On September 7, 2023, Governor Newsom signed into law AB 1307, urgency legislation which took effect immediately and added to the Public Resources Code a new Section 21085, which reads: “For purposes of this division, for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”

The new law also adds Section 21085.2, which provides in pertinent part:

(b)        Notwithstanding any other law or regulation, institutions of public higher education shall not be required, in an environmental impact report prepared for a residential or mixed-use housing-project, to consider alternatives to the location of the residential or mixed-use housing project if both of the following requirements are met:

(1)        The residential or mixed-use housing project is located on a site that is no more than five acres and is substantially surrounded by qualified urban uses.

(2)        The residential or mixed-use housing project has already been evaluated in the environmental impact report for the most recent long-range development plan for the applicable campus.

(See new Pub. Resources Code, § 21085.2(b).)  This new statute’s key terms (“long-range development plan,” “public higher education,” “residential or mixed-use housing project,” and “substantially surrounded”) are defined in its subdivision (a).

AB 1307 is aimed at correcting to some extent problems with CEQA that were highlighted by the recent appellate decision in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, which I blogged on in a 3/3/23 post here, and which is currently under review by the California Supreme Court, as explained in my 5/21/23 post here.  AB 1307’s uncodified Section 3 explains the need for the urgency legislation as follows:  “Currently in California there is a substantial housing crisis.  To ensure housing projects are not subject to further uncertainty, delay, or risk of lawsuit, it is necessary for this act to take effect immediately.” 

Another recent CEQA statutory development is the passage of SB 406, which amends Public Resources Code § 21080.10 to extend CEQA’s existing statutory exemption for actions taken by the Department of Housing and Community Development (HCD) and the California Housing Finance Agency to provide financial assistance or insurance for the development and construction of residential housing, as provided, to actions taken by “a local agency not acting as the lead agency.”  The ostensible aim here is to prevent delays caused by repetitive CEQA review by an agency that is not the lead agency for but that provides financial assistance to a residential housing development project.

The foregoing legislation augments earlier CEQA statutory amendments adopted in July when Governor Newsom signed a package of legislation intended to streamline the construction of critical infrastructure projects needed to meet the State’s climate and clean energy goals; that legislation’s CEQA aspects were discussed in my 7/14/23 post, which can be found here.

While the “bark” of the much-publicized recent statutory CEQA amendments is undoubtedly louder than their “bite,” at least the CEQA reform issue is getting gubernatorial and legislative attention, and gaining some traction – due mainly to the housing crisis and perceived overreach in judicial decisions applying the law – and resulting in some modest incremental legislative reforms.  When it comes to CEQA reform much more is needed in the way of thoughtful and comprehensive measures, but in the world of CEQA “half a loaf” is better than none.

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.