San Franciscans Downtown Plan v. S.F.

• Decision Date: 30 September 2002
• Docket Number: No. A095827.,A095827.
• Citation: 125 Cal.Rptr.2d 745,102 Cal.App.4th 656
• Court: California Court of Appeals Court of Appeals
• Parties: SAN FRANCISCANS UPHOLDING THE DOWNTOWN PLAN, et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRACISCO, et al., Defendant and Respondents, Forest City Development, Inc., et al., Real Parties in Interest and Respondents.

125 Cal.Rptr.2d 745

102 Cal.App.4th 656

SAN FRANCISCANS UPHOLDING THE DOWNTOWN PLAN, et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRACISCO, et al., Defendant and Respondents, Forest City Development, Inc., et al., Real Parties in Interest and Respondents.

No. A095827.

Court of Appeal, First District, Division 3.

September 30, 2002.

Rehearing Denied October 28, 2002.

Review Denied December 18, 2002.

Brandt-Hawley & Zoia, Brandt-Hawley Law Group, Susan Brandt-Hawley, Glen Ellen, for Plaintiffs and Appellants.

Paul W. Edmondson, General Counsel, Elizabeth S. Merritt, Associate General Counsel for National Trust for Historic Preservation, California Preservation Foundation and San Francisco Tomorrow as Amici Curiae on behalf of Defendants and Appellants.

Louise H. Renne, Dennis J. Herrera, City Attorneys, Judith A. Boyajian, John Malamut and Audrey Williams Pearson Deputy City Attorneys for Defendants and Respondents City and County of San Francisco.

Morrison & Foerster LLP, Michael H. Zischke and Steven L. Vettel, San Francisco, for Defendant and Respondent Redevelopment Agency of the City and County of San Francisco.

Coblentz, Patch, Duffy & Bass, LLP, Jonathan R. Bass, San Francisco, and Keith Evans-Orville for Real Parties in Interest and Respondents.

McGUINESS, P.J.

In October 2000, the City of San Francisco (City), acting through its Board of Supervisors (the Board), Planning Commission (the Commission), Redevelopment Agency (the Agency) and mayor, approved the expansion of the Yerba Buena Center Redevelopment Plan to include a massive redevelopment project (the Project) planned for the site of the former Emporium store in downtown San Francisco bounded by Market, Fourth, Mission and Fifth streets (the Emporium Site Redevelopment Area).¹ This appeal is from a judgment denying a mandamus writ petition filed by appellants San Franciscans Upholding the Downtown Plan and five individual San Francisco residents,² seeking to invalidate the Project on the grounds the City and its pertinent agencies, agents and representatives abused their discretion in certifying the Project environmental impact report (EIR), amending the Yerba Buena Center Redevelopment Plan, and approving the Project, all in alleged violation of the California Environmental Quality Act (CEQA), the San Francisco Planning Code (Planning Code), the San Francisco General Plan, and the California Community Redevelopment Law.

On appeal, appellants argue that the judgment denying their writ and validating the actions of respondents must be reversed because (1) the Project was inconsistent with the San Francisco General Plan, particularly that part of it known as the Downtown Area Plan (the Downtown Plan); (2) the City and its pertinent agencies violated CEQA by certifying an inadequate EIR and approving the Project despite its significant environmental impacts and the existence of feasible alternatives; and (3) there was insufficient evidence to support the finding of "blight" necessary to incorporate the Project site into the preexisting Yerba Buena Center Redevelopment Plan and thereby exempt it from compliance with the Planning Code and General Plan. Appellants' arguments are contested by respondents—the City, Commission, Board and Agency—as well as by real parties in interest Federated Department Stores, Inc. (Federated), Bloomingdale's, Inc. (Bloomingdale's), Emporium Development, L.L.C. (Emporium Development) and Forest City Development, Inc. (Forest City).³ In addition, a brief has been filed by the National Trust for Historic Preservation, California Preservation Foundation, and San Francisco Tomorrow as Amici Curiae in support of appellants. Based on our review of the administrative record in accordance with the applicable standard of review, we conclude that the trial court's judgment must be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The building housing the former Emporium department store (the Building) is located at 835 Market Street between Fourth and Fifth Streets in San Francisco, with its rear facing Jessie Street, a midblock alley running parallel to and between Market and Mission streets. Originally built in 1896, the Emporium Building was designed by San Francisco architect Albert Pissis, one of the first Americans to be trained at the Ecole des Beaux Arts in Paris.⁴ From the outset, the top five floors of the seven-story front section of the Building, originally known as the Parrott Building, were office space. For the first ten years of the Building's existence, this office portion was the official designated seat of the California Supreme Court. The bottom two floors of the office portion on Market Street, together with the entire remainder of the Building, were devoted to the Emporium's retail space. This portion centered on a large, three-story open rotunda, 51 feet in height, ringed by a twostory pillared gallery and topped with a 102-foot-diameter ornate glass and metal dome.

The Emporium Building structurally withstood the 1906 earthquake. However, all but the sandstone 120-1'oot-tall Market Street facade of the original structure was thereafter destroyed by the subsequent fire. With the seven-story facade intact, the Building was rebuilt in 1908 in a similar fashion for the sole and express use of the Emporium. The facade and much of the structural steel in the original Building were reused, and all the interior arrangements remained similar. The 1908 Building, like the original one, included the seven-story office tower extending back from Market Street 65 feet, plus a four-story segment at the rear along Jessie Street. The two-story department store section extended between these higher segments. The three-story skylit rotunda surmounted by a glass dome was reconstructed. As completed, the rectangular Building was 275 feet wide and 355 feet deep, with a large central aisle almost 40 feet wide bisecting the space between Market and Jessie Streets through the central skylit rotunda.

The Emporium department store occupied the Building continually from reconstruction in 1908 until 1996. During this period, the Emporium built or purchased several adjoining structures and made numerous changes to the main Building itself. In 1916, the Building was enlarged with a third floor added to the main retail space, opening onto the existing rotunda. In 1917, a nine-story, 200,000 square foot annex was completed adjacent to the Jessie Street facade. Subsequently, six more buildings on the south side of Jessie Street were acquired by the Emporium. In 1933, an eighth additional building was built across Jessie Street and internally connected to the other, older warehouse buildings which had already been acquired. That same year, two pedestrian bridges across Jessie Street were completed, connecting the warehouse buildings on the Mission Street side with the older original Emporium Building on Market Street. The eight ancillary buildings were used by the Emporium for offices, storage, stocking, loading, receiving, and other activities; and generally were connected with each other and with the main Building by a system of long corridors, tunnels, bridges, stairs and elevators. Escalators were added to the Emporium Building in 1936. Various other changes were made in the 1950's, including closing off some openings on the second and third floors of the rotunda with blank panels. Between 1969 and 1970, the Emporium basement was connected to the new Bay Area Rapid Transit (BART) station at Powell Street. In 1977, the ground floor arcade windows on Market Street were removed to increase retail selling space. In 1989, the west side of the Emporium Building was opened into the new San Francisco Centre.

In 1979, as part of an survey of architecturally significant buildings, the Foundation for San Francisco's Architectural Heritage gave the Emporium Building its highest "A" rating, indicating that it was a building of the highest architectural and historical importance, one of the most important buildings in downtown San Francisco, eligible for the National Register, and of highest priority for City Landmark status. The San Francisco Downtown Plan, an official area plan in the larger San Francisco General Plan, rates the Building in Category I of architectural significance. Category I buildings are those deemed by the General Plan to be of "highest architectural and environmental importance— buildings whose demolition would constitute an irreplaceable loss to the quality and character of downtown." The most significant features of the Building identified by the General Plan are the Market Street facade and office structure, the rotunda, and the dome. On the other hand, the Downtown Plan did not identify as significant architectural features the rest of the interior retail section of the Emporium or the Jessie Street facade. None of the eight ancillary buildings attached to the Emporium or the other three buildings and lots included in the Emporium Site Redevelopment Area has ever been designated as an architecturally significant building by the Downtown Plan.⁵ As a Category I building, the Emporium Building qualifies for special protection under several provisions of the Downtown Plan and Articles 10 and 11 of the Planning Code.

Sales at the Emporium declined in the 1990's. In 1995, Federated and its affiliate Bloomingdale's became the owners of the Emporium Building and the eight adjoining buildings after Broadway Stores, Inc., the former owner of the Emporium, went bankrupt. The Emporium closed in 1996 due to significant financial losses. Except for a brief period when Macy's used the ground floor of the Emporium Building for its furniture department, almost all of the building space owned by Federated in the Emporium Site Redevelopment Area has since been vacant. Two other smaller buildings not owned by Federated, located on Mission Street in the Emporium Site Redevelopment Area, are also largely vacant....