Alice Suet Yee Barkley, Of Counsel
Direct Dial Number 415.356.4635
Direct Fax Number 415.356.3888
Email Address abarkley@luce.com
June 14, 2004
32444-00001
VIA HAND DELIVERY
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§ 106.4.4.4.2) 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
Exhibits
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.