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.
"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."
