Alice Suet Yee Barkley, Of Counsel
Direct Dial Number 415.356.4635
Direct Fax Number 415.356.3888
Email Address

June 14, 2004


The Honorable Matt Gonzalez, President
City and County of San Francisco Board of Supervisors
City Hall, Room 244
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4689

RE: Appeal of Certification of the Final EIR/EIS for Transbay Terminal/Caltrain Downtown Extension/Redevelopment Project

Dear President Gonzalez and Supervisors:

Our office represents Transportation Solution Defense and Education Fund ("TRANSDEF"). TRANSDEF is an environmental organization advocating Smart Growth and cost-effective transit as strategies for the protection of the Bay Area's quality of life. After more than three years, the Final Environmental Impact Report and Final Environmental Impact Statement ("FEIR/FEIS") for the Transbay Terminal and Caltrain Downtown Extension Project ("Project") was certified by the San Francisco Redevelopment Agency on April 20, 2004, and the Planning Commission and the Transbay Joint Powers Authority on April 22, 2004.

TRANSDEF submitted a letter dated June 3, 2004 supporting certification of the Project's FEIR/FEIS and opposing the appeals of that certification. This letter will further respond to the appeal letter submitted by Myers Natoma Venture, LLC and Myers Development Company ("Myers") to this Board dated June 7, 2004. For the reasons stated in our June 3 letter and the reasons set out below, TRANSDEF urges this Board to reject the appeals of the certification of the FEIR/FEIS for the Project.

Appellant Myers contends that the FEIR/FEIS is legally deficient because it failed to adequately discuss the 80 Natoma Street project and the Project's impact on the 80 Natoma Street project.

However, Myers' challenge to the FEIR/FEIS must fail for several reasons: (1) Myers lacks standing to challenge the Final EIR/EIS because Myers knew about the draft EIR but failed to comment on it; (This alone constitutes grounds to dismiss Myers' appeal. However, in order to make a full administrative record, and in an abundance of caution, TRANSDEF asks the Board to consider all of Myers' arguments) (2) The case law cited by Myers in its appeal and its June 7, 2004 letter to the Board is distinguishable and does not support Myers' position; (3) Myers does not have an entitled project at 80 Natoma; and (4) In the absence of an entitled project at 80 Natoma, the FEIR/FEIS adequately addressed the Project's impact on the 80 Natoma site and that implementation of the project may require acquisition of the 80 Natoma site by condemnation action.

1. Myers Has No Standing To Challenge The Final EIR/EIS

Section 31.16 of the City's Administrative Code states as follows:

(a) Any person or entity that has submitted comments to the Planning Commission or the Environmental Review Officer on a draft EIR, either in writing during the public review period, or orally or in writing at a public hearing on the EIR, may appeal the Planning Commission's certification of a final EIR to the Board of Supervisors (the "Board").

Neither Myers nor the previous owner of the 80 Natoma project submitted any comments to the Draft EIR/EIS challenging its legal adequacy. Under section 31.16 of the Administrative Code, Myers does not have standing to appeal the Planning Commission's certification of the final EIR for the project.

As TRANSDEF pointed out in its June 3, 2004 letter regarding this appeal, had Myers commented on the draft EIR/EIS ("DEIR/DEIS") even after the comment period had ended, the Planning Department staff, as a practical matter, could have included a "staff-initiated" text amendment at the end of pages 4-9 of the FEIR/FEIS describing the 80 Natoma project. Such a minor "staff-initiated" text amendment can be worded similarly to the response to the comments by the 301 Mission Street project sponsor.

2. The Case Law Cited By Myers In Its Appeal And Its June 7, 2004 Letter To The Board Is Distinguishable And Does Not Support Myers' Position.

Myers cited Burbank-Glendale-Pasadena Airport v. Robert R. Hensler (1991) 233 Cal.App.3d 577 for the proposition that an exercise of eminent domain based on a legally deficient EIR would be voided by the court. In Burbank-Glendale-Pasadena Airport, the airport authority relied on a 1985 negative declaration prepared for a more limited taxiway extension project which did not contemplate the expansion of the airfield property. Thus, there was no description of the airfield expansion project at all.

In stark contrast, in the present matter the Projects' FEIR/FEIS on appeal to this Board fully described the Project, including the Caltrain downtown extension right-of-way, as well as numerous alternatives that were studied and rejected. The Burbank-Glendale-Pasadena Airport is easily distinguishable and does not support Myers' position.

3. Myers Does Not Have An Entitled Project at 80 Natoma.

Myers' entire appeal of the certification of the Project FEIR/FEIS by the Planning Commission relies on the incorrect premises that Myers has a fully entitled project at 80 Natoma. Review of the building permits for the 80 Natoma project demonstrate conclusively that the site permits issued in 1999 had expired and were null and void by operation of law in 2002 because no work was done under those site permits within 36 months of their issuance, or by February 6, 20021. Myers could not revive the 1999 site permits that were null and void by submitting an alteration permit on December 16, 2003.

TRANSDEF brought this issue to the attention of the Department of Building Inspection ("DBI") and the Planning Department by a letter dated May 25, 2004. By letter dated May 27, 2004, TRANSDEF asked the DBI Commission to put this matter on its June 7, 2004, calendar and the DBI Commission considered the matter at its June 7 hearing. On that same day, DBI's Director issued a stop-work order in order to evaluate the permit history.

By letter dated June 8, 2004, Myers submitted documentation to DBI showing that in 1999 Myers' predecessor in interest did some shoring work prior to the issuance of the 1999 site permit, but none of that work was done pursuant to a site permit issued for the 80 Natoma project, and no work was done pursuant to any addendum to the 1999 site permit. However, Myers cannot rely on the shoring work to claim that it had vested rights in the 80 Natoma project2. It is TRANSDEF's understanding that DBI, after consultation with the City Attorney's office, has determined that the 1999 site permits are null and void by operation of law.

Furthermore, even if work were undertaken pursuant to the 1999 site permits, those site permits and associated addenda would have expired as a matter of law after the work was suspended for more than 90 days. (Building Code§ A chronology of the issued site permits and addenda for the 80 Natoma Street project is attached hereto as Exhibit 2.

The conditional use permit authorizing the 80 Natoma project requires that the 80 Natoma project developer and its successor-in-interest obtain a site permit by February 25, 2001. Implicit in this condition of approval is that the 80 Natoma project developer would diligently prosecute the issued site permit and associated addenda under which the 80 Natoma project could be completed. Without a valid site permit, Myers must apply for a new conditional use authorization to modify the time in which to obtain a new site permit.

In the absence of a valid site permit and failure to comply with a key condition of approval, Myers' argument that the FEIR/FEIS is deficient for failing to take into account a fully entitled project and for failing to discuss the loss of housing at 80 Natoma is fatally flawed. The DEIR/DEIS as well as the FEIR/FEIS identified the properties consisting of 80 Natoma (being Block 3721, Lots 45A, 46, 53 and 54) as properties to be acquired for the Transbay Terminal Alternatives and the Caltrain Downtown Extension Alternatives, respectively. That is all that is required under the law.

Myers did not identify the nature of the other significant environmental impacts associated with the loss of yet-to-be constructed housing. The FEIR/FEIS is not required to respond to unidentified and non-specific environmental effects.

4. The FEIR/FEIS Adequately Addresses the Project's Impact on the 80 Natoma Street Project.

Myers contends that the case titled San Franciscans for Reasonable Growth v. City & County of San Francisco (1984) 151 Cal.App.3d 61 mandates that a list of all approved and pending projects must be used to analyze the cumulative impacts of downtown projects. Myers complains that the affected environment section of the FEIR/FEIS did not mention 80 Natoma Street specifically, but only by inference on page 4-8 of the FEIR/FEIS when it referenced "a residential tower on Natoma Street near Second Street." The reference to Natoma Street and Second Street was sufficient to identify the now unentitled 80 Natoma project in the setting.

Furthermore, while the San Franciscans for Reasonable Growth case was going through the appellate process, the City prepared a final environmental impact report for and adopted a Downtown Plan. The FEIR for the Downtown Plan changed the methodology from using a list of approved and foreseeable projects to a forecast for development and growth. In the case of the Project FEIR/FEIS, the cumulative transportation analysis was projected to year 2020. The forecast assumed future development and growth consistent with the Association of Bay Area Governments' ("ABAG") forecast, and incorporated projects recently approved or entitled in the South of Market area, plus the additional development associated with the Transbay Development Plan and other Area Plans, such as Rincon Hill, the Mid-Market Development and the South of Market Redevelopment Area Plan. The cumulative analysis for the Project far exceeded the ABAG forecast and is a worst-case scenario. Therefore, Myers' reliance on San Franciscans for Reasonable Growth v. City & County of San Francisco (1984) 151 Cal.App.3d 61 is misplaced.

For the reasons discussed above, Myers' appeal of the FEIR/FEIS certified by the Planning Commission is without merit and should be denied.

Very truly yours,

Alice Suet Yee Barkley
for Luce, Forward, Hamilton & Scripps llp


cc: Supervisor Tom Ammiano
Supervisor Chris Daly
Supervisor Bevan Dufty
Supervisor Tony Hall
Supervisor Sophie Maxwell
Supervisor Jake McGoldrick
Supervisor Michela Alioto-Pier
Supervisor Aaron Peskin
Supervisor Gerardo Sandoval
Gloria L. Young, Clerk of the Board of Supervisors
Mike Nevin, Chair, Transbay Joint Powers Authority
Maria Ayerdi, Executive Director, Transbay Joint Powers Authority
Michael Scanlon, Executive Director, Peninsula Corridor Joint Powers Board
Jose Campos, San Francisco Redevelopment Agency
Mayor Gavin Newsom
Shelley Bradford-Bell, President of Planning Commission
Linda Avery, Secretary of Planning Commission
John Malamut, Deputy City Attorney
Larry Badiner, Acting Director, Planning Department
Joan Kugler, MEA of Planning Department
Timothy A. Tosta, Esq., Steefel, Levitt & Weiss
David Schonbrunn, TRANSDEF

11Building Code Section 106.4.4 states that for a building permit with a valuation of $2,500,000 or more, the work shall start within 18 months or half the time period specified in Table A, whichever is the greater amount of time. According to Table A to that section, a project of over $20,000,000 would have to be completed within 72 months, so work would have to start within 36 months. A copy of Building Code section 106.4.4 is attached hereto as Exhibit 1.

22See Oceanic California, Inc. v. North Central Coast Regional Comm'n (1976) 63 Cal.App.3d 57.