Court of Appeal Clarifies Requirements for Public Input on Development Agreements


Due process rights to notice and a public hearing for those who may be affected do not apply to a public agency’s consideration of approval of a development agreement, an appellate court has ruled. In addition, the First District Court of Appeal’s decision in San Francisco Tomorrow v. City and County of San Francisco provides guidance on the population density component of a General Plan and the types of hearing transcripts that should be included in an administrative record for a lawsuit brought under the California Environmental Quality Act.

In its decision, the court rejected challenges from environmental and community groups to the Parkmerced Development Project, which would extensively modify a 3,221-unit, 152-acre residential complex in San Francisco. The court’s opinion provides guidance on a number of land use topics, including development agreements. However, the decision was only partially published — meaning only certain aspects are binding.

In the published portion, the court clarified that approval of a development agreement is a legislative act, and, accordingly, the procedural due process rights to notice and a hearing do not attach to consideration of approval of such an  agreement. In addition, the court determined that San Francisco’s General Plan complies with Government Code section 65302(a), which requires a General Plan to discuss population density and building intensity. The court also held that transcripts of hearings before the Board of Supervisors’ Land Use and Economic Development Committee were “other written materials” that, pursuant to Public Resources Code section 21167.6 of CEQA, were properly included in the administrative record.

In the unpublished portion of the decision, the court found that, even though the City’s General Plan priority policies were enacted by a voter initiative, judicial review of the Board of Supervisors’ implementation of the policies should proceed in the same manner as if the Board had enacted the policies itself. Further, the court found that the project did not have to be perfectly harmonious with the priority policies and that, overall, the project was consistent with the General Plan. Finally, in considering the appellants CEQA challenge, the court held that the project’s environmental impact report consistently described the project, identified all of the project’s significant impacts, considered an adequate range of alternatives, properly responded to comments on the EIR, acted correctly in choosing not to recirculate the EIR, and made adequate CEQA findings in approving the project.

In sum, the court rejected all of the appellants’ challenges to the project. The  decision may be found here.

Additional Reading:

S.F. chalks up court win for massive Parkmerced housing development (San Francisco Business Journal)

Photo: San Francisco Planning Department



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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