(a) CEQA provides that certain projects are exempt from CEQA because: the project is exempt by statute ("statutory exemption"); the project is in a class of projects that generally do not have a significant effect on the environment ("categorical exemption"); CEQA streamlining procedures allow reliance on a prior environmental document prepared on a zoning or planning level decision, for example, as provided in community plan areas and for specified urban infill projects ("community plan exemption"), except as might be necessary to examine whether there are project-specific significant effects, which are peculiar to the project or its site; or the activity is covered under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment, thus, where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA ("general rule exclusion"). Unless otherwise specifically stated, reference in this
Chapter 31 to "exemptions" or "exempt from CEQA" or an "exemption determination" shall collectively refer to statutory exemptions, categorical exemptions, community plan exemptions and general rule exclusions.
(b) For categorical exemptions:
(1) Each public agency must list the specific activities that fall within each such class, subject to the qualification that these lists must be consistent with both the letter and the intent of the classes set forth in CEQA.
(2) The Environmental Review Officer shall maintain the required list of the types of projects which are categorically exempt, and shall post it in the offices of the Planning Department and on the Planning Department website, and shall provide it to all City departments. Such list shall be kept up to date in accordance with any changes in CEQA and any changes in the status of local projects. The initial list and any additions, deletions and modifications thereto shall be adopted as administrative regulations by resolution of the Planning Commission after public hearing, according to the procedure set forth in Section
31.04(e) of this Chapter.
(3) CEQA allows public agencies to request that the Secretary of the Resources Agency make additions, deletions and modifications to the classes of projects listed as categorically exempt in CEQA. The Planning Commission shall make any such requests, after a public hearing thereon held according to the procedure specified in Section
31.04(e) of this Chapter for adoption of administrative regulations.
(c) The Environmental Review Officer may create necessary forms, checklists and processing guidelines to aid the Planning Department and other departments in determining whether a project may be exempt in accordance with the letter and the intent expressed in CEQA and with the administrative regulations adopted by the Planning Commission.
(d) The Environmental Review Officer shall advise other departments of the requirements of CEQA for determining whether a project is exempt from environmental review. The Environmental Review Officer may delegate the determination whether a project is exempt from CEQA to other departments, provided that other departments shall consult with the Environmental Review Officer regarding the application of exemptions. Further, at the time of each exemption determination, such other departments shall inform the Environmental Review Officer and provide to the Environmental Review Officer a copy of the exemption determination containing the information specified in Section
31.08(e) of this
Chapter 31. The Environmental Review Officer shall be responsible for all determinations so delegated to other departments. When the Planning Department or other City department determines that a project is exempt from CEQA, the issuance of the exemption determination shall be considered an exemption determination by the Planning Department. The Environmental Review Officer shall post on its website the same information about exemption determinations issued by other departments as it provides for exemption determinations issued by the Planning Department.
(e) When the Environmental Review Officer, or any other department to which the Environmental Review Officer has delegated responsibility pursuant to Section
31.08(d) above, has determined that a project is exempt from CEQA, the following provisions shall apply:
(1) Posting Exemption Determinations.
(A) For all exemption determinations, the Environmental Review Officer shall post on the Planning Department website the following information about each exemption determination: (1) a project description in sufficient detail to convey the location, size, nature and other pertinent aspects of the scope of the proposed project as necessary to explain the applicability of the exemption; (2) the type or class of exemption determination applicable to the project; (3) other information, if any, supporting the exemption determination; (4) the Approval Action for the project, as defined in Section
31.04(h); and (5) the date of the exemption determination.
(B) For projects that involve the issuance of multiple discretionary permits or other project approvals, in addition to the requirements of Section
31.08(e)(1)(A), the Environmental Review Officer shall describe and evaluate the whole of the project that will result from all discretionary approvals and identify any additional discretionary approvals required other than the Approval Action that are known to the Environmental Review Officer at the time of the issuance of the exemption determination, and post this information on the Planning Department website.
(2) The Environmental Review Officer may issue a Certificate of Exemption from Environmental Review by preparing a written exemption determination containing the information in Section
31.08(e)(1), and by posting a copy in the offices of the Planning Department and on the Planning Department website, and by mailing copies to the applicant, the board(s), commission(s) or department(s) that will carry out or approve the project, and to any organizations and individuals who previously have requested such notice in writing.
(3) The Environmental Review Officer shall prepare a Certificate of Exemption from Environmental Review or comparable written exemption determination and provide notice to the public as provided for in Section
31.08(e)(2) for all projects involving: (A) any historical resources, defined as any buildings and sites listed individually or located within districts (i) listed in Planning Code
Articles 10 or
11, on an historic resource survey that has been adopted or officially recognized by the City, on the California Register or determined eligible for listing on the California Register by the State Historical Resources Commission, including, without limitation, any location listed on or determined eligible for the National Register of Historic Places, or (ii) a resource that the Environmental Review Officer determines, based on substantial evidence, to be a historical resource under Public Resources Code Section 5024.1; (B) any Class 31 categorical exemption; (C) any demolition as defined in Planning Code Section
317 or in Planning Code Section
1005(f) of an existing structure; (D) any Class 32 categorical exemption; or (E) any community plan exemption.
(f) Informing the Public of the Approval Action for a Project as Part of Public Hearing Notice.
(1) When the Planning Department or other City department provides notice of a public hearing on the Approval Action for a project that it has determined to be exempt from CEQA, the notice shall:
(A) Inform the public of the exemption determination and how the public may obtain a copy of the exemption determination;
(B) Inform the public of its appeal rights to the Board of Supervisors with respect to the CEQA exemption determination following the Approval Action and within the time frame specified in Section
31.16 of this Chapter; and
(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.
(2) Additionally, when the Planning Department provides a notice under Planning Code Section 311 or Section 312 of the opportunity to request a discretionary review hearing before the Planning Commission on a Building Permit application, the notice shall:
(A) Contain the information required by this Section
31.08(f) in addition to any notice requirements in the Planning Code;
(B) Inform the notification group that if a discretionary review hearing is requested before the Planning Commission, the Approval Action for the project under this
Chapter 31 will occur upon the Planning Commission's approval of the Building Permit application, if such approval is granted; and
(C) Inform the notification group that if a discretionary review hearing is not requested, the Approval Action for the project will occur upon the issuance of a Building Permit by the Department of Building Inspection, if such permit is granted. The notice also shall advise the notification group of how to request information about the issuance of the Building Permit.
(g) A City board, commission, department or official that grants the Approval Action for a project of the type defined in Section
31.16(e)(2)(B) of this Chapter, which Approval Action is taken without a noticed public hearing as provided for in Section
31.08(f) of this Chapter, shall thereafter arrange for the Planning Department to post on the Planning Department's website a written decision or written notice of the Approval Action for the project that informs the public of the first date of posting on the website and advises the public that the exemption determination may be appealed to the Board of Supervisors as provided in Section
31.16(e)(2)(B) of this Chapter within 30 days after the first date of posting of the notice.
(h)
Filing Notice of Exemption. After the City has decided to carry out or approve the project and the project is considered finally approved as provided for in Section
31.16(b)(11), in accordance with CEQA procedures, the Environmental Review Officer may file a notice of exemption with the county clerk in the county or counties in which the project is to be located. The Planning Department shall also post a copy of the notice of exemption in the offices of the Planning Department and on the Planning Department website, and mail a copy of the notice of exemption to any organizations and individuals who previously have requested such notice in writing.
(i) Modification of Exempt Project.
(1) Where a change occurs to a project that the Environmental Review Officer has determined to be exempt, prior to any subsequent approval actions, the Environmental Review Officer shall determine whether the change is a substantial modification that requires reevaluation as provided for in Section
31.19(b) of this
Chapter 31. A substantial modification of an exempt project requiring reevaluation under Section
31.19(b) shall mean either:
(A) A change in the project as described in the original application upon which the Environmental Review Officer based the exemption determination, or in the exemption determination posted on the Planning Department website at the time of issuance, which would constitute an expansion or intensification of the project as defined in the Planning Code. An expansion or intensification of the project as defined in the Planning Code includes, but is not limited to: (A) a change that would expand the building envelope or change the use that would require public notice under Planning Code Sections 311 or 312, or (B) a change in the project that would constitute a demolition under Planning Code Sections 317 or 1005(f).
(B) New information or evidence of substantial importance presented to the Environmental Review Officer that was not known and could not have been known with the exercise of reasonable diligence at the time the Environmental Review Officer issued the exemption determination that shows the project no longer qualifies for the exemption.
(2) When the Environmental Review Officer determines that a change in a project is a substantial modification, the Environmental Review Officer shall make a new CEQA decision as provided for under Section
31.19(b) of this
Chapter 31. The Planning Department will require payment of fees as defined in the Department's fee schedule for the applicable type of environmental review. When the Planning Commission or Planning Department renders a new CEQA decision for a project after the Approval Action, as provided for in Section
31.19(b), and the City takes a new Approval Action for the project in reliance on the new CEQA decision, the new CEQA decision may be appealed in accordance with the provisions of Section
31.16 of this Chapter, as to those issues associated with the project changes since the original exemption determination.
(3) When the Environmental Review Officer determines that a change in an exempt project is not a substantial modification, the Environmental Review Officer shall post a notice of the determination in the offices of the Planning Department and on the Planning Department website and mail such notice to the applicant, board(s), commission(s) or department(s) that will carry out or approve the project, and to any organizations and individuals who previously have requested such notice in writing.
(j) Appeal of a Determination That Change in Exempt Project Is Not a Substantial Modification.
(1) Within 10 days of the posting of the notice of a determination that a change in an exempt project is not a substantial modification as defined in 31.08(i), an appeal may be filed with the Environmental Review Officer, who is provided for in Section 31.05, including subsection (k), requesting that the Environmental Review Officer reverse the determination and render a new CEQA decision for the project. Such an appeal is not an appeal of a CEQA decision under the California Environmental Quality Act and shall not delay or suspend any permit approval or other discretionary approval authorizing the change in the project, or suspend any construction activity. (2) If such an appeal is filed when a regularly scheduled meeting of the Planning Commission will be held within 20 days of the filing of the appeal, the Environmental Review Officer shall hold a noticed public hearing on the day of a Planning Commission meeting held within such 20-day period, unless the period between the filing of the appeal and the Planning Commission meeting is insufficient to notice the public hearing. If no Planning Commission meeting is held within the 20-day period, or the period between the filing of appeal and the Planning Commission meeting within 20 days of the appeal is insufficient to notice the public hearing, the hearing shall take place on the day of one of the next two regularly scheduled Planning Commission meetings after such 20-day period.
(3) At the public hearing, the Environmental Review Officer shall reconsider the prior determination in light of all information provided by all parties present, including any project sponsor, as well as written information submitted at or before the public hearing.
(4) If after such reconsideration, the Environmental Review Officer determines that the original determination was in error, the Environmental Review Officer shall render a new CEQA decision for the project in accordance with the requirements of CEQA and this Chapter 31. Any prior permit approval or other discretionary approval authorizing the change in the project shall be suspended by the decision-maker who approved the project until the Environmental Review Officer issues a new CEQA decision. If the Environmental Review Officer determines that the project as modified is exempt from CEQA and makes a new exemption determination in accordance with this Chapter 31, any suspended approval shall be reinstated and valid as of the date of the original approval. However, if the Environmental Review Officer identifies a suspended approval as the Approval Action for the modified project, the date of the Approval Action for the modified project, for purposes of this Chapter 31 only, shall be the date the approval is reinstated. If the Environmental Review Officer determines that the modified project is not exempt, and an initial study is required, any prior approval for the modified project shall be void. (5) If after such reconsideration, the Environmental Review Officer determines that the original decision was not in error, the original determination of the Environmental Review Officer shall be final and no further appeal to any body of the City and County of San Francisco of the determination that the change in the project is not a substantial modification shall be granted, including without limitation, the Board of Appeals.
(6) The Environmental Review Officer shall issue a written decision on the appeal within 14 days of the public hearing, and an oral report of the decision shall be provided to the Planning Commission at the next possible meeting after such decision.
(7) To the extent feasible, and subject to the budgetary and fiscal provisions of the Charter, such hearing shall be video-recorded and broadcast by the official television channel of the City and County of San Francisco. At a minimum, such hearing shall be video-recorded and made available on the website of the City and County of San Francisco.
(8) The Planning Department may adopt additional procedures for such appeals.
(Added by Ord. 40-01, File No. 001007, App. 3/16/2001; amended by Ord. , File No. 121019, App. 7/26/2013, Eff. 8/25/2013, Oper. 9/25/2013 [see note at end of Article]; Ord. , File No. 130464, App. 8/7/2013, Eff. 9/6/2013, Oper. 9/25/2013 [see note at end of Article])
Editor's Note regarding Operative Date of Ords. and .
Ordinance 161-13 amends sections of this Article, as shown in the history notes above. Section 6 of that ordinance provides as follows:
Operative Date. This ordinance shall become operative on the later date of September 1, 2013, or five business days after the Secretary of the Planning Commission provides a memorandum to the Clerk of the Board of Supervisors advising that the Planning Commission has held a public hearing at which the Planning Department has demonstrated to the Planning Commission that it has updated its website to provide up-to-date information to the public about each CEQA exemption determination in a format searchable by location, such as through the "Active Permits In My Neighborhood" tool now used by the Planning Department and the Building Department.
Ordinance 181-13 further amends Sec.
31.08 (only). Section 4 of that ordinance includes an Operative Date provision effectively identical to that included in Ord. 161-13 and quoted above.
At the direction of the Office of the City Attorney, the publisher incorporated the amendments made by Ords. 161-13 and 181-13 into this Code on September 25, 2013.
