Friends of the Landmark
Filbert Cottages v. City and County of San Francisco
Filed 1/27/14 Friends of the Landmark Filbert Cottages v.
City and County of San Francisco CA1/2
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
FRIENDS OF THE LANDMARK FILBERT COTTAGES et al.,
Plaintiffs and
Appellants,
v.
CITY AND COUNTY OF SAN FRANCISCO et al.,
Defendants and
Respondents
___________________________________
DAVID LOW et al.,
Real Parties in
Interest and Respondents.
A134325
(City & County of
Super. Ct. No.
CPF-11-511263)
Nestled at the foot of San Francisco’s
Russian Hill are a group of residential structures known as the Filbert Street
Cottages. The new owners of the cottages
proposed a substantial “rehabilitation and expansion.†The City and County of San Francisco
determined that the proposed project was exempt from
Environmental Quality Act
name="_ftnref1" title="">[1]
and issued necessary permits and approvals for the project to proceed. Neighbors opposed to the project tried to
prosecute administrative appeals, but were repeatedly told that every attempt to
appeal the exemption decision was untimely, and the attempt at appealing the issuance
of the permits was prohibited by the San Francisco Charter. The neighbors’ petition for a writ of mandate
was denied on several grounds, one of which was that the petition was untimely
according to the applicable statute of
limitations specified by CEQA. We
agree and affirm.
The property at issue measures 62.5
feet by 137.5 feet. On this lot are four
two‑story cottages, one of which has an attached “studio†that is
sometimes treated as a separate structure.
Collectively, they have ten dwelling units. The cottages were built in 1907, the studio
added in 1943. All five structures were placed
on the San Francisco register of city landmarks in 2001.
When bought by David Low and
Dominique Lahaussois in 2007, the property had clearly seen better days. When Low and Lahaussois first applied for
underground garage in 2008, none of the units was occupied, and the general
condition of the property was deteriorating. In October 2008, Low and Lahaussois requested
a permit to build an underground garage.
By September of the following year,
their plans had expanded considerably.
Their application for a conditional use authorization advised the City
that they proposed “to renovate and remodel the Filbert Street Cottages
. . . , resulting in the creation of four dwelling units. . . . A new three-story rectangular-plan addition
would be constructed at the rear of the cottages, adding living area to each
cottage and would abut the retaining wall . . . . An approximately 5,455 square foot subterranean
parking garage with 8 parking spaces would be constructed underneath the
addition . . . .
Vehicular access to the garage would be provided by a car lift.â€
At a public hearing held by the
Planning Commission on April 8, 2010, counsel for neighbors
Julie De Martini and Gerald De Martini voiced the only opposition to the
proposed project. At the conclusion of
the hearing, the Planning Commission granted the Low and Lahaussois application.
Several aspects of that decision are
pertinent. First, the decision, which is
in the form of a 14-page “motion,†incorporates 11 pages of “findings,†two of
which were that the “proposed project meets the criteria of the Class 32
categorical Exemption,†and that “the Commission finds that the Categorical
Exemption is adequate for its use as the decision-making body for the approval
of the project, and that no further environmental review is required for the
project.†Second, the motion recites
that “Any aggrieved person may appeal this Conditional Use Authorization to the
Board of Supervisors within thirty (30) days after the date of this Motion No.
18072. The effective date of this Motion
shall be the date of this Motion if
not appealed (After the 30-day period has expired) OR the date of the decision
of the Board of Supervisors if appealed to the Board of Supervisors.â€
of Approval†appended as Exhibit A, and the wording of those conditions clearly
anticipated the issuance of a “Building Permit for the Project.â€
On May 10, 2010, the Planning Department posted
a Notice of Exemption for the proposed project, stating: “A determination has been made that the
project in its approved form will not have a significant effect on the
its “Certificate of Determination [¶] Exemption
from Environmental Review†as follows:
“CEQA State Guidelines Section 15332, or Class 32, provides an
exemption of an in-fill development which meets [various] conditions.
. . . [T]he proposed project
is an in-fill development that would have no adverse environmental effects and which
meet all the various conditions prescribed by Class 32. Accordingly, the proposed project is
appropriately exempt from CEQA under Section 15332. . . .
[¶] . . . from environmental review.â€
Thirty-eight days later, on June 17, 2010, counsel for the De Martinis sent a letter to the Board of
Supervisors purporting to “hereby appeal the adoption of a categorical
exemption for the proposed significant alteration of the landmark cottages at 1338 Filbert Street.†“Pursuant to the Interim
Procedures of Appeals for Negative Declaration and Categorical Exemptions No.
5,†the clerk of the Board of Supervisors solicited the City Attorney’s opinion
as to whether “the appeal has been filed in a timely manner.†The same day that he received this request, June 18, 2010, the City Attorney responded that “it is our view that the appeal
is timely. Therefore, the appeal should
be calendared before the Board of Supervisors.â€
But on July 6 the City Attorney
reversed course, advising the clerk: “Consistent with our public advice to you in a
memorandum dated February 22, 2008,
. . . it is our opinion that the appeal is untimely. As stated in the February 22, 2008
memorandum, ‘for a project requiring a conditional use permit, a CEQA appeal
will be ripe and timely if filed after the Planning Commission approves the
conditional use permit but before the 30-day period for appeal of the
conditional use permit to the Board of Supervisors expires.’ As the conditional use permit was final prior
to the filing of the appeal, we conclude that the appeal is untimely.â€
The clerk advised the De Martinis’
counsel of this change on July 7. Eleven
days later, counsel sent a letter to the Board of Supervisors’ clerk “to request
a re-reversal of the timeliness decision . . . . If not, I request that the matter be placed
before the Board of Supervisors for its assertion of jurisdiction.†The clerk advised counsel that the City
Attorney reiterated its view that “the appeal was not timely filed.â€
In September 2010, at the request of
the Department of Building Inspection, Low and Lahaussois filed two new,
additional, permit applications to reflect certain “small modifications†to the
underground garage plans. The permit
applications were approved by the Department of Building Inspection on January 31, 2011.
The following month the De Martinis
tried to appeal, ultimately to be advised
by the Board of Appeals that the attempt was “void,†on the ground that
Ҥ 4.106(a) of the San Francisco City Charter prohibits the Board of
Appeals from accepting appeals of building or demolition permits concerning
projects that have received permits or licenses pursuant to a Conditional Use
(CU) authorization by the Planning Commission.
[¶] . . . [T]his office has verified that the
. . . project has indeed received a CU authorization (PC Motion
No. 18072).â€
title="">[6] The Board of Appeals reached this conclusion
only after it had conducted two-days of hearings, on March 9 and March 16,
at which the De Martinis fully developed their objections.
Meanwhile, on February 14, 2011, counsel for
the De Martinis wrote to the clerk for the Board of Supervisors that she was
“appealing the issuance of a Class 32 categorical exemption for three project
building permits, attached. The
exemptions were approved on January 10, 2011, as shown on
the back of each permit. The permits
themselves were each approved on January 31, 2011.†Again, on advice of the City Attorney, the
clerk refused to process the appeal.
At this point the opponents of the
project resorted to the courts. Together
with the Friends of the Landmark Filbert Street Cottages—described as “an
unincorporated association of San Francisco residents formed in April 2011†to
which they belonged—on April 20, 2011, the De Martinis filed a petition for a
writ of mandate, against the City, the Board of Supervisors, and various
municipal entities, with Low and Lahaussois named as real parties in interest.
The trial court denied the petition, and
this timely appeal followed.
No CEQA action is necessary if a
proposed private development does not qualify as a “project,†defined as “an
activity which may cause either a direct physical change in the environment, or
a reasonably foreseeable indirect physical change in the environment.†(§ 21065.) If the proposed development meets this
definition, the public agency responsible for approving the proposed project
must then determine whether the proposed project then qualifies under one of
the 15 statutory exemptions (§ 21080, subds. (b)(1)-(b)(15)) or one
of the 33 “class†or “categorical†exemptions set forth in the Guidelines.
(§ 21084; Guidelines §§ 15061,
15300-15333, 15354 [“ ‘Categorical exemption’ means an exemption from CEQA
for a class of projectsâ€].) If the
proposed project is either statutorily or categorically exempt, it “is not
subject to CEQA, and no further environmental review is required.†(Tomlinson
v. County of Alameda (2012) 54 Cal.4th 281, 286.) If the public agency determines that a proposed
project is exempt, “[t]he agency need only prepare and file a notice of
exemption (see CEQA Guidelines §§ 15061, subd. (d), 15062, subd. (a)),
citing the relevant statute or section of the CEQA Guidelines and including a
brief statement of reasons to support the finding of exemption (
Ranch Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th 372, 380.)
But what happens if someone believes
a proposed development has been erroneously granted a categorical exemption? Answer:
It may be challenged as contrary to the goals of CEQA. “A categorical exemption shall not be used
for an activity where there is a reasonable possibility that the activity will
have a significant effect on the environment due to unusual circumstances.†(Guidelines § 15300.2, subd. (c).) In other words, a categorical exemption
should not be granted where there is any fair argument or reasonable
possibility that the proposed development may have a significant effect on the
environment. (Banker’s Hill, Hillcrest, Park West Community Preservation Group v.
City of San Diego
(2006) 139 Cal.App.4th 249, 266-267.) We
and other courts have held that if the public agency does grant a categorical
exemption, it is impliedly concluding that this exception does not apply. (Association
for Protection Etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 731-732
and decisions cited.) That determination
would be upheld on review if the party challenging the exemption cannot
“produce substantial evidence that the project has the potential for
substantial adverse environmental impact†(id.
at p. 728), or “substantial evidence in the record on which a fair argument can
be made that the project may have significant environmental effects.†Voices
for Rural Living v. El Dorado
However, judicial review is not
available unless and until the challenger has exhausted whatever administrative
remedies are available. (
Marin (2012) 204 Cal.App.4th 573, 585 [“Where an administrative appeal lies
under CEQA, a party . . . must
pursue that appeal . . . or is barred from doing so in court.â€].) It is at this point that the issue before us
begins to come into focus.
CEQA specifies that “If
a nonelected decisionmaking body of a local . . . agency
. . . determines that a project is not subject to this division, that
. . . determination may be appealed to the agency’s elected decisionmaking
body, if any.†(§ 21151, subd. (c);
Guidelines § 15061, subd. (e) [same].)
Notwithstanding use of the word “may,†there is no dispute that an
appeal procedure is mandatory. (See
But it is the nuts and bolts for
prosecuting such an appeal that draws plaintiffs’ ire. They insist that, 11 years after the Legislature
imposed the appeal requirement of section 21151, “San Francisco has still not
adopted procedures for mandatory administrative appeals of exemptions to the
elected Board of Supervisors,†and that “in the absence of adopted regulations
for appeals . . . , the City Attorney is without authority to find
appeals untimely, as here, unless the
delay is found to be unreasonable by the Board of Supervisors based on
substantial evidence. State law provides
for CEQA appeals to elected decision makers without deadline. (Pub. Resources Code, § 21151.) Such appeals should be allowed unless the
statute of limitations provided for CEQA actions under the Public Resources
Code has expired.â€
This the City denies, asserting in
its brief that “The Clerk of the Board of Supervisors has published ‘Interim
Procedures for Filing Appeals of California Environmental Quality Act
Environmental Exemptions and Negative Declarations’ (‘Interim Procedures’)
explaining the process.†A visit to the
City’s website will verify that the described document is available as a pdf
that includes: (1) the two pages of
‘Interim Procedures’; (2) a one-page summary of the $534 fee for commencing an
appeal and how it may be waived for refunded; (3) the “Application Packet for
Board of Supervisors Appeal Fee Waiver,†and; (4) the February 22, 2008 memo
from the City Attorney to the “Clerk, Board of Supervisors†entitled
“Amendments to CEQA Guidelines Affecting Board of Supervisors CEQA Appeal
Procedures for Negative Declarations and Exemption Determinations/Determining
Whether Appeals are Ripe for Review and Timely Filed.†(This memo is the basis for the City
Attorney’s opinions to the Clerk that plaintiffs’ attempted appeals were
untimely.) (http://www.sfbos.org/ Modules/ShowDocument.aspx?documentid=39207,
accessed on January
27, 2014.)
This certainly appears to qualify—in plaintiffs’ terminology—as “adopted
procedures for mandatory administrative appeals of exemptions to the elected
Board of Supervisors,†thus satisfying the City’s duty to establish procedures
for its responsibilities in the administration of CEQA. (Guidelines § 15022.)
The usual question would then be, whether
having this administrative remedy, plaintiffs failed to exhaust it.
However, this is not, as argued by
plaintiffs, the usual case.
The Planning Commission’s “motion†of
April 8, 2010 clearly advised plaintiffs that they could “appeal this Conditional
Use Authorization to the Board of Supervisors within thirty (30) days after the
date of this Motion.†Thus, plaintiffs
would have 30 days, commencing April 9 and ending May 9, to file their
posted the notice of exemption for the proposed project. The only purpose of that posting was “to
trigger the running of the limitations period,†namely, the 35-day period
specified in section 21167, subdivision (d) for commencing legal challenges
based on this type of alleged CEQA violation. (Apartment
Assn. of Greater Los Angeles
But it was not until June 17, 38 days later, that plaintiffs
advised the Clerk that they wanted to appeal.
Thus, whatever the utility or efficiency of the City’s appeal procedure,
plaintiffs failed to invoke it with a timely appeal. Yet there is a more fundamental problem
because, almost at the same time, a far more important state deadline was
expiring.
“CEQA provides unusually short
statutes of limitations on filing court challenges to the approval of projects
. . . .†(Guidelines
§ 15112, subd. (a).) “CEQA’s
purpose to ensure extremely prompt resolution of lawsuits claiming
noncompliance with the Act is evidenced throughout the statute’s procedural
scheme. Such suits have calendar
preference; more populous counties must designate one or more judges to develop
CEQA expertise so as to permit prompt disposition of CEQA claims; and expedited
briefing and hearing schedules are required.
(§§ 21167.1, 21167.4.)
[¶] Courts have often noted the Legislature’s clear determination
that ‘ “the public interest is not served unless CEQA challenges are
promptly filed and diligently prosecuted.†’ [Citations.] . . . ‘The Legislature has obviously structured the
legal process for a CEQA challenge to be speedy . . . .’ [Citation.]â€
(Stockton Citizens for Sensible Planning v. City of
The statute of
limitation for a challenging a notice of exemption is one of the shortest, a
mere 35 days after the notice is filed.
(§ 21167, subd. (d); Guidelines § 15112, subd. (c)(2).) “The express statutory language of section
21167, subdivision (d) . . . strongly confirms that litigation challenging
the validity of an agency’s
determination to
allow a project to proceed under a CEQA exemption must be timely, and
that the shortest applicable period of timeliness is measured from the date on
which an NOE [notice of exemption] setting forth that determination is filed. Section 21167(d) provides, in pertinent part,
that ‘[a]n action or proceeding alleging that a public agency has improperly
determined that a project is not subject to this division . . . shall
be commenced within 35 days from the date of the filing by the public
agency . . . of the notice authorized by . . .
subdivision (b) of [s]ection 21152.’ (Italics added.) Thus, under the explicit statutory terms,
claims of impropriety in the agency’s exemption determination may only
be addressed in lawsuits commenced within 35 days after the agency properly
files a notification of that determination, i.e., an NOE.†(Stockton Citizens, supra,
48 Cal.4th 481, 502.) The timeliness of
a lawsuit is an entirely separate issue from the merits, and if the litigation
is untimely, the merits are beyond examination.
(Id., at pp. 499, 501 &
fn. 10, 504, 510.) “[F]laws in the
decision-making process underlying a facially valid and properly filed NOE do
not prevent the NOE from triggering the 35-day period to file a lawsuit
challenging the agency’s determination that it has approved a CEQA-exempt
project.†(Id. at p. 489; see also p. 501.)
Plaintiffs do not argue
that the notice of exemption filed by the Planning Commission on May 10, 2010, is other than facially valid and properly filed.
name="_ftnref12" title="">[12] Apart from attacking the perceived defects in
the City’s administrative appeals process, plaintiffs do not argue that their
initial attempt to appeal the exemption decision was timely according to the
30-day period specified in the notice of exemption. Plaintiffs also concede that they missed the
35-day CEQA deadline, which lapsed long before they filed their verified
complaint on April
20, 2011. Apart from this single reference to the CEQA
statute establishing that iron deadline, the entirety of plaintiffs’ brief is
devoted to the perceived defects in the administrative appeals procedures, both
to the Board of Supervisors and the Board of Appeals. Plaintiffs proceed on the implicit assumption
that those defects would in some fashion toll the running of the 35-day
period. But Stockton Citizens demonstrates that this assumption cannot be
indulged.
Plaintiffs’ only mention of their second
attempt to appeal to the Board of Supervisors in February 2011—the one from the
“exemption . . . approved on January 31, 2011, as shown on the backâ€
of each of the attached permits—occurs in the context of plaintiffs’ arguing
that their administrative appeal was
timely. If plaintiffs see this project
as necessitating two notices of exemption, or if they conceive of the permits
as being tantamount to a second notice, or a reconsideration of the exemption, they
identify no authority for any of these approaches.
As mentioned, plaintiffs’ second attempt to
get an appeal before the Board of Supervisors concerned the issuance of the
permits by the Department of Building Inspection in January 2011. The trial court determined that issuing the
permits was a ministerial decision, and thus not a separate basis for demanding
the full CEQA analysis. (See
§ 21080, subd. (b)(1); Guidelines § 15268, subd. (a) [“Ministerial
projects are exempt from the requirements of CEQA.â€], 15268, subd. (b)(1)
[building permits presumed to be discretionary], 15369 [“A building permit is
ministerial if the ordinance requiring the permit limits the public official to
determining whether the zoning allows the structure to be built in the
requested location, the structure would meet the strength requirements in the
Uniform Building Code, and the applicant has paid his fee.â€].) That determination necessarily followed from
issuance of the notice of determination on May 10, 2010,
because it constituted the City’s formal approval of the proposed project. (See Guidelines §§ 15062, subd. (a)
[notice of exemption “shall be filed, if at all, after approval of the
projectâ€], 15352, subd. (a) [“ ‘Approval’ means the decision by a public
agency which commits the agency to a definite course of action in regard to a
projectâ€].)
“Whether an agency has discretionary or
ministerial controls over a project depends on the authority by the law
providing the controls over the activity.â€
(Guidelines § 15002, subd. (i)(2).)
“The determination of what is ‘ministerial’ can most appropriately be
made by the particular public agency involved based upon its analysis of its
own laws, and each agency should make such determination either as a part of
its implementing regulations or on a case-by-case basis.†(Guidelines § 15268, subd. (a).) The same is largely true for determining the
date of a project’s official “approval.â€
Guidelines § 15352, subd. (a).)
Although plaintiffs make a brief attempt to
demonstrate that issuance of the permits was not a ministerial act, they do so
with only the conclusory statement that the City Attorney’s February 2008
memorandum “acknowledges the contrary.â€
Plaintiffs furnish no particulars substantiating this statement. Nor do they provide any discussion of the
relevant San Francisco municipal law—or make any effort to establish that the
trial court’s determination lacks the support of substantial evidence. (See §§ 21168, 21168.5;
Significantly, plaintiffs acknowledge that the two permits issued in
January 2011“noted their reliance on the categorical exemption for each.†This acknowledgment implicitly recognizes
that there is only the one notice of exemption filed by the Planning Commission
on May 10,
2010, evidencing official approval of the
project. (Guidelines §§ 15062,
subd. (a), 15352, subd. (a).) The
significance is that is only that date commenced the 35-day filing period. The subsequent issuance of permits is not
material for CEQA purposes. (See
(2007) 147 Cal.App.4th 1375, 1381-1383 [effect of 1996 approval of conditional
use permit and notice of exemption was that with subsequent issuance of grading
permits “there is nothing to challenge under CEQAâ€].)
Nor can plaintiffs camouflage their motive
before the Board of Appeals. Plaintiffs
were obviously hoping that entity would overturn the permits, thus effectively
nullifying the exemption and halting the project. There is no reason to sanction plaintiffs’
attempt to sidestep CEQA’s 35-day deadline.
It is clear from a
careful reading of plaintiffs’ brief that their true objective is to get the
Class 32 categorical exemption overturned, primarily on the ground that there
was debatable fair argument as to whether the proposed project could have an
adverse environmental impact. Even their
frustrated attempt at appealing to the Board of Appeals was based on the
alleged failure of the Department of Public Inspection “to meet applicable
. . . environmental protection standards.†Like their attack on the supposedly defective
procedures for administrative appeals, this argument is aimed at attacking the
validity of real parties’ exemption, i.e., the merits of the decision to grant
the exemption. It too is therefore covered
by the principle that “litigation challenging the validity of an agency’s determination to allow a project to proceed
under a CEQA exemption,†or “flaws in the approval process,†or “claims
of impropriety in the agency’s exemption determination may only be addressed
in lawsuits commenced within 35 days after the agency properly files a notification
of that determination.â€
(Stockton Citizens,
In conclusion, the
unalterable points are that the project did receive an exemption and that the
period for challenge passed many months before plaintiffs sought judicial
relief. Plaintiffs cite no statutory,
regulatory, or decisional authority requiring, or even contemplating, a second
notice of exemption for the same project.
From what our Supreme Court said in
the relevant limitation period specified by section 21167, the public interest
is deemed best served by letting real parties proceed. (Stockton
Citizens, supra, 48 Cal.4th 481,
500.) We therefore agree with the trial
court that plaintiffs’ efforts to restart the CEQA process must be rejected. Plaintiffs were not entitled to relief
because they failed to establish that the City “has not proceeded in a manner
required by law.†(§ 21168.5.)
DISPOSITION
The judgment is
affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
name="_ftn1" title="">[1] Public Resources Code, section 21000 et seq. (CEQA). Statutory references are to the Public
Resources Code. References to “CEQA
Guidelines†or “Guidelines†are to “the regulations promulgated by the
Secretary of the Natural Resources Agency found in title 14 of the California
Code of Regulations beginning at section 15000. . . . These guidelines are binding upon all state
and local agencies in applying CEQA.
(CEQA Guidelines, § 15000.)â€
(Schellinger Brothers v. City of
name="_ftn2" title="">[2] The City’s Planning Department assessed the property as meeting
three of the four criteria for inclusion on the California Register of Historic
Resources (see § 5024.1, subd. (c)), specifically, because the
property: (1) “is associated with the
aftermath of the 1906 Earthquake and Fire and the post-emergency housing needs
of that time,†and “is also associated with important periods in San Francisco
art historyâ€; (2) “is associated with the life of Marian Hartwell, a faculty
member of the California School of Fine Arts (now the San Francisco Art Institute)â€;
and (3) “is an example of vernacular post‑earthquake period architecture
with a unique siting and court plan.
This architecture is characterized by wood-frame construction,
rusticity, simplicity, and informality.â€
There is nothing in the record to
suggest that the proposed renovation will not preserve the distinctive exterior
of the structures. If the interiors of
the structures have any distinction, their renovation, or even destruction, is
beyond the scope and reach of CEQA. (See
Martin v. City and
