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San Diego Navy Broadway Complex Coalition v. U.S. Dept. of Defense

United States District Court, S.D. California

October 17, 2012

SAN DIEGO NAVY BROADWAY COMPLEX COALITION, Plaintiff,
v.
U.S. DEPARTMENT OF DEFENSE; et al., Defendants.

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[Copyrighted Material Omitted]

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Cory J. Briggs, Mekaela M. Gladden, Briggs Law Corporation, Upland, CA, for Plaintiff.

U.S. Attorney CV, Thomas C. Stahl, U.S. Attorneys Office Southern District of California, San Diego, CA, Anna Kristina Stimmel, Stephen Geoffrey Bartell, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

JEFFREY T. MILLER, District Judge.

Plaintiff San Diego Navy Broadway Complex Coalition (" NBCC" or " Plaintiff" ) moves for summary judgment on its National Environmental Policy Act (" NEPA" ) claims. Defendants U.S. Department of Defense; Robert M. Gates, in his official capacity as Secretary of the U.S. Department of Defense; U.S. Department of the Navy; Ray Mabus, Jr., in his official capacity as secretary of the U.S. Department of the Navy; Naval Facilities Engineering Command; Christopher Mossey, in his official capacity as Commander of the Naval Facilities Engineering Command; Naval Facilities Engineering Command Southwest; and S. Keith Hamilton, in his official capacity as Commander, Naval Facilities Engineering Command Southwest (collectively " Federal Defendants" ) cross move for summary judgment on the NEPA claims. Having carefully considered the record in its entirety, pertinent legal authorities, the arguments of counsel and for the reasons below, the court denies Plaintiff's motion for summary judgment on all claims and grants the Federal Defendants' motion for summary judgment on all claims. The Clerk of Court is instructed to close the file.

BACKGROUND

On January 25, 2011, NBCC commenced this action against the Federal Defendants seeking declaratory and injunctive relief for alleged violations of NEPA and the Administrative Procedures Act (" APA" ). The present action comes before the court following this court's June 26, 2008 order granting summary judgment in favor of NBCC on its public notice and participation claim and remanding the matter to the agency for compliance with the notice and public participation requirements of NEPA. The parties in the earlier filed action, San Diego Navy Broadway Complex Coalition v. U.S. Dept. of Defense, et al., No. 07cv0038 JM(WMc), jointly filed a motion to dismiss all claims without prejudice except the public notice and participation

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claim which was dismissed with prejudice.

The following facts are undisputed.

Overview

The Navy Broadway Complex (" NBC" ) site, located on federally owned land in downtown San Diego, presently consists of Navy administrative facilities including the Commander, Navy Region Southwest, and the Fleet Industrial Supply Center San Diego. (Administrative Record, " AR," 80468). The present Navy facilities, constructed primarily between 1921 and 1944, consist of 361,000 SF of administrative office space and 500,000 SF of warehouse space. The proposed action includes the development of up to 3.25 million SF with approximately 1 million SF of Navy administrative space. (AR 80469).

In 1982 the Department of the Navy considered options for the consolidation of various Navy installations in the San Diego area. In light of budget constraints, the Department of the Navy pursued a " co-location" program which allowed the federal government to retain title to real property and to lease portions of the property for private revenue-generating uses that could be used to offset the cost of new administrative facilities. (AR 80482-83). Congress enacted legislation in 1986, Public Law 99-661, § 2732, 100 Stat 3816 (1986), authorizing the Secretary of the Navy to pursue a public-private venture to implement the co-location concept at the NBC site. The legislation mandated that " any real property leased shall be developed in accordance with detailed plans and terms of development which have been duly formulated by the Navy and the San Diego community through the San Diego Association of Government's Broadway Complex Coordination Group." Id.

To obtain the objective of updated Navy administrative facilities, an advisory group, the Broadway Complex Coordinating Group (" BCCG" ), formed in 1985 under the auspices of the San Diego Association of Governments (" SANDAG" ) to serve as community advisors for the planning of the NBC site and to initiate consultation with local governmental authorities. In June 1987 the Navy and the City of San Diego executed a Memorandum of Understanding (" MOU" ) to establish the terms of potential future development on the NBC site. (AR 956-62). On September 22, 1989 the BCCG adopted the design principles for the NBC site and established detailed plans and development terms required by the legislation.

Initial Environmental Review Proceedings

To comply with its environmental obligations under NEPA, the Navy completed an Environmental Impact Statement (" EIS" ) in 1990 and issued a Record of Decision (" ROD" ) in July 1991. (AR 80480-82). The EIS evaluated six action alternatives, in addition to the no action alternative, and discussed a full range of environmental issues. The ROD memorialized the Navy's decision to redevelop the NBC site and identified essential uses for the site. The ROD also identified that the next step in the process was for the Navy and the City to enter into a Development Agreement (" DA" ), as contemplated under the 1987 MOU. Among other things, the MOU provided that the Navy, in consultation with the City, would prepare a development plan and urban design guidelines (i.e. land uses, density, viewscapes, building heights, open space, etc.).

After review and consideration of potential adverse environmental impacts to the project, the City completed an Environmental Impact Report in 1991. A mitigation monitoring program (" MMP" ) was prepared as part of the environmental review. (AR 13196.). The City and the

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Navy agreed that all required environmental processing had been completed and that no further environmental review would be required. Id. In October 1991 the California Coastal Commission issued a consistency determination, agreeing that the development of the NBC was consistent to the maximum extent practicable with the state's coastal zone management plans.

Following further public review, on November 2, 1992 the City enacted an ordinance approving the DA for the NBC site. The DA incorporated, among other documents, the MMP and provided a guide to the planning and approval process for the project. The DA includes a development plan, urban design guidelines, and phasing for the project. The DA contemplates the development of 3.25 million SF with about a third of the development for use by the Navy, about 1.65 million SF for office space and about 1.2 million SF for hotel and retail uses. (AR 33477-87). The DA also requires 1.9 acres of public open space.

The original DA provided for the termination of the DA by January 1, 2002 unless a Developer Lessee was selected and recorded. (AR 33443). Following public hearings, the original deadline was extended first to January 1, 2003 and later to January 1, 2007. (AR 33489).

Subsequent Environmental Review Proceedings

By 2004 the real estate market in San Diego improved, and the Navy took steps to implement the DA. (AR 30918). Further, in 2005 the Base Realignment and Closure Commission (" BRAC" ) issued a directive to the Secretary of the Navy to either implement the DA or close the NBC and relocate the units and functions of NBC to other Department of Navy owned sites in San Diego. (AR 30908). To facilitate implementation of the DA, the Navy prepared an Environmental Assessment (" EA" ) analyzing the environmental impacts associated with implementing the 1991 ROD and the 1992 DA. Concurrently with the preparation of the EA, the Navy, on March 31, 2006, selected Manchester Pacific Gateway, LLC (" Manchester" ) to participate in exclusive negotiations for the NBC project. (AR 26615-16). With the selection of Manchester, work commenced on the design phase submissions to Centre City Development Corporation (" CCDC" ) for a consistency review and determination of conformity with the DA. (AR 33446-47).

Each design stage of the project had to be approved by CCDC for conformity to the standards and initial consistency determination. Beginning in April 2006, the CCDC held five public workshops to display the plan proposed by the developer. (AR 33446-47). The CCDC also conducted public meetings wherein the NBC proposals were considered. Id. At these meetings, the public provided comments to the CCDC. Such comments were provided to the Navy for consideration in its NEPA process.

Pursuant to NEPA, on November 22, 2006, the Navy issued a Finding of No Significant Impact (" FONSI" ). In summarizing the environmental effects of NBC, the FONSI concluded:

The EA demonstrated that implementation of the proposed action, which includes measures to reduce or avoid impacts to the environment as defined in the Development Agreement, will not have a significant effect on the human environment, and therefore an EIS is not required. The EA revealed that with measures in place to reduce project impacts, and associated development-related best management practices, that there would be no significant impacts to environmental quality.

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(AR 41805). Shortly thereafter, the lease with Manchester was executed. (AR 41786).

On January 7, 2009 Plaintiff commenced a case alleging that Defendants (1) failed to prepare an Environmental Impact Statement (" EIS" ); (2) failed to prepare a Supplemental Environmental Impact Statement (" SEIS" ); and (3) failed to allow public participation before making the FONSI. (FAC ¶ 14-28). As noted above, the court granted Plaintiff's motion on ...


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