HOCH, J. —
This appeal involves a challenge under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) to certification of an environmental impact report (EIR) and approval of a project to build a new entertainment and sports center (ESC) in downtown Sacramento.
In a prior appeal, Adriana Gianturco Saltonstall and 11 other petitioners argued section 21168.6.6 violates the constitutional separation of powers doctrine because the Legislature restricted the grounds on which the courts may issue a preliminary injunction to stay the downtown arena project.
In this appeal, Saltonstall contends (1) the City violated CEQA by committing itself to the downtown arena project before completing the EIR process,
As to consideration of feasible alternatives, the City did not err by declining to study the option of remodeling the Sleep Train Arena. The City studied a "no project" alternative involving continued use of the Sleep Train Arena and an alternative that involved building a new arena next to the current arena in Natomas. Both the no project and new Natomas arena alternatives failed to meet most of the City's objectives for the project to revitalize its downtown area. Regardless of whether the Sleep Train Arena remodel alternative might have been environmentally superior to the project approved, the remodel alternative would have suffered the same problems of location that caused the City to reject the other Natomas-based alternatives.
We reject Saltonstall's argument that the EIR is defective for failure to study mainline interstate traffic on I-5 even though the City studied the timing and extent of traffic congestion on the freeway that will likely result due to the project. The City was not required to separately consider the effect of the project on motorists subject to the same traffic conditions simply because their trip origins and destinations might have been different than those of local commuters. The EIR and the Sacramento City Council's statement of overriding considerations demonstrate that the decision makers were informed of and understood the adverse consequences on I-5 traffic resulting
Saltonstall's contention regarding failure to study postevent crowd safety and potential for violence does not implicate CEQA. Saltonstall's argument focuses on a social issue for which no environmental effect is described. Mere speculation about possible crowd violence and its possible effect on the environment does not compel EIR review.
Saltonstall may not raise the issue of the 62,000 e-mail communications she requested from the City under the California Public Records Act (Public Records Act) (Gov. Code, § 6250 et seq.). Review of trial court orders on Public Records Act motions may be made only by writ petition, not by direct appeal. As to the Dangberg-Friedman e-mail and the loan forgiveness report, we deem Saltonstall's argument forfeited for lack of any analysis of how these documents might meet the definition of documents to be included in the administrative record under the Public Resources Code.
Accordingly, we affirm (1) the judgment dismissing Saltonstall's challenge to the sufficiency of the City's EIR and approval of the downtown arena project and (2) the trial court's order denying her motion to augment the administrative record.
Since 1988, the Sacramento Kings have been playing at the Sleep Train Arena (formerly named the Arco Arena). At the time of its opening, the Sleep Train Arena was the smallest arena in the NBA by square footage and the second smallest in terms of seating capacity. Studies and proposals to replace the Sleep Train Arena with another location in Sacramento have been ongoing since the late 1990s.
In 2012, the City developed a preliminary term sheet with the previous owners of the Sacramento Kings to build a multipurpose facility near downtown Sacramento in a section called the "Railyards." The parties were unable to reach an agreement, and the previous team owners broke off discussions with the City.
In January 2013, the previous owners entered into an agreement to sell the Sacramento Kings to an investor group in Seattle, Washington. The NBA announced it would address the issue of the Sacramento Kings' proposed sale and relocation at a meeting scheduled for April 2013. When news of the
On March 1, 2013, an investor group that became Sacramento Basketball Holdings presented a plan to the NBA to acquire the Sacramento Kings, construct a new downtown arena in partnership with the City, and keep the team in Sacramento on a long-term basis. On March 26, 2013, the city council approved a preliminary nonbinding term sheet for development of a new ESC in downtown Sacramento at the site of the Downtown Plaza, a shopping mall with declining occupancy rates. The preliminary nonbinding term sheet listed issues for resolution that included the preferred location, financing, ownership, design, construction, operation, and occupancy for a new downtown arena.
The term sheet also included a disclaimer that the City had no obligation to build, finance, or approve the project until it completed its environmental review and secured all necessary permits for the project. The preliminary nonbinding term sheet further stated the City retained sole discretion to weigh the environmental consequences and to reject the project entirely.
In May 2013, the board of governors for the NBA approved the sale of the Sacramento Kings to Sacramento Basketball Holdings. However, the NBA's board of governors reserved the right to acquire the Sacramento Kings and relocate the team to another city if a new arena in Sacramento does not open by 2017.
The downtown arena project involves demolition of a portion of the Downtown Plaza, located at the 600 block of K Street in Sacramento and bounded by J Street to the north, L Street to the south, 7th Street to the east, and 4th Street to the west. In place of that portion of the Downtown Plaza, the City and Sacramento Basketball Holdings plan to construct a 17,500-seat ESC along with approximately 1.5 million square feet of related retail, commercial, office, and residential development. The project will include as many as 250 new hotel rooms and 550 residential units. Also as part of the project, the City will transfer ownership of six offsite municipally owned digital billboards along with certain other City-owned properties to Sacramento Basketball Holdings.
The demolition and construction schedule targets the opening date for the downtown arena for October 2016 to meet the NBA's deadline for keeping the basketball team in Sacramento.
Section 21168.6.6 does not change CEQA's standards for required content of the EIR or approval for the project. Instead, section 21168.6.6 provides an accelerated timeline of events along with provisions intended to facilitate expedited CEQA review such as preparation of documents in electronic format, making the administrative record readily accessible to the public online, mediation of issues among the parties, and a series of informational workshops to be held by the City.
In addition to imposing accelerated deadlines on the City as the lead agency for the project, subdivision (d) of section 21168.6.6 required the Judicial Council, by July 1, 2014, to adopt a rule to facilitate the completion of judicial review of the downtown arena project's compliance with CEQA within 270 days, if feasible.
Consistent with the deadlines set forth in section 21168.6.6, the City engaged in an expedited environmental review process. The City issued a
As required by section 21168.6.6, the City engaged in mediation with several interested parties (including Saltonstall's attorney) in February 2014 to address issues regarding the draft EIR. The City completed and posted on its public Web site the final EIR for the project on May 9, 2014. The Sacramento City Council certified the final EIR and approved the project on May 20, 2014. Demolition of the shopping mall began in summer 2014.
The day after the City certified the final EIR and approved the project, Saltonstall filed a petition for writ of mandate in which she alleged the City violated CEQA by certifying the final EIR and that section 21168.6.6 violates the California Constitution. In the petition, Saltonstall requested a preliminary injunction, declaratory relief, and attorney fees.
The City filed its notice of determination on May 27, 2014, and certified the administrative record on June 2, 2014.
On June 10, 2014, Saltonstall filed a motion for preliminary injunction to stay demolition of the Downtown Plaza, reiterating her contentions that the City violated CEQA by certifying the final EIR and section 21168.6.6 is unconstitutional because it imposes unrealistically short deadlines on the courts to resolve issues related to construction of the downtown arena. The City and Sacramento Basketball Holdings opposed the motion. The trial court denied the motion for preliminary injunction, and Saltonstall appealed. (Saltonstall I, supra, 231 Cal.App.4th 837.)
In Saltonstall I, we concluded section 21168.6.6 does not materially impair a core function of the courts in a manner that violates separation of powers under the California Constitution, and Saltonstall had not demonstrated any error in the trial court's denial of her request for a preliminary injunction to stop the project. (Saltonstall I, supra, 231 Cal.App.4th at pp. 852, 855, 856.)
On October 10, 2014, the trial court held a hearing on the merits of Saltonstall's CEQA challenge as well as another CEQA challenge brought in a related action by the Sacramento Coalition for Shared Prosperity.
Premature commitment. The trial court found the City did not approve the project before concluding its EIR review. The preliminary nonbinding term sheet entered into by the City and Sacramento Basketball Holdings did not create an enforceable contract between the parties. Although the City acquired property at its preferred site for the downtown arena, the property acquisition did not foreclose any mitigation measures or alternatives required by CEQA. As the trial court found, "Prior to completing its environmental review of the Project, the City took steps to acquire possession of the Macy's East and Crocker Museum properties." As to the Crocker Museum property, the trial court noted that "[a]s a technical matter, the Crocker Museum transaction involved the City's forgiveness of a $7.5 million loan to the Crocker Art Museum in exchange for the Museum's relinquishment of any and all claims related to City Parking Lots X and Y." The trial court concluded Saltonstall "failed to show that the City's acquisitions of the Macy's East and Crocker Museum properties precluded consideration of any mitigation measures or alternatives that CEQA otherwise required to be considered."
Failure to consider remodeling the current Sleep Train Arena. The trial court rejected Saltonstall's contention that the City violated CEQA by failing to study the alternative of remodeling the current Sleep Train Arena. As the trial court noted, the City studied a no project option in which the current arena would continue to operate as presently configured and an option that involved building a new arena near the existing Sleep Train Arena in Natomas. The trial court recounted that Saltonstall asserted it was "`absurd' for the City to claim the impacts of remodeling the existing arena would be similar to the impacts of building a new arena in the same location." As the trial court summarized, Saltonstall sought "to have the City analyze the impacts of making minor, cosmetic upgrades to the existing arena, which [she] claim[s], is `perfectly fine' and `continues to function perfectly.'" The trial court rejected the claim because, "from the City's perspective, [Saltonstall's] proposal is not an alternative to the Project, it is a different project and would defeat the City's core project objectives." The trial court also noted it was not
Failure to properly analyze the project's traffic impact on I-5. The trial court rejected an argument that the City conducted a faulty traffic analysis by underestimating the number of attendees for the downtown arena. The EIR's traffic analysis was based on the arena's 17,500 maximum capacity. Although 1,000 to 2,000 additional ticketed attendees might be accommodated in standing-room-only spaces, the record demonstrates such supercapacity crowds occur only 0.3 percent of the time among events sampled throughout the country. Thus, the arena's maximum seated capacity served as a reasonable number for studying the traffic impact of the project. The trial court deemed an inadvertently omitted traffic mitigation measure to be part of the City's adopted mitigation measures.
The trial court rejected Saltonstall's contention that the City failed to properly assess the impact of the project on nearby I-5. On this point, the trial court found the administrative record supported the conclusion that "[t]he EIR adequately addresses the Project's freeway impacts. The EIR acknowledges that the Project will cause significant impacts on the freeways and that, although payment of a fair share contribution would assist in mitigating the Project's impacts, payment of the fee does not ensure that the Project's impacts will be fully mitigated. The City, having determined that the Project's freeway impacts are significant and unavoidable, adopted a Statement of Overriding Considerations."
The City's response to EIR comments acknowledged the traffic impact will be significant and unavoidable even with the payment of a fair share of mitigation measures by the project applicant. Nonetheless, the City noted Caltrans's (Department of Transportation) comment on the proposed traffic mitigation measures expressed Caltrans's support for the proposed traffic management plan.
Failure to properly analyze crowd safety. The trial court rejected Saltonstall's argument that the City failed to properly analyze impacts to public safety from postevent crowds. The trial court concluded that "[s]peculation about potential crowd violence is not an impact that was required to be analyzed or mitigated as part of the EIR. (See [Guidelines], § 15064(d)(3).)" Moreover, the trial court found that "[t]he EIR adequately considered the Project's Impacts on public services."
Within the five court days provided by section 21168.6.6, subdivision (d), Saltonstall timely filed a notice of appeal from the judgment denying her petition for writ of mandate.
In assessing a public agency's compliance with CEQA, we review the administrative record to determine whether the agency prejudicially abused its discretion. (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 918 [45 Cal.Rptr.3d 102].) "`Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.'" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 [276 Cal.Rptr. 410, 801 P.2d 1161] (Goleta).)
"Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, `scrupulously enforc[ing] all legislatively mandated CEQA requirements' (Citizens of Goleta Valley v. Board of Supervisors[, supra,] 52 Cal.3d 553, 564 ...), we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court `may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,' for, on factual questions, our task `is not to weigh conflicting evidence and determine who has the better argument.' (Laurel Heights I, supra, 47 Cal.3d at p. 393.) [¶] In evaluating an EIR for CEQA compliance, then, a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts. For example, where an agency failed to require an applicant to provide certain information mandated by CEQA and to include that information in its environmental analysis, [the Supreme Court] held the agency `failed to proceed in the manner prescribed by CEQA.' (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236 [32 Cal.Rptr.2d 19, 876 P.2d 505]; see also Santiago County Water Dist. v. County of Orange [(1981)] 118 Cal.App.3d [818,] 829 [173 Cal.Rptr. 602] [EIR legally inadequate because of lack of water supply and facilities analysis].) In contrast, in a factual dispute over `whether adverse effects have been mitigated or could be better mitigated' (Laurel Heights I, supra, 47 Cal.3d at p. 393), the agency's conclusion would be reviewed only for substantial evidence." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 [53 Cal.Rptr.3d 821, 150 P.3d 709].)
Saltonstall contends the City committed itself to the downtown arena project before completing its review under CEQA. Specifically, Saltonstall argues "that the EIR was fatally corrupted because the City had already entered into an agreement with the NBA to build the arena."
The question of whether "the lead agency approved a project with potentially significant environment effects before preparing and considering an EIR for the project `is predominantly one of improper procedure' (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435) to be decided by the courts independently. The claim goes not to the validity of the agency's factual conclusions but to the required timing of its actions." (Save Tara, supra, 45 Cal.4th at p. 131, italics omitted.)
The city council approved a preliminary nonbinding term sheet — dated March 23, 2013 — with the investment group formed to purchase the Sacramento Kings and build the downtown arena, Sacramento Basketball Holdings. In pertinent part, the term sheet stated: "Although this Term Sheet contains the proposed, non-binding terms of a potential transaction which the City has agreed to process, the parties agree that no obligation to enter into definitive transaction documents, or any transaction, shall exist and no project
The preliminary nonbinding term sheet further provided: "As required by law, the City retains the sole and independent discretion as the lead agency to, among other things, balance the benefits of the ESC project against any significant environmental impacts prior to taking final action if such significant impacts cannot otherwise be avoided, and determine not to proceed with the ESC project. No legal obligations to approve the project, the permits for the project, or the transaction will exist unless and until the parties have negotiated, executed, and delivered definitive agreements based upon information produced during the CEQA environmental review process and on other public review and hearing processes, subject to all applicable governmental approvals." (Italics added.)
On May 7, 2013, the City adopted a resolution to forgive $7.5 million of a $10 million loan to the Crocker Art Museum in exchange for the museum's relinquishment of any claims related to City parking lots X and Y.
A July 9, 2013 agenda for a meeting between the City and Sacramento Basketball Holdings staff listed, as a discussion topic, a need to develop a communication strategy in anticipation of media inquiries about the acquisition of the land for the site of the downtown arena. The agenda stated that "[i]t would be better to initiate control [of] the story with a message crafted and agreed to by the NBA, [Sacramento Basketball Holdings] and City rather than a mad scramble."
On January 7, 2014, the city council adopted a resolution to acquire by eminent domain the block located at 600 K Street in downtown Sacramento. Consistent with the preliminary nonbinding term sheet, the City would retain title to the property and lease it to Sacramento Basketball Holdings according to a schedule that provided the rent would start at $6.5 million and increase according to a set formula.
The City certified its final EIR and approved the downtown arena project on May 20, 2014.
Although the City took steps toward planning the proposed downtown arena prior to completing its environmental review, we conclude the record does not establish premature commitment to the project in violation of CEQA.
In short, Saltonstall's single citation to the administrative record to demonstrate a concerted media campaign for the project does not establish premature commitment by the City.
Under the first prong of the Save Tara test, we consider whether the City indicated it would perform a proper environmental review before making a
The term sheet was not a binding contract between the City and Sacramento Basketball Holdings. As the term sheet noted, it set forth "the process and framework by which the parties agree[d] to negotiate definitive documents and potential approvals to be considered by the City regarding the potential location, financing, ownership, design, development, construction, operation, use" and other issues related to the project.
In essence, the preliminary nonbinding term sheet was an agreement to negotiate. All provisions of the term sheet are consistent with an agreement to negotiate. The term sheet noted the location of the arena remained to be determined, the parties could consider locations other than the site of the Downtown Plaza, the ownership structure for the location remained to be negotiated, and efforts to timely complete the project would be made collaboratively. Based on the express reservation by the City of the right to disapprove of the project based on its environmental review, Sacramento Basketball Holdings would not have had a breach of contract claim if the City had decided to reject the project. The preliminary nonbinding term sheet does not show premature commitment to the project by the City.
In addition, section 21168.6.6, subdivision (b)(1), expressly provides that "[t]he city may prosecute an eminent domain action for 545 and 600 K Street, Sacramento, California, and surrounding publicly accessible areas and rights-of-way within 200 feet of 600 K Street, Sacramento, California, through order of possession pursuant to the Eminent Domain Law (Title 7 (commencing with Section 1230.010) of Part 3 of the Code of Civil Procedure) prior to completing the environmental review under this division."
Saltonstall asserts the forgiveness of $7.5 million of a City loan to the Crocker Art Museum establishes premature commitment to the downtown arena project. However, Saltonstall does not explain how forgiveness of the loan shows premature commitment to the downtown arena project. Our review of the staff report on loan forgiveness reveals the City's interest in preserving the viability of the Crocker Art Museum and establishing a new program to support the arts and culture in Sacramento. The budget resolution for the loan forgiveness does not mention the downtown arena project. For lack of analysis on how forgiveness of a loan for rights to a parking lot already owned by the City demonstrates premature commitment by the City to the downtown arena project, we deem the assertion forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [41 Cal.Rptr.3d 453].)
In sum, Saltonstall has not shown the record contains any evidence of premature commitment by the City to the downtown arena project in violation of CEQA.
Saltonstall argues the City's environmental review was deficient because the City did not study remodeling the current Sleep Train Arena as a project alternative. We reject the argument.
The City's objectives for a new arena included the goals to "Develop an entertainment and sports center project that connects with and enhances downtown from the waterfront to the Convention Center and from the Capitol to the Railyards and intermodal facilities. [¶] ... Establish a framework for successful development surrounding Downtown Plaza. [¶] ... Leverage the entertainment and sports center to develop our workforce and local businesses and help spark redevelopment of underutilized downtown properties throughout the Central Business District."
The Sleep Train Arena, by contrast, is located in a suburban setting approximately six miles north of the Downtown Plaza. Building the new arena next to the current Sleep Train Arena would not have met the City's project objectives to revitalize the economic and social activity in the area surrounding the Downtown Plaza. Nonetheless, the City's environmental review considered alternatives at the Natomas location of the Sleep Train Arena.
In total, the City studied four alternatives to the downtown arena project. First, the City considered the no project alternative of continuing to operate the Sleep Train Arena without substantial change. Second, the City studied construction of the new arena at the Railyards location a short distance to the north of the Downtown Plaza. Third, the City considered the possibility of building a new arena next to the Sleep Train Arena, and demolishing the old arena upon completion of the new one. The City also studied a reduced scale for building at the Downtown Plaza.
The City did not study remodeling the Sleep Train Arena as an alternative. In rejecting remodeling of the Sleep Train Arena as an alternative, the City explained that "[t]he Draft EIR considers two alternatives at the Natomas site. Alternative 1, No Project Alternative, assumes the Sleep Train Arena would continue to operate at its current location in Natomas. No improvements beyond standard maintenance and minor upgrades are assumed under the No
As the City explained, alternatives at the Natomas location failed to satisfy many of the City's objectives for the project: "Locating the [arena] in Natomas would not catalyze redevelopment of previously blighted areas, because it would essentially replace an existing facility. It is unlikely that [a new arena] in Natomas would become a world-class destination given the lack of supporting amenities (e.g., lodging, restaurants, other urban attractions such as museums) in the vicinity of the site. [¶] The Natomas site is not well served by public transportation, with only limited bus service and no light rail or train service in the immediate vicinity. The site is not likely to become a multimodal place, because the distance to homes, restaurants and other employment centers is too far to be conducive to walking, biking and/or taking transit to events at the [new arena]. Attendees at the current Sleep Train arena rely overwhelmingly on automobiles to travel to events and this would be likely to continue given the transportation infrastructure. [¶] A number of objectives are tied directly to locating the [new arena] in the downtown area, including development of 1.5 million square feet of mixeduse space at the Downtown Plaza, establishing a framework for successful development of the Downtown Plaza, connecting with and enhancing downtown from the waterfront to the convention center, and sparking redevelopment of underutilized properties in the Central Business District. These objectives would not be met by Alternative 3 due to its location."
The City also deemed the alternative of building a new arena next to the Sleep Train Arena to be infeasible due to floodplain issues. As the City's draft EIR explained, "The primary concern with the Natomas location relates to requirements for new construction in floodplains. Based on the FEMA FIRM maps, Sleep Train Arena is located at a base flood elevation of 33 feet. If the Natomas [arena] were to be constructed before flood control measures improve conditions, the building would need to have the lowest floor, including basement, elevated to at least 34 feet, or (i) be dry flood-proofed below the elevation required for the lowest floor ...; (ii) have structural components capable of resisting hydrostatic and hydrodynamic loads and
By contrast, the Downtown Plaza site lies outside the 100-year floodplain. Consequently, "[t]he structures on the Downtown project site would be resilient to floods, high winds, and hail storms, even if such events are more frequent in the future."
For purposes of CEQA, a feasible alternative is one "`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; Guidelines, § 15364; Laurel Heights, supra, 47 Cal.3d at p. 402, fn. 10; Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 910 [165 Cal.Rptr. 401].) Both the California and the federal courts have further declared that `[t]he statutory requirements for consideration of alternatives must be judged against a rule of reason.' (Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco, supra, 106 Cal.App.3d at p. 910; Village of Laguna Beach v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1028-1029 [185 Cal.Rptr. 41]; Vermont Yankee Nuclear Power Corp. v. NRDC (1978) 435 U.S. 519, 551 [55 L.Ed.2d 460, 98 S.Ct. 1197]; Coalition for Canyon Preservation v. Bowers (9th Cir. 1980) 632 F.2d 774, 783.)" (Goleta, supra, 52 Cal.3d at p. 565.)
Despite the requirement to study feasible alternatives, "CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed
A public agency's decision regarding which project alternatives to study must be made "with `the ultimate objective being whether a discussion of alternatives "fosters informed decision-making and informed public participation."' (Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1751 [12 Cal.Rptr.2d 308].) In assessing the claim that exclusion of offsite alternatives renders the EIR defective, the question is whether the range of alternatives `is unreasonable in the absence of the omitted alternatives.' (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act [(Cont.Ed.Bar 2d ed. 2009)] § 15.17, p. 747.)" (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 992 [99 Cal.Rptr.3d 572].)
As Saltonstall acknowledges, the City studied Natomas-based alternatives at the location of the Sleep Train Arena. Given the Sleep Train Arena's location "in a suburban setting, surrounded by a large parking lot, low-density office buildings and two- to three-story multifamily homes," the City concluded that carrying out the project at that location "would not catalyze redevelopment of previously blighted areas, because it would essentially
In approving the project at the site of the Downtown Plaza, the city council adopted a statement of overriding considerations reiterating that the Natomas location had been rejected because building a new arena there "would achieve few of the project objectives, and fail entirely to achieve those related to location. Under [this alternative], a state-of-the-art entertainment and sports center (ESC) with approximately 17,500 seats ... could serve as the long-term home of the NBA Sacramento Kings. The [new arena] would be located on a site that could be readily assembled, and that should not have extensive budget issues. However, due to the status of the floodplain building regulations, the [new arena] may not be able to be feasibly built in Natomas by the deadline set by the NBA."
So too, the no project alternative did not meet the City's objectives to revitalize the area surrounding the Downtown Plaza. Even assuming the Sacramento Kings continued to play at the Sleep Train Arena, the no project alternative would not meet the location objectives and neither would a new arena in the same Natomas location. Moreover, the no project alternative also would not meet the City's objectives to build a world-class entertainment center in the region. Thus, even though the no project alternative might have been environmentally superior, it did not meet any of the City's objectives.
As with the no project alternative, a remodeled Sleep Train Arena might be an environmentally superior option that does not meet many or all of the City's objectives for the project. The Natomas location would not spark redevelopment of the Sacramento downtown; tie together the City's waterfront, Railyards area, and convention center; or stimulate new job and business creation in an underutilized location. Thus, even if the same concerns of floodplain permitting did not apply to a remodel alternative as they would a new Natomas arena alternative, the City was not required to study yet another alternative for the project in Natomas. As the draft EIR explained, many of the impacts of remodeling would have been similar to those of building a new arena in Natomas because existing material would need to be removed and remodeling would be extensive. The similarities in impacts meant studying the remodeling alternative would not have added substantially to the alternatives analysis in the City's EIR review. Consequently, the draft EIR sufficiently studied no project and new arena alternatives for the Natomas location.
The City approved the downtown arena project having sufficiently considered alternatives in Natomas. Additional study of a remodeled Sleep Train
Saltonstall next contends the City did not properly study the traffic impact of the downtown arena project on I-5, which is located close to the selected project site. While Saltonstall acknowledges the City did study local I-5 traffic congestion, she contends the study was inadequate for not considering I-5 traffic ranging from Canada to Mexico. Saltonstall also asserts the City's traffic study was deficient because the EIR understated the number of persons who would surround the downtown arena. We are not persuaded.
The downtown arena is designed for a maximum capacity of 17,500 seats. On "rare occasions," an additional 1,000 to 2,000 attendees may be accommodated in standing-room-only spaces "in the Main Concourse, the Upper Concourse, or cordoned portions of the entry plaza." However, as the draft EIR explained, "[t]he types of events that could attract such crowds would include such infrequent events as the Olympics, NBA Finals games, a national political convention, or extremely rare major concerts. Data collected by the [Sacramento] Kings reflects the infrequency of such events. In a survey of 13 other arenas in similar-sized cities around the country, out of over 1,000 events, only 3 had attendance over 18,000. In the event that one of these infrequent events were to be planned for the Proposed ESC, the applicant would coordinate with the City on event traffic management, crowd management, as well as other related event planning. Because of the infrequency of these events, they are not evaluated further in this EIR." The draft EIR analyzed crowd impacts using estimates that exceeded by several hundred attendees the highest average sellout attendance at Sacramento Kings games during past years (assumed to be 16,750 per game).
Regarding crowds at the downtown arena, the final EIR explains that "[f]or a sold-out NBA game, approximately 15,900 attendees will walk through one of the four gateways around the [downtown arena] both before and after a game. These attendees will walk to off-site parking facilities, transit stops,
As to the study methodology for freeway congestion, the draft EIR adopted the "procedures described in the Highway Capacity Manual" published by the Transportation Research Board in its December 2010 edition of the Highway Capacity Manual. The City applied this methodology to data on mainline I-5 traffic gathered by Caltrans. Based on the data and methods used, the draft EIR concluded traffic on parts of I-5 would achieve an "F" level of service rating — the worst rating for traffic congestion.
The draft EIR disclosed that worsened traffic conditions on I-5 would result from the project as follows: "The addition of project trips would cause the following significant impacts to Caltrans freeway facilities: [¶] • Existing [level of service] F operations during the AM peak hour on the northbound 1-5 weave section between P Street and J Street would be worsened to a significant degree (based on the amount of project traffic added). [¶] • The I-5 northbound weave section between I Street and Richards Boulevard would worsen from [level of service] E to F during the PM peak hour. [¶] • Existing [level of service] F operations during the PM peak hour on the northbound I-5 weave sections between Richards Boulevard and West El Camino Avenue would be worsened to a significant degree (based on the amount of project traffic added). [¶] The degraded operation of these segments is considered a
Caltrans responded to the draft EIR's discussion of traffic impacts to "concur with the impacts to State transportation facilities as stated in the project [draft ]EIR" (italics added), including the description of I-5 congestion in "Impact 4.10-2: The Proposed Project would worsen conditions on freeway facilities maintained by Caltrans." Caltrans also wrote to "agree with net volume traffic data as identified in the [draft ]EIR ... of an increase of about 1,100 trips on southbound I-5 between 1-80 and J Street, and a net volume increase of about 1,375 trips on westbound state route (SR) 160 between Del Paso Blvd. and Richards Blvd." (Italics added.)
However, Caltrans stated its "analysis shows further effects of the additional PM peak hour traffic volumes that will occur on I-5 and SR 160 freeways near the project due to current congestion conditions in the area.
The City's final EIR responded to Caltrans's comment on traffic impacts to I-5 to acknowledge that Caltrans's "comment reflects agreement with the net volume traffic data as identified in the Draft EIR, but also indicates that Caltrans analysis shows further effects of additional PM peak hour traffic would occur on I-5 and SR 160 due to current congestion conditions in the area." The City noted its methodology and data showed "that southbound I-5 currently experiences vehicle queuing caused by congestion at the `W-X' freeway connector that spills back to J Street and beyond. [¶] The transportation impact analysis results indicate that queued vehicles are not expected to spill back to the I-80/I-5 interchange as suggested in the comment." The final EIR noted that "it was not possible to review" the Caltrans comment further because "an analysis was not presented in the letter."
Approval of the project by the city council was conditioned on a mitigation measure requiring further coordination by the City "with Caltrans, as necessary, to implement the following measures to benefit operations at the
In approving the project, the city council adopted a statement of overriding considerations regarding I-5 traffic congestion as follows: "Although payment of the fair share contribution would assist in mitigating the Project's mainline freeway impacts, the impacts may not be fully mitigated with the planned transportation improvements and the timing and funding for the improvements are uncertain. Payment of the fee does not ensure that the Project's impacts on the I-5 freeway would be fully mitigated. The City Council finds that there are no additional feasible mitigation measures or alternatives that the City Council could adopt at this time which would reduce this impact to a
Saltonstall mounts a challenge to the factual sufficiency of the EIR traffic analysis that we review under the deferential substantial evidence standard. Saltonstall wants a more comprehensive review of traffic congestion on the section of I-5 adjacent to the downtown arena project. Saltonstall faults the City for not considering the effects of the project on interstate travelers with origins as far as Canada and destinations as remote as Mexico. She also argues that the City rejected Caltrans's "repeated efforts to `participate meaningfully' in addressing the project's traffic impacts," and the City "buried" in tiny footnotes its conclusions about how traffic would be worsened.
The City's draft EIR studied and disclosed existing problems with the nearby section of I-5 at peak traffic times as well as how the downtown arena project would worsen traffic congestion. The EIR sets forth the basis for its methodology and the source of its factual data regarding traffic on I-5. The draft EIR reached the conclusion that levels of service would — at times — reach the worst rating given by Caltrans for traffic flow. Even with proposed mitigation measures, the City acknowledged the adverse impact of the downtown arena project on I-5 traffic would be significant and unavoidable.
The draft EIR clearly, and in normal typeface, articulates problems with current traffic congestion and expected worsening of traffic on I-5. Rather than drawing objection from Caltrans, that agency commented on the draft EIR to note it agreed with the methodology of the City's traffic study. Caltrans also "reviewed and approved a methodology proposed by the City to calculate the fair share fee." Caltrans further agreed with the City that possible mitigation measures were limited by the physical constraints of I-5 near the project site. True, Caltrans informed the City that congestion from events held at the downtown arena would adversely affect I-5 all the way to the interchange with I-80. However, Caltrans did not include the analysis for reaching its conclusion about the extent of traffic congestion on I-5.
We also reject Saltonstall's assertion the City did not properly study mainline traffic. Essentially, Saltonstall argues the flaw in the City's EIR is that it did not separately study motorists who are stuck in the same traffic, on the same freeway, going in the same direction, at the same time, based only on the fact these interstate motorists are traveling a greater distance. The City was not required to separately study the effect on interstate motorists who will be impacted in the same way as other, local motorists sharing the same section of I-5. Moreover, we note the EIR did account for mainline traffic because it used the sampling data of mainline freeway traffic collected by Caltrans.
The City's EIR analysis of traffic congestion on I-5 was not deficient under CEQA.
Saltonstall next contends the City's environmental review was deficient because "[t]he EIR fails to address substantial evidence in the record — from the City's own police force — of significant potential impacts to safety by event crowds." (Italics added.) Saltonstall argues the EIR both understates the number of persons who can be expected to congregate around the downtown arena as well as their proclivities toward drunken violence. We reject the argument because Saltonstall does not show how the safety of persons at the site of the downtown arena must be considered in an EIR studying environmental effects of the project. Moreover, the EIR's conclusions about the size of crowds inside and around the downtown arena are supported by substantial evidence in the administrative record.
The City's draft EIR concluded the downtown arena "would increase demand for police protection services within the City of Sacramento. [¶] The Sacramento Sheriff's Department currently provides interior and exterior security at Sleep Train Arena during events, and also manages ingress and egress traffic patterns before and after Sacramento Kings games. The Sacramento PD would be responsible for interior and exterior security at the proposed ESC, and for implementation of the Proposed Project's traffic management plan (TMP) before, during, and after certain events.... [¶] ... [¶] The Sacramento PD does not anticipate that new police facilities would be required to ensure adequate police protection for the Proposed Project. Sacramento PD would adjust staffing levels as appropriate in order to ensure adequate service at the Proposed Project site. The Proposed Project would not require the construction of new or altered police facilities, and the impact to police services would be
This conclusion was supported by statements given during the environmental review process by the City's fire marshal and representatives from the police department. During a planning meeting, Michael Riley, the City's fire marshal, spoke to "highly endorse" the project on grounds the downtown arena will "have the level of fire protection ... and emergency exits that it deserves." So too, police department officials noted "we're good with" the design after the planners "made the 7th and K [Street area] wider mainly because we think there's gonna be a lot of special events that are gonna go through there with the new arena. So, that was one of our concerns which is
The trial court agreed with the EIR's conclusions regarding crowd size, stating that "[c]ommon sense should be sufficient to rebut any claim that the outdoor plaza will be filled to capacity with people during every [Sacramento] Kings game." The trial court concluded that "[s]peculation about potential crowd violence is not an impact that was required to be analyzed or mitigated as part of the EIR. (See [Guidelines,] § 15064(d)(3).) The EIR adequately considered the Project's impacts on public services."
Saltonstall does not establish how this issue of crowd safety impacts the physical environment. Instead, her argument focuses on allegations of "significant potential impacts to safety by event crowds." (Italics added.) Saltonstall's argument does not implicate an environmental issue that must be reviewed under CEQA. (Lighthouse, supra, 131 Cal.App.4th at p. 1206.)
We also reject Saltonstall's assertion that the City did not account for "the significant numbers who will loiter outside for `free viewing' of the outdoor monitors." Review of the record shows outdoor viewing of events will be
In arguing the City ignored concerns of its own police department regarding crowd control, Saltonstall cites an e-mail sent by Deputy Chief of Police Dana Matthes. The e-mail, however, shows Matthes was responding to questions rather than voicing concerns of the police department. Matthes wrote to articulate the police department's "thoughts on the public vs private space issue along with our responses to your questions." The central point of Matthes's communication was that "[i]f the plaza area is deemed public space, the City will most likely be responsible for the programming of the space as well as addressing issues related to transients, camping, scalping, protestors, etc. Based on actions of other Cities, it appears environmental design along with city ordinances may mitigate most issues. [¶] If the plaza area is private, the owners have more control over the activities but with an easement, we aren't sure if this provides any benefit. Additionally, if they have problems with transients, camping, scalping, etc., and choose not to address the issues, it becomes more difficult for the City."
Matthes's response did not express any concerns about rioting, crowd violence, or any effect of the project on the environment. To the contrary, Matthes explained the Sacramento Police Department had learned from the police captain in charge of security at San Francisco's baseball park that even though "[t]he property around the stadium is public," "they do not have any major issues primarily due to ordinances enacted to address various social issues (camping, sleeping, scalping, protesting, etc.)." By requiring permits and bonds for various events, San Francisco essentially solved any social concerns arising out of activity surrounding its ballpark. Consequently, the tone of Matthes's letter expressed optimism that any of these social issues would be effectively handled by the police department.
Although Saltonstall makes passing reference to crowds spilling out onto the streets after downtown arena events, the record shows the issue of crowd entrance and exit from the venue was studied. City police and fire department representatives declared they approved of the design measures and traffic management plans for crowd movements. And, the project includes mitigation measures to ensure crowd movements do not become a problem.
Saltonstall contends the City erred in refusing to produce documents relating to the City's communications with the NBA regarding the project. She further argues the administrative record should have been augmented to include the Dangberg-Friedman e-mail and a 24-page City staff report pertaining to the City's forgiveness of a $7.5 million loan to the Crocker Art Museum. We conclude Saltonstall's argument regarding the NBA documents is not cognizable on appeal. Her argument regarding the Dangberg-Friedman e-mail and the loan forgiveness report is deemed forfeited for lack of any meaningful analysis on the issue.
Saltonstall contends the trial court's decision "should be reversed with instructions to obtain the complete record with the 62,000 e-mails." The 62,000 e-mails to which Salton refers were requested under the Public Records Act. The trial court denied Saltonstall's Public Records Act request on grounds the matter was not properly before the court.
The issue of Saltonstall's Public Records Act request is not properly before this court because review of the denial of such a request is only by petition for writ of mandate — not direct appeal. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1333 [283 Cal.Rptr. 893, 813 P.2d 240].) Accordingly, we do not consider Saltonstall's argument regarding the administrative record to the extent it pertains to the 62,000 e-mails claimed to relate to communications between the City and the NBA.
Although Saltonstall asserts the administrative record should have been augmented with the Dangberg-Friedman e-mail and the loan forgiveness report, she provides no analysis of why these two documents meet the definition of documents for inclusion in an administrative record under section 21167.6, subdivision (e). Her analysis as to the Dangberg-Friedman e-mail is limited to the assertion that the "... June 3 email is required to be included in the administrative record pursuant to PRC §21167.6(e)(1), (3), (7) and (10)." Similarly, her analysis regarding the loan forgiveness report states only that "[t]he City should be ordered to augment the administrative record with the Crocker staff report pursuant to PRC §21167.6(e) subsections (2), (3), (8) and (10)." Saltonstall does not explain how the Dangberg-Friedman e-mail and the loan forgiveness report meet any of the definitions of documents the Public Resources Code requires to be included in an administrative record. The issue of these documents' inclusion in the administrative record is deemed forfeited for lack of any meaningful analysis. (In re S.C., supra, 138 Cal.App.4th at p. 408.)
The judgment dismissing appellants Adriana Gianturco Saltonstall, William Reany, Jeanie Keltner, Delphine Cathcart, Bob Blymyer, Helen Maggie O'Mara, J. Bolton Phillips, Kevin Coyle, Karen Redman, Ronald H. Emslie, Christine Hansen, and Sarah E. Foster's petition and the order denying their motion to augment the administrative record are affirmed. The City of Sacramento and Sacramento Basketball Holdings, LLC, shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
Nicholson, Acting P. J., and Mauro, J., concurred.
