As we rapidly approach the end of a year of COVID-related challenges and uncertainties, CEQA practitioners may want to review the year’s key legislation impacting CEQA and its application, which was contained in the handful of bills summarized below.
- AB 168 (Aguilar-Curry). This urgency legislation became effective with the Governor’s signature on September 25, 2020. It amends Government Code §§ 65400, 65913.4 and 65941.1 to correct an “oversight” in SB 35 (Weiner), namely, that 2017 law’s failure to consider potential destruction of tribal cultural resources as a result of the streamlined, ministerial (and thus CEQA-exempt) approval process it authorized for multifamily housing development projects satisfying specified objective planning standards. (SB 35 is summarized in detail in my 12/7/17 blog post, which can be found here.)
Notable features of AB 168 include its requirement for developers to submit a preliminary application with key project details, which is the same as SB 330’s preliminary application (Gov. Code, § 65941.1), and for local governments to engage in a scoping consultation regarding the proposed development with any California Native American Tribe traditionally and culturally affiliated with the area. (§ 65913.4(b)(1)(A)(ii).) The consultation is to proceed on a 30-30-30 timeline whereby the local government formally notifies each Tribe within 30 days of receiving the preliminary application, the Tribe has 30 days to accept the invitation to engage in consultation, and the government must initiate consultation within 30 days of the Tribe’s acceptance. (§ 65913.4(b)(1)(A)(ii), (iii)(1)(ia-ic), (II), (III).) The development proponent and its consultants may participate in the consultation process if they agree to and participate in good faith, and if the Tribe approves, although the Tribe may also revoke its approval at any time during the process. (§ 65913.4(b)(1)(c).) The consultation must recognize the Tribes’ relevant knowledge and expertise concerning the resources, and take into account their cultural significance to the Tribe (§ 65913.4(b)(1)(B)), and specific confidentiality requirements apply to the consultation.
CEQA does not apply to the consultation process. (§ 65913.(b)(1)(E).)
If the parties participating in the tribal consultation conclude there is no potential impact to tribal cultural resources, or if a Tribe does not timely respond to a consultation invitation, or having accepted an invitation fails to engage after repeated local government attempts to initiate consultation, then the developer may proceed to submit an application for ministerial approval of its project under SB 35. (§ 65913.4(b)(3)(C), (A), (B).) If the consultation identifies potential impacts to tribal cultural resources and the parties commit to a documented, enforceable agreement regarding the treatment of potential resources, an application may be submitted and the project is eligible for SB 35 approval (§ 65913.4(b)(3)(D)); further, the enforceable agreement must be attached to the local government’s ministerial approval. (§ 65913.4(b)(20)(B).)
Conversely, a project is disqualified from ministerial approval under SB 35 if: (1) the site contains a tribal cultural resource listed on a national, tribal, state, or local historic register (§ 65913.4(b)(4)(A)); (2) the parties to the scoping consultation cannot agree on whether the project will impact tribal cultural resources (§ 65913.4(b)(4)(B)); or (3) a potential tribal cultural resource would be affected and the parties are unable to document an enforceable agreement regarding its treatment. (§ 65913.4(b)(4)(C).) If the consultation results in the project’s disqualification from SB 35’s ministerial process, the local government must provide written documentation and explanation of that fact to the developer and Tribes, including in the developer’s documentation information on how to seek the necessary discretionary project approvals. (§ 65913.4(b)(5)(A), (B).)
The new law does not apply to projects that received ministerial approval under SB 35 prior to its effective date (§ 65913.4(b)(8)), but OPR has stated in a recently issued Technical Advisory that pending SB 35 applications should comply.
- AB 2421 (Quirk). Responding to the adverse telecommunications impacts of commercial electric power interruptions from utility safety power shut offs in reaction to California’s unprecedented wildfires, this law adds Government Code § 65850.75, which “creates a narrow time-limited [CEQA] exemption and a uniform process for the expedited installation of low emission, emergency standby generators [as defined,] and associated storage tanks located within, or immediately adjacent to, an already permitted macro cell tower site [as defined].” The statute is premised on the vital public safety need to rapidly deploy emergency standby generators in order to “help ensure consumers maintain access to 911 services, wireless emergency alerts, and other public safety communications” without the delays and barriers that result from “[f]ragmented and lengthy permitting requirements[.]” By requiring local agencies receiving complete emergency standby generator applications meeting specified requirements to treat them as a permitted use and review them “on an administrative, nondiscretionary basis,” the new law expands the CEQA ministerial approval exemption to this area until it sunsets on January 1, 2024. In enacting this law, the Legislature found it is a matter of statewide concern and not a municipal affair, and the law therefore applies to all cities, including charter cities.
- AB 2731 (Gloria). This CEQA special legislation adds Chapter 6.9 (commencing with Pub. Resources Code, § 21189.70), and repeals Public Resources Code §§ 21189.70.2‑21189.70.7, to establish administrative and judicial procedures (including expedited 270-day judicial review and lead agency record preparation) for a mixed-use transportation facility in San Diego that connects to the San Diego International Airport, conditioned on the project meeting specified criteria, including labor requirements, a reduction in VMT, and consistency with specified planning documents. The law basically applies to the San Diego Old Town Center redevelopment areas and related matters within SANDAG’s purview; as it is not generally applicable, I will not analyze its contents in any detail here, but will observe that it appears to be yet another example of the Legislature’s willingness to allow CEQA short-cuts for substantial projects it favors, while not reforming the complex and litigation-friendly CEQA framework that generally applies to the private sector’s, or less politically connected local agencies’, projects.
- SB 288 (Weiner). This new law, which provides for new and expanded exemptions for sustainable public transportation projects, was previously analyzed in detail in my September 7, 2020 post, which can be found here.
- SB 974 (Hurtado). This new law adds and repeals Public Resources Code § 21080.47. It creates a CEQA exemption, sunsetting on January 1, 2028, for projects that will benefit small disadvantaged community water systems (no more than 3,300 service connections or 10,000 year-long residents, and serving one or more disadvantaged communities or their schools, as defined) by: providing drinking water to a disadvantaged community with contaminated or depleted drinking wells; encouraging water conservation; or improving the system’s water quality, supply, or reliability. To qualify for the exemption, the law would require the project to meet specified labor requirements and other conditions, and it requires lead agencies approving or carrying out a project that is exempt under its provisions to file a notice of exemption with OPR and the clerk of the county where the project is located, as provided.
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 fifty 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.