· State law governs many aspects of the development project approval process administered by planning agencies. It requires that certain information be provided to applicants and sets time limits on the key phases of the application review process including determining if an application is complete, analyzing and acting on proposed projects and environmental review.

· The various State Government Code sections known as the Permit Streamlining Act require that development project applications be reviewed and their completeness determined within 30 days of submission. Once determined complete, processing and making a decision on the application can consume no more than 60 days for cases that do not require an environmental impact report. For those cases requiring environmental review that receive Negative Declarations of environmental impact, environmental review can take no more than 180 days.

· The Planning Department is not operating in compliance with State time limits on development project applications. The process for determining completeness is unclear and often consumes more than 30 days. Median processing time for a sample of 19 cases approved in 2001 that did not require environmental impact reports was 80 days, which is 20 days more, or 33 percent, than the 60 maximum days allowed by State law. A similar analysis of environmental review case processing time is not possible because the Department does not keep records of when applications are determined complete, the starting point for State environmental review time limits. However, median processing time for a sample of 56 environmental review cases was 211 days, or 31 more than the 180 day maximum allowed by State law. Even if staff took the full 30 days allowed by State law to determine application completeness on all these cases before beginning their evaluation, 28 cases, or half of the cases reviewed, still exceeded the State time limits.

· The Department does not have a system in place for tracking compliance with Permit Streamlining Act time limits. Many of the key dates needed to determine compliance are not recorded on the Department"s case tracking computer system making it impossible to determine compliance with the State time limits without a manual review of case records. While applicants are just as often the source of delays in case processing as staff, the Department does not have a method of suspending cases where applicants are the source of delay.

· Application forms and materials are confusing and do not provide written information to applicants required by State law. The State requires disclosure of Permit Streamlining Act time limits for determination of application completeness and case processing, a list of materials required for each type of application to be determined complete and the criteria by which the Department determines if applications are complete.

Determination of application completeness requirements

Many aspects of development project application processing are governed by State law, primarily those involving information to be provided to applicants and case processing time limits. The State requires that local planning agencies provide applicants with a detailed list of the information and materials that will be required to process development project applications. Planning agencies are also required to provide a description of the criteria that will used by the agency to determine the completeness of applications submitted and to provide information on all State mandated time limits on application review and processing, as discussed further below ¹.

Once a development project application is submitted, local planning agencies are required to determine whether or not it is complete and to notify the applicant of this determination in writing within 30 days of application submission (California Government Code §65943). If an application is determined to be incomplete, the planning agency is required to provide a written description of what the applicant needs to provide to make the application complete. Failure to provide such written documentation within 30 days means that the agency must accept the application as complete and cannot deny the project based on a lack of information provided.

Resubmittal of an application begins another 30 day review period. While additional subsequent requests are allowed by State law, once an application is determined to be complete, planning agencies are not allowed to request additional information other than what was included on the original requirements list, or, clarifications or amplifications of those materials. Planning agencies are supposed to provide an appeal process for cases that are determined to be not complete more than once.

The Planning Department is not operating in full compliance with these State requirements. The Department"s application forms do include lists of required materials and information but these lists are defined by the Department as the minimum information needed to begin application processing, not a complete list of requirements that will (or might be) required for an application. Written materials provided to applicants do not include: 1) a description of the criteria that will be used to determine if an application is complete; 2) disclosure of the 30-day time limit on determining application completeness; and, 3) a description of other State mandated case processing time limits.

Many applicants interviewed as part of this audit indicated that the Department"s process of determining completeness is unclear to them. Some also stated it is not unusual to keep receiving requests for additional information long after 30 days from the date of application submission.

Part of the explanation for applicant confusion about the process is that there are two tiers to the Department"s determination of application completeness. For the first tier, an applicant is required to submit an application and all required information and materials to the Department"s Application Intake Center. There, a staff member reviews the application for completeness and compliance with the information requests. In the case of conditional use applications, for example, an intake planner would screen an application for the following required materials, as identified in the conditional use application form:

· Application form

· 300-foot radius map

· Address labels (original and copy) for notifying neighbors

· Site plan

· Floor plan

· Elevations

· Section 303 requirements

· Proposition M findings (the project"s conformity with General Plan priority policies)

· Photographs

· Check payable to Planning Department

· Application signed by owner or agent

· Letter of authorization for agent

Submittal of all required information would seem to indicate that an application would be deemed complete and case processing could commence. The application form states that,

"All plans, drawings, photographs, mailing lists, maps and other materials required for the application must be included with a completed application form...The application will be accepted only when it is complete in all respects."

However a warning is included on the application form that,

"...some applications will require additional materials not listed..."

And the second tier of review for application completeness is explained later in the application form as follows:

"Receipt of the...required materials by the Department serves to open a Planning file for the proposed project. After the file is established it will be assigned to a planner. At that time, the planner assigned will review the application to determine whether it is complete or whether additional information is required in order for the Department to make a decision on the proposal." (emphasis added)

Finally, applicants are required to sign the following acknowledgement and submit it with their application:

"I understand the receipt of these materials by the Department does not mean that the application has been accepted as complete..."

This language indicates that the Department is not bound to accept an application as complete even if the applicant provides all materials on the list. However, the Department still would be bound to the State requirement that completeness be determined within 30 days for applications accepted by the Application Intake Center.

After applications are reviewed by Department Application Intake Center staff, a written memorandum is provided to applicants informing them of whether the minimum required information has been satisfactorily provided. If the minimum requirements have been met, applicants are informed that processing of their application can begin. If some required information is lacking, the applicant is told that processing of their application cannot begin until the missing information is provided. Commencement of application processing, not explained in their memorandum, appears to mean that the second tier of determining application completeness by the case planner will commence. Adding to the confusion is the language on this Application Intake Center form sent to applicants that,

"If required materials are missing, your application cannot be determined complete until all required items are submitted."

This seems to imply that if all materials were provided, the application would be determined complete. But the materials referred to are only materials required for the "first tier" review.

The Department"s second tier of review for application completeness begins once the case planner reviews the application. If the case planner determines that additional information is needed, this is requested of the applicant on a written form entitled "Notice of Planning Department Requirements". It lists the additional required information and includes the language,

"time limits for review of your project will not commence until we receive the requested information or materials and verify their accuracy" (emphasis added).

There is no explanation of the time limits on this form.

As a result of this two-tiered review, applicants can and do receive notification that they have provided all of the minimum required information and case processing can commence and then subsequently or simultaneously receive a request for additional information from the case planner indicating that their application is not complete, that additional information is required and that case processing time limits will not commence. In one case file reviewed, the applicant received a memorandum from the Application Intake Center indicating that their application was complete and, on the same date, a separate notice from the case planner indicating that they needed to provide additional information for their application to be complete.

The Application Intake Center review and written notification to applicants regarding their compliance with the minimum information requirements appear to conform to State law in that the review is based on the applicant"s provision of the required materials. But the subsequent determination(s) of completeness by the case planner appears less compliant. The State Government Code says that, " the agency"s determination (of an incomplete application) shall specify those parts of the application which are incomplete..."². The requests from case planners seem to go beyond this definition. Examples of requests made by case planners in case files reviewed, all of which were accompanied by a statement that their applications could not be considered complete until the requested information was provided included the following:

· requests for revisions to the project"s proposed bulk

· alternative ideas for providing parking

· information on tenants in the building to be altered

· identification of all financial services institutions in the neighborhood already, including percentage of financial services establishments in the occupied commercial frontage on the subject block

These may be legitimate information needs for processing the application but they should not be tied to determining application completeness. They are more appropriately part of case processing and analysis. They are not linked to incomplete portions of the original application. Applicants would not be able to predict that information such as this might be required, resulting in delays in processing because the requests are coupled with a determination that the application is not complete.

While the initial Application Intake Center reviews are generally completed within a day or two of application submission, it is not unusual for the case planner determination of completeness and requests for more information to be made more than 30 days after application submission. Multiple successive requests for different information are not unusual, each request indicating that the application is still not complete.

In a review of 54 completed case files conducted for this audit, approximately half did not include written documentation sent to the applicant indicating whether or not their application was determined complete within 30 days, either from the Application Intake Center or the case planner. It appears that most applicants do not receive a written notice of the determination of completeness, as required by State law. However, 28 of the case files reviewed did contain notification from the Application Intake Center indicating whether or not the application submitted contained the minimum required materials and/or notice from the case planner. Seven of the case files reviewed contained one or more written "Notice of Planning Department Requirements" prepared by the case planner and requiring additional information that would need to be submitted before the application could be considered complete. The median number of days between the case application date and the case planner"s request for additional information in these cases was 42, or 12 more than allowed by State law. In only one of these seven cases was the number of days less than 30.

There is no statement on any Department application forms, other Department printed materials provided to applicants or the Department web site indicating that applications will be determined complete within 30 days of submission or informing them of Permit Streamlining Act processing time requirements. There is no explanation of the process overall or the difference between the initial determination of completeness by the Application Intake Center and the subsequent determination of completeness by the case planner, and which one counts against State time requirements. In fact the wording is confusing in this regard.

Numerous applicants interviewed for this audit made statements about the requests for additional information that regularly occur while their application is in process. Many commented on the confusing nature of the determination of completeness and noted that there is no information about State-mandated time limits on Department application forms, other printed information or the Department web site.

Information regarding timelines and required materials in other jurisdictions

A review of planning application forms and public information from some other jurisdictions provide a contrast to information provided to the public by the Planning Department. The City of Berkeley"s User Permit and Variance Checklist (see Attachment A) contains a list of mandatory materials and information required for all applications unless waived by a planner and a list of materials that may be required. The first group includes standard items such as an application form, vicinity map, photographs, site plans, floor plans and elevations. The second group contains items that are frequently, but not always, required. These include items such as a hazardous materials use questionnaire, traffic analysis reports, shadow studies, landscaping plans, topographic survey data, grading plans, and others. The instructions to applicants state that:

"The project planner will, within thirty days of your application filing, advise you if additional materials, including the [listed materials that may be required] are required or whether submitted materials need to be corrected or augmented." (emphasis added)

The City of Oakland uses a consolidated application form for all development reviews. Like Berkeley, it contains a master list of information showing required information for all applications and information that may be required depending on the project. It also indicates the type of projects for which the non-mandatory information will probably be required such as grading plans, generally required for projects that propose any site grading. The City of Fremont"s conditional use application instructions explicitly state that project planners will notify applicants of whether their application is complete within 30 days of submittal.

In contrast to these other jurisdictions, San Francisco"s conditional use application form lists required materials for the first tier review of the application only. There is no information on the form about the process or time limits or any list of other materials that are commonly required such as transportation studies, shadow studies or others.

Processing time requirements

After an application is determined complete, the State Permit Streamlining Act sets time limits on processing development project permit applications (California Government Code §65950-65952). The number of days until a decision must be made on an application depends on the level of environmental review governing the project. Every project is classified in one of the three following environmental review categories:

1. Categorical Exemption/General Rule Exclusion: for projects that are statutorily exempt or where it can be seen with certainty that there is no possibility that the proposed project will have a significant effect³ on the environment. A related category of projects are called General Rule Exclusion projects because they are covered by the General Rule in the California Environmental Quality Act (CEQA) stating that CEQA applies only to projects which have the potential for causing a significant effect on the environment.

2. Negative Declaration (Neg. Dec.): for projects where the conclusion of an assessment of potential effects is that the proposed project could not have a significant effect on the environment or that the project could have a significant effect but this will not occur because the effects can be mitigated.

3. Environmental Impact Report (EIR): for projects where a determination is made that they may have a significant effect on the environment.

The requirements shown in Exhibit 6.1 apply to all applications processed by the Planning Department. As shown, the maximum allowable processing time is longer if an environmental impact report is required since these tend to be larger and more complex projects. A flow chart showing the time limits is presented on the next page.

Exhibit 6.1
Maximum number of days allowed
by State law for processing development project applications

*GRE similar to categorically exempt but a different legal status.
Source: California Government Code §65950 - 65952

The time limits shown in Exhibit 6.1 can be exceeded according to State law only if a project applicant and the public agency mutually agree in writing to such an extension. Otherwise, the time limits are to be considered maximums and public agencies should, if possible, approve or disapprove the development project applications in shorter periods of time according to the Government Code. Disapproving an application for a development project in order to comply with the time limit requirements is not allowed.

Finally, the law states that any projects for which approval decisions are not reached within the required time frames are automatically deemed approved⁴.

A review of a random sample of development project applications acted on by the Planning Commission in Calendar Year 2001 revealed that the Planning Department is not operating in compliance with these State requirements. Exhibit 6.2 shows the median number of processing days for 19 randomly selected cases starting with the date of Categorical Exemption/General Rule Exclusion or adoption of a Negative Declaration and ending with final Planning Commission action on the project. The sample was comprised of all types of projects approved by the Planning Commission, primarily conditional use, discretionary review and variances⁵. Unfortunately, many of the other projects reviewed as part of the audit case sample could not be included in this analysis because there were no records for many projects of the date the Department determined the projects were categorically exempt from CEQA.

Exhibit 6.2
Median Number of Processing Days
for Sample of Applications Processed in 2001

Sample size =19 projects acted on by the Planning Commission in 2001
Sources: Planning Commission minutes, docket files, Planning Department"s Parcel Information Database system

As shown, the median number of processing days for the projects was 80, or 20 more than the maximum 60 days allowed by State law. For the subset of projects that were categorically exempt from environmental review, median processing time was 79 days. For projects for which Negative Declarations were adopted, the median number of processing days was 83 or 23 more than the maximum allowed. Regardless of the level of environmental review, the State-mandated maximum number of processing days was exceeded. No projects requiring an environmental impact report were included in the sample.

Only seven of the projects included in the sample, or 37 percent of all projects reviewed, had total processing days of 60 or less, in compliance with State law. The number of processing days for the other twelve projects, or 63 percent of the sample, were 61 days or more. The maximum number of processing days for a single project was 296 days.

Department does not track case processing time

The Department does not have a system in place to track processing cycle time on development project applications. The Department"s primary repository of information that could be used for case tracking is its automated Parcel Information Database system. However, even though it has the ability to store and report key milestone dates for processing applications, the system is not designed to record several of the key milestone dates needed to determine compliance with the Permit Streamlining Act. Further, dates that are recorded by the system are not consistently entered by all staff and time tracking data is not extracted and summarized in management reports showing actual results.

The Planning Department"s Parcel Information Database System records a great deal of information about every parcel in San Francisco including its current owner, zoning, use, building permit history, discretionary permit history, any conditions on the property from previous Commission actions, and other information. Each time an application is processed, information about it is entered onto its parcel record in this system. This includes date of application and date of Planning Commission or Zoning Administrator action on the application. Missing from this information are the date the applications are determined complete and environmental review action dates (e.g., categorical exemption determination, Negative Declaration adoption, EIR certification). Without these dates recorded, compliance with Permit Streamlining Act and California Environmental Quality Act (CEQA) time limits cannot be determined from the system.

The processing time data presented in Exhibit 6.2 above had to be collected from a combination of individual paper case files, special runs from the Parcel Information Database System and a data base maintained by the Major Environmental Analysis division. For 21 categorically exempt cases out of 43 reviewed, or 24 percent of the total, the Department was not able to find a record at all of the environmental review action date.

A second potential source for tracking cycle time for some applications is the Department of Building Inspection"s (DBI) Permit Tracking System. Information from this system would only cover cases that are routed to the Planning Department from the Department of Building Inspection (DBI) as part of the building permit application process. However, while the Permit Tracking System has the capability to track Permit Streamlining Act and CEQA compliance, the needed milestone dates are not recorded in that system either.

The Department of Building Inspection"s Permit Tracking System captures information for the approximately 3,000 building permit applications that it routes to the Planning Department each year to determine if they are in compliance with the Planning Code and if any discretionary Planning approvals are required such as conditional use permits. For these applications, DBI"s Permit Tracking System has the capability of recording more information than the Department"s own system including: 1) date the application arrives at the Planning Department; 2) date application assigned to a quadrant team; 3) date work starts on the application by the staff planner, and: 4) date of final Planning Commission action. If all dates are entered, the DBI system can track backlogs and pinpoint where they occurred such as the transfer of the application between DBI and Planning, or the hand-off of the application between Planning Department supervisor and case planner. Tracking backlogs would be useful management information but this information is not regularly collected and reported from the DBI system. The Planning Department"s Parcel Information Database system does not record application arrival and assignment dates so backlogs cannot be tracked from the Department"s own system at this time.

Causes of case processing delay

A common complaint among applicants interviewed for this management audit is that staff planners continue to request additional information after their application is in process, often late in the process. Many frequent applicants⁶ reported that this happens to them all the time and that they never can predict what they will be asked to provide or when. These requests often result in processing delays as the applicants then have to assemble new information or documents, well after they have initially submitted their applications.

Staff planners point out, and applicants agree, that the applicants themselves also contribute to processing delays. Staff planners report that it is not unusual for applicants to suspend activity after filing their application or to decide to revise some aspect of their project after processing has begun, thus placing the project on hold, or to take long periods of time to provide additional materials requested by the staff planner.

In interviews with 14 applicants conducted for this audit, more than half of the applicants reported that delays occurred in processing their applications due to additional requests for information by Department staff after their application had been accepted. However, half of the applicants interviewed also reported that they made changes to their project plans after they had submitted their application and that this also caused delays.

While delays appear to occur due to both staff and applicants, the Department does not have a mechanism for tracking the cause of delays or for formally stopping the "clock" on projects when applicants are the cause of delays. As a result, it is difficult for management to determine if the Department is responsible for non-compliance with State time limits or not. State required written agreements to waive the statutory time limits are not prepared by the Department in cases where processing takes longer than the maximum allowed.

Environmental review processing time and compliance with State guidelines

Development project applications that are not categorically exempt from CEQA and are subject to environmental review are also subject to environmental review processing time limits pursuant to the State"s CEQA Guidelines⁷ and Chapter 31 of the San Francisco Administrative Code. These State guidelines establish time limits for the three main components of environmental review: 1) the Initial Study; 2) Negative Declaration completion; and, 3) Environmental Impact Report completion. These processes and time limits are separate from the time limit and processes of Planning Department review of development project permit applications although the projects go through both processes unless they are categorically exempt.

The CEQA Guidelines time limits are presented in Exhibit 6.3. Projects that are categorically exempt are not included since, by definition, they do not require environmental review.

Exhibit 6.3
Time Limits for Environmental Review

Source: State of California CEQA Guidelines §15107 and §15108

A review of a sample of 56 projects for which Negative Declarations were issued revealed that the Department generally appears to be taking longer than the maximum allowed by the State"s CEQA Guidelines. When measured from project "file date" to environmental review action date, the median number of days in process for those cases was 211, or 31 days more than that allowed by State law. No projects for which environmental impact reports were prepared were included in this random sample of projects.

One of the problems in measuring the number of days of environmental review is that the Department does not have a clear-cut definition or systematic method of recording when project applications are determined to be complete, which is the starting point for all CEQA time limits. For this sample of 56 projects reviewed, the project file date (the date that the environmental review planner logs in the case) was used as the start point rather than the date the application was determined complete. This was used because it is the only date available for all projects from the Department"s computerized data bases since date of application completeness determination is not recorded, as discussed above. It is not possible to determine how many of the cases in this sample took a full 30 days to determine application completeness and how many were determined to be complete at the time of submission. In any case, with a median of 211 days, half of the cases in the sample had processing time of more than 211 days so even if they took the full allowable 30 days to determine application completeness, they still exceeded State environmental review processing time limits.

State CEQA Guidelines reference the State Government Code requirement that the completeness of development project applications be determined within 30 days of submission. That is also the starting point for another 30 day cycle during which the Initial Study is to be completed to determine if an environmental impact report will be required for the project. This 30 day cycle is part of the total 180 day time limit for completing Negative Declarations and includes a mandatory public review period. Data on cycle time to complete Initial Studies is not readily available from Department records.

Without a system for clearly identifying and recording application completeness determination dates, the Department is not able to track compliance with the CEQA Guidelines for Initial Studies or completion of Negative Declarations and Environmental Impact Reports. The Major Environmental Analysis division does maintain its own master list of projects in process separate from the Department"s Parcel Information Database System but this list does not contain the dates that the applications were determined to be complete either. The division"s master list is created on a spreadsheet that allows for entry and computation of dates and total elapsed time but it is not being used to assess compliance with the CEQA Guidelines requirements. In short, neither the Major Environmental Analysis division"s master list nor the Department"s centralized computer systems enable the Department to determine if it is compliant with State CEQA Guidelines.

Conclusion

The Planning Department is not operating in compliance with several key State laws designed to expedite the development project application review process and to inform applicants of process requirements and timelines, including:

1) time limits on determining application completeness;

2) notifying applicants in writing if their applications are complete;

3) time limits for analysis of and decision making on proposed projects;

4) time limits for environmental review; and,

5) disclosure to applicants about these time limits and certain aspects of the application review process.

Application forms and materials are confusing and the process for determining application completeness is not clear. A review of a sample of cases found that: determinations of application completeness often exceed the State time limit; case processing and decision-making often exceed the State time limit; environmental review often exceeds the State time limit; and, many of the State required disclosures are not provided to applicants.

The Department does not have systems in place to track compliance with State mandated time limits on case processing. The Department"s primary computer system does not record the key dates needed to determine compliance with State time limits or to identify backlogs in application review. The Major Environmental Analysis division keeps its own log of cases but without the key dates needed to track compliance with environmental review time limits. Management reports are not produced documenting actual application processing or environmental review processing time.

Recommendations

Based on the above findings, it is recommended that Planning Department management:

6.1 Clarify the process and instruct staff on what qualifies for determining application completeness and the need to comply with the State mandated 30 day time limit;

6.2 Revise all Department application forms, printed materials and the web site to include: detailed lists of all information and materials that will be required of applicants, including items that are not mandatory but commonly required for project types most frequently reviewed by the Department;

6.3 Revise all Department application forms, printed materials and the web site to state that all applications will be reviewed and their completeness determined within 30 days of submission and to disclose the criteria by which completeness will be determined;

6.4 Revise all Department application forms, printed materials and web site to include disclosure of all Permit Streamlining Act and California Environmental Quality Act (CEQA) time limits;

6.5 Instruct all staff on time limits and the importance of compliance;

6.6 Add necessary data collection ability to the Parcel Information Data Base to capture all key milestone dates needed for compliance with State case processing time limits, including date application submitted, date application determined complete/incomplete, date Initial Study of environmental impacts completed, date of environmental review action, and date of final action on application;

6.7 Add necessary data collection ability to the Parcel Information Data Base to capture other key dates in the process to identify backlogs such as date of case assignment to a planner, date work commenced, and others;

6.8 Collaborate with the Department of Building Inspection regarding adding fields to collect key milestone dates on the Permit Tracking System to track Permit Streamlining Act compliance, case backlogs and pending applications;

6.9 Assign responsibility for accurate and complete data entry by their staffs to all Department neighborhood Planning managers; and,

6.10 Begin production of a regular monthly report for the Director showing compliance with Permit Streamlining Act and CEQA requirements, case backlogs and other relevant information to enable management to expedite permit processing to the extent possible.

Costs and Benefits

There would no new direct costs associated with these recommendations. Modifications to the Department"s Parcel Information Database System should be able to be accomplished in-house and revisions of forms, brochures and the web site should not result in costs of any significance to the Department. The benefits of the recommendations would include a more clear, well documented process for applicants, improved management oversight of the environmental review and case review processes, management information reports necessary to facilitate changes in processes or staffing to expedite case processing, and improvements in case processing cycle time.

Attachment: Berkeley application form (PDF)

¹ California Government Code §65940 and 65941.

² California Government Code § 65943

³ Significant effect is defined in the California Environmental Quality Act (CEQA) as a "substantial and adverse" impact on the environment.

⁴ This last provision that approval must be awarded if projects exceed the time limits is only valid if public notice requirements have been met. The applicant can provide their own public notice if the public agency has not done so.

⁵ Variances are generally decided upon by the Zoning Administrator and not the Planning Commission but some projects that come to the Commission require a variance and other approvals such as conditional use.

⁶ Because most applicants now use hired agents to facilitate processing of their applications, most of the applicants interviewed were not property owners but were agents, or permit expediters, who regularly work with the Department.

⁷ Title 14. California Code of Regulations, Chapter 3: Guidelines for Implementation of the California Environmental Quality Act