In an important followup to the Berkeley Hillside case, the First District Court of Appeal has upheld a CEQA exemption for a three-unit condo project just below Coit Tower in San Francisco.

Neighbors argued that the project’s unique location on Telegraph Hill represented “unique circumstances” that should have overridden the CEQA exemption. Relying on the California Supreme Court’s ruling in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the appellate court disagreed.

“[T]he project is within the density, height and bulk limitations for its designated zoning,” wrote Justice Peter Siggins for a unanimous three-judge panel. “It will also be immediately adjacent to a four unit building of similar proportion. It would be odd at best for us to conclude a development project that conforms with zoning requirements on Telegraph Hill is in and of itself an unusual circumstance that requires CEQA review. We decline to do so.”

The court also rejected the neighbors’ argument that conditions of approval imposed by the San Francisco Planning Commission were really mitigations under the California Environmental Quality Act, suggesting that the CEQA exemption was invalid. But the court knocked that argument down also, creating a potentially important distinction between

The case involved a plan to restore a 1,000-square-foot 1906 cottage and building three new condomiums ranging in size from 3,700 to 4,200 square feet, all on a mostly vacant 7,500-square-foot lot just below Coit Tower on Telegraph Hill. Although the proposed development project is similar in scale to adjacent buildings, it generated controversy in the neighborhood. (More background on the project, including photographs of the site and the proposed project, can be found in an SFCurbed article here. )

The Planning Commission approved the project in 2014 with a number of conditions of approval designed to minimize the disruption of the project during construction. Under the San Francisco City Charter, the Planning Commission has broad discretionary power to impose conditions on projects. The Planning Commission also exempted the cottage rehab from CEQA under a categorical exemption for restoration and rehabilitation, and the three condos because the project was less than four units.

The citizen group Protect Telegraph Hill sued, arguing that the exemptions were wrongly applied and the conditions imposed were really CEQA mitigations that were inappropriate to be imposed in a conditional use case. San Francisco Superior Court Judge Teri L. Jackson ruled in favor of the city and Protect Telegraph Hill appealed.

On appeal, the neighbors argued that, among other things, the situation involved “unusual circumstances” that should have overridden the CEQA exemptions. The neighbors called the location and site constraints “unequivocally rare,” and says the exception applies because it is the “first among the ‘Outstanding and Unique Areas’ that ‘contribute in an extraordinary degree to San Francisco’s visual form and character.” The neighbors also argued that this unique character is reflected in the city’s general plan and urban design element.

But the appellate court disagreed. “The City rejected the notion that the designation of Telegraph Hill in the urban design element supports a claim of unusual circumstances, and so do we,” the court wrote. “ The full description of the Hill in the element shows that it is lined with low, small-scale buildings with flat roofs that hug the topography. While one may argue the scale of the proposed building, this seems a question of degree rather than an unusual circumstance.”

The neighbors’ other major argument was that the conditions of approval were really CEQA mitigations that the city should not have imposed as part of a conditional use approval. But the court wrote, “There is simply nothing in this record that demonstrates the Board was imposing the additional conditions in order to mitigate the project’s significant environmental effects as opposed to taking precautions to address the ordinarily anticipated inconvenience and danger that arises when significant construction activity occurs in a congested urban environment like San Francisco’s Telegraph Hill.”

The Case:

Protect Telegraph Hill v. City and County of San Francisco, No. A148544 (published October 13, 2017)

The Lawyers:


For Protect Telegraph Hill: Susan Brandt-Hawley, 

For City and County of San Francisco: Andrea Ruiz-Esquide, San Francisco City Attorney’s Office, 

For developers of lot (real parties in interest): James Reuben, Reuben, Junius & Rose,, and Anna C. Shimko, Burke,Williams, & Sorenson,