Those readers with a particular interest in CEQA may remember our previous updates on the inefficient CEQA appeal process currently in place in San Francisco. CEQA – the state law mandating environmental review of projects requiring discretionary approval – requires that all environmental determinations (exemptions, negative declarations, EIRs) must be appealable to the Board of Supervisors. Currently, city code is written so that there are no time limits for appeals of exemption determinations or negative declarations. This has led some project opponents’ to abuse of this loophole, whereby they use a CEQA appeal simply as a way to continue to oppose a project (even if there are no valid issues with the environmental determination).
The worst example of this abuse is when a categorically exempt project which requires no Planning Commission approval is taken to the Planning Commission on Discretionary Review. After being approved by the Planning Commission, the project sponsor can spend months preparing detailed architectural and building plans. Once the permit is issued, an appeal can be filed at the Board of Appeals. Even if the Board upholds the permit, the project can still have its exemption determination appealed to the Board of Supervisors and overturned – potentially over a year after obtaining Planning Commission approval.
Legislation introduced last week by Supervisor Scott Wiener would fix the current situation, by simply enacting appeal periods for negative declarations and exemption determinations. To appeal a negative declaration to the Board of Supervisors, the document must have already been appealed to the Planning Commission, and the Board appeal must be filed within 20 days after adoption by the Planning Commission. To appeal an exemption determination, the appeal must be filed within 20 days of the granting of the first entitlement (such as a conditional use). This appeal period would be shortened if the appeal period for the underlying entitlement is shorter than 20 days (such as approval of a permit that does not require Planning Commission approval, which is 15 days). Importantly, the appeal period begins after the first entitlement – if a complex project requires more than one entitlement, the appeal period begins once the first entitlement is granted. We do believe that the term “entitlement” should be more clearly defined to include any Planning Commission action, including a hearing before the Commission on Discretionary Review.
CEQA is intended to provide decision-makers with information regarding environmental effects caused by a project up front – so that they can make an informed decision weighing the benefits of the project versus any potential impacts it would cause. As currently implemented in San Francisco, a CEQA exemption determination or negative declaration could be called into question at the very last moment of project approval – after months or years of approval and appeals hearings on the merits of a project. By simply applying appeal periods to all CEQA documents, Supervisor Wiener’s legislation would make the process fairer, since project sponsors wouldn’t be at risk of getting a CEQA determination appealed and overturned months or years after it has first been relied upon. It also better fulfills the intent of CEQA, which is to provide decision-makers with accurate environmental information up front. It is wasted time and energy to continue through the many steps of the entitlement process if the initial environmental review is inadequate.
We commend Supervisor Wiener for taking on this common-sense reform of an important issue. This is not the first attempt at this simple reform – an earlier effort by former Supervisor Alioto-Pier died at the end of the last Board of Supervisor’s session in 2011. With the current pragmatic, get-things-done Board, this legislation should be a no-brainer.
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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