BOARD OF SUPERVISORS ADOPTS NEW CEQA APPEAL PROCEDURES

After nearly a year of effort (and after three previous unsuccessful tries by others), San Francisco Supervisor Scott Wiener crafted a California Environmental Quality Act (CEQA) appeals ordinance that gained the unanimous support of his colleagues on the Board of Supervisors and was finally adopted on July 23, 2013. Since 2003, state law has mandated that all CEQA determinations, whether the certification of an EIR, the adoption of a negative declaration, or a determination that a project was exempt from CEQA, be appealable to the Board of Supervisors. Yet, for the last 10 years, San Francisco has been without a defined process or express timelines for handling appeals of neg. decs. and exemption determinations because Article 31 of the City’s Administrative Code was not updated to be consistent with state law.

The ordinance adopted in July is a wholesale revision to Article 31 to bring it up to date with current practices, increase public noticing of CEQA exemption, as well as lay out how and when appeals can be filed with the Board of Supervisors. The legislation:

• Requires the Planning Department to augment its public noticing of CEQA exemption determinations, primarily on the Department’s website. Such notices are required to indicate what the first approval action for the project triggering an appeal will be and provide information on appeal opportunities.
• Imposes a 30-day deadline after the first approval action for appeals to the Board of Supervisors of all types of CEQA determinations, including EIRs, neg. decs, and exemptions. The Board of Supervisors will need to hold a hearing within 45 days of the filing of the appeal.
• Stipulates that only persons who commented on a draft EIR or appealed a preliminary neg. dec. may appeal those determinations to the Board of Supervisors. Because there are no administrative procedures to comment on exemption determinations, there is no similar standing requirements for the appeal of an exemption.
• Directs the Planning Department to file Notices of Determination and Notices of Exemption upon expiration of the 30-day appeal period (or upon any appeal being rejected), to begin a 30- or 35-day limitations period after which no party may file a lawsuit challenging the City’s final CEQA determination.
• If a project is modified after its first approval, the Planning Department must determine whether the modifications are substantial enough to warrant a new CEQA determination, which would then be subject to appeal to the Board of Supervisors.

Given the enhanced noticing of exemption determinations, the legislation may result in a larger number of appeals. However, any such appeals will need to be filed within 30 days after a project’s first approval, and no later appeals will be accepted unless a project is substantially modified. This shortened period will provide more certainty to project applicants and provide a definitive time after which the City’s CEQA determinations will be final.

MAHER ORDINANCE AMENDMENTS APPROVED

On July 16, 2013, the San Francisco Board of Supervisors approved amendments to the Maher Ordinance (SF Health Code Article 22A). The Maher Ordinance, adopted in 1986, requires soil testing and remediation of contaminated soils prior to the issuance of a building or grading permit for property along the City’s Eastern Shoreline. For building sites outside of the City’s Eastern Shoreline, testing for and remediation of contaminated soils and groundwater was still required, but on a case-by-case basis through CEQA documentation (EIR’s or mitigated negative declarations) and site specific mitigation measures. The amended Maher Ordinance expands the geographic coverage of the ordinance to all properties throughout the City that the Department of Public Health (DPH) determines may cause a public health risk, and adds a groundwater testing requirement.

Effect of Amendments

Under the new law, an applicant for any building or grading permit must conduct soil and groundwater testing if the permit involves the disturbance of at least 50 cubic yards of soil on (1) an area that may contain hazardous substances, (2) industrial zoned areas, (3) areas within 150 feet of elevated freeways, and (4) areas within 100 feet of underground storage tanks. An owner must prepare a use history for the property and submit the findings to DPH for review. DPH will also require remediation where the investigation indicates the presence of any hazardous materials. Remediation, if required by DPH, must continue until completion of a final closure report prepared by an environmental consultant and issuance by DPH of a “No Further Action” letter. Additionally, a seller or the seller’s agent involved in the sale or exchange of property subject to the amended Maher Ordinance must provide a summary of the new law to buyers.

CEQA Benefits to Property Owners and Developers

CEQA exemptions, pursuant to either a Community Plan Exemption tiering off of an area plan EIR, such as the 2008 Eastern Neighborhoods Plan EIR, or a categorical exemption for projects outside plan areas, were previously not available for projects located outside the City’s Eastern Shoreline that were determined to contain hazardous substances in soil or groundwater that required remediation. Rather, Planning Department staff required mitigated negative declarations for such projects, a more cumbersome and time-consuming CEQA process than an exemption, even when hazardous soils or groundwater was the only significant environmental impact of the project and could be remediated. The Maher Amendments have the effect of now authorizing the City to issue CEQA exemptions in cases where DPH requires soil or groundwater remediation because the remediation can be characterized as compliance with a mandatory regulation, rather than as a case-by-case mitigation measure, which disqualifies a project from an exemption determination.

Accordingly, the Maher Amendments will streamline environmental review for projects whose only peculiar impact is associated with soils or groundwater contamination. This should reduce the time and cost of CEQA review for a significant number of projects.

Summary
In sum, the proposed Maher Amendments will ensure consistency between Article 22A and applicable building code requirements and will provide more consistency and certainty and fewer surprises for project applicants. However, given the focus of the new law on the abatement of health risks, DPH may require additional remedial strategies, specifically in regard to protecting public health, that may be more cumbersome than those currently mandated. With this in mind, developers may want to devise strategies for minimizing the health risks associated with soils and groundwater early in the entitlement process.