Chapter 21.06

NEGATIVE DECLARATIONS

Sections:

• 21.06.020 Appeals of adoption of a negative declaration or mitigated negative declaration.

• A. The director shall cause the preparation and circulation of each negative declaration or mitigated negative declaration in a manner that comports with the provisions of CEQA and this chapter.

• B. The director shall provide a negative declaration or mitigated negative declaration to the advisory body making a recommendation to the decision-making body on a project and to the decision-making body for a project, together with all comments received thereon and the director's report on the negative declaration or mitigated negative declaration setting for the director's responses to comments received on the negative declaration or mitigated negative declaration.

• C. An advisory body to the decision-making body on a project shall consider the draft negative declaration or mitigated negative declaration, together with any comments received during the public review time period, and the director's report thereon prior to making its recommendation on a project.

• D. The decision-making body on a project shall consider the draft negative declaration or mitigated negative declaration, together with any comments received during the public review time period, the director's report thereon and any recommendation of an advisory body.

• E. The decision-making body shall adopt the negative declaration or mitigated negative declaration only if, on the basis of the initial study, any comments received, the director's report and the balance of the entire record before it, the decision-making body determines that there is no substantial evidence that the project will have a significant effect on the environment and that the negative declaration or mitigated negative declaration otherwise conforms with CEQA. As alternatives to approving the negative declaration, the decision-making body may take any of the following actions:

  1. Require the preparation of an EIR by the project applicant.

  2. Require the draft negative declaration or mitigated negative declaration to be revised and undergo additional noticed public review.

  3. Withdraw the draft negative declaration, if the project is withdrawn by the applicant.

T21:6

ENVIRONMENTAL CLEARANCE

§ 21.06.020

• F. If within the noticed public review period for the negative declaration or mitigated negative declaration, the director determines that a comment received raises an issue that would require recirculation of the negative declaration or mitigated negative declaration or would otherwise require substantial revision to the environmental analysis performed for a project, the director may:

  1. Require the preparation of an EIR by the project applicant and refund the filing fee to the protestant.

  2. Require the draft negative declaration to be revised and undergo additional noticed public review, and refund the filing fee to the protestant.

  3. Withdraw the draft negative declaration, if the project is withdrawn by the applicant, and refund the filing fee to the protestant.

• G. The negative declaration or mitigated negative declaration shall not become final unless and until the decision-making body adopts the negative declaration or mitigated negative declaration and all appeals set forth in this chapter have been exhausted.

(Ords. 24551, 27933.)

• A. Any person may file a written appeal to the city council or the Board of Directors of the Redevelopment Agency of the City of San José, as appropriate, of a decision maker's decision to adopt a negative declaration or mitigated negative declaration in accordance with the provisions and conditions of this section.

• B. Any person shall file such an appeal on a form prescribed by the director no later than 5:00 p.m. on the third (3rd) business day following the earliest to occur of the following events:

  1. The decision maker adopts a negative declaration or mitigated negative declaration during or as a part of a noticed public hearing; or

  2. An action is taken after a public hearing on a project by an advisory body making a recommendation on the project or a decision-making body making a decision on the project, whichever first occurs, which recommendation or decision relied upon the adoption of the negative declaration at issue and the adoption of the negative declaration or mitigated negative declaration did not occur as a part of a public hearing; or

  3. Commencement of the project if the project is undertaken without any public hearing.

• C. The appeal shall be filed on a form prescribed by the director. The appeal shall state with specificity the reasons that the negative declaration or mitigated negative declaration should be found not to be complete or adequate or not to have been prepared in compliance with the requirements of CEQA or this title.

• D. No appeal shall be considered unless it is based upon issues that were raised previously either orally or in writing to an advisory body or a decision-making body at or prior to a public hearing whenever the negative declaration or mitigated negative declaration or underlying project is considered at a public hearing.

• E. The director shall schedule a hearing on the appeal before the city council or Board of Directors of the Redevelopment Agency of the City of San José, as appropriate, and shall give at least ten (10) days prior written notice thereof to the appellant, the applicant, and the owners of property contiguous to the project as shown on the latest equalized assessment roll adopted by the County of Santa Clara.

• F. No protest fee need be paid by a planning commissioner if three or more members of the planning commission, acting independently, file timely protests in compliance with this section.

(Ords. 24551, 27933.)

T21:7

SAN JOSÉ CODE

§ 21.06.030

• A. The city council or board of directors of the redevelopment agency, as appropriate, shall hold a public hearing on an appeal of the adoption of a negative declaration or mitigated negative declaration to consider all relevant information and materials concerning whether the project may have a significant effect on the environment.

• B. The action of the city council or board of directors of the redevelopment agency in considering the appeal is limited to environmental issues.

  1. If the city council or board of directors of the redevelopment agency finds that the project may have a significant effect on the environment, the council or board, as appropriate, shall require the preparation of an EIR in accordance with this title prior to any consideration of whether the project should be approved. In such event, the director shall thereafter refund the filing fee to the appellant.

  2. If the city council or board of directors of the redevelopment agency, as appropriate, upholds the action to adopt the negative declaration or mitigated negative declaration, the negative declaration or mitigated negative declaration shall become final.

(Ords. 24551, 27686, 27933.)