2. Discussion
On appeal, petitioners contend that the trial court erred in finding that “letters,
emails or correspondence sent to individual members of the Board of Supervisors
concerning the Beach Chalet Project” was not part of the administrative record.
Petitioners argue that such documents are required parts of the administrative record
under section 21167.6, subdivision (e).17 The City disputes petitioners’ interpretation of
17
Specifically, petitioners rely on section 21167.6, subdivision (e)(3), (6), (7), and
(10). Together, these subdivisions provide: “The record of proceedings shall include, but
is not limited to, all of the following items: . . . [¶] (3) All staff reports and related
documents prepared by the respondent public agency and written testimony or documents
submitted by any person relevant to any findings or statement of overriding
considerations adopted by the respondent agency pursuant to this division; . . . [¶] (6) All
written comments received in response to, or in connection with, environmental
documents prepared for the project, including responses to the notice of preparation; [¶]
(7) All written evidence or correspondence submitted to, or transferred from, the
respondent public agency with respect to compliance with this division or with respect to
the project; . . . [¶] (10) Any other written materials relevant to the respondent public
agency’s compliance with this division or to its decision on the merits of the project,
including the initial study, any drafts of any environmental document, or portions thereof,
that have been released for public review, and copies of studies or other documents relied
upon in any environmental document prepared for the project and either made available
to the public during the public review period or included in the respondent public
agency’s files on the project, and all internal agency communications, including staff
notes and memoranda related to the project or to compliance with this division.”
45
section 21167.6, subdivision (e) and argues that even if the trial court erred in excluding
these documents from the administrative record, petitioners have failed to show any
prejudice resulting from this error.
“[T]he Court of Appeal does not directly review the agency’s decisions about what
to include in the administrative record. Instead, it reviews the trial court’s decision on a
party’s motion relating to the administrative record. It reviews the trial court’s findings
of fact for substantial evidence and its conclusions of law de novo.” (Citizens for Ceres
v. Superior Court (2013) 217 Cal. App. 4th 889, 910 (Ceres).)
The contents of the administrative record defined by subdivision (e) of section
21167.6 are mandatory: “[t]he administrative record shall include the listed items.”
(Ceres, supra,217 Cal.App.4th at p. 909.) The “list is nonexclusive; the administrative
record’s contents include, but are not limited to, the listed items.” (Ibid.) Further, “the
administrative record as defined is very expansive.” (Ibid.) Courts have recognized that
section 21167.6 “contemplates that the administrative record will include pretty much
everything that ever came near a proposed development or to the agency’s compliance
with CEQA in responding to that development.” (County of Orange v. Superior Court
(2003) 113 Cal. App. 4th 1, 8; see also Eureka Citizens, supra, 147 Cal.App.4th at p. 367
[same].)
Ultimately, we need not determine whether the trial court erred in its construction
of section 21167.6, because we conclude that petitioners have failed to show any
prejudice from the exclusion of the correspondence in question. Our state Constitution
provides that “[n]o judgment shall be set aside . . . in any cause, on the ground of . . . the
improper admission or rejection of evidence, or for any error as to any matter of pleading,
or for any error as to any matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error complained
of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Under this
provision, a party arguing that evidence was improperly rejected bears the burden of
demonstrating that they were prejudiced by the error. (Easterby v. Clark (2009) 171
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Cal. App. 4th 772, 783; Winfred D. v. Michelin North America, Inc. (2008) 165
Cal. App. 4th 1011, 1038.) This constitutional provision applies to disputes over the scope
of a CEQA administrative record. (Citizens for Open Government v. City of Lodi (2012)
205 Cal. App. 4th 296, 308 (City of Lodi).)
As we have noted, the administrative record in this matter is extensive, comprising
over 52,000 pages of documents. The trial court, reviewing a sampling of documents that
petitioners asserted had been submitted to individual Board members, made a factual
finding that the documents either did not relate to the Beach Chalet project or were
cumulative or duplicative of material already in the administrative record. As a result,
the trial court found that petitioners had failed to show that omission of such documents
would cause prejudice. The trial court was correct that omission of duplicative material
from the administrative record would cause no prejudice. (See Environmental Protection
Information Center v. California Department of Forestry and Fire Protection (2008) 44
Cal. 4th 459, 488 [finding no prejudice for omission of documents which were duplicative
of information already contained in the EIR].)
On appeal, the petitioners have not challenged the trial court’s factual finding that
the documents they submitted were cumulative or duplicative of material already in the
record. Instead they argue “there is no way to determine if the exclusion [of the
correspondence to individual Board members] is ‘harmless error’ since neither
[petitioners] nor the Court have seen the excluded correspondence.” In essence,
petitioners concede that they have failed to demonstrate any prejudice from the omission
of correspondence to individual Board members from the administrative record, but
contend it was not possible for them to do so. We are unpersuaded.
First, as detailed above, following the informal conference on June 14, 2013,
petitioners had the opportunity to obtain copies of relevant emails from the individual
Board members’ official email accounts over a six-month period – a substantial amount
of the correspondence they now contend was erroneously omitted from the administrative
record. After the City threatened to seek recovery of the costs associated with producing
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these emails if they prevailed in this matter, petitioners expressly withdrew their request
for the emails. Petitioners withdrew their request without ever seeking the intervention of
the trial court, either to enforce the arrangement from the informal conference or to seek
review of the City’s assertion that it would seek to hold petitioners liable for the costs
associated with the production. Accordingly, petitioners had the opportunity to see a
large portion of the correspondence at issue in this appeal – an opportunity that would
have aided them in demonstrating prejudice should the correspondence be excluded – but
declined that opportunity.
Second, the court in City of Lodi addressed a similar prejudice argument to that
raised by petitioners in this matter. In that case, appellants raised a number of challenges
under CEQA to the City of Lodi’s approval of a project, including a claim that the City of
Lodi had wrongfully excluded a number of emails from the administrative record on an
erroneous claim of privilege. (City of Lodi, supra, 205 Cal.App.4th at p. 305.) The
appellate court agreed that the deliberative process privilege did not apply and that the
emails should have been included in the administrative record, but found that the
appellants had not demonstrated prejudicial error. (Id. at p. 307.)
The appellants in City of Lodi had argued that the “act of improperly withholding
the documents ‘[was] itself prejudicial’ ” and that “requiring [appellants] ‘to prove
prejudice without ever having seen the improperly withheld documents imposes an
impossible burden on CEQA petitioners.’ ” (City of Lodi, supra, 205 Cal.App.4th at p.
308.) The court rejected this argument, finding that “[t]he answer to [appellant’s]
predicament was to seek writ review of the trial court’s December 14, 2009, ruling on the
motion to augment the administrative record, in which the court determined the
deliberative process privilege applied.” (Ibid.) Appellants “could have sought writ
review of the court’s ruling improperly excluding documents based on the deliberative
process privilege by arguing that review by appeal was inadequate. It was inadequate
because without having seen the documents, [appellants] could not carry [their] burden
on appeal to show prejudice.” (Ibid.) The court noted that appellant’s position, taken to
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its extreme was that “anytime even one insignificant document is erroneously excluded
from the administrative record, reversal is required.” (Id. at p. 309.)
If petitioners disagreed with the trial court’s interpretation of section 21167.6
contained in its “Order Regarding Scope of Administrative Record,” they could have
sought writ review of that order. “[W]here [petitioners] chose to proceed on appeal . . .
[they] cannot claim it is impossible to demonstrate prejudice (for its lack of ability to see
the documents) because [they] created [their] own predicament by failing to seek writ
review. An appellant’s burden to prove prejudicial error is well established. Indeed it is
part of our state’s Constitution. Because [petitioners have] failed to carry that burden, it
is not entitled to reversal on appeal.” (City of Lodi, supra, 205 Cal.App.4th at p. 311.)
F. Demurrer to Petitioner’s Fourth CEQA Count.
In their Fourth CEQA count, petitioners alleged that the City did not exercise its
independent judgment in “analyzing, selecting and describing the artificial turf selected
for the Beach Chalet Project in the EIR.” Petitioners alleged that in 2006 the City and the
Foundation entered into a memorandum of understanding (MOU) that “delegates or gives
to [the Foundation] certain rights as to selection, construction and maintenance of the
artificial turf;” “the right to control the acquisition of such artificial turf” and to select the
contractor to install and maintain the turf; and “a joint right, with the City, to select the
sites where this artificial turf will be installed.” Petitioners alleged that, in this way, the
City impermissibly delegated to the Foundation the decision-making regarding these
aspects of the project and failed to exercise its independent judgment. Petitioners also
alleged facts showing a close relationship between the City’s Recreation and Parks
Department and the Foundation.
The City and the Foundation demurred to this count on grounds that it failed to
state a cause of action and that it was untimely.18 The trial court sustained the demurrer
without leave to amend on the ground that it failed to state a cause of action.
18
The City and the Foundation demurred to several of petitioners’ CEQA causes
of action. Only petitioners’ Fourth CEQA count is at issue in this appeal.
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“ ‘ “A demurrer tests the legal sufficiency of the complaint. . . .” [Citations.] On
appeal from a dismissal after an order sustaining a demurrer, we review the order de
novo, exercising our independent judgment about whether the complaint states a cause of
action as a matter of law. [Citations.] We give the complaint a reasonable interpretation,
reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all
material facts properly pled. [Citation.] We must also accept as true those facts that may
be implied or inferred from those expressly alleged. [Citation.] If no liability exists as a
matter of law, we must affirm that part of the judgment sustaining the demurrer.
[Citation.]’ ” (Balikov v. Southern California Gas Co. (2001) 94 Cal. App. 4th 816, 819.)
A demurrer to a cause of action alleging a violation of CEQA is subject to the same
standard of review that applies to general demurrers raised in other types of lawsuits.
(Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission
(2014) 223 Cal. App. 4th 550, 557.)
“[W]hen [a demurrer] is sustained without leave to amend, we decide whether
there is a reasonable possibility that the defect can be cured by amendment: if it can be,
the trial court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) Petitioners
have the burden of proving that an amendment would cure the defect by “ ‘enumerat[ing]
facts and demonstrat[ing] how those facts establish a cause of action.’ ” (Total Call
International, Inc. v. Peerless Ins. Co. (2010) 181 Cal. App. 4th 161, 166.)
The trial court correctly sustained the demurrer to Petitioner’s fourth CEQA count.
There is no dispute that an EIR, the environmental review of a proposed project, must
reflect the lead agency’s independent judgment and analysis. This does not mean,
however, that the lead agency must actually design the project. Nothing in CEQA
prohibits a developer or any applicant from proposing a project, including its size, height,
materials, purpose, location, and various other specifications. The proposal simply
triggers the need for CEQA review.
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Petitioners rely on section 21082.1, which provides that a public agency is
responsible for the draft EIR, final EIR, negative declaration, or mitigated negative
declaration in CEQA proceedings. Specifically, petitioners cite subdivision (c), which
states in part: “The lead agency shall do all of the following: [¶] (1) Independently
review and analyze any report or declaration required by this division. [¶] (2) Circulate
draft documents that reflect its independent judgment.” (§ 21082.1, subd. (c).)
Petitioners also rely on two provisions in the CEQA Guidelines, sections 15084,
subidvision (e) and 15090, subdivision (a)(3). Guidelines section 15084, subdivision (e)
provides, “Before using a draft prepared by another person, the lead agency shall subject
the draft to the agency’s own review and analysis. The draft EIR which is sent out for
public review must reflect the independent judgment of the lead agency. The lead agency
is responsible for the adequacy and objectivity of the draft EIR.” Guidelines section
15090, subdivision (a)(3) provides that prior to approving a project, the lead agency shall
certify that “[t]he final EIR reflects the lead agency’s independent judgment and
analysis.”
The court in Friends of La Vina v. County of Los Angeles (1991) 232 Cal. App. 3d
1446, 1455 (Friends of La Vina), disapproved on other grounds by Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal. 4th 559, considered the same statutory
provision and CEQA Guidelines in rejecting a claim that the agency improperly
delegated preparation of the EIR to the contractor who sought approval of a development
project. The Court of Appeal reversed the trial court’s grant of a writ of mandate and
declaratory relief, holding that an agency may comply with CEQA by adopting EIR
materials drafted by the applicant’s consultant, so long as the agency independently
reviews, evaluates, and exercises judgment over the documentation and the issues it
raises and addresses. (Friends of La Vina, supra, 232 Cal.App.3d at pp. 1457-1458.)
Here, contrary to petitioners’ arguments, their alleged facts, taken as true, do not
show that the City ceded to the Foundation responsibility for determining project
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alternatives, mitigation measures, or the project location, or studying the environmental
impacts of a project, without the agency’s independent review and analysis.
The cases petitioners cite do not advance their position. Two of the cases stand for
the established principle that, under CEQA, “a public agency cannot charge a developer
with the responsibility to study the impact of a proposed project. (Sundstrom v. County
of Mendocino (1988) 202 Cal. App. 3d 296.)” (California Clean Energy Committee v.
City of Woodland (2014) 225 Cal. App. 4th 173, 194.) In Sundstrom v. County of
Mendocino, supra, 202 Cal.App.3d at page 307, the agency violated its duty to assess
environmental impact by delegating to the applicant the duty to conduct hydrology
impact studies for construction of a sewage treatment plant. Similarly, in California
Clean Energy Committee v. City of Woodland, supra, 225 Cal.App.4th at page 194, the
agency failed to exercise its independent judgment by shifting responsibility for
producing studies of the potential urban decay impact of the project, a shopping center,
onto the developer. Citizens of Goleta Valley v. Board of Supervisors (1988) 197
Cal. App. 3d 1167, 1180-1181 addressed the adequacy of the EIR’s alternatives analysis
and concluded that, under the particular circumstances, omission of consideration of
whether there were feasible alternative sites rendered the EIR inadequate. And, in People
v. County of Kern (1976) 62 Cal. App. 3d 761, 775, the court held that the final EIR, which
was prepared by the applicant’s attorney, not the agency, was not a good faith response to
adverse environmental comments.
Petitioners also alleged a close relationship between the Foundation and the
SFRPD, specifically that several persons who were employed as managers and directors
of SFRPD also served as part of the Foundation’s board or “team.” Petitioners contend
this close relationship violated the CEQA requirement that the City exercise independent
judgment and maintain objectivity toward the project. (See Ceres, supra, 217
Cal.App.4th at p. 898 [“[W]hen environmental review is in progress, the interests of the
lead agency and a project applicant are fundamentally divergent. While the applicant
seeks the agency’s approval on the most favorable, least burdensome terms possible, the
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agency is duty bound to analyze the project’s environmental impacts objectively.”].) We
are not persuaded. The facts alleged do not establish that the City failed to exercise its
independent judgment in reviewing the project.
Finally, although petitioners contend the trial court erred in denying leave to
amend, they have not explained how the defect could be cured by amendment to state a
cause of action. It is petitioners’ burden to prove such reasonable possibility, and they
have not carried it. (See Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
DISPOSITION
The judgment is affirmed.
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_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
A140891, The Sierra Club v. City and County of San Francisco
54