Repetitive CEQA review and analysis is expensive, unnecessary, unproductive, and inimical to the goals of certainty and finality in the environmental review process. In 2011, to address these concerns in the infill development context, the legislature enacted SB 226 adding Public Resources Code §§ 21094.5 and 21094.5.5 to CEQA. These sections provided for streamlined CEQA review for qualifying “infill” projects and directed OPR to prepare, and to transmit to the Secretary of the Natural Resources Agency for adoption, implementing guidelines.
Under the authorizing legislation, a qualifying “infill project” is one that includes residential, retail/commercial, transit, school, and/or public office buildings and is “located within an urban area on a site that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses.” (Pub. Resources Code, § 21094.5(e)(1)(B)). The legislation further provides that “[a] lead agency’s determination pursuant to this section shall be supported by substantial evidence.” (§ 21094.5(a)(1).)
In the eighteen months since SB 226’s passage, OPR and the California Natural Resources Agency have been at work drafting the required additions to the CEQA Guidelines (14 Cal. Code Regs., § 15000 et seq.) implementing the statutes. The recently-released new guidelines comprise section 15183.3 and two new appendices (M and N). Section 15183.3 provides a streamlined CEQA review for infill projects; the appendices set forth new performance standards and an Infill Environmental Checklist form.
Section 15183.3 (b) expresses the following criteria for eligible infill development:
- “be[ing] located in an urban area on a site that has either been previously developed or that adjoins existing qualified urban uses”;
- “satisfy[ing] the performance standards provided in Appendix M”; and
- “be[ing] consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy.”
Appendix M’s performance standards include:
- mandatory on-site renewable power generation for non-residential projects;
- soil and water remediation, if necessary; and
- risk reduction for residential units built near a significant source of air pollution (such as a high volume roadway).
More specific performance standards for residential, commercial/retail, office building, transit stations, and schools are set forth in Appendix M’s section IV.
Under new Guidelines §15183.3(c), an infill project meeting these standards will be subject to a streamlined environmental review; in its words, “CEQA does not apply to the effects of an eligible infill project under two circumstances.” These circumstances are:
- “First, if an effect was addressed as a significant effect in a prior EIR for a planning level decision, then, with some exceptions, that effect need not be analyzed again for an individual infill project even when that effect was not reduced to a less than significant level in the prior EIR.”
- “Second, an effect need not be analyzed, even if it was not analyzed in a prior EIR or is more significant than previously analyzed, if uniformly applicable development policies or standards, adopted by the lead agency or a city or county, apply to the infill project and would substantially mitigate that effect.”
As summarized by § 15183.3(d)(2)(A), “No additional environmental review is required if the infill project would not cause any new specific effects or more significant effects, or if uniformly applicable development policies or standards would substantially mitigate such effects.” “Uniformly applicable development policies or standards” means “policies or standards adopted or enacted by a city or county, or by a lead agency, that reduce one or more adverse environmental effects,” and the nonexclusive examples provided by the guideline include:
- Regulations governing construction activities, including noise regulations, dust control, provisions for discovery of archeological and paleontological resources, stormwater runoff treatment and containment, protection against the release of hazardous materials, recycling of construction and demolition waste, temporary street closure and traffic rerouting, and similar regulations.
- Requirements in locally adopted building, grading and stormwater codes.
- Design guidelines.
- Requirements for protecting residents from sources of air pollution including high volume roadways and stationary sources.
- Impact fee programs to provide public improvements, police, fire, parks and other open space, libraries and other public services and infrastructure, including transit, bicycle and pedestrian infrastructure and traffic calming devices.
- Traffic impact fees.
- Requirements for reducing greenhouse gas emissions, as set forth in adopted land use plans, policies, or regulations.
- Ordinances addressing protection of urban trees and historic resources.
(CEQA Guidelines, § 15183.3(f)(8)(A)-(H).)
Section 15183.3 offers streamlining benefits even if these requirements are not fully met. Where the standards of 15183.3(c) aren’t satisfied, an infill project will still qualify for an “infill EIR” under section 15183.3(d)(2)(C), rather than a full-blown EIR. What makes an “infill EIR” different from a standard project EIR? Section 15183.3(e) provides the answer:
An infill EIR shall analyze only those significant effects that uniformly applicable development policies or standards do not substantially mitigate, and that are either new specific effects or are more significant than a prior EIR analyzed. …The analysis of alternatives in an infill EIR need not address alternative locations, densities, or building intensities. An infill EIR need not analyze growth inducing impacts.
Thus, while section 15183.3 is filled out with other clarifications, definitions, de-clarifications, and qualifiers, its underlying purpose – eliminating the need to “reinvent the wheel” in CEQA review of infill projects – is clear.
We believe this streamlining process will likely prove more useful to infill developers than existing exemptions and streamlining provisions, in large part because the new Guidelines section itself (following SB 226’s direction) declares that determinations under it are subject to the more deferential “substantial evidence” standard of review, under which a reviewing court will defer to the approving agency’s determination so long as substantial evidence in the administrative record supports the determination. (See § 15183.3(d) [in determining whether, in light of the prior EIR, the infill project will cause effects requiring additional CEQA review, such determinations “are questions of fact to be resolved by the lead agency” and “must be supported with enough relevant information and reasonable inferences from this information to support a conclusion, even though other conclusions might also be reached.”]; see also California Natural Resources Agency Initial Statement of Reasons for Regulatory Action, § VIII(9), available at http://ceres.ca.gov/ceqa/docs/SB226_Guideline_Updates_Final_ISOR.pdf.) By contrast, the standard of review governing categorical exemptions addressing infill developments (e.g., 14 Cal. Code Regs. § 15332) currently is uncertain as the California Supreme Court prepares to decide whether exceptions to those (and all other) categorical exemptions are subject to a substantial evidence or “fair argument” standard of review. (See Arthur F. Coon’s prior posts on the Berkeley Hillside Preservation case on May 23, 2012, August 2, 2012, October 25, 2012, and December 14, 2012.)
CEQA’s categorical exemptions and other frameworks meant to abbreviate the CEQA process have been underutilized in past years, due primarily to complexities and uncertainties in their application that have caused many developers and public agencies to eschew them. The express language of Section 15183.3 – providing for, among other things, a substantial evidence standard of review – greatly reduces the risks associated with its use, and should be viewed as a welcome step in the right direction by CEQA reform advocates.
Questions? Please contact Arthur F. Coon, Sean Marcinak, or Matthew Henderson of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.