Making CEQA work

Appeals are great when it comes to public projects -- but there's got to be some limits

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OPINION In San Francisco, a single person can file an 11th-hour appeal under the California Environmental Quality Act to stop a park, library, transit, or affordable housing project that has broad public support. It's actually worse: that single person can file the appeal long after the project has been approved and even after it goes into construction. When the appeal is filed, the project must stop construction — creating huge costs — until the Board of Supervisors gets around to ruling on the appeal.

This is government dysfunction at its worst, and it needs to be reformed. Supervisor Scott Wiener is sponsoring legislation to do just that: to allow full public participation and challenges to projects while implementing the common-sense rule that for any project, there must be an end to the process and a clear deadline for filing CEQA appeals. Public participation in decision-making is important, but at some point, the decision is made, the process comes to a conclusion, and the project begins. Open-ended CEQA appeals with no deadlines — San Francisco's current system — are anti-democratic.

Passed 40 years ago, CEQA is an important state law that requires environmental analysis before approving projects. CEQA has helped stop or modify environmentally problematic projects in our state. Pretty much every project in San Francisco — whether a mega-development or a smaller project, such as a homeowner replacing a rotted-out porch handrail, a playground or library renovation, an affordable housing project, or a bike or pedestrian-safety upgrade — must undergo CEQA evaluation. These myriad CEQA evaluations are then appealable to the Board of Supervisors. Yes, if you are replacing that rotted out handrail or working with your neighbors to renovate your local playground, those projects can be appealed to the Board of Supervisors under CEQA if a single person doesn't like what you're doing.

We support CEQA and support the right to appeal projects. What we cannot support is having no firm deadline to file those appeals. We've seen excellent projects, with broad public support, get delayed and have dramatically increased costs because of our bad process. A small group abused CEQA to fight the North Beach Library for years. After the Dolores Park renovation underwent dozens of community meetings and attained broad community support, a single person appealed the project, arguing that the dog areas of the park would lead to childhood obesity. San Francisco's bike plan was delayed for years, costing millions of tax dollars.

By setting a clear deadline to file CEQA appeals — 30 days after the project is approved — and by improving notice to the public, Supervisor Wiener's legislation will provide opponents every opportunity to challenge a project, but they will have to do so before the project goes into construction. That is a common sense rule, and as a result, the legislation has garnered broad support from affordable housing builders, the San Francisco Bicycle Coalition, Walk SF (our pedestrian safety advocacy group), SPUR, labor unions, and neighborhood associations and leaders.

Supervisor Jane Kim has introduced an alternative to Supervisor Wiener's legislation. Supervisor Kim's legislation would make our dysfunctional process even worse. It would allow for multiple CEQA appeals of projects instead of just one and would continue to allow CEQA appeals long after projects are approved and even after they go into construction.

It's time to bring rationality to our CEQA appeal process. Supervisor Wiener's CEQA appeal legislation is the right approach and deserves to be passed.

Scott Wiener is a member of the San Francisco Board of Supervisors. Pat Scott is Executive Director of Booker T. Washington Community Service Center in the Western Addition, which provides services and affordable housing to families and youth.

 

Comments

The California Environmental Quality Act (CEQA) is the most important bedrock environmental protection in California law. And in our urban setting, it is the primary tool that San Franciscans have, to prevent out-of-control Wall Street developers and real estate speculators from destroying our beautiful city.

What does this crucial law do? The answer is very simple. CEQA requires developers, corporations, governments and individuals who are making changes to, or will be releasing pollutants from, their property, to publicly report all of the potential negative impacts of their activities on the environment and to their neighbors; and to then detail in their project plans how they will diminish, and where possible eliminate, those negative impacts.

If your neighbor, business, local government or a developer is engaging a new activity next to your home, neighborhood, or work place, don't you have the right to be informed about how such activity is going to affect you? The answer of course, is Yes. (To get a sense of how CEQA has succeeded in protecting the environment and our communities in California go to: http://ceqaworks.org/ceqa-successes/ )

Wiener's Legislation Strips Away Our CEQA Rights

Supervisor Wiener's proposed amendments to supposedly 'reform' CEQA will drastically shorten windows of time in which the public is informed of, and can appeal, a poorly drafted CEQA information document which doesn't properly inform or protect the community, and Wiener's measure would also eliminate the right of such appellants to present their case in a full legal hearing before the entire San Francisco Board of Supervisors in order to correct a CEQA process that has gone bad.

It is notable that the city approves thousands of projects every year, and only about 5 of those approvals per year are challenged by the public under CEQA. One would think from reading the editorial above that thousands of projects a year are harmed by the CEQA process. In reality, every once in a blue moon, a project indeed winds up being an unfair hassle for the city, a homeowner, or a developer because it is challenged under CEQA. And while it is true that we need to do our best to end such rare problem appeals of projects, we should not do so by drastically weakening our most important environmental law. Supervisor Wiener's legislation is the equivalent of driving a picture frame nail with a sledge hammer.

And contrary to blatantly false claims of the editorial above, Jane Kim's alternative CEQA legislation (which was drafted with extensive community input) does everything possible to protect against outcomes like those listed in the editorial, but without giving large corporations and developers a free pass to ram bad projects down San Franciscan's throats. One look at past donations to Supervisor Wiener's campaigns (donations which include large sums from organizations that promote real estate development and speculation) tells the story of what motivated Supervisor Wiener's sudden heartfelt concerns about CEQA.

Ms. Scott and Mr. Wiener have listed a small handful of supporters for his legislation.

Here is a list of organizations that have raised strong concerns about Mr. Wiener's legislation, and which have all come together to help Supervisor Jane Kim craft and put forward strong community based legislation that will improve CEQA for everyone, while making the law stronger (not weaker).

Sierra Club
Coalition For San Francisco Neighborhoods
Black Human Rights Leadership Council
Unite Here Local 2
SEIU Local 1021
San Francisco Beautiful
San Francisco Tomorrow
Haight Ashbury Neighborhood Council
D-5 Action
Potrero Boosters Neighborhood Association
San Francisco Preservation Consortium
SF Ocean Edge
San Francisco Architectural Heritage
San Francisco Green Party
Center For Biological Diversity
Wild Equity Institute
Arc Ecology
Parkmerced Action Coalition
Golden Gate Park Preservation Alliance
Take Back Our Parks
Greenaction For Health & Environmental Justice
Our City
Eastern Neighborhoods United Front
Gray Panthers of San Francisco
North Mission Neighbors
San Francisco Neighborhood Network
Sunset District Neighborhood Coalition
Aquatic Park Neighbors
Hunters Point Art Gallery
Cole Valley Improvement Association
Cathedral Hill Neighbors
West Of Twin Peaks Central Council
Middle Polk Neighborhood Association
Telegraph Hill Dwellers
Miraloma Park Neighbors
Castro/Eureka Valley Neighborhood Association

Posted by Eric Brooks on Apr. 16, 2013 @ 11:06 pm

In my opinion, there is an important element that is missing from the debate over CEQA and in particular how it affects appeal rights.

That issue is whether the public needs an alternate way of evaluating a project rather than relying on City Hall and its departments. There is reason to distrust the evaluations that come when major developers with cozy City Hall connections are involved. There is further reason to distrust follow-up changes when City officials determine no new evaluation is required -- and the examples are legion. The examples range from the AT&T sidewalk boxes planned to sit on street corners to the performances at America's Cup that suddenly became a 50-night extravaganza.

Wiener is comfortable with relying largely on City Hall staff and a vote by a city commission of hand picked mayoral supporters. To see how the regulators become captive to the regulated, one only has to see what the recent reports tell us about the California Public Utilities Commission and its relationship to the industries it regulates.

What is happening there is not unique to that one agency. CEQA empowers the public on decisions that affect them in their homes, their neighborhoods and the community.

Posted by CitiReport on Apr. 17, 2013 @ 7:52 am

The fact is that without the hammer of a CEQA appeal, staff will produce the kind of crap that would never hold up to scrutiny under the CEQA appeal process.

Even with the CEQA appeal process, environmental staff often gets bit in court for taking shortcuts on environmental impacts.

Without that hammer, it will be all carrots for developers and we'll get the shaft.

Posted by marcos on Apr. 17, 2013 @ 8:33 am

CEQA can still be appealed..just not forever.

Posted by Guest on Apr. 17, 2013 @ 10:26 am

Staff produces voluminous proposals that community people only have an abbreviated timeline to digest and appeal. They know that the odds are in their favor and the environmental quality of staff's product will suffer as a result. That's how bureaucracy functions.

Posted by marcos on Apr. 17, 2013 @ 12:48 pm

Hi 'guest' and all,

Jane Kim's legislation also ensures that CEQA appeals have reasonable time limits on them. However, Kim's measure accomplishes this without including Wiener's Wall Street developer penned laundry list of short cuts for greed driven profit-making at the expense of our community protections.

Posted by Eric Brooks on Apr. 17, 2013 @ 1:00 pm

I'm not surprised that Scott Wiener defends his version of the legislation by attacking his colleague Jane Kim's.

Kim's legislation came about because Wiener's 'outreach' and meetings with neighbors did not result in his adopting any substantive changes. This intransigence immediately caused people to wonder: "Why isn't he budging on substantive improvements to his legislation?" and led people to suspect that maybe Scott Wiener was serving a small portion of San Francisco stakeholders, AKA large developers.

Even though Wiener continually referred to "abuses" of the current CEQA appeals system, the evidence he proffered was that--out of more than 20,000 permits granted over a three-year period, ONLY 48 WERE APPEALED UNDER CEQA...and of those, only one was upheld. "Abuse"? Far from it.

Posted by NIMBY on Apr. 17, 2013 @ 8:39 am

Scott Wiener's legislation on CEQA "Reform" was carefully shaped by him to avoid allowing any substantive community involvement; it is a direct attack on participatory democracy both in the legislation and the process of formulating it. He tried to pass it months ago but was given the task by city commissioners to meet with members of community groups that had protested his proposed limiting of CEQA's important environmental protection for affected citizens. He tried hard to avoid many groups, set meetings, canceled them and met on the sly without them anyway. He paid only lip service to all of the many cogent, articulate and substantive issues raised by over 35 neighborhood, environmental and labor groups. Then he boasted about the 39 or so minor changes he made while stonewalling on every important issue. He expressed shock and anger that Supervisor Kim adopted the legislation so carefully crafted by all these groups (see Eric Brooks's comments above) when he had the opportunity to adopt some of them in the three roundtable discussions we had with him. He ignored them all so our legislation went forward and was adopted and shaped by Kim. Her legislation addresses the serious problems homeowners face with time and cost overruns by separating single permit cases from larger development cases. In addition, she preserves the important environmental and public participation protections that Wiener would like to eliminate. He would create so little notice of developments and so little time for the public to hear of them and file an appeal that it would be almost impossible to have a say in important development impacts affecting the lives of San Francisco citizens. In addition, large projects such as Parkmerced's demolition and replacement by 40 highrises and triple the density, could be foisted over on an unwitting public through sugar-coated first approvals, then when a 30 day limit for appeals by the public has gone by (nobody I know in Parkmerced would have heard of it in that time), the project could change drastically over years with no further opportunity for anyone affected to have a say in the matter. Decisions on many cases would not even allow for public comment in front of the full Board of Supervisors--simply a three-member committee, permitting a small conservative pro-development, profit-oriented committee with little or no true planning expertise to hear out citizens and recommend to the Board. Remember that Wiener has testified in public hearings that he did urban infill in his district with the Octavia Street Housing and that those of us in District 7 have to do it by approving the demolition of 1,538 beautiful garden courtyard apartments where working class families for generations have raised their children safely in historic courtyards designed by Thomas Church, the godfather of modern landscape design. He compares his urban infill, achieved without anyone losing their home due to the demolition of the elevated freeway, to the loss of between 6,000 and 7,000 men, women and children's homes. As Planning Committee member Kathrin Moore so aptly put it, urban infill does not comprise destroying one unit and putting two or three units inits place. Yet that is how Scott Wiener twists the truth to justify his political ambitions and his desire to railroad the dangerous plans of his developer supporters. He compares the loss of not one person's home to the loss of 6,000 or 7,000 people's homes, as well as the likely elimination of rent control for them. Most will be forced out of the city. This is the kind of thinking that made the smartest group of neighborhood representatives I have ever worked with step forward to stop him. We all should be grateful to them and to Supervisor Kim for creating alternative legislation that will protect the interests of small homeowners and the right of citizens to participate in shaping the environment they treasure. Support Kim's legislation!
Michael Russom

Posted by Guest Michael Russom on Apr. 17, 2013 @ 12:32 pm

Supervisor Wiener's op-ed with Pat Scott obscures what his legislation will really do. Instead of eliminating abuses of CEQA (and I would argue that the legal challenge to the Bicycle Plan resulting in an injunction until an environmental impact report was completed and certified was not an abuse), it will severely handicap the residents of San Francisco who seek to have a say in upcoming development plans.

CEQA requires an environmental analysis of projects and mitigation of impacts identified in the analysis. And it entitles people to appeal the environmental findings. However, it also requires appellants to 1) exhaust all their administrative appeals (such as at our Planning Commission and/or the full San Francisco Board of Supervisors), and 2) make all their arguments in support of their appeals during the administrative appeal process.

In recent years, appellants have lost their Board of Supervisor appeals of: Treasure Island, Park Merced, the Beach Chalet soccer fields, the America's Cup, and Hunters Point redevelopment plans. However, Treasure Island, Park Merced, and the Beach Chalet soccer fields are all being litigated now, based on the arguments appellants made during the administrative appeals process. A threat to litigate the America's Cup brought that project's sponsors to the table to make it a better project (though not good enough, as we have been finding out in recent weeks). A lawsuit against the Hunter's Point project resulted in a negotiated settlement. No doubt the threat of CEQA lawsuit hanging over the heads of the CPMC sponsors has brought them to the negotiating table.

Wiener's legislation seeks to thwart would-be appellants before they ever get to court. It restrict the appeals window to 30 days after the first approval -- and talk to any architect and they will explain to you how many approvals a project can require and the amount a project can change from the first approval to the last. It would require people who wish to appeal to submit ALL their legal documents at the same time that they file their request for the appeal. And it would eliminate the appeal before all 11 members of the Board of Supervisors, instead making the project approval hearing before a committee (probably Land Use) of three supervisors the place where opponents can appeal, with all of about two minutes of public testimony per member of the public.

Because of AB 32 -- and good law sponsored by then Assemblywoman Fran Pavley -- and SB 375, climate change legislation, regional plans are now underway to tie housing construction to transportation project funds from the Metropolitan Transportation Commission. The comment deadlines range from May 3 to May 16. San Francisco, according to these plans, is supposed to take on an additional 150,000 to 200,000 residents by 2040. The citizens of San Francisco need to be alert to the details of the plans to accommodate these new people -- and they need to be empowered to challenge projects that will be lucrative for developers but bad for the city and its people. For instance, parts of the waterfront that are slated to be under water by 2,100 because of sea level rise, are targeted for much of this growth.

Scott Wiener's legislation seeks to constrain CEQA to such an extent that would-be appellants stumble and err and entirely miss their chance to challenge bad projects or aspects of bad projects at the administrative level -- thereby forever eliminating their chance to litigate projects in court. San Franciscans who love their city should rise up in unison and let their supervisors know that they oppose his legislation.

Jane Kim's legislation puts timelines in place for appealing categorically exempt projects (none now exist for them), but appellants can appeal any approval -- and if no one has appealed any of them up until the last one, then the clock starts ticking on the appeals window. It also requires project sponsors and Planning Department staff to put their heads together and list all the approvals that the sponsors will need and make that information available to the public. It also keeps appeals of EIRs to the full Board of Supervisors in place.

These are some of the differences between the two pieces of legislation.

Posted by Sue on Apr. 18, 2013 @ 9:28 am

Governor Brown appears to be giving up on CEQA reform at the state level this year. The administrative rules and regulations that regulate compliance at the local level are complicated. The Supervisors get headaches just thinking about it, yet, the subject remains on their plate until the matter is resolved. Supervisor Chiu, reportedly said, "CEQA is my favorite four letter word".

From what we know of Wiener's version versus Kim's, Wiener's intent is to make a difficult to understand and use system of public appeals on CEQA determinations, more difficult and less transparent than it already is.

Those who are following the details, feel that Kim's proposal gives the public a better fighting chance of knowing when a big development project may come our way and provides a more even playing field for protecting our due process rights.

The crux of the matter is deciding how, who, and when to give notice about CEQA determinations; how long the appeal process will be open for public review and allowable actions; and what the limitations on those actions may be. Who do you trust to protect your rights? Either or neither.

Posted by Guest on Apr. 19, 2013 @ 1:36 pm

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