Duskin v. Alioto

No. 641-688 (Cal. App. Dep't Super. Ct. April 28, 1972)

Under California's legislation patterned on NEPA (Public Resources Code § 21000 et seq.) the City and County of San Francisco does not have to file an environmental impact report on the Yerba Buena Center.

Counsel for Plaintiff
Eugene A. Brodsky
Jarvis, Miller & Brodsky
123 Second Street
San Francisco, California 94105

Counsel for Defendants
Evelle J. Younger Attorney General
Louise H. Renne Deputy Attorney General
State Building
San Francisco 94102

[2 ELR 20658]

Brown, J.

Plaintiff's application for a preliminary injunction, heretofore submitted, is denied.

The first sentence of Public Resources Code § 21151 is applicable to cities and counties and provides that cities and counties "which have an officially adopted conservation element of a general plan shall make a finding that any project they intend to carry out, which may have a significant effect on the environment, is in accord with the conservation element of the general plan." The record is clear that San Francisco has not officially adopted a general plan with a conservation element. Until the Legislature amended Cov. Code § 65700 in 1971 (effective March 4, 1972) charter cities were under no statutory compulsion to adopt such a plan.

In this Court's view, the second sentence of Public Resources Code § 21151 is not applicable to cities and counties, but rather to "other local governmental agencies." Therefore, there is no requirement in the statute that San Francisco make "an [2 ELR 20659] environmental impact report" with respect to the Yerba Buena Center.

In this Court's view the amendments to Gov. Code § 65302 and § 65700 in 1971 effectively closed any gaps which may have existed under Public Resources Code § 21100 et seq. as originally enacted.