(a)
Decisions Subject to Appeal. In accordance with the provisions set forth in this Section 31.16, the following CEQA decisions may be appealed to the Board of Supervisors (the "Board"): (1) certification of a final EIR by the Planning Commission; (2) adoption of a negative declaration by the first decision-making body; and (3) determination by the Planning Department or any other authorized City department that a project is exempt from CEQA. (b) Appeal Procedures. In addition to the applicable requirements of Section 31.16(c) pertaining to EIRs, Section 31.16(d) pertaining to negative declarations or Section 31.16(e) pertaining to exemption determinations, the following requirements shall apply to an appeal of any of the decisions listed in Section 31.16(a). (1) The appellant shall submit a letter of appeal to the Clerk of the Board within the time frames set forth in Sections 31.16(c), (d), or (e), as applicable. The letter of appeal shall state the specific grounds for appeal, and shall be accompanied by a fee, as set forth in Section 31.22 of this Chapter, payable to the San Francisco Planning Department. The appellant shall sign the letter of appeal, or may have an agent, file an appeal on his or her behalf. The appellant shall submit with the appeal a copy of the CEQA decision being appealed, if available, and otherwise shall submit it when available. The appellant shall submit a copy of the letter of appeal and any other written materials submitted to the Clerk in support of the appeal to the Environmental Review Officer at the time appellant submits the letter of appeal to the Clerk of the Board. The submission to the Environmental Review Officer may be made by electronic means. An appeal shall be accepted by the Clerk with notice given to the appellants that the acceptance is conditioned upon the Planning Department determining that the appeal of the CEQA decision, whether rendered by the Planning Department or another City commission, department, agency or official, has been filed in a timely manner, and the Clerk otherwise determining that the appeal complies with the requirements of this section. The Planning Department shall make such determination within three working days of receiving the Clerk's request for review. Within seven working days of the filing of the appeal the Clerk shall mail notice to the appellants of the acceptance or rejection of the appeal. The Clerk of the Board may reject an appeal if appellant fails to comply with this Section 31.16(b)(1). (2) After receipt of the letter of appeal, the Environmental Review Officer shall promptly transmit copies of the environmental review document no later than 11 days prior to the scheduled hearing to the Clerk of the Board and make the administrative record available to the Board.
(3) For projects that require multiple City approvals, after the Clerk has scheduled the appeal for hearing and until the CEQA decision is affirmed by the Board, (A) the Board may not take action to approve the project but may hold hearings on the project and pass any pending approvals out of committee without a recommendation for the purpose of consolidating project approvals and the CEQA appeal before the full Board, and (B) other City boards, commissions, departments and officials shall not carry out or consider further the approval of the project that is the subject of the CEQA decision on appeal except activities that are essential to abate hazards to the public health and safety, including abatement of hazards on a structure or site determined by the appropriate City official, including but not limited to the Director of Building Inspection, the Director of Public Works, the Director of Public Health, the Fire Marshal or the Port Chief Engineer, to be an emergency presenting an imminent hazard to the public and requiring immediate action.
(4) The Clerk of the Board shall schedule a hearing on the appeal before the full Board. The Clerk shall schedule the hearing no less than 21 and no more than 45 days following expiration of the time frames set forth in Sections 31.16(c), (d), or (e), as applicable, for filing an appeal. If more than one person submits a letter of appeal, the Board President may consolidate such appeals so that they are heard simultaneously. The Clerk shall provide notice of the appeal by mail to the appellant or appellants and to all organizations and individuals who previously have requested such notice in writing. The Clerk shall provide such notice no less than 14 days prior to the date the appeal is scheduled to be heard by the Board. The Planning Department shall provide to the Clerk of the Board the list of individuals and organizations that have commented on the decision or determination in a timely manner, or requested notice of an appeal, no less than 20 days prior to the scheduled hearing. (5) Members of the public, appellant and real parties in interest or City agencies sponsoring the proposed project may submit written materials to the Clerk of the Board no later than noon, 11 days prior to the scheduled hearing. The Clerk will distribute any written document submitted by noon, eight days prior to the scheduled hearing to the Board through the Board's normal distribution procedures.
(6) The Board shall conduct its own independent review of whether the CEQA decision adequately complies with the requirements of CEQA. The Board shall consider anew all facts, evidence and issues related to the adequacy, accuracy and objectiveness of the CEQA decision, including, but not limited to, the sufficiency of the CEQA decision and the correctness of its conclusions.
(7) The Board shall act on an appeal within 30 days of the date scheduled for the hearing, provided that if the full membership of the Board is not present on the last day on which the appeal is set for a decision within said 30 days, the Board may postpone a decision thereon until, but not later than, the full membership of the Board is present; and provided further, if the Board of Supervisors does not conduct at least three regular Board meetings during such 30 day period, the Board of Supervisors shall decide such appeal within 40 days of the time set for the hearing thereon or at the next regularly scheduled Board meeting should such deadline fall within a Board recess; and provided further that the latest date to which said decision may be so postponed under this Section shall be not more than 90 days from the expiration of the time frames set forth in Sections 31.16(c), (d), or (e), as applicable, for filing an appeal. (8) The Board may affirm or reverse any CEQA decision by a vote of a majority of all members of the Board. A tie vote shall be deemed to be disapproval of the CEQA decision. The Board shall act by motion. The Board shall adopt findings in support of its decision, which may include adoption or incorporation of findings made by the Planning Commission, Environmental Review Officer or other City department authorized to act on the CEQA decision below. If the Board reverses the CEQA decision, the Board shall adopt specific findings setting forth the reasons for its decision.
(9) If the Board affirms the CEQA decision, the date of the final EIR, the final negative declaration, or final exemption determination shall be the date upon which the Planning Commission, Planning Department, Environmental Review Officer or other authorized City department, as applicable, first certified the EIR adopted the negative declaration or issued the exemption determination and any actions approving the project made prior to the appeal decision shall be deemed valid.
(10) If the Board reverses the CEQA decision, the prior CEQA decision and any actions approving the project in reliance on the reversed CEQA decision, shall be deemed void.
(11) The date the project shall be considered finally approved shall occur no earlier than either the expiration date of the appeal period if no appeal is filed, or the date the Board affirms the CEQA decision, if the CEQA decision is appealed.
(c) Appeal of Environmental Impact Reports. In addition to those requirements set forth in Section 31.16(b) above, the following requirements shall apply only to appeals of EIRs. (1) Any person or entity that has submitted comments to the Planning Commission or the Environmental Review Officer on a draft EIR, either in writing during the public review period, or orally or in writing at a public hearing on the EIR, may appeal the Planning Commission's certification of the final EIR.
(2) The appellant of a final EIR shall submit a letter of appeal to the Clerk of the Board no later than 30 days after the Planning Commission's certification of the EIR.
(3) The grounds for appeal of an EIR shall be limited to whether the EIR complies with CEQA, including whether it is adequate, accurate and objective, sufficient as an informational document, correct in its conclusions, and reflects the independent judgment and analysis of the City and whether the Planning Commission certification findings are correct.
(4) The Board shall affirm the Planning Commission's certification of the final EIR if the Board finds that the final EIR complies with CEQA, including that it is adequate, accurate and objective, sufficient as an informational document, correct in its conclusions, and reflects the independent judgment and analysis of the City and that the Planning Commission certification findings are correct.
(5) The Board shall reverse the Planning Commission's certification of the EIR if the Board finds that the EIR does not comply with CEQA, including that it is not adequate, accurate and objective, is not sufficient as an informational document, that its conclusions are incorrect or it does not reflect the independent judgment and analysis of the City, or that the Planning Commission certification findings are incorrect. If the Board reverses the Planning Commission's certification of the final EIR, it shall remand the final EIR to the Planning Commission for further action consistent with the Board's findings. Any further appeals of the EIR shall be limited only to the portions of the EIR that the Planning Commission has revised and any appellant shall have commented on the revised EIR at or before a public hearing held on the revised EIR or the project, if any, The Board's subsequent review, if any, also shall be limited to the portions of the EIR that the Planning Commission has revised including, without limitation, new issues that have been addressed. Any additional appeals to the Board shall comply with the procedures set forth in this Section 31.16. (d) Appeal of Negative Declarations. In addition to those requirements set forth in Section 31.16(b) above, the following requirements shall apply only to appeals of negative declarations. (1) Any person or entity that has filed an appeal of the preliminary negative declaration with the Planning Commission during the public comment period provided by this Chapter 31 for filing comments on the preliminary negative declaration may appeal the Planning Commission's approval of the final negative declaration. (2) The appellant of a negative declaration shall submit a letter of appeal to the Clerk of the Board after the Planning Commission approves the final negative declaration and within 30 days after the Date of the Approval Action for the project taken in reliance on the negative declaration.
(3) The grounds for appeal of a negative declaration shall be limited to whether, in light of the whole record before the Board, the negative declaration conforms to the requirements of CEQA and there is no substantial evidence to support a fair argument that the project may have a significant effect on the environment, and in the case of a mitigated negative declaration, the adequacy and feasibility of the mitigation measures.
(4) The Board shall affirm the Planning Commission approval of the negative declaration if it finds that the negative declaration conforms to the requirements of CEQA and that the record does not include substantial evidence to support a fair argument that the project may have a significant effect on the environment.
(5) The Board shall reverse the Planning Commission approval of the negative declaration if it finds that the negative declaration does not conform to the requirements of CEQA or there is substantial evidence to support a fair argument that the project may have a significant effect on the environment that has not been avoided or mitigated to a less than significant level by mitigation measures or project modifications agreed to by the project sponsor or incorporated into the project. If the Board reverses the decision of the Planning Commission, it shall remand the negative declaration to the Planning Department for further action consistent with the Board's findings.
(A) In the event the Board remands the negative declaration to the Planning Department for revision, the Environmental Review Officer shall finalize the revised negative declaration and send notice to the public, as set forth in Section 31.11 of this Chapter, of the availability of the revised negative declaration. No appeal to the Planning Commission of the revised negative declaration shall be required. In the event an organization or individual wishes to appeal the revised negative declaration, such appeal shall be made directly to the Board of Supervisors within 30 days of publication of the revised negative declaration and shall comply with the procedures set forth in this Section 31.16. The Board's subsequent review, if any, shall be limited to the portions of the negative declaration that the Planning Department has revised. (B) In the event the Board determines that a project may have a significant effect on the environment that cannot be avoided or mitigated to a less than significant level and, therefore, an EIR is required, the Planning Department shall prepare an EIR in accordance with CEQA and this Chapter 31. Any subsequent appeal to the Board shall comply with the procedures set forth in this Section 31.16. (e) Appeal of Exemption Determinations. In addition to those requirements set forth in Section 31.16(b) above, the following requirements shall apply to appeals of exemption determinations. (1) Any person or entity may appeal the exemption determination by the Planning Department or other authorized City department to the Board.
(2) The appellant of an exemption determination shall submit a letter of appeal to the Clerk of the Board within the following time frames as applicable:
(A) For a private project seeking a permit, license or other entitlement for use for which the City otherwise provides an appeal process for the entitlement, the appeal of an exemption determination shall be filed after the Planning Department issues the exemption determination and within 30 days after the Date of the Approval Action, regardless of whether the Approval Action is subject to a shorter appeal period. Departments that issue permits or entitlements supported by exemption determinations shall take steps as they determine appropriate to advise applicants seeking permits, licenses or other entitlements for use of the 30-day appeal period for the exemption determination.
(B) For all projects not covered by Section (A):
(i) If the Approval Action is taken following a noticed public hearing as provided for in Section 31.08(f) of this Chapter, the appeal of an exemption determination shall be filed after the Planning Department issues the exemption determination and within 30 days after the Date of the Approval Action. (ii) If the Approval Action is taken without a noticed public hearing as provided for in Section 31.08(f) of this Chapter, the appeal of an exemption determination shall be filed after the Planning Department issues the exemption determination and within 30 days after the first date the Planning Department posts on the Planning Department's website a notice as provided in Section 31.08(g) of this Chapter. (C) As to an exemption determination for a project for which no City entity posted the exemption determination on the City's website or otherwise provided public notice of the exemption determination under this Chapter 31, an appeal may be filed within 30 days following the appellant's discovery of the exemption determination. (3) The grounds for appeal of an exemption determination shall be limited to whether the project conforms to the requirements of CEQA for an exemption.
(4) The Board shall affirm the exemption determination if it finds that the project conforms to the requirements set forth in CEQA for an exemption.
(5) The Board shall reverse the exemption determination if it finds that the project does not conform to the requirements set forth in CEQA for an exemption. If the Board finds that the project does not conform to the requirements set forth in CEQA for an exemption, the Board shall remand the exemption determination to the Planning Department for further action consistent with the Board's findings. In the event the Board reverses the exemption determination of any City department other than the Planning Department, the exemption determination shall be remanded to the Planning Department, and not the City department making the original exemption determination, for consideration of the exemption determination in accordance with the Board's directions.
(Added by Ord. , File No. 121019, App. 7/26/2013, Eff. 8/25/2013, Oper. 9/25/2013 [see note at end of Article])
(Former Sec. 31.16 added by Ord. 40-01, File No. 001007, App. 3/16/2001; deleted by Ord. , File No. 121019, App. 7/26/2013, Eff. 8/25/2013, Oper. 9/25/2013 [see note at end of Article])
(Former Sec. 31.16 amended by Ord. 166-74, App. 4/11/74; repealed by Ord. 40-01, File No. 001007, App. 3/16/2001)
