AB 1268: California Environmental Quality Act: exemption for a housing project.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-05-05
The California Environmental Quality Act (CEQA) generally requires all state and local governmental lead agencies to prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any discretionary project that they propose to carry out or approve that may result in a significant effect on the environment, that is, a substantial, or potentially substantial, adverse change in the physical conditions that exist within the area that will be affected by the project. Under existing law, a housing project qualifies for an exemption from CEQA if certain requirements are met, including the requirement that the site is not located within the boundaries of a state conservancy.
This bill would eliminate the requirement that the site not be located within the boundaries of a state conservancy.
The California Environmental Quality Act (CEQA) generally requires all state and local governmental lead agencies to prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any discretionary project that they propose to carry out or approve that may result in a significant effect on the environment, that is, a substantial, or potentially substantial, adverse change in the physical conditions that exist within the area that will be affected by the project. Under existing law, a housing project qualifies for an exemption from CEQA if certain requirements are met, including the requirement that the site is not located within the boundaries of a state conservancy.
This bill would eliminate the requirement that the site not be located within the boundaries of a state conservancy.
The California Coastal Act of 1976 establishes procedures for the preparation, approval, and certification of local coastal programs. The act requires each local coastal program to contain a specific public access component to ensure that maximum public access to the coast and public recreation areas is provided.
This bill would make a nonsubstantive change to that public access provision.
The California Coastal Act of 1976 establishes procedures for the preparation, approval, and certification of local coastal programs. The act requires each local coastal program to contain a specific public access component to ensure that maximum public access to the coast and public recreation areas is provided.
This bill would make a nonsubstantive change to that public access provision.
A housing project qualifies for an exemption from this division pursuant to Section 21159.22, 21159.23, or 21159.24 if it meets the criteria in the applicable section and all of the following criteria:
(a)The project is consistent with any applicable general plan, specific plan, and local coastal program, including any mitigation measures required by a plan or program, as that plan or program existed on the date that the application was deemed complete and with any applicable zoning ordinance, as that zoning ordinance existed on the date that the application was deemed complete, except that a project shall not be deemed to be inconsistent with the zoning designation for the site if that zoning designation is inconsistent with the general plan only because the project site has not been rezoned to conform with a more recently adopted general plan.
(b)Community-level A community-level environmental review has been adopted or certified.
(c)The project and other projects approved prior to the approval of the project can be adequately served by existing utilities, and the project applicant has paid, or has committed to pay, all applicable in-lieu or development fees.
(d)The site of the project does not contain wetlands, does not have any value as a wildlife habitat, and the project does not harm any species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or protected by the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and the project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete. For the purposes of this subdivision, wetlands has the same meaning as in Section 328.3 of Title 33 of the Code of Federal Regulations and wildlife habitat means the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.
(e)The site of the project is not included on any list of facilities and sites compiled pursuant to Section 65962.5 of the Government Code.
(f)The site of the project is subject to a preliminary endangerment assessment prepared by an environmental assessor to determine the existence of any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity.
(1)If a release of a hazardous substance is found to exist on the site, the release shall be removed, or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements.
(2)If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements.
(g)The project does not have a significant effect on historical resources pursuant to Section 21084.1.
(h)The project site is not subject to any of the following:
(1)A wildland fire hazard, as determined by the Department of Forestry and Fire Protection, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a wildland fire hazard.
(2)An unusually high risk of fire or explosion from materials stored or used on nearby properties.
(3)Risk of a public health exposure at a level that would exceed the standards established by any state or federal agency.
(4)Within a delineated earthquake fault zone, as determined pursuant to Section 2622, or a seismic hazard zone, as determined pursuant to Section 2696, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of an earthquake fault or seismic hazard zone.
(5)Landslide hazard, flood plain, flood way, or restriction zone, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a landslide or flood.
(i)(1)The project site is not located on developed open space.
(2)For the purposes of this subdivision, developed open space means land that meets all of the following criteria:
(A)Is publicly owned, or financed in whole or in part by public funds.
(B)Is generally open to, and available for use by, the public.
(C)Is predominantly lacking in structural development other than structures associated with open spaces, including, but not limited to, playgrounds, swimming pools, ballfields, enclosed child play areas, and picnic facilities.
(3)For the purposes of this subdivision, developed open space includes land that has been designated for acquisition by a public agency for developed open space, but does not include lands acquired by public funds dedicated to the acquisition of land for housing purposes.
A housing project qualifies for an exemption from this division pursuant to Section 21159.22, 21159.23, or 21159.24 if it meets the criteria in the applicable section and all of the following criteria:
(a)The project is consistent with any applicable general plan, specific plan, and local coastal program, including any mitigation measures required by a plan or program, as that plan or program existed on the date that the application was deemed complete and with any applicable zoning ordinance, as that zoning ordinance existed on the date that the application was deemed complete, except that a project shall not be deemed to be inconsistent with the zoning designation for the site if that zoning designation is inconsistent with the general plan only because the project site has not been rezoned to conform with a more recently adopted general plan.
(b)Community-level environmental review has been adopted or certified.
(c)The project and other projects approved prior to the approval of the project can be adequately served by existing utilities, and the project applicant has paid, or has committed to pay, all applicable in-lieu or development fees.
(d)The site of the project does not contain wetlands, does not have any value as a wildlife habitat, and the project does not harm any species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or by the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and the project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete. For the purposes of this subdivision, wetlands has the same meaning as in Section 328.3 of Title 33 of the Code of Federal Regulations and wildlife habitat means the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.
(e)The site of the project is not included on any list of facilities and sites compiled pursuant to Section 65962.5 of the Government Code.
(f)The site of the project is subject to a preliminary endangerment assessment prepared by an environmental assessor to determine the existence of any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity.
(1)If a release of a hazardous substance is found to exist on the site, the release shall be removed, or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements.
(2)If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements.
(g)The project does not have a significant effect on historical resources pursuant to Section 21084.1.
(h)The project site is not subject to any of the following:
(1)A wildland fire hazard, as determined by the Department of Forestry and Fire Protection, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a wildland fire hazard.
(2)An unusually high risk of fire or explosion from materials stored or used on nearby properties.
(3)Risk of a public health exposure at a level that would exceed the standards established by any state or federal agency.
(4)Within a delineated earthquake fault zone, as determined pursuant to Section 2622, or a seismic hazard zone, as determined pursuant to Section 2696, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of an earthquake fault or seismic hazard zone.
(5)Landslide hazard, flood plain, flood way, or restriction zone, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a landslide or flood.
(i)(1)The project site is not located on developed open space.
(2)For the purposes of this subdivision, developed open space means land that meets all of the following criteria:
(A)Is publicly owned, or financed in whole or in part by public funds.
(B)Is generally open to, and available for use by, the public.
(C)Is predominantly lacking in structural development other than structures associated with open spaces, including, but not limited to, playgrounds, swimming pools, ballfields, enclosed child play areas, and picnic facilities.
(3)For the purposes of this subdivision, developed open space includes land that has been designated for acquisition by a public agency for developed open space, but does not include lands acquired by public funds dedicated to the acquisition of land for housing purposes.
(j)The project site is not located within the boundaries of a state conservancy.
SECTION 1.Section 30500 of the Public Resources Code is amended to read:30500.(a)Each local government lying, in whole or in part, within the coastal zone shall prepare a local coastal program for that portion of the coastal zone within its jurisdiction. However, any local government may request, in writing, the commission to prepare a local coastal program, or a portion thereof, for the local government. Each local coastal program prepared pursuant to this chapter shall contain a specific public access component to ensure that maximum public access to the coast and public recreation areas is provided.
(b)Amendments to a local general plan for the purpose of developing a certified local coastal program shall not constitute an amendment of a general plan for purposes of Section 65358 of the Government Code.
(c)The precise content of each local coastal program shall be determined by the local government, consistent with Section 30501, in full consultation with the commission and with full public participation.
(a)Each local government lying, in whole or in part, within the coastal zone shall prepare a local coastal program for that portion of the coastal zone within its jurisdiction. However, any local government may request, in writing, the commission to prepare a local coastal program, or a portion thereof, for the local government. Each local coastal program prepared pursuant to this chapter shall contain a specific public access component to assure ensure that maximum public access to the coast and public recreation areas is provided.
(b)Amendments to a local general plan for the purpose of developing a certified local coastal program shall not constitute an amendment of a general plan for purposes of Section 65358 of the Government Code.
(c)The precise content of each local coastal program shall be determined by the local government, consistent with Section 30501, in full consultation with the commission and with full public participation.
|
Date
|
Status
|
|---|---|
| Feb 27, 2015 | Introduced. To print. |
| Mar 1, 2015 | From printer. May be heard in committee March 31. |
| Mar 2, 2015 | Read first time. |
| Mar 26, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on NAT. RES. Read second time and amended. |
| Mar 26, 2015 | Referred to Com. on NAT. RES. |
| Apr 6, 2015 | Re-referred to Com. on NAT. RES. |
| May 5, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on NAT. RES. Read second time and amended. |
| May 6, 2015 | Re-referred to Com. on NAT. RES. |
| May 11, 2015 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Jan 31, 2016 | Died pursuant to Article IV, Sec. 10(c) of the Constitution. |
| Feb 1, 2016 | From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. |
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Positions by individuals are not included.
AB 1268
Page 4
Date of Hearing: May 11, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 1268 (
Steinorth) – As Amended May 5, 2015
SUBJECT: California Environmental Quality Act: exemption for a housing project
SUMMARY: Eliminates the exclusion of projects located within the boundaries of a state conservancy from an existing California Environmental Quality Act (CEQA) exemption for specified housing projects.
EXISTING LAW:
CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA guidelines).
Requires metropolitan planning organizations (MPOs) to include a sustainable communities strategy (SCS), as defined, in their regional transportation plans, or an alternative planning strategy (APS), for the purpose of reducing greenhouse gas emissions, aligns planning for transportation and housing, and creates specified incentives for the implementation of the strategies, including CEQA exemption or abbreviated review for residential or mixed-use residential "transit priority projects" if the project is consistent with the use designation, density, building intensity, and applicable policies specified for the project area in either an approved SCS or APS. [SB 375 (Steinberg), Chapter 728, Statutes of 2008]
Exempts from CEQA residential, mixed-use, and "employment center" projects, as defined, located within "transit priority areas," as defined, if the project is consistent with an adopted specific plan and specified elements of a SCS or APS adopted pursuant to SB 375. [SB 743 (Steinberg), Chapter 386, Statutes of 2013]
Establishes abbreviated CEQA review procedures for specified infill projects, where only specific or more significant effects on the environment which were not addressed in a prior planning-level EIR need be addressed. An EIR for such a project need not consider alternative locations, densities, and building intensities or growth-inducing impacts. Infill projects may include residential, retail, commercial, transit station, school, or public office building projects located within an urban area. [SB 226 (Simitian), Chapter 469, Statutes of 2011]
Exempts from CEQA any residential development project, including any subdivision, or any zoning change that is undertaken to implement and is consistent with a specific plan for which an EIR has been certified after January 1, 1980, unless substantial changes or new information require the preparation of a supplemental EIR for the specific plan, in which case the exemption applies once the supplemental EIR is certified. (Section 65457 of the Government Code).
Exempts from CEQA specified housing projects which meet detailed criteria established to ensure the project does not have a significant effect on the environment, including excluding projects within the boundaries of a state conservancy. [SB 1925 (Sher), Chapter 1039, Statutes of 2002] The SB 1925 exemptions are available to:
Affordable agricultural housing projects not more than 45 units within a city, or 20 units within an agricultural zone, on a site not more than five acres in size;
Urban affordable housing projects not more than 100 units on a site not more than five acres in size; and,
Urban infill housing projects not more than 100 units on a site not more than four acres in size, which is within one-half mile of a major transit stop.
Requires local agencies to file notice of the SB 1925 exemptions with the Office of Planning and Research (OPR), however, failure to file this notice does not affect the validity of the project. [AB 677 (Firebaugh), Chapter 677, Statutes of 2003]
THIS BILL eliminates the exclusion of projects within the boundaries of a state conservancy from the SB 1925 exemptions.
FISCAL EFFECT: Non-fiscal
COMMENTS:
Background. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the project may have a significant effect on the environment. If the initial study shows that there would not be a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows that the project may have a significant effect on the environment, the lead agency must prepare an EIR.
Generally, an EIR must accurately describe the proposed project, identify and analyze each significant environmental impact expected to result from the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range of reasonable alternatives to the proposed project.
SB 1925, enacted in 2002, exempts from CEQA certain residential projects providing affordable urban or agricultural housing, or located on an infill site within an urbanized area, and meeting specified unit and acreage criteria. The stated intent of the Legislature in enacting those provisions included “creating a streamlined procedure for agricultural employee housing, affordable housing, and urban infill housing projects that do not have an adverse effect on the environment.” Projects located within the boundaries of a state conservancy were excluded from the SB 1925 exemptions, but not from other existing exemptions available for residential projects.
Need and purpose of this bill. According to a Legislative Analyst’s Office (LAO) report entitled “California’s High Housing Cost: Causes and Consequences” published on March 17, 2015, the authors conclude that CEQA requirements are a significant factor in causing increased housing costs in California. According to the author, although there are existing laws exempting various housing projects from CEQA, these projects are not exempt if the site is located within a state conservancy, which covers 56% of the state. The author states:
Eliminating the overbroad preclusion of conservancy land, while still maintaining other existing preclusions against development upon land with wildlife value, would prove to be a practical and careful reform to CEQA in order to achieve a balance between environmental protection and California’s critical need for low-income housing.
LAO report conclusions unsupported. The conclusion that CEQA is a significant driver to inhibiting housing development in California was based on data between 2004-2013 from OPR that found the average delay of a project associated with an EIR was 2.5 years. Using this single value to draw this conclusion is problematic for several reasons:
Due to a few very long delays, the average value is inflated upwards as the middle value (median) is two years and is more appropriate to use for analytical purposes.
To conclude that EIRs are a significant cause of California housing supply shortage, knowing the proportion of EIR projects in relation to total housing projects is necessary. If EIR projects represent a very small proportion, it would be inappropriate to conclude that EIR’s have a significant effect on development. Unfortunately this data is not available.
Additionally, EIR projects that could be categorized as frivolous need to be separated from others that might provide larger cost reducing benefits in the long run. For instance, if a two-year EIR process avoided larger and long-term environmental quality costs to the community and future development, the EIR process should not be categorized as a costly delay. Unfortunately, this analysis was not undertaken in the report.
The SB 1925 exemption is rarely used. When a local agency determines that a project is exempt from CEQA pursuant to SB 1925, the local agency must file a notice of exemption with OPR. According to OPR, it has received just four notices of exemption pursuant to the SB 1925 exemption since 2004. Curiously, two of those projects, affordable housing developments in the City of Inglewood and the City of Goleta, appear to be located within the general jurisdiction of the State Coastal Conservancy.
Besides the restriction of a project not being located on state conservancy lands, there are numerous other criteria that must be met to receive an exemption through SB 1925. The lack of use of the SB 1925 exemption is likely due to a combination of the complication and difficultly of meeting all its conditions and the availability of other exemptions with broader application and/or fewer conditions.
Other CEQA exemptions are available for housing projects within state conservancies. Although SB 375 and SB 743 offer CEQA exemptions for only limited “transit priority areas,” both SB 226 and Section 65457 of the Government Code offer broader opportunities for housing projects to be either exempt from CEQA or subject to abbreviated review requirements. All of these existing exemptions apply to housing projects located on state conservancy lands.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
Environmental Action Committee of West Marin
Natural Resources Defense Council
Sierra Club California
Analysis Prepared by: Paul Jacobs / NAT. RES. / (916) 319-2092
