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San Francisco Beautiful v. City and County of San Francisco

California Court of Appeals, First District, Fourth Division

April 30, 2014

SAN FRANCISCO BEAUTIFUL et al., Plaintiffs and Appellants,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents AT&T CALIFORNIA, Real Party in Interest and Respondent.

San Francisco County Super. Ct. No. CPF11511535.

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COUNSEL

Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiff and Appellant.

Dennis J. Herrera, City Attorney, Kristen A. Jensen, John Malamut, William K. Sanders and Victoria Wong, Deputy City Attorneys, for Defendant and Respondent.

Mayer Brown, Michael J. Gill, Donald M. Falk, Edward D. Johnson; Holland & Knight, Amanda Monchamp and Melanie Sengupta for Real Party in Interest and Respondent.

OPINION

RIVERA, J.

AT&T California (AT&T) proposes to install 726 metal utility boxes housing telecommunications equipment on San Francisco sidewalks in order to expand its fiber-optic network (the project). The City and County of San Francisco (the City) approved the project without requiring an environmental impact report (EIR) to be prepared pursuant to the California Environmental Quality Act (Pub. Resources Code, [1] § 21000 et seq.) (CEQA), based on its conclusion that the project fell within a categorical exemption. Plaintiffs[2] sought a petition for writ of mandate, which the trial court denied. We shall affirm the judgment.

I. BACKGROUND

AT&T applied for a categorical exemption for its “Lightspeed” project, which is intended to upgrade broadband speed and capabilities based on internet protocol technology, using an expanded fiber-optic network. It would connect the fiber to electronic components located in 726 new utility cabinets

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on public sidewalks. The majority of the cabinets would be approximately 48 inches high, 51.7 inches wide, and 26 inches deep. The new cabinets would be “paired” with—or placed within 300 feet of—existing AT&T utility cabinets. AT&T has not yet determined precisely where the new utility cabinets will be located.[3]

In 2007, AT&T sought a categorical exemption from CEQA review for an earlier version of the project, which would have included approximately 850 utility cabinets. The San Francisco Planning Department (Planning Department), in case number 2007.1350E, determined the project was exempt pursuant to California Code of Regulations, title 14, section 15303, subdivision (d), part of the State CEQA Guidelines. (Cal. Code Regs., tit. 14, § 15000 et seq. (Guidelines).)[4]

The president of a neighborhood association appealed the Planning Department’s decision to the City's board of supervisors (Board of Supervisors). The Board of Supervisors held a public hearing in 2008, at which counsel for the appellant and numerous members of the public expressed concern that the utility cabinets would be large and unsightly, would attract graffiti and public urination, would block pedestrian access to sidewalks and parked cars, and would create traffic hazards bye reducing visibility. At the conclusion of the meeting, AT&T acknowledged that it needed to respond to public concerns, and withdrew its application.

After revising its proposal, AT&T submitted a new application for a categorical exemption in 2010. AT&T had reduced the number of proposed cabinets from 850 to 726, reduced the size of the proposed cabinets, increased the distance between the new cabinets and existing cabinets so as to provide more flexibility in cabinet location, eliminated the proposal to add new facilities within historic districts, promised to work with the City to screen the cabinets, promised to affix to each cabinet a 24-hour-a-day contact number for reporting graffiti directly to AT&T, and developed processes for members of the public to report graffiti through the City’s “311” system and for AT&T personnel to report and remove graffiti. In its application materials, AT&T committed to adhering to certain limitations when choosing locations for the cabinets. Among them, the cabinets would not block pedestrian access and would maintain four feet of clearance, would not intrude on pedestrian

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“clear zones” at street corners, would have minimum setbacks at corners, curbs, fire hydrants, and other above-ground structures, and would not obstruct views of traffic signs, wayfinding signs, or traffic signals. AT&T also committed to use a graffiti-resistant coating on the cabinets and to work with the City, property owners, and community groups to install screening and allow for trees and shrubs to be planted next to the cabinets. In case No. 2010.0944E, the Planning Department again determined the project was categorically exempt from environmental review.

San Francisco Beautiful and another organization, the Planning Association for the Richmond, appealed the Planning Department’s determination. Members of the public submitted comments arguing that the cabinets were too bulky, would be eyesores, would attract vandalism, urination, graffiti, and trash, and would block visibility for pedestrians and drivers. In a six-to-five vote, the Board of Supervisors affirmed the Planning Department's determination. During this process, AT&T provided a memorandum of understanding (MOU) to the City in which it “voluntarily” agreed, inter alia, to provide notice to neighbors and conduct community meetings for each cabinet site; maintain a public web site with information about the upgrade and contact information for public inquiries; place cabinets in alleys or non-sidewalk public rights-of-way where possible; consider options for screening cabinets; attempt to hire San Francisco residents for the project; and reimburse the City for the cost of graffiti removal.

Plaintiffs then brought this action in the trial court, seeking a writ of mandate ordering the City to set aside its approval and refrain from further approvals unless an EIR was prepared and feasible mitigation measures were adopted. The trial court denied the petition.

II. DISCUSSION

A. CEQA ...


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