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.

Existing law, until January 1, 2024, specifies that, except as provided, a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects are not considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets certain requirements.

This bill would extend the operation of the above provision to January 1, 2029. The bill would require the lead agency to file a notice with the Office of Planning and Research and the county clerk of the county in which the project is located if the lead agency determines that it is not required to evaluate the aesthetic effects of a project and determines to approve or carry out that project. By imposing additional duties on lead agencies, the 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.

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.

Existing law, until January 1, 2024, specifies that, except as provided, a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects are not considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets certain requirements.

This bill would extend the operation of the above provision to January 1, 2029. The bill would require the lead agency to file a notice with the Office of Planning and Research and the county clerk of the county in which the project is located if the lead agency determines that it is not required to evaluate the aesthetic effects of a project and determines to approve or carry out that project. By imposing additional duties on lead agencies, the 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.

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.

Existing law, until January 1, 2024, specifies that, except as provided, a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects are not considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets certain requirements.

This bill would extend the operation of the above provision indefinitely. to January 1, 2029. The bill would require the lead agency to file a notice with the Office of Planning and Research and the county clerk of the county in which the project is located if the lead agency determines that it is not required to evaluate the aesthetic effects of a project and determines to approve or carry out that project. By imposing additional duties on lead agencies, the bill would impose a state-mandated local program.

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.

Existing law, until January 1, 2024, specifies that, except as provided, a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects are not considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets certain requirements.

This bill would extend the operation of the above provision indefinitely.

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.

Existing law, until January 1, 2024, specifies that, except as provided, a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects are not considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets certain requirements.

This bill would extend the operation of the above provision indefinitely.

 CONSENT 

Bill No: AB 356

Author: Mathis (R), et al.

Amended: 4/18/23 in Assembly

Vote: 21

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 6/7/23

AYES: Allen, Dahle, Gonzalez, Hurtado, Menjivar, Nguyen, Skinner

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 75-0, 5/4/23 (Consent) - See last page for vote

SUBJECT: California Environmental Quality Act: aesthetic impacts

SOURCE: Author

DIGEST:

This bill extends until January 1, 2029, an existing provision that waives consideration of aesthetic effects under the California Environmental Quality Act (CEQA) for projects that refurbish, convert, or replace derelict buildings. This bill requires the lead agency to file a notice with the Office of Planning and Research (OPR) when it uses this waiver.

ANALYSIS:

Existing law:

1. Provides that, under CEQA, a lead agency determines whether a project is exempt from CEQA, or if it must do an initial study to determine if a project will have significant effects on the environment. If a project has no effect on the environment or effects that can be mitigated, the lead agency prepares a negative declaration (ND) or mitigated ND (MND). If the project will have significant impacts, the lead agency prepares an environmental impact report (EIR) to evaluate and propose mitigation measures for any effects on the environment, including impacts or likely impacts to land, air, water, minerals, flora, fauna, ambient noise, and historic or aesthetic significance. (Public Resources Code (PRC) §§21000 et seq.)
2. Waives consideration of aesthetic impacts for residential, mixed-use residential, or an employment center project on an infill site within a "transit priority area" (an area within one-half mile of a major transit stop). (PRC §21099)
3. Establishes in the CEQA guidelines 33 categorical exemptions, including categorical exemptions for buildings as follows:
   1. Operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. (California Code of Regulations (CCR) tit. 14 §15301)
   2. Replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. (CCR tit. 14 §15302)

This bill:

1. Extends the January 1, 2024 sunset until January 1, 2029, on a provision that waives consideration of aesthetic effects through CEQA for projects that refurbish, convert, repurpose, or replace an existing building and meet certain criteria.
2. Defines eligible projects as ones that meet all of the following criteria:
   1. The building is abandoned, dilapidated, or has been vacant for more than one year.
   2. At least 75 percent of the building site is adjacent to land that is qualified urban uses, and the remaining 25 percent of the site adjoins parcels that have previously been developed for qualified urban uses.
   3. The project includes the construction of housing.
   4. Any new structure does not substantially exceed the height of the existing structure.
   5. The project does not create a new source of substantial light or glare.
   6. A project does not have potentially significant aesthetic effects on an official state scenic highway or on historical or cultural resources.
3. Requires a lead agency to file a notice of this waiver with OPR and the county clerk in the county where the project is being done.

Background

1. The A, B, C’s of CEQA. CEQA is designed to (a) make government agencies and the public aware of the environmental impacts of a proposed project, (b) ensure the public can take part in the review process, and (c) identify and implement measures to mitigate or eliminate any negative impact the project may have on the environment. CEQA is enforced by civil lawsuits that can challenge any project’s environmental review. Nonprofits, private individuals, public agencies, advocacy groups, and other organizations can all file lawsuits under CEQA.

A lead agency reviewing a project under CEQA takes three progressive steps of environmental review. First, a lead agency looks at the footprint of the project to determine if it can be exempted from CEQA. If it is not exempt, the lead agency then conducts an initial study to look at potential environmental impacts. If there are no significant environmental impacts, or if those impacts can be fully mitigated, the lead agency prepares an ND or MND. If there are environmental impacts that cannot be mitigated, the lead agency proceeds with the most extensive level of environmental review: a full EIR.

1. Aesthetic Impacts Under CEQA. Aesthetics are one of 18 environmental effects that lead agencies must consider during an initial study for CEQA review, alongside impacts to land, air, water, minerals, flora, and fauna. Aesthetic effects include impacts to scenic vistas, damage to scenic routes, degradation to the visual character or quality of public view, or impacts that create substantial nighttime light pollution or glare or that cast substantial shade, including shading parks or solar installations.

By taking aesthetic effects into account, CEQA lets community members weigh in on changes to the character of their community. Case law has found that “lay opinion” can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact under CEQA, giving community members a very powerful tool to weigh in on changes in their neighborhoods. For example, in the case of Georgetown Preservation Society vs. County of El Dorado et al, community members of Georgetown opposed a city plan that sought to put a Dollar General store on the main strip of downtown Georgetown, a state Historical Landmark gold rush town. The case found that lay opinion (that the project would “significantly impair the central district’s unique and treasured Gold Rush character”) was sufficient to constitute a fair argument that the project had significant impacts under CEQA.

Comments

1. Purpose of Bill. According to the author, “In removing the existing January 1, 2024 expiration, AB 356 continues to allow for the very narrow exemption which ultimately promotes a positive atmosphere in disadvantaged communities. While the measure has no impact on streamlining the construction of a building, it does promote building beautification projects.”
2. Throwing Shade and Catching Views. The waiver for aesthetic impacts extended by AB 356 only applies to a subset of aesthetic impacts, namely shadows and degradation to the visual character or quality of public view. Given that projects that increase the height of buildings are not eligible for the waiver under AB 365, it is unlikely that shadows will be a common problem for eligible projects. AB 356, then, primarily waives consideration for aesthetic impacts that degrade the visual character or quality of a public view.

What constitutes an aesthetic impact is a matter of public opinion, sometimes quite literally, as in the case of Georgetown Preservation Society vs. County of El Dorado. The subjective nature of impacts to the character of an area is a double-edged sword. On the one hand, because these effects are so subjective, they can introduce uncertainty in the CEQA process for project builders, and it is difficult to guarantee that community concerns regarding aesthetic impacts are sincere. Alternatively, considering character allows the community to weigh in on impacts that really affect their neighborhoods but cannot be quantified.

1. Many Projects in AB 356 May Be Eligible for Existing Exemptions.

The CEQA Guidelines include categorical exemptions for renovation, reconstruction and replacement of existing buildings, provided the project doesn't involve a significant expansion of existing uses. It seems probable that beautification projects, the ones eligible for waivers under AB 356, would already meet the criteria for this categorical exemption. In addition, as noted in the Existing Law section, some projects may already be able to waive consideration of aesthetic impacts if they are near transit priority areas.

It is unclear how many projects would opt to use the waiver under AB 356 rather than the categorical exemption or waiver in existing law. In fact, while AB 2341 has been in effect since 2019, the Senate Environmental Quality Committee was unable to find any record of its use: this does not mean the waiver has not been used, since there has not been a requirement for lead agencies to report if they use this waiver. However, it does indicate that the waiver may not be used frequently.

Related/Prior Legislation

AB 2341 (Mathis, Chapter 298, Statutes of 2018) eliminated consideration of aesthetic effects for projects involving the refurbishment, conversion, repurposing, or replacement of an existing abandoned, dilapidated, or vacant building until January 1, 2024.

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

SUPPORT: (Verified 7/4/23)

American Planning Association, California Chapter

California Apartment Association

California Builders Alliance

California State Association of Counties

League of California Cities

Rural County Representatives of California

Sacramento Regional Builders Exchange

OPPOSITION: (Verified 7/4/23)

None received

ASSEMBLY FLOOR: 75-0, 5/4/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Ward, Weber, Wilson, Wood, Zbur, Rendon

NO VOTE RECORDED: Flora, McKinnor, Muratsuchi, Wallis, Wicks

Prepared by: Brynn Cook / E.Q. / (916) 651-4108

7/5/23 14:50:50

**** END ****

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2023 - 2024 Regular

Bill No: AB 356

SUBJECT: California Environmental Quality Act: aesthetic impacts

DIGEST:  Extends until Jan 1, 2029, an existing provision that waives consideration of aesthetic effects under the California Environmental Quality Act (CEQA) for projects that refurbish, convert, or replace derelict buildings. Requires the lead agency to file a notice with the Office of Planning and Research (OPR) when it uses this waiver.

ANALYSIS:

Existing law:

1. Under CEQA, a lead agency determines whether a project is exempt from CEQA, or if it must do an initial study to determine if a project will have significant effects on the environment. If a project has no effect on the environment or effects that can be mitigated, the lead agency prepares a negative declaration (ND) or mitigated ND (MND). If the project will have significant impacts, the lead agency prepares an environmental impact report (EIR) to evaluate and propose mitigation measures for any effects on the environment, including impacts or likely impacts to land, air, water, minerals, flora, fauna, ambient noise, and historic or aesthetic significance. (Public Resources Code (PRC) §§21000 et seq.)
2. Waives consideration of aesthetic impacts for residential, mixed-use residential, or an employment center project on an infill site within a "transit priority area" (an area within one-half mile of a major transit stop). (PRC §21099)
3. Establishes in the CEQA guidelines 33 categorical exemptions, including categorical exemptions for buildings as follows:
   1. Operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. (California Code of Regulations (CCR) tit. 14 §15301)
   2. Replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. (CCR tit. 14 §15302)

This bill:

1. Extends the Jan 1, 2024 sunset until Jan 1, 2029, on a provision that waives consideration of aesthetic effects through CEQA for projects that refurbish, convert, repurpose, or replace an existing building and meet certain criteria.
2. Defines eligible projects as ones that meet all of the following criteria:
   1. The building is abandoned, dilapidated, or has been vacant for more than one year.
   2. At least 75 percent of the building site is adjacent to land that is qualified urban uses, and the remaining 25 percent of the site adjoins parcels that have previously been developed for qualified urban uses.
   3. The project includes the construction of housing.
   4. Any new structure does not substantially exceed the height of the existing structure.
   5. The project does not create a new source of substantial light or glare.
   6. A project does not have potentially significant aesthetic effects on an official state scenic highway or on historical or cultural resources.
3. Requires a lead agency to file a notice of this waiver with OPR and the county clerk in the county where the project is being done.
   

Background

1. The A, B, C’s of CEQA. CEQA is designed to (a) make government agencies and the public aware of the environmental impacts of a proposed project, (b) ensure the public can take part in the review process, and (c) identify and implement measures to mitigate or eliminate any negative impact the project may have on the environment. CEQA is enforced by civil lawsuits that can challenge any project’s environmental review. Nonprofits, private individuals, public agencies, advocacy groups, and other organizations can all file lawsuits under CEQA.

A lead agency reviewing a project under CEQA takes three progressive steps of environmental review. First, a lead agency looks at the footprint of the project to determine if it can be exempted from CEQA. If it is not exempt, the lead agency then conducts an initial study to look at potential environmental impacts. If there are no significant environmental impacts, or if those impacts can be fully mitigated, the lead agency prepares an ND or MND. If there are environmental impacts that cannot be mitigated, the lead agency proceeds with the most extensive level of environmental review: a full EIR.

1. Aesthetic Impacts Under CEQA. Aesthetics are one of 18 environmental effects that lead agencies must consider during an initial study for CEQA review, alongside impacts to land, air, water, minerals, flora, and fauna. Aesthetic effects include impacts to scenic vistas, damage to scenic routes, degradation to the visual character or quality of public view, or impacts that create substantial nighttime light pollution or glare or that cast substantial shade, including shading parks or solar installations.

By taking aesthetic effects into account, CEQA lets community members weigh in on changes to the character of their community. Case law has found that “lay opinion” can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact under CEQA, giving community members a very powerful tool to weigh in on changes in their neighborhoods. For example, in the case of Georgetown Preservation Society vs. County of El Dorado et al, community members of Georgetown opposed a city plan that sought to put a Dollar General store on the main strip of downtown Georgetown, a state Historical Landmark gold rush town. The case found that lay opinion (that the project would “significantly impair the central district’s unique and treasured Gold Rush character”) was sufficient to constitute a fair argument that the project had significant impacts under CEQA.

Comments

1. Purpose of Bill. According to the author, “In removing the existing January 1, 2024 expiration, AB 356 continues to allow for the very narrow exemption which ultimately promotes a positive atmosphere in disadvantaged communities. While the measure has no impact on streamlining the construction of a building, it does promote building beautification projects.”
2. Throwing Shade and Catching Views. The waiver for aesthetic impacts extended by AB 356 only applies to a subset of aesthetic impacts, namely shadows and degradation to the visual character or quality of public view. Given that projects that increase the height of buildings are not eligible for the waiver under AB 365, it is unlikely that shadows will be a common problem for eligible projects. AB 356, then, primarily waives consideration for aesthetic impacts that degrade the visual character or quality of a public view.

What constitutes an aesthetic impact is a matter of public opinion, sometimes quite literally, as in the case of Georgetown Preservation Society vs. County of El Dorado. The subjective nature of impacts to the character of an area is a double-edged sword. On the one hand, because these effects are so subjective, they can introduce uncertainty in the CEQA process for project builders, and it is difficult to guarantee that community concerns regarding aesthetic impacts are sincere. Alternatively, considering character allows the community to weigh in on impacts that really affect their neighborhoods but cannot be quantified.

1. Many Projects in AB 356 May Be Eligible for Existing Exemptions.

The CEQA Guidelines include categorical exemptions for renovation, reconstruction and replacement of existing buildings, provided the project doesn't involve a significant expansion of existing uses. It seems probable that beautification projects, the ones eligible for waivers under AB 356, would already meet the criteria for this categorical exemption. In addition, as noted in the Existing Law section, some projects may already be able to waive consideration of aesthetic impacts if they are near transit priority areas.

It is unclear how many projects would opt to use the waiver under AB 356 rather than the categorical exemption or waiver in existing law. In fact, while AB 2341 has been in effect since 2019, the Committee was unable to find any record of its use: this does not mean the waiver has not been used, since there has not been a requirement for lead agencies to report if they use this waiver. However, it does indicate that the waiver may not be used frequently.

Related/Prior Legislation

AB 2341 (Mathis, Chapter 298, Statutes of 2018) eliminates consideration of aesthetic effects for projects involving the refurbishment, conversion, repurposing, or replacement of an existing abandoned, dilapidated, or vacant building until January 1, 2024.

SOURCE:

Author

SUPPORT:

American Planning Association, California Chapter

California Apartment Association

California State Association of Counties (CSAC)

League of California Cities

Rural County Representatives of California (RCRC)

OPPOSITION:

None received

-- END --

Date of Hearing: April 26, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 356

Author:(Mathis) – As Amended Ver:April 18, 2023

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

SUMMARY:

This bill extends, from January 1, 2024, to January 1, 2029, the sunset date on a section of the California Environmental Quality Act (CEQA) that eliminates consideration of aesthetic effects for specified projects involving the refurbishment, conversion, repurposing, or replacement of an existing abandoned, dilapidated, or vacant building, provided the new structure does not substantially exceed the height of the existing structure or create a new source of substantial light or glare, among other requirements. This bill also requires a lead agency, if it determines it is not required to evaluate the aesthetic effects of a project and then approves or carries out the project, to file a notice with the Office of Planning and Research (OPR) and the county clerk of the county in which the project is located.

FISCAL EFFECT:

Minor and absorbable costs to OPR.

COMMENTS:

1) Purpose. According to the author:

In removing the existing January 1, 2024 expiration, AB 356 continues to allow for the very narrow exemption which ultimately promotes a positive atmosphere in disadvantaged communities. While the measure has no impact on streamlining the construction of a building, it does promote building beautification projects.

2) 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 the project would not have a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows the project may have a significant effect, the lead agency must prepare an Environmental Impact Report (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.

Aesthetic effects are among the 18 environmental factors that must be evaluated by lead agencies in an initial study to determine the appropriate level of CEQA review. Significant aesthetic effects of a project include blocking a scenic vista or creating a new source of substantial light or glare. In 2013, SB 743 (Steinberg), Chapter 386, Statutes of 2013, enacted a new provision to prohibit the consideration of aesthetic effects, as well as parking, impacts of a residential, mixed-use residential, or employment center project on an infill site within a "transit priority area" (an area within one-half mile of a major transit stop). In 2018, AB 2341 (Mathis), Chapter 298, Statutes of 2018, eliminated consideration of aesthetic effects for projects involving the refurbishment, conversion, repurposing, or replacement of an existing abandoned, dilapidated, or vacant building – with a sunset of January 1, 2024. This bill extends this sunset date to January 1, 2029.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 10, 2023

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Luz Rivas, Chair

ABPCA Bill Id:AB 356 (

Author:Mathis) – As Amended Ver:March 7, 2023

SUBJECT: California Environmental Quality Act: aesthetic impacts

SUMMARY: Eliminates the January 1, 2024 sunset on a section of the California Environmental Quality Act (CEQA) which eliminates consideration of aesthetic effects for specified projects involving the refurbishment, conversion, repurposing, or replacement of an existing abandoned, dilapidated, or vacant building, provided the new structure does not substantially exceed the height of the existing structure or create a new source of substantial light or glare

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.) (Public Resources Code (PRC) 21000, et seq.)
2. Defines "environment" as the physical conditions that exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, or objects of historic or aesthetic significance. (PRC 21060.5)
3. Prohibits the consideration of aesthetic impacts of a residential, mixed-use residential, or employment center project on an infill site within a "transit priority area" (an area within one-half mile of a major transit stop). (PRC 21099)
4. 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"). (PRC 21083 and 21084)
5. 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. (CEQA Guidelines 15300.2)
6. The CEQA Guidelines include categorical exemptions for buildings as follows:
   1. 15301. EXISTING FACILITIES. Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination.
   2. 15302. REPLACEMENT OR RECONSTRUCTION. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced.
7. Until January 1, 2024, eliminates consideration of aesthetic effects under CEQA for specified projects involving the refurbishment, conversion, repurposing, or replacement of an existing abandoned, dilapidated, or vacant building, provided the new structure does not substantially exceed the height of the existing structure or create a new source of substantial light or glare. (PRC 21081.3)

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.

Aesthetics are among the 18 environmental factors that must be evaluated by lead agencies in an initial study to determine the appropriate level of CEQA review. Significant aesthetic effects of a project include blocking a scenic vista or creating a new source of substantial light or glare. In 2013, SB 743 (Steinberg), Chapter 386, Statutes of 2013, enacted a new provision to prohibit the consideration of aesthetic, as well as parking, impacts of a residential, mixed-use residential, or employment center project on an infill site within a "transit priority area" (an area within one-half mile of a major transit stop). In 2018, AB 2341 (Mathis), Chapter 298, Statutes of 2018, eliminated consideration of aesthetic effects for projects involving the refurbishment, conversion, repurposing, or replacement of an existing abandoned, dilapidated, or vacant building – with a sunset of January 1, 2024.

As noted in the Existing Law section above, the CEQA Guidelines include categorical exemptions for renovation, reconstruction and replacement of existing buildings, provided the project doesn't involve a significant expansion of existing uses. However, these exemptions could be subject to an exception, if a fair argument is presented that the project may have a significant effect on the environment related to aesthetics.

1. Author’s statement:

In removing the existing January 1, 2024 expiration, AB 356 continues to allow for the very narrow exemption which ultimately promotes a positive atmosphere in disadvantaged communities. While the measure has no impact on streamlining the construction of a building, it does promote building beautification projects.

1. Has AB 2341 been used? While Section 21081.3 has been in effect for more than four years, the Committee was unable to find any record of its use. State Clearinghouse records are likely incomplete or nonexistent because there is no requirement for a local lead agency to report use of this provision. However, the lack of State Clearinghouse records does not mean the provision hasn’t been used.

To support evaluation of the use of this provision going forward, the author and the committee may wish to consider amending the bill to add a notice requirement and extending the sunset an additional five years, rather than repealing it:

(e) If the lead agency determines that it is not required to evaluate the aesthetic effects of a project pursuant to this section, and the lead agency determines to carry out that project, the lead agency shall file a notice with the Office of Planning and Research and the county clerk of the county in which the project is located in the manner specified in subdivisions (b) and (c) of Section 21152.

(f) This section shall remain in effect until January 1, 2029, and as of that date is repealed.

REGISTERED SUPPORT / OPPOSITION:

Support

California Apartment Association

California Building Industry Association

California Chamber of Commerce

California State Association of Counties
League of California Cities
Rural County Representatives of California

Opposition

None on file

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