Posted by Brett Gladstone, Esq. on Friday, February 3, 2017
CEQA Law Change
On Tuesday, July 23, 2013, the San Francisco Board of Supervisors unanimously adopted legislation (at its second and final reading) that makes significant changes to City law related to environmental decisions. At the core of the new law is a deadline for filing appeals. The new law also creates an electronic notification system as well as expands the environmental review notice requirements.
Under State law known as the California Environmental Quality Act ("CEQA"), the City is required to determine whether a project could have a significant impact on the environment. Depending on a project's potential impacts, the City may decide the project is exempt from environmental review, which often means a "categorical exemption" from review ("Exemption") or require more extensive review as part of a Negative Declaration or Environmental Impact Report ("EIR"). The City's environmental review may be appealed to the Board of Supervisors.
Unlike almost all California cities, the City had never adopted a clear process for appeals of an Exemption or a Negative Declaration as it had for an EIR. Instead, once an appeal was filed, the City Attorney would decide whether the appeal was timely, on a case-by-case basis. Typically, an appeal was considered timely if it was filed before the last approval for a project became final, which is considered the issuance of the building permit.
Without rules, there was no clear deadline for when a party could make an environmental appeal to stop a project. This has allowed for Exemptions and Negative Declarations to be appealed after a project receives an approval from the Planning Department, an approval which itself may have taken several years to obtain. For example, the Planning Commission and Board of Supervisors and the Zoning Administrator may have ruled favorably on a project, which led the property owner/developer to prepare very expensive construction documentation, and the project sponsor may have raised funds to build and obtain a loan commitment, only to find a last minute appeal just before construction is to
Over the last ten years, three former Supervisors have introduced legislation to change this unfair process so as to subject environmental review appeals to clear deadlines that have always been present for all other land use approvals in the City. None of these efforts, until now, have received an approval by the Board of Supervisors.
Nine months ago, Supervisor Scott Wiener bravely tried again. Supervisor Wiener introduced legislation that at its core had set two main goals. First, the legislation creates a codified deadline for filing an appeal of an Exemption or a Negative Declaration at the point which is 30 days after the project receives its first approval. Second, the legislation improves public notice of environmental decisions so that the public would know when to file an appeal.
Supervisor Wiener's legislation met great opposition, including concerns that a project amended after its first approval would not give the public notice of the amendments and a chance to appeal aspects of the amendments.
Supervisor Jane Kim then introduced competing legislation that provided more protections for appellants, including expanded notice procedures and a hold on a project's review until after the CEQA appeal is settled. In response, dozens of amendments were made, including many offered by Supervisor David Chiu as compromises.
Supervisor Wiener's legislation eventually garnered the support from the Planning Commission, Historic
Preservation Commission, Walk San Francisco, the Bicycle Coalition, SPUR, and many other organizations.
After 11 hearings, three round table meetings, and months of debates, the Board of Supervisors
unanimously passed Supervisor Wiener's legislation at its first reading in mid-July. The amendments
primarily focused on enhancing the public notice procedure and addressing situations in which a project is revised after the environmental decision was issued. The amendments allow the City to decide whether a project has been modified to such an extent that it exceeds its original scope and would require additional environmental review. If so, a new environmental decision must be issued and a new public notice would occur, making this new decision subject to appeal. Despite these amendments, the core of Supervisor Wiener's legislation remained.
The Ordinance will not go into operation any earlier than September 1, 2013 and may go into operation
later if it takes beyond September 1, 2013 for the Planning Department to update its website to provide
information to the public about environmental exemption decisions in a way that can be easily searched.
The Board of Supervisors also passed at its first reading certain trailing legislation that allows a person to appeal a Planning Department staff determination that a modification to a project does not require a new environmental decision. Such appeal would be heard by an Environmental Review Officer. We will report on the details of this trailing legislation once it receives a final vote at the Board of Supervisors.
Brett Gladstone, Esq. Brett focuses on land use and real estate, and condominium subdivision law at Hanson Bridgett. Additionally, Brett represents investors and developers in land-use proceedings and CEQA compliance with respect to residential and mixed use development throughout the Bay Area.