Navigating Between CEQA’s Scylla and Charybdis: First District Applies Save Tara Analysis and Rejects Claims of Improper Project “Preapproval” in Neighbors For Fair Planning v. City and County of San Francisco

by Miller Starr Regalia

One of the most vexing issues arising under CEQA, particularly in cases of projects involving public-private partnerships or projects requiring public agency financial assistance, is the question of when project approval occurs. Like pregnancy, project approval is an all-or-nothing condition with profound consequences – yet the law provides no “bright line” test for when project approval, and the concomitant requirement of completed CEQA review, occurs.

In the published portion of a recent opinion affirming a trial court’s judgment, which denied a writ petition challenging an EIR, the First District Court of Appeal, Division 3, applied the relevant legal framework of the Supreme Court’s decision in Save Tara v. City of West Hollywood (2008) 45 Cal.App.4th 116 (“Save Tara”) to a dispute over whether project approval had improperly occurred prior to completion of CEQA review. In doing so, it rejected a neighborhood group’s claims that the City and County of San Francisco had unlawfully “preapproved” a community center/affordable housing project prior to certifying the project EIR.  (Neighbors For Fair Planning v. City and County of San Francisco, et al. (1st Dist., Div. 3, 5/31/13) ____ Cal.App.4th ____, 2013 WL 3209381.)

The project at issue was proposed by real party Booker T. Washington Community Service Center (“Center”) and involved demolition of the Center’s existing one-story, 13,745 square foot facility on Presidio Avenue in San Francisco and replacement of that structure with a 68,206 square foot mixed-use development containing expanded community facilities and a five-story residential building. Included in the development were a new 7,506 square foot gym, a child care center, and expanded, state-of-the-art space for the Center’s at-risk youth programs. The project’s housing component included 24 low-income household studios, 24 low-to-very low income emancipated foster youth studios, and two two-bedroom units for onsite managers. A group of project neighbors, comprising plaintiff Neighbors for Fair Planning, consistently advocated throughout the planning process for reductions in the project’s size, scope and density.

As in all cases involving “the predominantly legal question whether the [lead agency] approved the Project for purposes of CEQA before it conducted the requisite environmental review[,]” the applicable legal standards address the issue of the proper timing of CEQA review, and call for a searching examination of the surrounding factual circumstances as revealed by the administrative record. Fundamentally, local agencies must prepare, certify, “and consider a final EIR before approving… any project they propose to ‘carry out or approve,’ if the project may have significant environmental effects.” (Neighbors for Fair Planning, supra, at ____, 2013 WL 3209381, *3.) (Note: While the Court’s opinion adds “or disapproving” where the ellipsis appears in the quote above, that phrase is inadvertent and inaccurate dicta, and should not be relied on, since (1) the project at issue was approved and (2) it is well established, in any event, that CEQA review is not required as a precondition of a public agency’s disapproval of a project. (See Pub. Resources Code § 21080(b)(5); 14Cal. Code Regs. § 15270(a) [“CEQA does not apply to projects which a public agency rejects or disapproves.”].)

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” (14 Cal.Code Regs., § 15352(a)), and, moreover, as the agency’s “earliest commitment” to the project. (Id., § 15352(b), emph. added.) As the Supreme Court observed in Save Tara, it “has… recognized two [relevant] considerations of legislative policy… (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 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.)

The Supreme Court in Save Tara rejected both (1) the project proponents’ position that only “unconditional agreements irrevocably vesting development rights” sufficed as “commitments” to project approval, and (2) the project opponents’ view that “any agreement, conditional or unconditional” would require CEQA review “if at the time it was made the project was sufficiently well defined to provide ‘“meaningful information for environmental assessment.”’” The Neighbors for Fair Planning Court of Appeal colorfully described the Supreme Court’s resolution of these competing positions as “[s]teering between the project proponent’s Scylla and its opponent’s Charybdis[.]” It noted: “The critical question is “‘whether, as a practical matter, the agency has committed itself to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project.’”

Applying these principles to the case before it, the Court of Appeal rejected Appellants’ argument “that the City preapproved the Project ‘through its many forms of bureaucratic and political endorsements’ long before it certified the EIR.” Specifically, it held that:

  • An impermissible commitment was not shown by a predevelopment loan agreement whereby the Mayor’s Office of Housing (“MOH”) agreed to loan the Center $788,484 for architectural and engineering design, survey and appraisal preparation, environmental studies, CEQA/NEPA review, legal expenses, loan fees, cost estimates and administrative work. Unlike in Save Tara, where the developer was not required to repay a nearly half-million dollar predevelopment loan unless the project were approved, the Center was required to repay its loan in 55 years with 3 percent interest if the project received approval, and immediately if the project were not approved by a specific date.
  • Appellants’ contention that the Center lacked sufficient assets to repay the loan was unsupported by the record; it was also significant that “the predevelopment loan is secured by a deed of trust against the Center’s property, which apparently is not otherwise encumbered.”
  • While Appellants forfeited (by failing to raise it in their opening brief) the argument that a deed of trust requirement that the site be used for affordable housing for 55 years showed improper commitment, the argument was meritless anyway: “Save Tara does not hold that a city’s requirement that a public private redevelopment project provide a specific public service, such as senior or low-income housing, is tantamount to project approval.”
  • Also significantly, unlike the agreement in Save Tara which “forthrightly” stated its purpose was to cause reuse and redevelopment of the project property, the City’s loan agreement with the Center stated: “By entering into this Agreement, MOH and Borrower intend to preserve the possibility of developing the Project as affordable housing by lending funds to Borrower for the Predevelopment Activities. The City does not, however, commit to or otherwise endorse the Project by entering into this Agreement. The Project remains subject to review by City agencies and City discretion to disapprove or modify the Project.”
  • A supervisor’s introduction of a special use district ordinance to increase allowed height and density to facilitate a state-mandated density bonus if the project were to be approved also was not unlawful “commitment.” Proposal of such legislation was not the same as approval, since the City could only take approval action as a body by resolution or ordinance, and it only did so two months after the EIR was certified.
  • Appellants’ remaining contentions, including that a Supervisor’s advocacy for the project and MOH’s “significant involvement and input in the Project’s design” demonstrated impermissible commitment, were also meritless. According to the Court: “[O]ne supervisor’s advocacy for the Center’s expansion is not equivalent to action, let alone approval, by the City” and the MOH’s staff’s involvement was “neither unusual, suspicious, nor demonstrative of preapproval.” Unlike the unequivocal public statements of project approval from “highly authoritative sources” in Save Tara, none of the “public statements” relied on by Appellants indicated the City had improperly committed to approve the Project prior to completing required CEQA review.

Written by:

Miller Starr Regalia

Miller Starr Regalia on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.