Proposed alterations to the inside of a private residence are not subject to California Environmental Quality Act review, even if the alterations would affect a historic structure, the First District Court of Appeal has ruled.
“What an owner plans to do to the private interior of his or her home does not implicate a significant adverse effect on the environment, which is the predicate for requiring CEQA review by a municipality,” the court held.
Under CEQA, the construction or remodeling of a single-family home is exempt from environmental review. However, the question posed in the case was not as black-and-white as might appear on first impression.
The building in question is known as the Atkinson House, located in San Francisco’s Russian Hill neighborhood. The house was built in 1853, making it one of the oldest structures in San Francisco. In 1893, famed architect Willis Polk designed an interior remodeling of the Atkinson House that featured his trademark redwood woodwork. San Francisco designated the Atkinson House a “city landmark” in 1977, and the entire Russian Hill neighborhood has been on the National Register of Historic Places since 1988. One factor in the National Register’s listing decision was the Polk-designed redwood interiors in some Russian Hill homes.
In 2001, Francis Martin III, who owns the Atkinson House, submitted plans to alter the building’s interior and exterior. The San Francisco Planning Department responded that the interior space contributed to the National Register listing, making the interior part of a historic resource. Thus, alteration would not be categorically exempt from CEQA, the Planning Department advised. The city declined to process the application for interior alterations until Martin submitted an “environmental evaluation application.”
Instead, Martin submitted a lawsuit seeking a court declaration that CEQA did not apply to his proposed interior modifications. He also sought a pronouncement that San Francisco had no discretion under § 26 of the San Francisco Business and Tax Regulations Code to deny a permit that complied with local building codes and zoning ordinances. San Francisco Superior Court Judge Peter Busch provided Martin with no relief.
When Martin appealed, the city argued that § 26 gave the Planning Department and an appeals board discretion in deciding whether to issue a building permit. Because it was a discretionary project, the city argued, it must review the project under CEQA, particularly considering the historical resources at stake.
The First District, however, rejected the city’s arguments and overturned the lower court.
“[I]t is noteworthy that one of the CEQA guidelines, known as the ‘common sense’ exemption, excludes activities ‘covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment,’” San Francisco Superior Court Judge John Munter, sitting on assignment to the First District, wrote for the court. “‘Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.’ This exemption applies even where a local agency has discretion to approve or deny a project.”
The general principle is that the construction or modification of one single-family residence is not covered by CEQA, Munter wrote. “A local agency’s discretionary authority cannot negate this exemption.” What matters, he continued, is “whether a project will affect the environment of persons in general.”
“That sine qua non of CEQA is missing here; no one not actually inside Martin’s house will have any percipient awareness that interior modifications have been made. A purely intellectual understanding that work by Willis Polk may no longer be within an unobservable part of another person’s private living quarters will not suffice to establish a significant effect on the environment. That what Martin proposes may strike some as cultural vandalism will not bring it within the ambit of CEQA unless there is a physical impact on the environment,” Munter wrote. “Destruction of an irreplaceable antiquity not being savored by the public does not qualify as a significant effect. … In fact, environmentally speaking, it is no change at all.”
As to whether the city must issue Martin’s requested permit under § 26, the court declined to rule because the city has made no decision yet on the application.
The Case:
Martin v. City and County of San Francisco, No. A107768, 06 C.D.O.S. 45, 2006 DJDAR 120. Filed December 29, 2005.
The Lawyers:
For Martin: Jonathan Bass, Coblentz, Patch, Duffy & Bass, (415) 391-4800.
For San Francisco: Sarah Owsowitz, city attorney’s office, (415) 554-4700.
