by George Wooding
So far, City Supervisor Scott Wiener who represents District 8 has failed to demonstrate that his newly-proposed amendments to San Francisco’s environmental appeal laws are necessary. That’s not stopping him, as he continues tinkering with San Francisco’s open government laws.
Wiener’s legislative changes are primarily designed to reduce the amount of time citizens have to review and appeal environmental impacts to proposed development projects. Wiener seeks to restrict appeals regarding projects to a short time period, so that government and project developers can then go behind closed doors to modify projects without further citizen oversight.
As federal Judge Damon J. Keith wrote in a unanimous opinion for the Federal Court of Appeals of the Sixth Circuit concerning the Detroit Free Press v. Ashcroft case, “Democracy dies behind closed doors.” Judge Keith concluded that “When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.”
Keith also noted that the framers of the First Amendment “did not trust any government to separate the true from the false for us,” in their efforts to protect the people against secret government. “The public’s interests are best served by open proceedings,” Keith wrote.
Wiener, on the other hand, appears to be seeking to expand secret government by limiting environmental appeals. Wiener’s proposal seeks to prevent government officials from having to answer citizen’s questions, worsening the excessive secrecy that already undermines San Francisco’s local government. Wiener’s proposal would slam the door shut, locking out many citizens.
On November 29, 2012 Bill Wycko, an Environmental Review Officer (ERO) in San Francisco’s Planning Department wrote: “An important consideration beyond the amount of time that appeals add to different types of projects is the monetary and time cost of appeals.”
The Planning Department receives approximately 90% of its operating income from developer’s fees. The uncertainty of the public environmental appeals process is considered to be “bothersome,” as appeals cost the Planning Department time, and money. How much money is involved is rarely discussed, but is thought to be a fraction of the total.
The Planning Department is already brimming with excess cash. According to Keith DeMartini, the department’s financial manager, “We’re projecting better than a $6 million surplus by the end of the fiscal year. We’ve seen more volume of development and more large projects.”
In a “Build, baby, build!” city like San Francisco, citizen appeals are considered to be a monkey wrench to development. Developers contribute money to politicians, who in turn help developers build projects. This time-honored “you scratch my back, I’ll scratch yours” process tries hard to restrict citizen involvement to the barest possible minimum.
Wiener’s attempt to “streamline” the public environmental appeal process looks more like an attempt to “steamroll” a favorable path for developers through San Francisco’s Planning Department.
Wiener’s proposed legislation will allow a Planning Department ERO, such as Wycko, to “exempt” an Environmental Impact Report (EIR) for a project at his discretion. The Planning Department will then automatically approve the ERO’s exemption. This subterfuge of open government, will make it easier for the Planning Department to approve projects that might require an EIR or avoid doing an EIR altogether. Citizens will be the losers in this process as they will never even find out that an EIR project had been exempted.
Wiener states that his legislative goal is to codify San Francisco’s environmental appeals process. Currently, public environmental appeals can be filed by average citizens throughout the life of any project. Wiener wants to limit the public’s ability to appeal to only 20 to 30 days after the first entitlement/permit is issued.
Once the public is shut out after 30 days, project malfeasance may then commence, in earnest. For an example of malfeasance, just look to the Parkmerced development deal, over which four City supervisors — including Supervisor Wiener — were referred to the Ethics Commission for official misconduct, as a result of withholding 14 pages of project amendments from the public until after the Board of Supervisors voted on the deal.
Wiener and the Planning Department are currently writing a third version of his legislation. Planning projects often change. If a project changes after the appeal process has expired, how will the public receive notice of the changed projects details? The Planning Department could simply notify the public of project changes by placing the notification of change in a file. How will the public know when a project is changed? How can a changed project be appealed again?
While Wiener experiments with San Francisco’s participatory democracy, citizens should be asking themselves if it is a good thing to have their environmental appeal rights limited by an overzealous and very ambitious former Deputy City Attorney named Scott Wiener.
Wiener — the most pro-development Supervisor, and newly-appointed chair of the Land Use Committee — swears he’s only trying to improve out-of-date legislation.
He claims, “This legislation is not about helping developers. They can navigate the appeals process. Largely, we are talking about small property owners who do the work. We want to create a predictable environmental appeals process. The more predictable the process, the less expensive it becomes.”
The fraction is actually less than three-tenths of one percent. Wiener’s proposed legislation to restrict CEQA appeals in San Francisco seems to be taking a sledge hammer to pound a nail.
When asked for data, the San Francisco Planning Department didn’t even know the number of CEQA appeals, negative declarations, or exemptions filed last year before the Board of Supervisors. More importantly, San Francisco’s Board of Supervisors has rejected every environmental appeal in recent memory, despite Wiener’s claim that the Board approved one appeal relating to a Telegraph Hill development project.
Sporting such a miniscule track-record of appeal reviews, Wiener needs to demonstrate that his San Francisco CEQA legislation is even necessary, or beneficial, to the public.
The California Environmental Quality Act
In 1971, the State of California passed an environmental bill of rights called the California Environmental Quality Act (CEQA). CEQA became law because many California developers and city projects were deemed environmentally harmful. Prior to 1971, the public had little legal say over — and no way to appeal —environmental impact decisions concerning private and public development projects.
CEQA allows citizens to “look before we leap,” protecting us from projects that may either harm the environment, public health, or our quality of life, by requiring project proponents to disclose and minimize environmental impacts. The law also helps citizens find better environmental alternatives to proposed projects.
The CEQA process ensures that San Franciscans can participate in identifying and solving environmental problems, alongside self-interested project applicants and City Hall insiders.
CEQA applies to any discretionary governmental planning decision. San Francisco is the only city or county in California where every permit is discretionary, meaning that in San Francisco, a CEQA appeal can occur for any planning permit.
Every citizen should be aware of CEQA laws as they apply to your own house, your neighbor’s house, City projects, and large development projects. CEQA projects that are approved will affect City transportation, infill housing density, water and air quality, soil, fire and public safety services, and the character of your local neighborhood.
Different versions of Wiener’s amendments to San Francisco’s CEQA laws had previously been submitted by former City Supervisor’s Fiona Ma and Michela Alioto-Pier; both former proposals failed and were never adopted. When asked why his similar CEQA legislation would succeed, Wiener responded, “ that the newly elected Board of Supervisor’s would approve his changes.”
To help prove his case for CEQA reform, Wiener continues to assert that CEQA should not exist as a tool to delay projects. “We make it very easy for one person to delay a project for a significant amount of time,” Wiener claims. He often cites Shannon Gallagher’s late appeal to San Francisco’s Board of Appeals regarding the revamp of Lafayette Park as an example of an appeal for the sake of delay.
Interestingly, Gallagher’s Lafayette Park appeal was due to the fact that a permit was never issued for the work being done at the park, not because it was a CEQA appeal. The San Francisco Board of Appeals has no jurisdiction over CEQA-related appeals. Additionally, The time period for CEQA appeals regarding Lafayette Park had already expired by the time Gallagher filed her appeal.
San Francisco Chronicle columnist C.W. Nevius wrote two columns about Gallagher’s Lafayette Park appeal. Wiener persists on making Gallagher a poster-child for the abuse of CEQA appeals that he asserts are designed just to be obstructionist.
Gallagher, who had worked in conjunction with the Pacific Heights Residents Association reports, “Sadly, I don’t go to the dog runs in the park anymore, after Nevius’ articles. I was publicly attacked on multiple occasions, and police reports filed. People yell profanities at me. One man left a hand print on my forearm, and a woman threw dog excrement at me.”
These will be some of the impacts of Wiener’s new CEQA amendments, should they pass:
• The 20 to 30 day notification period will make it difficult for citizens and neighborhood groups to review projects. Project appeals may actually increase, because people will not have enough time to understand the ramifications of projects. This increases the risk of approving projects whose environmental impact have not been thoroughly considered.
• Project notification now becomes vital. If citizens receive late notification or there are clerical errors, there is no time to review a project or development. Wiener’s call for weaker notice requirements by City officials and stricter appeal procedures for the community will result in citizens not being informed of certain determinations, or their right to appeal them.
• The language and procedures for filing a San Francisco CEQA appeal will become much more complicated, incomprehensible, and more difficult for people filing appeals. Clerks can disallow appeals that are not accurately filled out.
• Currently, any person who has submitted written or oral comments on a draft environmental impact review (EIR) may appeal the Planning Commission’s certification of the EIR to the Board of Supervisors or to a Board of Supervisor’s sub-committee in which case the appeal will not be heard by the full board. Wiener’s proposed ordinance eliminates this right. This means that the Board of Supervisors would become the final CEQA decision-making body, and the separate public appeals process would be eliminated.
• The new CEQA language will be made vaguer and weaker. Wording such as “will” or “shall” will be changed to “may,” permitting a new discretionary loophole. The Wiener amendments replace the “fair argument” standard with a higher standard of proof, called “substantial evidence.” By adopting a higher appeal threshold, the number of citizen appeals will be restricted. Although San Francisco may not even have any constitutional authority to change the “fair argument” legal standard set by State law, this hasn’t stopped or deterred Wiener.
Attorney’s at the University of California, Hastings College of the Law reviewed Wiener’s proposed amendments and concluded: “The Amendments arguably would better reflect state law and streamline the CEQA process for various projects. However, they pose a substantial risk of significantly curtailing public participation and the ability of public officials to make well-informed decisions, contrary to the purpose of CEQA.”
Wiener is only now reaching out to citizens and neighborhood groups throughout the City. He claims that he has been reaching out to citizen groups for months, but no one seems to know who Wiener has talked to, or when. His real ”dialogue” with citizens doesn’t appear to have started until after the Planning Commission’s November 29 meeting.
The Planning Commission voted 6 to 0, rejecting Wiener’s amendments, because they were 1) Confused by his legislative changes, and 2) Wiener appeared to have little, if any, citizen input or support for his proposed legislation.
Strangely, Wiener started out his comments to the Planning Commission by insulting citizen attendees, stating “Today you’ll hear quite a bit of hyperbolic rhetoric about how this legislation somehow undermines or guts CEQA and how it will cause the sky to collapse onto the earth.” His opening remarks were both a poor way to build consensus among neighborhood groups, and a poor way to convince Planning Commissioners of the rightness of his proposed legislation.
Wiener’s attempt to “fix” CEQA is eerily reminiscent of what went wrong with Proposition E, Wiener’s failed November 2011 ballot measure to allow the Board of Supervisors or the Mayor permission to amend or appeal legislation previously approved by voters.
First, Wiener finds, or creates, a problem. Then, he tries to simplify/streamline or solve the problem by making it more legislatively complex to “benefit the public.” Lastly, he places restrictions on the public to solve the problem he has magnified. Wiener is quickly developing a history of creating legislation that places limits on citizens rights.
Attorney Mary Miles may have said it best in her November 15 letter to the Planning Commission: “The purpose of [Wiener’s] proposed ordinance is to ‘streamline’ approvals, by denying the public adequate time to appeal actions of the Planning Commission and other decision-making bodies to the Board of Supervisors, by limiting the public’s right to be heard, by imposing restrictions on such appeals that violate CEQA, and by imposing burdens that limit the public’s right to participate in the CEQA process. The proposed legislation defeats CEQA’s principal purposes of informed self-government, participation in the decision-making process, and protection of the environment.”
Many of the issues Wiener has been embroiled with have involved curtailment of public participation. Proponents of CEQA protections need to unite with other groups alarmed by Wiener’s legislative agenda; he needs to be stopped, before he steamrolls the door shut any further, curtailing citizen involvement in our own democracy.
– George Wooding, Coalition of San Francisco Neighborhoods