Tomorrow v. City of S.F.
| Decision Date | 04 September 2014 |
| Docket Number | A137753 |
| Citation | 229 Cal.App.4th 498,176 Cal.Rptr.3d 430 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SAN FRANCISCO TOMORROW et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; Parkmerced Investors Properties, LLC., Real Party in Interest and Respondent. |
OPINION TEXT STARTS HERE
See 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 1012.
Trial Court: San Francisco Superior Court, Trial Judge: Hon. Teri L. Jackson. (City and County of San Francisco Super. Ct. No. CPF11511439)
Law Offices of Stuart M. Flashman, Stuart M. Flashman, Oakland, for Plaintiffs and Appellants.
Chatten–Brown & Carstens, Santa Monica, Jan Chatten–Brown, Josh Chatten–Brown, for Amicus Curiae on behalf of Plaintiffs and Appellants.
San Francisco City Attorney, City Attorney Dennis J. Herrera, Kate H. Stacy, Audrey Williams Pearson, Brian F. Crossman, for Defendants and Respondents.
Gibson Dunn & Crutcher, Daniel Kolkey, San Francisco, Jeffrey D. Dintzer, Matthew C. Wickersham, Los Angeles, for Real Party in Interest and Respondent.
Appellants San Francisco Tomorrow and Parkmerced Action Coalition (PMAC) appeal the San Francisco Superior Court's denial of appellants' petition for writ of mandate seeking to overturn the decision by respondents City and County of San Francisco (City) and its Board of Supervisors (Board) approving the Parkmerced Development Project (the project). The project involves the long-term redevelopment of the privately owned, 152–acre Parkmerced Property by real party in interest Parkmerced Investors Properties, LLC.
Appellants challenge the court's denial of their writ petition contending: (1) The Land Use Element (sometimes called the Urban Design Element) of the San Francisco General Plan (General Plan) is inadequate for failing to include standards for population density and building intensity. (Gov.Code, § 6302, subds. (a), (b).) (2) The project and the various project approvals are inconsistent with the “priority policies” and other policies of the General Plan. (3) The environmental impact report (EIR) and the findings underlying the City's approval of the project were inadequate under standards established by the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et seq.). (4) The court erred in sustaining a demurrer to appellant PMAC's cause of action for violation of its due process rights. (5) The court erred in including in the administrative record, transcripts of proceedings before an advisory body that were not before the Board when it certified the EIR and approved the project. We shall affirm the judgment.
The Parkmerced Project involves major modifications to Parkmerced, a 3,221 unit residential rental complex on 152 acres. The site is located near Lake Merced, in the southwest corner of San Francisco. It is surrounded by the Stonestown Galleria shopping mall, San Francisco State University, two golf courses, and residential neighborhoods.
The original Parkmerced complex was built in the 1940s by MetLife as one of eight large-scale developments created around the country to provide affordable middle-income housing. The architect for Parkmerced was the New York City firm Leonard Schultze & Associates and its design involved noted San Francisco architect Frederick H. Meyer. The landscape plan was designed by famed San Francisco architect Thomas Church, designer of the master plans for University of California Berkeley and Santa Cruz Campuses, among other notable landscapes. Originally consisting of 192 acres and 3,483 residential units, significant portions of the site were sold-off to San Francisco State University and to various private owners. The remaining complex, which is the subject of the project and resulting CEQA review, consists of 152 acres and 3,221 residential units. Parkmerced Investors has owned the complex since October 2005. The complex's housing is currently divided between eleven 13–story towers containing 1,683 rental units and 170 2–story “townhouse” buildings containing 1,538 units. Over the course of 20 to 30 years, the project would demolish all townhouse units, build an equal number of replacement units and add 5,679 units for a total of 8,900 units. Of the new non-replacement units, some would be rental units, while others would be sold. Some of the new units would be below-market-rate units, as required by City ordinance. The remainder would be market-rate units.
As described, “The proposed Project is a long-term (approximately 2030 years) mixed-use development program to comprehensively re-plan and re-develop the approximately 116–acre Site (152–acres including streets). The Project proposes to increase the residential density, provide new commercial and retail services, provide new transit facilities, new parks and open space amenities and improve existing utilities and stormwater management systems within the development Site. Of the existing 3,221 residential units on the Site, approximately 1,683 units located within the 11 existing towers would remain and approximately 1,538 existing apartments would be demolished and replaced in phases over the approximately 20 to 30–year development period. As provided in the proposed [d]evelopment [a]greement, all 1,538 new replacement units would be subject to the San Francisco Rent Stabilization Ordinance and existing tenants in the to-be-replaced existing apartment units would have rights to relocate into new replacement units of equivalent size with the same number of bedrooms and bathrooms at their existing rents. An additional 5,679 net new units would also be added to the Site for a project total of 8,900 units. New buildings on the Site would range in height from 35 feet to 145 feet, and would not be taller than the existing towers, which will remain.
“Neighborhood-serving retail and office space would also be constructed as part of the proposed Project and concentrated on Crespi Drive, near the
northeast part of the Site and the light-rail line. The proposed new neighborhood core would be located within walking distance of all the residences within Parkmerced. In addition, small neighborhood-serving retail establishments would be constructed outside of the neighborhood core, in proximity to residential units throughout the Site. A new preschool/elementary school and daycare facility site, fitness center, and new open space uses including athletic fields, walking and biking paths, a new farm, which the Sponsor proposes will be organic, and community gardens would also be provided on the Project Site. Infrastructure improvements would include the installation of bioswale system to retain and treat stormwater on-site and renewable energy sources, such as wind turbines and photovoltaic cells, which are detailed in the Sustainability Plan. Transportation improvements would include the realignment of the Muni M–Oceanview light-rail line through the Project Site, redesign and redevelopment of all public streets within the Project Site to meet the City's Better Streets design standards, provision of car-share and bike-sharing stations throughout the Project Site, pedestrian safety and traffic improvements to intersections adjacent to the Project Site, construction of new bicycle paths, provision of a free shuttle service to Daly City BART and other items detailed in the Transportation Plan.”
In addition to an EIR, prepared pursuant to CEQA, project approval also required amendments to the City's General Plan, Zoning Map, and Planning Code (to add the Parkmerced Special Use District [sometimes referred to as the SUD] ), as well as approval of a Local Coastal Zone Permit and the negotiated development agreement between the City and real party (collectively Project Approvals).
Real party applied to the City for environmental review of the project in January 2008. In May 2009, the City issued a Notice of Preparation for the project EIR. The Draft EIR (DEIR) was released for public review on May 12, 2010. A 60–day public comment period followed. The City's Historical Preservation Commission held a hearing to receive input on the DEIR. The Comments and Responses document was released on October 28, 2010, and informational meetings were held by the Planning Commission. On February 10, 2011, the Planning Commission held a formal public hearing and voted to certify the project's Final EIR (FEIR) and to recommend that the Board of Supervisors approve the project and related Project Approvals.
On March 1 and 2, 2011, appellants and others filed timely appeals with the Board of Supervisors contesting certification of the FEIR. The Board heard the appeal on March 29, 2011, and took public comment. After close of the public comment, the Board voted to continue the item. Meanwhile, the Board's
Land Use and Economic Development Committee (LUEDC) took additional public comment on the remaining Project Approvals. The LUEDC held four hearings—on March 28, April 18, May 16, and the morning of May 24, 2011. At the May 16 and May 24 meetings, the LUEDC discussed and approved amendments to the approvals. At the end of the May 24 hearing, the LUEDC forwarded the amended documents to the Board without recommendation.
On the afternoon of May 24, 2011, the Board of Supervisors held a hearing on the continued EIR appeal and the Project Approvals. At the end of that meeting, the Board denied the appeal, upheld certification of the EIR and approved the project. On June 6, 2011, the Board of Supervisors finalized the Project Approvals. The mayor signed the approvals on June 10, 2011, and a Notice of Determination was filed that day.
Appellants filed their “Verified...
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