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San Francisco Tomorrow v. City and County of San Francisco

California Court of Appeals, First District, Second Division

August 14, 2014

SAN FRANCISCO TOMORROW et al., Plaintiffs and Appellants,
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents PARKMERCED INVESTORS PROPERTIES, LLC., Real Party in Interest and Respondent.

[As Modified Sept. 4 & 5, 2014]


San Francisco Superior Court of the City and County of San Francisco, No. CPF11511439 Hon. Teri L. Jackson Trial Judge

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Law Offices of Stuart M. Flash man and Stuart M. Flashman for Plaintiffs and Appellants..

Chatten-Brown & Carstens, Jan Chatten-Brown and Josh Chatten-Brown for Sierra Club and California Preservation Foundation as Amici Curiae on behalf of Plaintiffs and Appellants.

Dennis J. Herrera, City Attorney, Kate H. Stacy Audrey Williams Pearson and Brian F. Crossman Attorneys for Defendants and Respondents.

Gibson Dunn & Crutcher. Daniel Kolkey Jeffrey D. Dintzer and Matthew C. Wiekersham for Real Party in Interest and Respondent.

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Kline, P.J.


Appellants San Francisco Tomorrow and Parkmerced Action Coalition (PMAC) appeal the San Francisco Superior Court’s denial of appellants’ petition for writ of mandate seeking to overturn the decision by respondents City and County of San Francisco (City) and its Board of Supervisors (Board) approving the Parkmerced Development Project (the project). The project involves the long-term redevelopment of the privately owned, 152-acre Parkmerced Property by real party in interest Parkmerced Investors Properties, LLC.

Appellants challenge the court’s denial of their writ petition contending: (1) The Land Use Element (sometimes called the Urban Design Element) of the San Francisco General Plan (General Plan) is inadequate for failing to include standards for population density and building intensity. (Gov. Code, § 6302, subds. (a), (b).) (2) The project and the various project approvals are inconsistent with the “priority policies” and other policies of the General Plan. (3) The environmental impact report (EIR) and the findings underlying the City’s approval of the project were inadequate under standards established by the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et seq.). (4) The court erred in sustaining a demurrer to appellant PMAC’s cause of action for violation of its due process rights. (5) The court erred in including in the administrative record, transcripts of proceedings before an advisory body that were not before the Board when it certified the EIR and approved the project. We shall affirm the judgment.


A. The Project

The Parkmerced Project involves major modifications to Parkmerced, a 3, 221 unit residential rental complex on 152 acres. The site is located near Lake Merced, in the southwest corner of San Francisco. It is surrounded by the Stonestown Galleria shopping mall, San Francisco State University, two golf courses, and residential neighborhoods.

The original Parkmerced complex was built in the 1940s by MetLife as one of eight large-scale developments created around the country to provide affordable middle-income housing. The architect for Parkmerced was the New York City firm Leonard Schultze & Associates and its design involved

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noted San Francisco architect Frederick H. Meyer. The landscape plan was designed by famed San Francisco architect Thomas Church, designer of the master plans for University of California Berkeley and Santa Cruz Campuses, among other notable landscapes. Originally consisting of 192 acres and 3, 483 residential units, significant portions of the site were sold-off to San Francisco State University and to various private owners. The remaining complex, which is the subject of the project and resulting CEQA review, consists of 152 acres and 3, 221 residential units. Parkmerced Investors has owned the complex since October 2005. The complex’s housing is currently divided between eleven 13-story towers containing 1, 683 rental units and 170 2-story “townhouse” buildings containing 1, 538 units. Over the course of 20 to 30 years, the project would demolish all townhouse units, build an equal number of replacement units and add 5, 679 units for a total of 8, 900 units. Of the new non-replacement units, some would be rental units, while others would be sold. Some of the new units would be below-market-rate units, as required by City ordinance. The remainder would be market-rate units.

As described, “The proposed Project is a long-term (approximately 20-30 years) mixed-use development program to comprehensively re-plan and re-develop the approximately 116-acre Site (152-acres including streets). The Project proposes to increase the residential density, provide new commercial and retail services, provide new transit facilities, new parks and open space amenities and improve existing utilities and stormwater management systems within the development Site. Of the existing 3, 221 residential units on the Site, approximately 1, 683 units located within the 11 existing towers would remain and approximately 1, 538 existing apartments would be demolished and replaced in phases over the approximately 20 to 30-year development period. As provided in the proposed [d]evelopment [a]greement, all 1, 538 new replacement units would be subject to the San Francisco Rent Stabilization Ordinance and existing tenants in the to-be-replaced existing apartment units would have rights to relocate into new replacement units of equivalent size with the same number of bedrooms and bathrooms at their existing rents. An additional 5, 679 net new units would also be added to the Site for a project total of 8, 900 units. New buildings on the Site would range in height from 35 feet to 145 feet, and would not be taller than the existing towers, which will remain.

“Neighborhood-serving retail and office space would also be constructed as part of the proposed Project and concentrated on Crespi Drive, near the northeast part of the Site and the light-rail line. The proposed new neighborhood core would be located within walking distance of all the residences within Parkmerced. In addition, small neighborhood-serving retail establishments would be constructed outside of the neighborhood core, in proximity to residential units throughout the Site. A new preschool/elementary school and

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daycare facility site, fitness center, and new open space uses including athletic fields, walking and biking paths, a new farm, which the Sponsor proposes will be organic, and community gardens would also be provided on the Project Site. Infrastructure improvements would include the installation of bioswale system to retain and treat stormwater on-site and renewable energy sources, such as wind turbines and photovoltaic cells, which are detailed in the Sustainability Plan. Transportation improvements would include the realignment of the Muni M-Oceanview light-rail line through the Project Site, redesign and redevelopment of all public streets within the Project Site to meet the City’s Better Streets design standards, provision of car-share and bike-sharing stations throughout the Project Site, pedestrian safety and traffic improvements to intersections adjacent to the Project Site, construction of new bicycle paths, provision of a free shuttle service to Daly City BART and other items detailed in the Transportation Plan.”

B. Project Approvals

In addition to an EIR, prepared pursuant to CEQA, project approval also required amendments to the City’s General Plan, Zoning Map, and Planning Code (to add the Parkmerced Special Use District [sometimes referred to as the SUD]), as well as approval of a Local Coastal Zone Permit and the negotiated development agreement between the City and real party in interest (collectively Project Approvals).

Real party in interest applied to the City for environmental review of the project in January 2008. In May 2009, the City issued a Notice of Preparation for the project EIR. The Draft EIR (DEIR) was released for public review on May 12, 2010. A 60-day public comment period followed. The City’s Historical Preservation Commission held a hearing to receive input on the DEIR. The Comments and Responses document was released on October 28, 2010, and informational meetings were held by the Planning Commission. On February 10, 2011, the Planning Commission held a formal public hearing and voted to certify the project’s Final EIR (FEIR) and to recommend that the Board approve the project and related Project Approvals.

On March 1 and 2, 2011, appellants and others filed timely appeals with the Board contesting certification of the FEIR. The Board heard the appeal on March 29, 2011, and took public comment. After close of the public comment, the Board voted to continue the item. Meanwhile, the Board’s Land Use and Economic Development Committee (LUEDC) took additional public comment on the remaining Project Approvals. The LUEDC held four hearings—on March 28, April 18, May 16, and the morning of May 24, 2011. At the May 16 and May 24 meetings, the LUEDC discussed and approved amendments to the approvals. At the end of the May 24 hearing, the LUEDC forwarded the amended documents to the Board without recommendation.

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On the afternoon of May 24, 2011, the Board held a hearing on the continued EIR appeal and the Project Approvals. At the end of that meeting, the Board denied the appeal, upheld certification of the EIR and approved the project. On June 6, 2011, the Board finalized the Project Approvals. The mayor signed the approvals on June 10, 2011, and a Notice of Determination was filed that day.

C. The Petition for Writ of Mandate

Appellants filed their “Verified Petition for Peremptory Writ of Mandate and Complaint for Injunctive and Declaratory Relief” on July 11, 2011. Disputes over the content of the record followed and appellants moved to “Clarify the Extent of the Administrative Record, ” seeking to exclude certain hearings from the record. The court granted in part and denied in part the motion, ordering hearings before the LUEDC and the Historic Preservation Commission to be transcribed and included in the record and excluding two hearings occurring after the Board’s certification of the EIR. The trial court also granted real party’s demurrer (joined in by the City) to the seventh and eighth causes of action of PMAC for declaratory relief and for violation of due process rights. The operative pleading, the “Verified Third Amended Petition for Peremptory Writ of Mandate, ” was filed on April 6, 2012. Following a hearing on the merits of the petition, the trial court took the matter under submission. It issued its order denying the petition on all counts on December 14, 2012. Judgment was entered on January 16, 2013, and this timely appeal followed.


I. General Plan Adequacy

A. General Plan

“The Legislature has required every county and city to adopt ‘a comprehensive, long-term general plan for the physical development of the county or city....’ (Gov. Code, § 65300.) A general plan provides a ‘ “charter for future development” ’ and sets forth a city or county’s fundamental policy decisions about such development.” (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 815 [65 Cal.Rptr.3d 251] (Friends of Lagoon Valley).)

“ ‘[T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.’ [Citation.] ‘Since consistency with the general plan is required, absence of a valid general plan, or valid relevant elements or components

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thereof, precludes enactment of zoning ordinances and the like.’ [Citation.] ‘The general plan consists of a “statement of development policies... setting forth objectives, principles, standards, and plan proposals.” [Citation.] The plan must include seven elements—land use, circulation, conservation, housing, noise, safety and open space—and address each of these elements in whatever level of detail local conditions require [citation].’ ” (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1182 [56 Cal.Rptr.3d 374].)

“The adoption or amendment of a general plan is a legislative act. (Gov. Code, § 65301.5.) A legislative act is presumed valid, and a city need not make explicit findings to support its action. [Citations.] A court cannot inquire into the wisdom of a legislative act or review the merits of a local government’s policy decisions. [Citation.] Judicial review of a legislative act under Code of Civil Procedure section 1085 is limited to determining whether the public agency’s action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair. [Citations.]” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1195 [24 Cal.Rptr.3d 543].) "[O]nly those portions of the general plan which are impacted or influenced by the adoption or amendment can properly be challenged in the action which is brought.” (Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 289-290 [3 Cal.Rptr.2d 504], disapproved in part on another ground as stated in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743, fn. 11 [29 Cal.Rptr.2d 804, 872 P.2d 143].)

Appellants attack the San Francisco General Plan itself, arguing the Urban Design Element of the General Plan is inadequate for failing to include standards for population density and building intensity as required by Government Code section 65302, subdivision (a), which provides in pertinent part: “The [general] plan shall include the following elements: [¶] (a) A land use element that designates the proposed general distribution and general location and extent of the uses of the land.... The land use element shall include a statement of the standards of population density and building intensity recommended for the various districts and other territory covered by the plan....”

The trial court concluded that a reasonable person could conclude, as did the City, that Table I-27 and Map I-2 in the General Plan’s Housing Element, and Maps 4 and 5 in the Urban Design Element provide the information described in Government Code section 65302, subdivision (a). We agree.

1. Population density.

The terms “population density” and “building intensity” are not defined by the statute. In Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664 [188 Cal.Rptr. 233] (Twain Harte), the court determined “the reasonable interpretation of the term

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‘population density’ as used in Government Code section 65302 is one which refers to numbers of people in a given area and not to dwelling units per acre, unless the basis for correlation between the measure of dwelling units per acre and numbers of people is set forth explicitly in the plan.” (Id. at p. 699, fn. omitted.)

The Urban Design Element of the General Plan includes a Land Use Index. This index includes land use maps and references to land use policies scattered through other elements. Appellants acknowledge, as they must, that the actual layout of a general plan is generally within the local agency’s discretion. (Gov. Code, § 65301; see Garat v. City of Riverside, supra, 2 Cal.App.4th 259, 296 [plan may be adopted in any format deemed appropriate or convenient, including combining of elements, a single document or group of documents relating to subjects or geographic segments of the planning area].) The Land Use Index has a section labeled “Population Density and Building Intensity Standards.” This section points to density and intensity standards in the commerce, industry and housing elements, and various area plans. It also has a series of maps depicting citywide guidelines for building height and building bulk, and which depict a citywide commercial and industrial density plan expressing densities in terms of a FAR (Floor Area Ratio), the ratio between gross floor area to lot area. However, the identified “area plans” do not include the Parkmerced area.

The section of the Housing Element describing the existing housing stock contains a Table (I-27, “Generalized Housing Densities Allowed by Zoning”) and corresponding Map (I-2, “Generalized Housing Densities Allowed by Zoning”) that together provide an adequate description of the population densities for the Parkmerced area. Table I-27 of the Housing Element set forth five categories of housing density (low, moderately low, medium, moderately high, and high) and specifies the types of zoning districts that relate to each category. For each category, the Table states both the “average units per acre” and the “population density, ” in addition to describing the general locations where these density levels may be found. Map I-2, on the following page, shows the locations of each housing density category throughout the City. A narrative preceding the table and map describes them: “Table I-27 offers a listing of the City’s zoning categories that permit residential development, grouping these by generalized housing density levels. Map I-2 provides a generalized illustration of housing densities citywide.” The map identifies portions of the Parkmerced site as “medium density, ” corresponding to an average population density of 124 persons per acre, and other portions as “high density” corresponding to an average population density of 651 persons per acre. Accordingly, the General Plan includes a statement of population density (numbers of people) for the territory it covers. (See Twain Harte, supra, 138 Cal.App.3d at p. 699; see also Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 350 [176 Cal.Rptr. 620]

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[there must be a perceptible connection between density standards and locations within the jurisdiction].)

Government Code section 65302, subdivision (a) does not require a general plan’s population density statement be “prescriptive, ” rather than “descriptive, ” as appellants suggest. Rather, that section requires a statement of recommended densities, not binding or inflexible limits on density. (See Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 718, fn. 7 [29 Cal.Rptr.2d 182] (Sequoyah) [map that is “ ‘largely illustrative in nature’ ” is a standard of population density under Government Code § 65302, subd. (a), even though the City’s approvals may occasionally deviate from details of the map].)

Moreover, respondents dispute appellants’ claim that Table I-27 only describes existing densities. The averages in the table correspond to specific zoning designations and general locations throughout the City, as also identified in the table. Therefore, respondents maintain, geographic locations and the zoning designations throughout the City also signal the generally recommended population density. Further, the Housing Element contemplates that new housing will generally be constructed at densities similar to the surrounding development. Therefore, Table I-27 and Map I-2 also project the likely future densities throughout the City. (See Housing Element Part I, pp. 92-93 [discussion projecting future residential development on in-fill sites at lower densities in ...

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