(City & County of San Francisco Super. Ct. No. 507-519), Trial court: City & County of San Francisco Superior Court, Trial judge: Honorable Peter J. Busch.
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PUBLICATION
The City and County of San Francisco (the city) appeals from a writ of mandate ordering it to set aside a resolution of its Board of Supervisors (the board) initiating the process of designating The First St. John‟s United Methodist Church as a landmark pursuant to article 10 of the city‟s planning code, entitled "Preservation of Historical Architectural and Aesthetic Landmarks." The superior court concluded that the board exceeded its jurisdiction in adopting the resolution because state law exempts church property from local landmarking regulation. The city contends that the particular property, which the church no longer uses as a place of worship and has agreed to sell for demolition and the construction of condominiums, is not "noncommercial property" to which alone the exemption applies. The city also raises procedural objections, primarily that the challenge to the resolution is premature because no final decision has yet been made to declare the property to be a landmark. We find no merit in these contentions and shall affirm the well-reasoned decision of the superior court.
The First St. John's United Methodist Church
The property known as The First St. John‟s United Methodist Church, located at 1601 Larkin Street in San Francisco (the property), was constructed in 1911. The property is eligible for listing on the National Register of Historical Places and the California Register of Historical Resources. For some 90 years the property was used to conduct religious services. Due to changing demographics and declining membership, the congregation decided that it could no longer afford to maintain the property. In March 2004, the congregation merged with another local United Methodist congregation and transferred ownership of the property to The California-Nevada Annual Conference of the United Methodist Church (the church), a California religious corporation and administrative arm of the United Methodist Church.
When title was transferred, the building was being used only as a daycare and children‟s preschool facility. Soon thereafter it was determined that the unreinforced masonry building was unsafe for occupancy and needed significant seismic retrofitting, among other repairs. The building was vacated in 2005 and ever since has remained vacant. The church concluded "that because the congregation no longer wanted or needed to occupy the property, along with the fact that the structure was dilapidated, potentially hazardous and in need of significant structural attention, the only rational decision was to demolish the building." According to the church‟s director of administrative services, "The property has no use within the church‟s mission except as an important source of revenue to be generated by a sale. The church intends to use the sale proceeds to further its ministry in the city, where it has 14 congregations." In 2004 the church contracted to sell the property to Pacific Polk Properties, LLC (Pacific Polk) for the development of a 27-unit residential condominium project. Appropriate applications were filed with the city‟s planning and building inspection departments to obtain permission to raze the property and to proceed with construction. A demolition permit has not yet been issued.
Applicable Government Code Provisions
Government Code*fn1 section 25373, which applies to counties, provides in subdivision (b) that the board of supervisors "may, by ordinance, provide special conditions or regulations for the protection, enhancement, perpetuation, or use of places, sites, buildings, structures, works of art and other objects having a special character or special historical or aesthetic interest or value." A separate comparable authorization applies to cities.*fn2
In 1994, by Assembly Bill No. 133, the Legislature amended both statutes to allow religiously affiliated organizations to exempt their noncommercial property from new restrictions that otherwise might be imposed by local landmark designation. Subdivision (d) was added to section 25373 and provides: "Subdivision (b) shall not apply to noncommercial property owned by any association or corporation that is religiously affiliated and not organized for private profit, whether the corporation is organized as a religious corporation or as a public benefit corporation, provided that both of the following occur: [¶] (1) The association or corporation objects to the application of the subdivision to its property. [¶] (2) The association or corporation determines in a public forum that it will suffer substantial hardship, which is likely to deprive the association or corporation of economic return on its property, the reasonable use of its property, or the appropriate use of its property in the furtherance of its religious mission, if the application is approved." (Stats. 1994, ch. 1199, § 1.) A virtually identical provision was added to the section governing cities. (§ 37361, subd. (c); Stats. 1994, ch. 1199, § 2.) In East Bay Asian Local Development Corp. v. State of California (2000) 24 Cal.4th 693 (East Bay), a closely divided Supreme Court upheld the facial validity of the exemption, rejecting challenges under the First Amendment of the United States Constitution and article I, section 4 of the California Constitution.
Administrative and Judicial Proceedings
A draft environmental impact report (DEIR) for the project was published on April 14, 2007, and on May 16, 2007 the local Landmarks Preservation Advisory Board conducted a public information hearing on the DEIR. Five days later, on May 21, 2007, the board‟s Land Use and Economic Development Committee, over the church‟s objections, recommended the adoption of Resolution No. 308-07 to initiate proceedings to determine whether the property should be designated a local landmark under article 10 of the city‟s planning code. The resolution recites that the property "is the only extant California example by nationally renowned architect George Washington Kramer and is a valuable example of early twentieth century church architecture that combines elements of the Mission Revival and English Gothic Tudor style" and resolves: "That the San Francisco Board of Supervisors does hereby initiate the designation of [the property] as a Landmark, and so refers this resolution to the Landmarks Preservation Advisory for review pursuant to Article 10 of the Planning Code and other applicable provisions of law."*fn3 On June 5, 2007, over the church‟s renewed objections, the board adopted the resolution. On August 15, the Landmarks Preservation Advisory Board recommended approval of the landmark designation, and on September 20, 2007, the planning commission recommended that the board approve the proposed landmark designation. The board has not yet acted on the recommendation.
On August 10, 2007, after the board had approved the resolution initiating the landmark process, the church and Pacific Polk filed a petition for a writ of mandate seeking to halt the process. The petition names as respondents the city, the board, and the city‟s departments of planning and building inspection, and requests a writ directing the respondents to "reverse the Resolution, refrain from enforcing the Resolution or in any way subjecting the property to the San Francisco landmark designation process."*fn4 After denying the city‟s motion for judgment on the pleadings based on the ground that the matter was not ripe for adjudication because the designation of property as a local landmark is a legislative act which the city had not yet completed, the court ordered the production of the administrative record and, following a hearing, issued a statement of decision and judgment in July 2008. The judgment grants a writ of mandate "commanding [the city] to set aside ...