Beautiful v. City of S.F.

• Decision Date: 30 May 2014
• Docket Number: A136546
• Citation: 226 Cal.App.4th 1012,172 Cal.Rptr.3d 134
• Court: California Court of Appeals Court of Appeals
• Parties: SAN FRANCISCO BEAUTIFUL et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; AT & T California, Real Party in Interest.

226 Cal.App.4th 1012

172 Cal.Rptr.3d 134

SAN FRANCISCO BEAUTIFUL et al., Plaintiffs and Appellants,

v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents;AT & T California, Real Party in Interest.

A136546

Court of Appeal, First District, Division 4, California.

Filed April 30, 2014

Rehearing Denied May 30, 2014

See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 836.

Trial court: San Francisco City and County; Trial judge: Hon. Teri L. Jackson (San Francisco County Super. Ct. No. CPF11511535)

Dennis J. Herrera, City Attorney, Kristen A. Jensen, Deputy City Attorney, John Malamut, Deputy City Attorney, William K. Sanders, Deputy City Attorney, and Victoria Wong, Deputy City Attorney, for Defendant and Respondent

Mayer Brown LLP Michael J. Gill, Donald M. Falk, and Edward D. Johnson, Palo Alto, for Real Party in Interest and Respondent

Holland & Knight LLP, Amanda Monchamp, San Francisco, and Melanie Sengupta for Real Party in Interest and Respondent

Rivera, J.

AT & T California (AT & T) proposes to install 726 metal utility boxes housing telecommunications equipment on San Francisco sidewalks in order to expand its fiber-optic network (the project). The City and County of San Francisco (the City) approved the project without requiring an environmental impact report (EIR) to be prepared pursuant to the California Environmental Quality Act (Pub. Resources Code,¹ § 21000 et seq.) (CEQA), based on its conclusion that the project fell within a categorical exemption. Plaintiffs ² sought a petition for writ of mandate, which the trial court denied. We shall affirm the judgment.

I. BACKGROUND

AT & T applied for a categorical exemption for its “Lightspeed” project, which is intended to upgrade broadband speed and capabilities based on internet protocol technology, using an expanded fiber-optic network. It would connect the fiber to electronic components located in 726 new utility cabinets on public sidewalks. The majority of the cabinets would be approximately 48 inches high, 51.7 inches wide, and 26 inches deep. The new cabinets would be “paired” with—or placed within 300 feet of—existing AT & T utility cabinets. AT & T has not yet determined precisely where the new utility cabinets will be located.³

In 2007, AT & T sought a categorical exemption from CEQA review for an earlier version of the project, which would have included approximately 850 utility cabinets. The San Francisco Planning Department, in case number 2007.1350E, determined the project was exempt pursuant to section 15303(d) of the State CEQA Guidelines. (Cal.Code Regs., tit. 14, § 15000 et seq. (Guidelines).) ⁴

The president of a neighborhood association appealed the Planning Department's decision to the City's Board of Supervisors. The Board of Supervisors held a public hearing in 2008, at which counsel for the appellant and numerous members of the public expressed concern that the utility cabinets would be large and unsightly, would attract graffiti and public urination, would block pedestrian access to sidewalks and parked cars, and would create traffic hazards by reducing visibility. At the conclusion of the meeting, AT & T acknowledged that it needed to respond to public concerns, and withdrew its application.

After revising its proposal, AT & T submitted a new application for a categorical exemption in 2010. AT & T had reduced the number of proposed cabinets from 850 to 726, reduced the size of the proposed cabinets, increased the distance between the new cabinets and existing cabinets so as to provide more flexibility in cabinet location, eliminated the proposal to add new facilities within historic districts, promised to work with the City to screen the cabinets, promised to affix to each cabinet a 24–hour–a–day contact number for reporting graffiti directly to AT & T, and developed processes for members of the public to report graffiti through the City's “311” system and for AT & T personnel to report and remove graffiti. In its application materials, AT & T committed to adhering to certain limitations when choosing locations for the cabinets. Among them, the cabinets would not block pedestrian access and would maintain four feet of clearance, would not intrude on pedestrian “clear zones” at street corners, would have minimum setbacks at corners, curbs, fire hydrants, and other above-ground structures, and would not obstruct views of traffic signs, wayfinding signs, or traffic signals. AT & T also committed to use a graffiti-resistant coating on the cabinets and to work with the City, property owners, and community groups to install screening and allow for trees and shrubs to be planted next to the cabinets. In case number 2010.0944E, the City's Planning Department again determined the project was categorically exempt from environmental review.

San Francisco Beautiful and another organization, the Planning Association for the Richmond, appealed the Planning Department's determination. Members of the public submitted comments arguing that the cabinets were too bulky, would be eyesores, would attract vandalism, urination, graffiti, and trash, and would block visibility for pedestrians and drivers. In a six-to-five vote, the Board of Supervisors affirmed the Planning Commission's determination. During this process, AT & T provided a memorandum of understanding (MOU) to the City in which it “voluntarily” agreed, inter alia, to provide notice to neighbors and conduct community meetings for each cabinet site; maintain a public web site with information about the upgrade and contact information for public inquiries; place cabinets in alleys or non-sidewalk public rights-of-way where possible; consider options for screening cabinets; attempt to hire San Francisco residents for the project; and reimburse the City for the cost of graffiti removal.

Plaintiffs then brought this action in the trial court, seeking a writ of mandate ordering the City to set aside its approval and refrain from further approvals unless an EIR was prepared and feasible mitigation measures were adopted. The trial court denied the petition.

II. DISCUSSION

A. CEQA Overview

“CEQA embodies our state's policy that ‘the long-term protection of the environment ... shall be the guiding criterion in public decisions.’ ” (Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1100, 19 Cal.Rptr.3d 469; § 21001, subd. (d).) To implement this policy, CEQA and the Guidelines issued by the State Resources Agency have established a three-tiered process. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 112, 62 Cal.Rptr.2d 612 (Davidon Homes ).) In the first step, an agency conducts a preliminary review to determine whether CEQA applies to a proposed activity. (Ibid.) If the project is exempt from CEQA, either because it is not a “project” as defined in section 15378 of the Guidelines or because it falls within one of several exemptions to CEQA, “no further environmental review is necessary. The agency may prepare and file a notice of exemption, citing the relevant section of the Guidelines and including a brief ‘statement of reasons to support the finding.’ (Guidelines, §§ 15061, subd. (d), 15062, subd. (a)( [4] ).) If, however, the project does not fall within any exemption, the agency must proceed with the second tier and conduct an initial study. (Guidelines, § 15063.) If the initial study reveals that the project will not have a significant environmental effect, the agency must prepare a negative declaration, briefly describing the reasons supporting the determination. (Guidelines, §§ 15063, subd. (b)(2), 15070.) Otherwise, the third step in the process is to prepare a full environmental impact report (EIR) on the proposed project. (Guidelines, §§ 15063, subd. (b)(1), 15080; Pub. Resources Code, §§ 21100, 21151.)” (Davidon Homes, supra, 54 Cal.App.4th at p. 113, 62 Cal.Rptr.2d 612.)

In addition to establishing certain exemptions by statute (see, e.g., §§ 21080, 21080.01 through 21080.07, 21080.8 through 21080.42), CEQA requires the Guidelines to “include a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from this division. In adopting the guidelines, the Secretary of the Natural Resources Agency shall make a finding that the listed classes of projects referred to in this section do not have a significant effect on the environment.” (§ 21084, subd. (a).) In response to that mandate, the Guidelines include a number of classes of projects that the Secretary for Natural Resources found did not have a significant effect on the environment, and that were therefore declared to be categorically exempt from the preparation of environmental documents. (Guidelines, § 15300 et seq.) “Class 3” of these categorical exemptions “consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. The number of structures described in this section are the maximum allowable on any legal parcel.” (Guidelines, § 15303.)

The Guidelines also establish exceptions to the exemptions. (Guidelines, § 15300.2.) “Even if a project falls within the description of one of the exempt classes, it may nonetheless have a significant effect on the environment based on factors such as location, cumulative impact, or unusual circumstances.” (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 689, 46 Cal.Rptr.3d 387 (Save Our Carmel River ).) Among the exceptions are the following: “(b) Cumulative impact. All exemptions for these classes are inapplicable when the cumulative impacts of successive projects of the same type in the same place, over time is significant. [¶] (c)...