Unique, But Not Unusual: First District Affirms CEQA Exemptions and General Plan Consistency Finding For Three-Unit Infill Condo Project on San Francisco’s Telegraph Hill

by Miller Starr Regalia
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While “agree[ing] with appellant that Telegraph Hill is outstanding and unique in a city of outstanding and unique places[,]” the First District Court of Appeal nonetheless affirmed the trial court’s order denying plaintiff/appellant neighborhood group’s mandamus petition challenging the City of San Francisco’s approval of a 3-unit condominium project there on CEQA and general plan consistency grounds.  Protect Telegraph Hill v. City and County of San Francisco (2017) ___ Cal.App.5th ___.  In a 15-page opinion originally filed September 14, but belatedly ordered published on October 13, 2017, the Court upheld the City’s findings that the project, which involved renovation of an existing deteriorated small cottage and construction of a new 3-dwelling unit residential structure, was categorically exempt from CEQA and consistent with the City’s general plan and planning code.

Key takeways from the Court of Appeal’s opinion include:

  • The project fell within the “plain language” of CEQA’s categorical exemptions for “[r]estoration or rehabilitation of deteriorated or damaged structures” (CEQA Guidelines, § 15301(d)) (as to the small cottage rehabilitation) and new construction of a “multi-family residential structure totaling no more than four dwelling units” (§ 15303(b)) (as to the new three-unit building), and appellant did not contend otherwise.
  • The Court rejected appellant’s ipse dixit argument that conditions imposed by the City on the project’s conditional use approval to mitigate pedestrian and traffic safety disruption effects during and after construction were CEQA mitigation measures demonstrating in and of themselves that the project would have significant environmental effects. “[T]he record show[ed] those conditions were not the basis for the agency’s conclusion that the project qualified for a categorical exemption” and therefore did “not constitute [CEQA] mitigation[.]”  (Quoting San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1033.)  Rather than “disguised mitigation measures,” the Court characterized the Board’s imposition of the conditions as simply “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.”  Moreover, while “concerns” were expressed, the record before the approving agencies was “devoid” of substantial evidence of significant environmental effects on pedestrian rights of way, traffic or nearby school operations.
  • The project application’s project description complied with City’s planning code requirements, and was not legally or factually insufficient to determine whether the project qualified for a categorical exemption; appellant’s citation to case authority concerning the adequacy of a project description in an EIR was not on point.
  • Despite its arguments that the project’s “location and site constraints” were “unequivocally rare” extraordinarily “unique,” appellant failed to carry its burden of showing the record contained no substantial evidence to support the City’s determination that the project presented no “unusual circumstances” that would negate the applicable categorical exemptions. Consistent with the rule that a city’s determination of general plan consistency is accorded a “strong presumption of regularity” and “great deference,” the Court concurred with the City’s considered “reject[ion] [of] the notion that the designation of Telegraph Hill in the urban design element supports a claim of unusual circumstances[.]”  Noting appellant’s arguments concerning the project’s scale presented “a question of degree rather than an unusual circumstance,” that the project was “within the density, height and bulk limitations for its designated [RH-3 residential] zoning,” and that it will “be immediately adjacent to a four unit building of similar proportion,” the Court stated:  “It would be odd at best for us to conclude a development project that conforms with zoning requirements on Telegraph Hill is in and of itself an unusual circumstance that requires CEQA review.  We decline to do so.”
  • The Court brushed aside appellant’s arguments that the adjacent intersection’s traffic from Coit Tower/Pioneer Park tourists created an unusual circumstance, since “many roadways and sidewalks in the city are heavily traveled,” the site in context is relatively “commonplace,” “all driveways in the City cross the pedestrian path of travel,” and the project’s 3-vehicle parking garage would produce only a “low volume of vehicles entering and exiting from Telegraph Hill Boulevard.”
  • The Court also rejected appellant’s arguments that the project would result in significant view impairments of the downtown skyline from the landing on the adjacent stairs leading to Pioneer Park, and that this constituted an unusual circumstance negating its CEQA exemption. Appellant did not contest the applicability of Public Resources Code § 21099(d), which “provides that aesthetic impacts of certain residential urban infill projects within a transit priority area “shall not be considered significant impacts on the environment,”” and the City’s Planning Department determined the site qualified as “an infill site within a transit priority area.”  Accordingly, the Court held that “any impact on the city views caused by the project is not a significant environmental impact under CEQA.”  Substantial evidence also supported the City’s conclusions that the project would “not obstruct views from Pioneer Park and Coit Tower” and would be consistent with its general plan’s relevant Urban Design Element provisions.  (In a later part of its opinion, the Court rejected appellant’s arguments that the obscured stairway views violated Priority Policy 8 of the City’s general plan, which called for protection of parks’ and open space sunlight access and vistas; it noted in applying a deferential abuse of discretion standard that “the directives contained in the priority policies of San Francisco’s general plan are not strictly construed and their application necessarily involves a weighing and balancing of interests.”  (Citing San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 520.))
  • The project’s consulting engineers’ report provided substantial evidence supporting the City’s conclusions that the site’s topography (including its approximately 30% slope) and geology were suitable for construction of the project and presented no unusual circumstances. The slope was not unusual for the City, the Department of Building Inspection’s permit review “process would address potential settlement and subsidence impacts of excavation and dewatering of the site,” and there is “a low risk at the project site for liquefaction, surface rupture, densification and landslides.”  While appellant’s engineer’s report was critical of the project engineers’ analysis, the “substantial evidence” standard of review applicable to the City’s unusual circumstances determination compelled the Court to resolve all evidentiary conflicts and indulge all reasonable inferences in the City’s favor, and to “affirm [its] finding if there is any substantial evidence, contradicted or uncontradicted to support it.”  (Quoting Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1114.)

The Court of Appeal’s opinion makes a useful contribution to published CEQA case law.  It illustrates the application of the deferential substantial evidence standard of review to claims that “unusual circumstances” negate facially applicable categorical exemptions in the context of an infill project in a highly congested urban area.  It distinguishes CEQA mitigation measures developed through the CEQA review process to mitigate a project’s identified significant environmental effects – which would obviously be impermissible to consider as the basis for a categorical exemption – from conditions of approval imposed under other laws to address the “ordinarily anticipated inconvenience and danger” accompanying infill construction in an urban area.  It is also the first published appellate decision of which I am aware that bases a holding on the provisions of Public Resources Code § 21099(d) stating that the aesthetic impacts of a project located on a qualifying infill site within a transit priority area – in this case impacts of obscuring scenic public views – are not cognizable CEQA impacts.

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Miller Starr Regalia
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