A BRIEF(?) OVERVIEW OF CEQA – Part 3
This is the third and final post about the California Environmental Quality Act (CEQA).12 The chart below is from the Los Angeles Department of City Planning (DCP) website. Both left-side and center sections are shaded to draw attention to the right-side of the chart, the sections discussed today. See my prior posts for discussion of the left side (CEQA – Part 1) and middle (CEQA - Part 2) of the chart.
Major Changes Are Underway
Major changes are underway that will limit the application of CEQA. These changes to CEQA are in response to State-led efforts to curb greenhouse gas emissions, as well as address complaints by developers and pro-growth advocates who see the Act as an obstacle to growth. The state-imposed restrictions are unfortunate since no other law allows public participation in such a broad range of critical issues regarding our built environment.
CEQA requires regulators to be supplied with the information and data needed to make an informed decision. Nothing in CEQA forces regulators to read or understand the plans, but they must take responsibility in acknowledging the potential impacts of their actions. The efforts of the State to remove CEQA oversight silences those whose communities are most impacted. The removal of CEQA allows local regulators to easily “wash their hands” of the matter. Only time will tell if these efforts help create sustainable communities or if they lead to forced gentrification.
Transit Priority Projects
Viewing the CEQA flowchart, let us shift focus from the lower center shaded section that deals with a traditional FEIR to the right unshaded side. The right side of the chart applies to:
Actions that meet the definition of a CEQA project,
Do not qualify for an exemption (either statutory, categorical, or ministerial), and
Satisfy the requirements of a Transit Priority Project (TPP) – created by SB 375, the Sustainable Communities and Climate Protection Act of 2008.
The approval of a TTP project follows a similar flow as that of a traditional project leading to a FEIR. Both projects include the preparation of an Initial Study (IS), and issuance of a Notice of Preparation (NOP) should an EIR be required. An EIR for a TPP is called a Sustainable Community Environmental Impact Report (SCEIR). If the IS finds that impacts can be mitigated to a level “less than significant,” then an SCEA (Sustainable Community Environmental Assessment) report will be prepared.
As mentioned earlier, SB 375 creates transit priority projects. The bill is also the nation’s first legislation to link transportation funding, land use planning, housing policy, and greenhouse gas reduction goals. SB 375 has four core provisions:
Setting regional greenhouse gas reduction targets,
Preparing a regional Sustainable Communities Strategy (SCS),
Allocating regional housing needs, and
Modifying CEQA to streamline the process.
As with residential or mixed-use residential projects, a TPP must be consistent with general land use designations, density, building intensity, and applicable policies specified for the project area in either a Sustainable Communities Strategy (SCS) or alternate planning strategy. In addition, a TPP shall meet the following requirements:
Contains at least 50 percent residential use, based on total building square footage, and, if the project contains 26 to 50 percent nonresidential uses, a floor area ratio of not less than 0.75 to 1. (Defined as the ratio of building square footage to site square footage).
Provide a minimum net density of at least twenty dwelling units per acre.
Be located within one-half mile of a major transit stop or high-quality transit corridor included in a regional transportation plan.
If the project meets the definition of a TPP, the lead agency will decide if the project then meets the requirements of a Sustainable Community (SC) project. A project found to be compliant with TPP and SC requirements, and without “potentially significant impact,” is exempt from further assessment. The lead agency will prepare a Notice of Exemption (NOE) and a Sustainable Community Project Exemption (SCPE). A public hearing may be held to ask for input for the SCPE, but this step is optional. A public hearing followed by City Council action follows the preparation of the SCPE. After SCPE approval, the NOE is filed with the County Clerk.
Sustainable Community Project
To be defined as a Sustainable Community project, the TPP must satisfy eight environmental criteria, seven land use criteria, and at least one criterion related to low-income housing or public open space. I’ve tried to condense the discussion to those points of most importance; however, the reader should refer to the 2023 CEQA Guidelines for a complete list of criteria and details. Major requirements include:
A. Environmental Criteria
The project, and other projects approved before project approval but have not yet been built, can be adequately served by existing utilities (water, sewer, power, etc.).
The site is subject to a preliminary endangerment assessment prepared by a registered environmental assessor. If a hazard is found, it shall be removed, or any significant effects be mitigated to a level of insignificance.
The project does not have a significant effect on historical resources and the site is not located on developed open space.
Proposed buildings must be 15 percent more energy efficient than required by law and achieve 25 percent less water usage than the average household in the region.
B. Land Use Criteria
The site is not more than eight acres in total area.
The project does not contain more than 200 residential units and does not result in any net loss in the number of affordable housing units within the project area.
Any applicable mitigation measures, performance standards, or criteria that have been set forth in prior environmental impact reports, and adopted in findings, have been or will be incorporated into the project.
To promote Transit Priority and Sustainable Community projects, the law “streamlines” CEQA by dropping certain impacts from the scope of review. The agency may rely upon “substantial evidence in light of the whole record” in making their decision. The agency can dismiss significant impacts if they believe that the impacts have been adequately addressed and mitigated in other certified reports. No longer is the burden of proof on the lead agency to support and defend their decision. If the public disagrees with the agency’s position, the only option left to block or mitigate the project is through the courts.
Streamlining CEQA
Shifting the burden of proof from the lead agency to the public is just one major change for CEQA. If the project incorporates the mitigation measures required by an applicable prior environmental document, then any findings or other determinations for an SCPE, SCEA, SCEIR, or other change prepared or adopted for the project will not be required to reference, describe, or discuss:
Growth inducing impacts.
Any project specific or cumulative impact from cars and light-duty truck trips generated by the project on global warming or the regional transportation network.
A reduced residential density alternative to address the effects of car and light-duty truck trips generated by the project.
The result of these exclusions is to minimize the potential for requiring a full blown SCEIR and increase the number of projects that qualify for an exemption (SCPE) or an assessment (SCEA). Other regulatory programs have removed the need for preparing a traditional DEIR/FEIR if the project is “by right.” A “by right” project is one in which the developer does not seek entitlements to build beyond what is allowed by the zoning code. Of course, recent upzoning by City Planning coupled with State density bonus for low income housing means that very large projects of a massive scale can be build just about anywhere within the city.
While these changes should concern anyone who cares about issues such as local densification and traffic congestion, the overall intent is to speed up the review process. Reducing the review time is achieved by removing the analysis from individual projects and community plans and placing it in the state and regional plans. Project-specific actions will no longer need to be defended on a case-by-case basis as long as the project fully complies with the mitigation measures specified in a state or regional plan.
CEQA Metrics
The chart below presents the cummulative number of various CEQA reports issued in the City of Los Angeles beginning in the year 2010. The data was obtained from the State Clearinghouse database and is current as of May 2024. The reports are those where City Planning served as the lead agency overseeing commercial, residential, and mixed-use projects. The data excludes projects involving industrial facilities, water and transportation, community plans, and regulations.
As shown, a total 613 projects were issued a Negative Declaration (ND) or Mitigated ND compare to 114 projects requiring a Final Environmental Impact Report (FEIR). The ND/MND curve shows a definite change in rate with 77 reports being approved per year between the years 2010 and 2016 and then droping to 13 reports per year. At the same time, the approval of FEIR’s remains relatively constant at 8 per year.
The number of Notice of Exemptions (NOE) issued shows a substantial increase in the first 4 months of 2024, but it is unclear if this increase is being driven by measures to restrict CEQA or due to better reporting to the State clearinghouse. The number of Sustainable Community Assessments (SCA) reported to the State averaged 6 per year with the trend increasing.
As for the time it takes to go from project application to FEIR approval, this data can be obtained from the City of Los Angeles Department of City Planning performance metrics website. The data is provided at the bottom of the page, just be sure to select page 2 of 3 or you will miss it. The web portal provides processing time for individual FEIRs along with links to the documents. Only finalized FEIRs are presented.
According to the DCP data, 71 FEIRs were completed between January 2013 and December 2020. The average time from the filing of the application to the approval of the FEIR was 25 months. This breaks down to about one year from filing to issuance of the notice to proceed, six months from notice to draft EIR, and six months from draft to final. Data from the site shows that more than 90 percent of the Final EIRs were completed within three years.
It’s important to point out that more time (50 percent) is spent between filing and issuance of the NOP than time spent preparing the draft EIR or adopting the final EIR (including all public review). It might be productive to know which parts of the NOP process consume the most time to speed up the process.
My experience with air emission permits is that applications that provide detailed supporting analysis are processed much faster than applications with scant data. Permit delays also occur when filed plans are preliminary and not well defined, or they are suddenly modified due to changing market conditions. Such delays should not be taken as a delay caused by CEQA. The data shows that most projects are eventually approved and that the time allotted for public review is minor compared to the overall process.
Closing Remarks
All the changes to CEQA that are underway make it clear that citizens need to be much more active and involved in what takes place at the state and regional levels. Waiting to address issues at the local level via the CEQA process is a losing battle. The lead agency can now easily dismiss concerns by saying that those issues have been addressed elsewhere, or not address them at all.
The push by City Planning to upzone large parts of the city, coupled with State density bonuses for residential infill projects, will lead to more projects being exempt from CEQA. Developers will be able to build larger and more dense projects “by right” while the impacted community will have “no right” or say in maintaining the type of community in which they live.
Part 1 of this post originally appeared on the Hollywood Heritage Preservation Resource Center website on 18 Sept 2023. I am indebted to members of the Hollywood Heritage Preservation Committee for their review and support and to Carlyle Coach for assistance with the graphics.
The information presented in this blog is for informational purposes only and no claim is made as to the legal accuracy of the information provided. CEQA regulations are complex and subject to change. Readers seeking additional information should consult the 2023 CEQA Statues & Guidelines handbook issued by the Association of Environmental Professions.