An amendment to the California Environmental Quality Act (“CEQA”), effective January 1, 2003, adds yet another level of administrative appeals to an already daunting entitlement process. Under the new CEQA statute1, all CEQA determinations arenow appealable to the San Francisco Board of Supervisors. This new law is likely to make it even more time consuming and expensive to get projects, including badly needed infill housing projects, approved in San Francisco.
CEQA, which was passed in 1970, requires any project to undergo environmental review before being approved. One of the key principles of CEQA is that decisionmakers (county supervisors, planning commissioners, and city council members, for example) and the public should be provided with accurate, unbiased information about the effect a proposal will have on the physical environment before they decide to grant a permit or approval. Informed decisionmakers make better decisions—and so projects must be reviewed and analyzed, and reports must be prepared for public review. A significant portion of CEQA itself is devoted to determining how much investigation must be done and what type of document must be prepared for each type of project.
In San Francisco, CEQA is implemented by the Planning Department. Unless a project is exempt, the Department prepares an initial study. If the study reveals that a project could cause a “significant effect on the environment,” a document called an environmental impact report (“EIR”) must be prepared. If there is no evidence that there will be a significant effect on the environment, an EIR is not required and a document called a “negative declaration” is issued. By way of oversimplification, EIRs are usually reserved for large, complex projects: Pac Bell Park, large downtown office towers, the Cruise Ship Terminal, and Mission Bay, for example. Very small projects (a small addition to a house, a deck, a new single family home) are usually exempt from any review. For most projects in between, an initial study is done, and unless something unusual is discovered during that investigation, a negative declaration is prepared. The distinction between an EIR and a negative declaration is more than just academic. EIRs are lengthy, complex, and expensive documents that take a significant amount of time to prepare. Large projects can bear this additional burden; smaller projects most often cannot.
CEQA documents (EIRs and negative declarations) were intended to be informational tools. Regrettably, over the years CEQA has become another land use battleground. Project opponents routinely challenge the validity of CEQA documents as part of overall project opposition. Under longstanding state and local CEQA law, an EIR has always been appealable to an “elected body.” In San Francisco, this means the Board of Supervisors. Because generally only very large projects require an EIR, few have been appealed to the Board. A project’s negative declaration could be appealed to the Planning Commission, but the Commission’s decision was final (i.e., there was no further appeal to the Board). The decision that a project was exempt from CEQA was not appealable at all. Keep in mind that each of these projects (even exempt projects) require other permits and entitlements that are already appealable (either to the Planning Commission, the Board of Appeals or, in some cases, even the Board of Supervisors). There has always been a forum, and in many cases more than one, where the public can voice their concerns about a specific project. While CEQA challenges have become a routine part of entitlement processing in San Francisco, recent actions in Sacramento have added yet another potential hoop for developers to jump through.
Under the new CEQA law2, effective January 1, 2003, all CEQA determinations (EIRs, negative declarations, and even exemptions) are now appealable to the San Francisco Board of Supervisors. No CEQA decision that is made by either the Planning Department or Planning Commission is final. They are all subject to appeal to the Board of Supervisors. All of them. Keep in mind that in San Francisco, because all permits are discretionary, virtually every project requires a CEQA determination (even if it’s just a determination that your new deck is exempt from CEQA). That CEQA exemption for your deck can now be appealed to the Board of Supervisors, just like the EIR for the Cruise Ship Terminal.
Unfortunately, this new law also has the potential to bring the processing of midsize and small infill housing projects in the City to a standstill. Even though these types of projects typically require only a negative declaration, it can take up to a year or more to go through the entitlement process before you even get the building permit. Now these projects can be appealed to the Board of Supervisors as well. How much more review do these projects warrant? The Board of Supervisors needs to take a close look at how they will consider these new CEQA appeals that will be coming before them. For the sake of housing development in San Francisco, let’s hope the Board establishes clear thresholds that discourage frivolous appeals and give housing builders some certainty about the process.
1Public Resources Code Section 21151(c).