A Professional Corporation

One Embarcadero Center
30th Floor
San Francisco, California 94111


June 15, 2004

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

Dear President Gonzalez and Members of the Board:

On behalf of Myers Natoma Venture, LLC, owner of the 80 Natoma Property, and Myers Development Company (collectively, "MDC"), we are writing in response to the letter dated June 14, 2004 that counsel for the Transportation Solution Defense and Education Fund ("TRANSDEF") submitted in connection with the appeals of the certification of the Transbay Terminal/Caltrain Downtown Extension/Redevelopment Project's Final Environmental Impact Statement/Environmental Impact Report (collectively,"EIS/EIR").

The TRANSDEF letter is noteworthy for its misunderstanding and misrepresentation of the law and its consistently false representation of the public record. The easy willingness with which TRANSDEF is prepared to engage in revisionist history reflects a desperate desire to avoid any genuine treatment of the serious issues that the appeals present about the adequacy of the EIS/EIR. In point of fact, while devoting the entirety of its letter to a campaign of misinformation about the MDC appeal, TRANSDEF totally ignores the other pending appeals that this Board must hear on the EIS/EIR.

By its submission, TRANSDEF has served to underscore the merits of the pending appeals and provided further evidence that the Board must reverse the certification of the EIS/EIR. In fact, what is most remarkable about the TRANSDEF letter is that it lacks any substantive commentary on the merits of the appeals at all. It completely ignores two of the appeals, and attacks the MDC appeal in collateral fashion. Nowhere does TRANSDEF respond to our showing that the EIS/EIR is flawed. This glaring omission speaks volumes about the merits of the appeals. The Board must, we respectfully submit, reverse the prior decisions certifying the EIS/EIR.

I. Standing

Ms. Barkley alleges that MDC has no standing to challenge the Final EIS/EIR under Section 31.16(a) of the City's Administrative Code. This section states:

“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").”

To begin, nothing in this code section limits the parties who are entitled to appeal the certification of an EIR. The language of Section 31.16(a) is permissive and merely defines a class of parties who may participate in the appeal process. If the drafters of Section 31.16(a) intended to limit appeal standing, they easily could have stated that "the only persons or entities who may appeal," but they obviously did not do so. Further, to the extent that the Code purports to narrow the parties entitled to appeal, it is fundamentally contrary to state law that commands expansive rights for parties to appeal the certifications of EIRs. See CEQA Cal. Pub. Res. Code § 21151(c).

Further, CEQA endorses liberal standing principles in the interest of mitigating long-term environmental effects. See e.g. Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 272 ("[e]ffects of environmental abuse are not contained by political lines; strict rules of standing that might be appropriate in other contexts have no application where broad and long-term effects are involved."). Denying MDC's fundamental right to participate meaningfully in this proceeding contravenes the letter and spirit of CEQA. Moreover, it will create additional issues for future litigation challenges to the EIS/EIR.

It is noteworthy that TRANSDEF fails to cite to a single case or legal authority that governs standing rules for EIR appeals or that would support an argument that MDC lacks standing in this instance to bring to the attention of this Board the pervasive flaws that exist in the EIS/EIR. In fact, TRANSDEF acknowledges to the contrary. It admits in its letter brief that MDC (and its predecessor) properly could have submitted comments after the public review period that the various public agencies could and should have considered in evaluating the adequacy of the EIS/EIR. ("[H]ad Myers commented on the draft EIS/EIR ("DEIS/DEIR") even after the comment period had ended, the Planning Department staff, as a practical matter, could have included a "staff-initiated" text amendment [to] the FEIS/FEIR.") As we show, and contrary to TRANSDEF's flagrant misrepresentation of the factual record, MDC and its predecessor timely participated in the public review process several times.

On March 19, 2003, more than one year ago and long before the Final EIS/EIR was prepared, as TRANSDEF is aware and fails to disclose to this Board, counsel for Prudential Insurance Company ("Prudential"), predecessor in interest to MDC, submitted a letter to Joan Kugler of the Planning Department (the planner responsible for the Transbay EIS/EIR) concerning the EIS/EIR. In the letter, Prudential informed Ms. Kugler that it had neither received the Draft EIS/EIR for the Transbay Terminal Project, nor received any notice of the Transbay Project itself. Prudential also pointed out the significant effect of the proposed Transbay Project on the development plans for the 80 Natoma Project. See Attachment A. This letter renders utterly false the statement in the TRANSDEF letter that "Myers nor the previous owner of the 80 Natoma project submitted any comments to the Draft EIS/EIR challenging its legal adequacy." Further, to our knowledge, the Planning Commission did not take the position that Prudential had submitted the comments untimely. Further, the lack of notice to Prudential cures any alleged untimely submission.

Further, contrary to factual representations that TRANSDEF makes to this Board. MDC submitted comments on the Final EIS/EIR in writing. For example, on April 16, 2004, prior to the decision of the San Francisco Redevelopment Agency, the Planning Commission, and the Peninsula Corridor Joint Powers Board to certify the EIS/EIR, MDC submitted public comments. See Attachment B. MDC also provided oral testimony at both certification hearings on April 20th and April 22nd, respectively. At neither hearing did a party, including TRANSDEF, object that the participation of MDC, including its substantive comments on the EIS/EIR, were untimely. Nor did either public agency take the position that MDC could not participate in the administrative process for lack of standing or lack of timeliness.

TRANSDEF has badly distorted the law and the public record in an effort to fabricate a standing argument to prevent the Board from receiving critical commentary on defects in the EIS/EIR. Its approach to this appeal mocks the important principles that foster public commentary on the adequacy of legislatively mandated reports of environmental impact. It is indeed ironic that an entity that purports to serve the public interest is so focused on suppressing disclosure and public commentary that it resorts to distortion and misdirection. Notwithstanding this gamesmanship, MDC has standing to appeal the certification of the EIS/EIR. Moreover, it behooves the Board to carefully consider MDC's arguments regarding the legal insufficiency of this EIS/EIR since, regardless of MDC's standing to bring this appeal, MDC will clearly have standing to challenge the EIS/EIR in court.

II. Burbank-Glendale-Pasadena Airport v. Robert R. Hensler (1991) 233 Cal.App.3d 577

In our appeal submission, we cited Burbank-Glendale-Pasadena Airport . Robert R. Hensler (1991) 233 Cal.App.3d 577 for a very discrete point: that courts will enjoin condemnation proceedings that rely on flawed environmental impact statements or reports. We wanted to bring this legal principle to the attention of the Board to underscore the serious risk of proceeding with any attempt to condemn the 80 Natoma property while legal proceedings were ongoing on the adequacy of the EIS/EIR. There is little question that until and unless the City certifies a compliant environment statement and report, CEQA litigation will ensue for many years, thus holding up any attempt to condemn the 80 Natoma property. Importantly, TRANSDEF does not quarrel with our point. Rather, it engages in more misdirection. In its letter, it attempts to point out factual dissimilarities between the circumstances in the Burbank case and the Transbay EIS/EIR. But that, of course, is beside the point for present purposes. We did not cite Burbank for its factual similarities with the Transbay Project or with respect to whether the substantive environment impact issues are analogous. We merely wanted to identify' for the Board what we believe is a very important consideration in reviewing the adequacy of the EIS/EIR in this case.

III. 80 Natoma Entitlements

In another attempt to avoid the merits of our appeal, TRANSDEF asserts that 80 Natoma lacks valid permits and thus the EIS/EIR did not have to consider the impact of the Transbay project on the 80 Natoma project. Once again, TRANSDEF badly misleads, and is engaged in diversionary tactics. Contrary to what TRANSDEF represents (without substantiation) to this Board, the Department of Building Inspection ("DBI") has not made any determination that the 80 Natoma permits have expired or are otherwise void. Rather, DBI is merely investigating the history of the site permits. What is more, any determination by DBI that the permits are "null and void," the conclusion to which TRANSDEF would like this Board to jump prematurely, would be utterly erroneous and the subject of extensive litigation.

To summarize, DBI issued permits in 1999 and the predecessor of MDC undertook work at the site at the time. Since then, the City and County has continuously affirmed the validity of the permits and, in fact, issued a revised site permit in March of this year, which confirmed the full entitlement of the project. In reliance on this continuous and consistent affirmation by DBI of the validity of the permits, MDC has expended millions of dollars to purchase and develop the 80 Natoma project, through, among other things, full capitalization of the project, assumed contractual obligations for the hiring architects and engineers, and the purchasing of orders for materials. In the event that MDC is forced to litigate over its entitlements, it is very confident that it will prevail. See, e.g., Community Development Commission of Mendocino County v. City of Fort Bragg (1988) 204 Cal.App.3d 1124, 1130-1131 (a conditional use permit does not expire for lack of substantial use in progress where owner of permit has shown good faith intent to proceed by, for example, obtaining funding, purchasing the property, hiring architects and engineers, performing pre-construction work and soil borings, and submitting plans to building inspection department).

But this is not the time or place to debate the complex history of the 80 Natoma project. That endeavor is well beyond the scope of the appeal, and the Board should decline the TRANSDEF invitation to digress from the important issues the EIS/EIR appeals present for adjudication. We respectfully urge the Board to stay focused on the task at hand: determining whether the EIS/EIR complies with applicable law. As we have shown, which TRANSDEF fails to contest, the environmental documents fall woefully short of compliance with applicable law.

IV. More TRANSDEF Misdirection

The final misdirection by TRANSDEF is a strawman argument that relies entirely on a misstatement of our position. In our appeal submission, we cited San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61 for the proposition that tribunals must interpret CEQA provisions to afford the fullest possible environmental protection. On the basis of that principle, we showed that by omitting the 80 Natoma Project from the EIS/EIR, the City applied an unreasonably narrow interpretation of CEQA Guidelines and, in so doing, abused its discretion. Again, TRANSFEF does not challenge this point. Rather, as is characteristic, it erects a strawman response by mischaracterizing our position.

TRANSDEF falsely states that MDC contends that San Franciscans for Reasonable Growth "mandates that a list of all approved and pending projects must be used to analyze the cumulative impacts of downtown projects." That is not what we assert in this appeal. We do not address whether the City should or should not have used a cumulative impact approach and whether, in so doing, they did so insufficiently. Again, what we demonstrated, and what TRANSDEF ignores, is that the exclusion of 80 Natoma from the EIS/EIR violates the mandate of San Franciscans for Reasonable Growth that CEQA be applied in a manner that allows for the broadest possible environmental protection. By omitting consideration of 80 Natoma, the EIS/EIR had unquestionably run afoul of this legal principle. TRANSDEF does not maintain or show to the contrary.

V. The Omission of 80 Natoma from the EIS/EIR

In our appeal submission, we demonstrated that the EIS/EIR failed to consider the impact of the Transbay project on 80 Natoma. In response, TRANSDEF cites to the Board a reference to a "residential tower on Natoma and near Second Street" as evidence that the EIS/EIR does mention 80 Natoma. This is absurd. First of all, the complete reference, which TRANSDEF fails to disclose to the Board, is to a "recently completed" residential tower on Natoma Street. As everyone knows, and as TRANSDEF likes to trumpet, 80 Natoma is still in the excavation and foundation stage, much less "recently completed." Further, if this reference is intended to be 80 Natoma, it only underscores the inadequacy of the EIS/EIR. The reference is utterly oblique and is useless to provide relevant context for the affected area of the Transbay Project. It is notable that the EIS/EIR had no difficulty expressly identifying the proposed 301 Mission project. If the Board assumes that the reference to "recently completed" residential tower is to 80 Natoma, the reference should be considered the poster child for the lack of care used to comply with CEQA guidelines.

VI. Conclusion

TRANSDEF has not only failed to raise doubt about the merits of the appeals, but in fact has provided further support for them (including those it totally ignores). The EIS/EIR cannot survive scrutiny because it fails to comply with the requirements of CEQA. We respectfully remind the Board that this appeal does not concern whether the Transbay Project will ultimately become a meritorious project. As Supervisor Peskin so aptly observed on June 8, members of the Board are duty-bound to reject legally deficient environmental reports on projects they otherwise favor and accept legal adequate environmental reports on projects they disfavor. The social and political merits of a project, in the context of a CEQA review, are utterly irrelevant. The Board must apply the law to the facts, no more, and no less. In this case, application of the law to the EIS/EIR can produce only one reasonable conclusion: the environmental documents for the Transbay Project are inadequate and this Board must reverse the. prior decisions to certify them.

Respectfully submitted,

Timothy A. Tosta

cc: Alice Barkley