As another year draws near its close, a number of notable recent CEQA developments in both the legislative and regulatory arenas have occurred that bear mention. Below are some highlights of new CEQA legislation that will be in effect in the new year, as well as significant regulatory changes in process.
- SB 35 (Wiener), perhaps the “poster child” of the numerous affordable housing crisis bills signed by Governor Brown, amends Government Code §§ 65400 and 65582.1, and adds and repeals § 65913.4, relating to housing. It requires cities and counties to annually report extensive housing data (e.g., number and type of projects approved, applications made, construction data, etc.) as specified, to the Department of Housing and Community Development. It also provides a ministerial, “by right” approval process – i.e., one exempt from CEQA – for certain multifamily infill projects that meet “objective” zoning and design review standards and affordable housing requirements as specified, and that are located on residentially zoned or designated sites within jurisdictions that have failed to meet their share of regional housing needs. As with most recent statutory CEQA exemptions for development projects, the “by right” approval process is subject to a number of complex exclusions and pre-qualifications, including that project construction workers for non-public work developments of 10 or more units be paid prevailing wage rates determined pursuant to specified Labor Code provisions, or be subject to a project labor agreement, as defined. The law also contains deadlines for action on applications, and deemed approval provisions, and applies to charter cities.
- SB 540 (Roth), adds Article 10.10 (§ 65620 et seq) to the Government Code, relating to land use. The law authorizes local governments to establish “Workforce Housing Opportunity Zones.” A local government can do so by enacting specific plans that it analyzes with an EIR. Thereafter, a local government doing so is required to approve, on an expedited basis and without further CEQA review, any proposed developments within the zone meeting certain criteria for a period of 5 years, unless it makes certain disqualifying findings regarding the proposed development site. As with SB 35, approved projects are also required to meet specified prevailing wage requirements.
- AB 73 (Chiu), amends and adds various provisions to the Government Code and CEQA, relating to land use, to authorize cities and counties to establish, by ordinance effective up to 10 years, “housing sustainability districts” meeting specified requirements, including authorizing the ministerial approval of permits (i.e., exempt from CEQA review) for qualified residential uses and housing projects. The bill would provide for “zoning incentive payments” to the city or county from the Department of Housing and Community Development upon compliance with certain criteria, and also require that prevailing wages be paid and a skilled workforce employed for projects within the housing sustainability district.
- AB 246 (Santiago), amends numerous provisions of CEQA to extend the sunset date of the “Jobs and Economic Improvement Through Environmental Leadership Act of 2011,” and its streamlining program (including expedited record preparation and litigation) relating to Governor-certified, $100,000,000 environmental “leadership projects,” to January 21, 2021. Among other requirements, it increases the minimum LEED certification requirement for such projects from silver to gold, and ratchets up the transportation efficiency requirement from the current 10% to 15% greater than for comparable projects.
- AB 1218 (Obernolte), on a more pedestrian note, amends Public Resources Code §§ 21080.20 and 21080.20.5 to extend two existing CEQA exemptions, for bicycle transportation plans and bike lane street and highway restriping projects within approved plans, until 2021.
CEQA Guidelines Update Proposal
In late November 2017, following an iterative 5-year development process, the Governor’s Office of Planning and Research (OPR) transmitted to the California Natural Resources Agency its final version of comprehensive “Proposed Updates To The CEQA Guidelines.” This action marks the commencement of a formal rulemaking process under the Administrative Procedure Act intended to culminate in adoption of revised and updated CEQA Guidelines by the Secretary of the Natural Resources Agency, which would become effective after review and approval by the Office of Administrative Law.
Like OPR’s 2015 Preliminary Discussion Draft – my detailed analyses and critiques of which can be found in my posts of September 18, October 5, and October 26, 2015 – the final proposal contains comprehensive proposed amendments classified by OPR into categories of Efficiency Improvements, Substance Improvements, and Technical Improvements. It also contains proposed new Guidelines § 15064.3, which implements SB 743’s direction to update the Guidelines to establish new transportation impact analysis criteria, and replaces a “placeholder” in the 2015 discussion draft. It essentially implements the mandated replacement of congestion-based level-of-service (LOS) traffic analysis with vehicle miles travelled (VMT) analysis; my prior post analyzing OPR’s separately released January 20, 2016 revised proposal for § 15064.3 can be found here.
For the most part, OPR’s final draft is the same as the 2015 discussion draft previously analyzed, although there are some changes and even some improvements along the lines suggested in my prior detailed analysis (e.g., clarifying in § 15064.7 that agencies may use thresholds of significance on a “case-by-case” basis where supported by substantial evidence, removing language from § 15234(d) that misstated the law concerning judicial remedies).
While space limitations preclude another in-depth review here, it is an interesting commentary on the pace and complexity of CEQA case law development generally to note that one proposed regulation — § 15125(a)(2) discussing environmental setting/baseline rules – is already “outdated.” That proposed section contains an incorrect and misleading statement of the law regarding environmental baseline issues, in conflict with holdings of the Fifth District’s recent decision in Association of Irritated Residents v. Kern County Board of Supervisors (2017) _____ Cal.App.5th _____ (“AIR”), my post on which can be found here. Specifically, the proposed section 15125(a)(2) states in relevant part that “[a] lead agency may use … a historic conditions baseline … as the sole baseline for analysis only if it demonstrates with substantial evidence that use of existing conditions would be either misleading or without informative value to decision-makers and the public[.]” AIR holds, directly to the contrary, that use of a 2007 operations “baseline” as a realistic measurement of “existing conditions” for a project involving a refinery with historically fluctuating operations was permissible, subject only to review for substantial evidence support, and not subject to the more rigorous judicial scrutiny stated in the proposed guideline, which the Court held applies only to situations where an agency relies solely on a future conditions baseline. Hopefully, this legal error will be corrected during the formal rulemaking process.
On a related note, as part of a panel including Jeannie Lee, AICP, Senior Counsel at OPR, I will be discussing some highlights of the proposed CEQA Guidelines at CLE’s 13th Annual Superconference next Thursday, December 14, 2017 at 11:15 a.m., at the Marriott Marquis in San Francisco. Hope to see you there!
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, 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, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.