Comment on the city's attempt to gut CEQA

FROM:

Mary Miles (SB #230395)

Attorney at Law, for

Coalition for Adequate Review

TO:

Angela Calvillo, Clerk and

the San Francisco Board of Supervisors

City Hall

San Francisco, CA 94102

DATE: July 23, 2013

RE: Board of Supervisors Meeting of July 23, 2013, Agenda Item 21, Proposed Ordinance amending San Francisco Administrative Code Chapter 31, File No. 121019

PUBLIC COMMENT

This is public comment on Agenda Item 21, the Proposed Ordinance amending the San Francisco Administrative Code Chapter 31, BOS File No. 121019. Please place a copy of this Comment in all applicable files. 

The proposed changes conflict with the California Environmental Quality Act ("CEQA") (Pub.Res.Code [“PRC”] §§ 21000 et seq.). We have already submitted comment on the similar changes proposed to the Planning Commission (letter dated November 15, 2012), and incorporate all of that comment by reference, with a copy attached with this Comment. Where City has changed its previous version(s) of its proposed amendment to place similar text under a different numerical/alphabetical header, our objections to the substance remain, regardless of the shuffling of the text and different headers in the current version of the proposed amendment.

The large number of changes and the City's ongoing attempts to undermine public rights under CEQA through amendments of Chapter 31 are another obvious attempt to curtail and erode the public's right to informed participation in the CEQA process and to convert requirements of environmental analysis and mitigation to unaccountable exemptions issued by unnamed agencies without public review instead of the procedures required by CEQA. Many of the proposed changes conflict with specific provisions of CEQA and its regulatory Guidelines, improperly expand or curtail existing statutory and regulatory provisions, and create unnecessary and improper obstacles to public participation in the CEQA process at the administrative level. The entire legislation violates the law’s legislative purpose and intent. A number of the proposed changes are also preempted.

The proposed amendments are a convoluted, incoherent mess of complicated new requirements that conflict with the letter of CEQA and violate its fundamental mandate to provide the opportunity for public participation in an informed decisionmaking process and to assure accountability of agency and elected decisionmakers for their actions affecting the public and the environment. The proposed ordinance instead seeks to negate those important rights by making public participation difficult, expensive, and cumbersome. The proposed amendment of Chapter 31 of the Administrative Code is itself a project under CEQA that requires an EIR[Environmental Impact Report], since it may have significant adverse impacts on the environment by limiting the public's right to comment on and appeal projects subject to CEQA, and by undermining informed decisionmaking and participation in the decisionmaking process required by CEQA. Further, if City makes the administrative process futile the public is not required to exhaust administrative remedies before litigating CEQA issues, because for practical purposes such remedies do not exist. This Board's poor record in considering CEQA appeals underscores the level of futility already facing the public even without the proposed amendments that further undermine the public’s rights.

In addition to the applicable specific objections already described in our November 15, 2012 letter and incorporated by reference herein, the following are examples of provisions that are contrary to CEQA.

1. Proposed section 31.04 Misstates the Law on Approval Actions and Conflicts With CEQA.

The proposed amendment attempts to redefine "Approval Action" in conflict with CEQA on any project that someone in some agency declares "exempt." CEQA defines a project as "the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (14 Cal.Code Regs. ["Guidelines"] § 15378(a)). "The term 'project' refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term 'project’ does not mean each separate governmental approval." (Guidelines §15378(c), and, e.g., Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629,640.) The Guidelines further state, "Where the Lead Agency could describe the project as either the adoption of a particular regulation under [Guidelines §15378(a)(1)] or as a development proposal which will be subject to several governmental approvals under subdivisions (a)(2) or (a)(3), the lead agency shall describe the project as the development proposal for the purpose of environmental analyses. This approach will implement the lead agency principle..." (Guidelines §15278(d).)

The proposed amendment instead proposes that regardless of whether environmental analysis has taken place, any agency (not the lead agency) may declare a project exempt, and that "approval action" means "the first approval." That proposed provision conflicts with CEQA’s requirement that the project consist of the whole of the action and of all of the discretionary approvals of it. (Ibid, Azusa Land Reclamation v. Main San Gabriel Basin Watermaster, supra, 52 Cal.App.4th at p.1214 [“A CEQA challenge must only be raised before the final administrative arbiter” to exhaust administrative remedies]; and, e.g., Laurel Heights Improvement Assn. of San Francisco v. Regents of the University of California ["Laurel Heights I"] (1988) 47 Cal.3d 376, 394, 405 [environmental review must precede approval of project]; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 132 ["an agency has no discretion to define approval so as to make its commitment to a project precede the required preparation of an EIR"], and at p.142 [approving a project before fully evaluating its environmental effects is prohibited by §§ 21100 and 21151].)

At proposed section 31.04(h)(3), the proposed amendment similarly violates CEQA by claiming that the "approval of the project" on any projects "determined to require the preparation of a negative declaration" shall also be "the approval of the project by the first City decision-making body that adopts the negative declaration or mitigated negative declaration." Again, that proposed change violates both the definitions already in CEQA Guidelines described above, which must include the whole project, not just a "first approval" of it. A project is not its approval but is the whole action. Further, CEQA requires a public comment period for negative declarations (PRC §21092) prior to approval by a lead agency.

2. Proposed section 31.04(h)(2)(B)(3) Negates all Appeal Rights of Exemptions and Negative Declarations by Stating Such Projects Are "Approved" Regardless of Whether They Are Appealed.

The proposed amendment directly conflicts with CEQA's provisions by making an approval action the issues are of a building or site permit, and claims that the "date of the Approval Action" means the date-the-City takes the action on the project ...regardless of whether the Approval Action is subject to an administrative appeal." CEQA requires administrative appeals. (PRC §21151(c).) City may not "approve" a project before environmental review is complete, including appeals of the lead agency's environmental determinations. (e.g., Laurel Heights I, supra, 47 Cal.3d at pp. 394, 405.) 

3. Proposed section 31.04(h)(2)(B)(3) Allows Incidental Permits to Be "Approval Actions."

The proposed amendment even states that a "tree removal permit or a street encroachment permit" can be an "Entitlement for Use for the Whole of the Project" if it is the "primary permit sought for the project." For the reasons already stated this and all of the other proposed provisions that "first approval" may be the final or ultimate approval of an project under CEQA are illegal and must not be approved by this Board. (Laurel Heights I, supra, 47 Cal.3d at pp. 394, 405; Azusa Land Reclamation v. Main San Gabriel Basin Watermaster, supra, 52 Cal.App.4th at p.1214 [“A CEQA challenge must only be raised before the final administrative arbiter” to exhaust administrative remedies].)

4. Proposed section 31.05 Violates the Lead Agency Principle by Allowing Delegation of Lead Agency Duties.

As already noted, CEQA Guidelines require designation of a lead agency that does an initial "preliminary review," review for exemption, initial study, and other required procedures to conduct environmental review of projects required by CEQA. 

5. Proposed section 31.05(f) Violates CEQA by Giving Preference to "bicycle and pedestrian projects."

City may not grant "priority" review to "bicycle and pedestrian” projects or give "precedence to all submittals associated with such project over other projects." No legal authority allows such "precedence" or "priority" for "bicycle and pedestrian projects.”

6. Proposed section 31.08 Misstates the Law on Exemption Determinations and Procedures.

Please see letter of November 15, 2012.

7. Proposed section 31.08(f) Violates CEQA.

Proposed section 31.08(f) incorrectly states that a notice of an “Approval Action” hearing for a project declared “exempt” for any reason must (1)(C) “Inform the public that under CEQA, in a later court challenge a litigant may be limited to raising only those issues previously raised at a hearing on the project or in written correspondence delivered to the Board of Supervisors, Planning Commission, Planning Department, or other City board, commission or department, at, or prior to, such hearing, or as part of the appeal hearing process, if any on the CEQA decision.” Even if such comment were required, any person may exhaust administrative remedies by commenting on a project at any point up to and including the final approval action.

8. Proposed section 31.08(i)(1) Violates CEQA by Imposing New Requirements for an Exemption that Do Not Exist Under CEQA.

Section 31.08(i)(1) improperly invokes requirements for a subsequent or supplemental EIR on an exemption determination by requiring that, after declaring a project exempt, a "substantial modification" requiring "reevaluation" must occur before requiring an EIR. That is incorrect.

Under CEQA, if there is a fair argument that a project may have a significant impact, City must prepare an environmental impact report. The fair argument standard is not subject to City's manipulative "first approval" timing, or to arbitrary requirements of a "substantial modification." Nor may City add burdensome requirements that only apply to exceptions to a categorical exemption to an erroneous "first approval" or other exemption determination. If City has erred in an exemption determination, or a project is changed for any reason after City has made an exemption determination, it is subject to the fair argument standard, not the arbitrary standard proposed here.

Instead of analyzing the project at issue, the proposed amendment analyzes the "first approval" of the project and not by the procedures required by CEQA. That defective proposal is not cured by adding other burdensome and complicated requirements in a transparent attempt to eliminate the fair argument standard. City may not expand the language of CEQA to impose new requirements that do not exist in the law.

9. Proposed section 31.09 Gives Inappropriate Powers to Non-Lead Agencies and to the ERO[Environmental Review Officer] to Make Exemption Determinations. 

Proposed section 31.09 again attempts to eliminate the fair argument standard that requires an EIR whenever there is a fair argument that a project may have an environmental impact, and substituting "such other process for rendering an exemption determination" as determined by the ERO. If a fair argument exists, the ERO has no discretion to declare a project exempt.

10. Proposed section 31.11 Violates CEQA's Negative Declaration Procedures.

Before contemplating a negative declaration, the lead agency must prepare an initial study. (Guidelines §15070.) CEQA requires that the lead agency then must provide any notice of intent to adopt a negative declaration to the public, and that notice must include the initial study. The proposed amendment at sec. 31.11(d) creates a requirement that does not exist under CEQA, that the "notice of intent shall include a statement that no appeal of the negative declaration to the Board of Supervisors...will be permitted unless the appellant first file an appeal of the preliminary negative declaration to the Planning Commission." The requirement of a mandatory public appeal to the Planning Commission is contrary to Guidelines §15074(b), which requires review by the "decisionmaking body of the lead agency," which in this case is the Planning Commission, without requiring the public to file an appeal to the Planning Commission. Guidelines §15074(f) specifically provides that: "When a non-elected official or decisionmaking body of a local lead agency [meaning the Planning Commission] adopts a negative declaration or mitigated negative declaration, that adoption may be appealed to the agency's elected decisionmaking body," meaning the Board of Supervisors. That provision continues, "For example, adoption of a negative declaration for a project by a city's planning commission may be appealed to the city council."

The proposed amendment requiring the public to file an appeal to get City to perform its duty of conducting a Planning Commission hearing on the project before it may appeal such a determination to the Board of Supervisors plainly conflicts with CEQA. The lead agency could allow such multiple appeals, but the public is not required to appeal a negative declaration to the Planning Commission before appealing a Planning Commission approval of a negative declaration to the Board of Supervisors. The Planning Commission must conduct a properly noticed public hearing on a proposed negative declaration. If it approves a negative declaration, its decision is appealable to the Board of Supervisors regardless of whether an appeal has been filed to the Planning Commission. 

11. Proposed sections 31.11(h) - (j) Violate CEQA's Requirements of Environmental Review Before Approving a Project.

The proposed amendments again try to unlawfully bypass required procedures for environmental review before approving a project by demanding "Approval Action" in the illegally imposed "appeal" to the Planning Commission of a negative declaration. Other provisions under section 31.11 for filing a notice of determination and adopting mitigation measures also violate CEQA, because they all depend on the illegal requirement to first appeal a negative declaration to the Planning Commission.

12. Proposed sections 31.12 Violates CEQA By Eliminating the Requirement of an EIR Where A Project May Have Significant Impacts.

Proposed section 31.12 eliminates the existing language in Chapter 31 that requires an EIR if "it is determined that a project may have a significant effect on the environment." The proposed amendment only requires an EIR if the ERO determines that it is required. That is not the law, and the ERO has no discretion to violate the requirement of an EIR where a project may have a significant effect.

13. Proposed Section 31.14 Improperly Imposes Requirements for Extension of the Public Comment Period that Are Not Required Under CEQA.

City has simply changed section numbers here from its original, illegal proposal, but that does not make City's proposed section 31.14 legal.

The lead agency must allow a minimum of 30 to 45 days public notice and comment period for a draft EIR under CEQA's requirements. (PRC §21091.) The proposed amendment at section 31.14(b)(L) imposes a requirement of "unusual circumstances" to extend the public comment period for a DEIR. That proposed requirement does not exist under CEQA. City may not add more requirements or expand the requirements that exist under CEQA.

At section 31.14(b)(1), the proposed amendment repeats its former illegal requirement that an extension of the public comment period on a DEIR may only be "upon the request of an agency or person with special expertise from whom comments are sought." Any person may request and should receive a time extension of the public comment period on a DEIR. Further, City may not impose additional burdens and requirements on the public beyond the procedural requirements of CEQA. 

Proposed section 31.14(e) weakens previous requirements in section 31 to make publicly available the record on revisions and comments already received on a project by improperly qualifying the requirement as "To the extent practicable..." City does not have discretion to withhold its agency records or to pretend that they don't exist at a hearing on a project.

14. Proposed Section 31.14 (b)(3) Imposes Unlawful Requirements that Conflict With CEQA.

City proposes that "only commenters on the Draft EIR will be permitted to file an appeal of the certification of the Final EIR to the Board of Supervisors," which is contrary to the law.

15. Proposed Section 31.15 Imposes Additional and Inappropriate Time Requirements for Public Review and Comment on Final EIR's.

Proposed section 31.15(a) would give the public only 10 days notice and would only make the Final EIR publicly available 10 days prior to the Planning Commission hearing to consider certification of the final EIR. The FEIR, which consists of the DEIR and the lead agency's Responses to public comments on the DEIR, and may include staff revisions of the project and its analysis, proposed mitigation measures and alternatives, is often a large, complicated, and often disorganized document that requires a much longer public review period than 10 days to provide a meaningful opportunity for informed public participation in the decisionmaking process. The proposed inadequate time is an excuse to curtail public information and review, especially for large projects, and still another opportunity for City to withhold necessary information about projects from the public, precluding informed public comment and decisionmaking. A Final EIR should be publicly available not less than 30 days before the proposed Planning Commission hearing to certify it to allow the public to get a copy of the FEIR and to submit public comment on it, as well as to participate in the Planning Commission hearing on the FEIR.

16. Proposed Section 31.19(a) and 31.08(i) Unlawfully Impose Requirements That Conflict With CEQA.

Proposed section 31.19(a) repeats the unlawful requirement of a "substantial modification" to a project declared "exempt" to "make a new CEQA decision." There is no such "substantial modification" requirement in CEQA, as noted above. The Ordinance places this section before section 31.16, which is misleading and confusing.

17. Proposed Section 31.16 Violates CEQA.

To the extent that the revised section 31.16 is substantively the same as the version before the Planning Commission, please see our Comment letter dated November 15, 2012, which is incorporated by reference. For example, the revised section 31.16 appears to propose the same defective provisions as in previous versions, but with different numbering/lettering of the subsections. However, changing the numbering does not cure the legal defects of those sections and only adds to the complicated and nearly incomprehensible revision of the text with headers that often have five to six subsection designations. Our objections remain the same to substantive defects in section 31.16 already noted in our November 15, 2012 letter, pp. 9 through 12, and elsewhere throughout that letter, that now appear in the revised version of the proposed legislation, including but not limited to the following examples.

a. Proposed section 31.16(b)(1) violates CEQA by requiring that an appellant "shall submit a copy of. . .any other written materials submitted to the Clerk in support of the appeal to the Environmental Review Officer at the time appellant submits the letter of appeal to the Clerk of the Board." This proposed requirement directly conflicts with CEQA, which provides that public comment may be submitted at any time up to and including the hearing of the appeal and final approval of a project. (See, e.g., Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal.App.4th 1184, 1202.) 

b. Proposed section 31.16(b)(1) threatens that if an appellant "fails to comply with this subsection 31.16(b)(1)," that the Clerk of the Board "may reject an appeal." The Clerk of the Board has no legal authority to reject an appeal based on the above-described improper rule or for any other reason.

c. Proposed section 31.16(b)(3) adds new conditions for staying implementation of a project pending disposition of appeal, which conflict with CEQA, abridge appellants' rights to an objective hearing and remedy at the administrative level, and render the appeal process futile. The new text gives City authority to implement "activities" claimed to "abate hazards to the public health and safety." Emergency procedures are already provided in CEQA, and City does not have discretion to impose some other procedure by unnamed, unelected officials to circumvent CEQA review. CEQA only authorizes emergency actions under strict conditions and supported by substantial evidence. (Guidelines §15359.) Without meeting those conditions, "appropriate City official(s)" are not authorized to claim an "emergency." The proposed text exceeds the authority provided by law and is preempted in any event.

The existing Code at section 31.16(a)(3) already properly provides that the City "shall not carry out or consider the approval of a project that is the subject of the EIR on appeal," which City has consistently also applied to other appeals, including negative declarations and exemptions. CEQA prohibits approving and carrying out a project without first complying with its requirements of environmental review, mitigation of impacts, and findings. (Laurel Heights I, supra, (1988) 47 Cal.3d 376,394,405.)

d. Proposed section 31.16(b)(5) unlawfully imposes time constraints for public comment that are contrary to CEQA, proposing to require that "Members of the public" and “appellant may submit written materials to the Clerk of the Board no later than noon, 11 days prior to the scheduled hearing." That proposal violates CEQA, which provides that public comment may be submitted at any time up to and including the hearing on the appeal and on approval of the project. (See, e.g., Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal.App.4th 1184,1202.)

e. Proposed section 31.16(b)(7) unlawfully proposes that the full Board need not be present to hear an appeal. The full Board must hear a CEQA appeal.

f. Proposed section 31.16(b)(8) implies that the Board may adopt the findings of the Planning Commission instead of conducting independent review as required by CEQA. Rubber-stamping the findings of the Planning Commission negates and renders futile the public's right to appeal a decision of the Planning Commission.

g. Proposed section 31.16(b)(9) claims that a project may be approved before approval of its environmental review. That is wrong, and conflicts with CEQA. (Laurel Heights I, supra, (1988) 47 Cal.3d 376,394,405.)

h. Proposed section 31.16(b)(11) claims that the "date the project shall be considered finally approved" could occur before approval of its environmental review under CEQA. That, again, is wrong and conflicts with CEQA, which requires environmental review before approving or carrying out any project. (Laurel Heights I, supra, (1988) 47 Cal.3d 376,394,405.)

18. Proposed section 31.16(c) Imposes Unlawful Requirements on Appeals of Environmental Impact Reports.

The proposed amendments improperly impose additional requirements for appeals of EIRs, including but not limited to the following examples.

a. Proposed section 31.16(c)(1) incorrectly requires that an appellant must have submitted comments to the Planning Commission or ERO on a draft EIR to appeal a disposition of the Planning Commission. That is incorrect, since CEQA allows broader rights.

b. Proposed section 31.16(c)(3) and (c)(4) improperly limit the grounds that may be appealed and must be considered by the Board. City may to limit the grounds to rote conclusory rhetoric as proposed. An appellant may appeal legal, procedural, and factual matters, as well as the findings and other determinations made by an unelected body that has certified an EIR.

c. Proposed section 31.16(c)(5) improperly limits appeals after a remand to the Planning Commission to "only the portions of the EIR that the Planning Commission has revised" and illegally requires that "any appellant shall have commented on the revised EIR at or before a public hearing...on the revised EIR or the project, if any." The proposed text then limits the Board's subsequent review "if any" to the "portions of the EIR that the Planning Commission has revised." The public has the right to appeal any subject matter in a revised EIR certified by a City agency, as well as CEQA issues that City has not covered in the EIR. City may not dictate the content of any appeal.

19. Proposed section 31.16(d) Imposes Unlawful Requirements on Appeals of Negative Declarations.

Proposed section 31.16(d) imposes unlawful requirements on appeals of negative declarations including but not limited to those noted above and as follows.

a. Proposed section 31.16(d)(1) incorrectly requires an appellant to have "filed an appeal of the preliminary negative declaration with the Planning Commission during the public comment period provided by this Chapter 31 for filing comments on the preliminary negative declaration" to file an appeal of a Planning Commission approval of a negative declaration to the Board of Supervisors. CEQA does not require that an appellant appealing an agency's adoption of a negative declaration to first appeal that adoption to the agency. (PRC §21151(c).)

b. Proposed section 31.16(d)(3),(4), and (5) improperly limit the subject of appeal of a negative declaration.

c. Proposed section 31.16(d)(5)(A) improperly limits an appeal of a negative declaration that has been remanded to "the portions of the negative declaration that the Planning Department has revised."

20. Proposed section 31.16(e) Imposes Unlawful Requirements on Appeals of Exemption Determinations.

For example, Proposed section 31.16(e)(2)(C)(3) improperly limits the grounds for appeal of an exemption determination to "whether the project conforms to the requirements of CEQA for an exemption." City may not limit the grounds for an appeal, which may include a fair argument that the project will have significant impacts requiring an EIR and other issues.

21. Proposed "Section 4" Violates CEQA By Claiming that the Entire City Is "a lead agency" Under CEQA.

Proposed "Section 4" incorrectly claims that the entire City is "a lead agency" under CEQA. That absurd statement directly conflicts with CEQA's definitions of lead agencies and their responsibilities in the environmental review process, and is an obvious attempt to expand City's authority by muddying lead agency duties, while making no particular agency publicly accessible or accountable for a project's environmental review.

City's claim at proposed "Section 4" is false in claiming that it "intends to provide "decision makers and the public with meaningful information regarding the environmental consequences of proposed activities, identifying ways that environmental damage can be avoided or significantly reduced, providing public input in the environmental process...," and that "Nothing in this ordinance is intended to change the policies and objectives of CEQA, to limit any rights of appeal..." The proposed amendments are clearly aimed at undermining public access to information, informed public participation in the decisionmaking process, and public accountability of decisionmakers, and in fact would curtail and severely limit public participation, violating CEQA's important mandates.

For the foregoing reasons and those stated in our letter of November 15, 2012 to the Planning Commission, the Board should reject the proposed Ordinance amending Chapter 31.

DATED: July 23, 2013