Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. CPF-08-508277.
SIMONS, J.
This case arises under the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq. A. F. Evans has proposed to construct a development, known as the 55 Laguna Mixed Use Project (the Project), on the site of the former University of California, Berkeley Extension campus. The Project would include approximately 440 residential units in new buildings and rehabilitated historic buildings, as well as retail, community, and open space. It would also result in the demolition of an historic building, a portion of a second historic building, and a retaining wall along Laguna Street. Acting through the Board, City approved certification of an environmental impact report (EIR), which concluded that the Project would have significant unmitigated impacts on historic resources at the site. Nevertheless, City found that alternatives to the Project were infeasible and that overriding considerations warranted approval of the Project. Appellant petitioned the superior court for a writ of mandate, alleging violations of CEQA. The court denied the petition. On appeal, appellant contends City violated CEQA by finding infeasible an alternative to the Project that would have avoided demolition of historic structures on the site. We conclude City’s finding is supported by substantial evidence, reject appellant’s other contentions, and affirm the judgment denying appellant’s petition.
All further undesignated section references are to the Public Resources Code.
This court gave permission to The San Francisco Preservation Consortium (amicus) to file an amicus curiae brief in support of appellant.
FACTUAL AND PROCEDURAL BACKGROUND
The Project is proposed to be located on 5.8 acres north of Market Street in the Hayes Valley neighborhood, on two city blocks bounded by Haight Street to the north, Laguna Street to the east, Hermann Street to the south, and Buchanan Street to the west. Regents own the land and propose to lease the site to the Project developers.
The Project site contains four historic structures built in the 1920’s and 1930’s in the “Spanish Colonial Revival style of architecture” (Woods Hall, Woods Hall Annex, Richardson Hall, and Middle Hall) during the site’s use by the San Francisco State Teacher’s College. The site also contains substantial surface parking lot space, and a newer building occupied by the University of California, San Francisco Dental School (which is not part of the Project). The EIR prepared by City for the Project explains that the site “has been in some form of public use for over 150 years, for such uses as a Protestant Orphan Asylum (1854-1867); the State Normal School (1867-1899); San Francisco State Normal School (1899-1921); San Francisco State Teacher’s College (1921-1935); San Francisco State College (1935-1957); the University of California, Berkeley Extension, San Francisco (1957-2002); and [the French-American International School] (1973-2003).”
As of January 7, 2008, the Project site is a designated historic district in the National Register of Historic Places. The four historic buildings qualify as historical resources, and Woods Hall, Woods Hall Annex, and Richardson Hall (with the exception of its administration wing) are designated as City landmarks.
The Project would consist of a mixed-use development including approximately 430, 800 square feet of residential space in approximately 440 units, up to 5, 000 square feet of retail space, approximately 10, 000 square feet of community facility space, and approximately 127, 360 square feet of mostly underground parking. A. F. Evans would develop approximately 330 of the units as rental housing and approximately 110 of the units would be developed by openhouse as senior housing, “welcoming” to the lesbian, gay, bisexual, and transgender (LGBT) senior community. Between 15 percent and 20 percent of the A. F. Evans units would be affordable housing under City’s inclusionary housing ordinance, the final percentage depending on the availability of tax-exempt bond financing. The 440 residential units would occupy seven new buildings as well as rehabilitated Woods Hall, Woods Hall Annex, and Richardson Hall. The retail and community space would occupy portions of Richardson Hall. Most of the new buildings would replace the current surface parking lots. But the Project would require the demolition of the administration wing of Richardson Hall (one-fourth of the building) to accommodate the openhouse development. The Project would also involve demolition of Middle Hall to, according to the EIR, “accommodate a proposed residential building fronting Buchanan Street[, Building 2], and stepping down the interior slope of the site.” Finally, the Project would result in the demolition of the retaining wall along Laguna Street between Waller and Haight Streets to accommodate a new building facing Laguna Street.
The Board’s April 2008 findings under CEQA refer to 330 A. F. Evans units and 110 openhouse units. The EIR refers to 365 A. F. Evans units and 88 openhouse units.
At a March 2008 hearing before the Board, counsel for A. F. Evans and openhouse asserted that the Project preserves 83 percent of the existing historic square footage.
In its opening brief, appellant states that the demolition of Middle Hall is to accommodate a new residential building, but in its reply brief, appellant asserts that the demolition of Middle Hall is solely for the purpose of creating open space, an assertion also made by amicus. However, neither appellant nor amicus argue that the EIR’s description of the reasons for demolition of Middle Hall is in error.
The Board’s April 2008 findings under CEQA refer to the destruction of “the retaining walls along Laguna and Haight Streets, ” without further explanation. Appellant does not contend the EIR is in error on this issue.
On January 27, 2007, City’s Planning Commission (the Commission) published the draft EIR (DEIR) for the Project. The public comment period ran from January 27 through May 2; on April 19, the Commission held a public hearing on the DEIR; and on November 29, City published a document entitled “ ‘55 Laguna Street Mixed Use Project [DEIR] Comments and Responses.” The Planning Department prepared the EIR, consisting of the DEIR, comments received during the review process, additional information that became available, and the DEIR comments and responses.
The EIR acknowledges the Project would have significant adverse impacts to historical resources. The EIR describes three alternatives to the Project: a “no project” alternative, a “preservation” alternative, and a “New College of California/Global Citizen Center Concept Plan” (New College Plan). The preservation alternative would renovate and reuse all four historic buildings and add six new buildings, for a total of up to 332 residential units. The New College Plan envisions reuse of the four historic buildings and use of newly constructed buildings by “a private, non-profit educational institution in partnership with a non-profit green business organization, ” such as New College of California in partnership with the Global Citizen Center.
On December 13, 2007, seven months after the May 2 close of the public comment period and two weeks after the November 29 release of the comments and responses regarding the DEIR, appellant submitted to the Commission two axonometric drawings of another preservation alternative prepared by architect Alan Martinez. Appellant referred to the design as the “Modified Preservation Alternative” (MPA). Although the drawings lacked floor plans, building dimensions, and other relevant details, appellant asserted that the MPA contemplated the construction of 450 residential units, the retention of Middle Hall for community use, and the retention of the Richardson Hall Annex for use by the seniors in the openhouse building.
An axonometric drawing is one “prepared by the projection of objects on the drawing surface so that they appear inclined with three sides showing and with horizontal and vertical distances drawn to scale but diagonal and curved lines distorted.” (Merriam-Webster’s Collegiate Dict., 11th ed., 2003, p. 87.)
On January 17, 2008, the Commission certified the EIR and found that the Project will result in impacts to historical resources that cannot be reduced to a level of insignificance with mitigation measures: the demolition of Middle Hall, the administration wing of Richardson Hall, and the Laguna Street retaining wall; the potential ineligibility of the site to continue as a listed historic district; and similar negative impacts to historical resources from rezoning of the site. On February 6, 2008, appellant appealed the Commission’s certification to the Board. Appellant also requested that “the pro forma for the entire Project be re-evaluated by an independent economic consultant.”
An independent real estate economic consulting firm, Seifel Consulting, Inc. (Seifel), reviewed A. F. Evans’s pro forma, including an estimate of the costs of constructing the MPA and the revenues and returns that could be realized were the MPA implemented. On February 25, 2008, Seifel issued a report (Seifel Report) stating its conclusions. Seifel concluded that A. F. Evans’s cost and revenue estimates were reasonable and that the MPA was financially infeasible because it would not provide enough returns to support financing, primarily due to the higher cost of the “mid-rise” construction required by the MPA.
In a letter to City dated February 26, 2008, Martinez disputed the A. F. Evans cost estimates, but he did not dispute that the MPA would require construction of taller buildings. On March 4, the Board held a public hearing on appellant’s appeal of the January 17 certification of the EIR. Martinez spoke and criticized the preservation alternative in the EIR. He stated, “The opportunity of this site was really that the State could have asked for a rezoning of whatever height limits they wanted and that gave them a great opportunity to shape the buildable area on this site. I think [if] a serious preservation alternative had been done they would have asked for increased height limits in certain areas that didn’t impact the surrounding area and that could have given them enough bulk to do what they wanted to do.” At the end of the hearing, the Board affirmed certification of the EIR.
In a letter dated April 8, 2008, the date of the Board’s hearing on adoption of its CEQA findings, architect Arnie Lerner purported to provide a “peer review” of the MPA “cost estimate.” However, the letter and an attachment provided only estimates for a few items, such as the cost of retaining Middle Hall, rather than an estimate of total costs.
On April 8, 2008, the Board adopted its CEQA findings (CEQA Findings). The Board found that “the Project provides the best balance between satisfaction of the project objectives and mitigation of environmental impacts to the extent feasible, as described and analyzed in the EIR.” The CEQA Findings addressed the three alternatives discussed in the EIR, as well as the MPA. With regard to the MPA, the Board relied on the Seifel Report to find the MPA economically infeasible because it “requires equity investments that are unsupportable given private equity underwriting requirements.” The Board found that if the mitigation measures proposed in the EIR were adopted, all environmental impacts of the Project, except impacts to historic resources, would be avoided or reduced to an insignificant level. The Board concurred in the Commission’s finding that the Project will result in specified impacts to historical resources that cannot be reduced to a level of insignificance with mitigation measures. Nevertheless, the Board found that the Project has substantial benefits to City, including the provision of rental housing (some of which would be affordable), senior housing and services welcoming to the LGBT community, a community center, publicly accessible open space, reintegration of the site into the surrounding neighborhood, retail space, adaptive reuse of three City landmarks, and fiscal benefits to City. The Project is also consistent with City policy in favor of public transit and the Project is “a nationally recognized LEED ND (leadership in energy and environmental design for neighborhood developments) pilot project.” The Board found these benefits “outweigh the unavoidable adverse environmental effects to historic resources.” On April 15, the Board approved various other actions in furtherance of the Project including, for example, general plan and zoning amendments and the approval of a special use district.
In April 2008, appellant filed a petition for writ of mandate requesting, among other things, that City be directed to set aside and void all Project approvals and to comply with CEQA and other legal requirements. In May 2008, appellant filed an amended petition seeking the same relief. The trial court denied the petition and entered judgment against appellant.
DISCUSSION
I. Summary of Relevant CEQA Requirements
“CEQA is a comprehensive [statutory] scheme designed to provide long-term protection to the environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112 (Mountain Lion).) Its purpose is to ensure that public agencies regulating activities that may affect the environment give primary consideration to preventing environmental damage. (Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1100 (Architectural Heritage).) Pursuant to section 21083, regulatory guidelines regarding the application of CEQA have been promulgated in California Code of Regulations, title 14, section 15000 et seq. (hereafter Guidelines). (Architectural Heritage, at p. 1100 & fn. 2.)
Courts should give great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2 (Laurel Heights).)
The “heart of CEQA” is the EIR. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (Goleta Valley); California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 978 (California Native Plant).) “The EIR, with all its specificity and complexity, is the mechanism prescribed by CEQA to force informed decision making and to expose the decision making process to public scrutiny. [Citations.]” (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 910.) “A public agency must prepare an EIR or cause an EIR to be prepared for any project that it proposes to carry out or approve that may have a significant effect on the environment. [Citations.] The EIR must describe the proposed project and its environmental setting, state the objectives sought to be achieved, identify and analyze the significant effects on the environment, state how those impacts can be mitigated or avoided, and identify alternatives to the project, among other requirements. [Citations.]” (Federation of Hillside and Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1197.) A significant impact is a substantial, or potentially substantial, adverse physical change in the environment, including adverse changes to objects of historic significance. (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945; see also § 21084.1 [“A project that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment.”].)
Section 21068 defines a “ ‘[s]ignificant effect on the environment’ ” as “a substantial, or potentially substantial, adverse change in the environment.” Guidelines section 15382 further defines a “ ‘[s]ignificant effect on the environment’ ” as “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic and aesthetic significance.” (See also Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1333.)
“CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts. [Citations.]” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163.) According to the Guidelines: “An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable alternative to a project. Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. An EIR is not required to consider alternatives which are infeasible.” (Guidelines, § 15126.6, subd. (a); see also In re Bay-Delta etc., at p. 1163.) As defined by statute, “ ‘Feasible’ means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (§ 21061.1; see also Guidelines, § 15364.)
Feasibility is also important at the project approval stage. (California Native Plant, supra, 177 Cal.App.4th at p. 981.) “CEQA contains a ‘substantive mandate’ requiring public agencies to refrain from approving projects with significant environmental effects if ‘there are feasible alternatives or mitigation measures’ that can substantially lessen or avoid those effects. [Citations.]” (County of San Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 98, quoting Mountain Lion, supra, 16 Cal.4th at p. 134; see also § 21002; California Native Plant, at p. 978.) While “potentially feasible” alternatives should be included in the EIR, at the project approval stage the issue is whether the alternatives are “actually feasible.” (California Native Plant, at p. 981; see also City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 368-369.) Any finding of infeasibility must be supported by substantial evidence. (§ 21081.5; Guidelines, § 15091, subd. (b).)
“As relevant here, a project with significant environmental impacts may be approved only if the decisionmaking body finds (1) that identified mitigation measures and alternatives are infeasible and (2) that unavoidable impacts are acceptable because of overriding considerations. [Citations.]” (California Native Plant, supra, 177 Cal.App.4th at p. 982.) A public agency’s statement of overriding considerations is “an express written determination that the project’s benefits outweigh any potential environmental harm. [Citations.]” (Id. at p. 983.) Under section 21081, subdivision (b), the agency must find “that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” “While the mitigation and feasibility findings typically focus on the feasibility of specific proposed alternatives and mitigation measures, the statement of overriding considerations focuses on the larger, more general reasons for approving the project, such as the need to create new jobs, provide housing, generate taxes, and the like. [Citation.]” (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 847.) The public entity’s statement of overriding considerations must be supported by substantial evidence. (California Native Plant, at p. 983.)
On appeal from denial of appellant’s petition for writ of mandate, this court reviews City’s actions, not the trial court’s decision. (California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 185.) We independently review the administrative record to determine whether City prejudicially abused its discretion by failing to proceed in a manner required by law, or by rendering a decision unsupported by substantial evidence. (§ 21168.5; California Native Plant, supra, 177 Cal.App.4th at p. 984.) This court determines de novo whether City employed the correct procedures under CEQA. (California Native Plant, at p. 984.) On the other hand, we apply the “highly deferential” substantial evidence standard of review to City’s factual determinations. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 572.) Guidelines section 15384, subdivision (a), defines “ ‘substantial evidence’ ” as “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.” To support a fair argument, “substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact, ” but not “argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (§ 21080, subd. (e)(1) & (2); see also Guidelines, § 15384.) “ ‘The agency is the finder of fact and we must indulge all reasonable inferences from the evidence that would support the agency’s determinations and resolve all conflicts in the evidence in favor of the agency’s decision.’ [Citation.] That deferential review standard flows from the fact that ‘the agency has the discretion to resolve factual issues and to make policy decisions.’ [Citation.]” (California Native Plant, at p. 985.) The decision of the lead agency is “presumed correct, ” and the party seeking a writ of mandamus “bear[s] the burden of proving otherwise.” (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 674 (San Franciscans).)
II. Substantial Evidence Supports City’s Finding That the MPA Is Infeasible
In this case, City found that the preservation alternative discussed in the EIR and the MPA are infeasible on economic grounds. In particular, City accepted the conclusion of an independent economic consulting firm, Seifel, that the preservation alternative and the MPA did not have high enough profit potential to attract the type of equity investment necessary to fund the development. Appellant contends the Seifel Report does not constitute substantial evidence to support the finding that the MPA is infeasible. We disagree.
Appellant fails to present any reasoned argument that City erred in finding that the preservation alternative is infeasible. Appellant merely asserts that the reasoning applicable to the MPA also applies to the preservation alternative, and that the California Department of Parks and Recreation Office of Historic Preservation sent a letter to City in support of the preservation alternative. However, the Seifel Report indicates that the problem with the preservation alternative is lack of enough units to produce sufficient revenue, not higher construction costs, which is the problem with the MPA.
A. The Seifel Report
A. F. Evans retained Seifel “to provide an independent financial evaluation of the proposed residential development and three project alternatives for 55 Laguna Street in San Francisco.” Appellant does not dispute Seifel’s qualifications to advise City on the issue of economic feasibility. According to the firm’s statement of qualifications, Seifel is “an economic consulting firm providing strategic real estate and urban economic advisory services to public agencies, institutional investors and developers.... Seifel has specialized expertise in the areas of public-private development transactions, redevelopment and other public financing techniques, affordable housing feasibility and funding, and fiscal and economic impact analysis.” Seifel has experience working with numerous San Francisco agencies and other public entities statewide, and on projects in numerous San Francisco neighborhoods. The firm identifies “real estate economics” as the “foundation” for its work and explains: “It is a technical discipline that provides insight into the real estate market through tools such as site analysis, market research, financial feasibility, and highest and best use studies. [Seifel] combine[s] insight into the real estate market with a well-honed foundation in cash flow modeling, asset valuation, and other analytical methods.”
The Seifel Report, dated February 25, 2008, scrutinized the cost estimates in A. F. Evans’s pro forma for the Project (referred to in the report as the “preferred project”) and the alternatives. The Seifel Report summarized the cost estimates as follows: “A. F. Evans[’s] construction costs for the preferred and preservation alternatives are based on estimates from Cahill Contractors[, Inc., ] completed in Fall 2007. The cost estimates for the [MPA] are based on an extrapolation from these estimates based on differences in anticipated construction costs due to changes in construction type and complexity associated with historic rehabilitation.” A. F. Evans estimated that the “hard” construction costs for the MPA would be $401 per square foot, as compared to $330 per square foot for the preferred project. A. F. Evans’s estimates were for its construction costs, excluding the separately financed units to be built by openhouse.
The Seifel Report concluded that A. F. Evans’s costs estimates were reasonable: “These hard costs are within the range of other projects that we have reviewed and the construction costs reported in the 2006 San Francisco Inclusionary Housing Study. This Study surveyed a variety of development projects citywide in 2006 and found that average construction costs” were “about [20] percent higher, for midrise construction.” Mid-rise construction contemplates buildings made out of concrete rather than wood frame structures. This largely accounted for the higher cost of the MPA: “The 21 percent increase in hard costs/sf between the [MPA] and the preferred project is reasonable given the greater amount of historic rehabilitation that would be accomplished and the higher cost of midrise construction, which is... substantially more expensive than wood frame construction.” The report also concluded it was reasonable that the construction costs of Cahill Contractors, Inc. (Cahill), were about 10 percent higher than those in the study, given the “complex site grading work and historic rehabilitation of existing structures.”
Appellant asserts that the conclusion that mid-rise construction is more expensive is unsupported, but appellant fails to acknowledge the Seifel Report’s reliance on the 2006 San Francisco Inclusionary Housing Study.
The Seifel Report then proceeded to explain the difficulties A. F. Evans faced in obtaining financing for the Project. As explained in the report, the amount of a traditional commercial loan is based on the revenue the project “could currently be expected to generate, as if it were already constructed and operating at stabilized occupancy.” However, all three of the relevant development proposals-A. F. Evans’s preferred project, the preservation alternative, and the MPA-lack a sufficient potential revenue stream to support total development costs. For example, A. F. Evans’s preferred project “has a total development cost of $171.0 million, and after taking into account contributions from openhouse and tax credits, it would require a construction loan of $157.8 million, which is substantially more than the capitalized value of $118 million.” A. F. Evans plans to overcome this obstacle by finding an equity investor “able to guarantee the difference between the construction [loan] and the potential value of the project.” The Seifel Report explains the investor’s motivation: “The equity investor receives a fee and a share of project profits in exchange for its guarantee. When the project converts from a construction loan to a permanent loan (projected to occur in 2015), the equity investor must also contribute the difference between the outstanding construction loan and the maximum supportable permanent loan. This difference is estimated to be $30.2 million for the preferred project, $37.4 million for the preservation alternative and $63.2 million for the [MPA]. The investor would look to recover this investment when the project is sold. The scale of the guarantee and the subsequent cash investment in the project limits the potential pool of investors to large, established equity investors.” (Fn. omitted.)
The Seifel Report also explains the difficulty in financing either of the preservation alternatives: “We spoke to several institutional equity investors in order to confirm the terms of this type of financing structure, their underwriting considerations and the returns required for them to pursue the investment. The investors would typically look for this type of project to require equity of no more than 15 to 20 percent of the value of the construction loan.... [T]he preferred project is within this range, but the alternatives require equity of 30 to 33 percent of the construction loan, making it unlikely that investors would underwrite these investments.” The report further explains: “Given the size and [the] risk of this project, investors stated that they would require an internal rate of return in the high teens to low twenties on their equity investment in exchange for their involvement in the project.... [¶] [T]he preferred project is the only project alternative with sufficient proceeds from the sale of the development to produce the required returns. While the financial performance of the preservation [alternative and the MPA] could improve if operating expenses were lower, our analysis indicates that net operating income would not likely change enough to result in a project that institutional investors and/or lenders would consider funding given stated underwriting standards.” The Seifel Report concludes: “In summary, Seifel... concurs with the developer that the preferred project is the only financially viable development program. Our analysis demonstrates that even the preferred project is challenged to meet investor hurdle rates given the risks associated with a project of this complexity. The three alternatives require equity investments that are unsupportable given private underwriting requirements.”
The Board’s CEQA Findings describe the Seifel Report and explain the reasoning underlying the conclusion that the MPA is infeasible. The findings rely on the Seifel Report to find the MPA economically infeasible because the MPA “requires equity investments that are unsupportable given private equity underwriting requirements.” The findings conclude: “Because the [MPA] is financially infeasible and is unlikely to be implemented, it would not provide to... City the significant benefits of the proposed project..., but may result in the property remaining vacant for an indefinite period of time, resulting in continuing deterioration of the three City landmarks on the site and continuing safety and security problems for neighbors.”
B. Appellant’s Contentions
Appellant bears the burden of demonstrating that the Seifel Report, on which the finding of infeasibility is based, is “clearly inadequate or unsupported.” (Laurel Heights, supra, 47 Cal.3d at p. 409, fn. 12; Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1467-1468 (Save Round Valley); State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 795.) As noted previously, appellant does not contend Seifel was unqualified to perform the economic analysis reflected in the report. Neither does appellant dispute Seifel’s analysis of the difficulty of securing financing for the Project or Seifel’s statements regarding the equity percentage and returns required by the type of equity investor needed to finance the Project. Instead, appellant questions the A. F. Evans cost estimates for the MPA, which estimates were accepted as reasonable in the Seifel Report. As support, appellant points to a February 26, 2008 letter submitted by Martinez, reporting on an informal survey he conducted regarding construction costs. Martinez wrote: “I have recently questioned several architects and developers for the hard construction costs for multiunit residential projects and have come up with a range of answers from a low of $180 per square foot to a high of about $270 per square foot.” Regarding the cost estimate for the MPA in the Seifel Report, the Martinez letter states: “The statement that the [MPA] would have a higher per square foot construction cost is unsubstantiated in [the Seifel Report], and is only supported by A. F. Evans[’s] claim that it is true. Recent experience shown by the projects [in Martinez’s informal survey] has been that all-concrete construction (even type 1) now can be cheaper than wood or steel frame construction so an appeal to higher expense due to a difference in type of construction is simply not true anymore.” The Martinez letter concludes, “The type of construction shown in the [MPA] is not so remarkably different from the construction shown in [A. F. Evans’s] preferred [project] to justify a claim of a higher per square foot construction cost, and even if it was a different type of construction that in itself would not now justify a claim of higher construction costs.”
These cases are in the context of review of findings in an EIR, which are also reviewed for substantial evidence.
The Martinez letter fails to undermine the Seifel Report. The letter fails to acknowledge the Seifel Report’s reliance on construction costs reported in the 2006 San Francisco Inclusionary Housing Study, which appears to be more reliable than Martinez’s informal survey of “several” architects and developers. The Martinez letter does not state that any of the projects he surveyed involved historical preservation and rehabilitation, which the Seifel Report explains accounts in part for Cahill’s higher cost estimates. Finally, the Martinez letter does not indicate he has any expertise in estimating construction costs or provide a reasoned explanation for his assertion that the MPA, which requires buildings of greater height, would not be more expensive. (See San Franciscans, supra, 102 Cal.App.4th at p. 695, fn. 23 [witness testimony that expert underestimated value of commercial rental space and that alternate tenants were available did not undermine expert opinion regarding economic infeasibility of preservation alternatives].) In any event, this court is obligated to resolve conflicts in the evidence in favor of City, including conflicting expert opinions. (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317; see also Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397 (Irritated Residents) [“When the evidence on an issue conflicts, the decisionmaker is ‘permitted to give more weight to some of the evidence and to favor the opinions and estimates of some of the experts over the others.’ [Citation.]”]; Laurel Heights, supra, 47 Cal.3d at p. 409 [“It is also well established that ‘[d]isagreement among experts does not make an EIR inadequate.’ [Citation.]”].)
Elsewhere in its briefs, appellant disputes that the MPA would include taller buildings, but appellant cites to nothing in the record supporting its position and fails to explain how the MPA could preserve all of the historic structures and include as many units as A. F. Evans’s proposal without taller buildings. In fact, Martinez, who conceived of the MPA, told the Board that a “serious preservation alternative” would involve “increased height limits.”
Appellant also quotes a letter submitted to City from Lerner + Associates asserting that historic preservation tax credits would provide a “net gain of about $450,000 to the project [developer] per” the Seifel Report. However, that does not undermine the Seifel Report or its conclusions; the Seifel Report states those credits are factored into the A. F. Evans cost estimates. Appellant also cites to testimony from Cynthia Servetnick, who holds a degree in architecture, that it is “common sense” that the A. F. Evans cost estimates for the MPA are wrong. That assertion obviously does little to undermine the Seifel Report.
Appellant cites language from Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1181, that “The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.” That quotation supports the Board’s finding of infeasibility; the Seifel Report concluded not just that the MPA is more expensive, but also that financing for the MPA would be unattainable. (See also Save Round Valley, supra, 157 Cal.App.4th at p. 1461.) This case bears some similarity to San Franciscans, which involved a redevelopment project planned for the site of the former Emporium store in downtown San Francisco. (San Franciscans, supra, 102 Cal.App.4th at p. 666.) An independent expert considered various alternatives to the proposed project, which alternatives included more preservation and rehabilitation of the former store. (Id. at pp. 693-694.) The expert’s analysis showed that the preservation alternatives were more costly and provided lower projected income streams and profitability, which decreased the availability of private investment sources and required more financing with public resources. (Id. at p. 694.) The expert concluded the developer’s preferred project was the only economically feasible option because it was the only option in which the increased tax revenues generated by the project would be sufficient to cover the entire public investment. (Ibid.) In concluding that the infeasibility findings were supported by substantial evidence, the San Franciscans decision stated: “The [c]ity and its agencies made every effort to mitigate the environmental impacts of the [p]roject as much as possible, requiring numerous changes and amendments that ultimately resulted in a proposal that preserves the most significant architectural and historic elements of the Emporium Building while revitalizing a major downtown area at a cost the [c]ity could afford.” (Id. at p. 695.)
City found that redevelopment of the 55 Laguna Street campus requires a similar balancing of preservation and profitability, and substantial evidence supports City’s finding that the MPA is infeasible on economic grounds.
Because we conclude City’s finding on feasibility is supported by substantial evidence, we reject appellant’s challenge to the Board’s statement of overriding considerations. Appellant’s only argument on the issue is that it was improper for the Board to adopt a statement of overriding considerations where there were feasible alternatives to the Project.
C. Additional Arguments Regarding Feasibility Made by Amicus
Amicus presents a string of additional arguments regarding City’s finding that the MPA is infeasible, none of which are raised by appellant on appeal and none of which appear to have been presented to City below. Amicus’s arguments are calculated to raise doubts about the conclusion in the Seifel Report that the MPA would be more expensive because of the greater amount of rehabilitation and because the taller buildings would be more expensive to construct.
This court normally does not address arguments presented only in an amicus curiae brief. (See, e.g., Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1310-1311, fn. 5.) Moreover, this court normally does not address grounds that were not presented to the lead agency during the administrative CEQA compliance process. (State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at pp. 794-795.) Because amicus’s contentions plainly fail to show the infeasibility finding is unsupported by substantial evidence, we need not determine whether we should decline to consider amicus’s arguments on either of those grounds.
Amicus also asserts that an additional alternative was presented to City in an April 8, 2008, letter from architect Arnie Lerner. Amicus characterizes this alternative as a “ ‘low tech’ proposal simply to retain Middle Hall, instead of tearing it down for open space.” In fact, the Lerner letter only purports to be a cost estimate for the MPA, not yet another alternative. Amicus cites to no other portion of the record supporting its assertion that Lerner presented a separate alternative to City.
On the rehabilitation issue, amicus points out that Cahill’s estimates show that rehabilitation is actually less expensive than new construction. However, amicus cites to nothing in the record showing that each square foot of additional rehabilitation under the MPA would translate into one fewer square foot of necessary new construction. Thus, amicus has not shown that the MPA would not result in some overall additional rehabilitation work without a corresponding decrease in new construction. In any event, according to the Seifel Report, the higher cost of the MPA is primarily due to the higher cost of mid-rise construction.
On the mid-rise construction issue, amicus asserts that Cahill indicated that construction of a taller building would cost only $1 million more because, in estimating the cost of the preservation alternative, Cahill included a notation “Note-[openhouse] building not included[.] Add $1,000,000 premium for high[-]rise.” However, that notation is too lacking in context or explanation to undermine the Seifel Report’s analysis, particularly where that analysis is supported by a study of San Francisco construction costs. Moreover, the Cahill notation is, at most, conflicting evidence that cannot justify overturning City’s finding of infeasibility. (California Native Plant, supra, 177 Cal.App.4th at p. 985.)
At oral argument, appellant argued that, in estimating the cost of the MPA, the Seifel Report should have used a Cahill estimate of the cost of mid-rise construction for the preservation alternative. We understand this to be a reference to the $1 million “premium for high[-]rise” notation discussed herein. Appellant has provided no record citation for a Cahill estimate of the cost of mid-rise construction for the preservation alternative, which (aside from the openhouse building) includes only buildings three to four stories tall.
Like appellant, amicus ignores that the Seifel Report cites to the 2006 San Francisco Inclusionary Housing Study as support for its conclusion that the A. F. Evans cost estimates are reasonable.
Finally, amicus argues it was improper for A. F. Evans to estimate for the MPA across the board construction cost increases of over 20 percent, where not all of the new buildings in the MPA are significantly higher than those in the Project. Amicus asserts that only one of the buildings in the MPA “is significantly taller than the four-story buildings that [A. F. Evans] plans for the campus.” Our analysis of this argument is impeded by the lack of detail in the MPA, submitted by appellant in an untimely fashion, seven months after the May 2007 close of the public comment period. The axonometric sketch that constitutes the MPA lacks any building heights or other details, and A. F. Evans necessarily was required to assign building dimensions and allocate the residential units in order to come up with a cost estimate. Subsequently, Martinez, who conceived of the MPA, accepted the assumption that the MPA would require concrete construction, and he did not argue that such construction would be limited to one building or provide details regarding building heights in order to undermine the A. F. Evans cost estimate.
The Board’s CEQA Findings assert that City was not required to address the MPA. The findings cite to section 15207 of the Guidelines, which provides that a “lead agency need not respond to late comments” to an EIR. Because we conclude substantial evidence supports City’s finding of infeasibility, we need not consider whether City could have declined to address the MPA.
Moreover, the one building (building B-4) in the MPA that amicus admits is significantly taller than any of the buildings in the Project as proposed by A. F. Evans would contain nearly 40 percent of the units to be constructed by A. F. Evans under the MPA. Accordingly, a substantial increase in the cost of constructing that building alone would have a significant impact on the overall construction cost. This is important because the Seifel Report concludes that the Project as proposed is already “challenged to meet investor hurdle rates given the risks associated with a project of this complexity.” The report explains that investors would typically look for a project of this type to require equity of “no more than 15 to 20 percent of the value of the construction loan.” The Project as proposed will require equity of 19 percent of the value of the loan, so any significant increase to the construction cost is likely to render the Project financially infeasible under the Seifel Report’s analysis. The Seifel Report projects the MPA will require equity of 33 percent of the value of the construction loan. Accordingly, even if its analysis is imperfect, amicus has not shown that any flaws affect the fundamental conclusion that the MPA is financially infeasible.
The Seifel Report is the type of expert opinion that can provide substantial evidence for City’s infeasibility finding. (See San Franciscans, supra, 102 Cal.App.4th at pp. 694-695 [relying on opinion of independent real estate valuation expert to support the city’s finding of economic infeasibility of alternatives].) As explained by the California Supreme Court, “the issue is not whether the studies are irrefutable or whether they could have been better.” (Laurel Heights, supra, 47 Cal.3d at p. 409.) Amicus has not shown that the Seifel Report is so “clearly inadequate or unsupported” that it cannot constitute substantial evidence in support of City’s finding of infeasibility. (Id. at p. 409, fn. 12.)
Respondents fail to address any of the specific contentions made by Amicus regarding the Seifel Report, asserting that this court is not required to “inquire into the purely factual basis of the infeasibility findings at issue here in order to determine the validity of those findings.” Respondents are mistaken. If the conclusions in the Seifel Report lack factual support, the report would not constitute substantial evidence. (§ 21080, subd. (e)(1) & (2); see also Laurel Heights, supra, 47 Cal.3d at p. 409, fn. 12 [“A clearly inadequate or unsupported study is entitled to no judicial deference.”].)
III. Appellant’s Contention That the EIR Must Be Recirculated
Appellant contends the EIR must be recirculated with evaluation of the MPA. However, appellant fails to provide any authority that City is obligated to recirculate the EIR to include discussion of a late-presented alternative that the lead agency has found to be infeasible.
Guidelines section 15088.5, subdivision (a), provides in part that “A lead agency is required to recirculate an EIR when significant new information is added to the EIR after public notice is given of the availability of the draft EIR for public review... but before certification.” (See also § 21092.1.) The Guidelines specify that “[s]ignificant new information” (Guidelines, § 15088.5, subd. (a)) includes a disclosure that “[a] feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project’s proponents decline to adopt it” (Guidelines, § 15088.5, subd. (a)(3), italics added). The Guidelines also state that new information is not significant unless failure to recirculate would deprive the public of an opportunity to comment “upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project’s proponents have declined to implement.” (Guidelines § 15088.5, subd. (a), italics added.) Because we have upheld City’s determination that the MPA was not a feasible alternative, City was not required to recirculate the EIR under section 15088.5, subdivision (a) of the Guidelines. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 447.) Appellant has identified no other authority supporting the proposition that City was required to recirculate the EIR with discussion of the MPA.
We need not consider whether City actually “added” new information about the MPA to the EIR before certification. (Guidelines, § 15088.5, subd. (a).)
“CEQA requires that governmental agencies consider reasonable alternatives. It is not limited to alternatives proposed and justified by objectors [to an EIR].” (Citizens of Goleta Valley v. Board of Supervisors, supra, 197 Cal.App.3d at p. 1178.) The discussion of alternatives in the EIR must be sufficient “to allow informed decision making.” (Laurel Heights, supra, 47 Cal.3d at p. 404.) In this case, the EIR discussed a “no project” alternative, a housing development alternative that preserved all historic buildings, and an educational development alternative that preserved all historic buildings. (Cf. Laurel Heights, at p. 404 [“The EIR prepared by [the University of California, San Francisco, ] contains no analysis of any alternative locations.”].) Appellant does not argue that the EIR is flawed because the MPA (or its equivalent) should have been included in the original EIR; that is, appellant does not contend that the EIR does not discuss an adequate range of alternatives.
Also on point is the California Supreme Court’s decision in Goleta Valley, supra, 52 Cal.3d 553. There, the court concluded that the decision of a county board of supervisors to reject as infeasible certain alternatives to a resort hotel project was supported by substantial evidence. (Id. at p. 559.) In addition to concluding that the findings were supported by the evidence in the record, the court concluded that, because the objector to the project suggested the additional alternatives after expiration of the comment period, the lead agency did not err in making administrative findings that the additional alternatives were infeasible, rather than analyzing the late-presented alternatives in a supplemental EIR. (Id. at pp. 569-570.) The same reasoning is applicable in this case, where the MPA was not presented to City until seven months after close of the comment period.
III. The EIR’s Cumulative Impact Analysis
“ ‘[A] cumulative impact of a project is an impact to which that project contributes and to which other projects contribute as well....’ ” (Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 700.) The Guidelines define “ ‘[c]umulative impacts’ ” as “two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” (Guidelines, § 15355.) “Proper cumulative impact analysis is vital ‘because the full environmental impact of a proposed project cannot be gauged in a vacuum. One of the most important environmental lessons that has been learned is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant when considered individually, but assume threatening dimensions when considered collectively with other sources with which they interact.’ [Citations.] ‘[C]onsideration of the effects of a project or projects as if no others existed would encourage the piecemeal approval of several projects that, taken together, could overwhelm the natural environment and disastrously overburden the man-made infrastructure and vital community services. This would effectively defeat CEQA’s mandate to review the actual effect of the projects upon the environment.’ [Citation.]” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214-1215.)
Section 15130, subdivision (b)(1)(B) of the Guidelines provides that, in describing cumulative impacts, an agency may rely on and incorporate into an EIR a summary of projections contained in an adopted general plan or related planning document, or in a prior environmental document which has been adopted or certified, which described or evaluated regional or areawide conditions contributing to the cumulative impact. The DEIR and EIR state that they “analyze[] the cumulative impacts of the proposed project in light of the policies and principles established in the Market and Octavia... Neighborhood Plan, which is the current tool for guiding development within this area, as well as the Plan’s potential impacts to historic resources as identified in the Neighborhood Plan Draft EIR.” Appellant contends the EIR’s cumulative impact analysis is flawed because the Market and Octavia Neighborhood Plan (Neighborhood Plan) and the Neighborhood Plan EIR had not been adopted or certified when the DEIR was published on January 27, 2007. Instead, the Neighborhood Plan EIR was certified by the Planning Commission on April 5, 2007, prior to certification of the EIR on January 17, 2008.
It is unclear when the Neighborhood Plan was adopted, but the Neighborhood Plan EIR is the document with the information relevant to the cumulative impacts analysis.
The draft Neighborhood Plan EIR stated that “no significant impacts to historical resources from the proposed plan have been identified that could combine with past, present or future impacts” and, thus, “the cumulative impacts resulting from the [Neighborhood] Plan would be less than significant.” The final Neighborhood Plan EIR was certified in April 2007 with “no significant revisions” to the draft. Relying on the Neighborhood Plan EIR, the DEIR and EIR conclude there are no significant cumulative impacts to historic resources. The DEIR and EIR reason: “The Draft EIR for the [Market and Octavia] Area Plan did not identify any significant impacts to historic resources resulting from implementation of the Plan. Since no significant impacts to historic resources were identified as part of implementation of the Area Plan, the significant impacts to historic resources associated with the proposed project would not combine with other potential impacts to historic resources in the Market and Octavia neighborhood to form a significant adverse cumulative impact. In other words, the loss of the existing historic buildings and structures on the project site, as well as the site itself as a potential campus historic district, would not be cumulatively considerable in light of the absence of potential impacts to other historic resources in the larger Market and Octavia neighborhood....”
Even if the DEIR violated section 15130, subdivision (b)(1)(B) of the Guidelines by relying on an uncertified Neighborhood Plan EIR, the document had been certified, without any significant changes, by the time the EIR was certified. Appellant has not shown that the DEIR’s reliance on the draft Neighborhood Plan EIR provides a basis to invalidate the cumulative impact analysis in the EIR. This is particularly true where appellant has not identified any prejudice resulting from the DEIR’s citation to the uncertified Neighborhood Plan EIR. (See Irritated Residents, supra, 107 Cal.App.4th at p. 1391 [“ ‘[A] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’ [Citation.]”].) City’s finding of no significant cumulative impacts is supported by substantial evidence. (See Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1128.)
DISPOSITION
The trial court’s judgment is affirmed. Costs to respondents.
We concur. JONES, P.J., NEEDHAM, J.
The parties are plaintiff and appellant Save the Laguna Street Campus (appellant); defendants and respondents City and County of San Francisco (City) and the Board of Supervisors of the City and County of San Francisco (the Board); and real parties in interest and respondents A. F. Evans Development, Inc. (A. F. Evans), a nonprofit organization called “openhouse” (openhouse), and The Regents of the University of California (Regents).
Amicus also contends that the Seifel Report fails to include tax-exempt bonds, associated with the affordable housing component of the A. F. Evans development, as a source of funds for the MPA. In fact, the Seifel Report describes tax-exempt bonds as a funding source for the preferred project, the preservation alternative, and the MPA. Amicus has not shown that the feasibility calculations in the Seifel Report fail to account for tax-exempt bond financing, or that any omissions could have affected the report’s conclusions.