This Week: Is More Process Really An Improvement?  Planning’s New PPA System

On February 1st, the Planning Department started to require a Preliminary Project Assessment (“PPA”) for most new development in the City. Over the next two weeks, we’ll consider the pros and cons of this new process, which is part of the Planning Department’s efforts to improve efficiency and promote more timely and consistent review of projects. This week, we’ll describe the PPA and air concerns about its effects on the entitlement process.

What is the PPA?

The PPA is a formal process for receiving written feedback on a project. A PPA is mandatory for any new project creating six or more dwelling units, or constructing a new building or addition of 10,000 square feet or more. It must be completed before filing any environmental review or entitlement applications. Here’s how it works:

  • Application – The PPA is initiated by filing a PPA application at the Planning Information Counter. The application materials are extensive; more or less all the materials included in an environmental evaluation are required for the PPA. These include plans, site plans, and construction cost estimates, among others. The application fee of $4,427 that is credited toward future environmental review and/or entitlement fees.
  • Review – Once the application is submitted, it is routed to Major Environmental Analysis, Neighborhood Planning, and Citywide Policy Planning for review and comment. During this time, a project sponsor may request a 30-minute meeting with assigned planners to present and explain the proposal.
  • PPA Letter – Within 60 days of receiving a PPA application, the Planning Department will issue a PPA letter. The PPA letter is intended to be a procedural roadmap that will (a) identify the required level of environmental review and technical studies needed to complete it; (b) advise the applicant of the approvals and applications required; and (c) offer coordinated feedback from all Planning Department divisions regarding environmental, design and policy issues. PPA letters will be posted on the Planning Department’s website, and Project sponsors can schedule a project review meeting with planners once the PPA is issued. The PPA letter is valid for 18 months.

You Mean I Need a Permit to File An Application?

In a word, yes. The PPA is a permission slip to file applications. Though it is hard to find fault with the goals of the PPA – to bring greater consistency and efficiency to the City’s notoriously convoluted and unpredictable development review regime – it is easy to wonder if yet another process is the right way to achieve them. Process has a way of taking on a life of its own in San Francisco’s hyper-political land use arena. Pressure for public input and notice is ubiquitous. San Francisco’s numerous and committed opponents of development will undoubtedly want their voices heard in the PPA process. Although PPA letters are not supposed to be subject to appeal, sophisticated opponents may nonetheless petition the Board of Appeals to take jurisdiction over them. Jurisdiction requests could trigger public hearings on a project-before applications are even submitted.

A PPA letter is supposed to be issued within 60 days of application submittal, but there is no clear remedy if the Planning Department fails to respond within the time limit. Can applications be submitted if the time limit has elapsed without response or will applications be refused?

This is a key concern, since statutory time limits for reviewing applications are routinely exceeded. In the recent past, just getting an application assigned to a planner has taken longer than it should to complete the entire environmental review process. CEQA requires applications to be reviewed for completeness within 30 days of submittal. The City then has 30 days from application completion to determine whether a project is exempt from environmental review, 180 days to prepare a negative declaration, or a year to certify an EIR. Though improved management by the Planning Department and a down economy have improved review times, compliance with statutory deadlines remains the exception, not the rule.

In a sense, the PPA institutionalizes non-compliance with CEQA time limits. Though the PPA application is equivalent to an environmental application, the only thing a project sponsor comes away with is a procedural roadmap and preliminary commentary from the Planning Department. Getting this preliminary feedback and permission to file applications will take up to 60 days, about the same amount of time as it should to complete CEQA review for many small and mid-sized projects. This kind of feedback is already available quickly and more affordably through project review meetings.

Though the PPA is supposed to be “valid” for 18 months, it will not necessarily provide greater certainty about outcomes or binding design feedback, nor will it protect project sponsors from subsequent changes in law or policy. If a PPA letter gives erroneous information about legal requirements for approval, the law will supersede the contents of the PPA. In other words, the burden of errors or omissions will fall on the project sponsor. As it does now, the Planning Department will continue to reassess its position on projects based on new information presented in environmental studies, opposition from neighbors, or as the Planning Commission and Historic Preservation provide policy guidance, either formally or informally.

For many projects, there will be too many unknowns for PPA letters to provide meaningful guidance. For example, the historic status of existing buildings is often the linchpin for determining both the level of environmental review and the design the Planning Department will support. Unless a building has been previously surveyed (most have not), determining historic status requires a project sponsor to submit a detailed report by a preservation architect. The Planning Department then reviews the report and decides if a building is historic. In these cases, a PPA letter will tell project sponsors that a historic report is required, something most know already. It will not, however, be able to provide meaningful guidance about the level of CEQA review until the report is completed and evaluated as part of the environmental review process. Is this feedback really worth a 60-day wait?

We Don’t Need More Process For Planning To Give Clear Direction

The lack of coordinated internal review of projects by the Planning Department is the problem the PPA is supposed to address. But a discrete new application and a 60-day hold on applications are not a solution. They create the potential for delays and will not be formally binding on the Planning Department. Rather than creating a new hurdle for sponsors, the problem can be solved by improving internal procedures, a focus on complying with statutory deadlines, and efforts to control the explosive growth in CEQA paperwork. This was the approach recommended in a 2008 management audit of the Planning Department.

Internal coordination should happen automatically whenever projects are brought to the Planning Department. Within 30-days of filing an application, the Planning Department should (a) review applications for completeness and (b) provide a comprehensive schedule for completing environmental review and entitlements within statutory time limits; and (c) provide a coordinated response from all Planning Department divisions with high-level design and policy feedback and all other applications and approvals required.

This would give project sponsors all the benefits of the PPA without creating new opportunities for delay. While unforeseen circumstances or untimely responses by project sponsors may result in delays, the time limits for completing CEQA review are attainable for even complex projects. After many years in which multi-year reviews have become the norm, all participants need a reminder that timely performance is required by CEQA. They also need real tools to achieve it. The PPA, unfortunately, appears to be neither.

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, 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.

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