Martin v. City and County of San Francisco

• Decision Date: 29 December 2005
• Docket Number: No. A107768.,A107768.
• Citation: 37 Cal.Rptr.3d 470,135 Cal.App.4th 392
• Court: California Court of Appeals Court of Appeals
• Parties: Francis A. MARTIN III, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

37 Cal.Rptr.3d 470

135 Cal.App.4th 392

Francis A. MARTIN III, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

No. A107768.

Court of Appeal, First District, Division 4.

December 29, 2005.

Coblentz, Patch, Duffy & Bass, Jonathan R. Bass, San Francisco, Karen Jennings, for Plaintiff and Appellant.

Dennis J. Herrera, City Attorney, Martin Greenman, Sarah E. Owsowitz, Deputy City Attorneys, for Defendants and Respondents.

MUNTER, J.^*

The novel and very narrow issue presented is this: May a municipality lawfully require the owner of a private single-family residence who proposes to modify a portion of the interior of his residence, in an area not visible to the general public, to undergo the burden and expense of a review of his proposed project pursuant to the California Environmental Quality Act (CEQA)? The answer is "no." As we explain, although a municipality has very broad statutory discretion to grant or deny a required building permit, that authority does not extend to imposing CEQA review upon such an interior home project, even where the residence is listed as a city landmark and is located within an area registered as a state and a national historic district. What an owner plans to do to the private interior of his or her home does not implicate a significant adverse effect on the environment, which is the predicate for requiring CEQA review by a municipality.

A secondary issue is whether, apart from CEQA, a court will preempt administrative review under section 26 of the San Francisco Business and Tax Regulations Code of an application for a building permit. The answer again is "no." The exercise of section 26 administrative discretion must precede judicial intervention.

BACKGROUND

The salient facts are without dispute: Francis Martin (Martin) owns a house located on Broadway in San Francisco. That house, also known as the Atkinson House, was originally erected in 1853, making it one of the oldest structures in San Francisco. The noted 19th century architect Willis Polk designed the remodeling of its interior in 1893, the results of that and similar work by Polk becoming famous in architectural circles. In or about 1977, the Atkinson House was designated as a "City landmark." Since 1988, the Russian Hill neighborhood in which Martin's house is located has been listed on the National Register of Historic Places and the California Register of Historical Resources. The documentation leading up to the National Register listing noted generally that Willis Polk frequently utilized natural redwood interiors as a design feature.¹ However, a large number of enumerated factors contributed to the listing of the neighborhood, the Polk-designed redwood interiors being only one. For example, the listing documentation emphasized the exteriors of the buildings within the neighborhood and their relationships to their gardens and natural settings.

In 2001, Martin submitted plans to the City and County of San Francisco (City) for alterations to the interior and exterior of his house. The proposed changes contemplated the destruction of portions of the Polk-designed redwood interior. (See fn. 6, post.) In response to the submission of the plans, the City's Planning Department advised Martin that "[b]ased upon the information that has been presented, we believe that the interior space proposed for renovation is a feature that contributes to the Russian Hill-Vallejo Street Crest National Register Historic District"; that, "[a]s such, that space is considered to be a part of the historic resource"; and that consequently an "Environmental Review Officer" of the Planning Department "determined that the interior renovations proposed by the Martin family ... are not Categorically Exempt from" further environmental review under CEQA (Pub. Resources Code, § 21000 et seq.). Therefore, the City asked Martin to submit an "Environmental Evaluation application" so that the Planning Department could "proceed to analyze the potential environmental impacts of the project and complete the appropriate environmental review document." Although the City expressed no objection to Martin's proposed changes to the exterior of his home, it refused to process any part of his permit application absent CEQA review.

The parties stipulated at trial that "[n]o portion of the interior of the Atkinson House is visible from any public street or sidewalk"; that "Mr. Martin's proposed interior alterations of the Atkinson House would not be visible from any public street or sidewalk"; that "[t]he City has refused to process any building permit application for Mr. Martin's interior alterations unless the proposed project is first submitted to further environmental review under ... CEQA"; and that the City has "never in the past subjected proposed alterations to the interiors of private residences to environmental review under CEQA, other than the issuance of categorical exemptions." Nevertheless, the City took the position that "because ... the interior of the Atkinson House is a historical resource and ... the proposed interior alterations would cause a substantial adverse change in the significance of a historical resource," the City would require CEQA review of Martin's application as part of the City's discretionary powers to grant or deny approval of the desired building permit.

Instead of providing further information, Martin filed a complaint for declaratory relief, naming as defendants the City and its Planning Department. He prayed for a judicial determination "that CEQA does not apply to an application for a building permit ... authorizing plaintiff's proposed renovations and improvements to the interior" of his house. The trial court conducted an evidentiary hearing at which it accepted stipulations offered by the parties, and heard the testimony of three witnesses mainly concerning operations and procedures of the Planning Department. The common theme of the testimony mirrored one of the stipulations—this was the first time the Planning Department had taken the position that CEQA applied to alterations to the interior of a single-family private residence. The point of disagreement is about the proposed interior alterations, not those to the exterior.

Even though the only specific prayer for relief in Martin's complaint was for a declaration that CEQA does not apply to his proposed interior modifications, he injected into the case at trial a request for a further declaration. Thus, he also sought a pronouncement that the City has no discretion under section 26 to deny a permit to renovate the interior of a private residence when the plans comply with the City's applicable building codes and zoning ordinances, and will not affect surrounding properties or residents.

Following receipt of post-trial submissions, the court issued a statement of decision concluding that Martin was not entitled to any relief. After judgment was entered, Martin perfected this timely appeal.

REVIEW

1. The CEQA Issue

On the CEQA issue, the City tried and won this case below, and briefed it on this appeal, along the lines of the following reasoning: A city ordinance, section 26 of the San Francisco Business and Tax Regulations Code (hereinafter section 26), gives the Planning Department—and the Board of Permit Appeals as the reviewing authority—almost plenary discretion in deciding whether to issue a building permit.² CEQA specifies that decisions which involve the exercise of discretion by local authorities are left to local authorities. (Pub. Resources Code, § 21080, subds. (a) & (b); Cal.Code Regs., tit.14, §§ 15002(k)(1), 15060(c)(1), 15061(a), 15268(a) & (d), 15300.1, 15357-15359.) Armed with the discretion granted by section 26, the Planning Department must review Martin's project under CEQA, particularly because CEQA applies to projects that impact a "historical resource" such as Martin's house. (Pub. Resources Code, § 21084.1.) Moreover, courts will defer to local authorities until a final decision is made at the administrative level. (E.g., Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315, 144 P.2d 4; Maxwell v. Civil Service Commission (1915) 169 Cal. 336, 339, 146 P. 869.) Therefore, until the City completes administrative proceedings, Martin's request for declaratory relief as respects CEQA was, and remains, premature.

There is considerable force to the City's arguments — in the abstract. Section 26 does vest administrative authorities with very broad discretion to decide whether and on what conditions an applicant will be granted a permit. And if the application is for a building permit, the fact that the applicant's project complies with zoning ordinances and building codes does not restrict the scope of that discretion. (Lindell Co. v. Board of Permit Appeals, supra, 23 Cal.2d 303, 311, 314, 144 P.2d 4; Guinnane v. San Francisco Planning Com. (1989) 209 Cal.App.3d 732, 739-740, 257 Cal.Rptr. 742.) In addition, it is undisputed that once the neighborhood which includes Martin's house was placed on the National Register of Historic Places as authorized by the National Historic Preservation Act (16 U.S.C. § 470 et seq.), it was automatically put on the California Register of Historical Resources (Pub. Resources Code, § 5024.1; Cal.Code Regs., tit. 14, § 4851(a)(1)) and thus became a "historical resource" for purposes of CEQA. (Pub. Resources Code, § 21084.1.)³ The crux of the disagreement is whether the changes Mr. Martin proposes to make to the interior of his home will have a substantial impact on the environment.

A prudential basis for deferring a decision on the ultimate issue until after the completion of administrative proceedings dissolved at oral argument when counsel for the City advised us that the Planning Department has already firmly determined that CEQA does apply. Counsel's statement can and will be treated as factually authoritative. (E.g., Browne v. Superior...