The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA exempts from its requirements projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area, in which a state of emergency has been proclaimed by the Governor.

This bill would exempt from the requirements of CEQA specified actions and approvals taken between January 1, 2019, and January 1, 2024, for would, until January 1, 2024, provide for streamlined judicial review for actions or proceedings brought pursuant to CEQA on the adoption or approval of amendments to the Downtown Station Area Specific Plan for the City of Santa Rosa meeting certain requirements. The bill would exempt from the requirements of CEQA requirements or on the approval of residential projects that are consistent with the amended Downtown Station Area Specific Plan.

This bill, until January 1, 2024, would authorize a streamlined judicial review for the adoption or amendment of a specific plan, general plan, zoning ordinance, or other planning document by a local public agency that includes certain parcels within the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma (RED Area) for certain purposes. The bill would require a local public agency to use specified procedures for conducting the environmental review for the adoption or amendments of the RED Area plan, including the current preparation of the record of proceedings, as provided.

This bill, until January 1, 2024, would exempt from the requirements of CEQA certain projects located at certain parcels owned by the City of Santa Rosa or the County of Sonoma within the City of Santa Rosa and certified by a local agency as meeting certain requirements.

Because a lead agency would be required to determine the applicability of the above-specified exemptions for projects, this bill would impose a state-mandated local program.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Santa Rosa and the County of Sonoma.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA exempts from its requirements projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area, in which a state of emergency has been proclaimed by the Governor.

This bill would exempt from the requirements of CEQA specified actions and approvals taken between January 1, 2019, and January 1, 2024, for the adoption or approval of amendments to a specific plan located within the Downtown Station Area Specific Plan for the City of Santa Rosa meeting certain requirements and requirements. The bill would exempt from the requirements of CEQA the approval of residential projects that are consistent with the amended specific plan. amended Downtown Station Area Specific Plan.

This bill, until January 1, 2024, would authorize a streamlined judicial review for the adoption or amendment of a specific plan, general plan, zoning ordinance, or other planning document by a local public agency that includes certain parcels within the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma (RED Area) for certain purposes. The bill would require a local public agency to use specified procedures for conducting the environmental review for the adoption or amendments of the RED Area plan, including the current preparation of the record of proceedings, as provided.

This bill, until January 1, 2024, would exempt from the requirements of CEQA certain projects located in a RED Area at certain parcels owned by the City of Santa Rosa or the County of Sonoma within the City of Santa Rosa and certified by a local agency as meeting certain requirements.

Because a lead agency would be required to conduct the environmental review and to concurrently prepare the record of proceedings for the adoption or amendment of a RED Area plan and to determine the applicability of the exemption for amendments to a specific plan in the City of Santa Rosa or a project located in a RED Area, above-specified exemptions for projects, this bill would impose a state-mandated local program.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Santa Rosa and the County of Sonoma.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA exempts from its requirements projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area, in which a state of emergency has been proclaimed by the Governor.

This bill would exempt from the requirements of CEQA specified actions and approvals taken between January 1, 2019, and January 1, 2024, by specified local public agencies adopting or approving for the adoption or approval of amendments to a specific plan located within the City of Santa Rosa meeting certain requirements and the approval of projects that are consistent with the amended specific plan.

This bill, until January 1, 2024, would authorize a streamlined judicial review for the adoption or amendment of a specific plan, general plan, zoning ordinance, or other planning document by a local public agency that includes certain parcels that are in within the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma (RED Area) for certain purposes. The bill would require a local public agency to use specified procedures for conducting the environmental review for the adoption or amendments of the RED Area plan, including the current preparation of the record of proceedings, as provided. The

This bill, until January 1, 2024, would exempt from the requirements of CEQA certain projects located in a RED Area and certified by a local agency as meeting certain requirements.

Because a lead agency would be required to conduct the environmental review and to concurrently prepare the record of proceedings for the adoption or amendment of a RED Area plan and to determine the applicability of the exemption for amendments to a specific plan in the City of Santa Rosa or a project located in a RED Area, this bill would impose a state-mandated local program.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Santa Rosa and the County of Sonoma.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA exempts from its requirements projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area, in which a state of emergency has been proclaimed by the Governor.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA exempts from its requirements projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area, in which a state of emergency has been proclaimed by the Governor.

This bill would provide that those projects described above may be at a higher intensity of use as compared to the property or facilities being replaced. exempt from the requirements of CEQA a proposed residential housing project to replace or reconstruct wildfire-damaged housing that may increase the density of residential units by up to 50% and that is located in an area in which a wildfire-related state of emergency has been proclaimed by the Governor, provided the proposed project meets specified requirements. Because a lead agency would be required to determine the applicability of this exemption for a project, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides that, in any civil action to appeal or review the award, finding, or other determination of an administrative proceeding, if it is shown that the award, finding, or other determination was the result of arbitrary or capricious action or conduct by a public entity or officer, the complainant may collect reasonable attorneys fees, not to exceed $7,500, from the public entity, except as specified.

This bill would increase the maximum allowable amount of reasonable attorneys fees the complainant may collect pursuant to those provisions to $8,000.

 THIRD READING  

Bill No: AB 2267

Author:

:

Vote:

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-1, 6/20/18

AYES: Stone, Gaines, Hill, Lara, Skinner

NOES: Wieckowski

NO VOTE RECORDED: Stern

SENATE JUDICIARY COMMITTEE: 4-1, 6/26/18

AYES: Anderson, Hertzberg, Monning, Stern

NOES: Wieckowski

NO VOTE RECORDED: Jackson, Moorlach

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 73-0, 5/10/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill establishes, until January 1, 2024, expedited administrative and judicial review for actions or proceedings brought pursuant to the California Environmental Quality Act on the adoption or approval of amendments to the Downtown Station Area Specific Plan for the City of Santa Rosa, as specified and for the adoption or amendment of the specified planning document for incorporated or unincorporated areas of Sonoma County in the “RED Area,” as defined.

ANALYSIS:

Existing law:

1. Provides for the following, pursuant to the Planning and Zoning Law (Government Code §65000 et seq.):
   
   1. Requires a city or county to prepare and adopt a general plan, including a housing element, to guide future growth of a community. The housing element must consist of an identification and analysis of existing and projected housing needs and a statement of goals, policy objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing.
      
   2. Requires the housing element to identify adequate sites for housing, including rental housing, factory-built housing, mobile homes, and emergency shelters and to make adequate provisions for the existing and projected needs of all economic segments of the community.
      
   3. Permits, after the adoption of a general plan, localities to prepare specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan.
   4. Requires localities, upon the approval of a general plan, to submit an annual report to the Office of Planning and Research (OPR) and the Department of Housing and Community Development.
      
2. Enacts the California Environmental Quality Act (CEQA) (Public Resources Code (PRC) §21000 et seq.), which:
   
   1. 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).
      
   2. Provides various statutory exemptions and streamlining provisions applicable to housing and infill development projects in CEQA, which do the following:
      1. Exempts from CEQA residential, mixed-use, and “employment center” projects, as defined, located within “transit priority areas,” as defined, that meets specified criteria. (PRC §21155.4)
      2. 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. Requires OPR to develop CEQA Guidelines to implement these infill provisions, including statewide standards to promote smart growth, reduction of greenhouse gas (GHG) emissions, reduction in water use, energy efficiency improvements, and protection of public health. (PRC §21094.5).
      3. Requires metropolitan planning organizations (MPOs) to include a sustainable communities strategy (SCS), in their regional transportation plans, or an alternative planning strategy (APS), for the purpose of reducing GHG 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. (PRC §21155 et seq.).
      4. Exempts residential housing projects that meet criteria established to ensure the project does not have a significant effect on the environment. (PRC §21159.20 et seq.).
      5. Provides streamlining provisions for a residential or mixed-use residential project that is consistent with the use designation, density, building intensity, and applicable policies for the project area in either a sustainable communities strategy or an alternative planning strategy. (PRC §21159.28).
      6. Defines “tiering” or “tier” as the coverage of general matters and environmental effects in an EIR prepared for a policy, plan, program or ordinance followed by narrower or site-specific EIRs which incorporate by reference the discussion in any prior EIR and which concentrate on the environmental effects which (a) are capable of being mitigated, or (b) were not analyzed as significant effects on the environment in the prior EIR. (PRC §21068.3)
   3. Provides various exemptions and streamlining provisions applicable to infill development projects in the CEQA Guidelines, including:
      1. Providing an exemption or limited environmental review to a project that is consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified, except as might be necessary to examine whether there are project-specific effects which are peculiar to the project or its site. If an impact is not peculiar to the parcel or to the proposed project, then an additional EIR need not be prepared for that project solely on the basis of that impact. (CEQA Guidelines §15183).
      2. Providing a streamlined environmental review process for eligible infill projects by limiting the topics subject to review at the project level where the effects of infill development have been addressed in a planning level decision or by uniformly applicable development policies. No additional environmental review is required if the infill project would not cause any new site-specific or project-specific effects, or if uniformly applied development standards would substantially mitigate such effects. (CEQA Guidelines §15183.3).
      3. Exempting a residential infill project, as specified. (CEQA Guidelines §15195).
      4. Exempting a residential project pursuant to a specific plan, as specified. (CEQA Guidelines §15182).
      5. Providing for a more focused EIR for a project that is a multiple family residential development of 100 units or less or is a residential and commercial or retail mixed-use commercial development of not more than 100,000 square feet, and that meets specified conditions.
      6. Providing a categorical exemption for new construction or conversion of small structures, as specified. (CEQA Guidelines §15303).
      7. Providing a categorical exemption for an infill development project within city limits (CEQA Guidelines §15332), as specified.

This bill:

1. Establishes, until January 1, 2024, expedited administrative and judicial review for actions or proceedings brought pursuant to CEQA on the adoption or approval of amendments to the Downtown Station Area Specific Plan for the City of Santa Rosa.
2. Establishes, until January 1, 2024, expedited administrative and judicial review for actions or proceedings brought pursuant to CEQA on the other planning document by a local public agency that includes certain parcels within the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma (RED Area) for certain purposes.
3. Defines “RED Area” as the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma that are located on a parcel that falls entirely or partially within a transit priority area as defined in subdivision (a) of Section 21099 of the Public Resources Code, a locally adopted priority development area as identified in the Metropolitan Transportation Commission’s Plan Bay Area 2040 or successor document, or within the Sonoma County Airport Employment Investment Area as identified by the Association of Bay Area Governments.
4. Requires a local public agency to use specified procedures for conducting the environmental review for the adoption or amendments of the RED Area plan, including the current preparation of the record of proceedings, as provided.
5. Provides that the lead agency may certify a project as a RED Leadership Development Project if the project meets specified requirements.

Background

1. Overview of CEQA Process. CEQA provides a process for evaluating the environmental effects of a project, and includes statutory exemptions, as well as categorical exemptions in the CEQA guidelines. If a project is not exempt from CEQA, an initial study is prepared to determine whether a 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. Prior to approving any project that has received environmental review, an agency must make certain findings. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures.
   
   If a mitigation measure would cause one or more significant effects in addition to those that would be caused by the proposed project, the effects of the mitigation measure must be discussed but in less detail than the significant effects of the proposed project.

Comments

1. CEQA litigation. It is not unusual for certain interests to blame CEQA lawsuits for causing problems to a project. However, it should be noted that the only tool for enforcing CEQA is civil litigation. So, attempts to eliminate the possibility of litigation means taking away the ability to enforce the law.
   
   Those citing CEQA litigation as a problem do not indicate the result of that litigation. For example, were significant impacts that were not evaluated in the initial document ultimately addressed? What would have been the result if those impacts had not been mitigated (e.g. flooding, exposure of people to hazards, inadequate public services, congestion)?
   
   Also, how prevalent is CEQA litigation? According to the CEQA in the 21^st Century report mentioned above, the number of lawsuits filed under CEQA has averaged 195 per year since 2002. Fewer than 1 out of every 100 projects reviewed under CEQA (that were not considered exempt) were subject to litigation. The estimated rate of litigation for all CEQA projects undergoing environmental review (excluding exemptions) was 0.7% for the past few years.
   
   To help put this in perspective, the total number of CEQA cases filed make up approximately 0.02% of 1,100,000 civil cases filed annually in California.
   
   Furthermore, the California Attorney General’s office conducted a case study of CEQA challenges in the City and County of San Francisco from July 2011 through December 2011 and found that 18 lawsuits were filed out of 5,203 projects considered under CEQA.
   
   According to the Natural Resources Defense Council, a review of CEQA challenges in the City of Los Angeles from January 2011 through July 20, 2012, shows that of 1,182 projects reviewed under CEQA, 18 were challenged, which is a litigation rate of 1.5%.
   
   Although certain interests believe CEQA litigation to be a swathing impediment to some projects, the numbers above indicate otherwise. The volume of CEQA litigation is low considering the thousands of projects subject to CEQA each year as well as the volume of civil litigation in general statewide. And if a project is the subject of litigation, perhaps the cause of action has merit and ensures compliance with the law.
   
2. How does expedited judicial review help? Expedited judicial review tips the scales to the defendants of the lawsuit who prepared the EIR and will have the advantage because they had all of the time, resources and information that went into the EIR document and will be ready to litigate well before the plaintiff(s) will have ever seen a draft, much less had time to review and prepare their case. Therefore, the defendant (city) will have the upper hand for any case filed.

1. Not faster but guaranteed fastest. Current law already provides that CEQA lawsuits get priority over other lawsuits and that in large jurisdictions there are designated judges for CEQA. That alone should expedite this process. By utilizing the AB 900 schedule you not only guarantee expedited judicial review but guarantee expedited completion of the case.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Unknown cost pressures, likely in the hundreds of thousands of dollars, for the courts to adjudicate all CEQA challenges within 270 days after the certification of the record.
• Minor and absorbable costs for Judicial Council to review and revise the rules of the court to meet the requirements of this bill.
• Minor and absorbable costs for the OPR to process a judicial streamlining request.

SUPPORT: (Verified 8/22/18)

American Council of Engineering Companies

Bay Area Council

California Building Industry Association

California Chamber of Commerce

California Nevada Cement Association

Regional Climate Protection Authority

Sonoma County Agricultural Preservation and Open Space District

Sonoma County Transportation Authority

Sonoma County Water Agency

The Nature Conservancy

OPPOSITION: (Verified 8/22/18)

Judicial Council of California

Sierra Club California

ASSEMBLY FLOOR: 73-0, 5/10/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Cooley, Friedman, Cristina Garcia, Obernolte

Prepared by: Rachel Machi Wagoner / E.Q. / (916) 651-4108

8/22/18 17:09:23

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2267 (Wood) - California Environmental Quality Act: Sonoma County Renewal Enterprise District

Bill Summary:

This bill would exempt specified actions and project approvals within certain areas of the city of Santa Rosa that are taken between January 1, 2019, and January 1, 2024 from the requirements of the California Environmental Quality Act (CEQA).

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 16, 2018

Fiscal Impact:

• Unknown cost pressures, likely in the hundreds of thousands of dollars, for the courts to adjudicate all CEQA challenges within 270 days after the certification of the record.
• Minor and absorbable costs for Judicial Council to review and revise the rules of the court to meet the requirements of this bill.
• Minor and absorbable costs for the Office of Planning and Research to process a judicial streamlining request.

Committee Amendments:

Remove the broad exemption and instead provides expedited judicial review for rebuilding activities.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2267 (Wood) - California Environmental Quality Act: Sonoma County Renewal Enterprise District

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

This bill would exempt specified actions and project approvals within certain areas of the city of Santa Rosa that are taken between January 1, 2019, and January 1, 2024 from the requirements of the California Environmental Quality Act (CEQA).

Fiscal Impact:

• Unknown cost pressures, likely in the hundreds of thousands of dollars, for the courts to adjudicate all CEQA challenges within 270 days after the certification of the record.
• Minor and absorbable costs for Judicial Council to review and revise the rules of the court to meet the requirements of this bill.
• Minor and absorbable costs for the Office of Planning and Research to process a judicial streamlining request.

Background:

CEQA requires that state and local agencies follow a set protocol in order to disclose and evaluate any significant environmental impacts associated with proposed projects and to adopt feasible measures to mitigate those impacts. Projects determined to have significant environmental impacts generally are required to create an Environmental Impact Report (EIR). The 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. To enforce the requirements of CEQA, a civil action may be brought under several code sections to attack, review, set aside, void, or annul the acts or decisions of a public agency for noncompliance.

The community of Santa Rosa was significantly affected by the North Bay fires in October 2017, which destroyed more than 3,000 homes in Santa Rosa alone. These losses, combined with an already existing countywide shortage of affordable and available housing, have pushed Santa Rosa and Sonoma County into a housing crisis that threatens the health of the regional economy.

Proposed Law:

This bill would exempt the City of Santa Rosa from CEQA until January 1, 2024, with regard to the adoption or approval of amendments to land use plans that meet certain requirements, as well as to the approval of projects that are consistent with the amended plans. The bill would also authorize streamlined judicial review for the adoption or amendment of a specific plan, general plan, zoning ordinance, or other planning document by a local public agency for purposes related to promoting housing development and infill.

Staff Comments:

Staff recognizes the city of Santa Rosa’s need to rebuild quickly, but also notes that there are existing CEQA exemptions for infill development that could apply. Moreover, the devastation resulting from last year’s fires should indicate that more planning and review for new development, not less, is needed in order to avoid the type of fatal devastation that occurred.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2267 (Author:Wood)

Version: June 11, 2018

Hearing Date: June 26, 2018

Fiscal: Yes

Urgency: No

Consultant: JDT

SUBJECT

California Environmental Quality Act: Sonoma County Renewal Enterprise District

DESCRIPTION

This bill would exempt the City of Santa Rosa from CEQA until January 1, 2024, with regard to the adoption or approval of amendments to land use plans that meet certain requirements, as well as to the approval of projects that are consistent with the amended plans. The bill would also authorize streamlined judicial review for the adoption or amendment of a specific plan, general plan, zoning ordinance, or other planning document by a local public agency for purposes related to promoting housing development and infill.

BACKGROUND

Enacted in 1970, the California Environmental Quality Act (CEQA) requires state and local agencies (public agencies) to follow a set protocol to disclose and evaluate the significant environmental impacts of proposed projects and to adopt feasible measures to mitigate those impacts. CEQA itself applies to “projects” undertaken or requiring approval by public agencies, and, if more than one agency is involved, CEQA requires one of the agencies to be designated as the “lead agency.” The environmental review process required by CEQA consists of: (1) determining if the activity is a project; (2) determining if the project is exempt from CEQA; and (3) performing an initial study to identify the environmental impacts and, depending on the findings, prepare either a Negative Declaration (for projects with no significant impacts), a Mitigated Negative Declaration (for projects with significant impacts but that are revised in some form to avoid or mitigate those impacts), or an Environmental Impact Report (for projects with significant impacts).

An Environmental Impact Report (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. Before approving any project that has received environmental review, an agency must make certain findings pertaining to the project’s environmental impact and any associated mitigation measures. If mitigation measures are required or incorporated into a project, the public agency must adopt a reporting or monitoring program to ensure compliance with those measures. To enforce the requirements of CEQA, a civil action may be brought under several code sections to attack, review, set aside, void, or annul the acts or decisions of a public agency for noncompliance with the act.

The Planning and Zoning Law requires a city or county to prepare and adopt a general plan, including a housing element, to guide future growth of a community. (Gov. Code Sec. 65000 et seq.) After the adoption of a general plan, localities may prepare “specific plans” for the systematic implementation of the general plan for all or part of the area covered by the general plan. (Gov. Code Sec. 65450.) A specific plan must be related to the general plan (Gov. Code Sec. 65451), and must be prepared, adopted, and amended in the same manner as a general plan, except as specified. (Gov. Code Sec. 65453.) Furthermore, a specific plan may not be adopted or amended unless the proposed plan is consistent with the general plan. (Gov. Code Sec. 65454.)

This bill would exempt the City of Santa Rosa from CEQA until January 1, 2024. with regard to the adoption or approval of amendments to specific plans that meet certain requirements, as well as to the approval of projects that are consistent with the amended plans. The bill would also authorize streamlined judicial review for the adoption or amendment of a specific plan, general plan, zoning ordinance, or other planning document by a local public agency for purposes related to promoting housing development and infill.

CHANGES TO EXISTING LAW

Existing law, the California Environmental Quality Act (CEQA), requires a public agency to prepare, or cause to be prepared, and to certify the completion of, an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. (Pub. Res. Code Sec. 21100 et seq.)

Existing law defines “project” as an activity that may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following:

• an activity directly undertaken by any public agency;
• an activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies; or
• an activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (Pub. Res. Code Sec. 21065.)

Existing law provides that an action or proceeding to attack, review, set aside, void, or annul the acts or decisions of a public agency on the grounds of noncompliance with CEQA may be commenced when, among other things, it is alleged that:

• a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment;
• a public agency has improperly determined whether a project may have a significant effect on the environment;
• an environmental impact report prepared by, or caused to be prepared by, a public agency does not comply with CEQA;
• a public agency has improperly determined that a project is not subject to CEQA; or
• another act or omission of a public agency does not comply with CEQA. (Pub. Res. Code Sec. 21167.)

Existing law establishes the Planning and Zoning Law. (Gov. Code Sec. 65000 et seq.)

Existing law requires a city or county to prepare and adopt a general plan, including a housing element, to guide future growth of a community. The housing element must consist of an identification and analysis of existing and projected housing needs and a statement of goals, policy objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing. (Gov. Code Sec. 65583(a).)

Existing law requires the housing element to identify adequate sites for housing, including rental housing, factory-built housing, mobile homes, and emergency shelters and to make adequate provisions for the existing and projected needs of all economic segments of the community. (Gov. Code Sec. 65583(a).)

Existing law permits localities, after the adoption of a general plan, to prepare specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan. (Gov. Code Sec. 65450.)

Existing law provides that a specific plan must include a statement of the relationship to the general plan, and a text and diagram(s) specifying all of the following in detail:

• the distribution, location, and extent of the uses of land, including open space, within the area covered by the plan;
• the proposed distribution, location, and extent and intensity of major components of public and private transportation, sewage, water drainage, solid waste disposal, energy, and other essential facilities proposed to be located within the area covered by the plan and needed to support the land uses described in the plan;
• standards and criteria by which development will proceed, and standards for the conservation, development, and utilization of natural resources, where applicable; and
• a program of implementation measures including regulations, programs, public works projects, and specified financing measures. (Gov. Code Sec. 65451.)

Existing law provides that a specific plan must be prepared, adopted, and amended in the same manner as a general plan, except that a specific plan may be adopted by resolution or by ordinance and may be amended as often as deemed necessary by the legislative body. (Gov. Code Sec. 65453.)

Existing law prohibits a specific plan from being adopted or amended unless the proposed plan is consistent with the general plan. (Gov. Code Sec. 65454.)

Existing law provides that no local public works projects may be approved, no tentative map or parcel map for which a tentative map was not required may be approved, and no zoning ordinance may be adopted or amended within an area covered by a specific plan unless it is consistent with the adopted specific plan. (Gov. Code Sec. 65455.)

Existing law provides that 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 environmental impact report has been certified, is exempt from CEQA. However, this exemption does not apply if, after adoption of the specific plan, one of the following events specified in Public Resources Code Section 21166 occurs:

• substantial changes are proposed in the project which will require major revisions of the environmental impact report;
• substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report; or
• new information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available. (Gov. Code Sec. 65457(a); Pub. Res. Code Sec. 21166.)

Existing law provides that if one of the events specified above occurs, the exemption from CEQA applicable to a residential development project that is consistent with a specific plan does not apply unless and until a supplemental environmental impact report for the specific plan is prepared and certified in accordance with CEQA. After that report is certified, the exemption applies again. (Gov. Code Sec. 65457(a).)

Existing law provides than an action or proceeding alleging that a public agency has approved a project pursuant to a specific plan without having previously certified a supplemental environmental impact report for the specific plan, if required under the provision described above, must be commenced within 30 days of the public agency’s decision to carry out or approve the project. (Gov. Code Sec. 65457(b).)

This bill would exempt the City of Santa Rosa from CEQA until January 1, 2024, with regard to:

• actions to adopt or approve amendments to an adopted specific plan, conforming amendments to an adopted general plan, or ordinances or administrative guidelines necessary or incidental to the adoption or approval of amendments to an adopted specific plan if all of the following are met:
  • the area in the adopted specific plan falls at least partially in a transit priority area, or downtown, or a priority development area, as provided;
  • for an amendment to an adopted specific plan, an environmental impact report has been certified by the City of Santa Rosa; and
  • the amendments to the specific plan are for either of the following purposes:
    • increasing building height or density, reducing parking requirements, intensifying or diversifying housing stock; or
    • establishing significance criteria to analyze transportation impacts based on methodology established pursuant to subdivision (c) of Section 21099 of the Public Resources Code; and
• projects approved by the City of Santa Rosa that are consistent with an amended specific plan described above.

This bill would provide that an action or approval related to the amendment of a specific plan, as described above, does not constitute an “event” for purposes of Public Resources Code Section 21166, which, as described above, suspends an exemption from CEQA for residential development projects and triggers a requirement that a supplemental environmental impact report for the specific plan be prepared and certified in accordance with CEQA.

This bill would apply California Rules of Court applicable to specified streamlined megaprojects to any challenge to an EIR or negative or mitigated declaration for the adoption or amendment of a “RED Area Plan” and thereby generally foreclose judicial review of those documents after 270 days.

This bill would define “RED Area” as the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma that are located on a parcel that falls entirely or partially within a transit priority area, as defined, a locally adopted priority development area, as specified, or successor document, or within the Sonoma County Airport Employment Investment Area as identified by the Association of Bay Area Governments.

This bill would define “RED Area Plan” as the specific plan, general plan, zoning ordinance, or other planning document adopted or amended by a county, city, whether chartered or general law, town, district, political subdivision, joint powers authority, or any other local public agency, including local board, commission, or agency, that includes parcels in the RED Area and that the lead agency certifies as meeting all of the following in order to qualify for streamlined judicial review:

• authorizes residential, retail, commercial, sports, cultural, entertainment, or recreational uses in the RED Area;
• requires residential development within one-half mile of a transit station actively served by passenger rail service at a minimum density of 20 units per acre;
• requires 20 percent of dwelling units developed within an individual RED Area Plan boundary over a 10-year period to be subject to a recorded affordability restriction for either the sale or rental of the dwelling units, as specified; and
• establishes that the build out of the RED Area Plan will not result in any direct or indirect net additional greenhouse gas emissions.

This bill would provide that a lead agency’s decision to certify or not certify a RED Area Plan is immune from judicial review.

This bill would provide that if a lead agency finds that a proposed project meets the bill’s conditions for certification of a “RED Leadership Development Project,” the project is exempt from CEQA.

This bill would authorize a lead agency to certify a project as a RED Leadership Development Project if the project:

• is located in the RED Area within one-half mile of an existing major transit stop or high quality transit corridor or is located on a site owned by the County of Sonoma, and is located entirely within a locally designated priority development area;
• includes exclusively residential or mixed-use projects where at least two-thirds of the floor area of the development is devoted to residential uses;
• proposes residential development at a minimum net density of 20 units per acre if the project is located within one-half mile of a transit station actively served by passenger rail service or at a minimum net density of 12 units per acre if the project is located more than one-half mile of a transit station actively served by passenger rail service;
• requires that 20 percent of dwelling units be subject to affordability restrictions for either the sale or rental of the dwelling units, as specified;
• achieves at least 15 percent greater transportation efficiency than comparable projects, based off of information provided by the applicant;
• demonstrates evidence, if the project is a multifamily residential project, of either of the following:
  • private vehicle parking spaces are priced and rented or purchased separately from dwelling units; or
  • the dwelling units are subject to affordability restrictions that prescribe rent or sale prices, and the cost of parking spaces cannot be unbundled from the cost of dwelling units; and
• meets specified prevailing wage requirements for construction workers, unless the project deed-restricts 100 percent of the units, exclusive of managers’ units, at an affordable housing cost, as defined;
• is consistent with a sustainable communities strategy;
• was previously developed with urban uses or at least 75 percent of the project site’s perimeter is, or was, developed with urban uses;
• includes adequate infrastructure and water supply; and
• establishes that the development of the proposed RED Leadership Development Project will not result in any direct or indirect net additional emissions of greenhouse gases.

This bill would require a lead agency to require the project applicant to enter into a binding and enforceable agreement that all elements of the project required to certify the project as a RED Leadership Development Project, as specified. The bill would require that those conditions be fully enforceable by the lead agency or another agency designated by the lead agency.

This bill would require the project applicant to include in the certification application all sufficient information to enable the lead agency to determine whether the project satisfies the requirements to qualify as a RED Leadership Development Project, as specified, and would require the lead agency to make that information public, as specified.

This bill would provide a 21-day public comment period after initial application, and a seven-day comment period after any supplemental application, whichever is later.

This bill would require a lead agency to make a decision on a certification application as expeditiously as possible.

This bill would provide that within 10 days of the certification of a RED Leadership Development Project, the lead agency must file a notice, as specified, which would trigger a 35-day limitations period on challenges to the lead agency’s determination that a project is a RED Leadership Development Project.

This bill would provide that the Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique and urgent needs of the County of Sonoma and City of Santa Rosa following the October 2017 Sonoma Complex Fires.

COMMENT

1. Stated need for the bill

The author writes:

Beginning late on the night of October 8^th the North Bay fires destroyed more than 8,000 people’s homes including more than 3,000 in Santa Rosa alone.  These losses, combined with an already existing countywide shortage of affordable and available housing, have pushed Santa Rosa and Sonoma County into a housing crisis that threatens the health of the regional economy.

A February 2018 report by Beacon Economics on the housing and fiscal impact of the fires concluded that in total, after accounting for fire losses, employment growth, and overcrowded housing, Sonoma County needs an additional 26,000 housing units by 2020 to avoid negatively impacting economic growth and permanently losing residents who were displaced by the fires.

To address this impending crisis the City of Santa Rosa and County of Sonoma have come together to propose a resilient, climate-friendly plan to rejuvenate their communities with responsible, infill development in specific transportation corridors.

AB 2267 would create a narrow and temporary CEQA exemption for projects that meet specified density, affordable housing, environmental and labor requirements. This bill would give the City and County a tool to incentivize development that will quickly renew the area with carefully planned, climate-smart infill development rather than increasing the suburban sprawl that expands into wildland environment.

2. Five-year CEQA exemption for certain changes to Santa Rosa’s specific plans for land

use and projects related to those plans

The Planning and Zoning Law requires a city or county to prepare and adopt a general plan, including a housing element, to guide future growth of a community. (Gov. Code Sec. 65000 et seq.) After the adoption of a general plan, localities may prepare “specific plans” for the systematic implementation of the general plan for all or part of the area covered by the general plan. (Gov. Code Sec. 65450.) A specific plan must be related to the general plan (Gov. Code Sec. 65451), and must be prepared, adopted, and amended in the same manner as a general plan, except as specified. (Gov. Code Sec. 65453.) Furthermore, a specific plan may not be adopted or amended unless the proposed plan is consistent with the general plan. (Gov. Code Sec. 65454.)

This bill would exempt the City of Santa Rosa from CEQA until January 1, 2024, with regard to:

• actions to adopt or approve amendments to an adopted specific plan, conforming amendments to an adopted general plan, or ordinances or administrative guidelines necessary or incidental to the adoption or approval of amendments to an adopted specific plan if all of the following are met:
  • the area in the adopted specific plan falls at least partially in a transit priority area, or downtown, or a priority development area, as provided;
  • for an amendment to an adopted specific plan, an environmental impact report has been certified by the City of Santa Rosa; and
  • the amendments to the specific plan are for either of the following purposes:
    • increasing building height or density, reducing parking requirements, intensifying or diversifying housing stock; or
    • establishing significance criteria to analyze transportation impacts based on methodology established pursuant to subdivision (c) of Section 21099 of the Public Resources Code.

This bill would also provide that projects approved by the City of Santa Rosa that are consistent with a specific plan are exempt from CEQA. Thus, this bill would generally exempt from CEQA “Red Area Plans” and “RED Leadership Development Projects.” “RED Area Plan” means the specific plan, general plan, zoning ordinance, or other planning document adopted or amended by a county, city, whether chartered or general law, town, district, political subdivision, joint powers authority, or any other local public agency, including local board, commission, or agency, that includes parcels in the RED Area and that the lead agency certifies as meeting specified requirements in order to qualify for streamlined judicial review. Thus, substantial changes to Santa Rosa’s land use planning and the scope of projects authorized pursuant to those plans would be exempt from CEQA until 2024.

In opposition, the Sierra Club writes:

This essentially allows for large swaths of Santa Rosa to be planned, zoned, and developed, without environmental review and identification of impacts, public disclosure of those impacts, or mitigation of any impacts of development. This will lead to increased pollution, and a lack of meaningful public scrutiny about this development.

3. Existing law provides for streamlining of housing infill while maintaining an

environmental safety net

Existing law provides that 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 environmental impact report has been certified, is exempt from CEQA. The CEQA Guidelines further provide:

CEQA mandates that projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive studies.

(CEQA Guidelines Sec. 15183(a).) Thus, the types of projects this bill seeks to expedite would generally be exempt from CEQA review, as long as they are consistent with the applicable specific plan. It is not clear why this provision is not sufficient to incentivize infill development. As noted in Section 15183 of the CEQA Guidelines, “[t]his streamlines the review of such projects and reduces the need to prepare repetitive environmental studies.”

Additionally, when development projects or zoning changes deviate from an established specific plan, existing law provides a backstop to ensure that the local government’s long-term land use planning decisions are properly observed. Thus, this exemption does not apply if, after adoption of the specific plan, one of the following events specified in Public Resources Code Section 21166 occurs:

• substantial changes are proposed in the project which will require major revisions of the environmental impact report;
• substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report; or
• new information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available. (Gov. Code Sec. 65457(a); Pub. Res. Code Sec. 21166.)

If one of the events specified above occurs, the exemption from CEQA applicable to a residential development project or zoning change that is consistent with a specific plan does not apply unless and until a supplemental environmental impact report for the specific plan is prepared and certified in accordance with CEQA. After that report is certified, the exemption applies again. (Gov. Code Sec. 65457(a).) Consequently, existing law balances efficiency—by exempting housing development projects and zoning changes that are consistent with a duly adopted specific plan from redundant review—with protections, to ensure that if a project or zoning change strays too far from the specific plan, environmental review is triggered.

This bill would provide that an action or approval related to the amendment of a specific plan, as described above, does not constitute an “event” for purposes of Public Resources Code Section 21166, which, as described above, suspends an exemption from CEQA for residential development projects and zoning changes, and triggers a requirement that a supplemental environmental impact report for the specific plan be prepared and certified in accordance with CEQA. Consequently, this bill sacrifices the minimal protections described above in order to incentivize projects that are generally eligible for streamlining under existing law.

In opposition, the Sierra Club writes: “While the bill attempts to increase transportation efficiency, the lack of enforcement and disclosure routine with the familiar CEQA process could leave this open for abuse. Given the existing exemptions for infill and [transit priority areas], this is unwarranted.”

4. Limited judicial review for RED Areas Plans and RED projects

1. Setting impractical expectations for CEQA challenges

This bill would apply California Rules of Court applicable to specified streamlined megaprojects to any challenge to an EIR or negative or mitigated declaration for the adoption or amendment of a “RED Area Plan” and thereby generally foreclose judicial review of those plans after 270 days. Such a provision presents several key issues.

First, such a requirement inherently prioritizes such cases over other critically important ones, further delaying justice for parties to those actions. As pointed out by the Judicial Council, this expedited judicial review undermines equal access: “The courts are charged with dispensing equal access to justice for each and every case on their dockets. Singling out this particular type of case for such preferential treatment appears at odds with how our justice system has historically functioned.”

Second, the expedited judicial review provision would be impracticable to carry out. Based on the numbers from the Judicial Council, a 270-day timeline triggered at the point of certification of the record is fundamentally infeasible and fails to take into consideration the realities of the court system.

1. Immunity from judicial review

This bill would provide that a lead agency’s decision to certify or not certify a RED Area Plan is immune from judicial review. The bill would also provide that if a lead agency finds that a proposed project meets the bill’s conditions for certification of a “RED Leadership Development Project,” the project is exempt from CEQA. This bill would thus strip courts of power to review changes to land use planning and projects related to those changes, seriously undermining the effectiveness of the state’s preeminent environmental law.

5. The weight of the evidence undermines the perception that CEQA is a major

impediment to housing and other important projects in California

The commonly asserted notion that rampant CEQA litigation abuse creates a major barrier to housing development is not supported by the weight of the evidence. In 2016, BAE Urban Economics did a quantitative analysis of the effects of CEQA on California’s economy, including the effects on housing development. (BAE Urban Economics, CEQA in the 21st Century (August 2016) <https://rosefdn.org/wp-content/uploads/2016/08/CEQA-in-the-21st-Century.pdf> [as of Apr. 5, 2018].) The report found “no evidence” to support the argument that CEQA represents a major barrier to development. To the contrary, the report found that only 0.7 percent of all CEQA projects undergoing environmental review were involved in litigation. The report indicated that California’s affordable housing production ranked ninth among the 50 states. In fact, the report concluded that “[t]he CEQA process also helped ensure that affordable housing is develop[ed] in a way that does not compromise the health and safety of an already vulnerable population.”

Another relevant report produced by the Senate Environmental Quality Committee was recently released that also undercuts the theory that CEQA is hampering development. (Senate Environmental Quality Committee, California Environmental Quality Act Survey (December 2017) <http://senv.senate.ca.gov/sites/senv.senate.ca.gov/files/ceqa_ survey_full_report_-_final_12-5-17.pdf> [as of Apr. 5, 2018].) As the author’s office concedes in its background materials on this bill, the report shows that CEQA litigation abuse is “close to non-existent.”

These studies call into question whether CEQA is the real culprit for California’s housing woes, undermining the need for the drastic provisions of this bill. In fact, others have made the case that the focus should be on other factors in the process. (See Dillon, Liam, Blame California’s cities and counties for housing delays, not state environmental law, new study says (Feb. 20, 2018) Los Angeles Times <http://www.latimes.com/ politics/essential/la-pol-ca-essential-politics-updates-blame-cities-and-counties-for-housing-1519168035-htmlstory.html> [as of Apr. 5, 2018].)

Support: American Council of Engineering Companies; Bay Area Council; California Buildering Industry Association; California Chamber of Commerce; California Nevada Cement Association; Regional Climate Protection Authority; Sonoma County Agricultural Preservation and Open Space District; Sonoma County Transportation Authority; Sonoma County Water Agency; The Nature Conservancy

Opposition: Judicial Council of California; Sierra Club California

HISTORY

Source: City of Santa Rosa; Sonoma County

Related Pending Legislation:

SB 922 (Nguyen, 2018) would impose limits on the court’s ability to issue injunctive relief in CEQA cases challenging specified affordable housing projects built upon former surplus state real property. It would also impose time limits on the courts for the resolution of such cases. This bill failed passage in the Senate Committee on Environmental Quality.

SB 948 (Allen, 2018) would extend exceptions to CEQA to community plan projects, as defined. This bill is currently in the Senate Environmental Quality Committee.

SB 1340 (Glazer, 2018) would require the Judicial Council to adopt a rule of court to establish procedures requiring courts to fully adjudicate California Environmental Quality Act actions and proceedings in connection with any housing projects within 270 days of certifying the record of proceedings, to the extent feasible. This bill would also prohibit courts from staying or enjoining challenged projects with two narrow exceptions. This bill failed to pass out of this Committee.

AB 2279 (Fong, 2018) would impose limits on the court’s ability to issue injunctive relief in CEQA cases challenging specified housing projects. This bill failed to pass out of the Assembly Natural Resources Committee.

Prior Legislation:

SB 743 (Steinberg, Ch. 386, Stats. 2013) established specified administrative and judicial review procedures for review of the EIR and public agency approvals granted for a project related to the development of an entertainment and sports center in the City of Sacramento. Additionally, this bill provides that aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment under CEQA, as specified.

SB 292 (Padilla, Ch. 353, Stats. 2011) established specified administrative and judicial review procedures for review of the EIR and public agency approvals granted for a project related to the development of a stadium in the City of Los Angeles.

AB 30 (Caballero, 2017) would have imposed limits on the court’s ability to issue injunctive relief in CEQA cases challenging specified strip mall conversion housing projects. This bill died in the Assembly Natural Resources Committee.

AB 900 (Buchanan, Ch. 354, Stats. 2011), the Jobs and Economic Improvement Through Environmental Leadership Act of 2011, established specified administrative and judicial review procedures for the review of the EIR and public agency approvals granted for designated residential, retail, commercial, sports, cultural, entertainment, or recreational use projects, or clean renewable energy or clean energy manufacturing projects.

Prior Vote:

Senate Environmental Quality Committee (Ayes 5, Noes 1)

Assembly Floor (Ayes 73, Noes 0)

Assembly Appropriations Committee (Ayes 17, Noes 0)

Assembly Natural Resources Committee (Ayes 10, Noes 0)

Assembly Rules Committee (Ayes 6, Noes 0)

**************

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2017 - 2018 Regular

Bill No: AB 2267

SUBJECT: California Environmental Quality Act: Sonoma County Renewal Enterprise District

ANALYSIS:

Existing law:

1. Pursuant to the Planning and Zoning Law (Government Code §65000 et seq.):
   
   1. Requires a city or county to prepare and adopt a general plan, including a housing element, to guide future the growth of a community. The housing element must consist of an identification and analysis of existing and projected housing needs and a statement of goals, policy objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing.
      
   2. Requires the housing element to identify adequate sites for housing, including rental housing, factory-built housing, mobile homes, and emergency shelters and to make adequate provisions for the existing and projected needs of all economic segments of the community.
      
   3. After the adoption of a general plan, permits localities to prepare specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan. A specific plan must include a statement of the relationship to the general plan, and a text and diagram(s) specifying all of the following in detail:
      
      1. The distribution, location, and extent of the uses of land, including open space, within the area covered by the plan.
      2. The proposed distribution, location, and extent and intensity of major components of public and private transportation, sewage, water drainage, solid waste disposal, energy, and other essential facilities proposed to be located within the area covered by the plan and needed to support the land uses described in the plan.
      3. Standards and criteria by which development will proceed, and standards for the conservation, development, and utilization of natural resources, where applicable.
      4. A program of implementation measures including regulations, programs, public works projects, and specified financing measures.
         
   4. Requires localities, upon the approval of a general plan, to submit an annual report to the Office of Planning and Research (OPR) and the Department of Housing and Community Development (HCD), which includes the following:
      
      1. Status of the general plan and progress of its implementation.
      2. Progress in meeting its share of regional housing needs and local efforts to remove governmental constraints to the maintenance, improvement, and development of housing.
         
2. Pursuant to the California Environmental Quality Act (CEQA) (Public Resources Code (PRC) §21000 et seq.):
   
   1. 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).
      
   2. Provides various statutory exemptions and streamlining provisions applicable to housing and infill development projects in CEQA, which do the following:
      1. Exempts from CEQA residential, mixed-use, and “employment center” projects, as defined, located within “transit priority areas,” as defined, that meets specified criteria. (PRC §21155.4)
      2. 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. Requires OPR to develop CEQA Guidelines to implement these infill provisions, including statewide standards to promote smart growth, reduction of GHG emissions, reduction in water use, energy efficiency improvements, and protection of public health. (PRC §21094.5).
      3. Requires metropolitan planning organizations (MPOs) to include a sustainable communities strategy (SCS), in their regional transportation plans, or an alternative planning strategy (APS), for the purpose of reducing greenhouse gas (GHG) 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. (PRC §21155 et seq.).
      4. Exempts residential housing projects that meet criteria established to ensure the project does not have a significant effect on the environment. (PRC §21159.20 et seq.). This exemption is available for the following:
         1. An affordable agricultural housing project 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;
         2. An urban affordable housing project not more than 100 units on a site not more than five acres in size; and,
         3. An urban infill housing project not more than 100 units on a site not more than four acres in size within one-half mile of a major transit stop.
      5. Provides streamlining provisions for a residential or mixed-use residential project that is consistent with the use designation, density, building intensity, and applicable policies for the project area in either a sustainable communities strategy or an alternative planning strategy. (PRC §21159.28).
      6. Defines “tiering” or “tier” as the coverage of general matters and environmental effects in an EIR prepared for a policy, plan, program or ordinance followed by narrower or site-specific EIRs which incorporate by reference the discussion in any prior EIR and which concentrate on the environmental effects which (a) are capable of being mitigated, or (b) were not analyzed as significant effects on the environment in the prior EIR. (PRC §21068.3)
   3. Provides various exemptions and streamlining provisions applicable to infill development projects in the CEQA Guidelines, including:
      1. Provides an exemption or limited environmental review to a project that is consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified, except as might be necessary to examine whether there are project-specific effects which are peculiar to the project or its site. If an impact is not peculiar to the parcel or to the proposed project, then an additional EIR need not be prepared for that project solely on the basis of that impact. (CEQA Guidelines §15183).
      2. Provides a streamlined environmental review process for eligible infill projects by limiting the topics subject to review at the project level where the effects of infill development have been addressed in a planning level decision or by uniformly applicable development policies. No additional environmental review is required if the infill project would not cause any new site-specific or project-specific effects, or if uniformly applied development standards would substantially mitigate such effects. (CEQA Guidelines §15183.3).
      3. Exempts a residential infill project, as specified. (CEQA Guidelines §15195).
      4. Exempts a residential project pursuant to a specific plan, as specified. (CEQA Guidelines §15182).
      5. Provides for a more focused EIR for a project that is a multiple family residential development of 100 units or less or is a residential and commercial or retail mixed-use commercial development of not more than 100,000 square feet, and that meets specified conditions, including:
         1. Surrounded by immediately contiguous urban development;
         2. Previously developed within urban uses; or,
         3. Within one-half mile of an existing rail transit station.
      6. Provides a categorical exemption for new construction or conversion of small structures, as specified. (CEQA Guidelines §15303). For urbanized areas, examples include:
         1. A multi-family residential structure designed for not more than six dwelling units.
         2. Up to four commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use.
      7. Provides a categorical exemption for an infill development project within city limits (CEQA Guidelines §15332), as specified.

This bill:

1. Exempts from the requirements of CEQA specified actions and approvals taken between January 1, 2019, and January 1, 2024, or the adoption or approval of amendments to a specific plan located within the City of Santa Rosa meeting certain requirements and the approval of projects that are consistent with the amended specific plan.
2. Until January 1, 2024, would authorize a streamlined judicial review for the adoption or amendment of a specific plan, general plan, zoning ordinance, or other planning document by a local public agency that includes certain parcels within the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma (RED Area) for certain purposes.
3. Defines “RED Area” as the portions of the City of Santa Rosa or unincorporated areas of the County of Sonoma that are located on a parcel that falls entirely or partially within a transit priority area as defined in subdivision (a) of Section 21099 of the Public Resources Code, a locally adopted priority development area as identified in the Metropolitan Transportation Commission’s Plan Bay Area 2040 or successor document, or within the Sonoma County Airport Employment Investment Area as identified by the Association of Bay Area Governments.
4. Requires a local public agency to use specified procedures for conducting the environmental review for the adoption or amendments of the RED Area plan, including the current preparation of the record of proceedings, as provided.
5. Until January 1, 2024, would exempt from the requirements of CEQA certain projects located in a RED Area and certified by a local agency as meeting certain requirements.
6. Because a lead agency would be required to conduct the environmental review and to concurrently prepare the record of proceedings for the adoption or amendment of a RED Area plan and to determine the applicability of the exemption for amendments to a specific plan in the City of Santa Rosa or a project located in a RED Area, this bill would impose a state-mandated local program.

Background

1. Background on CEQA.
   
   1. Overview of CEQA Process. CEQA provides a process for evaluating the environmental effects of a project, and includes statutory exemptions, as well as categorical exemptions in the CEQA guidelines. If a project is not exempt from CEQA, an initial study is prepared to determine whether a 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. Prior to approving any project that has received environmental review, an agency must make certain findings. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures.
      
      If a mitigation measure would cause one or more significant effects in addition to those that would be caused by the proposed project, the effects of the mitigation measure must be discussed but in less detail than the significant effects of the proposed project.
      
   2. What is analyzed in an environmental review? Pursuant to CEQA, an environmental review analyzing the significant direct and indirect environmental impacts of a proposed project may include water quality, surface and subsurface hydrology, land use and agricultural resources, transportation and circulation, air quality and greenhouse gas emissions, terrestrial and aquatic biological resources, aesthetics, geology and soils, recreation, public services and utilities such as water supply and wastewater disposal, and cultural resources. The analysis must also evaluate the cumulative impacts of any past, present, and reasonably foreseeable projects/activities within study areas that are applicable to the resources being evaluated. A study area for a proposed project must not be limited to the footprint of the project because many environmental impacts of a development extend beyond the identified project boundary. Also, CEQA stipulates that the environmental impacts must be measured against existing physical conditions within the project area, not future, allowable conditions.
      
   3. CEQA provides hub for multi-disciplinary regulatory process. A CEQA exemption does not alleviate a project proponent from its obligation to obtain mandatory permits or adhere to specified regulatory programs. CEQA assists in moving a project through the multi-disciplinary, regulatory process because responsible agencies rely on the lead agency’s environmental documentation in acting on the aspect of the project that requires its approval and must prepare its own findings regarding the project. A variety of issues, many of which involve permitting and/or regulatory program requirements, should be coordinated and analyzed together as a whole. CEQA provides a comprehensive analysis of a project’s impacts in those subject areas.
      
2. Infill development. “Infill development” occurs in already built-up areas with existing transportation and utility infrastructure, often repurposes or replaces existing buildings, parking lots, or other impervious areas, and adds homes and/or businesses near the center of cities and towns. Examples of infill project locations include a disused parking lot, an old commercial property, or a former industrial site. Infill development is considered a vital strategy for efficient growth.
   
   Infill builds within an existing footprint of development, which can reduce development pressure on outlying areas, helping to safeguard lands that serve important ecological functions and preserve open space and prevent conversion of agricultural land; can reduce the amount that people drive, improving air quality and reducing GHG emissions; and can lead to the cleanup and reuse of formerly economically viable but now abandoned sites, including those contaminated with hazardous substances. Also, by locating new developments near population centers and amenities, communities can take advantage of existing water, sewer, and transportation systems, avoiding the cost of installing expensive new infrastructure.
   
   According to the US Environmental Protection Agency (US EPA), several trends point to a sustained increase in demand for infill development and a market opportunity for developers. Consumer preferences for the amenities that infill locations offer are likely to grow as changing demographics affect the housing market. In the next couple of decades, the needs and preferences of aging baby boomers, new households, and one-person households will drive real estate market trends – and infill locations are likely to attract many of these people. As more people choose to live in infill neighborhoods, employers are following, and vice versa. Many corporations are moving to infill locations, in part because they recognize the competitive advantages of being closer to the central city. (US EPA, “Smart Growth and Economic Success: Investing in Infill Development,” February 2014.)
   
   The Strategic Growth Council (SGC), as a part of its broader legislative mandate, has identified “infill” development as an important strategy for achieving AB 32 (Núñez, Pavley, Chapter 488, Statutes of 2006) greenhouse gas (GHG) emissions reduction targets. While contributing to reductions of GHG emissions, achieving infill development can confer a broad range of benefits, such as increased economic vitality of the state’s urban centers; decreased consumption of energy, water, and other natural resources; reduced conversion of farmland and natural habitat areas; and the opportunity for more efficient infrastructure investment and delivery of municipal services.
   
3. Infill development and CEQA. Several changes have been made to CEQA to encourage infill projects, including the following:
   1. SB 743. SB 743 (Steinberg, Chapter 386, Statutes of 2013) made several changes to CEQA for projects located in areas served by transit (i.e. transit-oriented development (TOD)). Among the changes, SB 743 directed the Governor’s Office of Planning and Research (OPR) to develop a new approach for analyzing the transportation impacts under CEQA. SB 743 also created a new exemption for certain projects that are consistent with a Specific Plan and eliminates the requirement to evaluate aesthetic and parking impacts of a project if the project is a residential, mixed-use residential, or employment center project located on an infill site within a transit priority area.
   2. SB 226. SB 226 (Simitian, Chapter 469, Statutes of 2011) 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 to be addressed. An EIR for such a project need not consider alternative locations, densities, and building densities or growth inducing impacts. Any unmitigated effects specific to the project can be analyzed in an “infill” EIR that limits review only to those impacts without the need to analyze alternatives or growth-inducing impacts. SB 226 required OPR to develop CEQA Guidelines for purposes of this bill.
      
      In order for infill projects to qualify for the CEQA benefits in SB 226, they must meet statewide performance standards developed by OPR. The statute required that these performance standards promote the state’s GHG emissions reductions goals in AB 32 (Núñez, Pavley) and SB 375 (Steinberg), state planning priorities, water conservation and energy efficiency standards, transit-oriented development policies, and public health.
   3. SB 375. SB 375 (Steinberg, Chapter 728, Statutes of 2008) established the Sustainable Communities and Climate Protection Act of 2008. SB 375 directed the California Air Resources Board (ARB) to set regional targets for reducing GHG emissions, setting up a “bottom up” approach to ensure that cities and counties are involved in the development of regional plans to achieve those targets. SB 375 tied together the regional allocation of housing needs and regional transportation planning in an effort to reduce GHG emissions from motor vehicle trips. According to ARB, transportation accounts for approximately 40% of GHG emissions, with cars and light trucks making up a significant majority of those emissions (30% overall).
      
      SB 375 established a collaborative process between regional and state agencies to set regional GHG reduction targets, and provided CEQA incentives for development projects that are consistent with a regional plan that meets those targets. SB 375 has three major components: (i) Using the regional transportation planning process to achieve reductions in GHG emissions consistent with AB 32 goals; (ii) Offering CEQA incentives to encourage projects that are consistent with a regional plan that achieves GHG emission reductions; and, (iii) Coordinating the regional housing needs allocation process with the regional transportation process while maintaining local authority over land use decisions.
      
   4. SB 1925. SB 1925 (Sher, Chapter 1039, Statutes of 2002) exempts from CEQA specified residential housing projects which meet criteria established to ensure the project does not have a significant effect on the environment, including 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.

Comments

1. Streamlining provisions already available in CEQA applicable to housing and infill development.
   
   1. Streamlining provisions for housing and infill development. Several provisions in CEQA provide streamlined approaches, including:
      

• Master and focused EIRs; 

• Infill residential, mixed-use, and transit priority project streamlining (SB 375, Steinberg, Chapter 728, Statutes of 2008); 

• Special procedures for various types of housing projects (SB 1925, Sher, Polanco, Chapter 1039, Statutes of 2002); 

• Various litigation, mediation, tiering, and other revisions (SB 1456, Simitian, Chapter 496, Statutes of 2010); 

• Exemption for transit priority projects that are consistent with a previously adopted Specific Plan and the relevant regional Sustainable Communities Strategy (SB 743, Steinberg, Chapter 386, Statutes of 2013);
• Expansion of the statutory exemption for infill residential housing by increasing the allowable percentage of neighborhood-serving commercial uses within a project (SB 674, Corbett, Chapter 549, Statutes of 2014);
• Amendments to procedures relating to findings of overriding consideration (AB 231, Huber, Chapter 432, Statutes of 2010); 

• Infill project and other streamlining provisions (SB 226, Simitian, Vargas, Chapter 469, Statutes of 2011);
• Authorization to mediate a CEQA lawsuit (SB 894, Senate Local Government Committee, Chapter 699, Statutes of 2010); and, 

• Several categorical exemptions contained in the CEQA Guidelines. 

  
  1. This streamlining provision seems to fit the bill. In particular, CEQA Guidelines §15183(a) provides, “CEQA mandates that projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive studies.”
     
     The CEQA report, CEQA in the 21^st Century by BAE Economics and commissioned by the Rose Foundation for Communities and the Environment (August 2016), points to a case study of the use of the community plan exemption, stating, “Between 2013 and 2015, San Francisco received between 36 and 52 applications annually that were subject to review under CEQA. Most projects satisfied CEQA review through application of community plan exemptions. Of the 127 proposals subject to environmental review under CEQA during that three-year period, two were processed with a Negative Declaration and 33 were processed with Mitigated Negative Declarations. Only 14 of the 127 proposals were subjected to full EIRs. Furthermore, 74 projects were deemed exempt due to existing Community Plans, and four were subject to partial environmental review under community plan exemptions (CPEs). These CPEs apply to projects that qualify for infill streamlining or are exempt from environmental review because they are consistent with zoning standards and previously certified plans…In sum, this high utilization rate of CPEs in San Francisco reflects the City’s concerted effort to streamline CEQA review, underscoring how CEQA can be implemented effectively to support the contemporary development process.”
     
     If the goal is to provide expediency via an exemption, CEQA Guidelines §15183 (also referred to as a CPE) provides an exemption for projects such as those proposed in this bill. However, unlike this bill, §15183 provides a safety net to the CPE exemption so that if circumstances arise, such as environmental effects were not analyzed in the plan’s EIR, then the public agency shall limit its examination to those effects. As noted in §15183, “This streamlines the review of such projects and reduces the need to prepare repetitive environmental studies.”

As shown by the multiple options of streamlining available, a question arises as to whether current law already addresses streamlining at the project level for a housing development subject to this bill.

1. Is CEQA a major hindrance to infill development?
   
   1. From whose point of view? Ethan Elkind, Director of Climate Change and Business, with a joint appointment at UC Berkeley School of Law and UCLA School of Law, states, “[W]hen it comes to the big factors stopping infill, at least in California, CEQA ranks below a host of other barriers, such as local zoning codes that outlaw infill, lack of infrastructure investment, high construction costs, tax incentives that favor strip malls over housing, and poor neighborhood schools.
      
      “So why do infill developers make such a big deal about CEQA? My theory is that individual developers will be focused solely on their own projects, and if CEQA is a threat to their investment and risk-taking, they will understandably become CEQA haters. But perhaps this project-based focus distorts the view of the larger forces that stifle business opportunities throughout the state, such as in the suburb with the major rail line that won’t zone for more downtown development or the rundown neighborhood near jobs and services that needs new infrastructure. Ending CEQA tomorrow won’t magically lift these barriers and create new infill opportunities, and it won’t convince local communities to support new downtown development.” (Ethan Elkind, “Why Developers Shouldn’t Blame Environmental Review for the Lack of Infill,” Legal Planet: Insight & Analysis: Environmental Law and Policy, September 24, 2012).
      
   2. OPR survey shows CEQA is not a significant barrier to infill projects. OPR’s “2012 Annual Planning Survey Results” asked city and county planners to explain the primary barriers their jurisdictions have experienced to implementing infill projects.
      
      The chart (below) from the survey shows the relative unimportance of CEQA as a barrier to infill development. Instead, infrastructure constraints, lot issues, lack of funding, community opposition, and the economy, among others ranked higher.

Based on 238 responses, 25% of jurisdictions reported that infrastructure constraints were a primary barrier to implementing infill projects. Just under 25% reported that they had problems with assembling parcels of the right size and configuration for infill development. Only 4% of respondents identified CEQA as a barrier. CEQA ranked 12^th out of 16 primary infill barriers.

A variety of factors affect the production of infill development. Notable infill development constraints include market conditions, physical conditions, infrastructure (e.g., sewer, water, streets), and other community conditions (e.g., schools, public facilities). In places where market demand, physical conditions, existing infrastructure, and community conditions are problematic, current funding and financing options are commonly inadequate, which hinders local and regional agencies’ ability to implement infill development plans. For the assorted issues mentioned above that may hinder infill development, this bill would not alleviate any of them.

1. Is CEQA a major hindrance to building houses? The Construction Industry Research Board (CIRB) Report is a research service provided by the California Homebuilding Foundation and produces current and historical statewide building permit statistics.
   
   The following data is from the CIRB chart, Housing Production In California 2003-2017, and reflects the total number of housing units built annually for the past 15 years (including projected numbers for 2017):
   

According to the U.S. National Bureau of Economic Research, the Great Recession began in December 2007 and ended in mid-2009. The economy began to recover in June 2009 and has averaged 2.1% annual growth since then. Similarly, the table above shows that in 2007, total housing production was at 113,034 units; hit its low in 2009 with a total of 36,421 units; and has steadily increased since 2009. The number of housing units built each year seems to follow a similar trajectory as that of the economy. Meanwhile, CEQA has been a constant, as well as for decades prior. A question arises as to whether CEQA actually hinders the number of housing units built in the state or whether other factors, such as the economy, have a much greater influence.

1. Does CEQA make building affordable housing more expensive? According to HCD’s study, Affordable Housing Cost Study (2014), the major components of total development costs (excluding land cost) across 400 affordable housing development projects analyzed are as follows: construction (69%); demolition and site preparation (8%); development fees (7%); permits and development impact fees (6%); architect, engineering, and site surveys (4%); acquisition costs (1%); offsite improvements (1%); and “other costs” (4%).
   
   The Rose Foundation report notes of HCD’s affordable housing study that the “study did not identify CEQA compliance costs, so the issue of CEQA’s effect on development costs cannot be discerned. Indeed, few of the projects included in the study identified an EIR as part of their project. Information pertaining to the type of CEQA review required of a project was collected through a Developer Survey, which generated 330 useable responses. Just 31 responses (9% of all projects surveyed) stated that an EIR had been prepared or was anticipated.”
   
   For whom does a CEQA exemption make housing more affordable? For the developer or housing residents? Does reducing a developer’s costs with CEQA exemption translate into savings for the low-income resident? Rents and property values are generally determined by the market, not by the cost of a project. Or is this solely a cost reduction for the developer?
   
2. What do we lose with a CEQA exemption? It is not unusual for certain interests to assert that CEQA impedes on a project coming to fruition or that a particular exemption will expedite construction of a particular type of project and reduce costs. This, however, frequently overlooks the benefits of environmental review: to inform decisionmakers and the public about project impacts, identify ways to avoid or significantly reduce environmental damage, prevent environmental damage by requiring feasible alternatives or mitigation measures, disclose to the public reasons why an agency approved a project if significant environmental effects are involved, involve public agencies in the process, and increase public participation in the environmental review and the planning processes.
   
   If a project is exempt from CEQA, certain issues may not get addressed. For example:

• How can decisionmakers and the public be aware of impacts, mitigation measures, and alternatives of an exempt action?
  
• Is it appropriate for the public to live with the consequences of exempt projects where impacts are not mitigated and alternatives are not considered regarding certain matters, such as air quality, water quality, noise, cumulative impacts, and growth inducing impacts?
  
• Because adverse project impacts do not disappear when they are not identified and mitigated with an exemption, does the exemption result in a direct transfer of responsibility for mitigating impacts from the project applicant/developer to the public (i.e., taxpayers) if impacts are ultimately addressed after completion of the project?
  
• If taxpayers, rather than a developer, are ultimately responsible for mitigating impacts of an exempt project after project completion, what assessments or taxes will be increased to fund mitigation or pay for alternatives at a later date?

A lot of changes can happen in a community and environment over the course of ten years. Regardless of the ultimate goal of increasing housing quickly, the short-term, long-term, and/or permanent consequences of a project should be known by the decisionmakers, the project proponent, and the public before a project is approved, and mitigated or avoided if possible before it is too late – CEQA specifically provides for that informed and responsible decisionmaking.

Does bypassing CEQA potentially create more of a liability for those decisionmakers who should have known about potential impacts, but chose not to? Also, does the short-term benefit of expediency justify potentially long-term, permanent consequences/damages to the community?

1. CEQA litigation. It is not unusual for certain interests to blame CEQA lawsuits for causing problems to a project. However, it should be noted that the only tool for enforcing CEQA is civil litigation. So, attempts to eliminate the possibility of litigation means taking away the ability to enforce the law.
   
   Those citing CEQA litigation as a problem do not indicate the result of that litigation. For example, were significant impacts that were not evaluated in the initial document ultimately addressed? What would have been the result if those impacts had not been mitigated (e.g. flooding, exposure of people to hazards, inadequate public services, congestion)?
   
   Also, how prevalent is CEQA litigation? According to the CEQA in the 21^st Century report mentioned above, the number of lawsuits filed under CEQA has averaged 195 per year since 2002. Fewer than 1 out of every 100 projects reviewed under CEQA (that were not considered exempt) were subject to litigation. The estimated rate of litigation for all CEQA projects undergoing environmental review (excluding exemptions) was 0.7% for the past few years.
   
   To help put this in perspective, the total number of CEQA cases filed make up approximately 0.02% of 1,100,000 civil cases filed annually in California.
   
   Furthermore, the California Attorney General’s office conducted a case study of CEQA challenges in the City and County of San Francisco from July 2011 through December 2011 and found that 18 lawsuits were filed out of 5,203 projects considered under CEQA.
   
   According to the Natural Resources Defense Council, a review of CEQA challenges in the City of Los Angeles from January 2011 through July 20, 2012, shows that of 1,182 projects reviewed under CEQA, 18 were challenged, which is a litigation rate of 1.5%.
   
   Although certain interests believe CEQA litigation to be a swathing impediment to some projects, the numbers above indicate otherwise. The volume of CEQA litigation is low considering the thousands of projects subject to CEQA each year as well as the volume of civil litigation in general statewide. And if a project is the subject of litigation, perhaps the cause of action has merit and ensures compliance with the law.
   
2. How does expedited judicial review help? Expedited judicial review tips the scales to the defendants of the lawsuit who prepared the EIR and will have the advantage because they had all of the time, resources and information that went into the EIR document and will be ready to litigate well before the plaintiff(s) will have ever seen a draft, much less had time to review and prepare their case. Therefore, the defendant (city) will have the upper hand for any case filed.
   
3. Not faster but guaranteed fastest. Current law already provides that CEQA lawsuits get priority over other lawsuits and that in large jurisdictions there are designated judges for CEQA. That alone should expedite this process. By utilizing the AB 900 schedule you not only guarantee expedited judicial review but guarantee expedited completion of the case.
   
4. If this were infill development it would already be exempt. Significant amendments have been made to CEQA to encourage infill projects over the years. Many of these were created after CEQA Guidelines §15332 and have improved on those efforts by encouraging policies of the state such as development near transit; they also apply regardless of whether the location of the project is in a city or unincorporated area of a county.
   
   Some of these amendments to the statute necessitate changes to the CEQA Guidelines, which can take a fair amount of time to go through OPR’s vetting process and the Administrative Procedures Act. For example, SB 743 required OPR to amend the CEQA Guidelines to provide an alternative to the Level of Service (LOS) for evaluating transportation impacts. Particularly within areas served by transit, those alternative criteria must “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses (PRC §21099(b)(1)). Measurements of transportation impacts may include vehicle miles traveled, vehicle miles traveled per capita, automobile trip generation rates, or automobile trips generated. Once the CEQA Guidelines are amended to include those alternative criteria, auto delay will no longer be considered a significant impact under CEQA. SB 743 also amended congestion management law to allow cities and counties to opt out of level of service standards within certain infill areas. Aside from changes to transportation analysis, SB 743 also included several changes to CEQA that apply to transit oriented developments including aesthetics and parking. In January, 2016, OPR released the Revised Proposal on Updates to the CEQA Guidelines on Evaluation Transportation Impacts in CEQA. The final version has not been completed yet.
   
   Considering the many CEQA exemptions and streamlining provisions applicable to infill development in current law that apply to infill projects regardless of whether they are located in a city or unincorporated area of a county, as well as the CEQA Guidelines revisions for SB 743 awaiting finalization now, this bill is not necessary for projects that would be true infill.
5. The Need for CEQA. In the case of the development that would be eligible under this bill, how is Santa Rosa going to ensure there is the proper infrastructure to support the denser, taller expanded development. What are the transportation impacts on the already congested roads and freeways? How is the city and county going to ensure that there is sufficient water and sewer services?

Last year Sonoma County and Santa Rosa suffered devastating fires that resulting in the destruction on thousands of homes. This has added pressure to an already stressed housing market.

It would seem that Sonoma County and Santa Rosa should be insisting on greater planning and review for new development, not less, in order to avoid the type of fatal devastation that occurred.

Perhaps new development needs to incorporate buffer zones or LESS density and there needs to be greater consideration given to how the one freeway going through Santa Rosa can accommodate more people attempting to flee in an emergency situation.

Conclusion. It seems as if it not be more appropriate at this juncture to revise the general plan for the county and city to incorporate the climate change implications and other impacts that are now being experienced by this region before expanding development, much less exempting development from CEQA review?

DOUBLE REFERRAL:

If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Rules Committee.

SOURCE:

SUPPORT:

American Council of Engineering Companies

Bay Area Council

California Buildering Industry Association

California Chamber of Commerce

California Nevada Cement Association

City of Santa Rosa

Regional Climate Protection Authority

Sonoma County Agricultural Preservation and Open Space District

Sonoma County Transportation Authority

Sonoma County Water Agency

The Nature Conservancy

OPPOSITION:

Judicial Council of California

Sierra Club California

-- END --

Date of Hearing: May 2, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2267

Author:(Wood) – As Amended Ver:April 17, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill exempts from the California Environmental Quality Act (CEQA) the reconstruction of wildfire-damaged housing, expanding an existing categorical exemption to allow a 50% increase in density. Specifically, this bill:

1. Defines “wildfire-damaged housing” as a residential housing project that may increase the density of residential units by up to 50% and is located in an area in which the governor proclaimed a wildfire-related state of emergency.
2. Provides CEQA does not apply to a proposed residential housing project to replace or reconstruct wildfire-damaged housing, subject to the exception for categorical exemptions provided the proposed project is consistent with the applicable general plan, all applicable general plan policies, applicable zoning, and a wildfire recovery plan, if any, adopted by the applicable lead agency.

FISCAL EFFECT:

Negligible, if any, state costs.

COMMENTS:

1. Background. CEQA requires the principal public agency with responsibility for carrying out or approving a proposed project, known as the lead agency, to prepare a negative declaration, mitigated negative declaration, or environmental impact report for the action, unless the project is exempt from CEQA. Current CEQA exemptions include:
   1. Projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the governor.
   2. Emergency repairs to publicly or privately owned service facilities necessary to maintain service essential to the public health, safety, or welfare.
   3. Specific actions necessary to prevent or mitigate an emergency. (This does not include long-term projects undertaken for the purpose of preventing or mitigating a situation that has a low probability of occurrence in the short term.)

CEQA Guidelines include a categorical exemption for replacement or reconstruction of existing structures where the new structure will be located on the same site, and will have substantially the same purpose and capacity, as the structure replaced.

1. Purpose. In 2017, over 9,000 fires burned more than 1.2 million acres. According to the California Department of Insurance, the wildfires damaged or destroyed over 32,000 homes, 4,300 businesses, with nearly $12 billion in insured losses. These losses exceed the total insurance claims from any wildfire in California history. This outbreak of wildfires led the governor to declare a state of emergency in several counties, with Sonoma County experiencing the highest loses. In the last four months, Sonoma County residents have put over 300 burned lots on the market.

According to the author, “This bill seeks to clarify that wildfire damaged housing may be reconstructed with a 50% density increase and shall be eligible for the categorical exemptions listed in Section 15302 of the CEQA Guidelines”

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 23, 2018

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Al Muratsuchi, Acting Chair

ABPCA Bill Id:AB 2267 (

Author:Wood) – As Amended Ver:April 17, 2018

SUBJECT: California Environmental Quality Act: exemption: wildfire-damaged housing

SUMMARY: Establishes an exemption from the California Environmental Quality Act (CEQA) for reconstruction of wildfire-damaged housing, expanding an existing categorical exemption to allow a 50% increase in density.

EXISTING LAW:

1. 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).
2. Requires the Office of Planning and Research (OPR) to prepare and develop proposed guidelines for the implementation of CEQA by public agencies, then transmit them to the Secretary of the Natural Resources Agency, who must certify and adopt the guidelines, and update them at least once every two years. Requires the CEQA Guidelines to include a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from CEQA (i.e., "categorical exemptions"). The categorical exemptions are subject to exceptions to ensure eligible projects do not have a significant effect on the environment, including when cumulative impacts of successive projects of the same type in the same place may result in significant effect or there is a reasonable possibility that the project will have a significant effect due to unusual circumstances.
3. Exempts from CEQA:
   1. Projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the Governor.
   2. Emergency repairs to publicly- or privately-owned service facilities necessary to maintain service essential to the public health, safety, or welfare.
   3. Specific actions necessary to prevent or mitigate an emergency. (This does not include long-term projects undertaken for the purpose of preventing or mitigating a situation that has a low probability of occurrence in the short term.)
4. The CEQA Guidelines include a categorical exemption for replacement or reconstruction of existing structures where the new structure will be located on the same site, and will have substantially the same purpose and capacity, as the structure replaced (Section 15302).

THIS BILL:

1. Defines “wildfire-damaged housing” as a residential housing project that may increase the density of residential units by up to 50% and that is located in an area in which a wildfire-related state of emergency has been proclaimed by the Governor.
2. Provides that CEQA does not apply to a proposed residential housing project to replace or reconstruct wildfire-damaged housing, subject to the exception for categorical exemptions described above, provided the proposed project is consistent with the applicable general plan, all applicable general plan policies, applicable zoning, and a wildfire recovery plan, if any, adopted by the applicable lead agency.

FISCAL EFFECT: Unknown

COMMENTS:

1. 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 the project would not have 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, 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. Prior to approving any project that has received environmental review, an agency must make certain findings. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures.

1. Author's statement:

In Sonoma County, the wildfires worsened an existing severe housing shortage. Wildfires destroyed more than 5,100 homes in the county. According to a report commissioned by the Sonoma County Economic Development Board, by 2020, Sonoma County will need 8,143 new housing units to accommodate forecasted employment growth, 5,300 units to replace homes destroyed by the wildfires, and 12,631 units to address pre-existing affordability and population concerns. To put this in perspective, from 2011 to the end of 2017, the county built less than 5,000 new homes. Often times when rebuilding a home or property, a homeowner will want to expand or make additions on their existing property.

This bill seeks to clarify that wildfire damaged housing may be reconstructed with a 50% density increase and shall be eligible for the categorical exemptions listed in Section 15302 of the CEQA Guidelines. Underutilization of property at this time would only exacerbate a housing crisis and would represent a lost opportunity to rebuild smarter.

In 2017, over 9,000 fires burned more than 1.2 million acres. According to the California Department of Insurance, the wildfires damaged or destroyed over 32,000 homes, 4,300 businesses, with nearly $12 billion in insured losses. These losses exceed the total insurance claims from any wildfire in California history. This outbreak of wildfires led the Governor to declare a state of emergency in several counties, with Sonoma County experiencing the highest loses. In the last four months, Sonoma County residents have put over 300 burned lots on the market. Housing experts expect the number of burned lots being sold on the market to continue to rise. Of these lots, several builders and investors have acquired a third of these acquisitions.

1. Related legislation. AB 3020 (Flora), pending in this committee, establishes an exemption from CEQA for undefined actions to reduce the threat or intensity of a wildfire and revises the existing emergency exemption by repealing the requirement that it apply only in an area where the Governor has declared an emergency.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Realtors

Opposition

None on file

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. /