On September 7, 2018, Governor Brown signed two bills amending CEQA in relatively minor ways that will become effective January 1, 2019.
AB 2341 (Chapter 298) (Mathis) adds Public Resources Code § 21081.3 to provide that “a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects shall not be considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets … [five specified] requirements[.]” To fall within this new partial statutory exemption, (1) the building must be abandoned, dilapidated (defined as “decayed, deteriorated, or fallen into such disrepair through neglect or misuse so as to require substantial repair for safe and proper use”), or have been vacant for over a year; (2) the site must be immediately adjacent to parcels developed with qualified urban uses or 75 percent of its perimeter must adjoin such parcels (with the remainder adjoining parcels previously so developed); (3) the project must include housing construction; (4) any new structure must “not substantially exceed the height of the existing structure”; and (5) the project must “not create a new source of substantial light or glare.”
AB 2341’s new partial aesthetics exemption would not apply to projects with potentially significant effects on an officially established state scenic highway or on historical or cultural resources, nor would it affect a lead agency’s authority to consider, mitigate or avoid aesthetic impacts under laws other than CEQA, and it would sunset in five years. While the new law helpfully does not limit its exemption to transit priority areas, and should somewhat encourage and facilitate urban infill site redevelopment with housing and mixed-use projects, it also contains vague language that will invite disputes (e.g., what is a “substantially” taller building?), and the degree to which this incremental CEQA reform step has actual practical utility (beyond, for example, that already provided by the Class 32 infill-development project categorical exemption) remains to be seen.
The second new law, AB 2782 (Chapter 193) (Friedman), adds Public Resources Code § 21082.4 to provide: “In describing and evaluating a project in an environmental review document prepared pursuant to [CEQA], the lead agency may consider specific economic, legal, social, technological, or other benefits, including regionwide or statewide environmental benefits, of a proposed project and the negative impacts of denying the project. Any benefits or negative impacts considered pursuant to this section shall be based on substantial evidence in light of the whole record.”
One apparent aim of this new law is to explicitly authorize an EIR to discuss a variety of non-environmental project benefits that could form the basis of a lead agency’s statement of overriding considerations for approving a project with significant unmitigated environmental impacts; another may be to expressly recognize that regionwide or statewide environmental benefits (e.g., VMT and GHG emissions reductions) may properly be considered as benefits outweighing adverse local impacts in the overriding considerations calculus – although I would also note that the ability of a local agency to do so is already recognized by established law. Further, under existing law EIRs already can (and should) be discussing any negative environmental impacts of project denial when analyzing the “no project” alternative, and it is well established that any factual findings in a CEQA document or statement of overriding considerations must be supported by substantial evidence somewhere in the administrative record to be upheld. In sum, this statute seems to break little, if any, new legal ground.
The biggest “takeaway” from the two new laws discussed above may be that the California Legislature’s CEQA reform efforts – unsurprisingly – continue to be modest and incremental.
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.