Terminal Plaza Corp. v. City and County of San Francisco

Decision Date01 October 1986
Citation230 Cal.Rptr. 875,186 Cal.App.3d 814
CourtCalifornia Court of Appeals Court of Appeals
PartiesTERMINAL PLAZA CORP., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Respondents, FIVE FREMONT CENTER ASSOCIATES, Real Party in Interest and Respondent. A020144.

William A. Falik, Hodge, Buchanan, Falik & Dupree and Freytag, LaForce, Rubinstein, Teofan & Falik, San Francisco, for plaintiff and appellant.

George Agnost, City Atty., Paula Jesson, Melba Yee and Andrew W. Schwartz, Deputy City Attys., San Francisco, for defendants and respondents.

Pillsbury, Madison & Sutro, Walter R. Allan and Kirke M. Hasson, San Francisco, for real party in interest and respondent.

KLINE, Presiding Justice.


Terminal Plaza Corporation ("TPC") appeals a judgment of the San Francisco Superior Court denying issuance of a writ of mandate compelling the City and County of San Francisco, and certain of its departments and officers ("City") to enforce a portion of a Planning Commission Resolution conditioning the development of Five Fremont Center (a 43-story office building being developed by respondent Five Fremont Center Associates ("Five Fremont")) on property immediately adjacent to property owned in common by TPC and Five Fremont. TPC contends (1) that City Planning Commission Resolution 8877 requires respondent Five Fremont immediately to construct a pedestrianway on property owned by Five Fremont and (2) that City respondents have a clear and present ministerial duty to enforce this asserted requirement.


At issue is the interpretation of City Planning Commission Resolution 8877 and the appropriateness of mandate to enforce that resolution. The pertinent portion of the resolution, as amended by the Board of Permit Appeals, provides: "The project sponsors shall develop a mid-block pedestrian way connecting Market Street, preferably at the existing plaza west of the 425 Market Street building and Mission Street, and linked to a pedestrian bridge over Mission Street to Transbay Terminal. The pedestrianway shall be of adequate, comfortable dimensions, at least 12 feet in width, and shall feature such amenities as will encourage use of this pedestrianway as an alternative to First and/or Fremont Street sidewalks. The pedestrianway shall remain open and available to the general public a minimum of 12 hours daily. Until such time as the bridge is constructed, the southern end of the pedestrianway shall terminate within the 5 Fremont Center development, and pedestrian access from the pedestrianway to the north sidewalk of Mission Street mid-block at grade shall be prohibited by an appropriate design treatment. This treatment shall not interrupt needed delivery access to the Terminal Plaza Building. The mid-block pedestrianway shall be immediately accessible from the ground floor lobby and elevator bank of the 5 Fremont Tower. ... It is understood that no use of Lot 6A for a pedestrian bridge, pedestrian mall, or otherwise can occur without the consent of Terminal Plaza Corporation, except such uses as may be permitted under the existing easement rights held by the Project owner."


At the time the petition for a writ was filed, respondent Five Fremont 1 was in the process of constructing, and has subsequently completed construction of, a 43-story high-rise office tower and a separate low-rise retail structure in San Francisco at Fremont and Mission Streets. 2 The high-rise tower is located at the southeasterly portion of the project area on Lot 7 and a portion of Lot 6. Lot 6A (owned jointly by Five Fremont and TPC) is located at the western boundary of Lot 7. The distance between the tower and the boundary between Lots 7 and 6A is approximately four and one-half feet.

The Environmental Impact Report

On March 12, 1981, the San Francisco City Planning Commission approved a building permit for construction of Five Fremont Center. In approving the building permit, the City Planning Commission was concerned about the significantly increased pedestrian traffic expected to be generated by the project. All aspects of the project, including the site plan showing the location of the perimeter walls of the office tower in relation to the boundary lines of the project site, were reviewed by the staff of the City Planning Department in connection with the preparation of the 220-page final environmental impact report ("final EIR"). During this review process the City conceived the idea of requiring Five Fremont to construct a pedestrianway to accomodate the increased foot traffic between the Transbay Transit Terminal and the areas north of Mission Street. The pedestrianway was contemplated as a City project for the benefit of the public.

In the northerly portion of the project area, the pedestrianway was to run south from the north property line through the lowrise structure to the plaza between that structure and the tower area. In the southerly portion of the project area, which is the portion at issue in this case, the pedestrianway was intended to connect the plaza with a proposed pedestrian bridge from the Transbay Terminal over Mission Street. During the study of the project, Five Fremont rejected the possibility of running the proposed southern extension of the pedestrianway through the tower building itself.

In the course of the City Planning Commission's review of the draft environmental impact report, the City Planning Commission held public hearings. A project architect noted that it had originally been hoped that Lot 6A could be used for the southern extension of the pedestrianway, but that TPC had objected. He then pointed out that, without the use of Lot 6A, there would be a "four-foot wide walkway alongside of the new tower. ..." The contingent nature of the proposed pedestrian bridge and the southern portion of the pedestrianway was also discussed. Commissioner Karasick expressly noted that, "if a bridge is not constructed, then that pedestrian way will be void in effect." TPC was represented by counsel at the hearings and made presentations of its views to the Commissioners. The final EIR, written by the Department of Planning, recognized that Five Fremont owned an undivided two-third interest in Lot 6A and that TPC owned an undivided one-third interest. It also recognized that no use could be made of Lot 6A without consideration of TPC's property interests. Although the EIR listed three possible ways that a pedestrianway requirement could be met, it noted that Five Fremont had rejected the alternative of making part of the interior tower space a pedestrianway. 3

Resolution 8877

On March 12, 1981, the Planning Commission approved construction of the project in Resolution 8877. That resolution adopted the City Planning Department's suggestion concerning the wording of the pedestrianway obligation. The resolution noted that the design plans included "provision for the eventual bridging of Mission Street for direct pedestrian access to Transbay Terminal, [and] accommodations for a possible thru block pedestrian link to Market Street." It upheld the building application subject to Condition 5.

The words "at least 12 feet in width" were adopted without comment at the end of the hearing at the suggestion of the project staff. Resolution 8877 specifically approved plans showing the physical dimensions and location of the high-rise tower.

Respondents contend that the draftsmen at the Planning Department and members of the Commission "knew and understood the physical fact that the tower wall was 4 1/2 feet from Lot 6A and that Five Fremont's obligation to 'develop' a pedestrianway there did not mean that Five Fremont was required to provide all real property interests which might be required for the entire pedestrianway, but to make available for the pedestrianway such rights as it had to the west of the tower." In the trial court, respondents submitted numerous declarations of key members of the Planning Department staff, the Planning Commission and the Board of Permit Appeals affirming this knowledge and understanding. 4 Appellant, having stipulated below that the court might consider these and other declarations, now contends that the court erred in so doing and that it only stipulated that it had no objection to the declarations if the court determined it properly could consider them.

Appeal to Board of Permit Appeals

Following approval by the City Planning Commission, the Department of Public Works issued the site permit and related demolition permits for the project. TPC appealed the issuance of these permits to the Board of Permit Appeals, and a hearing was held at which the Board had before it the City Planning Commission record, including the final EIR. Five Fremont, with concurrence of the city attorney, agreed at the hearing to addition of a concluding sentence to Condition 5 of the transportation section that clarified that Lot 6A could not be used by Five Fremont for the pedestrianway or otherwise without TPC's consent except as permitted under Five Fremont's existing easement rights.

During the hearing, the question of how the potential pedestrian bridge could have access to the north, despite the fact that Lot 6A was not part of the project, was discussed. Counsel for TPC objected that the question of pedestrian access "is still not resolved." He noted that there were two alternatives to use of Lot 6A: use of Lot 7 adjacent to the tower or use of a portion of the interior of the tower. He then concluded: "I believe that both of these alternatives have been rejected by the project sponsor. At this point there really is no resolution and it really concerns Terminal Plaza, that there is no resolution of this problem." (Emphasis added.) The deputy city attorney stated that Five Fremont had committed itself to make available to the City all its rights in Lot 6A and that the City could acquire...

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