In a partially published opinion, the court upheld San Francisco’s approval of the Parkmerced project, concluding that the San Francisco General Plan contains adequate standards for population density and building intensity, the city did not violate due process rights in approving a development agreement for the project, and the administrative record properly included certain hearing transcripts. The court affirmed the judgment below. San Francisco Tomorrow v. City and County of San Francisco, Case No. A137753.

Parkmerced is an existing 3,221-unit residential complex on 152 acres in southwest San Francisco. The housing is currently divided between 13-story towers and 2-story townhouses. The proposed project is a comprehensive mixed-use redevelopment plan that proposes, over the course of 20 to 30 years, to demolish all the townhouse units, build an equal number of replacement units, and add 5,679 units. The project also envisions providing new commercial and retail services, transit facilities, parks, and open-space amenities, and improving existing utilities and stormwater management systems. The project would also include office space, a new school, daycare facilities, and a fitness center. The Planning Commission certified the final EIR for the project, after which the Board of Supervisors approved the project. San Francisco Tomorrow and Parkmerced Action Coalition filed a petition for writ of mandate. The trial court denied the petition on all counts. Petitioners argued that the San Francisco General Plan’s Urban Design Element is inadequate for failing to include standards for population density and building intensity as required by Government Code section 65302. “Population density,” the court noted, refers to the number of people in a given area rather than the concentration of dwelling units. The court emphasized that the actual layout of a general plan is for the most part within the local agency’s discretion. Here, the section of the Housing Element describing existing housing stock contained a table and map that together provided an adequate description of the population densities for the Parkmerced area. The table and map also projected the likely future densities throughout the city. The court found this adequate. The Urban Design Element was adequate in establishing maximum dimensions of buildings only above specified heights, as this type of standard was contemplated by case law and the general plan. The court afforded the city broad discretion as to the degree that the circulation element correlated with the changes in population density and building intensity.

Petitioners also contended the trial court erred in dismissing Parkmerced Action Coalition’s due process claim. Petitioners argued that as tenants of Parkmerced, members of the coalition held property rights associated with their rent-controlled units, and those rights had been violated by the failure to provide proper notice. The court found no error. The court noted that the only governmental decisions subject to procedural due process principles are decisions that are adjudicative in nature. Legislative action is generally not governed by procedural due process requirements. To conform to this rule, appellants posited that a development agreement is an entitlement, rather than a law of general applicability. While a few cases support the expansion of due process protection where a legislative act exceptionally affects a small number of people, under state law the approval of a development agreement is a legislative act. The court was unwilling to subject the approval to due process requirements simply because it affected property rights in some manner.

Finally, the court held that the trial court had not erred in including in the administrative record transcripts of a set of hearings before a board committee. Though the audio recordings and their transcriptions constituted “other written materials relevant to the agency’s decision on the merits of the project,” no cases held that such documents must be identified in the motion affirming certification of the EIR in order to be “before the decisionmaker.” Furthermore, the hearings occurred before the board’s decision, and thus the recordings and transcripts were properly part of the administrative record. Even if the transcripts were not part of the administrative record, the court held that petitioner had failed to meet their burden of showing such error was prejudicial.