court of appeal of the state of california the sierra …

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION TWO

THE SIERRA CLUB, et aL, Case No. A140$91

Plaintiffs/Petitioners, San Francisco County SuperiorCourt No. CPF-12-5 12566

vs.

CITY AND COUNTY OF SANFRANCISCO, et al.,

Defendants/Respondents,

CITY FIELDS FOUNDATION, et aL,

Intervenor/Respondent.

JOINT RESPONDENTS’ BRIEF

The Honorable Ten L. Jackson

DENNIS J. HERRERA, State Bar #139669City AttorneyJAMES M. EMERY, StateBar#153630VICTORIA WONG, State Bar#214289Deputy City Attorneys1 Dr. Canton B. Goodlett Place, Rm. 234San Francisco, California 94102Telephone: (415) 554-4628Facsimile: (415) 554-4757E-Mail: jim.emerysfgov.org

Attorneys for DefendantsCITY AND COUNTY OF SANFRANCISCO, et al.

Counsel continued on next page

if RESPONDENTS’ BRIEF n:\land\112014\130406\00969502.doc

CASE NO. A140891

G. SCOTT EMBLIDGE, State Bar# 121613ERIN REDING, State Bar #252691Moscone Emblidge Sater & Otis220 Montgomery Street, Suite 2100San Francisco, CA 94104Telephone: (415) 362-3599Facsimile: (415) 362-2006E-Mail: emblidgemosconelaw.com

redingmosconelaw.com

Attorneys for IntervenorCITY FIELDS FOUNDATION

JT RESPONDENTS’ BRIEF n:\land\1i2014\130406\00969502.docCASE NO. A140891

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

There are no interested entities or persons to list in this Certificate

per California Rules of Court, Rule 8.208.

LI Interested entities or persons are listed below:

Name of Interested Entity or Person Nature of Interest1.2.3.4.

Please attach additional sheets with person or entity information ifnecessary.

Dated: November 5, 2014

DENNIS J. HERRERACity AttorneyJAMES M. EMERYVICTORIA WONGDeputy City Attorneys

By: Is! James M. EmeryJAMES M. EMERY

Printed Name: JAMES M. EMERYDeputy City Attorney

Address: 1 Dr. Canton B. Goodlett Place, Room 234San Francisco, CA 94102

State Bar #: State Bar #153 630

Party CITY AND COUNTY OF SAN FRANCISCO, et al.Represented:

iT RESPONDENTS’ BRIEF n:\land\li2014\130406\00969502.doc

CASE NO. A140891

CERTIFICATE Of INTERESTED ENTITIES OR PERSONS

There are no interested entities or persons to list in this Certificate

per California Rules of Court, Rule 8.20$.

[1 Interested entities or persons are listed below:

Name of Interested Entity or Person Nature of Interest

5.6.7.8.

Please attach additional sheets with person or entity information ifnecessary.


G. SCOTT EMBLIDGEERIN REDINGMoscone Emblidge Sater & Otis

By:/sI G. Scott EmblidgeG. SCOTT EMBLIDGE

Printed Name: G. SCOTT EMBLIDGEMoscone Emblidge Sater & Otis

Address: 220 Montgomery Street, Suite 2100San Francisco, CA 94104

State Bar #: State Bar #121613

Party CITY FIELDS FOUNDATIONRepresented:

JT RESPONDENTS’ BRIEF n:\Iand\1i2014\130406\009695024oc

CASE NO. A140891

TABLE OF CONTENTS

TABLE Of AUTHORITIES iii

INTRODUCTION 2

BACKGROUND 6

I. SAN FRANCISCO’S ENVIRONMENTAL REVIEWOF THE BEACH CHALET PROJECT 6

II. PROCEEDINGS BELOW 8

APPEALABILITY AND STANDARD OF REVIEW 10

DISCUSSION 11

I. THE ER PROPERLY DETERMINED, BASED ONSUBSTANTIAL EVIDENCE, THAT SBR INFILLWILL HAVE NO SIGNIFICANTENVIRONMENTAL IMPACT (FIRST CEQACOUNT) 11

A. The Scientific Literature In The AdministrativeRecord Supports The ER’s Determination 12

B. SBR Turf Does Not Violate Petitioners’Fictitious CEQA Toxicity Threshold 15

1. The BAAQMD’S Thresholds ForRegional Air Pollutants Are NotRelevant To An Analysis Of SBR Turf 16

2. The EIR Addresses Risks From Dioxins,PAHs And Carbon Black 20

IL CEQA DOES NOT REQUIRE MITIGATION OFLESS-THAN-SIGNIFICANT IMPACTS (SECONDCEQA COUNT) 21

III. THE EIR PROPERLY ANALYZED AREASONABLE RANGE OF ALTERNATIVES,AND SUBSTANTIAL EVIDENCE SUPPORTS THEPLANNING COMMISSION’S APPROVAL OF THEBEACH CHALET PROJECT (SIXTH CEQACOUNT) 21

A. The EIR Considered The Reasonable Range OfAlternatives That CEQA Requires 22

JT RESPONDENTSt BRIEF i n:Mand\1i2014\130406\00969502.doc

CASE NO. Al 40891

B. Substantial Evidence Supported San Francisco’sInfeasibility Findings Rejecting The WestSunset Alternative 27

IV. THE TRIAL COURT CORRECTLY DETERMINEDCORRESPONDENCE WITH INDIVIDUAL BOARDMEMBERS WAS NOT WITHIN THE SCOPE OFTHE ADMTNI$TRATWE RECORD, BECAUSETHE DOCUMENTS WERE NOT BEFORE THEDECISION MAKING BODY AS A WHOLE 34

V. THE TRIAL COURT CORRECTLY SUSTAINEDSAN FRANCISCO’S DEMURRER TO SIERRACLUB’S CEQA CLAIM ALLEGING SANFRANCISCO ABDICATED ITS INDEPENDENTJUDGMENT. (FOURTH CEQA COUNT) 42

A. Petitioners’ Fourth CEQA Count Failed ToState A Claim 42

B. Petitioners’ Fourth CEQA Count Was Time-Barred 45

1. The Fourth CEQA Count Was Based OnDifferent Facts Than Those In TheOriginal Petition 46

2. The Fourth CEQA Count Did Not SeekRecovery For The Same Injury As TheOriginal Petition 47

3. The Fourth CEQA Count Did Not Relyon the Same Instrumentality as theOriginal Petition 48

C. The Trial Court Properly Exercised ItsDiscretion When It Denied Leave To AmendThe Fourth CEQA Count 48

CONCLUSION 49

CERTIFICATE OF COMPLIANCE 50

if RESPONDENTS’ BRIEF ii n:’land\li2014\130406\00969502.doc

CASE NO. A140891

TABLE Of AUTHORITIESState CasesAlliancefor the Protection ofthe Auburn Community Environment v.

County ofPlacer(20 13) 215 CaLApp.4th 25 45

Association ofIrritated Residents v. County ofMadera(2003) 107 Cal.App.4th 1383 11

Barrington v. A. IL Robins Co.(1985) 39 Cal.3d 146 46

Burger v. County ofMendocino(1975) 45 Cal.App.3d 322 32

Ca%fornia Clean Energy Commitee v. City of Woodland(2014) 225 Cal.App.4th 173 32, 33,44

California Native Plant Soc. v. City ofSanta Cruz(2009) 177 Cal.App.4th 957 22, 28, 33

Calfornia Oak foundation v. County of Tehama(2009) 174 CaLApp.4th 1217 39

California Teachers Assn. v. San Diego Community College Dist.(1981) 28 Cal.3d 692 38

Centerfor Biological Diversity v. County ofSan Bernardino(2010) 185 Cal.App.4th 866 32

Cheriy Valley Pass Acres and Neighbors v. City of3eaumont(2010) 190 Cal.App.4th316 23

Citizensfor Open Government v. City ofLodi(2012) 205 Cal.App.4th 296 23, 39, 41

Citizens ofGoleta Valley v. Board ofSupervisors(1990) 52 Cal.3d 553 22, 44

City offaiifield v. Superior Court(1975) 38

City ofMaywood v. Los Angeles Unfled School Dist.(2012) 208 Cal.App.4th 362 19

iT RESPONDENTS’ BRIEF lii n:’Jand\.li2014\130486\00969502.doc

CASE NO. A140891

Consolidated Irr. Dist. v. City ofSelma(20 12) 204 Cal.App.4th 187 40

Coronet Manufacturing Co., v. Superior Court(1979) 90 CaLApp.3d 342 48

County ofOrange v. Superior Court(2003) 113 Cal.App.4th 1 40

Defend the Bay v. City ofIrvine(2004) 119 Cal.App.4th 1261 28, 33

Environmental Protection Information Center v. CalVornia Dept. offorestry and Fire Protection(2008) 44 CaI.4th 459 14, 38,41

Eureka Citizensfor Responsible Government v. City ofEureka(2007) 147 Cal.App.4th 357 39,40

federation ofHillside and Canyon Associations v City ofLos Angeles(2000) 83 CaLApp.4th 1252 23

Flanders Foundation v. City ofCarmel-by-the-Sea(2012) 202 Cal App 4th 603 33

Friends ofLa Vna v County ofLos Angeles(1991) 232 Cal App 3d 1446 43

Garrison v Board ofDirectors(1995) 36 Cal App 4th 1670 45

Habitat and Watershed Caretakers v. City ofSanta Cruz(2013) 213 Cal.App.4th 1277 26

Hayward Area Planning Ass ‘n v. City ofHayward(2005) 128 Cal.App.4th 176 37

Jones v. Regents ofthe University ofCalifornia(2010) 183 Cal.App.4th 818 23

Laurel Heights ImprovementAssn. v. Regents of University ofCa4fornia(1988) 47 CaL3d 376 19

Lotus v. Department ofTransportation(2014) 223 Cal.App.4th 645 17

if RESPONDENTS’ BRIEF iv n:\land\li2014\130406\00969502.doc

CASE NO. Al 40891

McDowell v. Watson(1997) 59 CaLApp.4th 1155 .38

Mira Mar Mobile Community v. City ofOceanside(2004) 119 CaLApp.4th 477 22, 23

People v. County ofKern(1976) 62 Cal.App.3d 761 44

Pointe San Diego Residential Community, LP. v. Procoplo, Coiy,Hargreaves & Savitch, LLP(2011) 195 Cal.App.4th 265 46

Pointe San Diego, supra,195 Cal.App.4th at p. 277 46, 47

Preservation Action Council v. City ofSan Jose(2006)141 CaLApp.4th 1336 32

Quiroz v. Seventh Ave. Center(2006) 140 Cal.App.4th 1256 47

Residents Ad Hoc Stadium Com. v. Board ofTrustees(1979) 89 CaLApp.3d 274 23,27

Rialto Citizensfor Responsible Growth v. City ofRialto(2012) 208 Cal.App.4th 899 5,27

Rowland v. Superior Court(1985) 171 CaLApp.3d 1214 47

San Francisco Bay Assn. v. San Francisco Bay Conservation etc. Com.(1992) 10 Cal.App.4th 908 23

Save our Peninsula Committee v. Monterey County Board ofSupervisors(2001) 87 Cal.App.4th 99 12

Sequoyah Hills Homeowners Assn. v. City ofOakland(1993) 23 Cal.App.4th 704 28

Sierra Club v. County ofNapa(2004) 121 Cal.App.4th 1490 8,28,42

St. Vincent Schoolfor Boys, Catholic Charities CYO v. City ofSan Rafael(2008) 161 Cal.App.4th 989 37

if RESPONDENTS! BRIEF V n:\land\112014\130406\00969502.doc

CASE NO. A140891

Stockton Citizensfor Sensible Planning v. City ofStockton(2010) 48 Cal.4th 4$ 45

$undstrom v. County ofMendocino(1988) 202 CaLApp.3d 296 44

Sunset Drive Corp. v. City ofRedlands(1999) 73 Cal.App.4th 215 43

VineyardArea Citizensfor Responsible Growth, Inc. v. City ofRanchoCordova(2007)40 Cal.4th 412 19

Watsonville Pilots Ass ¶n v. City of Watsonvitle(2010) 183 CaLApp.4th 1059 25, 26, 27

Western States Petroleum Assn. v. Superior Court(1995) 9 Cal.4th 559 43

State Statutes & CodesPublic Resources Code § 15084 (e) 42, 43

Public Resources Code § 15090 (a) 42, 43

Public Resources Code § 21002 22

Public Resources Code § 21061 19

Public Resources Code § 21167 (c) 45

Public Resources Code § 21167.6 (e) 35, 37, 39

Public Resources Code § 21167.6 (e)(3) 35

Pubilc Resources Code § 21167.6 (e)(6) 36



Public Resources Code § 21167.6 (f) 37

Public Resources Code § 21802.1(c) 42,43

RegulationsCEQA Guidelines § 15064.7 16

CEQA Guidelines § 15112 (a) 45if RESPONDENTS’ BRIEF Vi n:\Ianthli2Ol4\130406\00969502.doc

CASE NO. A140891

CEQA Guidelines § 15126.6 (a) .5, 21, 22

CEQA Guidelines § 15126.6 (b) 21

CEQA Guidelines § 15384 (a) 11

if RESPONDENTS’ BRIEF Vii n:\land\112014\130406\00969502.doc

CASE NO. Al 40891

INTRODUCTION

San Francisco’s exhaustive environmental review of the Beach

Chalet soccer field renovation project generated an administrative record of

more than 52,000 pages. These soccer fields are doubtless the most

carefully vetted soccer fields in the country. CEQA worked in this case just

like it is supposed to. San Francisco evaluated the potential environmental

impacts of the project, identified any significant impacts, identified and

evaluated alternatives that would achieve most project objectives while

reducing significant impacts, received public comments, and ultimately

made a well informed policy decision through a public process to proceed

with the project.

In partnership with Intervenor City Fields Foundation (“the

Foundation”), San Francisco has, since 2006, added 14 synthetic turf

athletic fields in seven parks throughout San Francisco. (Administrative

Record (“AR”) 3526; see generally AR 3523-3538.)’ This has made fields

safer for players and has saved about 1.5 million gallons of water per field.

(AR 3527; see also AR 3960, 3971.) Most importantly, it has added

approximately 37,000 new hours ofplay capacity annually to San

Francisco’s public soccer fields, resulting in 1,800 more San Francisco kids

playing soccer each year. (AR 3528; see also AR 3960, 3970, 3971.)

1 On September 14, 2014, after the completion of the administrativerecord in this case, two new turf fields opened for play at the Minnie andLovie Ward Recreation Center in San Francisco’s Oceanviewneighborhood, without controversy, bringing the number of turf fields inSan Francisco up to 16. (See http://sfrecpark.org/event/celebrate-the-newathietic-field-at-minnie-lovie-ward!.)

JT RESPONDENTS’ BRIEf 1 n:\land\1i2014\130406\00969502.doc

CASE NO. A140891

The 14 existing synthetic turf fields in San Francisco use the same

infill material that petitioners challenge as unsafe in this case. This infihl

material must comply with San Francisco’s rigorous, self-imposed

standards. (AR 786-790.) Actual water testing from the existing synthetic

turf fields in San Francisco demonstrates that storm water runoff from these

fields meets applicable drinking water health and safety standards. (AR

753-759.) Given petitioners’ complete silence in connection with the seven

previous projects, their hyperbolic claims of grave safety hazards warrant

skepticism.

San Francisco’s CEQA process for the Beach Chalet Athletic Fields

Renovatien project was unimpeachable. San Francisco’s 368-page draft

EIR identified an unavoidable sigmficant impact on histonc resources, and

mcorporated mitigation measures mto the project to reduce otherwise

significant impacts to biological resources and exposure to hazardous

materials. The draft EIR analyzed four alternative projects in depth,

including the “no project” alternative. In addition, the draft EIR identified

three alternatives that did not receive extensive analysis, because these

three alternatives failed to mitigate the project’s significant impact on

historic resources.

After publishing the draft EIR, San Francisco conducted public

hearings and received voluminous written comments. San Francisco

careflilly analyzed and responded to all public comments, incorporating its

responses to comments in a 1758-page fmal EIR. After another public

hearing, San Francisco’s Planning Commission certified the fmal EIR. The

Planning Commission also made detailed fmdings that the alternatives

identified in the fmal EIR were infeasible because they failed to meet

project objectives. The Planning Commission issued a statement of

JT RESPONDENTS’ BRIEF 2 n:iandUi2O14\13O4O6\OO9695O2.docCASE NO. A140891

overriding considerations and approved the project, imposing mitigation

measures to eliminate significant effects on biological resources and to

ensure there would be no dangerous exposure to hazardous materials. After

receiving and considering further input from the public, the Board of

Supervisors rejected petitioners’ appeal, reaffirming the Planning

Commission’s certification of the final ETR.

Petitioners, who disagree with the City’s policy decision to upgrade

the four soccer fields near the Beach Chalet in Golden Gate Park,

commenced this CEQA action. After a two-thy merits hearing, the

Superior Court determined San Francisco’s Environmental Impact Report

met all CEQA requirements, upheld the project approval and dismissed the

CEQA petition. Likewise, The California Coastal Commission conducted a

hearing, heard petitioners’ objections, and issued the necessary Coastal

Commission permit for the Beach Chalet project.

On appeal, petitioners persist in their challenge to the EIR. First,

petitioners claim the EIR failed to disclose the turf material exceeds

“CEQA toxicity standards.” (AOB, at pp. 15-31.) But there is no such

thing as a “CEQA toxicity standard.” Not only do petitioners rely on a non

existent standard, but they misrepresent the environmental studies in the

administrative record. (AOB, at pp. 23-29.) Many of the studies

petitioners cite (which are contained in the administrative record)

affirmatively support the EIR’s conclusion that the turf does not present a

significant health hazard. (See, e.g., AR 17720-17866.)

Next, petitioners fault the EIR for failing to analyze the so-called

“hybrid alternative.” (AOB, at pp. 32-36.) This proposal that petitioners

advocated during the administrative process calls for installing grass at

Beach Chalet and synthetic turf at West Sunset Playground. (Id. at p.33.)

if RESPONDENTS’ BRIEF 3 n:\land\112014U30406\00969502.doc

CASE NO. A140$91

The FIR’s four alternatives included locating the fields at West Sunset

Playground or installing grass at Beach Chalet. (AR 811-821.) Petitioners’

“hybrid alternative” simply repackages alternatives afready analyzed in the

EIR. The FIR’s alternatives thus easily satisfy the “rule of reason” that

requires the FIR to “consider a reasonable range ofpotentially feasible

alternatives that will foster infonned decision making and public

participation.” (CEQA Guidelines, § 15126.6, subd. (a).) In any event,

petitioners’ “hybrid alternative” was in fact considered in the public

discussion and decision making.

In an apparent contradiction, after asserting CEQA required the EIR

to consider the “hybrid alternative,” petitioners next assert CEQA required

San Francisco to select the West Sunset alternative, one of four alternatives

that the EIR analyzed in detail. (AOB, at pp. 36-39.) A lead agency,

however, may reject an alternative as infeasible if it cannot meet project

objectives. (Rialto Citizensfor Responsible Growth v. City ofRialto (2012)

208 Cal.App.4th 899, 949.) Petitioners’ argument reflects a policy

disagreement with San Francisco and cannot undermine the infeasibility

fmdings. Petitioners made their policy arguments to San Francisco’s

Planning Commission, Board of Appeals and Board of Supervisors, and to

the California Coastal Commission. Each of those policy bodies voted in

favor of the project.

Petitioners next challenge the trial court’s order defining the scope of

the administrative record. Petitioners insist coffespondence submitted to a

single member of San Francisco’s Board of Supervisors (and not available

to or considered by the policy making body as a whole) should have been

included in the administrative record. (AOB, at pp. 3 9-42.) The trial

court’s sensible limitation on the scope of the administrative record was

iT RESPONDENTS’ BRIEF 4 n:’iand\li2O14U3O4O6\009695024oc

CASE NO. A140$91

well within its discretion. Petitioners make no attempt to demonstrate how

the absence of any one-on-one communications with individual members of

the Board of Supervisors prejudiced them.

Finally, Petitioners challenge the trial court’s ruling sustaining San

Francisco’s demurrer to petitioners’ Fourth CEQA Count. (AOB, at pp. 42-

46.) The Fourth CEQA Count alleged the foundation’s role in developing

the Beach Chalet project meant that San Francisco abdicated its

independent judgment in its environmental review of the project.

Petitioners’ theory makes no sense. Petitioners would immediately

invalidate every private development project in California, as well as

dedicated gifts to improve public lands. The Foundation proposed and

offered to donate funds to support a project to upgrade the Beach Chalet

soccer fields. San Francisco, as it does for all CEQA projects, then

conducted an environmental review of the proposed project, exercising its

independent judgment. The Fourth CEQA Count does not allege the

contrary.

Furthermore, petitioners’ assertion of their Fourth CEQA Count in

their First Amended Petition was untimely. The Fourth CEQA Count was

legally defective, and no amendment could have possibly cured the fatal

defects. The trial court properly sustained San Francisco’s demurrer to the

Fourth CEQA Count, without leave to amend.

For these reasons, set forth more fully below, this Court should

affirm the trial court’s judgment.

BACKGROUNDI SAN FRANCISCO’S ENVIRONMENTAL REVIEW Of THE

BEACH CHALET PROJECT.

On February 1,2011, San Francisco’s Planning Department issued a

Notice of Preparation/Initial Study for the Beach Chalet Athletic FieldsJT RESPONDENTS’ BRIEF 5 n:\Iand\li2014\130406\00969502.docCASE NO. A140891

Renovation project, analyzing the potential environmental impacts of the

proposed project. (AR 138-141; AR 2796-2895.) Based on the Initial

Study, as well as detailed analyses and reports prepared to support the

analysis, San Francisco’s Planning Department issued a draft FIR on

October 26, 2011. (AR 525-892.) The Planning Department received

written public comment during the public comment period between

October 26, 2011 and December 12, 2011, and the Planning Commission

held a public hearing on the EIR on December 1, 2011, where the

Commissioners heard 4Y2 hours ofpublic testimony concerning the project.

(AR 925; AR 4311-4493.) The Planning Department then prepared the

Comments and Responses document to address environmental issues raised

by comments received during the public comment period and at the public

hearing for the EIR. The Comments and Responses document contained

additional analysis and reports that verified and expanded upon the EIR

contents. The Planning Department prepared revisions to the text of the

FIR in response to comments received or based on additional information

that became available during the public review period, and corrected errors

inthe FIR. (AR 1028-2795.)

The Planning Commission certified the Final FIR on May 24, 2012.

(AR 56-74.) Also on May 24, 2012, the Planning Commission adopted

mitigation measures to eliminate any potential impact on biological

resources or exposure to hazardous materials. The Planning Commission

made infeasibility findings and issued a statement of overriding

considerations, rejecting the alternatives as infeasible and adopting the

project as amended. (Ibid.) On June 12, 2012, petitioners appealed the

Planning Commission’s certification of the FFIR to the Board of

Supervisors. The Board called for public comment, and after a public

if RESPONDENTS BRIEF 6 n:\land\112014\130406\00969502.doc

CASE NO. A140$91

hearing, on July 10, 2012, affirmed the Planning Commission’s certification

of the FEIR. (AR 81-86.)

II. PROCEEDINGS BELOW.

On October 12, 2012, petitioners commenced this action, asserting

three CEQA Counts. The original petition challenged the EIR’s conclusion

that the turf material posed no significant toxic risk, asserted the FIR was

inadequate for failure to analyze alternative turfmaterials, and asserted that

CEQA required San Francisco to select an off-site alternative to the Beach

Chalet project. (Superior Court File (“SCF”) 26-67.) On November 29,

2012, the trial court granted the Founthtion’s motion to intervene, which

petitioners had opposed. (SCF 340-342.)

Petitioners’ First Amended Petition, filed February 5,2013, included

six CEQA counts and a Second Cause ofAction alleging violations of the

Public Records Act. Petitioner Sierra Club first appeared in this action with

the First Amended Petition. (SCF 3 86-477.) San Francisco and the

Foundation demurred to the First Amended Petition, because the newly

pled CEQA counts were time barred, and because the Fourth CEQA Count,

alleging San Francisco failed to exercise its independent judgment, failed to

state a cause of action. (SCF 603-640.) The trial court sustained the

demurrer to the Fourth CEQA Count, without leave to amend. (SCF 1319-

1320.)

With leave of court, on June 7, 2013, petitioners filed a Second

Amended Petition (SCF 1621-1715), to which San Francisco and the

Foundation demurred. ($CF 2431-2447.) The trial court sustained without

leave to amend the demurrer to petitioners’ Seventh CEQA Count and

granted the motion to strike portions of the Second Amended Petition.

if RESPONDENTS’ BRIEF 7 n:\land\1i2014\130406\00969502.doc

CASE NO. A140891

(SCF 3106-3107; 3415-3417.) Petitioners do not appeal any aspect of the

trial court’s order on the Second Amended Petition.

Petitioners filed their Third Amended Petition on August 9, 2013,

four days after merits briefmg had been completed. (SCF 3159-3255.) San

Francisco answered the Third Amended Petition four days later, on August

13, 2014. (SCF 3264-3300.)

In the meantime, while the pleadings were being adjudicated, the

parties litigated the scope of the administrative record. Dissatisfied with

San Francisco’s production of approximately 52,000 pages of doôuments

related to the project, including over 35,000 pages of emails, petitioners

sought to take depositions of Foundation representatives, the General

Manager of San Francisco’s Recreation and Parks Department, RecPark’s

Director of Policy And Public Affairs, and person(s) most knowledgeable

at RecPark, to examine them about email management practices. At the

hearing on the Foundations protective order motion, petitioners withdrew

their deposition notice for the Foundation representatives. (SCF 1316.)

The trial court subsequently quashed the RecPark depositions. (SCF 2696-

2698.) Petitioners do not appeal these discovery orders.

Having failed to obtain the depositions they wanted, petitioners

demanded San Francisco identify and collect all electronic and paper files

of individual members of the Board of Supervisors related to the Beach

Chalet soccer fields, beginning February 1,2011. (SCF 2957-3010.) The

trial court directed the parties to file simultaneous briefs on the scope of the

administrative record (SCF 2286-2311), and determined that the

administrative record should not include documents in the files of

individual members of the Board of Supervisors that predated the Board’s

consideration of the matter and that were not before the decision making

rr RESPONDENTS’ BRIEF 8 n:’dand\li2014\130406\00969502.doc

CASE NO. A140891

body as a whole. Rather, the Board of Supervisor documents in the

administrative record were properly limited to the clerk’s official file,

especially in light of the parties’ agreement at the outset of the case to so

limit the record. (SCF 3011-3013.) Petitioners have appealed the trial

court’s ruling on the scope of the administrative record.

Afler hearing two days of argument on the merits (SCF 3352-3353,

3376-3377), the trial court issued its order on the merits, upholding the EIR

and San Francisco’s project approval, and dismissing petitioners’ CEQA

writ petition. ($Cf 3627-3640.)

Petitioners now appeal the trial court’s rulings that (1) substantial

evidence in the administrative record supports the EIR’s conclusion that the

turf fill material has no significant health effect on players; (2) the EIR

considered a reasonable range of alternatives; (3) CEQA did not require

San Francisco to select the off-site alternative; (4) CEQA did not require

the administrative record in this case to include files of individual members

of the Board of Supervisors, and (5) Petitioners’ Fourth CEQA Count failed

to state a claim.

APPEALABILITY AND STANDARD OF REVIEW

San Francisco and the Foundation agree petitioners ified a timely

appeal from an appealable order.

San Francisco and the Foundation further agree this Court reviews

de novo the Superior Court’s decision to uphold San Francisco’s EIR for the

project. The questions before this Court are whether substantial evidence in

the administrative record supports the factual determinations on which the

ER relies, and whether San Francisco failed to proceed in the manner

required by law. This Court should give deference to San Francisco’s

iT RESPONDENTS’ BRIEF 9 n:\land\li2014\130406\00969502.docCASE NO. A140891

factual determinations supporting the EIR. (CEQA Guidelines, § 15384,

subd. (a).)

San Francisco and the Foundation agree this Court reviews de novo

the trial court’s order sustaining the demurrer to Petitioners’ Fourth CEQA

Count, and this Court reviews for an abuse of discretion the trial court’s

denial of leave to amend.

DISCUSSION

I. THE EIR PROPERLY DETERMINED, BASED ONSUBSTANTIAL EVIDENCE, THAT SBR INfILL WilLHAVE NO SIGNIFICANT ENVIRONMENTAL IMPACT(FIRST CEQA COUNT).

“A court’s proper role in reviewing a challenged EIR is not to

determine whether the ETR’s ultimate conclusions are correct but only

whether they are supported by substantial evidence in the record and

whether the EIR is sufficient as an information document.” (Association of

Irritated Residents v. County ofMadera (2003) 107 CaLApp.4th 1383,

1391.) The trial court properly determined “the EIR’s review of the

available scientific evidence demonstrates that substantial evidence

supports the fmding that the SBR infill material presents no significant risk

to health.” (SCF 3635 [Order, p. 8].)2 Petitioners try to avoid the

substantial evidence standard by claiming the EIR is per se defective for

failing to disclose “there is no dispute that SBR turf exceeds the CEQA

tOxicity standard by more than double.”

Petitioners’ effort fails for several reasons. First, far from there

being “no dispute” about the “toxicity” of SBR turf there is substantial

evidence that the turf—widely used throughout the United States by

hundreds of thousands of athletes every month—does not present a health

2 The styrene butadiene rubber (“SBR”) turf infill material comesfrom recycled tires.

if RESPONDENTS’ BRIEF 10 n:\Iand\1i2014\130406\00969502.doc

CASE NO. A140$91

risk. Second, there is no such thing as a “CEQA toxicity standard” for SBR

turf, and petitioners compare apples (air pollution standards) and oranges

(studies regarding ingestion of $BR crumbs) to support their claims. Third,

the EIR disclosed—and discussed at length—aft the evidence on which

Petitioners base their claims of “toxicity”; the EIR simply disagreed with

the reckless conclusions petitioners continue to draw from the total body of

evidence.

A. The Scientific Literature In The Administrative RecordSupports The EIR’s Determination.

“Substantial evidence” means “enough relevant information and

reasonable inferences from this information that a fair argument can be

made to support a conclusion, even though other conclusions might also be

reached.” (CEQA Guidelines, § 15384, subd. (a); see Save our Peninsula

Committee v. Monterey County Board ofSupervisors (2001) 87

CaLApp.4th 99, 139.) The EIR exhaustively examined the extensive

literature and data concerning synthetic turf and $BR infill, and

appropriately concluded any environmental impacts would be less than

significant.

Specifically, the EIR—conducted in 2011—exhaustively reviewed the

extensive scientific articles and studies regarding turf fields, including:

• A 2007 study by the California Integrated Waste Management

Board, which itsdfreviewed 46 studies (AR 749-751, 775-777);

• A 2010 report by five Connecticut agencies (AR 752-753, 784-

786);

• A 2009 report regarding a series of studies by the New York

State Department ofEnvironmental Conservation (AR 784);

JT RESPONDENTS’ BRIEF 11 n:Mand’112014U30406\00969502.doc

CASE NO. A140891

• A 2010 study by California Department of Resources Recycling

and Recovery (AR 782-784);

• A 2009 study by California’s Office of Environmental Health

Hazard Assessment, which reviewed five other studies (AR 782);

• A 2009 study of four existing synthetic turf fields in San

Francisco. (AR 790-791);

• A 2007 joint study by the French Agency for Environment and

Energy Management (ADEME) and a French governmental

agency responsible for regulating the use ofused tires

(ALIAPUR). (AR 751);

• A 200$ study and recommendations by the Synthetic Playfield

Task Force, established by the San Francisco Recreation and

Parks Commission, which reviewed numerous other studies (AR

747-749, 777-782);

• A report by the Bainbridge Island (Washington) Metro Parks and

Recreation District and School District (AR 786); and

• A two-year storm water monitoring study conducted by the

Department during the 2009-2010 and 2010-2011 rainy seasons

of two existing synthetic turf fields in San Francisco (AR 753-

759).

Study after study concluded SBR turfpresents no significant health risks.

Addressing alleged inhalation risks, the 2009 New York study

concluded “the findings do not indicate that these fields are a significant

source of exposure to respirable particulate matter” (AR 19220); the 2010

Connecticut study concluded “the use of outdoor and indoor artificial turf

fields is not associated with elevated health risks” (AR 18025); and the

2010 California study that concluded “there is no public health concern

if RESPONDENTS’ BRIEF 12 n:\land\li2014\130406\00969502.doc

CASE NO. A140891

related to particulate matter or heavy metals associated with. . . the

synthetic fields.” (AR 783.)

Likewise, the very study on which petitioners rely for their argument

that SBR turf presents an ingestion risk finds the opposite. A 2007 study

by Californi&s Office of Environmental Health Assessment (OEHHA),

finds that if a child ate ten grams of the crumb rubber “this complex

mixture of chemicals does not represent a serious health hazard” (AR

17782) and “the increased cancer risk would still be below the di minimis

[sicj risk level.” (AR 17789.)

Moreover, the EIR discussed RecPark’s own synthetic turf standards.

The RecPark Commission approved these standards on October 2, 2008,

based on recommendations of the Commission’s Synthetic Playflelds Task

force. (AR 748.) These standards establish maximum levels for soluble

chromium, lead, and zinc for SBR and non-SBR infill materials that are

linked to the environmental screening levels established by the Regional

Water Quality Control Board (RWQCB) for groundwater that is a current

or potential drinking water source (AR 759-760) and by both the RWQCB

and the California Environmental Protection Agency for classifying

hazardous waste and screening contaminant levels in soil. (AR 786-790.)

In accordance with the Commission’s adopted recommendations, RecPark

will not purchase synthetic turf that exceeds these standards. (Ibid.)

Petitioners ignore the importance of RecPark’s standards. But the

ER and the trial court understood their importance. Studies that fmd some

health risk from older types of synthetic turf that do not meet RecPark’s

specifications are simply not relevant to whether turf that does meet these

specifications would have a significant environmental impact.

if RESPONDENTS’ BRIEF 13 n:\landMi2Ol4\130406\00969502.docCASE NO. A140891

After a 26-page analysis of the scientific literature and data relative

to potential water quality impacts, a 31-page analysis of the scientific

literature and data relative to hazards, hazardous materials, and air quality

impacts, and a review of the studies cited by petitioners, the FIR concluded

use of synthetic turfwould create “less than significant” environmental

effects. (AR 747-772, 799-893)

That should be the end of the discussion about the adequacy of the

FIR in terms of the environmental effects of synthetic turf

B. SBR Turf Does Not Violate Petitioners’ Fictitious CEQAToxicity Threshold.

By mixing and conflating several alarming-sounding terms—”CEQA

Toxicity Standard,” “CEQA significance threshold,” and “Acute Hazard

Index”—petitioners assert the EIR turned a blind eye to the toxic nature of

SBR turf. Here are petitioners’ assertions:

“The City failed to proceed in a manner required by law

because it failed to disclose that there is no dispute that SBR

turf exceeds the CEQA Toxicity Standard by more than

double.”

. “The expert California air pollution agency for the Bay Area,

BAAQMD, has established a CEQA significance threshold

for AHI (Acute Hazard Index) of 1.0.”

(AOB, atp. 15)

The first term petitioners use is simply made-up; there is no such

thing as a “CEQA Toxicity Standard.” The second term—CEQA

significance threshold—while not fabricated, is not relevant here. CEQA

encourages public agencies to formally adopt “thresholds of significance

that the agency uses in the determination of the significance of

JT RESPONDENTS’ BRIEF 14 m\land\li2014\130406\00969502.doc

CASE NO. Al40891

environmental effects. A threshold of significance is an identifiable

quantitative, qualitative or performance level of a particular environmental

effect, non-compliance with which means the effect will normally be

determined to be significant by the agency and compliance with which

means the effect normally will be determined to be less than significant.”

(CEQA Guidelines, § 15064.7.) It is undisputed San Francisco has not

adopted any threshold of significance relevant to this dispute.

The third term—Acute Hazard Index—is not found in CEQA. In fact,

no reported case contains the both the term “CEQA” and the phrase “Acute

Hazard Index.”

1. The BAAQMD’$ Thresholds For Regional AirPollutants Are Not Relevant To An Analysis OfSBR Turf.

Intentionally ignoring the distinctions among these terms, petitioners

attempt to construct an argument that (1) because a study found if a child

ate ten grams of SBR crumb rubber that child’s ingestion of zinc might

exceed a hazard index of 1.0; and (2) because the Bay Area Air Quality

Management District (BAAQMD) has supposedly established an air quality

threshold of significance of 1 .o; therefore (3) SBR turf exceeds the non

existent CEQA Toxicity Threshold. The flaws in petitioners’ argument are

obvious and many.

BAAQMD’s standards relate to whether a “project’s individual

emissions would be cumulatively considerable” in terms of greenhouse

gases. (AR 16847.) Those standards have nothing to do with the possible

The document petitioners cite (AR 16848) in support of their claimthat BAAQMD “has established a CEQA significance threshold.. . of 1.0”disproves their claim. It shows BAAQMD has adopted a wide range ofthresholds depending on the specific “criteria air pollutants and precursors(regional).”

JT RESPONDENTS’ BRIEF 15 n:\land\112014U30406\00969502.doc

CASE NO. A140891

health hazards of SBR turf by ingestion or dennal contact, which is the

impact petitioners allege here. But petitioners compare a supposed

BAAQMD index of 1.0 for air pollutants with a hazard index for ingestion

of crumb rubber. (AOB, at pp. 15, 17.)

Petitioners assert “the EIR itself relies on the BAAQMD CEQA

significant threshold of 1.0 for AHI.” (AOB, at p. 18.) For this

proposition, petitioners cite page 774 of the record, which explains the

concepts of health risk evaluation and hazard risk levels. Nowhere on that

page, or in that section, does the EIR discuss BAAQMD or its air pollution

standards. The EIR’s discussion of BAAQMD’s standards is related to

generation of greenhouse gases from activities such as “additional vehicle

trips and an increase in energy use.” (AR 862.) The ER goes on to

explain the project will not impact San Francisco’s ability to comply with

its greenhouse gas reduction goals and, as such, “the proposed project

would result in a less than significant impact with respect to GHG

emissions.” (AR 869.)

Petitioners rely on Lotus v. Department ofTransportation (2014)

223 Cal.App.4th 645 for the proposition that, while a lead agency may

adopt its own CEQA significant thresholds, when it does not, it “therefore

is required to apply” other “duly adopted” thresholds. (AOB, at pp. 19-

20.) Lotus is irrelevant here because San Francisco is not ignoring any

“duly adopted” threshold of significance. Rather, it is using BAAQMD’s

standards for their intended purposes—project-related air pollution impacts—

rather than misapplying those standards to an analysis of the supposed

ingestion or inhalation risks of SBR turL

Petitioners’ statements regarding the ingestion risk of SBR turf are

also misleading. First, nothing in the EIR’s discussion of ingestion of

if RESPONDENTS’ BRIEF 16 n:\Iand\112014\130406\00969502.doc

CASE NO. A140891

hazardous materials concludes that an acute hazard index of 1.0 equals a

“significant” environmental effect under CEQA. Second, the EIR does not

find any ingestion risk is “more than double” a “CEQA significance

threshold.” (AOB, at p. 15.) Here is what the EIR actually says:

In the two studies that addressed ingestion, the highestnoncancer risk identified was 6.9 based on the total metalsconcentrations, but the hazard index would be reduced to 1.8when zinc is excluded. The study stated that at most,gastrointestinal distress would occur from the ingestion ofzinc at the calculated level. When tested using a gastricsimulation, which is considered more representative of actualconditions, the hazard index was 2.2, sufficiently close to ahazard index of 1, and deemed not to represent a serioushealth hazard by the 2007 OEHHA study.

(AR 1671 [emphasis added).)

The source of the 2.2 number is a 2007 study by California’s Office

of Environmental Health Assessment (OEHHA), entitled “Evaluation of

Health Effects of Recycled Waste Tires in Playground and Track Products.”

(AR 17720-17866.) The 2.2 number comes from a section of the report

that studies the possible hazards of ingesting tire crumbs.4 Contrary to

petitioners’ rash claim of an acute health hazard, the study finds if a child

ate ten grams of the crumb rubber “this complex mixture of chemicals does

not represent a serious health hazard” (AR 17782) and “the increased

cancer risk would still be below the di minimis risk level.” (AR 17789.)

This portion of the study concludes: “All calculated exposure doses [from

22 chemicals] were at or below the corresponding screening value,

suggesting a low risk of adverse noncancer health effects”; and the

“increased risk of cancer. . . is below the di minimis risk level.”

4Moreover, this study relates to an older generation of crumb rubberproducts that almost certainly would not meet RecParks’ standards for SBRturf

iT RESPONDENTS’ BRIEF 17 n:Mand\Ji2O14U3O4O6\00969502.doc

CASE NO. A140891

In short, the very documents on which petitioners rely to argue SBR

turf is a significant hazard under CEQA—documents authored not by San

Francisco but by California’s Office of Environmental Health Assessment—

reach the opposite conclusion. The turf even if a child swallowed a large

quantity, “does not to represent a serious health hazard.”

Petitioners submitted a letter from a scientist who reached a different

conclusion than OEHHA, the EPA, the California Department of Resources

Recycling and Recovery, and the San Francisco Playfields Task Force,

among others. (See AOB, at pp. 16-17, 23; see also AR 7920-7921.) The

fact that one expert looked at the data and disagreed with the conclusions of

other experts does not negate the substantial evidence supporting the ER’s

conclusion. “It is also well established that disagreement among experts

does not make an EIR inadequate.” (Laurel Heights Improvement Assn. v.

Regents of University ofCa4fornia (1988) 47 Cal.3d 376, 409; see City of

Maywood v. Los Angeles Unified School Dist. (2012) 208 CatApp.4th 362,

425-426.)

Moreover, the inclusion in the EIR of this letter and all the other

information petitioners and their supporters submitted, further insulates the

EIR from attack. “The fundamental purpose of an ER 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.” (Vineyard

Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova

(2007) 40 Cal.4th 412,428, quoting Pub. Resources Code § 21061.) Here

the ER provided the decision makers and the public with a wealth of

information about this project in general, and SBR turf in particular,

including petitioners’ health concerns. At the end of the day, San Francisco

considered that information, certified the EIR and approved the project.

iT RESPONDENTS’ BRIEF 18 n:\land\1i2014\130406\00969502.doc

CASE NO. A140891

CEQA served its purpose and this Court should not allow petitioners to

misuse CEQA to derail a project they simply do not like.

2. The Effi Addresses Risks From Dioxins, PAHs AndCarbon Black.

Petitioners further criticize the EIR for failing to address risks

associated with dioxins, polycyclic aromatic hydrocarbons (PARs) and

carbon black in SBR turf. In fact, the DEIR addresses PAHs and carbon

black, and studies evaluating the risks they pose. (AR 776-777, 782

[PAHs]; AR 773, 775 [carbon black]) It does not address dioxins because

no study, including the one petitioners cite, suggests any dioxin risk

associated with SBR tail

In addition, the FIR’s thorough response to comments addresses

these substances. (AR 1669-1678.) Moreover, when petitioners raised

these same concerns during their appeal to the Board of Supervisors, the

Planning Department again provided a detailed review ofpetitioners’

“evidence.” (AR 3663-3666.) In its response, the Planning Department

noted petitioners “misrepresent[edj the EIR as having not conducted a

complete assessment of available hazardous material studies, and cite[d]

other studies.” (AR 3663.) The Planning Department examined each study

petitioners submitted-most of which evaluated exposure risks in an

industrial workplace setting or an indoor athletic field, rather than an

outdoor athletic field setting where inhalation risks would decrease

dramatically—and found “these studies would not change the EIR

significance determinations, either because they are consistent with studies

afready evaluated in the EIR, or because the studies were in fact evaluated

in the EIR.” (AR 3663-3666.)

JT RESPONDENTS’ BRIEF 19 n:\land\li2014\130406\00969502.doc

CASE NO. A140891

While petitioners may disagree with the EIR’s conclusions regarding

these substances, substantial evidence supports the FIR’s conclusions.

IL CEQA DOES NOT REQUIRE MITIGATION OF LESS-THAN-SIGNIFICANT IMPACTS (SECOND CEQA COUNT).

Petitioners assert San Francisco abused its discretion by failing to

consider an alternative to the SBR inflil. But an FIR need only present

alternatives to the proposed project that “would avoid or substantially

lessen any of the significant effects of the project. .. .“ (CEQA Guidelines,

§ 15126.6, subd. (a).) In fact, CEQA requires “the discussion of

alternatives shalt focus on alternatives to the project or its location which

are capable of avoiding or substantially lessening any significant effects of

the project. . . .“ (liL §15126.6, subd. (b) [emphasis added].) Thus, not

only did CEQA not require the ER to analyze an alternative to the SBR

infill once it had determined that no significant environmental effects

would result from its use; to the contrary, CEQA mandated the EIR focus

the alternatives analysis on the significant environmental effects that would

result from the project-nmely the significant and unavoidable impact on

historic resources. As discussed in more detail below, the FIR’s

alternatives analysis was thorough, objective, and appropriately addressed a

reasonable range ofpotentially feasible alternatives to the project.

III. THE EIR PROPERLY ANALYZED A REASONABLERANGE OF ALTERNATIVES, AND SUBSTANTIALEVIDENCE SUPPORTS THE PLANNiNG COMMISSION’SAPPROVAL OF THE BEACH CHALET PROJECT (SIXTHCEQA COUNT).

On appeal, petitioners present two mutually inconsistent challenges

to the EIR’s alternatives analysis. First, petitioners assert CEQA required

the EIR to analyze petitioners’ preferred “hybrid alternative,” because “the

FIR analyzed only infeasible alternatives that fail to achieve the Project

if RESPONDENTSt BRIEF 20 n:Jand\li2O14\13O4O6\OO9695O2.doc

CASE NO. A140891

objectives.” (AOB, at p. 33.) Then, having acknowledging that none of the

EIR’s alternatives were feasible or met project objectives, petitioners insist

CEQA required San Francisco to select one of them, namely the West

Sunset alternative. (Ii at pp. 36-39.)

To the contrary, as the trial court recognized, the EIR presents a

robust analysis of a reasonable range of alternatives, easily satisfying

CEQA’s mandate. Furthermore, petitioners misstate the law regarding

infeasibility fmdings and overriding considerations. Substantial evidence

supports San Francisco’s determination that the West Sunset alternative was

infeasible because it failed to meet project objectives, and overriding

considerations support adoption of the project notwithstanding the project’s

significant and unavoidable impact on historic resources.

A. The EIR Considered The Reasonable Range OfAlternatives That CEQA Requires.

CEQA requires that an EIR identify a reasonable range of

alternatives that would feasibly attain most of the basic project objectives

and avoid or substantially lessen any significant impact. (Pub. Resources

Code, § 21002; CEQA Guidelines, § 15126,6 subd. (a); Citizens ofGoleta

Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 566.) The “rule of

reason” governs the range of alternatives, which must be evaluated in light

of the nature of the project, its impacts, relevant policies and other material

facts. (CEQA Guidelines, § 15126.6, subd. (a); Citizens ofGoleta Valley,

supra, 52 Cal.3d at pp. 565-566; Caflfornia Native Plant Soc. v. City of

Santa Cruz (2009) 177 Cal.App.4th 957, 980; Mira Mar Mobile

Community v. City ofOceanside (2004) 119 CaLApp.4th 477,487.) Courts

must uphold the agency’s discretion to choose alternatives for study unless

the choices made are “manifestly unreasonable.” (federation ofHillside

if RESPONDENTS’ BRIEf 21 n:\land\li2014\130406\00969502.doc

CASE NO. Al 40891

and Canyon Associations v. City ofLos Angeles (2000) 83 CaLApp.4th

1252, 1265; see Citizensfor Open Government v. City ofLodi (2012) 205

Cal.App.4th 296, 3 12-13.)

CEQA does not require an EIR to analyze multiple permutations of

the alternatives that are presented when “their advantages and

disadvantages [do] not substantially differ from the [alternatives

presented].” (San Francisco Bay Assn. v. San francisco Bay Conservation

etc. Com. (1992) 10 CaLApp.4th 908, 922.) Nor does CEQA require that

an EIR “discuss every possible permutation of alternatives.” (Jones v.

Regents ofthe University ofCatfornia (2010) 183 Cal.App.4th 818, 828;

accord Cherry Valley Pass Acres and Neighbors v. City ofBeaumont

(2010) 190 Cal.App.4th 316, 354-55.) Similarly, an ER need not include

multiple variations on the alternatives it does consider. (See Mira Mar

Mobile Community, supra, 119 Cal.App.4th 477; Residents Ad Hoc

Stadium Com. v. Board ofTrustees (1979) 89 Cal.App.3d 274,287-88.)

In this case, the EIR studied four alternatives: (1) the no project

alternative; (2) the West Sunset off-site alternative; (3) the grass turf with

reduced lights alternative; and (4) the synthetic turf without lights

alternative. (AR $1 1-821.) The EIR determined the West Sunset

alternative would “partially achieve” most project objectives and fail to

achieve some project objectives. (AR 815.) The EIR identified the West

Sunset alternative as the environmentally superior alternative because it

would avoid the proposed project’s significant and unavoidable impact on

historic resources. (AR 821.)

The EIR identified the project’s impact on historic resources as theproject’s only significant and unavoidable environmental impact. (AR810.)

JT RESPONDENTS’ BRIEF 22 n:\land\li2014\130406M)0969502.doc

CASE NO. A140891

The EIR also identified and then rejected from further analysis three

additional alternatives: (5) synthetic turf with reduced lights; (6) Polo

Fields off-site alternative; and (7) Big Rec Fields off-site alternative. (AR

822-823.) The FIR rejected these three additional alternatives because

none of them successfully mitigated the project’s significant environmental

impact on historic resources.

In addition, the FEIR addressed public comments advocating

petitioners’ preferred “hybrid alternative.” (AR 1731-1753.) Petitioners

presented their “hybrid alternative” to decision makers and described all its

perceived benefits. (AR 7855, AR 9426, AR 11099-11100, AR 11120-

11131.) The FEIR explains this “hybrid alternative” is “within the range of

alternatives analyzed in the FIR” and that “[e]valuation of additional

variations of the Off-site Alternative would not further foster infonned

decision-making and public participation beyond that presented in the EIR.”

(AR 1752-1753.) The Planning Department’s analysis for the Board of

Supervisors addresses petitioners’ preferred hybrid alternative in further

detail and explains why CEQA does not require the ER to separately

analyze the hybrid alternative. (AR 3644-3 646.)

The Appellant asserts that the FIR is inadequatebecause it fails to analyze the hybrid alternative andthat the FIR creates a false choice of either improvingBeach Chalet or improving the West Sunset facility.However, the hybrid alternative is within the range ofalternatives analyzed in the FIR and does not need tobe analyzed as a separate alternative. Specifically, thehybrid alternative would be similar to a combination ofthe Alternative 2, the Off-Site Alternative andAlternative 3, the Grass Turf with Reduced LightsAlternative.

(AR 3645.)

As the FEW responses to comments and the Planning Department

analysis explained, petitioners’ hybrid alternative was a permutation or

if RESPONDENTS’ BRIEF 23 n:\Iand\li2014\130406\00969502.doc

CASE NO. Al 40891

combination of the range of alternatives analyzed in the EIR. The EIR

properly fulfilled its function as an informational document. Especially

considering the extensive presentation and analysis of the hybrid alternative

in the comments and responses section of the FEIR, the EIR provided

decision makers and the public the information they needed to make

informed policy choices with full knowledge of the environmental

consequences.

The cases petitioners cite further demonstrate the adequacy of the

EIR’s alternatives analysis. In Watsonville Pilots Ass’n v. City of

Watsonville (2010) 183 Cal.App.4th 1059 (see AOB, at p. 35), the project

was Watsonville’s 2030 General Plan, which contemplated residential

development in an unincorporated area adjacent the Watsonville Municipal

Airport. (Ii at p. 1065.) Watsonville’s FEIR identified 12 objectives for

the 2030 General Plan. (kL at pp. 1087-1088.) The significant

environmental impacts of Watsonville’s 2030 General Plan resulted

primarily from the anticipated growth: increased population, loss of

farmland, and stress on the water supply. (Id. at pp. 1089-1090.)

Watsonville’s EIR evaluated three alternatives.

Alternative 1 would have the same level ofdevelopment, but all new development would bewithin the existing city limits. Alternative 2 wouldhave the same level of development, but only half ofthe new development would be in the future growthareas and the other halfwould be within the existingcity limits. Alternative 3 was the ‘no-project’alternative. It would have about half the total level ofdevelopment with almost all of it in the future growthareas.

(liL atp. 1088.)

Watsonville’s alternatives analysis failed to include a reduced growth

alternative, which “would have provided the decision makers with

iT RESPONDENTS BRIEF 24 n:\land\li2014\130406\00969502.doc

CASE NO. A140891

infonnation 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.) The “no project” alternative did not qualify as a

reduced growth alternative, because it created no plan for the future and

achieved “almost none” of the project objectives. (Ibid.) “The

administrative record provides no justification for the FEIR’s failure to

include within its alternatives analysis a reduced development alternative

that would have satisfied the 10 objectives of the project that did not

require the level of development contemplated by the project.” (Ibid.)

The robust range of alternatives in the Beach Chalet EIR, by

contrast, satisfies all the concerns the Court of Appeal expressed in

Watsonvitle. The Beach Chalet EIR considered both an off-site alternative

and on-site reduced development alternatives, demonstrating how certain

project objectives could be met while mitigating the project’s sole

significant environmental impact on historic resources. Moreover, the

Beach Chalet administrative record explains exactly why further analysis of

petitioners’ “hybrid alternative” would not enhance the informational or

analytic purposes of the EIR. (AR 3645, quoted above.)

Habitat and Watershed Caretakers v. City ofSanta Cruz (2013) 213

Cal.App.4th 1277 (see AOB, at pp. 35-36), involved an expansion of the

University of California’s Santa Cruz campus, which would have significant

impacts on Santa Cruz’s water supply. The alternatives analysis fell short

“[b]ecause the draft EIR and the final EIR failed to discuss any feasible

alternative, such as a limited water alternative, that could avoid or lessen

the significant environmental impact of the project on the City’s water

supply.” (Id. at p. 1305 [emphasis in original].) The Beach Chalet EIR, by

contrast, analyzed three alternatives (in addition to the no project

IT RESPONDENTS’ BRIEF 25 n:\land\li2014\130406\00969502.doc

CASE NO. A140$91

alternative) that mitigated or eliminated the project’s significant impact on

historic resources, and in addition the FIR presented detailed information

about the hybrid alternative in the comments and responses section.

Comments are an integral part of the FIR and should be relied upon by

decision makers. (Residents AdHoc Stadium Corn., supra, 89 Cal.App.3d

at p. 286.)

Neither the Watsonville case nor the Santa Cruz case casts any doubt

on the adequacy of San Francisco’s identification and analysis of

alternatives to the Beach Chalet project.

B. Substantial Evidence Supported San Francisco’sInfeasibiity Findings Rejecting The West SunsetAlternative.

Petitioners insist CEQA required San Francisco to select the West

Sunset alternative. According to petitioners, “[s]ince the EIR finds that the

West Sunset alternative reduces impacts, attains most project objectives,

and is feasible, the City may not approve the Project unless it adopts the

environmentally superior alternative.” (AOB, at p. 37.) Petitioners assert

“[t]he City lacks substantial evidence to support its findings rejecting the

West Sunset alternative.” (Thid.)

Petitioners are wrong. Petitioners’ policy disagreement cannot

overturn the project approval. A lead agency may reject an alternative as

infeasible because it cannot meet project objectives, as long as the finding

is supported by substantial evidence in the record. (See e.g., Rialto Citizens

for Responsible Growth v. City ofRialto (2012) 208 CaLApp.4th 899, 949

[upholding rejection of reduced-scale alternative for Wal-Mart project as

infeasible, because alternative did not meet project objective of providing a

mix of retail and restaurant tenants].)


CASE NO. A140$91

In Sequoyah Hilts Homeowners Assn. v. City ofOakland (1993) 23

Cal.App.4th 704, the Court of Appeal upheld fmdings approving a 46-unit

residential project and rejecting as infeasible a 36-unit scaled-down

alternative, because the lower-density alternative “would defeat the project

objective ofproviding ‘the least expensive single-family housing for the

vicinity.” (Id. at p. 715.) Likewise, in Sierra Club v. County ofNapa

(2004) 121 Cal.App.4th 1490, the project objectives articulated in the EIR

properly supported a narrow scope of alternatives, and ultimately,

supported the agency’s findings rejecting those alternatives as infeasible.

The Sierra Club in that case argued the County had improperly rejected a

reduced-scale alternative to the proposed 1.4 million square foot integrated

winery project. The Court ofAppeal upheld the County’s findings that the

reduced-scale alternative was infeasible because it would frustrate the

applicant’s objectives to consolidate winery operations and to reduce traffic

and air quality impacts through operational consolidation. (Id. at pp. 1507-

150$.)

In California Native Plant Soc., supra, 177 Cal.App.4th at p. 1001,

the court recognized an agency may weigh its policy goals when the agency

decides to reject an alternative as infeasible. The infeasibility fmdings were

proper in that case because the rejected alternatives did not accomplish the

City’s policy goals ofpromoting transportation alternatives and access to

persons with disabilities. “[I]t is wholly improper for [the court] to

‘arrogate to ourselves a policy decision which is properly the mandate of the

City.” (Ii at p. 1002 [quoting Defend the Bay v. City ofIrvine (2004) 119

Cal.App.4th 1261, 1269].)

The basic goal of the Beach Chalet project in this case was to

renovate and increase the usefulness of an existing facility that was

IT RESPONDENTS’ BRIEF 27 n:\land\112014\130406\00969502.doc

CASE NO. Al 40891

outdated and had deteriorated over the years. The Beach Chalet EIR

identified eight project objectives:

• Increase the amount of athletic play time on the Beach Chalet

Athletic Fields by renovating the existing athletic fields and

adjacent warm-up areas.

• Improve public access to the Beach Chalet Athletic Fields by

adding new pathways, increasing the size of the existing

parking lot, providing a formal drop-off area, and providing

bicycle racks.

• Increase ground-sports athletic opportunities on the north side

of San Francisco commensurate with improvements

elsewhere in San Francisco.

• Provide a safe, optimal recreation facility and amenities for

athletes, spectators, and park users by renovating the existing

Beach Chalet Athletic Fields and the existing restroom

building, adding bleachers, and installing a new plaza area

with visitor amenities.

• Reduce ongoing maintenance and resource needs.

• Comply with current Americans with Disabilities Act (ADA)

requirements.

• Improve safety and increase nighttime use of the west end of

Golden Gate Park by installing new lighting and bringing

more recreation facility users to the area.

• Remain consistent with the Golden Gate Park Master Plan.

(AR 809-810.)

The draft EIR evaluated the West Sunset alternative and determined

the West Sunset alternative would partially several most project objectives.

if RESPONDENTS’ BRIEF 2$ u:\landMi2Oi4\130406\00969502.doc

CASE NO. Al40891

This alternative would not be inconsistent with theGolden Gate Master Plan.This alternative would not increase the amount ofathletic play time on the Beach Chalet Athletic fieldsby renovating the existing athletic fields and adjacentwarm-up areas, although it would partially meet thisobjective by providing increase{dj play time forSFRPD overall, the alternative would fail to meet theobjective of improving safety and increasing nighttimeuse of the west end of Golden Gate Park by installingnew lighting and bringing more recreation facilityusers to the area. This alternative would also fail tomeet the objectives of improving public access to theBeach Chalet Athletic Fields by adding new pathways,increasing the size of the existing parking lot,providing a formal drop-off area, and providingbicycle racks, and increasing ground-sports athleticopportunities on the north side of San Franciscocommensurate with improvements elsewhere in SanFrancisco.The Off-Site Alternative would partially achieve theobjectives to: provide a safe, optimal recreationalfacility and amenities for athletes, spectators, and parkusers; reduce ongoing maintenance and resourceneeds; and result in facility compliance with currentADA requirements.

(AR 447.)

In its findings approving the project and rejecting the alternatives as

infeasible, the Planning Commission explained that the West Sunset off-site

alternative failed to meet the first, second, fourth, fifth, sixth and seventh

project objectives. The West Sunset alternative only partially met some of

these objectives. For these reasons, consistent with the information and

analysis in the administrative record, the Planning Commission rejected the

West Sunset alternative, even though it would mitigate the project’s

significant impact on historic resources.

The Off-Site Alternative would have construction-related impacts similar to or greater than the proposedproject because the fields are more proximate tosensitive receptors such as schools and residences thanthe project site. It is assumed that this alternativewould be compatible with existing zoning and land usedesignations because the site is afready used forrecreational purposes. Because the Off-Site

if RESPONDENTS’ BRIEF 29 n:\land\1i2O14U3O4O6\00969502.doc

CASEN0.A140$91

Alternative would entail similar construction activitiesas the proposed project, impacts related to biologicalresources, hydrology and water quality, and hazardsand hazardous material would be comparable to thoseunder the Project. However, under the Off-SiteAlternative, visual resources impacts associated withnighttime lighting effects would likely be greater thanthat of the proposed project. Historic resourcesimpacts would be less than significant.Under this alternative, impacts to recreationalresources are anticipated to be greater than thoseidentified for the proposed project because the BeachChalet Athletic Fields would continue to be used andwould continue to degrade. It is also assumed thateffects associated with increased traffic, transit,parking, and pedestrian access would be similar to orgreater than the proposed project.The Commission rejects the Off-Site Alternativebecause it would fail to meet most of the Projectobjectives and would not increase the amount ofathletic play time on the Beach Chalet Athletic Fieldsby renovating the existing athletic fields and adjacentwarm-up areas, although it would partially meet thisobjective by providing some increase[d] play time forSFRPD overall, the alternative would fail to meet theobjective of improving safety and increasing nighttimeuse of the west end of Golden Gate Park by installingnew lighting and bringing more recreation facilityusers to the area. This alternative would also fail tomeet the objectives of improving public access to theBeach Chalet Athletic Fields by adding new pathways,increasing the size of the existing parking lot,providing a formal drop-off area, and providingbicycle racks, and increasing ground-sports athleticopportunities on the north side of San Franciscocommensurate with improvements elsewhere in SanFrancisco.

The Off-Site Alternative would only partially achievesome of the Project objectives while all of the samemitigation measures would be required.All of the reasons stated herein provide sufficientindependent grounds for rejecting this alternative.

(AR 2 1-22.) The information and analysis in the administrative record

fully support the Planning Commission’s rationales for rejecting the West

Sunset alternative.

None of the authorities on which petitioners rely supports their

attack on the Planning Commission’s ultimate determination ofif RESPONDENTS’ BRIEf 30 n:’Jand\li2014\130406\00969502.doc

CASE NO. A140891

infeasibility. Centerfor Biological Diversity v. County ofSan Bernardino

(2010) 185 Cal.App.4th 866 (see AOB, at p. 37) is simply not relevant.

That case addresses when an alternative must be presented in an FIR, not

when the agency’s policy making body must ultimately select that

alternative. The Beach Chalet FIR did present the West Sunset alternative.

In Burger v. County ofMendocino (1975) 45 Cal.App.3d 322 (see

AOB, at p. 37), the County Supervisors approved the fmal EIR that

identified significant environmental impacts from the proposed seaside

motel and recommended a reduced-scale alternative. The supervisors

nevertheless concluded that the “general welfare and public interest” were

best served by the original project and approved it without modification.

The board’s resolution nowhere acknowledged the adverse impacts of the

project identified in the FIR, nor did the board “point, even in generality, to

overriding economic or social values of the motel.” (Id. at p. 326.) The

Planning Commission findings, by contrast, in this case, explain in detail

the policy reasons why it approved the Beach Chalet project and why it

rejected the West Sunset alternative, acknowledging the project’s impact on

historic resources.

Petitioners’ reliance on Preservation Action Council v. City ofSan

Jose (2006)141 Cal.App.4th 1336, is misplaced. (See AOB, at p. 37.)

Petitioners confuse the range of alternatives to be considered in an FIR with

the policy considerations that may properly support ultimate infeasibility

findings.

finally, in Ca4fornia Clean Energy Commitee v. City of Woodland

(2014) 225 Cal.App.4th 173 (see AOB, at pp. 37-38), Woodland rejected a

mixed-use alternative to a shopping center project on the ground that the

alternative was environmentally inferior. The administrative record,

iT RESPONDENTS’ BRIEF 31 n:\landMi2Ol4\130406\00969502.doc

CASE NO. Al 40891

however, lacked any information to support the City Council’s conclusion

that the mixed-use alternative was environmentally inferior. Instead, the

FEIR had concluded the mixed-use alternative was economically infeasible.

The City adopted a rationale unsupported by its EIRanalysis. The City’s unexplained switch from arationale of economic infeasibility to environmentalinferiority as the basis for rejecting the mixed-usealternative conflicts with CEQA’s requirement todisclose the analytic route the. . . agency traveled fromevidence to action. Here, the City’s administrativeprocess sheds no light on how it came to reject themixed-use alternative based on environmentalinferiority instead of economic infeasibility in the draftand final EWs.Consequently, the City has failed to comply withCEQA in rejecting the mixed-use alternative ongrounds of environmental inferiority to the project asapproved.

(City of Woodland, supra, 225 Cal.App.4th at pp. 205-206 [internal

citations and quotation omitted].) Here, by contrast, there can be no dispute

the administrative record demonstrates the West Sunset alternative would

fail to increase play time at the Beach Chalet, would not enhance the Beach

Chalet facilities, would not bring the Beach Chalet into ADA compliance,

and would not bring more people to the West End of Golden Gate Park, all

objectives of the project that support the Planning Commission’s rejection

of the West Sunset alternative.

As in Ca4fornia Native Plant Society and Defend the Bay,

petitioners’ challenge in this case “represents nothing more than a ‘policy

disagreement with the City.” (Ca4fornia Native Plant Soc., supra, 177

Cal.App.4th at p. 1001, [quoting Defend the Bay, supra, 119 Cal.App.4th at

p. 1270].) In Flanders Foundation v. City ofCannel-by-the-Sea (2012) 202

Cal.App.4th 603, the Court ofAppeal upheld Carmel’s rejection of an

environmentally superior alternative that accomplished “most” project

objectives.iT RESPONDENTS’ BRIEF 32 n:\land\112014\130406\00969502.doc

CASE NO. A140891

The foundation also contends that the City’sinfeasibility findings did not “prove that lease of theMansion to a single-family or non-profit organizationcould not accomplish most of the project objectives.”That is not the standard. If it were, a legislative bodycould never reject an alternative. The entire purposeof the alternatives section in an EIR is to considerenvironmentally superior alternatives that would“accomplish most of the project objectives.” TheDEIR did so. All of the alternatives would accomplishmost of the project objectives. Nevertheless, alegislative body may reject such alternatives if itproperly fmds them to be infeasible for any of thestatutorily specified reasons

(Id. at 622-623.) Likewise, in this case, the Beach Chalet ER analyzed

project alternatives, including the West Sunset alternative, that

accomplished some project objectives and were potentially feasible. The

Planning Commission then properly rejected the West Sunset alternative,

supporting that rejection with specific fmdings of infeasibility and a

statement of overriding considerations.

IV. THE TRIAL COURT CORRECTLY DETERMINEDCORRESPONDENCE WITH INDIVIDUAL BOARDMEMBERS WAS NOT WITHIN THE SCOPE Of THEADMINISTRATIVE RECORD, BECAUSE THEDOCUMENTS WERE NOT BEFORE THE DECISIONMAKING BODY AS A WHOLE.

Petitioners would impose on San Francisco the burden of identifying

and collecting any correspondence or submissions to individual members of

the Board of Supervisors that mention the Beach Chalet soccer fields, even

communications that occurred prior to the time the project was before the

Board for review. (AOB, at pp. 39-42.) Petitioners insisted on this fishing

expedition only when they failed in their efforts to take depositions of

RecPark and Fields Foundation personnel. Petitioners’ expansive view of

the administrative record contradicts their consent, at the outset of the case,

that the Board of Supervisor documents in the administrative record would

include only the official Board file for the project, and it is contrary the


CASE NO. A140891

fundamental nature of an administrative record, which consists of

documents submitted to the relevant administrative body, not pieces of

correspondence with individual political figures that were never presented

to the body itself, and therefore never part of the decision making process.

(See SCF 1394.)

As the trial court recognized, petitioners’ agreement at the outset of

the case on the scope of the administrative record disposes of this issue.

(SCf 3013.) Even absent the parties’ agreement, the Public Resources

Code does not require communications to individual supervisors, that were

not before the decision-making body as a whole, to be included in the

administrative record. Correspondence with an individual politician, that is

not before the decision making body as a whole, by definition, cannot be

relevant to the decision making process or the agency’s compliance with

CEQA.

Petitioners rely on subsections (3), (6), (7) and (10) of Public

Resources Code section 21167.6, subdivision (e). (AOB, at p. 40.)

Subsection (3) includes in the administrative record:

All staff reports and related documents prepared by therespondent public agency and written testimony ordocuments submitted by any person relevant to anyfmdings or statement of overriding considerationsadopted by the respondent agency pursuant to thisdivision.

(Pub. Resources Code, § 21167.6, subd. (e)(3).) Communications with

individual supervisors were not “relevant to any findings or statement of

overriding considerations adopted by the respondent agency.” It was the

Planning Commission, not the Board, that adopted the fmdings of

infeasibility and statement of overriding considerations. The Board as a

IT RESPONDENTS BRIEF 34 n:\land\li2014\130406\00969502.doc

CASE NO. Al 40891

whole, not individual supervisors, affirmed the Planning Conitnission’s

action, based on the information contained in the Board’s official record.

Subsection (6) includes in the record:

All written comments received in response to, or inconnection with, environmental documents preparedfor the project, including responses to the notice ofpreparation.

(Pub. Resources Code, § 21167.6, subd. (e)(6).) Pieces of correspondence

to individual supervisors are not comments responding to the draft ER or

the notice of preparation. All public comments are addressed in the fmal

ER and are included in the administrative record.


All written evidence or correspondence submitted to,or transferred from, the respondent public agency withrespect to compliance with this division or with respectto the project.

(Pub. Resources Code, § 21167.6, subd. (e)(7).) The scope of subsection

(7) depends on the meaning of the phrase “respondent public agency,” as

applied to the Board of Supervisors. The Board’s only action in this case

was its passage of a single motion, acting as a single body. Accordingly,

the “respondent public agency,” as it relates to the Board, is the Board as a

whole. The official Clerk’s record includes all written evidence or

correspondence submitted to, or transferred from, the Board as a whole

with respect to the project. Subsection (7) requires no more.


Any other written materials relevant to the respondentpublic agency’s compliance with this division or to itsdecision on the merits of the project, including theinitial study, any drafts of any environmentaldocument, or portions thereof, that have been releasedfor public review, and copies of studies or otherdocuments relied upon in any environmental documentprepared for the project and either made available tothe public during the public review period or includedin the respondent public agency’s files on the project,

if RESPONDENTS BRIEF 35 n:Mand\li2014\130406\00969502.doc

CASE NO. Al40891

and all internal agency communications, includingstaff notes and memoranda related to the project or tocompliance with this division.

(Pub. Resources Code, § 21167.6, subd. (e)(10).) Subsection (10) limits

itself at the outset, to “relevant” material. Every example provided in

subsection (10) relates to conducting the environmental review, preparing

the EIR, and responding to public comment. The Board of Supervisors had

no role in these tasks. As a result, petitioners cannot show submissions to

or correspondence with individual supervisors are relevant to San

Francisco’s compliance with CEQA or to the Board’s decision on the

merits.

Moreover, because petitioners elected to prepare the administrative

record in this case, they have a statutory duty to contain the costs of record

preparation. (Pub. Resources Code, § 21167.6, subd. (f)) Section 21167.6,

subdivision (e) must be construed in light of this statutory duty, as well as

CEQA’s statutory mandate to expedite litigation. (See St. Vincent School

for Boys, Catholic Charities CYO v. City ofSan Rafael (200$) 161

Cal.App.4th 989, 1017; Hayward Area Planning Ass’n v. City ofHayward

(2005) 12$ Cal.App.4th 176, 184-185.) In St. Vincents, the petitioner’s

“broad, unrestricted, and apparently non-essential discovery demands”

demonstrated “a total disregard for cost containment [] and a complete

abandonment of its statutory duty to ‘strive to [prepare the recordj at

reasonable cost” (St. Vincenñ, supra, 161 Cal.App.4th at pp. 1018-1019.)

The Court ofAppeal, therefore, affirmed a cost award of over $26,000 to

the respondent City of San Rafael to compensate taxpayers for the city’s

costs of collecting irrelevant emails between petitioner and the city. (Id. at

p. 1019.) The Court of Appeal affirmed this sanction, not because the

irrelevant emails were outside the literal scope of section 21167.6,

JT RESPONDENTS’ BRIEF 36 n:\Iand\li2014\130406\00969502.doc

CASE NO. Al 40891

subdivision (e), but because petitioner had needlessly required the city to

expend resources collecting documents that were irrelevant to its CEQA

claims. (See also Environmental Protection Information Center v.

CalVornia Dept. ofForestiy and fire Protection (2008) 44 CaL4th 459,

48$ [exclusion from CEQA administrative record of duplicative or

cumulative comments was not prejudicial].) The documents petitioners

seek here are likewise irrelevant to the Board’s actions under CEQA and

would pose an unnecessary burden on City taxpayers.6

Furthennore, when the Board of Supervisors takes an official action,

the motivations and rationale of individual Board members are irrelevant.

In City ofFairfield v. Superior Court (1975), the California Supreme Court

prohibited depositions of city council members in an administrative

mandamus proceeding by a developer alleging the council members were

biased against his shopping center project. Inquiry into the evidence that

the individual council members examined and relied upon, and their

reasoning process in rejecting the application, were irrelevant to the

developer’s claims and not calculated to lead to the discovery of admissible

evidence. (Id. at pp. 776-777.) Likewise, comments and opinions of

individual legislators are irrelevant when construing a statute and should be

excluded from legislative history. (See, e.g., Calfornia Teachers Assn. v.

San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-701;

McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1161 ffi. 3)7

6 Simply collecting and processing email records from individualsupervisors for the limited time period of January through July of 2012would have cost San Francisco $35,000 in vendor costs, not including stafftime reviewing the documents for relevance and privilege. (SCF 3009.)

‘‘ Petitioners’ demand for the correspondence of individual Boardmembers further risks needless intrusion on the deliberative processprivilege.

if RESPONDENTS’ BRIEF 37 n:Mand\li2014\130406\00969502.doc

CASE NO. Al 40891

In Eureka Citizensfor Responsible Government v. City ofEureka

(2007) 147 Cal.App.4th 357, this Court specifically addressed whether

correspondence with individual City officials should be included in a

CEQA administrative record under section 21167.6, subdivision (e). In

Eureka Citizens, the CEQA petitioners appealed the trial court’s order

denying their motion to augment the administrative record. (Id. at p. 366.)

The disputed documents “included items of correspondence to or from

various City officials.” (IbicL) Some of the documents “relate[d] to the

applications for the Project.” (Thid.) The trial court denied the motion to

augment, sustaining the City’s objection “that the proffered materials were

neither presented to, nor considered by, the city council in its deliberations

or decision.” (Thid.) This Court affirmed, holding that “petitioners here fail

to establish that any of the additional proffered items fall within the

categories where inclusion is mandated by [section 21167.6, subdivision

(e)].” (Ii atp. 367.)

In Eureka Citizens, the correspondence involving “various City

officials” did not fall within the scope of section 21167.6, subdivision (e)

because the documents had not been submitted “to the city council in its

Under the deliberative process privilege, seniorofficials of all three branches of government enjoy aqualified, limited privilege not to disclose or to beexamined concerning not only the mental processes bywhich a given decision was reached, but the substanceof conversations, discussions, debates, deliberationsand like materials reflecting advice, opinions, andrecommendations by which government policy isprocessed and formulated.

(Citizensfor Open Government v. City ofLodi (2012) 205 Cal.App.4th 296,305 [internal quotation and citation omitted].) Section 21167.6, subdivision(e) does not override applicable privileges. (Ca4fornia Oak Foundation v.County ofTehama (2009) 174 Cal.App.4th 1217, 1221.)

if RESPONDENTS’ BRIEf 38 n:\land\112014\130406\00969502.doc

CASE NO. Al40891

deliberations or decision.” The holding and rationale ofEureka Citizens is

exactly on point and disposes of petitioners’ administrative record claim.

Applying the same rule, in Consolidated Irr. Dist. v. City ofSelma

(20 12) 204 Cal.App.4th 187, the Court ofAppeal upheld an order

augmenting the record, because in that case, substantial evidence supported

the trial court’s findings that the disputed documents had been submitted to

the city’s planning commission. (Id. at pp. 199-201.)

County ofOrange v. Superior Court (2003) 113 Cal.App.4th 1, on

which petitioners rely (see AOB. at p. 41), does not require that irrelevant

correspondence be included in the administrative record. The court

remarked that a CEQA administrative record “will include pretty much

everything that ever came near a proposed development or to the agency’s

compliance with CEQA in responding to that development.” (Id. at p. 8

[emphasis in original].) The content of the administrative record, however,

is governed by the statute, not the court’s comment. (Eureka Citizens,

supra, 147 Cal.App.4th at pp. 366-367.) County ofOrange addressed

whether petitioners were correct in attempting to exclude from the

administrative record an 1100 page addendum to the EIR for an earlier

version of the same project and 700 pages related to the addendum.

(County ofOrange, supra, 113 Cal.App.4th at p. 6.) The original version

of the project had been for a 299 unit apartment building. The fmal project

was a slightly scaled-back 293 unit building. (Thid.) The disputed

documents in that case directly supported the County’s project approval.

Because of CEQA’s mandate to consider “the whole of the project,” the

Court concluded that the addendum to the original EIR belonged in the

administrative record. (Id. at p. 9.)

if RESPONDENTS’ BRIEF 39 n:\land\li2O14U3O4O6\00969502.doc

CASE NO. A140891

In contrast, petitioners here sought not to exclude evidence that

could enable San Francisco to satisfy the substantial evidence standard.

Here, petitioners sought to add superfluous documents to the record that

would needlessly delay and increase the cost of trial court proceedings.

Given the nature of petitioners’ CEQA claims and the Board’s limited role

in affirming certification of the FEIR, petitioners’ relentless quest for

correspondence of individual Supervisors imposed an unjustified burden on

San Francisco that would have cluttered the administrative record with even

more irrelevant material. At worst, it risked drawing the trial court into

endless disputes over application of the deliberative process privilege to a

substantial volume of documents. (See City ofLodi, supra, 205

CaLApp.4th at pp. 3 05-307.)

In any event, the exclusion from the administrative record of

correspondence with individual supervisors was harmless. Environmental

Protection Info. Center, supra, 44 Cal.4th at p. 488 [no error to exclude

duplicative or cumulative documents from CEQA administrative record].)

Petitioners have made no effort to demonstrate the additional documents

were relevant to any issue in their CEQA challenge.

The Court should affirm the trial court’s limitation on the scope of

the administrative record, because: (1) the parties agreed; (2) the disputed

documents were not “submitted to. . . the respondent public agency”; and

(3) petitioners have not demonstrated prejudice. Any one of these three

reasons is sufficient to affirm the trial court’s ruling.

if RESPONDENTS’ BRIEF 40 n:\land\112014\130406\00969502.doc

CASEN0.A140891

V. THE TRIAL COURT CORRECTLY SUSTAINED SANFRANCISCO’S DEMURRER TO SIERRA CLUB’S CEQACLAIM ALLEGING SAN FRANCISCO ABDICATED ITSINDEPENDENT JUDGMENT. (FOURTH CEQA COUNT)

In their Fourth CEQA Count, petitioners alleged San Francisco

failed to exercise its independent judgment in selecting the turf, analyzing

the turf, analyzing alternatives to the turf, and selecting a contractor to

install the turf. (SCf 417-42 1 [first Amended Petition, ¶J1 15-124].)

Petitioners also critiqued the City’s relationship with the Foundation. (SCf

420-421.)

CEQA requires the lead agency to exercise its independent judgment

in conducting its environmental review of a proposed project. It is

nonsensical for petitioners to suggest the lead agency must independently

design every proposed project that will be subject to its independent CEQA

review. Local government agencies typically have zero input in designing

commercial projects. Petitioners would outlaw any dedicated philanthropic

gifts to improve public lands.

In any event, petitioners’ Fourth CEQA Count is time barred.

Petitioners first alleged their fourth CEQA Count in their first Amended

Petition, which they filed long after CEQA’s applicable limitations period

had expired. Because the Fourth CEQA Count does not arise from the

same operative facts as the original timely CEQA petition, the fourth

CEQA Count cannot relate back to the original filing date.

A. Petitioners’ Fourth CEQA Count Failed To State AClaim.

Petitioners cite section 21802.1, subdivision (c) of the Public

Resources Code and sections 15084, subdivision (e) and 15090, subdivision

(a) of the CEQA Guidelines (AOB, at p. 43.) Neither is relevant.

JT RESPONDENTS’ BRIEF 41 n:’Jand’Ji2014\130406\00969502.doc

CASENO.A140891

Public Resources Code section 21082.1, subdivision (c) sets forth

the EIR “preparation requirements.” (friends ofLa Vina v. County ofLos

Angeles (1991) 232 Cal.App3d 1446, 1455 [disapproved of on other

grounds by Western States Petroleum Assn. v. Superior Court (1995) 9

Cal.4th 559].) Under this section, an entity must independently review and

analyze any report or declaration; circulate draft documents that reflect its

independent judgment; and certify an EIR that reflects the independent

judgment of the lead agency. (Pub. Resources Code, §2 1802.1, subd. (c).)

Section 21082.1, subdivision (c) expressly addresses the

environmental analysis that goes into drafting an ETR. It is not concerned

with the design of the underlying project. Case law interpreting this section

confinns section 21082.1, subdivision (c)’s focus on preparing the EIR.

The cases consider whether an agency exercised its independent judgment

when it delegated drafting an ER to an outside consultant. Courts examine

whether an agency “sufficiently exercised independent judgment over the

environmental analysis and exposition that constitute the ER.” (friends of

La Vina, supra, 232 Cal.App.3d at p.1455 [consultant drafted EIR and

responses to public comments]; see, e.g., Sunset Drive Corp. v. City of

Redlands (1999) 73 Cal.App.4th 215, 220 [authorizing an agency to

contract with outside consultants so long as the agency applies its

“independent review and judgment” to the work product before adopting

it].)

CEQA Guidelines section 15084, subdivision (e) is directed solely to

the preparation of the draft EIR. “The draft EIR which is sent out for public

review must reflect the independent judgment of the Lead Agency.”

CEQA Guidelines section 15090, subdivision (a) is likewise

irrelevant to the City’s decisions regarding the turf to be used in the project

ir RESPONDENTS’ BRIEF 42 n:\land\li2014\130406\00969502.doc

CASE NO. A140891

or the proposed location of the project. Section 15090, subdivision (a),

entitled “Certification of the Final EIR,” requires the lead agency, prior to

approving a project, to certify, among other things, the fmal EIR “reflects

the agency3s independent judgment and analysis.”

Even if San Francisco delegated to the Foundation all decisions

relating to the turfused in the proposed project (which it did not), this

delegation would not implicate CEQA. If a philanthropist offered to

fmance a new library, but required the building be more than three stories

tall and constructed of only recycled materials, San Francisco would not

violate CEQA by studying the environmental impacts of a library with

these specifications.

The cases petitioners rely on further confirm that the trial court

correctly sustained the demurrer. (See AOB, at p. 44.) In Woodland,

supra, 225 Cal.App.4th, at p. 194, the agency failed to exercise its

independent judgment because the EIR delegated to the developer the

responsibility ofproducing market studies to analyze the impacts of the

proposed project. In Sundstrom v. County ofMendocino (1988) 202

CaLApp.3d 296, 307, the agency abdicated its independent judgment when

it delegated to the applicant the duty to conduct hydrology impact studies

for construction of a sewage treatment plant. Citizens ofGoleta Valley v.

Board ofSupervisors (198$) 197 Cal.App.3d 1167, 1180-81, has nothing to

do with CEQA’s independent judgment requirement, but addresses the

adequacy of the EIR’s alternatives analysis. In People v. County ofKern

(1976) 62 Cal.App.3d 761, 775, the fmal EIR was drafted by the applicant’s

attorney, not by the agency.

Because petitioners’ Fourth CEQA Count failed to state a claim, the

trial court’s order sustaining the demurrer was correct.

JT RESPONDENTS’ BRIEF 43 n:\Iand\112014\130406\00969502.doc

CASE NO. A140891

B. Petitioners’ Fourth CEQA Count Was Time-Barred.

CEQA requires that any action alleging challenging an EIR must be

filed within 30 days from the date of the notice of determination was filed.

(Pub. Resources Code, § 21167, subd. (c)j Petitioners allege San

Francisco filed the Notice of Determination September 13, 2012.

Petitioners filed the Amended Petition containing the Fourth CEQA Count

February 5, 2013, long past the 30-thy deadline.

Courts strictly apply section 2 1167’s 30-day limitations period. (See

Stockton Citizensfor Sensible Planning v. City ofStockton (2010) 48

CaL4th 481, 500; Alliancefor the Protection ofthe Auburn Community

Environment v. County ofPlacer (2013) 215 Cal.App.4th 25, 32 [“section

21167 makes no provision for extending the limitations period on a

showing of good cause”].) The Supreme Court recognized the Legislature’s

“concern that CEQA challenges, with their obvious potential for financial

prejudice and disruption must not be permitted to drag on to the potential

serious injury of the real party in interest.” (Stockton Citizens, supra, 48

Cal.4th at p. 499.) “[T]o ensure fmality and predictability in public land use

planning decisions, statutes of limitations governing challenges to such

decisions are typically short.” (Thid.) Under CEQA, deadlines are

“unusually short.” (Thid. [quoting CEQA Guidelines, § 15112, subd. (a)].)

Courts allow an amended complaint after the statute of limitations

has expired if the amendment relates back to the original complaint.

(Garrison v. Board ofDirectors (1995) 36 Cal.App.4th 1670, 1677.)

Relation back requires that the original complaint “gave the defendant

enough notice of the nature and scope of the plaintiffs claim that he

shouldn’t have been surprised by the amplification of the allegations” in the

amended complaint. (Pointe San Diego Residential Community, L.P. v.

if RESPONDENTS BRIEf 44 n:\Iand\li2014\130406\00969502.doc

CASE NO. A140891

Procopio, Coiy, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265,

279.) An amendment that relates back is a change “of form, not of

substance.” (Garrison, supra, 36 Cal.App.4th at p. 1678.) To relate back,

an amended complaint must (1) be based on the same operative facts as

those in the original complaint; (2) seek recovery for the same injuries as

alleged in the original complaint; and (3) refer to the same incident caused

by the same instrumentality. The Fourth CEQA Count failed to satisfy

these requirements.

1. The Fourth CEQA Count Was Based On DifferentFacts Than Those In The Original Petition.

To relate back to the original complaint, an amended complaint must

rely on the same set of operative facts as the original complaint, and the

“gravamen of the complaint remains unaltered.” (Barrington v. A. IL

Robins Co. (1985) 39 Cal.3d 146, 154.) “The doctrine will not apply if the

plaintiff seeks by amendment to recover upon a set of facts entirely

unrelated to thosepleaded in the original complaint.” (Pointe San Diego,

supra, 195 Cal.App.4th at p. 277 [emphasis added] [internal citation and

quotation marks omitted].) The facts pled in the original complaint must

give the defendant “adequate notice of the [new] claim based on the

originalpleading.” (Ibid. [emphasis added].)

The Fourth CEQA Count was based on facts not alleged in the

original Petition. The Fourth CEQA Count alleged a host ofnew facts

concerning San Francisco’s alleged delegation to the Foundation of “certain

rights as to selection, construction and maintenance of the artificial turf to

be used on the City’s athletic fields,” and San Francisco’s alleged failure to

disclose its “very close relationship” with the Foundation. (SCF 417-421

[First Amended Petition ¶{ 116-129].)

iT RESPONDENTS’ BRIEf 45 n:’Jand\li2014\130406\00969502.doc

CASE NO. A140891

This new theory found no factual basis in the original petition. That

petition alleged only the EIR failed properly to analyze the impacts of the

SBR material and failed to select the off-site alternative at West Sunset

Playground. (See SCF 26-67.) The Fourth CEQA Count sought recovery

on a set of facts “entirely unrelated to those pleaded in the original

complaint” (Fointe San Diego, supra, 195 Cal.App.4th at p. 277.) In fact,

the allegations regarding San Francisco’s relationship with the Foundation

relied on facts outside the administrative record, which would have forced

the parties and the trial court to address additional evidence outside the

administrative record, thereby prolonging trial court proceedings.

2. The fourth CEQA Count Did Not Seek Recoveryfor The Same Injury As The Original Petition.

To relate back, the Amended Petition must also seek recovery for the

“same injuries” as the original Petition. (Quiroz v. Seventh Ave. Center

(2006) 140 Cal.App.4th 1256, 1278.) The Fourth CEQA Count failed to

meet this requirement. This new theory alleged San Francisco improperly

allowed the Foundation to influence the design of the Project. All the

original CEQA theories alleged San Francisco conducted inadequate

environmental review of the Project.

To allege the same injury, a complaint must allege an invasion of the

same primary tight. (Rowland v. Superior Court (1985) 171 Cal.App.3d

1214, 1217-18.) The primary right at issue in the original petition is the

tight to adequate environmental review under CEQA. Petitioners made no

factual allegations that the relationship between the Foundation and San

Francisco impeded environmental review of the project. Instead,

petitioners contended the alleged relationship somehow tainted the project’s

design-that is, the decision to use SBR material. (See SCF 417 [First

JT RESPONDENTS’ BRIEF 46 n:’iand\li2OI413O4O6\OO9695O2.doc

CASE NO. A140$91

Amended Petition ¶ 115 [“In determining the composition of the turf to be

used in the Beach Chalet Project, the City kid a duty to exercise such

independent judgment in the selection of the thrf Project construction

and ctermination of appropriate alternatives.”]; ¶ 116 [alleging San

Francisco’s delegation to the Foundation of “certain rights as to selection,

construction and maintenance of the artificial turf’]].) The Fourth CEQA

Count had nothing to do with the EIR process. Instead, the primary right to

which the Fourth CEQA Count appeared to relate was an alleged right to an

“independently” developed project definition.

3. The Fourth CEQA Count Did Not Rely on theSame Instrumentality as the Original Petition.

Last, to relate back, a new cause of action must have been caused by

the same “offending instrumentality.” (Coronet Manufacturing Co., v.

Superior Court (1979) 90 Cal.App.3d 342, 347.) The Fourth CEQA Count

identified the “offending instrumentality” as the relationship between the

Foundation and San Francisco. In contrast, the original petition alleged San

Francisco’s faulty EIR process was the instrumentality of its injury. (SCF

47-56.) Therefore, the Fourth CEQA Count did not satisfy the “same

instrumentality” requirement and did not relate back to the original petition.

C. The Trial Court Properly Exercised Its Discretion WhenIt Denied Leave To Amend The Fourth CEQA Count.

Petitioners have not suggested (nor did they suggest to the trial

court) how they might cure the pleading deficiencies in their Fourth CEQA

Count. Petitioners’ Second Amended Petition (see SCF 723-727) did not

cure any of the identified pleading defects, but rather compounded them.

The trial court therefore did not abuse its discretion when it denied leave to

amend.

iT RESPONDENTS’ BRIEF 47 n:Mand\li2014\130406\00969502.doc

CASE NO. A140891

CONCLUSION

For the foregoing reasons, this Court should affinn the judgment

below.


DENNIS J. HERRERACity AttorneyJAMES M. EMERYVICTORIA WONGDeputy City Attorneys

By:/sI James M. EmeryJAMES M. EMERYAttorneys for Respondents Cityand County of San Francisco, et


G. SCOTT EMBLIDGEER1N REDINGMoscone Emblidge Sater & Otis

By:/s/ G. Scott EmblidgeG. SCOTT EMBLIDGEAttorneys for Intervenor Cityfields Foundation

if RESPONDENTS’ BRIEF 48 n:\Iand\1i2014\130406\00969502.doc

CASE NO. A140$91

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief has been prepared using

proportionately double-spaced 13 point Times New Roman typeface.

According to the “Word Count” feature in my Microsoft Word for

Windows software, this brief contains 12,855 words up to and including the

signature lines that follow the briefs conclusion.

I declare under penalty ofperjury that this Certificate of Compliance

is true and correct and that this declaration was executed on November 5,

2014.

DENNIS I. HERRERACity AttorneyJAMES M. EMERYVICTORIA WONGDeputy City Attorneys

By:/s/ James M. EmeryJAMES M. EMERYAttorneys for DefendantsCITY AND COUNTY OF SANFRANCISCO, et al.

iT RESPONDENTS’ BRIEf 49 n:Mand\li2014\130406\00969502.doc

CASE NO. A140891

court of appeal of the state of california the sierra …

Documents