SB 743 – DOES IT STREAMLINE OR GUT CEQA?

 
Last year, the California State Legislature amended CEQA for projects in certain areas classified as 1) infill and transportation priority areas and 2) for transportation priority projects.  SB 743 also streamlined CEQA for the Sacramento Kings’ arena and though the author is concerned about the number of center DeMarcus Cousin’s technical fouls, this article will not address those issues or the SB 743 revisions regarding mega-projects.

Codified at Pub. Res. Code Sections 21099, 21155 and 21155.4, Senator Steinberg’s SB 743, is an attempt to mollify long term critics of CEQA, aka “developers,” and help implement SB 375, which is the state blueprint for reducing climate change. The developer and infrastructure community wanted more substantial changes but were only able to get some of their wish list, by attaching the revisions to a bill streamlining CEQA for the Kings’ arena. 

Section 21099 – LOS;  Parking and Aesthetic Impacts.  The changes to CEQA in Section 21099 are aimed at allowing easier residential and commercial development in urban infill areas[1] that are within “transit priority areas (TPAs).”[2]    Infill is essentially a previously developed lot or one surrounded by development and a TPA is an area within a half mile of a major transit stop – which can be bus, multi transfer area, train, or ferry station - or near a major transit corridor.   

The two major changes in Section 21099 follow:

1. LOS
   
   

Use of level of service (LOS) as an impact criteria will be eliminated when the state issues a new methodology for assessing urban infill project transportation impacts.  (Pub. Res. Code §21099(b)(1-2).) This process usually takes about a year.

These changes will substantially assist developers in avoiding CEQA challenges for projects in those designated areas.  LOS refers to congestion at traffic stops and often requires extensive traffic modeling and almost always results in findings of significant impact in urban areas with no additional capacity for parking.  Even in suburban areas, LOS is criticized as not being an accurate criteria for assessing congestion; some observers believe LOS is one of the key barriers to redevelopment and smart growth.  Eventually, the CEQA Guidelines will be updated to establish new significance criteria for traffic congestion and thus congestion will not be eliminated from CEQA review.

1. Parking and Aesthetics
   
   

Parking and aesthetics will no longer be considered impacts under CEQA for projects in infill TPA areas.  (§21099(a)(4).)   Eliminating these two categories could allow agencies and the real parties in interest – developers - much more leeway in not just urban, but in suburban and small cities in California.  Examples of such areas are suburban areas or cities are in Marin County.  Marin, due to its hilly topography and its residents’ abhorrence of enormous residential subdivisions has retained a small city feel.  But elimination of the need for developers to assess parking and aesthetics impacts in TPAs will end disclosure of such impacts and reduce community control over neighborhoods.

It is unclear to this author whether local agencies can voluntarily hold developers to higher standards.  Section 21099(e) states that "This section does not affect the authority of a public agency to establish or adopt thresholds of significance that are more protective of the environment." This subsection seems to conflict with the rest of the Section 21099. 

  Sections 21155, 21155.2, 21155.3 - “transit priority projects.”  

These sections establish an alternative impact review process for development projects termed “transit priority projects.”  This exemption may sate the appetites of developers because it does not require a circulation and comment period.  But these projects should still be subject to judicial challenge. Further, the procedural study requirements are just as onerous as an EIR and in many ways more complicated and I see this process have very limited use. 

Section 21155.4  - Exemption for Mixed Use Projects in TPAs.

The other general provision in SB 743 is a much more serious streamlining of CEQA but Section 21155.4 has relatively stringent requirements.  This exemption only applies to:

1. Mixed use projects for which a “specific plan” and accompanying EIR have been approved; and
   
   
2. Projects in TPAs that are consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy” or an approved alternative climate change strategy.  (CEQA Guidelines, § 21155.4.)
   
   

The second requirement mirrors the tiering provisions in CEQA Section 21083.3 and existing exemptions for some residential only infill projects.  This exemption is also subject to subsequent and supplemental EIRs if there are significant project impacts not identified in the General Plan EIR.  First, many cities have not developed SCS plans and it is a costly enterprise.  But more importantly, it is the first requirement, a Specific Plan and its accompanying EIR that is somewhat more challenging. The Specific Plan process is a detailed one in which it must be approved by the state Office of Planning and Research.  (Government Code, §§65450 – 65457). Also, the accompanying EIRs are held to high standards, e.g. water supply assessments.  (Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 199, 206.)  This author does not think Section 21155.4 will be invoked very much except for very large subdivisions.

But Section 21099 will be invoked and will have a substantial impact on citizen’s power to control their own communities.


[1] "Infill site" means a lot located within an urban area that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses. (§21099(a)4).)

[2] “Transit priority area” means “an area within one-half mile of a major transit stop that is existing or planned, if the planned stop is scheduled to be completed within the planning horizon included in a Transportation Improvement Program adopted pursuant to Section 450.216 or 450.322 of Title 23 of the Code of Federal Regulations.”