CEQA Appeal Reform Introduced at Board of Supervisors

Last week, Supervisor Michaela Alioto-Pier introduced a new ordinance that would limit the time period in which negative declarations and categorical exemptions could be appealed to the Board of Supervisors. This is an important opportunity to reform the city’s inefficient CEQA appeal process, which currently places unjustifiable costs on project sponsors and places unnecessary burdens on the Board of Supervisors.

The Way It Is Now

The California Environmental Quality Act provides that any environmental impact report or negative declaration approved by the Planning Commission or categorical exemption issued by the Planning Department must be appealable to an elected body. In San Francisco, that is the Board of Supervisors. However, San Francisco’s Municipal Code currently only limits the appeal period for EIRs – which must be appealed to the Board of Supervisors within 20 days after the Planning Commission has certified the document. Negative declarations and categorical exemptions, however, can be appealed at any time up until a proposed project has been approved and all appeals of the project have been extinguished. This has resulted in the following situations:

– A project entitlement is approved by the Planning Commission at the same time a negative declaration is adopted. A project opponent can appeal the entitlement approval to the Board of Supervisors or the Board of Appeals, a process which can take more than two months to complete. Before a final action on the entitlement appeal, the opponent can then appeal the negative declaration, which can take several more months to resolve.

– A categorically exempt project that otherwise requires no Planning Commission approval is taken to the Planning Commission on Discretionary Review. After being approved by the Planning Commission, the project sponsor spends several months to over a year preparing detailed architectural and building plans. Finally, the Department of Building Inspection issues a building permit. A project opponent can then file a second appeal of the building permit to the Board of Appeals within 15 days. Even if the Board of Appeals upholds the building permit, the project sponsor is still at risk of having the categorical exemption for the project being appealed and overturned – possibly over a year after obtaining Planning Commission approval at a discretionary review hearing.

One problem with the current situation is that it undermines one of the primary purposes of CEQA – to provide public officials with an adequate environmental review document for a project as early as possible in the entitlement process in order to inform their decision. In the second scenario above, the categorical exemption appeal is heard by the Board of Supervisors after all project approvals and appeals have occurred. At that point, it has very little usefulness in informing city officials’ decision on a project.

Another problem is that the current situation is fundamentally unfair. It provides project opponents with more than one bite at the apple to stop a project. Any problems with an environmental document should be raised within a reasonable period of time after it is approved or issued. Allowing an entirely new appeal process to begin after one appeal process on the same project has completed is an inefficient use of the Board of Supervisors’ time and exacts an unfair costs on all project sponsors – from developers to single-family homeowners.

The Reform Proposal

The proposed ordinance would set a 20-day appeal period for negative declarations and categorical exemptions. This would ensure that any potential appeals of these environmental documents would occur within a reasonable, and limited, period. For negative declarations, the appeal period would start when the Planning Commission approved the document. For categorical exemptions on projects that require Planning Commission or Zoning Administrator approval, the appeal period would start when the Planning Commission or Zoning Administrator approved the project or requested variance. For categorical exemptions that do not require Planning Commission or Zoning Administrator approval, the appeal period would start when a permit for the project is issued (or when the Planning Commission takes action on a project through the discretionary review process).

Just these changes would solve the issues in the above scenarios by forcing project opponents to file a timely appeal of an environmental document before an appeal of a project approval has run its course.

The ordinance would also prohibit appellants from maintaining an appeal on behalf of other individuals or entities without express written consent. This would avoid individual appellants taking advantage of an appeal fee waiver meant only for neighborhood organizations. The ordinance would also make the statute of limitations of a judicial appeal start at the date of project approval, not the Board of Supervisors’ later disapproval of the appeal.

Further Recommendations

While we believe the proposed CEQA Appeal Reform is a tremendous step in the right direction, it could be even better. The ordinance should make clear that the 20 day appeal limitation also applies to community plan exemptions. Second, the legislation should clarify when the CEQA Notice of Determination (NOD) and Notice of Exemption (NOE) should be filed by the City. The filing of the NOE and NOD start the running of statutes of limitations for CEQA challenges in court. There is considerable confusion surrounding this issue on many projects, as a result of the often overlapping appeal periods and timelines. This seems like the right time to fix this problem as well.

CEQA Appeal Reform is another opportunity, similar to Discretionary Review Reform, to significantly improve the entitlement process in San Francisco. Interested parties should make their voices heard at future public hearings in support of the ordinance.

The ordinance will likely be heard first by the Planning Commission, then by the Board of Supervisors Land Use and Economic Development Committee before going to the full Board. Please contact us if you would like a copy of the ordinance.

Reuben & Junius, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

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