CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Lauren Glaser, Natalie C. Rogers, and Jennifer K. Roy

In a partially published opinion issued April 4, 2018, Small Property Owners of San Francisco Institute v. City and County of San Francisco, Case No. CPF14513453, the California Court of Appeal reversed the trial court’s judgment. The court held that state law preempted the City and County of San Francisco’s (City and County) ordinance provision prohibiting changes to nonconforming residential units for up to 10 years if the units’ tenants were evicted pursuant to the Ellis Act. In summary, the court determined:

• Petitioner waived its Planning Code and CEQA claims for failure to exhaust its administrative remedies.
• The Ellis Act preempted the City and County’s 10-year waiting period for alterations to non-conforming units if the owner had evicted a non-fault tenant.

The petitioner, a local property owners’ organization (Petitioner), petitioned for writ of mandate seeking to invalidate the City and County’s ordinance that limited the ability of owners of nonconforming housing units to alter those units if a non-fault eviction had occurred within the prior 10 years (the Ordinance). Petitioner argued:

• The adoption of the Ordinance violated the Planning Code because the Board of Supervisors (Board) amended the Ordinance prior to adoption and those changes were not reviewed by the Planning Commission (Commission)
• The City and County’s determination that the Ordinance was not a “project” subject to environmental review violated CEQA
• The Ellis Act preempted the Ordinance