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In 1997, the City of San Francisco adopted the City’s Bicycle Plan.  In 2005, the San Francisco Board of Supervisors directed its staff to prepare an update to the City’s Bicycle Plan.  Initially, the City determined the Bicycle Plan Update did not require further CEQA review.  This determination resulted in Rob Anderson and two unincorporated associations filing a CEQA petition.  In November 2006, the trial court sided with the petitioners and directed the City to comply with CEQA.

In response, the City undertook a nearly three yearlong environmental review process to analyze potential impacts of the Bicycle Plan Update.   The programmatic environmental impact report prepared by the City for its Bicycle Plan Update contained more than 2,000 pages and was supported by an administrative record of more than 36,000 pages.  The City certified the Bicycle Plan Update EIR in the summer of 2009.

In September 2009, the City filed a return to the writ requesting the court discharge the writ.   Nearly a year later, in August 2010, the trial court entered an order discharging the writ of mandate.  Rob Anderson alone elected to appeal from the trial court’s order discharging the writ.

Roughly 8 years after the City first began the process to update its Bicycle Plan, Division Two of the First District Court of Appeal issued an unpublished decision (Anderson v. City & County of San Francisco (2013) 2013 Cal. App. Unpub. LEXIS 288) resolving Rob Anderson’s appeal.  The Court rejected all of Anderson’s challenges to the EIR.  However, the Court concluded that in certifying the EIR, the City failed to make “a handful of findings required by CEQA.”  For this reason, the Court reversed the trial court’s order discharging the writ.

Anderson challenged the EIR on numerous grounds.  First, he claimed the public comment process was flawed and that the EIR should have been recirculated.  Second, he argued the project description was inadequate. Third, he asserted that the EIR failed to accurately describe the baseline environmental conditions relevant to the Bicycle Plan Update.  Fourth, he claimed the EIR failed to include a reasonable range of alternatives and that an offsite alternative should have been analyzed.  Fifth, he argued six potential impacts were not adequately analyzed including transit impacts, parking impacts, air quality impacts, traffic impacts, noise impacts, and cumulative impact.  Lastly, he asserted that for 107 of the 139 significant impacts identified in the EIR the City failed to consider – and where feasible adopt – mitigation measures to reduce the impacts to a less than significant level.

Putting the Project in context, the Court explained that “[t]his project was not the construction of a new factory or housing subdivision in a virgin setting, but a setting that is perhaps the most intensely developed urban landscape in California. And, the particular project concerns a plan to promote greater use of bicycles in that setting—more accurately, only amendments to an already existing plan that has been around for more than a decade.”

In rejecting Anderson’s challenges to the EIR, the Court undertook a detailed analysis of each issue he raised.  To support its holding, the Court explained that the EIR was a product of a coordinated effort between San Francisco Municipal Transportation Agency, its transportation consultants, and staff of the Major Environmental Analysis division of the City’s Planning Department.  The Court noted that “[t]he Planning Department and the Municipal Transit Authority have been involved with the Bicycle Plan since its inception 15 years ago.”  The Court concluded that “[t]hey must be presumed to have some acquaintance with urban transportation in general, the flow of San Francisco traffic in particular, and, most particularly, the nuts and bolts of the actual operations of the Bicycle Plan. And they undoubtedly have a healthy respect for the law of unintended consequences.”  For these reasons, the Court found “this would appear to be a distinctly appropriate occasion for judicial deference to administrative expertise.”

Procedurally, the Court was also very critical of the manner in which Anderson pursued his appeal.  The Court explained that much of Anderson’s arguments appeared to do nothing more than regurgitate his arguments at trial.  In doing so, Anderson ignored “two most elemental principles of appellate review: that the judgment under review is presumed correct, and it is the appellant’s burden to overcome that presumption.  Simply rehashing or tweaking arguments rejected by the trial court neither rebuts that presumption nor carries that burden.”

Next, the Court rejected Anderson’s argument that the statement of overriding considerations failed to comply with the requirements of CEQA.  The Court conceded that the factors identified in the City’s statement of overriding considerations were “somewhat general and aspirational…”  But, the Court found them to be sufficient because conclusions reached in the statement of overriding consideration “lies at the core of the lead agency’s discretionary responsibility under CEQA, and is, for that reason, not lightly to be overturned.”  The Court also explained that the City’s determination that it should follow the path put in place by the original Bicycle Plan was appropriate since continuity with existing policy is a proper consideration within a statement of overriding consideration.

Lastly, the Court concluded that the City’s CEQA findings failed to comply with the requirement to consider the actual feasibility of alternatives and to discuss each significant and unavoidable impact.  While the Court acknowledged that the statement of overriding considerations properly identified factors supporting approval of the Bicycle Plan as adopted, CEQA nevertheless required findings adequately addressing alternatives and significant and unavoidable impacts identified in the EIR.  Because the Court determined that with respect to certain impacts and alternatives “there is nothing establishing the written balance struck by the Board in weighing the benefits of the project against ‘its unavoidable environmental risks,’” the Court concluded as a matter of law that the findings were inadequate.  Therefore, the Court reversed the trial court’s order discharging the writ on this single ground.

Key Point:

When CEQA was adopted in 1970, the legislature never could have fathomed the law it created to protect the environment would result in over 8 (and counting) years of delay in implementing projects such as bicycle plans designed to enhance pedestrian travel, improve health and safety, and reduce air quality impacts from automobile use.  The factual history surrounding San Francisco’s Bicycle Plan Update is just one of the growing numbers of examples highlighting the critical need for modernization of CEQA.

Written By: Tina Thomas and Christopher Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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