Bike/Ped Advocates Back Wiener’s Move to Curb Superfluous CEQA Appeals

Supervisor Scott Wiener wants to reform the current CEQA appeals process, which puts projects like the bike and pedestrian safety measures on Fell and Oak Streets at risk of unnecessary delay. Photo: Aaron Bialick

In November, a handful of opponents filed a CEQA appeal against the Fell and Oak Street bike and pedestrian improvements after construction on the project had already begun. Fortunately, the Board of Supervisors dismissed their claims that the project required a full environmental impact report under the California Environmental Quality Act, and the appeal didn’t delay work on the project. But that’s not always the case with projects that improve street safety.

Pedestrian and bicycle advocates hope that legislation making its way through the Board of Supervisors will curb such late — and costly — CEQA appeals. Supervisor Scott Wiener, who authored the legislation, said it wouldn’t make any changes to CEQA itself, which is a state law. Rather, it would establish local deadlines to appeal development and street projects that are declared exempt from CEQA’s onerous EIR requirements. Such deadlines were mandated by the state legislature over a decade ago, and San Francisco is the only California city which has yet to comply with that mandate.

Supervisor Scott Wiener. Photo: Scott Wiener’s Office via ##http://www.sfexaminer.com/local/2013/04/sf-lawmaker-hits-speedbump-ceqa-reform##SF Examiner##

“When an appeal of a categorical exemption or negative declaration comes into the Board of Supervisors, we don’t really know if it’s even timely. The rules are that unclear,” said Wiener. “The Planning Department doesn’t know, the clerk of the Board of Supervisors doesn’t know, the people who filed the appeal often don’t know,” leading the City Attorney to determine the answer, which can take up to two weeks, he said.

The confusing appeal process has often been used as a tool to slow or stop projects that have already undergone extensive vetting via community meetings, analysis, and city approvals. The SF Bike Plan was held up for four years after a lawsuit was filed by Rob Anderson, forcing the city to do an extensive re-analysis that lead to no changes to the original plan. Even for relatively small projects like the protected bike lanes and pedestrian bulb-outs on Fell and Oak, the appeals process has added “unnecessary difficulty in making progress on our city’s stated goals,” said Leah Shahum, executive director of the SF Bicycle Coalition. “Our organization has unfortunately seen a lot of the bumps in the road.”

“It takes far too long to make improvements that save people’s lives,” said Walk SF Executive Director Elizabeth Stampe, who pointed out that the organization actually filed a CEQA appeal in 2009 against the EIR for the planned CityPlace Mall (since re-named Market Street Place) which led to the sponsor agreeing to pay fees towards bike and pedestrian safety improvements. “Walk SF supports [Wiener’s] legislation because we believe we still can use this process to make necessary appeals, but we’re also very concerned about how the current process slows down critical improvements for pedestrian safety,” she said.

The latest example was seen last week, when a woman filed an appeal against renovations at Dolores Park hours before a Planning Commission deadline, halting construction. Her case: The size of the planned off-leash dog areas should be reduced because of the “desperate need for open space for children to run and play in order to stem the childhood obesity pandemic.”

“This is bad government, it’s undemocratic, and it creates cynicism among those trying to improve their community,” said Tim Colen, executive director of the Housing Action Coalition. “It certainly has nothing to do with improving the environment.”

Wiener’s reforms have been endorsed by the SF Planning and Urban Research Association, the Chamber of Commerce, a number of neighborhood groups, the SF Chronicle, and the SF Examiner, which wrote in a staff editorial that CEQA “is far too often co-opted by anyone with a ‘not in my backyard’ objection”:

To streamline this messy process, Supervisor Scott Wiener has proposed a reform of how CEQA appeals would be handled in the future. Under his proposal, more outreach would need to be done  before projects are approved. Then, once a project received its approval, the clock would start ticking for CEQA appeals to be filed. Opponents would have 30 days to file their appeal.

Currently, it takes city lawyers to figure out whether appellants have filed their CEQA appeals in a timely manner. Wiener’s proposed reform would make the time period clear for everyone and minimize disputes about the process of appeals.

Wiener is not attempting to change CEQA, nor could he do so if he wanted. CEQA is a state law — only the Legislature can pass legislation amending it, and the governor would certainly have to be on board as well. In fact, the law itself does need to be revised to limit the ability of NIMBYs to delay meritorious projects — but that is another fight altogether.

Despite the rhetoric from opponents about attacks on CEQA, Wiener and staff from the Planning Department said the proposals are not intended to curb residents’ ability to appeal projects, but to clarify a convoluted and inefficient appeals process while adding transparency measures, like stricter requirements for public notices of when projects move forward.

One of the main points of contention from opponents is a provision under which CEQA appeals would no longer have to be heard by the full Board of Supervisors, but only a board committee. In an op-ed in the Examiner, Rebecca Evans of the Sierra Club and Quentin Kopp, a former state senator and city supervisor, wrote:

[The legislation] would seriously weaken CEQA protections and reduce citizen participation in critical land-use decisions. Wiener’s measure contains a veritable minefield of provisions to protect the interests of big developers at our community’s expense, including changes that would drastically reduce public-noticing requirements, make appeals harder to file, and deny the public’s right to argue an appeal of the Planning Commission’s CEQA rulings before the full Board of Supervisors.

At the Board of Supervisors Land Use and Economic Development Committee meeting on Monday, where Wiener’s proposal was heard, Supervisor David Chiu made the deciding vote to bring the legislation back to the committee in two weeks so that it could also consider a counter-proposal from Supervisor Jane Kim. While we don’t have the details of Kim’s proposal yet, the Chronicle wrote in a staff editorial that it “would go in the opposite direction – expanding appeal rights for opponents and adding to the cost and complication of projects, even something as straightforward as replacing a window or rotted-out handrail. Her plan should be rejected.”

Since Wiener’s legislation was first introduced six months ago, he said it has been vetted by stakeholder groups, amended 40 times, and approved by the Planning and Historic Preservation Commissions.

“It’s beyond time that we do this,” said Planning Director John Rahaim. “The uncertainty has been extremely frustrating for the public, the department, the [Planning] Department, and the commission.”

  • Mario Tanev

    I am confused about the Dolores Park situation. If there is no clear deadline, how could the appellant have filed hours before the deadline? If there is a clear deadline, what is wrong with filing at the last moment? If it’s not okay to file on the last day, why not shorten the deadline by one day?

  • I believe that was the Planning Commission’s deadline (I added that in to clarify), and Wiener’s aide said there’s at least another appeal deadline after that with the Board of Supes. I think that’s an example of how the process is confusing.

  • Anonymous

    I’ve yet to read anywhere that says what the reforms are actually going to do and how they are going to do it. Just saying “makes it clearer” only makes it more confusing. Rebecca Evan’s op-ed mentions that it reduces public-noticing requirements, I think that’s a problem, especially given a potential stricter timeline. Wiener likes to point out the problem (bureaucracy!!) but he never gives any solutions other than “my plan, which makes it clearer” without any info on how.

    I go back and forth on whether it matters if the full BOS sees appeals or just the land use committee. I mean, I can imagine what would happen if that committee was stocked with developer friends, but I can also imagine what would happen if it was stocked with complete street advocates although I don’t think that’s likely.

    I’d like to support this as a way of making it easier to implement improvements to our streets but it’s hard not to see this as a giveaway to developers. I’m interested in seeing Kim’s legislation, I think the picture the chronicle is painting is rather comically off base (typical chronicle I guess). Kim’s already said that she agrees with 80% of Wiener’s legislation, I think the main difference is whether appeals go to full BOS or committee.

  • rblack

    From above:

    “To streamline this messy process, Supervisor Scott Wiener has proposed a reform of how CEQA appeals would be handled in the future. Under his proposal, more outreach would need to be done before projects are approved. Then, once a project received its approval, the clock would start ticking for CEQA appeals to be filed. Opponents would have 30 days to file their appeal.”

  • Anonymous

    All that explains is the ticking clock. it doesn’t talk about the kind of outreach needed before projects are approved. The opposition is saying in the press that the outreach is just a website posting.

    What I’m looking for is the how. How would it work other than putting in a 30-day time limit?

    We can all look at projects (like dolores park) and say, these nimbys are ruining everything and they shouldn’t be able to. But then there are other projects that deserve every bit of scrutiny they get. I’m just trying to get a better understanding of what Sup Wiener’s legislative package is going to do, not just what he says it will do. He can only say clarity so many times before it becomes opaque.

  • Wiener’s Legislation Will Make Things -Worse- For Pedestrian And Bicycle Plans

    It is very important to point out that the primary example cited in your article shows CEQA -working- to protect a bike/pedestrian project from undue interference. The appeal was brought to the Board and the Board quickly quashed that appeal. The reason the dispute was handled -quickly- is that the dispute process was handled -properly- following CEQA law.

    But I am sure that nearly everyone reading this remembers another very different and important case that did not go well at all – the San Francisco citywide bike plan that was waylaid in court for years.

    And why was it tied up in court for years? Because proponents of the plan attempted to do an end-run around the CEQA process by outrageously declaring that a huge citywide scope bike plan was somehow -exempt- from an environmental review. The result was that an opponent of the plan felt he had no other choice but to go to court, costing the city millions of dollars, and delaying the bike plan far -longer- than it would have been, had it instead simply been up to the Board to determine an appeal on the adequacy of an Environmental Impact Report (EIR) for the plan. The Board would have just as easily dismissed such an appeal, as it did in the case you raise above.

    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 CEQA information document, 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.

    If Supervisor Wiener succeeds as intended to make the CEQA process even more rushed and difficult for opponents to get their complaints heard before the Board of Supervisors than it is already, guess what will happen?

    -More- costly and grindingly slow lawsuits that hold up good projects…

    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; which includes the harms that such developers wreak on pedestrian and bike amenities.

    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/ )

    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. 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.

    Jane Kim’s Legislation Will Improve CEQA The -Right- Way

    Jane Kim’s alternative CEQA legislation (which was drafted with extensive community input) does everything possible to protect against bad outcomes like those listed in the article, 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.

    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
    Save Stow Lake Boathouse Coalition
    SF Coalition for Children’s Outdoor Play, Education & the Environment
    Rincon Center Tenants Association

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