Ten years ago, the state legislature passed a law making all CEQA decisions by local government agencies appealable to an elected body. In San Francisco that body is the Board of Supervisors. Prior to this state law change, only an environmental impact report (“EIR”) could be appealed to the Board of Supervisors. Negative Declarations could be appealed to the Planning Commission and categorical exemptions could not be appealed at all. The change meant that even small projects – a minor addition to a house, a wireless antenna, a restaurant taking over a retail space – could be appealed.
Although state law created appeal rights, it did not establish any procedures for exercising them. Over the last ten years, there have been several failed attempts to put basic standards in place for CEQA appeals, including time limits for filing appeals of Negative Declarations and exemptions. (EIR appeals, and time limits for them, have been in place for some time.) As a result, most Negative Declarations and exemptions can be appealed at any time until final building permits are issued. According to the Planning Department’s figures for the last few years, appeals of exemptions were filed, on average, 208 days after the CEQA document was issued. Furthermore, nearly a quarter were rejected for being filed too early or too late. In contrast, the time-limited appeals for EIRs were filed, on average, 48 days from EIR publication; none were rejected for timeliness issues.
The upshot to the lack of clear rules is that everyone loses. Many projects are at risk long after Planning Commission approval, in some cases right up until construction starts. Savvy opponents can–and do–abuse the late appeal to leverage a financial settlement. At the same time, opponents with legitimate motives and no CEQA knowledge can be denied a hearing altogether.
Last November, Supervisor Scott Wiener introduced legislation (the “Wiener Legislation”) to fix this broken system by expanding notice requirements for CEQA decisions and establishing clear time limits for appeals that would run from the first project approval. In March, Supervisor Jane Kim introduced competing legislation (the “Kim Legislation”) that would allow multiple appeals for many projects and push appeals to the very end of the process. Since then, the Kim and Wiener Legislation have been amended several times, with Board President David Chiu actively pushing for a consensus proposal.
This Monday’s Land Use Committee hearing marked the eleventh public hearing on the Wiener Legislation, and the eighth for the Kim Legislation. While the proposals are not as far apart as they once were, important differences remain. The following is a brief comparison of each, as well as amendments to the Wiener Legislation proposed by Supervisor Chiu:
- Appeal Deadlines. Both pieces of legislation would set a 30-day time limit on most appeals of a CEQA document, and the appeal periods for EIRs and Negative Declarations would generally start at the same time. However, there are important differences in the treatment of appeals for exempt projects – including most small projects and many larger ones that qualify for a community plan exemption.
The Wiener Legislation calls for the 30-day clock to start ticking early. The appeal period would start on the day of the “First Approval Action.” To simplify, the First Approval Action is generally the first commission approval of a project in reliance on the environmental document. Where there is no hearing, the appeal period will typically start when a building permit is issued. Under the Kim Legislation, the appeal period on an exemption would run from the “Final Discretionary Approval.” For most projects, the final discretionary approval would be a building permit or a subdivision map. This means that some projects could be at risk for an appeal – even after construction starts.
- Notice of Environmental Decisions. There seems to be a consensus that notice of environmental decisions and appeal rights are needed, particularly if time limits on appeals are established. New notice rules are primarily aimed at exempt projects. (EIRs and Negative Declarations are extensively noticed already.)
In general, the new notice requirements in the Wiener Legislation are aligned with the permit process to avoid delays in project approvals. On the other hand, the Kim Legislation proposes new notices that would prevent over-the-counter approvals for many types of permits. For example, notices would be required for any alteration to a building 50 years or older that “changes the roof, adds a garage, or modifies the front façade except for replacement in kind, or expands the occupied square footage.” Since buildings more than 50 years old are about 85 percent of San Francisco’s building stock, this new notice requirement could be quite far reaching and delay many small projects.
- Project Modifications. A third major difference is the treatment of changes to projects after an exemption has been issued. The Wiener Legislation is consistent with existing practice, which gives the Planning Department discretion to determine that the change is not substantial and does not require a new exemption. Supervisor Kim takes a markedly different approach. Literally interpreted, her legislation requires a new exemption, with its own appeal process, wherever the “Planning Department is presented with a change in the scope of a project…or…with new information regarding the environmental impacts.” This would give project opponents a potent weapon to reopen environmental review whenever there is a minor change to a project, or by submitting a letter purportedly identifying new impacts.
The Kim Legislation is co-sponsored by a total of five supervisors (Kim, Campos, Avalos, Mar, Yee) and needs only one more vote for passage. Supervisor Chiu – whose vote is key to passage of either proposal – has offered a number of amendments to the Wiener Legislation. These would would keep the core benefits of clear time limits in place, but would augment certain notice requirements and appeal hearing procedures to address concerns raised by supporters of the Kim Legislation. As well, Supervisor Chiu is likely to support some version of “trailing legislation” by Supervisor Kim that would better define when changes to an exempt project require additional environmental review, and setting up an appellate process when the Planning Department determines that further review is unnecessary.
The full Board of Supervisors is expected to consider both the Wiener Legislation and Kim Legislation within the next two weeks.
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.
