By Jason Holder (Associate with Environmental Practice Group at Fitzgerald Abbott & Beardsley LLP)
The Governor’s Office of Planning and Research (OPR) recently released proposed regulations for the implementation of Public Resources Code sections 21094.5 and 21094.5.5 (http://opr.ca.gov/docs/Proposed_CEQA_Guidelines_Section_15183.3.pdf). These two new statutory code sections, which allow streamlined environmental review for qualifying urban infill development projects, were among several modifications to the California Environmental Quality Act (CEQA) enacted by the California Legislature last session through SB 226 (http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0201-0250/sb_226_bill_20111004_chaptered.pdf). OPR’s draft regulations include proposed CEQA Guidelines section 15183.3 and two proposed appendices to the CEQA Guidelines. Comments on the draft proposed regulations are due to OPR by February 24, 2012. During the week of February 20, 2012, OPR will hold several public workshops in Sacramento, Fresno and Los Angeles, where the public will have an opportunity to learn more about the proposed streamlining regulations and offer oral and written comments.
The new CEQA streamlining option enacted through SB 226, authorized by Public Resources Code section 21094.5 and implemented through proposed CEQA Guidelines section 15183.3 would allow a lead agency to streamline environmental review for individual infill projects by avoiding repeating analysis prepared during planning-level or “programmatic” review. CEQA exemptions and streamlining provisions for infill projects already exist, including an exemption for qualified housing projects found in Public Resources Code section 21159.21, a residential infill statutory exemption in Section 21159.24 and a residential streamlining provision in Section 21159.28. However, these provisions only apply to residential projects, while the SB 226 provisions apply to residential, commercial/retail, office, transit and school projects. The existing provisions can also be distinguished from SB 226 infill streamlining provisions by their limitations and requirements. For example, the SB 226 infill streamlining provisions include: no project size limitation, no time limit for reliance on planning-level review, and no requirement for consistency with a city’s general plan and zoning ordinance. This last characteristic is also one of the features that distinguish the new streamlining option from standard “tiering” from a programmatic review document. Finally, the scope of projects that would be eligible for streamlined review under SB 226 is broader because it focuses on strategic performance criteria, such as the reduction of vehicle miles traveled (VMT), rather than criteria such as whether the project would be located within a city or in an unincorporated area.
The narrow scope and extensive requirements for the existing streamlining provisions and exemptions have limited their widespread use. The Legislature and OPR intend the requirements for this new streamlining provision to be easier to satisfy than those of existing exemptions and streamlining provisions for infill projects.
According to the proposed CEQA Guidelines section 15183.3(b)(2), a proposed project must meet general performance standards as well as specific criteria for that project category listed in a new Appendix M to the CEQA Guidelines (http://opr.ca.gov/docs/Proposed_Appendix_M.pdf). As proposed, Appendix M contains general performance standards promoting the use of renewable energy, active transportation (e.g., walking and bicycling), public transit, as well as soil and water remediation when necessary. This proposed appendix also includes specific criteria for residential, commercial/retail, office building, transit, schools, and “small walkable community projects.” If the project meets the performance standards and applicable criteria in Appendix M, and also satisfies other specific planning and density criteria, the lead agency will be able to rely on prior analysis prepared for planning-level decisions and will only need to address any project-specific impacts not previously addressed in either an EIR or a Neg Dec. If the lead agency determines that there will be no project-specific effects, it is encouraged to file a Notice of Exemption. (See Proposed CEQA Guidelines, § 15183.3(c)(2)(A).)
This new streamlining option for infill projects would also allow the lead agency to rely on uniformly applicable development policies to rule out a project-specific effect. Proposed Appendix N provides lead agencies with a sample checklist that could be used to determine whether all streamlining criteria are satisfied and the extent to which project impacts were previously addressed at the planning-level (http://opr.ca.gov/docs/Proposed_Appendix_N_Infill_Environmental_Checklist.pdf). Together, proposed CEQA Guidelines section 15183.3 and the appendices are intended to substantially reduce the burden of analyzing environmental impacts that are specific to a proposed infill development project. And because a lead agency’s reliance on these streamlining provisions is subject to the more deferential “substantial evidence” standard of judicial review, infill projects reviewed and approved under this option are less vulnerable to legal challenge.
Proponents of this new streamlining option hope it will help alleviate the current CEQA review requirements that apply to projects proposed in urban settings, potentially accelerating the trend of urban redevelopment. Proponents claim this outcome promises several important benefits including: revitalization of urban areas, bringing jobs and housing closer together for the mutual benefit of employees and employers, promoting public transit, reducing traffic and air pollution, and improving public health. To the extent such urban infill projects reduce “greenfield” development (the conversion of undeveloped land to residential or other uses), such projects may also lessen adverse environmental impacts such as smog, toxic air emissions and greenhouse gas emissions, water consumption, loss of open space and agricultural areas, take of threatened and endangered species and loss of habitat. In explanatory materials accompanying the proposed CEQA Guideline provision, OPR cites studies that confirm the benefits that result from concentrating development in existing urban settings rather than in greenfields. There is no guarantee, however, that an increase in urban infill projects will necessarily lessen the pace of greenfield development.
Furthermore, if not carefully tailored, the streamlined review that the CEQA statute and these regulations will permit could allow specific urban infill projects to avoid necessary impact analysis and mitigation. This could result in increased development within urban areas with unmitigated impacts, such as increased local traffic congestion, heightened air pollution and toxic “hot spots,” aesthetic impacts, and loss of historical and cultural resources. It is therefore important that the proposed regulations ensure that all urban infill impacts will be addressed either during planning-level environmental review or during site-specific review.
Whether these new streamlining provisions will succeed in helping the State realize its goals through increased infill development also depends upon local agencies being able to expedite completion of sound environmental review documents for planning-level decisions. Individual projects will depend upon these planning-level EIRs to adequately address many of the impacts of infill development in the local area. In addition, the infill projects in metropolitan areas must be consistent with new general plan requirements or satisfy high-density building requirements. Thus, while SB 226 offers a path to more efficient environmental review for qualifying infill projects, that path remains a long one.