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Susan Brandt-Hawley/SBN 75907

BRANDT-HAWLEY LAW GROUP
P.O. Box 1659
Glen Ellen, CA 95442
707.938.3900, fax 707.938.3200
susanbh@preservationlawyers.com
Attorneys for Petitioner
Protect Telegraph Hill

SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF SAN FRANCISCO

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Protect Telegraph Hill,

an unincorporated association;
Petitioner,

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v.
City and County of San Francisco; Board
of Supervisors of the City
and County of San Francisco,
and Does 1 to 5;
Respondents.
_____________________________/

Case No. CPF-14-514060

Opening Brief in support of

Petition for
Writ of Mandamus
Hearing Date: November 19, 2015
Time:
1:30 p.m.
Dept:
503

Jeremy Ricks, Tracy Kirkham,

and Joe Cooper, and Does 6 to 10;

Hon. Teri L. Jackson

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Real Parties in Interest.

_____________________________/

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____________________________________________________________________________________________________

Opening Brief in support of Petition for Writ of Mandamus

Table of Contents

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Introduction ................................................................................................................. 1

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Statement of Facts ....................................................................................................... 3

Environmental Setting ........................................................................................ 3

Project Approval Process................................................................................... 6

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Statement of the Case ................................................................................................. 8

Discussion ................................................................................................................... 9

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A. The Categorical Exemption is Unlawful ............................................................. 9

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1. Mitigation Measures Preclude Categorical Exemption ............................... 10

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Case Law and Regulatory Authority ........................................................... 10

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The City Adopted Mitigation Measures ....................................................... 12

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2. The Project Description is Incomplete ........................................................ 16

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3. The Unusual Circumstances Exception Applies........................................ 17

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Procedure for Applying the Exception......................................................... 17

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Evidence of Unusual Circumstances .......................................................... 19

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a. Sensitive Intersection ........................................................................ 19

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b. Public Views...................................................................................... 20

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c. Unusual Topography......................................................................... 23

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The Record Contains a Fair Argument of Significant Impacts .................... 25

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B. The Conditional Use Authorizations are Unsupported ..................................... 25

Conclusion ........................................................................................................................ 26

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Table of Contents

Table of Authorities

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Case Law
Page
Azusa Land Reclamation Company v. Main San Gabriel Basin Watermaster (1997)
52 Cal.App.4th 1165 ...................................................................................................... 10
Berkeley Hillside Preservation v. City of Berkeley (2015)
60 Cal.4th 1086 ................................................................................................... 17,18,19
City of Pasadena v. State of California (1993)
14 Cal.App.4th 810 ........................................................................................................ 10
County of Inyo v. City of Los Angeles (1977)
71 Cal.App.3d 185 ..................................................................................................... 16
Friends of B Street v. City of Hayward (1980)
106 Cal.App.3d 988 ..................................................................................................... 11
Lotus v. Department of Transportation (2014)
223 Cal.App.4th 645 .................................................................................................... 11

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Salmon Protection and Watershed Network v. County of Marin (2004)

125 Cal.App.4th 1098 ................................................................................................. 10
Save Our Schools v. Barstow Unified School District Board of Education
(September 2, 2015)
__Cal.App.4th _ ........................................................................................................... 18
Wollmer v. City of Berkeley (2011)
193 Cal.App.4th 1329 ................................................................................................... 11

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Public Resources Code Sections

21084(a) ................................................................................................................................ 9
CEQA Guidelines
15070(b)(1) .......................................................................................................................... 11
15070(b)(2) ......................................................................................................................... 11
15300.2(c) ........................................................................................................................... 17
15301 .................................................................................................................................... 9
15303(b) ................................................................................................................................ 9
1530115333.......................................................................................................................... 9

San Francisco Planning Code Sections

101.1(b) ........................................................................................................................... 20,25

Residential Design Guidelines ............................................................................................ 21
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Table of Authorities

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Introduction
Garfield Elementary School [is] located on a really steep slope. Its
so steep that normal school buses cannot make it to our school The
developer intends to pump concrete from this location up to the project
site further up the Filbert Steps. This will take several months, entail
countless truck trips, [and] will have significant noise, pollution, safety,
and accessibility issues to the entire Garfield School community The
project should not have been exempted from environmental review I
respectfully urge you to require environmental analysis (Administrative
Record (AR):1044-1045 [Jason Owens, Principal of Garfield Elementary School].)

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The members of Protect Telegraph Hill come before the Court in the public interest.
They seek mandated environmental review of the 115 Telegraph Hill Boulevard project via
enforcement of the California Environmental Quality Act (CEQA) on behalf of San Franciscans,
tourists from around the world, and young children attending Garfield Elementary School.

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A split vote of the Board of Supervisors approved the project: three super luxury

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[$10 million each!] 4000 square-foot condominiums and a 3-car underground garage adjacent

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to the evocative Filbert Steps. The site lies directly across Telegraph Hill Boulevard from the

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popular Pioneer Park stairs that climb Telegraph Hill to Coit Tower. Ascending the heavily-

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travelled sets of steps, City residents and world-wide visitors constantly stop to marvel at the
dramatic City vista spread out below. This project would destroy that iconic public view.

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(AR:25.)
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Opening Brief in support of Petition for Writ of Mandamus

The City relies on a categorical exemption from CEQA but such exemption is

intended and allowed only for run-of-the-mill projects without significant environmental

impacts. The administrative record proves that the Citys refusal to conduct environmental

review for the problematic condominium project on Telegraph Hill violates CEQA:

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The City imposed many mitigation measures as part of its discretionary land

use approvals. CEQA unequivocally disallows categorical exemption when a project needs

mitigation measures, as such measures can fail and cause environmental harm.

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The City failed to address all project elements and deferred analysis and

mitigation of many environmental impacts, including alteration of the Filbert Steps and a

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1906 cottage; vehicle and pedestrian traffic; construction staging; and geotechnical effects.

The Citys General Plan mandates that our parks and open space and their

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... vistas be protected from development. The Citys Residential Design Guidelines contain

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similar mandates. Yet the 115 Telegraph Hill Boulevard project would block the sweeping

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panoramic vista of San Francisco from the adjacent Pioneer Park.

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CEQA provides an exception to categorical exemptions when there is reasonable

possibility that a project will have a significant effect due to unusual circumstances. Here, the

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record discloses abundant evidence qualifying for the exception due to significant effects of the

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deep excavation required for the underground garage; dangerous ingress and egress to the site

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affecting traffic and pedestrian safety; traffic impacts at Garfield Elementary School; and

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blocked public vistas from the Pioneer Park steps.

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Environmental review is mandated. Protect Telegraph Hill now respectfully seeks this

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Courts peremptory writ to secure the Citys compliance with CEQA and thus to protect the

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unique resources of Telegraph Hill. CEQA review will be wholly beneficial, providing objective

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analysis of environmental impacts, mitigations, and feasible alternatives in a public process.

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Opening Brief in support of Petition for Writ of Mandamus

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Statement of Facts
[T]he proposed luxury condominium project at 115 Telegraph Hill
Boulevard would be a terrible planning mistake that will adversely impact San
Franciscos world-renowned Telegraph Hill, Coit Tower, and the surrounding
4.89 acre Pioneer ParkThis is not about any particular neighbors self-interest
or views this is about the public interest and the publics views, parks,
access and pedestrian safety. As San Francisco residents we have a
collective duty to safeguard these treasures for future generations.
(AR:576 [Resident Peter Dwares].)

Environmental Setting. Telegraph Hill was named for the 1849 semaphore telegraph
that once stood on its summit to signal ships entering the Golden Gate. (AR:2007, 1038.)
Its stairways are a community asset now traversed by thousands of residents and visitors every
month who enjoy spectacular panoramic views of the City and the San Francisco Bay.

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As explained on the Citys Recreation and Parks Department website, Telegraph Hill includes

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Pioneer Park, the site of world-famous landmark Coit Tower. At 4.89 acres, Pioneer Park

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offers wide, breathtaking views of the city and the bay. The park space was built in 1876 to

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commemorate the countrys centennial anniversary. (AR:1946, italics added.)

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(AR:27.)
Telegraph Hill Boulevard narrowly winds up Telegraph Hill to Pioneer Park and
Coit Tower. A bus stop is located at the project driveway at 115 Telegraph Hill Boulevard.

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(AR:29.) The project site is also accessed by the pedestrian Filbert Steps that comprise most of
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Opening Brief in support of Petition for Writ of Mandamus

the project sites northern boundary, directly across the street from the Pioneer Park stairway

climbing the hill to Coit Tower. Park visitors routinely pause on the stairway and look south

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over the project site to enjoy views of the City spread out below. (AR:585 [Stan Hayes]; 587,
589-590, 1061, and 1899 [Judy Irving]; 1060-1061 [Nancy Shanahan]; 2006 [Planning

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Commissioner Kathrin Moore]; 1900-1901 [Katherine Petrin]; 2390 [Sandy Yasso].)

Starting 20 years ago, a number of Telegraph Hill residents worked successfully with the

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Citys Departments of Public Works and the Recreation and Parks on the Pioneer Park Project,

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to fund rebuilt stairways, paths, and terraces, to restore natural habitat, and to address erosion

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and handicapped access. Over $1.6 million was raised and over 500 people contributed to the
Pioneer Park stairways with risers faced with 757 etched named tiles. (AR:211, 582, 2007.)

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(AR:2008.)

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Opening Brief in support of Petition for Writ of Mandamus

The stairway leading down to the Filbert Street Steps, just above the project site, was sited to

make the most of the expansive views from this early City park (AR:2007.) Resident Gerry

Crowley explained that the project driveway is proposed just 40 feet maybe from where there

are tiles and they have my granddaughters names on the steps forevermore, and I have a

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great interest in keeping it beautiful and in letting everyone enjoy the view. (AR:1063.)

Further downhill at the base of the Filbert Steps, public Garfield Elementary School

serves 250 students one block northwest on a steep slope at 420 Filbert Street. (AR:1044.)

Garfield School was designed by prominent Bay Area architect Joseph Esherick. (AR:1288.)

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Because of the narrowness of Telegraph Hill Boulevard, the staging area for the projects
concrete trucks and materials would be at Filbert and Kearny Streets, adjacent to the school.

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(AR:1043.) The streets are so narrow that only smaller special-education buses are able to drive

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to the campus; regular-sized school buses must drop students off a block away. The students

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walk up the hill because the street is too narrow to allow the buses to turn around. (Ibid.)

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(AR:1974.)

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Eleven small residences in five buildings previously stood on the project site at
115 Telegraph Hill Boulevard, at low heights that did not impair the public views from Pioneer
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Opening Brief in support of Petition for Writ of Mandamus

Park. (AR:1949.) One 1906 cottage remains at the southeast corner of the site; the others were

removed in 1997. The property has thus been largely vacant for almost 20 years. (AR:896.)

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Project Approval Process. In 2013, real party in interest Jeremy Ricks proposed to
construct a three-condominium residential building on the blind curve at 115 Telegraph Hill
Boulevard and to demolish and renovate the exterior of the remaining 1906 cottage. (AR:1.)
He proposed access to the cottage via a pedestrian walkway from the Filbert Steps and to

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locate the three new units in the front of the lot in a three-story-over-basement building with

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condominium sizes of about 4,000 sf. (AR:1.) A new curb cut along Telegraph Hill Boulevard

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would provide access to three parking spaces in an underground garage served by an elevator.

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The project would require replacement of a portion of the concrete sidewalk, steps, and

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retaining walls of Filbert Street and the Filbert Steps. (Ibid.) Local architect Stan Teng

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(AR:43.)

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offered that The projects faade resembles the set of Hollywood Squares and is overtly out

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of character and scale with the neighborhood. (AR:622.)

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In September 2014 the City Planning Department issued a categorical exemption from
CEQA, determining that the project required no environmental review because it fit into

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Opening Brief in support of Petition for Writ of Mandamus

exempt classes for Existing Facilities and Small Structures. (AR:70; CEQA Guidelines

[14 Cal. Code Regs] 15000 et seq., 15301(d), 15303(b).) Also in September 2014, by a split

vote the Planning Commission approved a conditional use authorization for the project, with

mitigation measures. (AR:4-16.) Planning Commissioner Kathrin Moore, an architect, detailed

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traffic and pedestrian safety impacts and the prospective loss of public views as a preface to

voting no to the out-of-scale huge super luxury units. Planning Commission President

Cindy Wu agreed and also voted no. (AR:885, italics added; 1006-07, 1012-13.)

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The Telegraph Hill Dwellers filed administrative appeals of the Planning Commissions
CEQA categorical exemption and conditional use approvals, providing extensive
documentation and letters and petitions from concerned City residents. (AR:1543-1648.)

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They offered a feasible alternate project design via the architectural firm EHDD to accomplish

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project objectives while avoiding significant environmental impacts. (AR:1910-1914, 1947.)

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The EHDD design proposed to reduce the project height by one floor, to eliminate off-street

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parking, and to provide an 18-foot view corridor at the top of the Filbert Steps. (AR:1962.)

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The Citys planning staff recommended denial of the Telegraph Hill Dwellers appeals of

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the categorical exemption and the conditional use authorizations. (AR:390, 761.) Staff told the
Board of Supervisors that the 115 Telegraph Hill Boulevard project would not adversely affect

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any public parks or open spaces, including Pioneer Parks public vistas. (AR:385; 787-

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788.) Any obstruction of views from Pioneer Park was discounted because the subject parcel is

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outside of Pioneer Park and would be similar in height to surrounding developed parcels

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and the disputed view was partially blocked up until 1995 when the existing buildings were

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demolished. (AR:760.) Staff contended that the project would be consistent with Residential
Design Guidelines and the Citys General Plan. (AR:385-388.)

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Opening Brief in support of Petition for Writ of Mandamus

After a public hearing on the appeals, the Board of Supervisors disapproved the

Planning Commissions approval of the conditional use authorization, upheld the categorical

exemption, and approved the conditional use authorization with additional conditions and

findings, on a split 7-3 vote in November 2014. (AR:51-61.3.)

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Statement of the Case

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Unfortunately, this project has become progressively taller and bulkier over
time. In past community meetings, the project sponsor presented buildings well
below the height limit, to preserve public view corridors from Pioneer Park for
residents and visitors alike I am the founder and leader of the Pioneer Park
Project, which led to new stairways and the south terrace at Coit Tower The
south terrace and Filbert steps have timeless views that need to be protected for
everyone. The [project] design does not integrate the sites sloping topography,
contributing to view obstructions (AR:238 [Architect Howard Wong, AIA].)

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This action was filed by Protect Telegraph Hill, an unincorporated association formed in

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December 2014, shortly after approval of the 115 Telegraph Hill Boulevard project, to protect

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and maintain the outstanding and unique quality of Telegraph Hill and to preserve public

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enjoyment of its parks and open spaces, stairs and walkways, dramatic views, and intimate

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pedestrian scale (Petition, p.2.) Resident Gerry Crowley and the Telegraph Hill Dwellers are
among the members of Protect Telegraph Hill and exhausted administrative remedies. (Ibid.)
No construction has occurred and the status quo remains in place on the site.

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(AR:107.)

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Opening Brief in support of Petition for Writ of Mandamus

Discussion

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Telegraph Hill is unique and magical to a degree Id never seen anywhere

else in America. Its these two qualities that have been drawing visitors,
one of the foundations of this citys economy Pioneer Park with Coit Tower
is one of the most beautiful spots in the city. This apartment project would
substantially alter its character This project has one purpose and one
purpose alone: to make one speculator a bundle of money. The rest of the
city loses. (AR:569 [40-year resident Mark Bittner].)

A.

The Categorical Exemption is Unlawful

As a practical matter, many routine projects that require discretionary approvals have

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no significant impacts and so it is pointless to take the time for a negative declaration or an

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environmental impact report process. A public review process serves no purpose when project

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impacts are known at the outset to be insignificant, as there is no need for mitigation or
consideration of project alternatives. Recognizing that, CEQA provides categorical exemptions

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to streamline agency approvals for run-of-the-mill projects that merit no study and require no

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mitigation. (Pub. Resources Code, 21084, subd.(a).) There are now 33 classes of minor

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projects that are presumed to be categorically exempt from CEQA because they normally have

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no significant environmental impacts. (Ibid; Guidelines, 15301-15333.)

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The City processed the 115 Telegraph Hill project as one such benign project, approving
a discretionary conditional use authorization without conducting any environmental review.
It invoked two categorical exemptions: Class 1 (Existing Facilities; Guidelines section 15301)

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for the existing cottage on the site, and Class 3 (New Construction or Conversion of Small

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Structures; Guidelines section 15303 (b)) for three large new super luxury condominiums and

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an underground 3-car garage accessed via elevator. (AR:1.)

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Petitioner Protect Telegraph Hill does not contest the Citys finding that the subject

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115 Telegraph Hill Boulevard project is encompassed within the language of Class 1 (the
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Opening Brief in support of Petition for Writ of Mandamus

cottage) and Class 3 (the three condominiums/garage). However, the categorical exemptions

are nonetheless insupportable for many reasons that compel this Courts peremptory writ.

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1.

The first ground for this Courts issuance of a writ to set aside the categorical

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Mitigation Measures Preclude Categorical Exemption

exemptions is blatant: the City adopted mitigation measures as part of the projects approval.
An agency cannot rely on a categorical exemption from CEQA if it adopts mitigation measures.

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Case Law and Regulatory Authority. A project approved with a categorical

exemption must stand alone, unconditionally. The adoption of mitigation allows the possibility
that mitigation measures could be insufficient or could fail, and that environmental impacts
could then result. That possibility is incompatible with the use of a categorical exemption.

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The First District Court of Appeal disallowed a categorical exemption for a single-family

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residence in Salmon Protection and Watershed Network v. County of Marin (Salmon) (2004)

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125 Cal.App.4th 1098, when the County of Marin imposed mitigation to address impacts:

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Reliance upon mitigation measures (whether included in the application

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or later adopted) involves an evaluative process of assessing those mitigation

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measures and weighing them against potential environmental impacts, and

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that process must be conducted under established CEQA standards and

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procedures for EIRs or negative declarations.

(Id., p. 1108.) As also explained in Azusa Land Reclamation Company v. Main San Gabriel
Basin Watermaster (Azusa) (1997) 52 Cal.App.4th 1165, eligibility for categorical exemption

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must be considered during preliminary review of the project (Guidelines 15060 & 15061),

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not in the second phase when mitigation measures are evaluated. (Id., pp. 1999-1200; City of

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Pasadena v. State of California (1993) 14 Cal.App.4th 810, p. 820 [The determination of the
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Opening Brief in support of Petition for Writ of Mandamus

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applicability of an exemption must be made before formal environmental evaluation...].)

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[T]he fundamental reason is substantive The Guidelines dealing with

the second phase of the environmental review process contain elaborate
standards as well as significant procedural requirements for
determining whether proposed mitigation will adequately protect the

environment and hence make an EIR unnecessary; in sharp contrast, the

Guidelines governing preliminary review do not contain any requirements

that expressly deal with the evaluation of mitigation measures. Thus, the

standards for evaluating proposed mitigation measures are covered by

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the Guideline regarding a mitigated negative declaration.

(Ibid., italics added, citing Guidelines, 15070, subd. (b)(1) and (2).)
CEQA requires study and mitigation of direct and indirect, short-term and long-term
effects, including the temporary impacts of project construction. (E.g., Friends of B Street v.
City of Hayward (1980) 106 Cal.App.3d 988, p.1003.) It can be confusing to distinguish

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between project conditions and mitigation measures. But while a condition can be a project

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element, mitigation has its own CEQA definition: avoiding, minimizing, rectifying, reducing,

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eliminating, or compensating for a significant environmental impact. (Guidelines, 15370.)

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Some agencies attempt to discount the import of adoption of mitigation by relying on

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Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329. In Wollmer, mitigation that was

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claimed to preclude a categorical exemption involved dedication of land for a left turn lane on

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Ashby Avenue. The First District held that the facilitation of a left turn lane was not a CEQA

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mitigation measure for project impacts, but a component of the project that assisted the City

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with an existing traffic issue [it] did become part of the project design, improving an existing
traffic concern. (Id., pp. 1352-1353.)
As recently held in Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645,
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Opening Brief in support of Petition for Writ of Mandamus

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p.656, n.8, [t]he distinction between elements of a project and measures designed to mitigate

impacts of the project may not always be clear. Some project elements may simply be part of

the project description. In the Lotus case, however, most of the avoidance, minimization

and/or mitigation measures including use of an arborist and of specialized equipment ...

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are plainly mitigation measures and not part of the project itself. (Ibid.) So it is here.

The City Adopted Mitigation Measures. The adopted mitigations for the 115

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Telegraph Hill Boulevard project relate directly to the environmental harm that would be

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generated. The Telegraph Hill Dwellers pointed out to the Board of Supervisors that the

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project requires mitigation, currently noted on the project plans as general notes. These

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mitigations address access of construction equipment, removal of excavated rocks and soil, and

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a pedestrian tunnel to be erected over the Filbert Steps. (AR:1882.) This was confirmed by
City staffs report to the Board of Supervisors before the appeals were heard, which referenced
project conditions 13-16 (AR:20) and the General Notes Section of the cover page of the
approved plans, Exhibit B of motion no. 19232. (AR:389; 20, 27.)
City staff also referenced the requirement of a pedestrian tunnel to maintain public
access of the Filbert stairs during construction and the employment of a flag person at the
intersection of Filbert Street and Telegraph Hill Boulevard for the duration of construction

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activities. (AR:390.) Further, as is typical with all challenging sites in the city, the sponsor

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will also be required to work with other permitting agencies to determine the best construction

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management approach for the project. (AR:789, italics added.) And in response to concerns

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about the location of the project driveway, staff pointed out that the applicant would post

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permanent signs alerting pedestrians to vehicles exiting the garage and would install a
parabolic mirror at the site exit to enhance visibility for exiting drivers. (AR:788.)
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Opening Brief in support of Petition for Writ of Mandamus

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At the appeal hearing before the Board of Supervisors, Garfield Elementary School
Principal Jason Owens asked the Board to require CEQA review:

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Garfield Elementary School [is] located on a really steep slope. Its

so steep that normal school buses cannot make it to our school The
developer intends to pump concrete from this location up to the project
site further up the Filbert Steps. This will take several months, entail
countless truck trips, [and] will have significant noise, pollution, safety,

and accessibility issues to the entire Garfield School community The

project should not have been exempted from environmental review I

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respectfully urge you to require environmental analysis

(AR):1044-1045, italics added; ante, p.1.) Principal Owens explained further that the top of

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Filbert Street and the narrow steep section of Kearny Street are, as I constantly observe,

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already extremely constrained and congested The project should not have been exempted

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from environmental review. (AR:1045.)

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Principal Owens concerns were echoed by David Golden, the Chief Facility Officer for
the San Francisco Unified School District (AR:1041-1042) and by San Francisco Board of

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Education Commissioner Sandra Lee Fewer, who stated that she was concerned about traffic
safety, noise, air quality, and dust, and on behalf of the San Francisco Board of Education

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was appearing before the Board of Supervisors to request an environmental review to be

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conducted on the proposed development at 115 Telegraph Hill Boulevard due to the staging

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location of their cement trucks at the Garfield School campus. (AR:1042-1043, italics added.)

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Attorney Daniel Frattin, speaking for the project applicant, acknowledged some

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concerns from the school board regarding concrete staging at Filbert and Kearny Street, and

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admitted this was a new project component designed to get concrete trucks off of Telegraph

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Hill Boulevard and improve the situation there. (AR:1091.) When asked for a commitment to
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Opening Brief in support of Petition for Writ of Mandamus

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modify your plans so that safety of the children will be taken into consideration, Mr. Frattin

responded, yes, absolutely, and assured the Board that the project applicant would meet with

the school officials to make changes to the plan to accommodate their concerns. (AR:1095.)

Supervisor Norman Yee then asked Planning staff : Lets say the worst scenario is they

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dont do anything to help mitigate that situation. Is there something we could put in there to

make sure that happens? (AR:1095.) The response was: Yes, the whole conditional use

authorization is before you, and you can modify the conditions of approval or add additional

conditions to your liking. If you have specific things that you think are important for the

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staging, you could add those into the conditions of approval. So anything thats within the
realm of what the Planning Commission does this Board could now do. (AR:1096.)

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The undersigned counsel then testified in rebuttal, stating in relevant part that

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[t]heres been a lot of talk about mitigations needed for Garfield School. Mitigations defeat a

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categorical exemption. (AR:1110.)

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Following the close of the public hearing, Board of Supervisors President David Chiu
stated: So, with regards to the categorical exemption, I ask that we affirm the cat ex for this

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project. And if we do affirm it, I do have some additional conditions that I would like to add to
the CU authorization. (AR:1114.) The affirmation of the categorical exemption was approved

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on a vote of 7-3. (AR:1115.) The Board then voted to add additional mitigation measures to the

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project, referred to as additional conditions of approval, referenced at AR:1117-1121 and later

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formally documented at AR:61.2 and 61.3, attached to this brief for the Courts convenient

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review. The eleven mitigation measures include a requirement to consult with Garfield

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Elementary School and the San Francisco Unified School District before finalizing the
construction staging, traffic and truck route plans. (AR:61.3, italics added.)
Deputy City Attorney Marlena Byrne advised the Board of Supervisors that it was
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Opening Brief in support of Petition for Writ of Mandamus

14

imposing additional conditions on the conditional use authorization appeal which are not to

address significant impacts of the project under CEQA. (AR:1121.)

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Saying so does not change the facts. The Planning Commission adopted mitigation
measures. (Ante, pp.12-13.) The Board of Supervisors adopted additional mitigation measures.

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All of the mitigations were designed to address concerns about project-generated

environmental impacts. This is not a bad thing, but it requires CEQA review. The Board and

the concerned public, including but not limited to the administrators, faculty, parents, and

children at Garfield Elementary School, have no way of knowing whether the still-to-be-

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adopted mitigation measures will be appropriate or adequate, or will have their own impacts,
and whether environmental impacts will remain significant or will be reduced to insignificance.

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Again, those questions require analysis in a CEQA process. This precise issue was addresed and
resolved in the Salmon and Azusa cases, ante, pp.10-11.
Mitigations cannot be part of a project approved via categorical exemption, but
require vetting within a prescribed public negative declaration or EIR process. The Citys
approval of mitigations in tandem with a categorical exemption violates the mandates of

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CEQA. The City surely knows better, or should.

Protect Telegraph Hill respectfully requests the Courts peremptory writ to order the

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City to set aside the categorical exemption and all project-related approvals and require the

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preparation of an Initial Study and appropriate environmental document before further

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consideration of the 115 Telegraph Hill Boulevard project, all as mandated by CEQA.

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Should the writ issue a writ on this basis, the Court need not reach petitioners other

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arguments; the exemption will be set aside and need not be voided on alternate bases.

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Opening Brief in support of Petition for Writ of Mandamus

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2. The Project Description is Incomplete

Logically, to assess whether a project meets the requirements of CEQA, it is important

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that the City address all project components. In the context of an EIR, an accurate and stable
project description is known as the sine qua non of a legally-sufficient document. (E.g.,
County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, pp. 193, 199.) Even outside of

the EIR process, any project must be adequately defined so that its impact-producing elements

can be addressed and considered in compliance with CEQA.

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The Citys consideration of the 115 Telegraph Hill Boulevard project was incomplete, as
it failed to address specifics impacts of the project, including:

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Public Works, including a landing at the top of the Steps.

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Replacement and relocation of the Filbert Steps, triggering planning department

review of General Plan consistency and a major encroachment permit.

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Improvements to the Filbert Steps to meet requirements of the Department of

Construction of a platform for an on-site construction staging area and a

construction staging area at Garfield Elementary School.

Removal of a portion of the historic stone wall separating Telegraph Hill

Boulevard and the Filbert Steps in order to build the project driveway.

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Reconfiguration of the sidewalk to relocate the stop sign and bus stop.

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Renovation and restoration of the 1906 cottage.

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(AR:336, 903.)
A peremptory writ should require the City to describe, analyze, and mitigate the whole

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of the proposed CEQA project.

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Opening Brief in support of Petition for Writ of Mandamus

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3. The Unusual Circumstances Exception Applies

Construction of structures like this contribute to the fragile hillside

problems and affects the surrounding areas. Seriously! Dig 30 feet
for a new parking garage in this area on a fragile hillside? (AR:237
[Resident Susan Wintersteen].)

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Procedure for Applying the Exception. Unlike statutory exemptions from CEQA,
categorical exemptions are not absolute and are rebuttable. The CEQA Guidelines provide

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exceptions to the 33 classes of exemptions. The exception for unusual circumstances is

relevant here: A categorical exemption shall not be used for an activity where there is a

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reasonable possibility that the activity will have a significant effect on the environment due

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to unusual circumstances. (Guidelines, 15300.2, subd. (c).)

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Following years of conflicting appellate rulings, the California Supreme Court recently
provided guidance on the procedure to apply the exception. (Berkeley Hillside Preservation
v. City of Berkeley (Berkeley Hillside) (2015) 60 Cal.4th 1086.) In a split opinion, the Court

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held that an agencys consideration of the unusual circumstance exception requires two steps.

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First, the agency must determine whether a projects circumstances are unusual. If so, it then

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applies CEQAs low-threshold fair argument standard to see whether the record provides any

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substantial evidence that the project may have a significant environmental impact. Berkeley

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Hillside directs that if the unusual circumstances exception is invoked, an agency must

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consider evidence in its own files of potentially significant effects, regardless of whether that

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evidence comes from its own investigation, the proponents submissions, a project opponent,

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or some other source. (Berkeley Hillside, supra, 60 Cal.4th 1086, p. 1103.) Further,

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Opening Brief in support of Petition for Writ of Mandamus

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1
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to establish the unusual circumstances exception, it is not enough for

a challenger merely to provide substantial evidence that the project may

have a significant effect on the environment On the other hand, evidence

that the project will have a significant effect does tend to prove that some

circumstance of the project is unusual. An agency presented with such

evidence must determine, based on the entire record before it including

contrary evidence regarding significant environmental effects whether

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there is an unusual circumstance

(Id., p. 1105 [This key language was cited last week in Save Our Schools v. Barstow Unified

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School District Board of Education (September 2, 2015) __Cal.App.4th __.].)

A party may also establish an unusual circumstance

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without evidence of an environmental effect, by showing that the project

has some feature that distinguishes it from others in the exempt class, such
as its size or location. In such a case a party need only show a reasonable

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possibility of a significant effect due to that unusual circumstance.

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Alternatively a party may establish an unusual circumstance by evidence

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that a project will have a significant environmental effect. That evidence, if

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convincing, necessarily also establishes that an activity will have a significant

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effect on the environment due to unusual circumstances.

(Berkeley Hillside, supra, 60 Cal.4th 1086, p. 1103, italics added.) The Supreme Court
distinguishes between evidence that a project will have a significant effect, which makes it

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unusual, and evidence that it may have a significant effect, which may not be unusual. (Id.,
pp. 1105-1110.) The latter scenario requires additional evidence that a circumstance is unusual,

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such as size or location. (Id., p. 1103.) The Court also directed that a finding of unusual

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circumstances is reviewed under the substantial evidence prong of Public Resource Code

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Opening Brief in support of Petition for Writ of Mandamus

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section 21168.5. (Id., p. 1114.) Agencies must weigh the evidence and determine which way

the scales tip and reviewing courts must affirm that finding if there is any substantial

evidence to support it. (Ibid.)

Finally, the Berkeley Hillside majority indicated that its approach is consistent with the

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concurring opinions statement of its central proposition: When it is shown that a project will

have a significant environmental effect, it necessarily follows that the project presents

unusual circumstances. (Id., p. 1105, italics added.) The concurring opinion by Liu and

Werdegar, JJ, consistently pointed out that [e]ven under the cumbersome rules set forth

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today, it is hard to imagine that any court, upon finding a reasonable possibility of significant
effects under the fair argument standard, will ever be compelled to find no unusual

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circumstances and uphold the applicability of a categorical exemption. (Id., p. 1134.)

Evidence of Unusual Circumstances. The environmental constraints of the

115 Telegraph Hill Boulevard site and project meet both tests of unusual circumstances

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provided by the Supreme Court in Berkeley Hillside. First, the location and site constraints are

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unequivocally rare. Is there any other Telegraph Hill, Pioneer Park, Coit Tower, and Filbert

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Steps? In fact, the San Francisco General Plans Urban Design Element calls out Telegraph Hill

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first among the Outstanding and Unique Areas that contribute in an extraordinary degree to

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San Franciscos visual form and character. (AR:1958, italics added.)

Second, the evidence shows that the project not only may have significant
environmental impacts, but that it will have such impacts, as explained below.

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a. Sensitive Intersection. The project site is at the top of the Filbert Steps, at the

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convergence of a blind curve on Telegraph Hill Boulevard, a Muni bus stop, a mid-block

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pedestrian crosswalk from the Filbert Steps to Pioneer Park, and a stop sign in the heart of a
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Opening Brief in support of Petition for Writ of Mandamus

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public area frequented by thousands of tourists distracted from traffic hazards by the

spectacular scenery and views. (AR:335.) Such a confluence of special factors dramatically

removes the site from the run-of-the-mill.

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b. Public Views. The projects impacts on public views create unusual inconsistencies
with mandates of the Citys adopted land use plans. Among the most blatant violations:
Planning Code Section 101.1 (b) codifies the Priority Planning Policies in Proposition M

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adopted by San Francisco voters in 1986, which required eight policies to provide a basis for
resolution of any inconsistencies in the General Plan. (AR:13, 1961.) Priority Planning Policy 8

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requires [t]hat our parks and open space and their access to sunlight and vistas be protected

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from development. (Ibid.)

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The Planning Commission purported to address the requirements of Policy 8 as follows,

in relevant part, under Planning Code finding 9 H:

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The Project includes the in-fill development of three new dwelling-units

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on a largely vacant lot in a residential neighborhood. The Project will not

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affect any public parks or open spaces. It is located below Coit Tower and

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Pioneer Park on Telegraph Hill, and will incorporate green rooftops to ensure

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that the Project blends with the hillside when viewed from above. It will not

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adversely affect Coit Towers access to sunlight or public vistas.

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(AR:14.) But the finding does not address, much less dispute, that the 115 Telegraph Hill

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Boulevard project will eliminate major public views of the downtown skyline from the stairway

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and landings in Pioneer Park.

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The fact that the current view was improved about 20 years ago when the small existing

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structures at 115 Telegraph Hill Boulevard were demolished does not remove the inconsistency:

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the vista has been present and enjoyed for decades. Architect Howard Wong explained to the
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Opening Brief in support of Petition for Writ of Mandamus

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City that when he was working on the design of the Pioneer Park stairways as part of the

Pioneer Park Project, he found the original working drawings by Coit Tower architect Arthur

Brown, Jr. and discovered that in 1931 his working drawings included a south stairway to

Coit Tower. In other words, the view corridors of that southern part of the hill were always the

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intention of the design of Coit Tower and the surrounding site And that is also consistent

with the citizens who donated the Pioneer Park in the 1860s. Each iteration of the general

plan has successively enforced the public view corridors of the southern part. (AR:1057.)

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The project proposes 3 and 5-foot view corridors that do not preserve the southern
public vistas from Pioneer Park. (AR:474-475 [Telegraph Hill Dwellers explain the ineffective
3-foot slots].) A 3-foot gap is just a narrow tunnel Its clearly designed for access to the

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back cottage, not to provide a public view corridor. (AR:809.) Planning Commissioner Kathrin

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Moore agreed that the three-foot separation between the buildings is a way of differentiating

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residential buildings it doesnt really create any view corridors the three feet dont really

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do anything to provide views, particularly if you would go into Pioneer Park. There is no way

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being on the down slope to look through those slots anyway. Its basically a moot point that

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these slots should be responding to any public view objectives. They dont. (AR:987-988.)
Consistently, the Citys adopted Residential Design Guidelines include requirements to

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Protect major public views from public spaces and Design building facades to enhance and

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compliment adjacent public spaces. (AR:1964.) In eliminating the current view from Pioneer

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Parks pedestrian stairway and landing, the proposed project does neither. (Ibid.; see 1979.)

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As noted by Planning Commissioner Hisashi Sugaya, the view issue is from a public space

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because Pioneer Park is right across the street, and if you come down that stairway and turn
around, theres definitely a view impact from a public space with this particular project, which

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Opening Brief in support of Petition for Writ of Mandamus

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can be ameliorated with a different design. (AR:864.)1 Commissioner Rich Hillis agreed

that were eliminating the view from that staircase (AR:921.) The replacement view from

the Pioneer Park stairs? oversized Hollywood Squares. (AR:622.)

At the final project hearing before the Board of Supervisors, Board President David Chiu

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asked staff to respond to the substantial testimony about blocked views. Planner Elizabeth

Watty conceded that the General Plan does protect the views from public vistas. (AR:1078,

italics added.) She then summarily stated that its our opinion that both Pioneer Park and Coit

Towers views of downtown are not being significantly obstructed by this project, and noted

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that the project is consistent with the heights of adjacent buildings. (AR:1079) In rebuttal,
attorney Alice Barkley referred the Board to a drawing provided by the project architect

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depicting the view right now from Pioneer Park. (AR:1107.) It will be blocked by the project.

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(AR:1931.)

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The drawing proves the point: a spectacular public vista would be destroyed by the

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projects currently-approved mass and height. The view is beyond unusual, it is famous and
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Commissioner Sugaya left the Commission shortly before this project was approved.

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Opening Brief in support of Petition for Writ of Mandamus

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iconic. Its destruction would be directly inconsistent with the Citys General Plan and

Residential Design Guidelines and would result in significant environmental impact.

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c. Unusual Topography. As expressed by the Telegraph Hill Dwellers and many local

residents, including Jim Yasso, project planning with respect to earth movement is of great

concern, due to the big excavation to allow for the parking elevator Theyre talking about

going down more than 30 feet right at the top of the Filbert Steps. So youre going to have a 30-

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foot shear wall there until construction is complete. And the only separation between that and
Telegraph Hill Boulevard is the width of the sidewalk. (AR:947.) There have not yet been

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borings down to the depth of the planned excavation to see what the ground structure: Im

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very concerned about earth movement during construction and vibration during construction

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that could cause something to slide down towards our property. (Ibid.)

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Concerned about the same geotechnical impacts, the Telegraph Hill Dwellers submitted

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expert reports and testimony of eminent geotechnical engineer Lawrence Karp. (See AR:335-

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337, 372-375, 1035-1037, 1886-1878, 1885-1898, 2367-2374, 2396; credentials: 336, 1110,

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1888-1891.) Dr. Karp explained the unusual topography of the project site and the significant

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impacts of the 32-foot or greater excavation required for the underground garage, including:

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[t]he Project presents unusual circumstances as there has never before

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been a vertical excavation more than 10 feet deep in the proximity of the south

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side of Pioneer Park and Coit Tower. Although the risk of a deep open (not a
shaft) excavation should be obvious the City failed to require the submittal
of engineering information related to the stability of the surrounding hillside
[T]he excavation has to be at least 32 feet deep the drawdown due to

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dewatering alone will significantly affect neighboring properties and leave a

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latent condition that irreparably relieves lateral and subjacent support along

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the southern flank of Pioneer Park. An open excavation 32 or 33 feet deep

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Opening Brief in support of Petition for Writ of Mandamus

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along the only road to Coit Tower presents serious hazards The Project, due

to the unusual circumstances of a wide 32 or 33 foot deep open vertical

excavation, radically differs from the general circumstances

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(AR:2367-2369.) Dr. Karps opinion is that the project will (not just may) have a significant

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impact due to the unusual topography, meeting the Berkeley Hillside test. (Ibid.)
In a report critiquing Dr. Karps opinions, the applicants experts Patrick

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Shires and John Wallace provided preliminary geologic and geotechnical review comments

that disagreed in part with Dr. Karps conclusions but conceded that the project lacks detailed

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geologic and geotechnical investigation and will require appropriate shoring, foundation, and
monitoring recommendations to assure there is a low risk to adjacent structures from

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excavation-related distress. (AR: 2213; see 2010-2218.) The further geologic exploration and

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geotechnical engineering analysis will be required to guide the design of shoring elements by

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an experienced structural engineer, which will then be reviewed by the Department of Building

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Inspection as part of the building permit application. (Ibid.)2

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The Citys unlawful deferral of geotechnical environmental analysis to discretionary review

and mitigation is closely related to the problems of adopting mitigation measures without a
CEQA process, and to the inadequate project description. At the Planning Commission,
Commissioner Antonini responded to public concerns about geotechnical issues by admitting
that the Department of Building Inspection [DBI] has all responsibility to resolve any potential
for landslides. (AR:973.) Commissioner Dennis Richards agreed that we heard over and over
again about the water table issue, and we heard that DBI is responsible for that Im
assuming thats all good and that the six feet plus that they drilled down was sufficient enough,
So Im going to assume I have to rely on the city to do that. (AR:998.) Similarly, at the
Board of Supervisors appeal hearing, Supervisors and staff repeatedly relied on City
regulations to be interpreted by various departments, utilizing discretion outside of any public
process. (AR:763-776, 1080-82.) These environmental issues require CEQA review.
2

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Opening Brief in support of Petition for Writ of Mandamus

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The Record Contains a Fair Argument of Significant Impacts. Under Berkeley

Hillside, CEQAs unique fair argument standard applies to the question of whether a project
proposed for a categorical exemption meets the unusual circumstances exception vis--vis
evidence of significant environmental effects. The record discussed above documents a fair
argument of environmental impacts relating to inconsistency with City plans adopted for
environmental protection, vehicle and pedestrian traffic impacts, and geologic impacts.
A categorical exemption exception applies to the 115 Telegraph Hill Boulevard project.

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B.

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The Citys approval of the conditional use authorizations is reviewed for substantial

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The Conditional Use Authorizations are Unsupported

evidence. Even under this deferential standard, the approval must be set aside. The Telegraph

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Hill Dwellers and others went into great detail regarding the mandatory findings that cannot
be made. (E.g., AR:1947-1966.) Protect Telegraph Hill suggests that the most blatant,

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uncontrovertable violation of the mandates of the Citys conditional use authorization

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requirements is the finding That the use as proposed will comply with the applicable

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provisions of the Planning Code and will not adversely affect the General Plan. (AR:10.)
The Planning Commission made a simple finding that the Project complies with all

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relevant requirements and standards of the Planning Code and is consistent with Objectives

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and Policies of the General Plan, as detailed below. (AR:10.) The Board of Supervisors adopted

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the same finding by reference. (AR:60.) Yet, as Protect Telegraph Hill has explained at length,

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the finding required by the Planning Code Section 101.1(b), among others, That our parks and

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open space and their access to sunlight and vistas be protected from development is
unsupported. (Ante, pp. 2, 20-22.) That inadequate finding suffices to set aside the conditional
use authorizations, and a peremptory writ is respectfully requested on that important basis.
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Opening Brief in support of Petition for Writ of Mandamus

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Conclusion

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The project is inappropriate in its present form a massive condominium

project, hugely disruptive, that would be completely out-of-scale given
its location, contiguous to Pioneer Park and Coit Tower. Is there a more
iconic location in San Francisco? Is there a more fragile neighborhood ?
Is traffic not a serious concern along one of the most beloved streets and
visitor/Muni routes to Coit Tower? (AR:580 [Resident Tony Gantner].)

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Protect Telegraph Hill respectfully requests that a peremptory writ issue in the public
interest to set aside the categorical exemption and the conditional use authorizations.

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September 9, 2015

Respectfully submitted,
BRANDT-HAWLEY LAW GROUP

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By ______________________
Susan Brandt-Hawley
Attorney for Protect Telegraph Hill

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Opening Brief in support of Petition for Writ of Mandamus

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Protect Telegraph Hill v. City of San Francisco, et al.

San Francisco County Superior Court Case No. CPF-14-514060

PROOF OF SERVICE
I am a citizen of the United States and a resident of the County of Sonoma.
I am over the age of eighteen years and not a party to this action. My business
address is P.O. Box 1659, Glen Ellen, California 95442.
On September 10, 2015, I served one true copy of:

Opening Brief in Support of Petition for Writ of Mandamus

By e-service via File & Serve Xpress in accordance with San Francisco Superior
Court Local Rule 2.10.

By placing a true copy thereof enclosed in a sealed envelope with prepaid

postage in the United States mail in Glen Ellen, California addressed to the
persons listed below.
By emailing a copy to counsel as noted below.
Andrea Ruiz Esquide
Office of the City Attorney
1 Dr. Carlton B. Goodlett Place
Room 234
San Francisco CA 94102-4682

Attorney for Respondents

andrea.ruiz-esquide@sfgov.org
Daniel Frattin
James Reuben
Reuben & Junius LLP
1 Bush Street
6th Floor
San Francisco CA 94104

Attorney for Real Parties

in Interest

dfrattin@reubenlaw.com
jreuben@reubenlaw.com
I declare under penalty of perjury that the foregoing is true and correct and
is executed on September 10, 2015, at Glen Ellen, California.

Susan Brandt-Hawley