As we draw near the close of another year, a number of recent CEQA developments bear noting.
New SB 35 Implementing Regulations
Senate Bill 35, more colloquially known as “SB 35,” was signed into law by Governor Brown on September 29, 2017. While somewhat byzantine in its details, the law essentially allows qualifying development projects to bypass the discretionary entitlement process, including CEQA review. SB 35’s primary change was the addition of Government Code § 65913.4, which grants this streamlined process to projects including multifamily housing (including affordable units) in jurisdictions that have fallen below their regional housing needs allocation.
While detailed in its specifications for qualifying projects, SB 35 still left a number of gaps for regulations to fill in, and section 65913.4(i) expressly called for the Department of Housing and Community Development (HCD) to adopt such regulations. HCD did so on November 29, 2018.
Of interest to local jurisdictions, HCD’s SB 35 regulations expand upon the required “Annual Progress Report” by which the application of SB 35 to those jurisdictions is judged. They also provide that HCD’s required reporting on qualifying jurisdictions is due by June 30 of each year. The regulations set forth additional procedural requirements for local governments deemed subject to the SB 35 process, including promulgating information for applicants, standards for processing applications, and deadlines.
SB 35 is a complicated law, and while its scope is limited, it can provide a powerful tool where it does apply. Cities, counties, and project applicants would be well advised to familiarize themselves with SB 35 and the new regulations, which are available here.
CEQA Guidelines Updates
The lengthy rulemaking process appears at last to be drawing to a conclusion for the latest round of updates to the CEQA Guidelines. The Natural Resources Agency has passed what it considers to be the final version of the updates to the state Office of Administrative Law (OAL), which has set a deadline of December 28, 2018 for its internal review of the regulations.
The changes reflected in the latest round of updates range from the minute (and technical) to the major (and technical). They address such subjects as preapproval activities by lead agencies (which need to avoid running afoul of cases such as Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116) (§ 15004); the evaluation of greenhouse gas emissions
(§ 15064.4); thresholds of significance (§ 15064.7); and the description of the environmental setting in an EIR (§ 15125), among many others.
Of great interest to CEQA practitioners is the long-awaited debut of new Guidelines § 15064.3. As called for in Public Resources Code § 21099(b) (enacted by the Legislature as part of SB 743), section 15064.3 sets forth the new “vehicle miles traveled” (VMT) standard for evaluating traffic impacts from new development. Once the new Guidelines become effective, the venerable level of service (LOS) threshold will be all but dead, for CEQA purposes anyway. In the words of § 15064.3(a), except for a limited exception, “a project’s effect on automobile delay shall not constitute a significant environmental impact.” Section 15064.3 grants lead agencies substantial leeway in how they use VMT as a measure of impacts for CEQA purposes, which will no doubt lead to litigation that will hopefully fill in some of the methodological and analytical gaps. In the meantime, agencies are free to stick with LOS until July 1, 2020, or they can move on to the new paradigm of VMT analysis sooner if ready.
The new regulations will become effective depending on when OAL files them with the Secretary of State. They are available here.
Review Granted in California Water Impact Network
On November 14, 2018, the California Supreme Court granted review of the previously published Second District case of California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th 666. The Second District opinion held that the issuance of well permits is a ministerial act and therefore not within the scope of review under CEQA. This result conflicted with an unpublished opinion from the Fifth District issued on August 24, 2018, Protecting Our Water & Environmental Resources v. Stanislaus County; the Supreme Court also granted review in that case on November 14. Thus, the Supreme Court is poised to resolve this conflict and potentially provide practitioners and agencies with helpful guidance addressing CEQA’s ministerial/discretionary distinction in the well permitting context.
Rehearing Granted in Save Lafayette Trees
On October 23, 2018, the First District Court of Appeal issued a published opinion in Save Lafayette Trees v. City of Lafayette, Case No. A154168. The Court essentially held that CEQA’s “catch-all” 180 day statute of limitations under Public Resources Code § 21167(a) applied instead of the shorter 90 day period for filing and service under the Planning and Zoning Law pursuant to Government Code § 65009(c)(1)(E) in an action challenging a city’s decision authorizing tree removal by PG&E. On November 26, 2018, the Court granted PG&E’s petition for rehearing on that issue, and denied the Appellants’ earlier-filed petition for rehearing on other issues in the case. The order granting rehearing reads in relevant part: “Real party in interest, Pacific Gas & Electric Company’s petition for rehearing, filed November 7, 2018, is granted on the issue of whether appellants’ CEQA cause of action challenging respondent City of Lafayette’s land-use approval decision was time-barred because appellants failed to serve their mandate petition within 90 days of the date of the challenged decision, as required by Government Code § 65009, subdivision (c)(1)(E).” The Court’s order also calls for further briefing on the issue, and its grant of rehearing has the effect of vacating the previously issued opinion and setting the case at large in the Court of Appeal.
Happy Holidays to all, and stayed tuned….
