Thread by @CSElmendorf

Here are eight questions I'd like San Francisco's Bd of Supervisors to ask before tomorrow night's vote to "paper" the denials of 469 Stevenson & 450-474 O'Farrell projects (~800 homes).
Bd is skating on thin legal ice. It will fall through if there aren't good answers. 1/n

Question No. 1: "Did city provide developer of either project w/ written notice of any general plan or zoning standards the project allegedly violates, & was this notice provided w/in 60 days of date on which project application was determined or deemed complete?" 2/n

State law (HAA) says city may not deny or reduce density of project on basis of zoning / general plan standards unless city provides this timely written notice. Gov't Code 65589.5(j)(2). 3/n

As best I can tell, the admin records provided to Bd for these projects don't include the HAA-required notice, or even a representation about the applications' determined-to-be-complete dates. 4/n

In fact, based on @ONeillMoiraK's data + convos w/ current & former city officials, I think SF's practice is not to make official determinations of completeness or to record dates on which applications are "deemed" complete by operation of state law. 5/n

(Which means that when SF officials deny a permit for noncompliance w/ zoning or plan standards, they're often in the dark about whether they even have authority to do so. 6/n)

Assuming Bd doesn't discover & establish timeliness of notice-of-noncompliance letters for either project, the only remaining ground on which to deny or downsize the project is that it would have a "quantifiable and unavoidable" adverse impact on ... 7/n

"public health or safety," in violation of "written, objective" standards "as they existed on the date the application was deemed complete." (That pesky unknown date, again!) Gov't Code 65589.5(j)(1). 8/n

Such violations are not run-of-mill events; the Legislature made this much clear by declaring that they "arise infrequently." Gov't Code 65589.5(a)(3). 9/n

So, Question No. 2: "Why doesn't draft motion w/ findings for denial of O'Farrell project (a) cite a quantification of health / safety impact, (b) cite standard this violates, (c) show standard is objective, & (d) show standard existed on application's completeness date?" 10/n

The stuff that's in the motion now may be good for comedy or ridicule (⬇️), but it's beside the point under state law.

A vote to pass the O'Farrell motion is a vote to violate the Housing Accountability Act. 11/n

https://twitter.com/CSElmendorf/status/1469720668447019015

My remaining questions concern the Stevenson St. project. This one's trickier, since formally the motion before the Board is to adopt findings justifying reversal of certification of enviro impact report, not denial of a use permit. 12/n

The draft motion gives three reasons to justify reversal: that EIR failed to study potentially significant gentrification, historic preservation, & geotech (seismic safety) impacts.
Read on for the question to be asked about each one. 13/n

Gentrification. Bd says project may cause gentrification, which in turn may cause adverse impact on "physical env't" (the CEQA trigger). 14/n

Question No. 3: "What exactly is the feared 'physical environmental impact' of gentrification, & where in the admin record is the 'substantial evidence' (a) that this project would cause gentrification, & (b) that gentrification would cause this physical impact?" 15/n

In thinking through Question No. 3, bear in mind that [u]nsubstantiated fears about potential economic effects ... are not environmental impacts that may be considered under CEQA." 16/n

casetext.com/case/portervil…

Historic preservation. Project would replace a parking lot, which is not historic. Project does adjoin historic districts, but per McCorkle, aesthetic incongruence w/ nearby historic structures is not a CEQA impact. 17/n

https://twitter.com/CSElmendorf/status/1469720681596162049

So, Question No. 4: "In what concrete way could this project have a significant, tangible adverse impact on nearby historic structures or districts?"

"Ugly" or "too tall" won't cut it. 18/n

https://twitter.com/CSElmendorf/status/1469720683357691906

Seismic & geo-tech. City until now has treated this as covered by building codes & engineering peer review, and thus outside scope of CEQA review. Supes' draft findings would make it a CEQA issue. 19/n

Question No. 5: "Why isn't requiring CEQA analysis of foundation seismic safety foreclosed by CA Supreme Court holding that impacts of env't on project aren't a CEQA issue?" (A holding made in rejecting guideline requiring seismic-safety analysis!) 20/n

https://twitter.com/CSElmendorf/status/1453965697327919110

Question No. 6: "To extent you think project might 'exacerbate' seismic risks to other buildings, where in admin record is the 'substantial evidence' supporting this conjecture?" 21/n

Question No. 7: "If you were to win on your 'foundations are a CEQA issue theory,' how would you answer the former leader of SF's own CEQA team, who says it'll mean EIRs -- & NIMBY delays -- for every project that supes actually want to approve?" 22/n

https://twitter.com/sbjinsfo/status/1469850155033653249

Next: the draft motion says EIR failed to analyze "potentially feasible mitigation measures" w.r.t. gentrification, historic, & foundation. But since project is HAA-protected, city may not consider mitigation measures that would reduce its density. 23/n

caselaw.findlaw.com/ca-court-of-ap…

Question No. 8: "Where in admin record is there substantial evidence that project could be feasibly 'mitigated' in some way that would reduce gentrification or historic impacts w/o reducing density." 24/n

Finally: Appellant says real reason for appeal is to reduce project size & make developer donate 1/3 of lot. The HAA prevents this "condition of approval" & harshly penalizes bad faith. @California_HCD has warned you that CEQA reversal may violate HAA.

Watch out!

25/end