California's environmental review law can be tricky to navigate
As discussed in our earlier post, California's CEQA landscape has rapidly, and potentially seismically, evolved with the passage of AB 130 and SB 131. This post focuses on the immediate creation of a new statutory exemption, as well as key CEQA streamlining efforts to speed up housing project approvals.
A New CEQA Exemption
The biggest change is the new statutory "infill housing" exemption, created by AB 130, which now exempts significant in-fill housing projects from environmental review, so long as certain statutory criteria are met—codified at Public Resources Code section 21080.66, housing development projects that are:
- 20 acres or less (for builder's remedy projects, this requirement shrinks to 5 acres or less);
- Within either incorporated municipalities or census-defined urban areas;
- Subject to either prior development as an urban use, or surrounded by at least 75% urban uses (along either the sites perimeter or within ¼ of a mile);
- Consistent with the applicable general plan and applicable zoning requirements, including any applicable coastal programs; and
- Consistent with at least one-half of the applicable density requirements for lower income households.
However, and notwithstanding the above statutory criteria, any project that would require demolition of an historic structure or would be located on certain sensitive sites (like wetlands, floodways, high fire severity zones, designated protected species' habitat, prime farmland, and other), is not eligible for the exemption.
Additionally, it is critical to note that while qualifying developments are now exempt from CEQA, they must still comply with certain environmental objectives, including necessary tribal consultation and compliance requirements, environmental hazard assessments and mitigation, and air filtration and air quality requirements.
Limiting CEQA Review: the "Near Miss" Streamlining
Where AB 130 adds a statutory exemption, SB 131 seeks to unburden certain, nearly exempt, projects from onerous environmental review. Under Public Resources Code Section 21080.1, proposed housing projects that almost qualify for either a statutory exemption (including the in-fill exemption discussed above), or certain designated Categorical Exemptions (i.e., Class 1-5, 12, 15, 20, 27, 30, or 32), but for a single miss, can limit CEQA review to only those impacts caused by the single, missed condition.
In addition to limiting the scope of environmental review, other traditional CEQA requirements, including discussions of alternatives or growth-inducing impacts, are now abrogated for any qualifying "near miss" exemption. This means that any EIR prepared to address the newly limited scope of environmental impacts will not have to provide a detailed analysis of either (1) alternatives to any housing project or (2) any potential growth-inducing impacts of such housing. These limitations will not only make it more likely that EIR preparation is both quicker and cheaper but also will reduce the potential grounds for any lawsuit challenging the EIR's adequacy.
Both of these potentially seismic CEQA changes have the potential to alleviate California's housing development bottleneck, but it remains to be seen how effective—and practical—the changes will be. CEQA statutory exemptions can be notoriously tricky to navigate, and the broad exemption here will almost certainly be subject to litigation to constrain its applicability. The "near miss" modification reads as a welcome relief from onerous, time-consuming, and expensive discussions and analyses, but it is a novel approach that has not yet been battle-tested. While these changes may be a breath of fresh air, California's notoriously litigated environmental review law now has two new fronts.
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