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In a partially published opinion in San Francisco Tomorrow v. City and County of San Francisco, 2014 Cal. App. LEXIS 735, the Court of Appeal for the First Appellate District upheld denial of a petition for a writ of mandate seeking to overturn approval of a 152-acre redevelopment project near Lake Merced in southwest San Francisco.

The Parkmerced Project involves major modifications to an existing 3,221-unit residential and rental complex containing a mix of 13-story towers and 2-story townhouses. The long-term, mixed-use redevelopment project would demolish the townhouses and add 5,679 residential units over a period of 20 to 30 years. San Francisco Tomorrow and Parkmerced Action Coalition (Petitioners) opposed the project and sought to reverse the trial court’s denial of their petition.

Petitioners first challenged the San Francisco General Plan itself, arguing it did not include adequate standards for population density and building intensity as required by Government Code section 65302. The court emphasized that adoption of a general plan is a legislative act entitled to deference. The court further noted that under section 65302, the City was only required to include recommended densities, rather than inflexible limits as Petitioners contended. The General Plan’s Housing Element included multiple maps, tables, and an index that together provided the required population density information. Similarly, the Urban Design Element incorporated a map with maximum dimensions and heights of buildings in different parts of the city, including the Parkmerced area. The court concluded that a reasonable person could use these elements to determine the population density and building intensity impacts of the project.     

Second, Petitioners claimed that their due process rights as Parkmerced tenants were violated because the project was approved without adequate notice. However, only adjudicative decisions are subject to due process considerations, and the court found the project involved only legislative decisions not subject to due process. Petitioners argued that the development agreement approved as part of the project was an entitlement and thus not a law of general applicability, despite its characterization in statute as a legislative action. The court rejected this “novel” argument. The approval was indisputably a legislative act and no due process rights were attached to the action.

Finally, the court rejected Petitioners’ claim that the trial court erred by including transcripts of hearings in the administrative record that were not considered by the Board of Supervisors prior to certification of the EIR. The transcripts were from advisory committee hearings held prior to the Board’s decision and the transcripts were readily available to decision-makers. Accordingly, the court held the transcripts were properly part of the record.   

The court declined to publish portions of the opinion challenging compliance with the California Environmental Quality Act and consistency with “priority policies” in the General Plan.


The court distinguished a decision from the Fifth Appellate District, which considered whether an agency was required to include transcripts of hearings in the record.  In Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, the court found that the agency was not compelled to produce transcripts for the record where the agency had not prepared them for several hearings and therefore could not produce such documents. Here, the transcripts were readily available and thus properly included in the record.

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