This week, the Board of Supervisors finally approved a compromise ordinance revising and clarifying the City’s procedures for California Environmental Quality Act (“CEQA”) appeals. The legislation places firm deadlines on CEQA appeals and expands public access to CEQA determinations through an online subscription service. A piece of trailing legislation proposes giving the public the right to appeal an Environmental Review Officer’s determination that a modified project is exempt from CEQA.
Firm Limits on Appeals
The legislation goes a long way toward addressing long-standing concerns in the development community about the uncertain appeal deadlines: in some circumstances a negative declaration or exemption could be appealed almost up until the start of construction. On the other hand, Environmental Impact Reports (“EIR”) have long been subject to a definite, 30-day appeal period that starts running as soon as the Planning Commission certifies an EIR.
Under the new rules, negative declarations and exemptions will also have 30-day appeal periods that run from the first “Approval Action” on a project. An “Approval Action” occurs at the sooner of the following two situations: (1) when the first city agency approves the project in reliance on the CEQA determination after a public hearing, or (2) if there is no public hearing, when a city agency issues a building permit or an entitlement for the project. Notably, approval at a discretionary review hearing is considered an “Approval Action,” a silver lining for projects which find themselves undergoing discretionary review.
For projects that go before Commissions for approval, the changes are a benefit. They ensure that CEQA appeals are resolved early in the process, meaning that money spent preparing construction drawings and processing building permits will no longer be at-risk if there is a late filed environmental appeal. For projects that don’t require a public hearing, the appeals deadline will not run until the first building permit is issued. This still allows relatively late appeals, but is nonetheless a marginal improvement over the current situation where even incidental permits for tree removal or street space occupancy can result in CEQA appeals.
Public Notice Requirements
The legislation also enhances both optional and mandatory notice requirements. In particular, actions associated with projects which received exemptions or negative declarations must be made available to the public.
Of note, the Planning Department is tasked with establishing a web-based system for public notice. The system will provide automatic notices to individuals or organizations that sign up as subscribers. Subscribers have the option of receiving notifications for all CEQA-related determinations made by the city, or for certain types of determinations. The menu includes: (1) specific projects, (2) specific neighborhoods, (3) historic districts, (4) exemption determinations, (5) negative declarations, and (6) full EIRs.
Additionally, the legislation imposes a number of public notice requirements for exempt projects and projects which received negative declarations. Public notice will be required for the following actions: (1) exemption determinations, (2) approval actions for exempt projects, (3) notices of exemption, (4) modifications of exempt projects, (5) negative declarations, and (6) mitigated negative declarations.
The combination of an expanded scope of actions requiring public and the web-based electronic notification system means that interested parties will have immediate and easy access to far more CEQA-related actions than before this legislation was passed. On the one hand, this may be a welcome development in responding to project opponents who complain they were unaware of a project’s environmental review status. On the other hand, it provides enterprising anti-development types with a tool to track the entirety of the city’s CEQA-related actions at the click of a button.
Coda: Changed Projects and Appeals to the Environmental Review Officer
One final aspect of the compromise the Board of Supervisors reached in passing CEQA reform was to consider a piece of trailing legislation. As currently written, the trailing legislation provides for a process to appeal a determination by the Environmental Review Officer (“ERO”) that a change to an exempt project is not a “substantial modification” requiring a new CEQA decision. Members of the public would be able to present new information to the ERO at a public hearing. However, project approvals and construction related to the changes in the project would be able to proceed during the appeal process.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, 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 leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.