[inaudible] >> procedures, appeal of exempt project modificationses ordinance. >> garv, commissioners. ann marie rodgers, planning department staff. ~ good afternoon we are here today to continue the discussion for our local processes appeals of super documents. earlier today you heard about

the collaborative efforts at [speaker not understood] board meeting. resulted from a merger of supervisor kim's proposal and supervisor wiener's proposal by supervisor chiu. that was a resolution on tuesday that was welcome, i believe, to all. now let's talk about why we are here today. today we are here to talk about a trailing ordinance which would add another concept into our local c-e-q-a appeal procedures. this proposed change could not be added into the original ordinances as it is a supplemental amendment that was not considered by either this commission nor the hpc. the case report before you describes supervisor kim's proposed trailing ordinance. this would provide for an appeal hearing before this commission of the planning department decision that an exempt projects modification does not require a new c-e-q-a document. therefore, also describes a similar proposal laid out in a letter from supervisor chiu. however, in chiu's proposal, appeal would have been before

the environmental review officer and not the planning commission. today our task may have gotten a bit easier. yesterday we received and i believe you received today a new draft ordinance from supervisor kim's office. this new ordinance codifies the language that supervisor chiu had described in the letter that is in your packets. so, now supervisor chiu and supervisor kim are requesting the same process, and here is a summary of that joint proposal. their amendment provides for a process to appeal a decision by the environmental review officer that a change to an exempt project is not a substantial modification, and therefore enables a challenge to the e.ro's decision that the project does not require a new c-e-q-a document. the ordinance would establish a hearing process before the ero. the ero would be required to consider his or her prior decision in light of any new information submitted before or

at the hearing. this appeal must be filed within 10 days of that original decision. the hearing must have been within 20 days of the appeal and the hearing will be on the same day as the planning commission regularly scheduled meeting. the hearing must be video recorded. this recording is posted on the city's website and if feasible, broadcast on the city's official televised channel. the ero must then render their decision within 14 days of that hearing. so, this is the proposed joint ordinance. and now i'd like to introduce supervisor kim to describe that a little bit and then -- i'm sorry, andres power is here from supervisor wiener's office and then i'll go through the department recommendation. thank you. >> thank you, am i rodgers, and thank you all, planning commission, it's great to be back here. it's great to report back that we were able to unify two

legislations regarding how to bring a process for our c-e-q-a negative declaration exemptions together. and we're really thrilled that we are able to pass it unanimously on tuesday. and we're excited to see that we now have a deadline officially in place for exemptions and negative declaration decks, 30 days after first approval which was something we had compromised on, but we were able to get a number of other things, including using technology for public notification. thanks to the commission for your support on that so that we can have a transparent and accessible process for members of the public to engage in our planning processes, that we were able to get a prioritization consideration for affordable housing and bicycle ped safety, the public notification of exemption determinations, and establishing deadlines for the board to adequately review the file prior to appeal hearing. ~ deck so, there are a number of things that have come together. this was really the last piece of that.

our office had originally introduced trailing legislation. we originally tried to amend the legislation that came before you, but it was considered significant and different enough that the city attorney advised that we should come before the planning commission hpc to get your feedback which we want to do. and, so, we had originally one remaining piece of the community had brought forward to us was when there is a modification when a department has [speaker not understood] there may be modification, bring it to the attention of the ero and the ero makesed determination [speaker not understood] same c-e-q-a exemption determination, that there be an ability for the public to be able to appeal that decision in a public hearing. we had originally written it that it would come before the planning commission. through this negotiation process which you noe all of us at the board of supervisors regularly engage in, ~ know, we had come to a compromise what that would look like to get

support from this board. and, so, the agreement was that instead of before the full planning commission, i know your meetings are long enough, that this would actually go before the ero herself or himself to have a hearing, after which there would be a written response once that person or the staff has considered the reasoning behind the public for the appeal. so, that is what is before you today. we do have six co-sponsors on this trailing legislation. we would love your feedback. we were excited to have the support of the historical preservation commission, 6-1 yesterday. they had some feedback for us as well, so, we want to really hear from the planning commission before we move forward with this at the full board and hopefully we can finish it before legislative recess. ms. rodgers actually went through the details of what this new proposal looks like, and i know you have a copy with you today. so, i'm happy to take feedback, answer any questions, but we do

want to thank the staff at planning, in particular sarah jones who is our ero who has been working closely i know with the community advocates and president chiu's office on this compromise legislation. of course, our city attorney elaine warren who drafted so many drafts of this legislation. all of us were starting to lose count of what we were looking at. but, again, look forward to continuing this process with you. thank you. >> thank you. there will be questions following. >> and i do apologize, i'll have to take off in about 5 minutes for moscone expansion meeting. >> okay. >> good afternoon, commissioners, andres powers with supervisor scott wiener's office. two years after a year of public process, six years at the land use committee, three hearings at the hpc, two hearings at planning, numerous

stakeholder meetings and large round table discussions, [speaker not understood] unanimously passed supervisor wiener's legislation. it was long overdue by a decade. [speaker not understood] and noticing rules through c-e-q-a appeals to the board of supervisors. so, on behalf of the supervisor, i would like to thank the planning commission for your thoughtful deliberations and useful input throughout this prolonged process. before you today is trailing legislation offered by supervisor kim. having now had an opportunity to fully review and consider the legislation, the supervisor is willing to support it, although perhaps not necessarily [speaker not understood] entirely necessary. but this support is conditioned on three very important points which intends to introduce his amendments at the land use committee. and the first is that a filing of an appeal of the ero's determination that a product pro*et modification has not occurred shall not in any way delay the entitlement, permitting, and construction activity of a project. in public comment yesterday at the hpc as well as the [speaker

not understood] from supervisor kim's office, it was clearly stated that the intent was that this hearing and appeal in this context would not delay a project. supervisor scott wiener wants to make that notion explicit. the second point is that after a decision is made at this appeal hearing, no further appeals to any other body on the matter of this determination as to whether a project has modified or not shall be allowed. in other words, that decision is absolutely final and there is not another appeal avenue available. and then lastly, consistent with chapter 31 which is the admin code is the chapter admin code that houses these procedures. we want to make it explicit that this hearing can be conducted by the ero or a designee of the ero. it doesn't necessarily need to be the ero that sits before the

hearing. so, again, it would be some important amendments, supervisor wiener is willing to support the amended legislation and i look forward to hearing your comments. thank you. >> thank you. >> ann marie rodgers again with department staff. our response to the department to this proposal remains the same. with the passage on first reading of the ordinance on tuesday, the city now has an extremely concrete definition of what a substantial modification is. a substantial modification is specifically designed to include all changes in project scales that are regulated under the planning code, or the submittal of any new information. is it a change to something we regulate? then it needs a new c-e-q-a document. has new information been submitted? then it needs a new c-e-q-a document. the decision of the ero today without that ordinance is truly a decision that is left at the discretion of the ero.

as this new law takes effect, it would be merely an application of law without discretion. this is the main reason we believe a new hearing process for appeals should not be established. in addition, i'd like to describe two other reasons why we believe a new process is not warranted. first, there is an existing avenue for appeal. if a member of the public believes that a new permit is based on a c-e-q-a review of a substantially different project, that permit may be appealed to the board of appeals. the board of appeals is the proper venue for appeal of improperly issued permits. we heard yesterday at hpc hearing some folks don't like the board of appeals, that it's too hard [speaker not understood], but just because you don't like the process doesn't mean it isn't already there. number two, this would be a substantially new process without an overriding need. we reviewed the last 10 years' worth of appeals and found that

modified projects were not the issue in past appeals. so, all of the appeals we had to date, you can appeal up to the very end. so, there is an opportunity to appeal modified projects, but that wasn't the case. most of the c-e-q-a appeals involved projects that have already received discretionary review. these projects were known to neighbors and were of concern at the time of the approval. and since the primary goal of the chapter 31 amendments is to provide clarity and certainty in reviewing appeals, the creation of an additional appeal opportunity could serve to undermine that goal. adding process is something that happens over time and is often warranted. in this case, the department believes this would add potential expenses to every permit we review and to the applicants of those permits. without any real public benefit. in conclusion, the department supports public accountability, oversight, and transparency on all matters. the department would support a written mechanism to address modification question.

this would allow individuals with concerns about substantial modification to submit a written petition stating their concerns to the ero and the ero would have the opportunity to review that and reconsider the decision. under the pending chapter 31 amendments before the board, there is substantially more certainty. projects that change any substantive matter after their approval would require c-e-q-a -- new c-e-q-a analysis, which would be newly appealable for ceqa. the issue of minor project changes does not merit the creation of a new hearing mechanism which would require unsupported staff time and provide the opportunity of opponents to create delays. further, today we ask that you advise the board that the requirement for televised hearings be removed. this hearing procedure has been compared to the va variance hearing, but though hearings are not televised. these new ero hearings are

reported to be infrequent and therefore unpredictable occurrences. if that's the case, providing televised coverage which you know is very expensive, would be an incredible logistical burden. and it would be one that would have to be passed on to permit applicants. therefore, we ask that if this does get forwarded to the board, that you advise that the televised hearing requirement be removed. i'm sorry, i forgot to mention i'm joined today by the ero so she's here. if you have any questions as am i. thank you. >> okay, thank you. >> has also arrived from supervisor chiu's office so he'd like to say a few words first. ~ [speaker not understood] >> are you sure? i know you have to leave. since you're the author, did you want to -- do you have any questions for supervisor kim? any questions? >> so, i do want to ask, my

concern is about planning department resources, staff time, the time it takes to come to the chambers and on and on. so, i do want to ask if you can give a sense, this is part of a larger negotiation, [speaker not understood], what the type of problem we're seeking to look out for. what kind of projects is there concern about that will go through different modifications that would then, you know, sort of circumvent the system? is it single-family homes? is it parks projects? you know, what kind of projects did community members talk about that they were worried about? >> i think it's challenging because we're coming to you today only with this piece of trailing legislation. this is one piece of the entire universe of what we've come together in terms of what we thought would be a balanced approach in terms of assuring

that community has a voice in this process, but that we were also creating real deadlines and ensuring that projects that should go through do go through with proper vetting. there wasn't a specific type of project that was brought forth. originally the concern was, of course, that we don't have -- we did not have a true definition of what a substantial modification meant. of course, the legislation has been able to address that and i think that's incredibly important. the key types of projects i've been hearing about from members of the community are the parks essentially. and we're talking about exemption projects, right, so, we're really talking about kind of smaller scale types of projects. the community really just wants an opportunity to engage and this was considered the compromise solution in terms of being able to give community that voice and being able to articulate in public why they felt like this fit under the definition of substantial modification and to have that dialogue with planning. we kind of carefully tailored this in a way that was

acceptable to, you know, the six members of the board, hopefully all 11 by the time this comes to the full board. so, that will be my -- that's my response to your question. >> thank you. and i also wanted to add that justin true is here. he will say a couple words on behalf of president chiu, ~ but he will be able to aptly answer any questions there might be from this commission. i do want to thank you for your time and attention. i know this has been a lot for the commission as well. so, thank you. >> thank you. mr. chiu. >> good afternoon, president fong, commissioners. [speaker not understood]. justin true, legislative aid to david chiu, board president, board of supervisors. i'm sorry i wasn't here at the beginning of the meeting, but it's good to be here now and i appreciate supervisor kim's confidence in my ability to answer your questions. i think she ably stated the context of this measure that's before you today. over the past four or five

months in particular since supervisor wiener's original proposal arrives at the land use committee in march and supervisor kim put forward another proposal, supervisor chiu has worked closely with a wide awry of advocates and members of neighborhood groups and environmental groups to work on changes to the broader legislation to reach agreement. ~ array and i'm happy to report as i'm sure ms. rodgers discussed earlier that that was achieved at the board of supervisors on tuesday with a unanimous vote on the larger underlying piece of legislation. and i want to talk this opportunity here before the commission to express my deep appreciation and supervisor chiu's deep appreciation for the extremely professional work of sarah jones and dedicated work as well as deputy city attorney elaine warren and ann marie rodgers herself who was definitely involved quite a bit. it was really, i think a lot of people thought we wouldn't be able to get there, that we wouldn't be able to come to an overall agreement on even the

ground rules for how we handle c-e-q-a appeals here in san francisco, but i'm very glad that we proved those skeptics wrong. on this particular measure, it really was about a level of comfort that some of these -- some of the coalition and members and advocates wanted to feel about the decisions within the planning department, when a project changes in some way. i think that could either be a building permit that comes up later in a project that someone might believe -- representatives a substantial modification under the agreed upon language, or for public project, some additional body that's approving it. i believe those are the contexts that this would come up. and, you know, president chiu was generally comfortable with supervisor wiener's legislation without this process, but understood the concerns of advocates and coalition members and thought that in the interest of the larger agreement this was an understandable effort to bring some daylight in a public

hearing of the ero's decision around the fact that a change in the project is not a substantial modification. so, that's how we got to where we are today. i understand staff's position on this that staff presented, but my main point, i believe, would be really the context of how this come to you, which i know is not technically before you, but it's significant. so, that's really my initial comments. >> all right, thank you. is there any additional staff or supervisor or aide -- okay. we'll go ahead and open it up for public comment and then maybe some questions for staff. calling a few names. eric brooks. tess well born. [speaker not understood], and howard wong. good afternoon, commissioners.

i'm coordinator for [speaker not understood]. you got my letter i sent a couple days ago by e-mail. just to get into some real basics about this, please understand that it's not as it states in the new ordinance. it is not a c-e-q-a appeal. it does not delay the project. we're going to further clarify that on monday. all this is is an administrative remedy so if we feel like the ero has made a mistake on a determination that something doesn't need a new review, then we can simply go to the ero in a public hearing and say, please look at this again. here's some new information. please reconsider your decision. and then it's entirely up to the ero. the reason that's so important to have the ero do this is that the ero is the one that makes the the decision. it's the expert on environmental issues and also the ero is the one we want to hold accountable. so, originally we wanted this to be the full board of supervisors or the planning commission. from opponents we got a lot of resistance to that and we've

been operating on this, even though this has been combative, our whole posture on this is to compromise when needed. so, we decided to compromise would be the ero and the reason that we want to stick to that is -- in a public hearing, then any future ero that plays games will know they've got to face the hearing. they'll be accountable for their mistakes or miss deeds. current ero does a pretty good job, but we want to make sure that there's accountability. as to commissioner wu, your question about why this is important, currently under the current law before that new law that passed on tuesday takes effect, we, of course, can appeal after the final approval. and even thoughv that doesn't specify modifications, a lot of projects have a lot of modifications and a lot of times those modifications are not appropriate. ~ and the fact that we're able to appeal the whole c-e-q-a decision after the end of the process has allowed us to capture all of those

modifications and not allow a project to go forward when it's not right because you can kind of tie it into the c-e-q-a decision. so, now that we have agreed, we decided to go ahead and say, all right, do the first approval, but especially sierra club specifically stated this, that we must have this appeal ability to go along with what passed on tuesday. that's why we supported what passed on tuesday. and it's because what we passed on tuesday eliminates our ability to use that appeal after a final action to capture these problem cases like the mel murphy house. i'm sure you've seen them before. so, this is all vital to us. as far as we're concerned, our support of the whole package is contingent on this and we want this to go forward with the package. and this is a really simple thing to ask for. we're not asking for too much. it doesn't even hold the project. so, thanks.

good afternoon, commissioners. my name is hiroshi fakuda and i'm the chair of the coalition for san francisco for neighborhoods land use and housing committee. [speaker not understood] and i was part of this -- the going to c-e-q-a coalition. this whole process as stated before is a long time coming. it's been 10 years and there have been three other supervisors who attempted to make changes in the c-e-q-a process. and the three previous attempts do not deal at all with first approval. it did not change the final approval trigger for ceqa appeal as a trigger point. now, this one does. and this was a very important, very important issue for the coalition, for the community coalition. we drew a line in the sand and

said, this is what we want. we cannot accept anything less. and it was adamant. we all said, yes, that is the first thing we want and we cannot give that up. well, guess what? as always, you know, times change, situations change, and we are forced -- we are told that that is not possible. and, so, in order to accept that, [speaker not understood] and we said, well, then as a compromise, we have to have the opportunity to have a hearing, a public hearing with the ero. and i don't believe that's asking too much. we gave up a very, very important first step. you know, we swallowed hard and we accepted the first [speaker not understood] trigger. i think to ask for this is not

asking too much. the planning department, they get things right sometimes, maybe most of the time. but on the other hand, there are many occasions in which the trips to court have proved they were not correct. the housing element, the 2004 housing element, we went to court and the court had to tell them that, no, you need to do a full e-i-r. in regards to the bike plan, they tried to do it without an e-i-r. the court told them again, it is not correct, you need an environmental impact report. and more recently, i believe in the ace of live nation [speaker not understood] auditorium, there again, they had to do a new e-i-r. so, if the planning department doesn't get it right 100% of the time. ~ and sarah jones, i'm sure she's very competent, but she may on

occasion miss. so, this gives us an opportunity [speaker not understood]. howard wong representing san francisco tomorrow. i'm the architect who has worked on and managed many projects for the city of san francisco and also have been involved with my own neighborhood projects as well. the issue that -- in supervisor chiu's letter to you, we agree this is the final piece of the puzzle and answers the question, what happens when a project changes? currently, in our existing system, there is certain logic to having appealable processes when a project is developed to a point where you truly understand it rather than a first approval. but what we're talking about now is if we have a first

approval, how do we remedy a process where an initial determination may be made in error or incorrect, which has happened. what happens when that initial project description is vague or incorrect? which has also been -- which has happened. and, of course, a mentioned, all projects evolve and change. so, rarely do we see any project, whether small or large, remain constant. the initial determination of a project, if it's incorrect or any point afterwards, in my opinion, having the ability to question that is very, very important obviously because if it moves to far, there are certain consequences that we've seen in many projects.

we don't think that it delays the project to have a staff where you have a chance to question the determination. in fact, if an ero or any planning staff member were to feel that there is an eye on the project, that there is a step that would be taken up at a public hearing, there would be probably less likelihood that there will be an error made. it would be much more careful deliberation and judgment early on. the hearing does not have to cost any extra money. it could be incorporated into a regular planning commission meeting which already has televised hearings. we don't think that the board of appeals is a proper forum to challenge a project. it's too late in the game and is very onerous and expensive and a delaying procedure. i think this legislation has a fair balance. i think it se