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News + PoliticsHousingIs this the end of CEQA as a tool to challenge housing...

Is this the end of CEQA as a tool to challenge housing projects that damage communities?

A dramatic change in the use of a longtime neighborhood and community planning process is about to happen; can the supes do anything about it?

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When the Board of Supes considers an appeal of a housing development on Sacramento Street Feb. 6, the main issue at hand whether turning a former medical library into housing will damage an historic resource.

But what’s really at issue here is a much bigger question.

For decades, San Francisco environmental and community activists have used the California Environmental Quality Act to challenge development that was damaging to the community. Some of the most important cases in city development history, including one that set new law around the requirement for the analysis of cumulative impacts of multiple projects, involved CEQA.

San Franciscans need to get ready for what Sen. Scott Wiener has wrought

The threat of CEQA litigation has caused generations of developers to meet with and compromise with community groups.

It’s also infuriated the Yimby folks, who think the CEQA is largely an obstacle to building more market-rate housing.

But as far as housing development goes, that era could be coming to an end.

Under the City Planning Department’s interpretation of state law, anyone who proposes a housing project that fits within the guidelines of the Housing Element of the General Plan can avoid CEQA entirely. Instead, there’s another process, called a General Plan Exemption, that allows the city to say that, since the Housing Element has already undergone a broad CEQA review, individual projects that are consistent with that plan can go forward without CEQA.

That eliminates a huge neighborhood and community tool, which has been used to challenge projects that would mean significant displacement and gentrification.

The statute the city is citing is Government Code Section 15183, which is part of CEQA. It states:

CEQA mandates that projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive environmental studies.

That’s been state law for many years now, and the city has used that law to exempt projects in, for example, the area of the Eastern Neighborhoods Plan. So it’s not a new concept—but thanks to the governor and the state Legislature, led by Sen. Scott Wiener, there’s the potential for a much broader impact.

The Planning Department, with the support of the City Attorney’s Office, argues that the section exempts any housing development that is otherwise consistent with the Housing Element. That’s pretty much everything most developers will propose in San Francisco now (except maybe this).

From the city’s response to the appeal:

Likewise, CEQA Section 21155.10, and other provisions of the CEQA Guidelines, including sections 15183 and 15183.3 provide for streamlined review of certain projects that are consistent with the development density established by general plan policies for which an EIR was certified. Accordingly, this EIR will streamline the CEQA environmental review process for future activities that are consistent with and that would implement the policies of the updated housing element following its adoption. Such activities could include both legislation to enact changes in zoning and other land use regulations (e.g., the designation of housing sustainability districts) and approval actions for individual development projects. 6 [Emphasis added.]”

Lisa Gibson, the city’s Environmental Review Officer, told me:

As a good government initiative, the Department worked hard to create a new Housing Element EIR General Plan Evaluation document template that saves time in document preparation and is easier for readers to understand.

Richard Drury, the lawyer handling the appeal, told me:

Ot is absurd to argue that the city is required to apply 15183. No other city does this. 15183 does not require its application. Indeed if this were true then why does CEQA have 32 flavors of exemptions. If all housing projects are exempt under 15183 then there is no reason for the 32 listed exemptions. Nothing in 15183 suggests that it was intended to exempt all residential projects from CEQA.

Indeed nothing in 15183 suggests that it applies to residential projects more than any other type of project. The city’s argument would apply equally to Chevron wanting to open an oil refinery in an industrially zoned area of the city. Would the planning department argue that an oil refinery would be CEQA exempt?  There is simply no legal distinction.

I don’t know if the supes can do anything about this, with a city attorney who sides with the Yimbys and the likes of Wiener, who is willing to do almost anything the real estate industry wants.

That will be the critical decision nest week.

The project that is forcing this discussion: A developer known as Gokovacandir, LLC, which is run by Bora Ozturk, who is the director of March Capital Management, wants to turn an historic medical library at 2395 Sacramento St. into housing. That “adaptive reuse” would alter the interior.

Internal emails obtained by a lawyer appealing the project show that the city initially wanted to see an Environmental Impact Report because the building that will be altered has historic characteristics. Under the California Environmental Quality Act, a building interior that has been accessible to the public can’t be altered without review by a qualified architectural historian.

That would be normal process—but the planners are moving toward a new approach that would undermine project-based review.

On May 24, 2023, Gibson sent an email to Tuija Catalano at the law firm of Reuben and Junius, which represents the LLC that want to turn the former library into housing:

Hello again, Tuija, It was brought to my attention that my previous message neglects to address the department’s position regarding the interior of the property during its previous use as a medical library and related uses. I wish to clarify that staff found, and I concur, that these uses are publicly accessible for purposes of our analysis. Therefore, the early 20th century is a period of significance, as is the more recent period when it was an event space. These are the findings of the HRER Part 1. If you believe that the report is not clear on these points, please let us know so that we can consider whether revisions are warranted.

The developer, the records show, contracted with a preservation consultant to prepare a report that would have to comply with CEQA.

But on October 20, 2023, Catalano sent an email to city planners saying that the law firm, which often represents big developers, was excited about using a process called a General Plan Exemption (formerly called a Community Plan Exemption) to avoid CEQA review:

Thank you Wade and everyone else! I worked with Rick Cooper back long time ago (around 2009 or so) on the very first CPE that was done (on a project in Rincon Hill), and we are more than happy to be the second of the GPEs – and hopefully have the Commission ask any questions they have in the hearing for the first GPE project 🙂

What changed? While this project was pending, the Planning Commission an d the supes approved the Housing Element and it’s EIR—and the planners concluded that CEQA no longer applied to individual projects.

In this case, the planners say that the development is a housing project, and that the city has already analyzed its overall Housing Element, and therefore the project needs so site-specific EIR. That could mean almost no new housing in the city could ever be subject to environmental review.

In his appeal of the exemption, Drury, who also provided me with the emails, says:

Then, in early 2023, the developer’s lawyer suggested avoiding CEQA entirely by relying on Normally, the City would approve similar projects under the CEQA Infill Exemption. However, the Infill Exemption is not allowed if a Project may adversely affect an historic resource, as here. CEQA Section 21084(e). The emails show that this is the first time the City has ever tried this approach, but also that other developers are watching and eager to follow suit.

Gibson told me that’s not true:

The narrative that the department was persuaded by the sponsor’s attorney to change our position on the relevance of the building’s interior to the historic analysis is entirely false, as is the suggestion that R&J influenced our path of CEQA compliance and that we did no further environmental review after issuing the Housing Element EIR. Our General Plan Evaluation is environmental review of the proposed 2395 Sacramento Street project in accordance with State and local law.

Before the Housing Element was approved, the city clearly wanted to see an EIR, or at least a detailed environmental review, of the library project, which would involve removing several historic murals, one of which contains material offensive to Native Americans.

In fact, on Dec. 14, 2022, Allison Vanderslice, the cultural resources team manager at City Planning, wrote:

I have been going through our archeo inbox and it looks like this project got missed and wasn’t logged for archeo review. I believe this project is possibly moving forward now as an EIR, is that correct? Should we log it for PAR review now and let me know if it will be MND or EIR, as we will then need to also to TCR notification.

What happened was a different process. The city’s Historic Resource Evaluation Response concluded that, while there are issues, they can be addressed through mitigation. From the Planning Department’s response to the appeal:

“Through the HRER,the department appropriately determined that 2395 Sacramento Street, both exterior and portions of the interior, is a historic resource for the purposes of CEQA. The HRER 2 appropriately analyzed the project’s significant historic resource impacts and identified feasible mitigation measures to reduce the impacts to less than significant.”

In the past, the department would then issue what’s called a Mitigated Negative Declaration—something that Vanderslice raised in her email. A MND is a determination under CEQA that the project, if it takes appropriate action to preserve the historic characteristics of the building, would not have a significant impact on the environment.

That would mean, thought, the city was doing a project-specific CEQA analysis—and under state law, the city argues that it no longer has to do that.

The historical resources consultant that the Planning Department hired to review the building now says he supports the appeal. Richard Brandi, in a Jan 11. 2024 letter to the supes, notes what the mitigation plan includes:

Additionally, the salvage plan shall include specifications for the removal and salvage of the Reading Room murals by a qualified art conservator and shall also include coordination and consultation with interested tribal groups and gather input on future treatment of the murals, including, but not limited to, public interpretation, donation to a non-profit or cultural association, or sale to a private entity.

But, he notes:

The mitigation program is vague, indeterminate, and there are no conditions or safeguards imposed upon the project applicant to ensure that the murals end up in a safe and appropriate place. The current mitigation program will result in their destruction by neglect. We all know what happens to works of art when they are removed and stored for some indeterminate future use. They deteriorate and are lost.

That, of course, is what CEQA review would address.

But this isn’t just about one project. As a Nov. 6 email from planning staffer Jeanie Poling shows, other developers are watching:

Do you expect 2395 Sacramento to be appealed? I have another project that’s eligible for a GPE that tiers off the HE, but they first want to wait and see if other HE GPEs get appealed.

So this could mean the end of CEQA review for potentially hundreds of projects.

As I said in my first story on this, that’s a Yimby dream—but it’s also a huge policy change.

It gets worse: If the supes go along with this appeal, on a project that predates the Housing Element EIR, the developer can just come back and say: State law has changed. I can make this even worse.

San Franciscans need to be ready for what Sen. Wiener and his allies have wrought: destruction of historic resources, large-scale demolitions of existing housing, and a profound limitation on what the community can do on a local level to fight back.

All in the name of more market-rate housing, that won’t do anything at all to solve the current crisis, which is entirely a crisis of affordable housing.

48 Hills welcomes comments in the form of letters to the editor, which you can submit here. We also invite you to join the conversation on our FacebookTwitter, and Instagram

Tim Redmond
Tim Redmond
Tim Redmond has been a political and investigative reporter in San Francisco for more than 30 years. He spent much of that time as executive editor of the Bay Guardian. He is the founder of 48hills.

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