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In Neighbors for Fair Planning v. City and County of San Francisco, 2013 Cal. App. LEXIS 506, the Court of Appeal, First District, affirmed a trial court’s decision denying a petition for writ of mandate to set aside defendant’s EIR certification and approval of a project involving a community center and affordable housing.

Real party in interest, a local nonprofit organization, owned and operated an existing community center. The project involved replacing the existing one-story community center with a new, larger community services facility, and building a new five-story building containing 48 units of affordable housing. Plaintiff, an association of local residents, opposed the project based on its proposed height and density, and potential traffic impacts.

After defendant City and County of San Francisco (City) certified the EIR and approved the project, plaintiff filed its petition for writ of mandate, alleging the City had approved the project long before EIR certification in violation of CEQA Guidelines sections 15004 and 15352. Relying heavily on Save Tara v. City of West Hollywood, 45 Cal. 4th 116 (2008), plaintiff alleged City had improperly committed itself to the project as proposed through multiple actions prior to EIR certification. First, the City had issued a loan to nonprofit real party in interest for predevelopment activities. Second, a City supervisor had introduced an ordinance to allow for greater density on the site. Third, City officials made statements in support of the project.

In its opinion, the Court of Appeal distinguished the circumstances of this case from those in Save Tara. The Court first observed the loan issued by the City here only funded predevelopment activities; the loan agreement expressly stated the City’s lack of commitment to the project; and the loan amount was due in full if the project was denied by the City. All of these factors stood in contrast to the loan agreement in Save Tara. Second, the Court noted the introduction of an ordinance by an elected official for the consideration of the decision-making body does not constitute a decision by a public agency; here, the ordinance was only approved by the Board of Supervisors following EIR certification. Lastly, the Court distinguished the public statements made by the City of West Hollywood in Save Tara and those made by the City here. In the former case, the city manager and mayor publicly used language demonstrating a firm commitment to the project as proposed, while here one County Supervisor expressed her general support for the project.

Key Point: The facts in Save Tara were particularly egregious. Neighbors for Fair Planning joins the line of cases distinguishing Save Tara and provides further guidance on the types of actions a lead agency may take in connection with a project prior to completing CEQA review.

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