Hearing Procedures - Appeal of a Determination That Change in an Exempt Project is Not a Substantial Modification (NSM)
The Environmental Review Officer holds appeal hearings to hear appeals of a determination that a change in an exempt project is not a substantial modification (NSM appeal) in accordance with the requirements of Chapter 31 of the San Francisco Administrative Code. Members of the public who cannot attend a NSM appeal hearing may submit comments in writing or by telephone to the staff planner listed on the notification before such hearing.
What to Expect at a NSM Appeal Hearing
At a NSM appeal hearing, the Environmental Review Officer will preside over general proceedings, as follows:
- Assigned planner will give a presentation outlining the background of the environmental review and the hearing process.
- Appellant will be given up to 5 minutes to present their case, including relevant testimony and evidence.
- Project sponsor will be given up to 5 minutes to present their case to uphold the NSM, including relevant testimony and evidence.
- Members of the public will be given up to 3 minutes each to speak on the item (at the discretion of the Environmental Review Officer).
- Environmental Review Officer may question staff and/or other speakers.
- Environmental Review Officer will close the hearing.
After all of the testimony is submitted, the Environmental Review Officer shall reconsider the prior determination in light of all information provided by all parties present, including the appellant and project sponsor, as well as written information submitted before the public hearing.1
NSM appeals are not appeals of a California Environmental Quality Act (CEQA) decision under CEQA, and do not delay or suspend any permit approval or other discretionary approval authorizing the change in the project, or suspend any construction activity, except as set forth below.
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 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 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 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.
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.
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.
Personal information that is provided in communications to the Planning Department is subject to disclosure under the California Public Records Act and the San Francisco Sunshine Ordinance. Personal information provided will not be redacted.
Members of the public are not required to provide personal identifying information when they communicate with the Planning Department and its commissions. All written or oral communications that members of the public submit to the Department regarding projects or hearings will be made available to all members of the public for inspection and copying. The Department does not redact any information from these submissions. This means that personal information including names, phone numbers, addresses and similar information that a member of the public elects to submit to the Department and its commissions may appear on the Department’s website or in other public documents that members of the public may inspect or copy.