By Thomas Prendergast
A Whole Foods store’s move into the City Center at Masonic Avenue and Geary Boulevard is now on hold after the San Francisco Board of Supervisors reversed a decision by the SF Planning Department to exempt the project from an environmental review.
The Department’s initial decision to exempt the grocery market from a full environmental review was appealed by citizens and labor unions. The Board unanimously overrode the department. One supervisor commented that the end result was a textbook example of how the California Environmental Quality Act (CEQA) is supposed to work.
CEQA requires state and local government agencies to inform decision makers and the public about the potential environmental impacts of proposed projects and to reduce those environmental impacts as much as possible. If the project might cause adverse environmental impacts, the public agency must prepare a more detailed study called an Environmental Impact Report (EIR), which provides in-depth studies of potential impacts, measures to reduce them and an analysis of alternatives to the project. This gives the public an opportunity to review and provide input.
Slated for the space formerly occupied by a Best Buy, the proposed 49,780-square-foot Whole Foods grocery store would be above Target and include an existing 3,528-square-foot loading dock accessed from O’Farrell Street just east of Anza Vista Avenue.
“This is not a decision on whether there should be a Whole Foods at this location,” District 5 Supervisor Dean Preston said. “I think this is exactly what CEQA was made for. We have a situation where, in a city and on a board here where we talk and fight for our City to be a leader in addressing climate change and environmental impacts, we have a situation where we’re going to be generating thousands of car trips a day and idling trucks. There’s no question in my mind that there is at least the possibility of an environmental impact. And what CEQA offers, if there is environmental impact, is the opportunity to mitigate that impact.”
The Planning Department used a “Common Sense” exemption within the CEQA law to justify skipping the EIR. But an attorney for the appellants argued that this exemption should not apply in this situation.
Mark R. Wolfe, a land-use attorney, told the Board that in order to use the Common Sense exemption, you have to find “with certainty” that there is “no possibility that the project may have a significant effect on the environment.”
“That is an extremely heavy burden for the applicant and the Planning Department to meet here. You have to be absolutely convinced, not even a reasonable doubt, no shred of doubt,” Wolfe said. “The key fact here is that the project site and its vicinity are within a designated air pollution exposure zone, which is a designation created by the San Francisco Health Department and the Bay Area Air Quality Management District.
“And what it means is that these agencies have already determined that people living in this area carry a burden, an excess risk of contracting cancer from lifetime exposure to air pollution that is greater than 100 cases of cancer per million exposed individuals. This also happens to be the significant threshold for cumulative health impacts established by the air district,” he explained. “The air pollutants we’re talking about are toxic air contaminants and diesel particulate matter emitted from trucks primarily, as well as passenger vehicles.”
The City Center is in District 2, and the supervisor for that area, Catherine Stefani, agreed.
“The appellant claimed that the project would result in emissions from delivery vehicles that would expose nearby sensitive receptors to significant levels of toxic air contaminants,” Stefani said. “This might seem like it’s just gratuitous to others, but at the same time, this is the law. The appellant submitted supplemental information from their expert that refined their assessment evaluation of the toxic air contaminants caused by the project. With the new information … I do have serious concerns about that Common Sense exemption being used for this project.
“Under CEQA law, Common Sense exemptions can only be used when it can be seen with certainty – and we’re talking certainty – that a project will not have an impact. We are bound by CEQA law,” Stefanie elaborated. “Given the differing information regarding air quality, I do not believe it could be seen with certainty that this project will not have environmental impacts. Therefore, a Common Sense exemption does not seem to be appropriate in this case.”
This was not the first time the Planning Department had given the project an exemption from environmental review. Previously, they gave it a “Class 32” exemption (for projects with minimal environmental impacts) but then vacated that exemption and switched to the Common Sense exemption.
District 3 Supervisor Aaron Peskin questioned the department about this change.
“I do believe that when a decision-making body relies on environmental information that subsequently is rescinded and the underlying approval is not rescinded, there’s something that does not seem right about that,” Peskin said. “My belief is that the underlying Conditional Use Authorization should have been vacated…. I don’t think that you can say to a decision-making body: ‘Hey, rely on this piece of information’ and then say ‘Uh-oh, this information was bad but don’t worry about it.’ I don’t think that’s how it works.”
Peskin asked why the Class 32 exemption was rescinded.
Rachel Schuett, a senior environmental planner with the City, said the reason was a matter of timing. The department had been classifying properties like this as eligible for a Class 32 exemption, but then the State Water Board told them that properties like this could no longer be eligible for Class 32 exemption. So, they rescinded the Class 32, and they issued in its place the Common Sense exemption.
Peskin asked Schuett why a Common Sense exemption was considered to be a good alternative.
“Most projects that qualify for some sort of an exemption under CEQA may actually be eligible for several different categories of exemptions,” Schuett said. “So, in this case, we issued a Class 32, which is an exemption that we typically issue in San Francisco, and then later when we found out that it no longer qualified, we looked to see what other exemption it could qualify for , and a Common Sense exemption is one of them, which is why we rescinded the Class 32 and issued the Common Sense exemption.”
The environmental review officer who decided on the switch, Lisa Gibson, explained to the Board that while they can no longer use the Class 32 exemption, they are not prohibited from using the Common Sense exemption.
“So that is why we changed the determination to cite the Common Sense exemption and finding that the same rationale still applied regarding why the project would not result in a significant effect associated with hazardous materials.”
Candace Soohoo, a spokesperson for the department, said the department has not yet started the environmental review on the project because they are waiting to hear from the project sponsor on what Whole Foods wants to do next.
Whole Foods did not respond to requests for comment by press time.