One group’s legal threats may bring the City’s ambitious Central SoMa Plan to a grinding halt. In a uniquely San Francisco twist, some neighbors are appealing that appeal.
An appeal under the California Environmental Quality Act (CEQA) may stall the City’s much-touted Central SoMa Plan over objections to a mixed-use development near the I-80 freeway. Driven by dire claims about cancer risks that Planning Department staff and environmental consultants have refuted numerous times, Central SoMa condo owner Jonathan Berk organized neighborhood groups to appeal the development, while fellow HOA members say they’ve been kept in the dark. Berk has threatened protracted litigation to further stall the plan.
Berk, a Professor of Finance at the Stanford Graduate School of Business, is a member of the SFBlu HOA at 631 Folsom Street, and serves as President of the Central SoMa Neighbors group—both of which retained legal services of the attorney Richard Drury. Drury’s firm filed an appeal of the Central SoMa Plan’s Environmental Impact Report (EIR) to the Board of Supervisors opposing the plan, particularly over a mixed-use development at One Vassar, citing a “significant increase in cancer risk [which] requires the City to impose all feasible mitigation measures and alternatives to reduce the cancer risk.” The appeal argued that the plan’s EIR only included “weak measures” to mitigate the risk.
The Supervisors remained unmoved by the appeal, and voted to approve the plan.
At a September 25th hearing before the Board of Supervisors, Berk asserted that “by the City’s own analysis, the Plan will expose the residents of our neighborhood to the equivalent cancer risk of 10 oil refineries.” But his appeal’s claim, that the plan would increase the risk of cancer by 226 cases per million people, was roundly rejected in a September 6th memo from the City’s Planning Department, which clarified the reference to be strictly a “worst case scenario”—the more realistic risk, staff said, would be 8.1/million, which is on par with the rest of the City.
This was corroborated by several air quality consultants working on the One Vassar project. One Vassar is the proposed site of a 350 foot office building, a 350 foot residential building, and a 200 foot hotel.
James Reyff, Senior Consultant at the firm Illingworth & Rodkin, explained that the 226 case estimate was “unnecessarily conservative” because it assumed 2014 vehicle emissions at the entrance to the Bay Bridge would continue in perpetuity. “Much of the reductions in vehicle emission rates will be in place by the time construction of projects in the Plan area are completed and traffic becomes operational,” Reyff wrote.
Indeed, while appellants claimed that One Vassar would be too close to the I-80 onramp but “far from transit,” supporters pointed to multiple bus lines in the area as a manifestation of the area’s increasing reliance on public transit.
But Berk had his attorneys claim that the 226/million estimate is a generously low estimate.
“If you put two forty-story buildings at the entrance to the freeway, you will encourage automobile commuters. You don’t have to be a traffic engineer—that’s what happens” Berk said in an interview. “We’re not against development development. We want a thriving neighborhood—we just don’t want these buildings next to the freeway” he added. “If the City wants forty-story buildings, stick them next to Caltrain. Or stick them right at the [Transbay] tube.”
As a finance academic, Berk characterized himself as “a capitalist” who did not object to developers maximizing profit—his contention, he said, was merely that the developers controlled the plan without enough government oversight. “It’s fine for developers to build the tallest building they can,” Berk said. “It’s another thing for the City to say, ‘okay you want that building there, go ahead and put it there.’ The City should be trading off the benefits and the costs—and public health is a huge cost.”
SFBlu’s appeal makes overtures to a lower-density compromise, outlined as the Reduced Heights Alternative in the EIR, that detractors insist shows an ulterior motive to protect Berk’s top-floor view. This alternative proposal would have limited heights in the area covering One Vassar to 130 feet—more than half of the current proposed height of the office and residential buildings. Overall, this alternative would have reduce air quality impacts by 12% and added 14% fewer households than the plan approved by the Board.
Cliff Leventhal, a member of the SFBlu Homeowners Association, said the HOA Board did not put its legal appeal up for a vote by members. “The [appeal] letters came as if they were coming from the HOA, but the HOA has never had a meeting or has been presented with the plans,” he explained. “We have never taken a vote on whether we approve with the plans or not.”
Leventhal circulated a petition among his fellow homeowners objecting to the legal fees spent on the appeal. Leventhal alleges that HOA Board ignored the petition, and instead placed an item on the agenda for an October 8th meeting to redirect $115,000 from reserve funds to cover legal fees. “If they pull the money out of the reserve, it has to be replaced,” Leventhal said. “The only way to replace it is to raise monthly fees to cover this.”
“They have made a concerted effort to prevent our participation,” he added.
Leventhal argued that SFBlu’s appeal was clearly concerned with views from the top of their building rather than public health impacts. “A building that fits within the parameters of the [Central SoMa] plan would be expedited—but it would be too high for [Berk] to see the bay bridge,” Leventhal said. “So he came up with other excuses, such as emissions and things like that, to oppose it.”
“We have a great mixed-use project that will create a lot of benefit for the community,” said Sharon Lai, a spokesperson for One Vassar, LLC. “Our project is in an ideal location, and it is problematic when a few individual interests threaten to file a lawsuit to rebut the City for view protection by lowering density when density is most needed.”
San Francisco’s State Senator objected wholesale to the appellants’ legal threats under the California Environmental Quality Act.
“This is yet another example of how local objections to housing—and abuse of our environmental laws - create and exacerbate our housing affordability crisis and prevent us from addressing climate change,” State Senator Scott Wiener wrote in a statement. “Placing more and denser housing near where people work and near public transportation helps us reduce greenhouse gas emissions. Using CEQA to stop dense, infill housing leads to sprawl and increased carbon emissions. It flies in the face of what CEQA is supposed to be about: protecting the environment and stopping, not encouraging, sprawl.”
Following the appeal from SFBlu and the Central SoMa Neighbors, One Vassar filed an appeal for the exact opposite reason: insufficient density.
Philip Babitch, an attorney representing One Vassar LLC, also filed an appeal of the EIR, arguing that the report “did not consider a project alternative with higher housing density as a means to substantially lessen significant impacts on transit, traffic, and air quality.” The appeal also cited inconsistencies in affordable housing requirements, mirroring gentrification concerns in another appeal filed by the South of Market Community Action Network (SOMCAN). Displacement and office development, SOMCAN argued, was not properly evaluated in the report, and would increase vehicle emissions.
John Elberling of the Yerba Buena Neighborhood Consortium also filed an appeal of the EIR, alleging insufficient evaluation of seismic risks.
The Central SoMa plan has been blasted by critics (including our own) for not planning for enough housing, particularly Below Market-Rate units, relative to office development. While the plan itself would mirror the City’s current imbalance in jobs vs. housing growth at roughly 6:1, Sen. Wiener previously told the Beacon that other areas of the City should meet the added residential demand.
“San Francisco absolutely has to build, and my district has taken the brunt of that,” said Supervisor Jane Kim, who represents SoMa, referring to seismic risks and gentrification concerns. But Kim later added that the City should reevaluate how fees are levied on office development to fund affordable housing. “I really want to examine a Supplemental EIR,” Kim said. “I want to approve this EIR as-is, but I want to build significantly more housing.”
The Board ultimately followed Kim’s lead by voting 10-0 to approve the plan. (Supervisor Norman Yee was absent for the vote.)
Nevertheless, City Hall is likely to hear from SFBlu and the Central SoMa Neighbors again before any projects in the plan break ground. Berk’s threat was clear: “If you force us to enter a protracted lawsuit that will hold up all development in SOMA, then we are fully prepared to do that,” he told the Board.
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