San Franciscans for Livable neighborhoods v. City and County of San Francisco

After preparing an environmental impact report (EIR) defendant City and County

of San Francisco (City) approved revisions of the housing element of its general plan.

San Franciscans for Livable Neighborhoods (SFLN) filed a petition for writ of mandate

challenging the adequacy of City’s EIR. The trial court denied relief and we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

SFLN is an unincorporated association that includes several neighborhood

organizations: the Cow Hollow Association, the Francisco Heights Civic Association, the

Greater West Portal Neighborhood Association, the Jordan Park Improvement

Association, the Lakeshore Acres Improvement Club, the Laurel Heights Improvement

Association of San Francisco, Inc., the Marina-Cow Hollow Neighbors & Merchants, the

Miraloma Park Improvement Club, the Pacific Heights Residents Association, the

Presidio Heights Association of Neighbors, the Russian Hill Neighbors, the St. Francis

Homes Association, the Sunset-Parkside Education and Action Committee, Inc., and the

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Westwood Highlands Association. The City is the “lead agency” for the subject

approvals for purposes of the California Environmental Quality Act (CEQA) (Pub.

Resources Code, § 21000 et seq.)1

and is charged with duties to disclose, analyze, and

mitigate significant impacts from the project. (§§ 21067, 21165.)

B. CEQA

Before delving into the facts and procedural history of this matter, it is necessary

to discuss the relevant statutory and regulatory framework. CEQA requires an agency to

conduct an initial study to determine if a project may have a significant effect on the

environment. (Cal. Code Regs., tit. 14,2 § 15063, subd. (a).) “If there is substantial

evidence that the project may have a significant effect on the environment, then the

agency must prepare and certify an EIR before approving the project.” (Friends of

College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1

Cal.5th 937, 945.) The EIR is “the heart of CEQA” (CEQA Guidelines, § 15003, subd.

(a)), and its purpose is “to provide public agencies and the public in general with detailed

information about the effect which a proposed project is likely to have on the

environment; to list ways in which the significant effects of such a project might be

minimized; and to indicate alternatives to such a project.” (§ 21061; see CEQA

Guidelines, § 15003, subds. (b)–(e).)

“CEQA allows public agencies to use special types of EIR’s to simplify

preparation and avoid duplication. [Citations.] [¶] One of those EIR’s is a program EIR.

(CEQA Guidelines, § 15168.) ‘A program EIR is an EIR which may be prepared on a

series of actions that can be characterized as one large project and are related [among

other possibilities [¶] . . . [¶] . . . [a]s individual activities carried out under the same

authorizing statutory or regulatory authority and having generally similar environmental

effects which can be mitigated in similar ways.’ (CEQA Guidelines, § 15168,



1 All further statutory references are to the Public Resources Code except as

otherwise indicated.

2 CEQA Guidelines are codified in title 14 of the Code of Regulations. Hereafter,

we refer to title 14 as “CEQA Guidelines.”

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subd. (a)(4).)’ ” (Center for Biological Diversity v. Department of Fish and Wildlife

(2015) 234 Cal.App.4th 214, 233 (Center for Biological Diversity).) The housing

element is such a project.

“Using a program EIR can provide a public agency many advantages as it

proceeds with its program. For one, the agency can avoid preparing multiple EIR’s for

the program and its activities if the program EIR is comprehensive. ‘Preparation of a

program EIR allows a public agency to characterize the overall program as the project

that is proposed for approval. If a sufficiently comprehensive and specific program EIR

is prepared, the agency may dispense with further environmental review of activities

within the program that are adequately covered by the program EIR. ( [CEQA

Guidelines,] § 15168, [subd.] (c).)’ [Citation.]” (Center for Biological Diversity, supra,

234 Cal.App.4th at p. 233.)

“Program EIR’s have other advantages. They may be used to address impacts and

mitigation measures that apply to the program as a whole to simplify later environmental

review for program activities. (CEQA Guidelines, § 15168, subd. (d) . . . .) They may

also be used to consider broad programmatic issues for related actions at an early

planning stage when the agency has greater flexibility to deal with basic problems or

cumulative impacts. (CEQA Guidelines, § 15168, subd. (d).)” (Center for Biological

Diversity, supra, 234 Cal.App.4th at p. 233.)

“The CEQA Guidelines do not specify the level of analysis required to be

performed in a program EIR. Indeed, ‘[n]o ironclad rules can be imposed regarding the

level of detail required . . . . EIR requirements must be “sufficiently flexible to

encompass vastly different projects with varying levels of specificity.” [Citation.]’

[Citation.] ‘The degree of specificity required in an EIR will correspond to the degree of

specificity involved in the underlying activity which is described in the EIR.’ (CEQA

Guidelines, § 15146.)” (Center for Biological Diversity, supra, 234 Cal.App.4th at

p. 234.)

Therefore, “[d]esignating an EIR as a program EIR . . . does not by itself decrease

the level of analysis otherwise required in the EIR. ‘All EIR’s must cover the same

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general content. [Citations.] The level of specificity of an EIR is determined by the

nature of the project and the “rule of reason” [citation], rather than any semantic label

accorded to the EIR.’ ” (Friends of Mammoth v. Town of Mammoth Lakes

Redevelopment Agency (2000) 82 Cal.App.4th 511, 533.) Consequently, in considering a

challenge to a program EIR, “ ‘it is unconstructive to ask whether the EIR provided

“project-level” as opposed to “program-level” detail and analysis. Instead, we focus on

whether the EIR provided “decision makers with sufficient analysis to intelligently

consider the environmental consequences of [the] project.” ’ (Citizens for a Sustainable

Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036,

1052.)” (Cleveland National Forest Foundation v. San Diego Association of

Governments (2017) 17 Cal.App.5th 413, 426 (Cleveland National Forest).)

C. General Plan Requirements

“The Planning and Zoning Law (Gov. Code, § 65000 et seq.) requires each city

and county to ‘adopt a comprehensive, long-term general plan for the physical

development of the county or city, and of any land outside its boundaries which in the

planning agency’s judgment bears relation to its planning.’ (Gov. Code, § 65300.) A

[city’s] general plan is its ‘ “ ‘constitution’ for future development” . . . ‘ “located at the

top of the hierarchy of local government law regulating land use.” ’ [Citation.] ‘ “[T]he

propriety of virtually any local decision affecting land use and development depends

upon consistency with the applicable general plan and its elements.” [Citation.]’

[Citation.] The Planning and Zoning Law requires that each general plan include seven

mandatory elements, including a land use element, a circulation element, a housing

element, a conservation element, an open-space element, a noise element, and a safety

element. (Gov. Code, § 65302.)” (Latinos Unidos de Napa v. City of Napa (2013)

221.Cal.App.4th 192, 196-197 (Latinos Unidos).)

D. The Housing Element Law

Declaring housing availability to be of “vital statewide importance” and the

“attainment of decent housing and a suitable living environment . . . a priority of the

highest order,” the Legislature enacted the Housing Element Law, which requires local

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governments to adopt a “housing element” as a component of its general plan. (Gov.

Code, § 65580 et seq., added by Stats. 1980, ch. 1143, pp. 3697-3698, § 3; Fonseca v.

City of Gilroy (2007) 148 Cal.App.4th 1174, 1183 (Fonseca).) The purpose of the

Housing Element Law is, among other things, “[t]o assure . . . cities [will] recognize their

responsibilities in contributing to the attainment of the state housing goal,” including

“housing affordable to low-and-moderate-income households.” (Gov. Code, §§ 65580,

subd. (c), 65581, subd. (a).) A local government’s housing element must be reviewed

and revised every five to eight years. (Gov. Code, §§ 65583, 65588, subds. (b), (e).)

The housing element of a general plan must contain specific components,

analyses, goals and policies. (Gov. Code, § 65583.) The housing element must include,

among other things, “[a]n assessment of housing needs and an inventory of resources and

constraints relevant to the meeting of these needs,” including an inventory of land

suitable for residential development, as well as a program “to implement the policies and

achieve the goals and objectives of the housing element.” (Gov. Code, § 65583,

subds. (a), (c).)

The housing element must also identify actions that will be taken to make sites

available to accommodate the local government’s share of the regional housing needs.

(Gov. Code, § 65583, subd. (c)(1).) The Legislature enacted the regional housing needs

assessment (RHNA) procedure (see Gov. Code, §§ 65584-65589) to address the state’s

shortage of affordable housing. (Gov. Code, § 65580, subd. (a).) To achieve the state’s

housing objectives, the law requires each local jurisdiction to zone adequate numbers of

sites to accommodate the regional housing burden allocated to it, so that every local

jurisdiction shares in the obligation to accommodate the state-wide housing need. (See

Gov. Code, §§ 65584, 65863, subd. (a)). Various regional councils of governments, in

conjunction with the cities and counties within their jurisdictions and the California

Department of Housing and Community Development (HCD), devise methods for

distributing existing and projected housing needs within their regions and for allocating a

share of the regional housing needs to each local jurisdiction. (Gov. Code, § 65584,

subd. (d)(4).)

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E. The 2004 Housing Element

The City revised its housing element in 2004, when it adopted the 2004 Housing

Element. The 2004 Housing Element was an update to the 1990 Residence Element.

The City found the 2004 Housing Element would have no significant adverse

environmental impacts and issued a negative declaration, approving the revised housing

element without preparing an EIR. SFLN challenged the City’s decision to proceed by

negative declaration. A different panel of this division concluded an EIR was required.

(San Franciscans for Livable Neighborhoods v. City and County of San Francisco (June

22, 2007, A112987 [nonpub. opn.].) Accordingly, we reversed and ordered the trial court

to issue a writ of mandate directing the City to set aside its adoption of the negative

declaration and to order the preparation of an EIR.

Following this reversal, the trial court issued an amended preemptive writ of

mandate in April 2009. It enjoined the City from implementing some aspects of the 2004

Housing Element, but allowed the City to operate under the remaining provisions—many

of which derived from the previous 1990 Residence Element—until the City complied

with CEQA’s mandates. The City formally began preparing the court-ordered EIR

analyzing the 2004 Housing Element in October 2008.

F. The 2009 Housing Element

By the time City began preparing the court-ordered EIR for the 2004 Housing

Element, preparation for the next state-required housing element—the 2009 Housing

Element—was already underway. The 2009 Housing Element examined the type,

amount, and affordability of new construction needed, as determined by the Association

of Bay Area Governments (ABAG). ABAG, in coordination with HCD, determined that

San Francisco’s fair share of the regional housing for January 2007 through June 2014

would be 31,190 units, or about 4,160 units per year. The stated goal was to “alleviate a

tight housing market[,]” with allocations of “regional household and employment

growth” to areas with established or planned transit infrastructures. The 2009 Housing

Element, based on the RHNA, was designed to address housing needs for a range of

household income categories. A total of 18,880 units, or 61 percent of the RHNA target

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(31,190 units) were required to be affordable to households making 120 percent of the

area medium income or less (or $113,150 for a household of 4).

The stated intent of the 2009 Housing Element was to provide the policy

framework for guiding the City to meet its housing goals. As such, the 2009 Housing

Element did not modify land use, specify areas of increased height or density, suggest

specific controls for individual neighborhoods, implement changes to the Zoning Map or

Planning Code, or direct funding for housing development. Rather, the 2009 Housing

Element focused on strategies for implementing its core “housing values,” which the City

developed after working with neighborhood groups, community organizations, housing

advocates, and residents. The following four core housing values were created to guide

the 2009 Housing Element: 1) prioritize permanently affordable housing; 2) recognize

and preserve neighborhood character; 3) integrate planning of housing, jobs,

transportation, and infrastructure; and 4) cultivate the City as a sustainable model of

development.

The 2009 Housing Element acknowledged the inherent tension among many of its

housing goals. For example, the relationship of market rate to affordable housing could

often be competitive and oppositional. Also, the demand for more housing in San

Francisco creates tensions by the impact, either real or perceived, of new developments

on existing neighborhoods. Another major issue to balance is the relationship between

housing and infrastructure. The stated purpose of the 2009 Housing Element is not to

resolve all of these tensions, but to provide a framework the City could use to identify

concerns that should be considered by decision makers in order to achieve the City’s

housing goals.

In an effort to assist the City in reaching the type and amount of housing targeted

by the RHNA, the 2009 Housing Element provides a set of objectives and policies to

address the State’s goals and the City’s most pressing housing issues: identifying

adequate housing sites, conserving and improving existing housing, providing equal

housing opportunities, facilitating permanently affordable housing, removing government

constraints to construction and rehabilitation of housing, maintaining the unique and

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diverse character of San Francisco’s neighborhoods, balancing housing construction with

community infrastructure, and sustainability.

G. The Combined Environmental Review of the 2004 and 2009 Housing Elements

Due to the overlap in preparing the 2004 and 2009 Housing Elements, the City

combined the environmental review of the housing elements.

The City certified the 2004 and 2009 Housing Element EIR (Housing Element

EIR or EIR) on March 24, 2011. In certifying the EIR, the City planning department

notified the public that the 2009 Housing Element, by encouraging housing near transit

lines, will have a single, significant, unavoidable environmental impact on transit that

cannot be mitigated to a level of insignificance; it is estimated that transit ridership could

rise in excess of the San Francisco Municipal Railway’s (MUNI) capacity utilization

standard of 85 percent.

On June 29, 2011, the City adopted the 2009 Housing Element as San Francisco’s

new housing element. On August 4, 2011, SFLN filed a petition for writ of mandate

challenging the EIR as it pertained to the 2009 Housing Element, claiming, among other

things, that the adoption of the 2009 Housing Element was internally inconsistent with

the City’s General Plan.

The trial court issued an order finding that, in most respects, Housing Element EIR

complied with CEQA. The court upheld the project description, the impact analyses, and

the City’s decision not to recirculate the EIR after it was published, and determined that

the EIR included a reasonable range of alternatives. The court, however, ruled that the

EIR’s analysis of the alternatives and the findings regarding potentially feasible

mitigation measures were inadequate and not supported by substantial evidence. Finally,

the court found that the 2009 Housing Element was consistent with the General Plan and

the Planning Code.

The instant appeal followed.

II. DISCUSSION

SFLN challenges the Housing Element EIR’s compliance with CEQA on

numerous grounds, including the use of improper baselines when analyzing impacts,

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failure to disclose various potential impacts, and failure to consider feasible alternatives

that would reduce significant impacts.

A. Standard of Review

“[T]he Legislature intended [CEQA] ‘to be interpreted in such manner as to afford

the fullest possible protection to the environment within the reasonable scope of the

statutory language.’ ” (Laurel Heights Improvement Assn. v. Regents of University of

California (1988) 47 Cal.3d 376, 390 (Laurel Heights).) “The EIR is the primary means

of achieving the Legislature’s considered declaration that it is the policy of this state to

‘take all action necessary to protect, rehabilitate, and enhance the environmental quality

of the state.’ [Citation.] . . . An EIR is an ‘environmental “alarm bell” whose purpose it

is to alert the public and its responsible officials to environmental changes before they

have reached ecological points of no return.’ [Citations.] The EIR is also intended ‘to

demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and

considered the ecological implications of its action.’ [Citations.] Because the EIR must

be certified or rejected by public officials, it is a document of accountability. If CEQA is

scrupulously followed, the public will know the basis on which its responsible officials

either approve or reject environmentally significant action, and the public, being duly

informed, can respond accordingly to action with which it disagrees. [Citations.] The

EIR process protects not only the environment but also informed self-government.”

(Laurel Heights, supra, 47 Cal.3d at p. 392.)

“Where an EIR is challenged as being legally inadequate, a court presumes a

public agency’s decision to certify the EIR is correct, thereby imposing on a party

challenging it the burden of establishing otherwise.” (Sierra Club v. City of

Orange (2008) 163 Cal.App.4th 523, 530 (Sierra Club).) Section 21168.5 provides that 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, “[t]he court does not pass upon the correctness of the EIR’s environmental

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conclusions, but only upon its sufficiency as an informative document.” (Laurel Heights,

supra, 47 Cal.3d at p. 544.) We will not set aside an agency’s approval of an EIR on the

ground that a different conclusion would have been equally or even more reasonable.

(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.)

Our review in a CEQA case, as in other mandamus actions, is the same as that of

the trial court. We review the agency’s decision, not that of the trial court. (In re BayDelta

etc. (2008) 43 Cal.4th 1143, 1162.) This review differs according to the type of

error claimed. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho

Cordova (2007) 40 Cal.4th 412, 435.) “Whether an ‘agency has employed the correct

procedures,’ is reviewed ‘de novo . . . “scrupulously enforc[ing] all legislatively

mandated CEQA requirements” [citation] . . . .’ [Citation.] But an ‘agency’s substantive

factual conclusions’ are ‘accord[ed] greater deference.’ [Citation.] ‘In reviewing for

substantial evidence, the reviewing court “may not set aside an agency’s approval of an

EIR on the ground that an opposite conclusion would have been equally or more

reasonable,” for, on factual questions, our task “is not to weigh conflicting evidence and

determine who has the better argument.” [Citation.]’ ” (Sierra Club, supra, 163

Cal.App.4th at p. 531.) “Rather, we must resolve any reasonable doubts and any

conflicts in the evidence in favor of the agency’s findings and decision. [Citations.]”

(Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 276.)

Further, “ ‘[i]n determining the adequacy of an EIR, the CEQA Guidelines look to

whether the report provides decision makers with sufficient analysis to intelligently

consider the environmental consequences of a project. ([CEQA Guidelines,] § 15151.)

The CEQA Guidelines further provide that “the sufficiency of an EIR is to be reviewed in

the light of what is reasonably feasible . . . . The courts have [therefore] looked not for

perfection but for adequacy, completeness, and a good faith effort at full disclosure.”

([CEQA Guidelines] § 15151.)’ [Citation.] The overriding issue on review is thus

‘whether the [lead agency] reasonably and in good faith discussed [a project] in detail

sufficient [to enable] the public to discern from the [EIR] the “analytic route the . . .

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agency traveled from evidence to action.” [Citation.]’ [Citation.]” (California Oak

Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 262.)

B. Baseline Conditions

SFLN contends the Housing Element EIR improperly analyzed the environmental

impacts by using the future conditions projected by ABAG, rather than analyzing the

existing conditions.

CEQA requires an EIR to “focus on impacts to the existing environment, not

hypothetical situations.” (County of Amador v. El Dorado County Water Agency (1999)

76 Cal.App.4th 931, 955.) “[T]he impacts of a proposed project are ordinarily to be

compared to the actual environmental conditions existing at the time of CEQA

analysis, . . . .” (Communities for a Better Environment v. South Coast Air Quality

Management Dist. (2010) 48 Cal.4th 310, 321 (Communities).)

To accomplish this, CEQA directs an EIR to include what is called an

environmental baseline, a description of the project site’s physical and environmental

conditions at the time the EIR is prepared. “An EIR must include a description of the

physical environmental conditions in the vicinity of the project, as they exist at the time

the notice of preparation is published . . . from both a local and regional perspective.

This environmental setting will normally constitute the baseline physical conditions by

which a lead agency determines whether an impact is significant.” (CEQA Guidelines,

§ 15125, subd. (a).)

“[A]n inappropriate baseline may skew the environmental analysis flowing from

it, resulting in an EIR that fails to comply with CEQA.” (Citizens for East Shore Parks v.

State Lands Com. (2011) 202 Cal.App.4th 549, 557 (Citizens for East Shore Parks); see

also Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 87.) The “normal[ ]” rule is

that the baseline must reflect the “physical conditions existing at the time [the]

environmental analysis” begins. (Communities, supra, 48 Cal.4th at pp. 320, 323.)

However, “ ‘the date for establishing a baseline cannot be a rigid one.

Environmental conditions may vary from year to year and in some cases it is necessary to

consider conditions over a range of time periods.’ [Citation.]” (Communities, supra, 48

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Cal.4th at pp. 327-328; see also San Francisco Baykeeper, Inc. v. State Lands Com.

(2015) 242 Cal.App.4th 202, 218-219 [five-year average of mining volumes was

appropriate baseline].) Thus, “despite the CEQA Guidelines’ reference to . . . the time

environmental analysis is commenced’ [citation], ‘[n]either CEQA nor the CEQA

Guidelines mandates a uniform, inflexible rule for determination of the existing

conditions baseline. Rather, an agency enjoys the discretion to decide, in the first

instance, exactly how the existing physical conditions without the project can most

realistically be measured, subject to review, as with all CEQA factual determinations, for

support by substantial evidence.’ [Citation.]” (Neighbors for Smart Rail v.

Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 449

(Neighbors for Smart Rail).)

In Neighbors for Smart Rail, our Supreme Court addressed the question of

whether an agency has discretion to use projected future conditions, rather than existing

conditions, as a baseline. (Neighbors for Smart Rail, supra, 57 Cal.4th at p. 452.) There,

an EIR for a project had exclusively employed an analytic baseline of conditions in the

year 2030 to assess a project’s likely impacts on traffic congestion and air quality.

(Neighbors for Smart Rail, supra, 57 Cal.4th at p. 445.) After reviewing appellate

authority on the propriety of using future conditions as a sole baseline, the court

announced the following rule: “Projected future conditions may be used as the sole

baseline for impacts analysis if their use in place of measured existing conditions—a

departure from the norm stated in [CEQA] Guidelines section 15125[, subdivision (a)]—

is justified by unusual aspects of the project or the surrounding conditions. That the

future conditions analysis would be informative is insufficient, but an agency does have

discretion to completely omit an analysis of impacts on existing conditions when

inclusion of such an analysis would detract from an EIR’s effectiveness as an

informational document, either because an analysis based on existing conditions would

be uninformative or because it would be misleading to decision makers and the

public.” (Neighbors for Smart Rail, supra, 57 Cal.4th at pp. 451-452; see

also id. at p. 457.)

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Therefore, in appropriate circumstances an agency may “adjust its existing

conditions baseline to account for a major change in environmental conditions that is

expected to occur before project implementation. In so adjusting its existing conditions

baseline, an agency exercises its discretion on how best to define such a baseline under

the circumstances of rapidly changing environmental conditions.” (Neighbors for Smart

Rail, supra, 57 Cal.4th at p. 452.) For example in Neighbors for Smart Rail, the court

explained that “in an EIR for a new office building, the analysis of impacts on sunlight

and views in the surrounding neighborhood might reasonably take account of a larger

tower already under construction on an adjacent site at the time of EIR preparation.”

(Neighbors for Smart Rail, supra, 57 Cal.4th at p. 453.) The court also noted that an

agency’s determination that an existing conditions impact would provide little or no

relevant information or would be misleading as to a project’s true impacts is reviewed for

substantial evidence. (Id. at p. 457.)

1. Traffic and Water Baseline

SFLN contends that the City improperly used population projections as a baseline

to analyze traffic and water impacts, and that ABAG’s 2009 population projections were

inappropriate because these population projections “assume that the type of policy

changes included in the Housing Element will be made.”

SFLN claims the EIR improperly uses hypothetical conditions in the year 2025 as

a baseline for measuring traffic and water impacts. The EIR compares expected traffic

impacts in the year 2025. It also contains information about actual, observed traffic

conditions at 60 intersections collected by TJKM Transportation Consultants in June

2010. In fact, the EIR has a chart that compares existing traffic conditions at these 60

intersections with projected traffic in 2025, giving a grade between A and F to each

intersection in each scenario, with E and F representing unsatisfactory conditions.

The EIR notes that although traffic is expected to get worse, the Housing Element

itself does not generate any new person trips. Rather, the EIR explains that “[r]esidential

growth within the City would occur regardless of the proposed Housing Element[]; the

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Housing Element[] would provide direction for how new residential development in the

City should occur, with an emphasis on affordability.”

As for water, the EIR identifies existing water demand, and analyzes whether

Housing Element policies would result in the need for additional water beyond what is

provided by existing entitlements and resources. The EIR explains that the Housing

Element does not propose new development. Rather, it is a “policy-level” document

intended to guide how and where new residential development in the City should occur.

The EIR, based on the 2009 San Francisco Public Utility Commission’s (SFPUC) Water

Supply Availability Study (WSAS), calculated water demand projections for the City

based on housing and employment forecasts. Specifically, the EIR compares 2030

growth projections between the 2005 Urban Water Management Plan and the 2009

growth projections developed by the San Francisco Planning Department (Planning

Department), and also takes into account projects currently in various stages of the

development pipeline. Based on these projections, new residential growth is expected to

increase by 29,787 units. Although the changes in the Housing Element encourage

housing density measures, the EIR recognizes that higher density housing uses less water

than single family homes. The Housing Element also includes policies to ensure that the

new housing is adequately supported by infrastructure, including water. The EIR further

explains that although the Housing Element would not result in the construction of

residential units, all new development would be required to comply with existing

regulations. Accordingly, the EIR concludes that the Housing Element policies would

not result in an increase in water demand beyond those assumed in the WSAS.

SFLN claims that the City’s use of “inflated” 2025 conditions constituted an

“analytical sleight of hand.” According to SFLN, by using a future baseline, the City

“skipped over analyzing the foreseeable impacts of approving the very same increaseddensity

policies” that the ABAG 2025 projections assume will be enacted. We disagree.

Rather, we conclude the City was within its discretion to adopt a baseline calculation

forecasting traffic and water impacts in 2025, rather comparing the existing conditions

with and without the Housing Element.

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POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (POET II), on

which SFLN relies, does not compel a contrary conclusion. In POET, an EIR that used

an alternative baseline was deemed inadequate, in part because the state agency took an

overly narrow view of the project. (Id. at p. 77.) At issue was the agency’s enactment of

low carbon fuel standards (LCFS) regulations. (Id. at pp. 56-57.) When the agency

adopted the original LCSF regulations in 2009, a prior appellate decision (POET, LLC v.

State Air Resources Board (2013) 218 Cal.App.4th 681 (POET I) found the agency had

violated CEQA. (POET II, supra, 12 Cal.App.5th at p. 57.) The appellate court required

the agency set aside its approval of the LCFS regulations and address whether the project

would have a significant adverse effect on the environment as a result of increased

nitrogen oxide (NOx) emissions caused by biodiesel. (Id. at pp. 64-65.)

In the subsequent rulemaking, the agency conceded that increased use of biodiesel

in California since the adoption of the original LCFS regulation resulted in “increased

NOx emissions of about 1.2 tons per day.” (POET II, supra, 12 Cal.App.5th at 68.) The

agency also conceded “biodiesel ‘[had] been incentivized under the existing LCFS

Regulation beginning in 2009.’ ” (Id. at 98.)

Instead of recognizing and analyzing the LCFS regulation’s contribution to the

increase in NOx emissions caused by biodiesel, the agency in POET II sidestepped the

issue by taking the position that its “readopted” LCFS regulation was an entirely “new”

regulation, and that it need not analyze those impacts because the original LCFS

regulation was a different “project” than the readopted LCFS regulation.

(POET II, supra, 12 Cal.App.5th at pp. 59-60, fn. 4, 72.) Based on this position, the

agency contended the environmental baseline was 2014–i.e., the year the agency began

the environmental review process for the “readopted” LCFS regulation. (Cf. CEQA

Guidelines, § 15125, subd. (a).) (POET II, supra, at p. 77.) Advancing a contrary

position, the plaintiffs argued that the 2014 baseline was a “ ‘regulatory sleight of hand’

[that] conceals the fact that California will continue to experience increased NOx

emissions causes by the original LCFS regulation until at least 2021.” (Ibid., fn.

omitted.) The plaintiffs further argued the 2014 baseline “skewed the analysis of the

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impact of future NOx emissions by comparing predicted future emissions to

a baseline made higher by the NOx emissions caused by the original LCFS

regulations . . . .” (Id. at p. 72.)

In resolving this dispute, the court in POET II, supra, 12 Cal.App.5th 52,

explained that the question of what constitutes an appropriate baseline cannot be resolved

without the proper application of the term “ ‘project’ ” to the facts of a case. (Id. at

p. 77.) “When the whole of a project is properly identified, then the conditions of

defining the project’s baseline can be determined.” (Ibid.) There, the court concluded

that the agency’s “interpretation of ‘project’ was too narrow and, consequently it chose

the wrong year as the conditions for establishing the baseline for NOx emissions.” (Ibid.)

In so holding, the court reasoned that the “project” that the agency needed to evaluate

under CEQA included both the original LCFS regulation and the readopted LCFS

regulation, as the two actions were “ ‘related to each other.’ ” (Id. at pp. 74-75.)

Here, SFLN argues that the City, like the agency in POET II, relied on an

improperly narrow view of the Housing Element to support its reliance on a future

baseline when evaluating traffic and water supply impacts, assuming the growth the

policies are intended to induce would occur regardless of the Housing Element.

According to SFLN, by utilizing this truncated view of the project, the EIR sidestepped

review of the reasonably foreseeable indirect physical changes in the environment “

‘which may be caused by the project’ ” as required by CEQA Guidelines section 15064,

subdivision (d), under the guise that the increased traffic and water supply impacts would

occur as a result of the projected population growth, with or without the Housing Element

policies. The Housing Element, however, is not designed to induce population growth,

and is distinguishable from cases where approvals of projects clearly would result

in population growth in previously undeveloped areas. (Arviv Enterprises, Inc. v. South

Valley Area Planning Com. (2002) 101 Cal.App.4th 1333, 1345, 1347-1348 [approval of

21-house project in area with limited services]; Napa Citizens for Honest Government v.

Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 352, 371 [development of

airport industrial area expected to add nearly 10,000 employees to area].)

17

SFLN’s principal claim is that the Housing Element will lead to increased growth

in the City with consequent environmental impacts. This is not a baseline or project

description argument. It is a causal argument. It is premised on the isolation of the

increased-density policies from the causes of population growth, which are a multifaceted

product of births, deaths, migration, household size, labor force participation

rates, and job growth over the next 20 years.

Here, the City did not simply decline to consider the impacts by saying the growth

was inevitable. Rather, the City engaged in considerable discussion of projected growth

and analyzed the traffic and water supply impacts based on these projections. This is

what CEQA requires. (Napa Citizens for Honest Government v. Napa County Bd. of

Supervisors, supra, 91 Cal.App.4th at p. 371.) The Housing Element consists of growthaccommodating

rather than growth-inducing policies. (See, e.g., Friends of the Eel River

v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 877 [water diversion

project was “designed to accommodate the projected population growth of the eight cities

and counties . . . as that growth is forecast under the general plans for these cities and

counties”]; Merz v. Board of Supervisors (1983) 147 Cal.App.3d 933, 939, disapproved

on another point in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th

559, 570, fn. 2 [project was “designed only to accommodate the anticipated . . . traffic”

from project previously approved]; City of Del Mar v. City of San Diego (1982) 133

Cal.App.3d 401, 412 [“ ‘if the [area plan] were not built as planned, residents would still

come to live in the area[ ]].’ ”)

SFLN insists the baseline analysis was inadequate because the City has failed to

establish that use of existing conditions would result in a misleading assessment of traffic

and water supply impacts. A determination that an existing conditions analysis would be

misleading or without informational value is primarily factual and must be upheld if

supported by substantial evidence. (Neighbors for Smart Rail, supra, 57 Cal.4th at

p. 457.) The EIR analyzes likely future conditions in the context of current ones and

concludes there will be no immediate increase in traffic or water demand in the shortterm.

SFLN’s disagreement with the EIR’s analysis is insufficient to establish that the

18

City abused its discretion in utilizing a future baseline. (San Francisco Baykeeper, Inc. v.

State Lands Com., supra, 242 Cal.App.4th at p. 219.) It would be absurd to ask the City

to hypothesize the impacts of a long-term housing plan taking hold immediately. When

an amendment to a general plan takes a long view of city planning, the analysis of the

amendment’s impacts should do so as well. (Pfeiffer v. City of Sunnyvale City

Council (2011) 200 Cal.App.4th 1552, 1573-1574.)

2. Land Use and Visual Resources Baseline

SFLN contends the EIR makes a further error in its baseline analysis by relying on

the maximum allowable density and height requirements, set forth in the Housing

Element as the baseline for land use and aesthetic impacts, instead of the existing

physical environment. Despite SFLN’s contrary assertion, the EIR does compare the

changes in the Housing Element to the existing environment, including existing height

limits and densities. For instance, the EIR describes existing land uses in the Inner and

Outer Sunset as “generally consist[ing] of low density residential (including a large

proportion of single-family detached houses) and small scale commercial uses.” “The

western portion of the Inner Sunset Planning District is comprised mainly of RH-

1[(House-One Family)] and RH-2 [(House-Two Family)] land uses with a strip of NC

[(Neighborhood-Commercial]) along Irving Street.” In Bayview/Hunters Point,

“industrial, residential and other buildings tend to have lower heights, rarely over three

stories.” The EIR describes existing land uses in the Richmond area as “mainly

comprised of RH-1 [(House-One Family, Detached Dwelling)], RH-2 [(House-Two

Family)], RM-I [(Mixed [Apartments and Houses])] and NC [(Neighborhood

Commercial)] concentrated along Geary Boulevard, Balboa Street, and Clement Street.”

Land uses in the Marina are described as “generally characterized by public lands and

open space, low density, and two- to three-story residential buildings (including a large

proportion of single family homes), mixed residential, and moderate scale neighborhood

commercial. Neighborhood Commercial land uses are located along Union Street,

Fillmore Street, and Lombard Street. Public land uses are prominent along the northern

19

border of the Planning District with Fort Mason, Marina Green, and the Aquatic Park

bordering the San Francisco Bay.”

Comparing the existing environment to the changes proposed in the 2009 Housing

Element, the EIR determines that “incremental increases in residential density in those

areas that permit residential uses would not substantially change the existing land use

character.” The EIR explains that adding residential units to areas with existing

residential uses would not result in a substantial change in land use that would be

considered a significant environmental impact.

SFLN insists that comparison of the Housing Element only to potential future

conditions discussed in the plan is improper. Citing San Joaquin Raptor Rescue Center,

supra, 149 Cal.App.4th 645, SFLN argues that the “baseline environmental setting must

be premised on realized physical conditions on the ground, as opposed to merely

hypothetical conditions allowable under existing plans.” (Id. at p. 658.) San Joaquin

Raptor Rescue Center, however, does not stand for the proposition that an EIR must

always compare a project’s impacts to the existing physical environment. Rather, San

Joaquin Raptor Rescue Center acknowledges that environmental conditions “ ‘may vary

from year to year and in some cases it is necessary to consider conditions over a range of

time periods.’ ” (Ibid.) In any event, San Joaquin Raptor Rescue Center is

distinguishable because it did not involve a program EIR. Indeed, SFLN’s approach runs

afoul of the tiering scheme expressly authorized by CEQA and its implementing

regulations. Under this approach, where a local agency has already prepared a program

EIR, it need not prepare a subsequent one in connection with later activities unless those

activities would have effects that the program EIR did not examine. (CEQA Guidelines,

§ 15168, subd. (c)(1).) The relevant question is whether new significant environmental

effects or a substantial increase in the severity of previously identified significant effects

will result from a substantial change to the project. (§ 21166; CEQA Guidelines,

20

§ 15162.) Comparison to theoretical impacts is generally necessary to answer this

question.3

The baseline is not hypothetical, (c.f. Communities for a Better Environment,

supra, 48 Cal.4th at p. 322), but based on observation of existing conditions. It is not

based on potential increases in housing. Instead projections of future development, to

measure likely impacts, derive from this baseline.

C. The EIR’s Analysis of Environmental Impacts

“An EIR shall identify and focus on the significant environmental effects of the

proposed project.” ([CEQA] Guidelines, § 15126.2, subd. (a).) A significant

environmental effect is “ ‘a substantial, or potentially substantial, adverse change in the

environment.’ ([]§ 21068; see also [CEQA] Guidelines, § 15382.) ‘ “Environment”

means the physical conditions which exist within the area which will be affected by a

proposed project, including land, air, water, minerals, flora, fauna, noise, objects of

historic or aesthetic significance.’ ([]§ 21060.5; see also [CEQA] Guidelines, § 15360.)”

(Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473,

fn. omitted.)

Even if a project’s impact may be “individually limited” this impact may be

“cumulatively considerable,” and an EIR “shall discuss” these impacts. (§ 21083,

subd. (b)(2); CEQA Guidelines, §§ 15065, subd. (a)(3), 15130, subd. (a).)

“ ‘[C]umulatively considerable’ means that the incremental effects of an individual

project are considerable when viewed in connection with the effects of past projects, the

effects of other current projects, and the effects of probable future projects.” (§ 21083,

subd. (b)(2); CEQA Guidelines, § 15065, subd. (a)(3).)



3

In supplemental briefing, SFLN asserts that the availability of various CEQA

exemptions for affordable housing projects “undermines the City’s reliance upon

deferring CEQA review until individual housing projects are proposed for approval.”

(See, e.g., § 21159.21; Gov. Code, § 65913.4.) The availability of CEQA exemptions is

not relevant to the disposition of the issues on appeal. In any event, the City would still

be required to comply with applicable zoning laws for any new housing projects. (See

§ 21159.21, subd. (a); Gov. Code, § 65913.4, subd. (a)(5).)

21

An agency decision to not identify an impact as significant is reviewed for

substantial evidence. (California Oak Foundation v. Regents of University of

California (2010) 188 Cal.App.4th 227, 281-282.)

1. Land Use and Visual Resource Impacts

SFLN challenges the EIR’s conclusion that the Housing Element would have a

less than significant impact on land use and visual resources. According to SFLN,

substantial evidence does not support the claim that potential impacts would be

“eliminated.” Elimination of potential impacts, however, is not the standard. Indeed,

“[a] less than significant impact does not necessarily mean no impact at all. [Citation.]”

(Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 899.)

Further, we bear in mind that we “ ‘may not set aside an agency’s approval of an EIR on

the ground that an opposite conclusion would have been equally or more reasonable.

[Citation.] A court’s task is not to weigh conflicting evidence and determine who has the

better argument when the dispute is whether adverse effects have been mitigated or could

be better mitigated.’ ” (Id. at p. 900.)

Here, the EIR discusses the Housing Elements impacts related to the City’s visual

character in two sections: land use and aesthetics. Starting with land use and planning,

the EIR concludes that changes in the Housing Element would not significantly “conflict

with any applicable land use plans, policy or regulations.” The EIR, however,

acknowledges that the changes to the Housing Element could result in impacts related to

conflicts with existing land use policy if they resulted in housing development not

consistent with the zoning and land use designations as outlined in governing land use

plans and/or the City’s Planning Code, to the extent those regulations help to avoid or

mitigate potential environmental impacts. The EIR notes that the Housing Element does

not amend any applicable area plan or planning coded designations, and provides that

future specific development would continue to be governed by applicable land use plans

and regulations.

Similarly, in its discussion of aesthetics, the EIR acknowledges that the Housing

Element policies that encourage increased density in certain areas could encourage

22

buildings that were taller and bulkier than their surroundings, and therefore could

potentially affect the visual character of an area. However, the EIR concludes that this

impact would be less than-significant for several reasons: the Housing Element does not

propose any increases in zoning controls, and it would be impossible to predict where

such buildings might be located, or what impact they might have at a particular location.

(Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1450.)

Moreover, under the 2009 Housing Element any new residential project would be

required to comply with the Planning Code’s Residential Design Guidelines and the

General Plan’s Urban Design Element, both of which are designed to prevent new

development that is out of scale or character from existing development, as well as San

Francisco Administrative Code Chapter 35, requiring, among other things, additional

review of a residential development’s consistency with an industrial area.

The EIR explains that impacts to existing character could also result if

development was out of scale with existing development in a neighborhood, or if the new

development is so different it would change the existing character of the areas. The EIR

also acknowledges some of the changes in the Housing Element policies could direct

residential growth to specific areas and promote increased densities in these areas.

However, the EIR identifies numerous policies that encourage the maintenance of

existing neighborhood character, thereby reducing any potential for new development to

have a significant impact on land use or visual resources. For example, Policy 11.1

promotes housing that respects existing neighborhood character. Policy 11.2 notes that

“[n]ew and substantially altered buildings should be designed in a manner that, conserve

and respect neighborhood character.” Policy 11.3 states: “Ensure growth is

accommodated without substantially and adversely impacting existing residential

neighborhood character.” Finally, Policy 11.5 cautions decision makers to “[e]nsure

densities in established residential areas promote compatibility with prevailing

neighborhood character.”

SFLN argues the Housing Element policies substantially weaken the 1990

Residence Element policies, and thus, the EIR’s claim, that the new policies would

23

address any neighborhood compatibility impacts, is without support. For example, SFLN

claims that the 1990 Residence Policy 12.4 used “objective language” calling for

“conserving” for existing neighborhood character, while the 2009 Housing Element calls

for merely “respecting” existing neighborhood character, which SFLN argues is a “lesser,

subjective standard . . . .” We disagree.

SFLN’s reliance on City of Redlands v. County of San Bernardino (2002) 96

Cal.App.4th 398 is misplaced. In City of Redlands, an initial study was deemed

inadequate where the county failed to cite any evidence in support of its conclusion that

the project would have no impact or less than a significant impact. (Id. at p. 408.)

Instead, the county merely checked the appropriate boxes and provided the same

evaluation for each environmental factor with slight variations. (Ibid.) In reversing, the

court characterized the county’s efforts as “ ‘a token observance of regulatory

requirements.’ ” (Id. at p. 409, fn. omitted.)

The same cannot be said of the City’s efforts in the instant case. The City

prepared an EIR and the EIR notes the differences in the language of the housing

policies, as well as notes the overall context of the policies within the Housing Element.

The EIR reasonably determined that, overall, the differences in the language did not, in

fact, result in a significant impact on the environment. We will not second-guess the

City’s interpretation of its own general plan policies. (See San Francisco Tomorrow v.

City and County of San Francisco (2014) 229 Cal.App.4th 498, 508.)

SLFN further argues that other 2009 Housing Element policies “substantially

weaken[]” the 1990 Residence Element, and as such the EIR’s claims that any

neighborhood compatibility impacts would be addressed are without support. Again, we

disagree. For example, SFLN claims that the 2009 Housing Element Policy 11.5 merely

“promote[s]” compatibility with neighborhood character by maintaining prevailing

density height and bulk patterns, whereas the 1990 Residence Element sought to

“conserve[ ]” neighborhood character (Policy 12-4), “respect[]” established architectural

characteristics (policy 2-1), and adopt specific zoning districts that “conform” to a

generalized residential land use and density plan. SFLN faults the 2009 Housing Element

24

Policy 11.3 for merely “defer[ing] to the prevailing height and bulk of the area” in

established residential areas, instead of conserving (1990 Residence Element Policy 12-4)

and maintaining existing densities (1990 Residence Element Policy 2-4). SFLN also

takes issue with 2009 Housing Element Policy 11.8, which only “considers” a

neighborhood’s character when integrating new uses, instead of conserving the character.

“[I]t is the province of elected city officials to examine the specifics of a proposed

project to determine whether it would be ‘in harmony’ with the policies stated in the plan.

[Citation.] It is, emphatically, not the role of the courts to micromanage these

development decisions. Our function is simply to decide whether the city officials

considered the applicable policies and the extent to which the proposed project conforms

with those policies, whether the city officials made appropriate findings on this issue, and

whether those findings are supported by substantial evidence. [Citations.]” (Sequoyah

Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 719-720.)

Here, the EIR reasonably concludes that overall, the 2009 Housing Element would

not have a substantial impact on visual resources or neighborhood character. The 2009

Housing Element did not change allowable land uses or increase allowable building

heights; also most growth would occur in adopted plan areas where housing was

determined to be appropriate. The EIR explains that by encouraging residential uses in

areas where they are already allotted and existing would not substantially change the land

use character of an area.

The EIR concludes that adding housing within mixed-use areas4 would not result

in substantial changes to land use character. Finally, as mentioned any new residential

project would be required to comply with comply with applicable zoning and planning

laws.



4 The EIR includes two maps illustrating that the majority of neighborhoods in the City

are located in close proximity to commercial and mixed-use districts.

25

2. Traffic Impacts

SFLN asserts that the EIR failed to disclose potentially significant traffic impacts

of three other projects that were under environment review at the same time as the

Housing Element. The EIR indicates that Treasure Island, Candlestick Point-Hunters

Point and Parkmerced were (then) ongoing redevelopment plans or development

agreements, and were currently undergoing environmental review. The EIR identifies

these three major projects as comprising approximately half of the pipeline projects.

Contrary to SFLN’s contention, the City was not required to study these in-thepipeline

projects as they are already subject to their own CEQA and EIR process. In fact,

another panel of this Division upheld the Treasure Island EIR (Citizens for a Sustainable

Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036,

1043) and our colleagues in Division Two of this judicial district upheld the Parkmerced

EIR (San Francisco Tomorrow v. City and County of San Francisco (2014) 229

Cal.App.4th 498, 505).

This case is not akin to San Franciscans for Reasonable Growth v. City and

County of San Francisco (1984) 151 Cal.App.3d 61, cited by SFLN. There, the city

simultaneously pursued four downtown high-rise projects and produced EIRs for each

project that unlawfully ignored the likely impacts of the other three. (Id. at pp. 67-68, 80-

81.) That case did not involve tiering development projects atop broader land use

planning, which is what the City has done here. In no sense has the City “ ‘precluded

informed decisionmaking and informed public participation.’ ” (City of Long Beach v.

Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.) In fact, the pipeline

projects were included in the cumulative 2025 traffic conditions. As mentioned, the EIR

analyzes 60 intersections throughout San Francisco (including in the challenged

development areas), and compares existing traffic conditions with projected traffic in

2025. In this respect, the Housing Element EIR is distinguishable from the EIR in City

of Hayward v. Board of Trustees of California State University (2015) 242 Cal.App.4th

833, cited by SFLN. There, the EIR made no attempt to determine existing usage of

26

adjacent parklands or the estimated increased usage, and provided no information as to

the overall capacity of neighboring parks. (Id. at p. 859.)

Here, the EIR justifies its conclusion of no significant impact, explaining that

although some policies could result in certain areas experiencing greater levels of

congestion, policies that encourage a reduction in vehicle miles traveled—such as

locating housing near jobs and transit—could improve projected 2025 conditions over

what would be expected without those policies.

3. Water Supply Impacts: Long-Term Supply and Recirculation

SFLN argues that the EIR failed to disclose water supply uncertainty and to

adequately analyze long-term water supply impacts. SFLN claims the speculative nature

of available water is exacerbated by new information that became available after the

Draft EIR was circulated for review. SFLN maintains this new information required

recirculation of the EIR.

a. The EIR Adequately Analyzed Water Supply Impacts

SFLN argues that the EIR fails to disclose water supply uncertainty and

restrictions. SFLN asserts that the Housing Element is “the necessary first step towards

significant increases in the City’s population and subsequently the City’s water supply

demand.” However, as discussed the City’s projected population increase is not due to

the changes in the Housing Element. The Housing Element serves as the policy basis for

approving projects with increased residential density as a growth-accommodating rather

than growth-inducing measure.

The EIR reasonably relies on the SFPUC’s WSAS, which concludes that water

demand from projected population increases through 2030 would not exceed supply. The

WSAS and EIR note that after 2030, demand could exceed supply in a multi-year dry

event,5

and that if it did, the SFPUC would impose water rationing.



5 Multiple dry-year event is defined as a three-year hydrological condition of below

normal rainfall per the Urban Water Management Planning Act.

27

The EIR compares the changes in the Housing Element policies with the 1990

Residence Element policies, and determines that they would have sufficient water supply

from “existing entitlements and resources and [that no] new or expanded [ ] entitlements”

would be necessary. The EIR concludes that the changes in the Housing Element

policies would not significantly impact water demand for several reasons: the WSAS

indicates that water would be available to meet demand, including projected population

growth through 2030; that the changes in the Housing Element policies were not

substantial, particularly when the policies were taken as a whole; that denser

development would have less water demand than single family homes; that new

development would be required to comply with numerous water-saving requirements,

such as the City’s Green Building Ordinance and Green Landscaping Ordinance; and that

other Housing Element policies ensure that new housing is supported by adequate

infrastructure, including Policy 12.3 (ensure new housing is supported by the public

infrastructure) and 13.4 (promote “green” development in housing).

The EIR acknowledges that future projects would provide an additional 10 million

gallons per day (mgd) of water under the SFPUC’s Water Supply Improvement Program

(“WSIP”). Although not yet realized, these projects and water sources are “considered

secure,” as the WSIP is backed by a $4.6 billion bond measure approved by the voters in

2001. All the projects identified as supplying the additional water were funded and

approved programmatically in the WSIP EIR, and were in various stages of

implementation.6

The WSAS also reasonably assumed demand would be reduced due to

conservation measures, as water demand has historically decreased over time, due to

improvements in plumbing codes and retrofits of water infrastructure.



6 To the extent, SFLN faults the Housing Element EIR for failing to include in the

administrative record the WSIP EIR referenced in the SFPUC Memorandum, any error

was not prejudicial. The omission of the WSIP EIR did not preclude informed decisionmaking

and informed public participation, or otherwise thwart the statutory goals of the

EIR process. (Neighbors for Smart Rail, supra, 57 Cal.4th at p. 463.)

28

The EIR’s analysis of water supply impacts was appropriate for a general plan or

program EIR, in that it provided decision makers with sufficient analysis to consider the

environmental consequences of the revisions. (Cleveland National Forest Foundation,

supra, 17 Cal.App.5th at p. 426.) The Housing Element, as a policy document for

implementing change, is not required to establish a likely source of water. As the

California Supreme Court emphasized in Vineyard Area Citizens for Responsible

Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 434, “the burden of

identifying likely water sources for a project varies with the stage of project approval

involved; the necessary degree of confidence involved for approval of a conceptual plan

is much lower than for issuance of building permits.” (Italics added.) Contrary to

SFLN’s contention, the EIR was not required to analyze long-term water supply impacts

past 2030. “The ultimate question under CEQA . . . is not whether an EIR establishes a

likely source of water, but whether it adequately addresses the reasonably

foreseeable impacts of supplying water to the project. If the uncertainties inherent in

long-term land use and water planning make it impossible to confidently identify the

future water sources, an EIR may satisfy CEQA if it acknowledges the degree of

uncertainty involved, discusses the reasonably foreseeable alternatives—including

alternative water sources and the option of curtailing the development if sufficient water

is not available for later phases—and discloses the significant foreseeable environmental

effects of each alternative, as well as mitigation measures to minimize each adverse

impact. (§ 21100, subd. (b).)” (Vineyard Area Citizens for Responsible Growth, Inc. v.

City of Rancho Cordova, supra, 17 Cal.App.5th at p. 434.) The EIR satisfies CEQA.

The WSAS acknowledged the possibility of a post-2030 water supply during a multiple

year dry event. In the event of a post-2030 shortfall, the EIR notes that the SFPUC has in

place a reduction plan to balance supply and demand. The SFPUC’s increased water

rationing plan has already received final review and has been determined to pose no

significant environmental impacts.

In sum, the EIR adequately addresses the reasonably foreseeable impacts of

supplying water to the future housing proposed by the Housing Element. The City

29

reasonably relied on the information in the WSAS, and the EIR’s finding that impacts to

water would be less than significant is supported by substantial evidence.

b. Recirculation Was Not Required

SFLN claims that significant new information was disclosed in a March 14, 2011

memorandum from the SPUC (SPUC Memorandum), which required recirculation. The

SPUC Memorandum, issued after publication of the Final EIR, but prior to certification,

updated the WSAS, indicating that the possible water deficit anticipated after 2030 could

come about sooner (between 2013 and 2018) due to a decreased amount of water

available from three creeks.7



As discussed, the EIR and the WSAS already acknowledge that demand might not

meet supply after 2030 during multiple dry-year events. The EIR also identifies options

to address this shortfall, specifically rationing, which has been determined not to have

significant environmental impacts. Also, in the Final EIR the Planning Department

comprehensively addresses the SPUC Memorandum and its proposed options to address

any potential shortfalls. The Planning Department noted that the WSAS was based on a

model that included certain assumptions for water demand and supply, and that the (then)

current water demand was lower than the assumptions in the model, as was the use of the

available supply. For example, the model assumed 91.8 mgd but current demand was

81.8 mgd, and deliveries of 227 mgd were below projected 265 mgd. The Planning

Department concluded that if this lower-than-projected demand level persists, then any

potential shortfalls from restrictions in water supply from the three creeks, would not

affect the SFPUC’s ability to meet the adopted WSIP supply objectives through 2018.

The Planning Department further noted that even if the supply could not meet demand

prior to 2030 in multiple dry-year event, the SFPUC would institute slightly increased

rationing, which did not have any environmental impacts.



7 Due to various dam projects, a potential decrease in available supply for the

Alameda, San Mateo, and Calaveras Creeks was projected.

30

SFLN’s disagreement with the Final EIR’s analysis is insufficient to establish that

the City abused its discretion in determining that recirculation was not required.8

4. Impacts of Serving Regional Goals

SFLN argues that the EIR fails to analyze the impacts of serving regional goals.

The stated goals of the Regional Livability Footprint Project, which is a component of

ABAG’s Land Use Policy Framework for the San Francisco Bay Area, are “to develop a

preferred land use pattern, provision of adequate affordable housing, improved mobility,

environmental protection, and open space preservation.” The EIR states that the policies

of the Housing Element would not conflict with the fundamentals of this framework. The

EIR explains that many of the Housing Element policies “would serve to encourage the

mission of this plan . . . by placing housing near transit; as well as by encouraging

affordable housing, sustainability, and infill development.”

According to SFLN, the EIR fails to analyze “the potential that serving regional

goals could induce a substantial increase in population and a significant increase in new

housing in the City.” However, as discussed the Housing Element is not a growth

inducing plan. Rather, the Housing Element serves a growth accommodating plan for the

inevitable population increase.

SFLN contends the EIR makes only vague references as to how the Housing

Element would “serve” regional strategies without explaining the nature of the regional

strategies or how serving such strategies could affect the City’s land use “pattern” or how

they would be carried out. SFLN asserts that by designating certain areas as Priority

Development Areas (PDAs), the City was required to re-designate the land uses and the

“ ‘densities/development intensities,’ ” which included various properties along the

eastern and southeastern waterfront. SFLN maintains that the PDA designation

represents the impacts of pursuing regional goals that reach far beyond encouraging



8 Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, cited

by SFLN does not compel a contrary conclusion. That case did not address the issue of

whether recirculation was required. Rather, there the issue was a “fragmented”

administrative record that was “ ‘scattered here and there.’ ” (Id. at p. 941.)

31

growth near transit. The EIR analyzes regional impacts where appropriate. Specifically,

the EIR explains that PDAs are “locally-identified, infill development opportunity areas

within existing communities . . . . To be eligible to become a PDA, . . . ha[s] to be within

an existing community, near existing or planned fixed transit or served by comparable

bus service, and planned for more housing.” It is estimated that PDAs comprise less than

5 percent of the Bay Area’s total land area. While this represents a small portion of the

region’s land area, the proposed PDAs could accommodate over half of the Bay Area’s

projected housing growth to 2035, mostly at relatively moderate densities.

SFLN also faults the EIR for failing to “discuss and analyze significant changes in

public policy regarding regional sustainability that will significantly [a]ffect the San

Francisco environment.” Although regional sustainability may have some relevance in

determining the significance of a physical change, the purpose of the EIR is to analyze

the impacts of the Housing Element, not regional public policy. (See CEQA Guidelines,

§ 15064, subd. (e) [economic and social changes resulting from project are not treated as

significant effects on environment].)

Here, the EIR identified the impacts of its policies encouraging residential

development along transit corridors that is consistent with ABAG’s regional smart

growth strategies. SFLN’s disagreement with this analysis is insufficient to establish that

the City abused its discretion in determining that the Housing Element is consistent with

the Land Use Policy Framework and impacts related to land use conflicts are less than

significant. CEQA is not intended to resolve disagreements on public policy

issues between a public agency that approves a project and those who oppose it.

(E.g., Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1018

[courts “must not overturn an agency’s discretionary decisions and substitute their

opinions as to what constitutes wise public policy”].)

D. Alternatives Analysis

SFLN contends that the City abused its discretion regarding the EIR’s

identification and consideration of alternatives. First, SFLN contends that the EIR failed

to adequately consider feasible reduced-density alternatives. Second, SFLN argues that

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the City failed to consider additional mitigation measures to lessen the Housing

Element’s impact on transit. 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 proposed alternatives and additional mitigation measures. We consider

these arguments in turn.

1. Range of Alternatives

“CEQA requires that an EIR, in addition to analyzing the environmental effects of

a proposed project, also consider and analyze project alternatives that would reduce

adverse environmental impacts. [Citations.] The CEQA Guidelines state that an EIR

must ‘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 . . . .’ [Citation.]” (In re Bay-Delta, supra, 43

Cal.4th at p. 1163.)

However, an EIR need not consider every conceivable alternative to the project.

(In re Bay-Delta, supra, 43 Cal.4th at p. 1163.) “ ‘In determining the nature and scope of

alternatives to be examined in an EIR, the Legislature has decreed that local agencies

shall be guided by the doctrine of “feasibility.” ’ [Citation.] CEQA defines ‘feasible’ as

‘capable of being accomplished in a successful manner within a reasonable period of

time, taking into account economic, environmental, social, and technological factors.’

([]§ 21061.1; see also [CEQA Guidelines,] § 15364.) [¶] ‘There is no ironclad rule

governing the nature or scope of the alternatives to be discussed other than the rule of

reason.’ ([CEQA Guidelines,] § 15126.6, subd. (a).) The rule of reason ‘requires the

EIR to set forth only those alternatives necessary to permit a reasoned choice’ and to

‘examine in detail only the ones that the lead agency determines could feasibly attain

most of the basic objectives of the project.’ (Id., § 15126.6, subd. (f).) An EIR does not

have to consider alternatives ‘whose effect cannot be reasonably ascertained and whose

implementation is remote and speculative.’ (Id., § 15126.6, subd. (f)(3).)” (In re BayDelta,

supra, 43 Cal.4th at p. 1163.)

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In addition to analyzing a range of reasonable alternatives, the EIR must also

examine a no project alternative. “The purpose of describing and analyzing

a no project alternative is to allow decisionmakers to compare the impacts of approving

the proposed project with the impacts of not approving the proposed project. . . .”

(CEQA Guidelines, § 15126.6, subd. (e)(1).)

An examination of an EIR’s alternatives analysis must begin with the project’s

objectives, for it is these objectives that a proposed alternative must be designed to meet.

(In re Bay-Delta, supra, 43 Cal.4th at p. 1163; CEQA Guidelines, § 15124, subd. (b).)

The EIR identifies the following primary objectives of the proposed Housing Element:

“(1) Provide a vision for the City’s housing and growth management through 2014; [¶]

(2) Maintain the existing housing stock to serve housing needs; [¶] (3) Ensure capacity

for the development of new housing to meet the RHNA at all income levels; [¶] (4)

Encourage housing development where supported by existing or planned infrastructure,

while maintaining existing neighborhood character; [¶] (5) Encourage, develop and

maintain programs and policies to meet projected affordable housing needs; [¶] (6)

Develop a vision for San Francisco that supports sustainable local, regional and state

housing and environmental goals; and [¶] (7) Adopt a housing element that substantially

complies with California housing element law as determined by the California

Department of Housing and Community Development.”

In response to comments about the Draft EIR, the City states that the “EIR

analyzes a reasonable range of alternatives in that the decision-makers could adopt the

2004 Housing Element, the 2009 Housing Element, the 2004 Housing ElementAdjudicated,

the Intensified Housing Element, or the No Project Alternative.” The City

maintains that the EIR identifies and describes a range of five different alternatives. In

reality, however, the EIR analyzes three alternatives and compares those alternatives to

the 2004 and 2009 Housing Elements. Alternative A is continued reliance on the 1990

Residence Element and represents the status quo, also referred to as the No Project

Alternative. Alternative B is the 2004 Housing Element—Adjudicated, which is

described as the 2004 Housing Element without certain policies stricken by the trial court

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pending the preparation of the EIR. Alternative C is the 2009 Housing ElementIntensified.

Three other alternatives were considered but rejected from further

consideration during the scoping phase.

The EIR considers each alternative in depth, and compares each to the 2004 and

2009 Housing Elements. SFLN, however, insists that the EIR analyzes only one

alternative that is distinct from the mandatory No Project alternative. According to

SFLN, Alternative B is not actually a separate alternative, but just another representation

of the status quo or another No Project alternative because the City has enforced the

remaining policies of the 2004 Housing Element since this Court’s decision on the 2004

Housing Element. As such, SFLN contends that Alternative C is the only true alternative

to the project, but it was “ ‘not designed to reduce significant impacts’ ” as required by

CEQA.

To the extent SFLN would have us conclude, as a matter of law, that consideration

in the EIR only of a proposed project and a no project alternative is inadequate, we reject

that contention. As explained in Mount Shasta Bioregional Ecology Center v. County of

Siskiyou (2012) 210 Cal.App.4th 184 (Mount Shasta), in response to a similar

claim, “there is no rule specifying a particular number of alternatives that must be

included. ‘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.’ ” (Mount Shasta, supra, 210

Cal.App.4th at p. 199.)

Thus, it is incumbent on SFLN as the appellant to show either that in this instance

the selected alternatives did not amount to a reasonable range of alternatives or that some

particular potentially feasible alternative was excluded. (Mount Shasta,

supra, 210 Cal.App.4th at p. 199.) SFLN has not met its burden. SFLN has not

demonstrated that the range of alternatives in the EIR is manifestly unreasonable or

deprives decision-makers and the public of the information they need to evaluate the

project and its impacts.

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The sole significant impact identified in the EIR is a potential cumulative impact

on transit. The EIR anticipates that the California (northwest) and Subway (southwest)

transit corridors will operate near Muni’s transit capacity in 2025. Also, although the

proposed Housing Element would not add any new trips, it contains policies that

encourage housing near existing transit lines to accommodate the inevitable population

growth. The EIR notes that these policies could potentially increase transit ridership

above Muni’s capacity utilization standard of 85 percent, and that possible insufficient

funding of the San Francisco Metropolitan Transit Agency (SFMTA) may not allow for

expanded transit service, thus resulting in a potentially significant impact on the City’s

transit system.

The Housing Element EIR explains that Alternative A (the No Project alternative)

would have no significant impact on transit, but would have a significant impact on

historic resources. Alternative B (2004 Housing Element-Adjudicated) is deemed to have

a reduced, but still significant, impact on transit, and no significant impact on historic

resources. Finally, Alternative C (2009 Housing Element-Intensified) is considered to

have an increased impact on transit, compared to either the 2004 Housing Element or the

2009 Housing Element. The EIR identifies Alternative B as the environmentally superior

alternative. These alternatives allowed decision makers a meaningful context to weigh

the project’s objectives against its environmental impacts. This is exactly what an EIR’s

alternatives analysis is supposed to do.

Watsonville Pilots Association v. City of Watsonville (2010) 183 Cal.App.4th 1059

(Watsonville Pilots), relied on by SFLN, does not compel a contrary conclusion. 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

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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 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 EIR contains extensive information and analysis

regarding the alternatives. The EIR discussed how both Alternative A (No

Project/Continuation of 1990 Residence Element) and Alternative B (2004 Housing

Element-Adjudicated) would meet most of the Housing Element’s objectives, such as

ensuring affordable housing, maintaining existing housing stock, and meeting state

requirements. 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 & 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].)

Equally unpersuasive is SFLN’s argument that the EIR erroneously failed to

consider its so-called “RHNA-focused reduced-density” alternatives. SFLN proposed an

alternative aimed at meeting the RHNA targets for income levels and a “No Additional

Rezoning” alternative. In response to comments about the DEIR, the City explained that

SFLN’s proposed alternatives did not add anything meaningful to the analysis, why they

would not reduce the project’s potential cumulative transit impacts, and why they were

infeasible.

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Specifically, the City explained that while affordable housing is the focus of the

Housing Element, it has conducted environmental review of the potential physical

environmental impacts resulting from such housing types. The City has consistently

addressed the matter of income levels as a social issue, not an environmental one. As

such, analysis of projected income level distribution proposed by SFLN would be

speculative and beyond the scope of the EIR. (See CEQA Guidelines, § 15064 (e)

[economic and social issues not environmental issues]; see also Marin Mun. Water Dist.

v. KG Land California Corp. (1991) 235 Cal.App.3d 1652, 1661-1662.)

Additionally, substantial evidence supports the EIR’s conclusion that the proposed

“No Additional Rezoning Alternative” was infeasible. This alternative would discourage

additional rezoning of the City’s “established” neighborhoods and focus on encouraging

development in two of the City’s major projects: Candlestick Point-Hunters Point

Shipyard and Treasure Island. According to SFLN, these areas would be built from the

ground up with new and adequate infrastructure, allowing them to accept a higher rate of

density. It is beyond dispute that these major projects exist within the borders of

established neighborhoods and cannot be accomplished without rezoning.

Equally without merit is SFLN’s contention that the proposed alternatives would

avoid or substantially lessen the transit impacts. According to SFLN, the “easiest way to

reduce future stress on the City’s transit network is to reduce the number of future

residents dependent on the transit system by limiting increases in housing density along

overcrowded transit lines.” First, future residents are inevitable. Second, the potentially

significant cumulative transit impact is projected to occur at the California and Subway

Muni screenlines as a result of Housing Element Policies that promote increased use of

the City’s transit network and is not a rezoning issue.

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.

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2. Feasibility of Proposed Mitigation Measures

SFLN further argues that CEQA required the EIR to analyze additional mitigation

measures to lessen or avoid the project’s impact on transit. Specifically, SFLN proposed

mitigation measures that would (1) impose impact fees to fund transit improvements, and

(2) limit residential density along transit lines with insufficient capacity.

CEQA requires an EIR to describe feasible mitigation measures that would reduce

any of the project’s significant environmental impacts. Any mitigation measure must be

fully enforceable, and must be consistent with all applicable constitutional requirements.

(CEQA Guidelines, §15126.4, subd. (a).) An EIR may properly decline to consider a

proposed mitigation measure if substantial evidence supports the EIR’s determination

that the proposed mitigation measure would not reduce a significant impact, or that the

proposed mitigation measure is infeasible, because for example, it is not enforceable or it

may violate the constitution. (CEQA Guidelines, §15126.4, subd. (a).)

The Housing Element EIR considered potential mitigation measures and

determined that none of them were feasible to eliminate the project’s potential significant

impact on transit. The only way to eliminate the potential impact on transit would be to

increase the number of transit vehicles or reduce transit travel time. Increased SFMTA

funding is uncertain, and cannot be guaranteed. The EIR recommends approval of all

transit efficiency measures under consideration, but it is uncertain to what degree those

measures would decrease transit travel time. For these reasons, the EIR deems these

potential mitigation measures infeasible under CEQA.

The EIR addresses SFLN’s proposed mitigation measures in its Responses to

Comments. Specifically, the City noted that it already implements a transit impact

development fee for all commercial uses, and those fees are paid to SFMTA to improve

local transit services. SFLN’s suggestion is nothing more than what the EIR already

concludes could mitigate the transit impact, but was infeasible because it cannot be

guaranteed. Similarly, SFLN’s suggestion to limit residential density is simply a

permutation of Alternative A, the “no project” alternative. Because substantial evidence

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supports the EIR’s assessment of SFLN’s proposed mitigation measures, CEQA does not

require any further evaluation of them.

The judgment is affirmed. Respondent to recover its costs on appeal.