CEQA circus swirls to a close

Citizens appealing City decisions about any large building project now have a clear set of rules for filing the paperwork, thanks to a unanimous vote by the San Francisco Board of Supervisors.

Appearing to have finally succeeded where several previous boards failed, on Tuesday the board put in place the final piece of the puzzle for resolving legislation — first proposed by Supervisor Scott Wiener last November — to create a clear process for handling appeals of decisions made under the California Environmental Quality Act.

This last BOS action inserted Supervisor Jane Kim and Board President David Chiu’s amendments into Wiener’s proposed ordinance for a compromise solution that gave everybody something — but everything to nobody.

Kim said:

“This allows members of the public to actually appeal to the (Environmental Review Officer) in a public hearing and present any information that the ERO may or may not have in a public setting. So this was the last piece of a very delicately balanced set of legislation reforms to the CEQA process … and is one that is keeping the entire coalition together.”

An extremely complicated 2008 memo from the SF City Attorney’s office had been serving as a guide to the appeals process up until now.

Chiu has previously noted:

“This memo has led to 23 percent of these types of appeals not being filed on time.”

The initial legislation proposed by Wiener would limit the window for filing an appeal to any decision based on CEQA to 30 days after a project is first approved.

Critics noted this makes it possible for a project to be changed dramatically after its first approval.

Kim initially sought to move that window to the final approval, while Chiu sought a middle ground between the two with 13 amendments of his own.

Some were very similar to Kim’s ideas, like stipulating that significant modifications to a project after its first approval might trigger a new environmental review and thus allow for the possibility of another appeal to be filed.

Wiener said Kim’s original legislation meant an appeal could happen for any modification:

“I thought (Kim’s legislation would) make our process even worse than it is today in terms of allowing multiple appeals (even for) small aspects of a project.”

But now her compromise legislation — leaving further appeals to the ERO’s discretion after the first-approval appeal period has expired — created the loophole Wiener needed to give his consent:

“This appeal to the ERO will not stop the project from proceeding. … It won’t stop construction. … It will not slow down projects that have been approved.”

Chiu said:

“This legislation also crafts a compromise on how to handle approvals after an appeal. … Under my amendments, the approvals can go forward until our clerk actually schedules an appeal hearing, which essentially gives a thirty-day window for approvals to continue.”

Kim said she agreed with Wiener that a clear procedure was necessary:

“It is important to the integrity of our planning process that we institute a process that is both clear and more transparent. …  After all, we are planning for people, people that live in our neighborhoods, in a city where people care about how development happens.”

Supervisor David Campos said he was glad to “see the Board of Supervisors singing Kumbaya” on any issue. He also noted what he considered to be a “major victory,” specifically, the rejection of handing over CEQA appeal decisions to a subcommittee of three instead of the full board, as Wiener’s initial legislation sought to impose:

“We have before us legislation that protects the authority of this Board of Supervisors to hear those EIR appeals. … My experience in the last four-and-half years on the Board of Supervisors is that the authority and the ability of his board to hear these appeals is critical to making sure that we have projects that ultimately are right for this city.”

Fernando Marti of the Council of Community Housing Organizations said one of their concerns was over who determines what a substantial change is and how does the public know about it in order to have an influence:

“It might not have a great amount of teeth to it, in the sense that it’s still the ERO who has the ultimate say in that case, but it is a process that can bring things to light. … Once that happens then the City bureaucracy has to respond to that one way or another. So that sort of transparency is always important.”

Marti said as affordable housing developers, his organization has had threats of people appealing those projects, neighbors who don’t like an affordable housing development in their neighborhood, but generally his organization has been able to work with them to address those concerns:

“In fact it’s the up-front length of environmental review and uncertainty in figuring out what the direction is that’s been more problematic.”

He echoed Campos’ emphasis on keeping appeal decisions with the full board instead of a subcommittee:

 “In these kinds of things where there is a developer who has a lot of ‘juice’ in some ways, and where it’s very important for the city as a whole to have a successful outcome … being able to have that conversation with a very broad set of stakeholders … who can represent multiple points of view on the topic is very important. So to have it heard only at the Land Use Committee, where there are generally three voices, is very different from having it heard at the Board of Supervisors. … We think it creates a much more democratic avenue for discussions on the myriad impacts that those large developments have.”