In a lengthy, mostly-unpublished opinion filed on August 14, 2014, the First District Court of Appeal affirmed the superior court’s judgment denying a writ petition challenging the Parkmerced Development Project.  San Francisco Tomorrow, et al. v. City and County of San Francisco, et al. (Parkmerced Investors Properties, LLC, Real Parties in Interest) (1st Dist., Div. 2, 2014) 229 Cal.App.4th 498.  A 50-page portion of the 75-page opinion, which contained the court’s detailed analysis and rejection of appellant San Francisco Tomorrow’s (“SFT”) numerous general plan inconsistency and CEQA claims, was not certified for publication.  The court did certify for publication those portions of its decision:  (1) analyzing and rejecting SFT’s direct challenges to the legal adequacy of City’s general plan; (2) holding the trial court did not err in sustaining a demurrer to SFT’s procedural due process cause of action challenging the project’s development agreement; and (3) holding the trial court did not err in including in the administrative record hearing transcripts of public meetings of the Board’s Land Use and Economic Development Committee (“LUEDC”) at which the project was considered and discussed.

The Parkmerced Development Project calls for long-term redevelopment and major modifications of Parkmerced, a privately-owned 3,221-unit residential rental complex on 152 acres near Lake Merced in southwestern San Francisco.  Originally built in the 1940s to provide affordable middle-income housing, the Parkmerced complex currently includes eleven 13-story towers containing 1,683 rental units and 170 2-story “townhouse” buildings with 1,538 units.  The project would, over a 20-30 year period, demolish and replace the townhouse units and add 5,679 new units, some of which would be below-and-at-market rate rentals, and some of which would be for sale.  In addition to increasing the residential density, the project would provide new commercial and retail services, transit facilities, parks and open space amenities, and various infrastructure improvements, including renewable energy sources such as wind turbines and photovoltaic cells.  Required project approvals included General Plan, Zoning Map, and Planning Code amendments, and a Local Coastal Zone Permit; a negotiated development agreement between the City and real party was also approved, all following certification of a Final EIR.

Key takeaways of the Court of Appeal’s decision include:

  • The standard of judicial review of general plan adequacy and consistency challenges is highly deferential.  Adoption or amendment of a general plan is a legislative act that is presumed valid; explicit findings are unnecessary to support it, and courts will not inquire as to its wisdom or policy merits.  “Judicial review of a legislative act under Code of Civil Procedure section 1085 is limited to determining whether the public agency’s action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair.”  (Quoting Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1195.)
  • “’[O]nly those portions of the general plan which are impacted or influenced by the [challenged] adoption or amendment can properly be challenged in the action which is brought.’”  (Quoting Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 289-290.)
  • Applying these rules, the court rejected SFT’s direct challenges to the Urban Design Element of City’s General Plan, holding that the trial court correctly “concluded that a reasonable person could conclude, as did the City” that various tables and maps in the Housing and Urban Design Elements adequately set forth “standards for population density and building intensity as required by Government Code section 65302, subdivision (a)[.]”  The court observed “that the actual layout of a general plan is generally within the local agency’s discretion.  [citations]”  Further, it rejected SFT’s argument that Government Code § 65302(a) requires the general plan to contain a “prescriptive” rather than “descriptive” population density statement, noting that the statute refers to “a statement of recommended densities, not binding or inflexible limits on density.  [citation]” (emph. in orig.)
  • In upholding the General Plan’s population density and building intensity standards and rejecting SFT’s argument that the plan failed to adequately “correlate” these standards with its circulation element (the Transportation Element), the court observed that “’the internal consistency and correlation requirements do not require a city or county to limit population growth or provide traffic management measures to ensure that its transportation infrastructure can accommodate future population growth.’”  (Quoting Federation of Hillside & Canyon Assns., supra, 126 Cal.App.4th at 1196.)  Accordingly, it refused to “second guess” the City’s “[policy] decision to limit parking and roadway capacity in areas well served by transit.”
  • In a mostly unpublished part of its opinion, the court rejected SFT’s general plan inconsistency challenges, applying a highly deferential “abuse of discretion” standard of review to the City’s determinations that the project was consistent with its General Plan’s “priority policies” (enacted by Initiative Measure M) and other of its policies.  Under the abuse of discretion standard, consistency determinations “are quasi-legislative acts reviewed by ordinary mandamus, and the inquiry is whether the decision is arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.  [Citations.]  Under this standard, [courts] defer to an agency’s factual finding of consistency unless no reasonable person could have reached the same conclusion on the evidence before it.  [Citations.]”  (Quoting Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, 782.)  The court held it was proper to apply this deferential standard even to the City Board of Supervisors’ interpretation of General Plan policies it did not adopt itself, but which were instead enacted by a citizen-sponsored initiative; it reasoned that “the Board’s role in implementing the General Plan, including its discretion to determine whether proposed projects are consistent with the General Plan, is at least as important [as whether the Board drafted them]” and noted such deference is warranted by separation-of-power principles as well as the standard of review under ordinary mandamus.
  • After rejecting all of SFT’s general plan consistency arguments, the court went on in a lengthy unpublished part of its opinion to reject its CEQA challenges based on alleged inadequacies in the FEIR’s project description, impacts analysis (in the areas of seismic safety, tenant displacement, public safety concerns from nearby PG&E gas pipelines, GHGs/climate change), alternatives analysis, and responses to comments, and in the City’s failure to recirculate the DEIR and its CEQA findings.
  • Interestingly, the unpublished discussion of the gas pipeline issues treated them as presenting a CEQA-in-reverse scenario, nothing that “[t]he location and existence of pipelines is a preexisting environmental condition that will not be impacted or altered because of the proposed project.  Appellants do not argue the proposed project will have any adverse effect on the likelihood of a pipeline explosion.  For this reason alone, substantial evidence supports the City’s decision that pipeline explosions did not warrant discussion in the EIR.”  Noting, however, that the issue of CEQA-in-reverse was currently pending before the California Supreme Court, it held in the alternative that the City reasonably determined “that a gas pipeline explosion was extremely unlikely and, hence, not reasonably foreseeable” and that an EIR is not required to engage in speculation to analyze a “worst-case scenario.”
  • In a published part of its opinion, the court rejected SFT’s argument that the trial court erred in dismissing on demurrer its procedural due process cause of action.  That claim was based on the theory that tenants who would be displaced by the project have property rights in connection with their rent-controlled units that were violated when the Board changed provisions of the development agreement and Project Approvals without providing them proper notice and an opportunity to be heard.  The court held this claim was legally meritless — under the well-settled rule that only adjudicative governmental decision evoke procedural due process principles — because the development agreement and approvals at issue were legislative acts.  The court stated that “insofar as approval of the development agreement requires consideration of broad-based policy issues and the exercise of legislative discretion, it is conduct that does not fit well within the framework of adjudicatory decisions.”  (Citing Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435, 443-444.)
  • In the concluding published parts of its opinion, the court held the trial court did not err in including in the administrative record transcripts of hearings before an advisory body, the Board’s Land Use and Economic Development Committee (LUEDC); in doing so, it rejected SFT’s argument that such documents “were not before the Board when it certified the EIR and approved the project.”  After reciting the rules governing review of trial court decisions to include or exclude documents from the administrative record, the court noted that the CEQA statute governing the administrative record’s contents — Public Resources Code § 21167.6 — is mandatory, broad, and non-exclusive in nature; accordingly, the statute’s reference to “[a]ny other written materials relevant to the respondent public agency’s compliance with [CEQA] or to its decision on the merits of the project” (Pub. Resources Code, § 21167.6(e)(10)) encompassed “[t]he audio recordings of the LUEDC hearing[s] (and their later transcriptions),” which were readily available to the Board members.
  • In a footnote, the court held “[t]he [trial] court also properly required transcripts to be prepared for each hearing pursuant to California Rules of Court, rule 2.1040(a), requiring audio recording introduced into evidence be accompanied by a typewritten transcript.”  (Citing Darley v. Ward (1980) 28 Cal.3d 257, 263.)
  • Finally, even if the transcripts were not properly part of the administrative record, the court held SFT failed to carry its burden of showing their inclusion was prejudicial (and therefore reversible) error.  “[Because] any reduction in [the record’s] contents is presumptively prejudicial to project proponents … who will be saddled with the task of pointing to things in the record to refute asserted inadequacies in the EIR[,] … the burden of showing prejudice from any overinclusion of materials into the administrative record must be put on the project opponents, who have the most to gain from any underinclusion.  [Citations.]”  (Citing County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 13.)

In sum, the First District’s decision well illustrates the deferential standards of review applied to a local agency’s interpretation and application of the policies of its general plan and its determinations that a project is consistent with them.  It also illustrates the substantial deference given an EIR’s conclusions and an agency’s CEQA findings.  In my view, unpublished portions of the opinion — for example, those addressing (1) deference granted to an agency’s interpretation of general plan policies enacted by citizen initiative, and (2) CEQA analysis of underground gas pipeline hazards–were probably deserving of publication, although, as to the latter issue, the court may have been reluctant due to the pendency of the CEQA-in-reverse issue in the California Supreme Court.

Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit