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First District Court of Appeal Strikes Down Challenge to Categorically Exempt Project, Rejects Argument that Conditions of Approval Signal Significant Impacts


The iconic Coit Tower sits atop Telegraph Hill in San Francisco, viewed from the southwest (Ed Villanueva)

In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal affirmed the trial court and upheld the City and County of San Francisco’s (“City”) approval of the construction of a three-story-over-basement, three-unit condominium and the restoration of an existing cottage on a 7,517-square-foot lot on the south side of Telegraph Hill (“Project”).

In September 2014, the San Francisco Planning Department (“Department”) determined that the Project was categorically exempt from CEQA. Subsequently, the Planning Commission approved a conditional use authorization for the Project. The plaintiffs appealed the Department’s decision exempting the Project from environmental review and the Planning Commission’s conditional use authorization to the San Francisco Board of Supervisors (“Board”). Both the Planning Commission and the Board imposed conditions related to pedestrian safety and possible disruption of traffic on Telegraph Hill during construction. After the Board affirmed the Planning Commission’s decisions, the plaintiffs sued the City. The trial court ruled for the City.

On appeal, calling the plaintiffs’ argument an ipse dixit, the court rejected the plaintiffs’ argument that the fact that conditions of approval were imposed on the Project meant the Project would have a significant impact. The court explained that the conditions were intended to address the ordinarily anticipated inconvenience and danger associated with significant construction activity in a congested urban environment. The court found that the conditions were not adopted out of concern that the Project would have a significant environmental effect, given that the Department approved the categorical exemptions without qualifications.

Second, the court rejected the plaintiffs’ contention that the project description was inadequate. The court found that County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, the only authority on which the plaintiffs relied to support their argument, was inapposite because Inyo considered the adequacy of a project description for an EIR, and not a CEQA exemption. The court held that the project description was adequate because it met the requirements in the City’s Administrative Code, though it did not meet the specifications for a project description in an EIR set forth in the CEQA Guidelines section 15124.

Third, the court rejected the plaintiffs’ argument that the unusual circumstances exception applied in this case because the Project’s location and site constraints were “unequivocally rare.” The court found that substantial evidence in the record supported the City’s determination that the Project presented no unusual circumstances with respect to the nearby intersection, views, and the site topography.

Finally, the court rejected the plaintiffs’ argument that the City impermissibly approved the conditional use authorization because the Project was inconsistent with the general plan. The plaintiffs argued that the Project conflicted with one of the policies in the general plan, which protects access to vistas, because the Project would obscure the views from the stairway leading to Pioneer Park. The court explained that the policy directives contained in the San Francisco general plan are not strictly construed because the agency has discretion to interpret its own plans, citing San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498.

Key Point:

When challenging the approval of categorically exempt projects on the basis of deficient project descriptions, it is imperative to cite to precedent which specifically governs categorical exemptions. Also, it is important to note that conditions of approval on a project from a lead agency do not indicate that the project has a significant impact per se.

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dateFebruary 8th, 2018byby


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