In Protect Telegraph Hill v. City and County of San Francisco
(Sept. 14, 2017 Slip Opinion A148544, unpublished), the First District Court of Appeal upheld the City of San Francisco's determination that rehabilitation of a historic cottage and development of three residential units on Telegraph Hill was categorically exempt from review under the California Environmental Quality Act (CEQA). The petitioning neighborhood group argued that the project's conditions of approval were mitigation measures, the project description was inadequate and the project was not exempt due to unusual circumstances. The court rejected all three arguments.
Standard Conditions of Approval Are Not Mitigation
The neighbors argued that conditions related to pedestrian safety and disruption of traffic during construction were not suitable for a use permit and were instead measures to mitigate significant environmental effects under CEQA. The Court disagreed, citing San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1033 and stating "there is simply nothing in this record that demonstrates the Board was imposing the additional conditions in order to mitigate the project's significant environmental effects as opposed to taking precautions to address the ordinarily anticipated inconvenience and danger that arises when significant construction activity occurs in a congested urban environment like San Francisco's Telegraph Hill." Slip Opinion at 6.
CEQA Does Not Specifically Require a Project Description for an Exemption
The Court noted that while the "CEQA guidelines contain fairly detailed specifications for a project description in an EIR, ... a notice of exemption is a determination that arises from a lead government agency's review for completeness of an application for a permit or other entitlement, and encompasses a consideration whether the proposed activity is a project under CEQA." Slip Opinion at 7-8. Here, the project application complied with the San Francisco City Code's requirements for a project description and the court found that it was therefore sufficient for its intended purpose and the requirements for an Environmental Impact Report (EIR) project description do not apply.
Development in a Unique Location in a City Is Not an Unusual Circumstance
Lastly, the court rejected the argument that the project's unique location on Telegraph Hill triggered the unusual circumstances exception. It found that views from this location is not an unusual circumstance because CEQA section 21099(d) provides that aesthetic impacts of this residential urban infill project within a transit priority area shall not be considered significant impacts on the environment. The court also found there was no record evidence that views would be obstructed from any public parks or open spaces and deferred to the city's determination that this development does not upset the unique character of Telegraph Hill. Slip Opinion at 14. Finally, the court also rejected claims that the project's location at a busy tourist intersection and the site's topography presented unusual circumstances.
The court ends its opinion with an eloquent quote that is worthwhile in its entirety:
"There was a time when Telegraph Hill was topped with scrub eucalyptus trees and goat trails. There was no Coit Memorial Tower then; there were no paved roads, no well-trimmed shrubbery, and no artists' studios with wide glass windows—studios renting for two hundred dollars a month. No, in those days Telegraph Hill was a rough place, beautiful in its raggle-taggle, topsy-turvy madness. The shacks that were called houses leaned at crazy angles and teetered on the edge of cliffs like small boys climbing fences and shouting, 'Watch me fall off!' . . . [¶] But, then as now when the hill has become a dignified dowager with important apartments replacing the shacks, you could stand up there at night, and the full beauty of the city was spread at your feet." (Dickson, Samuel, Tales of San Francisco, Stanford University Press, 1957, p. 243.) That will not change because of this project. – Slip Opinion at 14.