California Court of Appeals, First District, Third Division
partial pub. order 6/25/13
Superior Court of San Francisco County, No. CPF-11-511499 Hon. Teri L. Jackson
Counsel for Petitioner and Appellant: Stephen M. Williams Neighbors for Fair Planning LAW OFFICE OF STEPHEN M. WILLIAMS.
Counsel for Respondents: Dennis J. Herrera City and County of San Francisco CITY ATTORNEY Kristen A. Jensen Susan Cleveland-Knowles DEPUTY CITY ATTORNEYS.
Counsel for Real Party in Interest: Denis F. Shanagher Booker T. Washington Community Alice Suet Yee Barkley Service Center Jennifer Chavez MCKENNA LONG & ALDRIDGE LLP Anne Morrison Epperly.
The City and County of San Francisco (the City) certified an environmental impact report and issued other approvals for a community center and affordable housing project (Project) proposed by real party in interest Booker T. Washington Community Service Center (the Center). The Project, if it goes forward, will involve the demolition of the Center’s existing facility at 800 Presidio Avenue and its replacement with a mixed-use project with 48 units of affordable housing and an expanded and updated community center (the Project).
Plaintiffs, Neighbors for Fair Planning, are a group of local residents who oppose the Project, filed a petition for a writ of mandamus to set aside the City’s certification of the final environmental impact report (EIR) and to invalidate its approval of a conditional use permit and special use district. The superior court denied the petition and plaintiffs appealed the ensuing judgment. Based on our independent review of the administrative record, we conclude the City’s actions are lawful and supported by substantial evidence.  Accordingly, we affirm.
A. The Project and Parties
The Center, a nonprofit organization founded in 1919, has occupied its present location in San Francisco’s Western Addition neighborhood since 1952. It currently offers job training, after school and teen programs, recreation, counseling on housing and health care, and senior clubs, among other programs, to its ethnically diverse, low and very low-income clientele.
The Center proposes to demolish its existing facility, a one-story, 13, 745 square foot community service building, and replace it with a 68, 206 square foot mixed-use development containing expanded community facilities and a five-story residential building. The new community center would include a 7, 506 square foot gymnasium, a child care center, and a state-of-the-art space to support the Center’s programs for at-risk youth, with sufficient space to expand the Center’s after-school and teen program from 100 to 150 participants. The housing component will provide 24 affordable studios for low income households, 24 additional studios for low to very low income emancipated foster youth (“transitional aged youth”), and two two-bedroom units for on-site managers.
Plaintiffs do not oppose replacing the current community center with a new facility, but have consistently advocated throughout the planning process for reducing its size, scope and density.
B. The Environmental Review and City Approval Process
On June 23, 2010, The San Francisco Planning Department (the Department) published and circulated a Draft Environmental Impact Report (Draft) for the Project. The Draft addresses the Project’s potential adverse impact on the neighborhood’s character and physical environment, including its impacts on aesthetics and visual characteristics such as light, glare and views. The Draft also identifies and discusses two potential alternatives to the Project: a (1) no project alternative; and (2) a smaller, code compliant alternative that would contain 17 fewer residential units, more parking spaces, and one rather than two buildings to house both residential uses and the community center. In addition, the Draft describes two other alternatives the Department considered, but rejected as infeasible or failing to meet the project objectives: (1) a “preservation alternative, ” which would preserve the existing building with a four-story addition in the rear that would contain approximately 20 transitional aged youth housing units and a community room, office and storage; and (2) an “adaptive reuse alternative, ” which would replace the community center with 25 transitional aged youth units.
There was enormous community response to the proposal, both positive and negative. Scores of individuals and organizations weighed in. Prevalent among the concerns voiced by neighbors and community groups were the Project’s size, scale and density, along with related concerns about its visual impacts and effects on traffic and parking. A number of individuals and neighborhood associations commented that they would support a four-story, 41-unit version of the Project, but strongly objected to the planned 55-foot building as inappropriate for the locale. Others, including neighbors, schools and community organizations, supported the Project as proposed and lauded the Center’s mission and the diversity, vibrancy and quality of life it brings to the neighborhood.
On August 5, 2010, the San Francisco Planning Commission (the Commission) held a public hearing on the Draft. A number of neighbors participated and voiced concerns about the Project’s size, scale, and visual character relative to the neighborhood. On April 14, 2011, the Department issued the “Comments and Responses” document. The Comments and Responses contain public comments received on the Draft, responses to those comments, and responsive changes to the Draft. To address community concerns regarding the Project’s visual character, the Project was modified to reduce the massing along the building’s top floor and to break up its bulk into smaller components through different façade treatments and the incorporation of setbacks on the fourth and fifth floors. The Comments and Responses and Draft together comprise the EIR.
On April 28, 2011, the Commission certified the EIR and found it was adequate, accurate, and objective; reflected the independent judgment of the Commission; and complied with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). On the same day, the Commission granted the Center’s application for a conditional use permit allowing exceptions to planning code provisions concerning street trees, rear yard usable open space and dwelling unit exposure.
Plaintiffs appealed both the certification of the EIR and the conditional use permit to the San Francisco Board of Supervisors (the Board). In late June the Board approved the conditional use permit with several conditions related to controlling noise and mitigating the Project’s impact on immediate neighbors. The Board also approved, and the mayor signed into law, an ordinance creating the Presidio-Sutter Special Use District to increase the allowed building height to 55’ and density to up to 54 units. On July 7, the City issued a Notice of Determination under CEQA announcing its approval of the Project.
Plaintiffs filed a petition for a writ of mandate directing the City to vacate its decision to certify the EIR and its approval of the conditional use authorization and Special Use District. After a hearing on the merits, the superior court issued an order and statement of decision denying the petition. Plaintiffs filed this timely appeal from the ensuing judgment.
I. The City Did Not Preapprove the Project in Violation of CEQA
Relying on Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Save Tara), plaintiffs contend the City impermissibly “preapproved” the Project prior to certification of the EIR. The contention is unpersuasive.
A. The Legal Framework: Save Tara
Under CEQA, local agencies must prepare or cause to be prepared, certify as complete, and consider a final EIR before approving or disapproving any project they propose to “carry out or approve, ” if the project may have significant environmental effects. (§§ 21100, subd. (a), 21151, subd. (a); Cal. Code Regs., tit. 14, § 15004, subd. (a); Save Tara, supra, 45 Cal.4th at p. 121.) The question here is whether the City’s involvement in the Project in the years preceding certification of the EIR constituted de facto approval of the Project and thus triggered the EIR requirement long before the City considered the Project’s environmental impacts.
Identifying the point at which an agency approves a project for purposes of CEQA compliance involves a balancing of competing factors. (Cal. Code Regs., tit. 14, § 15004, subd. (b); Save Tara, supra, 45 Cal.4th at p. 116.) As the Supreme Court explained in Save Tara:“This court, like the CEQA Guidelines, has... recognized two considerations of legislative policy important to the timing of mandated EIR preparation: (1) that CEQA not be interpreted to require an EIR before the project is well enough defined to allow for meaningful environmental evaluation; and (2) that CEQA not be interpreted as allowing an EIR to be delayed beyond the time when it can, as a practical matter, serve its intended function of informing and guiding decision makers. [¶] The CEQA Guidelines define ‘approval’ as ‘the decision by a public agency which commits the agency to a definite course of action in regard to a project.’ (Cal. Code Regs., tit. 14, § 15352, subd. (a).) The problem is to determine when an agency’s favoring of and assistance to a project ripens into a ‘commit[ment].’ To be consistent with CEQA’s purposes, the line must be drawn neither so early that the burden of environmental review impedes the exploration and formulation of potentially meritorious projects, nor so late that such review loses its power to influence key public decisions about those projects.” (Save Tara, supra, at p. 130.)
In Save Tara, the project proponents maintained that only “unconditional agreements irrevocably vesting development rights” constitute “commitments” that amount to project approval within the meaning of CEQA. (Save Tara, supra, 45 Cal.4th at p. 134.) Under this view, “any development agreement, no matter how definite and detailed, even if accompanied by substantial financial assistance from the agency and other strong indications of agency commitment to the project, falls short of approval so long as it leaves final CEQA decisions to the agency’s future discretion.” (Ibid.) The Supreme Court rejected that view. “Such a rule would be inconsistent with the CEQA Guidelines’ definition of approval as the agency’s ‘earliest commitment’ to the project. [Citations.] Just as CEQA itself requires environmental review before a project’s approval, not necessarily its final approval [citation], so the guideline defines ‘approval’ as occurring when the agency first exercises its discretion to execute a contract or grant financial assistance, not when the last such discretionary decision is made.” (Ibid.) “Moreover, limiting approval to unconditional agreements that irrevocably vest development rights would ignore what we have previously recognized, that postponing environmental analysis can permit ‘bureaucratic and financial momentum’ to build irresistibly behind a proposed project, ‘thus providing a strong incentive to ignore environmental concerns.’ ” (Id. at p. 135.)
The court elaborated: “A public entity that, in theory, retains legal discretion to reject a proposed project may, by executing a detailed and definite agreement with the private developer and by lending its political and financial assistance to the project, have as a practical matter committed itself to the project. When an agency has not only expressed its inclination to favor a project, but has increased the political stakes by publicly defending it over objections, putting its official weight behind it, devoting substantial public resources to it, and announcing a detailed agreement to go forward with the project, the agency will not be easily deterred from taking whatever steps remain toward the project’s final approval. [¶] For similar reasons, we have emphasized the practical over the formal in deciding whether CEQA review can be postponed, insisting it be done early enough to serve, ...