If you’re interested in reading some of the source material for yourself, the Association of Environmental Professionals publishes a great CEQA Handbook, which includes the statute, guidelines, and a discussion of recent court cases (don’t worry, unlike many CEQA documents, the Handbook weighs in at a relatively light 481 pages).
In this post, I pick up on my colleague, Haley Feng’s, great introduction to the issue of California Environmental Quality Act (CEQA) reform by surveying past attempts to streamline CEQA and prospects for future reform. There have been many efforts over the years to make CEQA less burdensome for projects that also empower more sustainable developments, particularly with regard to infill housing. Infill housing supports our environmental goals by allowing people to be less reliant on cars and saving natural habitats from sprawl-like development patterns. However, as we will see, each of these streamlining measures has conditions attached that make it less effective or harder to use. These conditions ultimately reflect the political dynamics that support CEQA, a law that many different groups can use to advance their interests, even if the end result is arguably not in the public interest.
There are primarily two types of exemptions that allow projects to bypass CEQA and I will go over both of them. Let’s dive in!
The most impactful way to make CEQA less burdensome for projects is to make those projects statutorily exempt from CEQA. A statutory exemption, not to be confused with a categorical exemption (more on that below), is any provision in state law that takes a project either totally out of the CEQA process or exempts it from certain requirements of that process.
The most prominent statutory exemption from CEQA is the exemption for “ministerial projects”, per CA Public Resources Code (PRC) Section 21080. We briefly explained what “ministerial projects” are in the last post, but it’s worth repeating here: CEQA Guidelines Section 15369 defines “ministerial” in part as “a governmental decision involving little or no judgment by the public official as to the wisdom or manner of carrying out the project.” So how are ministerial decisions made? Ministerial actions involve the application of objective standards. The guidelines give examples like automobile registrations, dog licenses, and marriage licenses. In other words, if you pass through a checklist of objective standards, you’re approved. A government official issues a couple a marriage license if they meet the objective standards for getting married, but does not pass judgment on the relationship and withholds the license if they think the marriage is a bad idea. The same principles can be applied to housing. When a housing development is not subject to discretionary standards or processes like a design review board or a conditional use permit, it can be approved in a ministerial way as well.
The exemption for ministerial projects is very powerful, but its weakness is that local governments have to refrain from discretionary review in order for projects to take advantage of it. Fortunately, the State Legislature can step in, and statutorily designate a category of projects as ministerial, thereby relieving them from CEQA. An example would be the statutory CEQA exemption found in Senate Bill 35 (2017). SB 35 requires multifamily housing developments to be approved ministerially if they meet several criteria, which can be grouped into four basic categories: site requirements, affordability requirements, tenant protections, and labor requirements. To give a few examples of the criteria, for site requirements, the project has to be on an infill site and can’t be located in a high fire hazard area or a floodplain. For affordability, the project has to include at least 10% of units (and much more in some cases) as affordable to low-income households if it has at least 10 units. For tenant protections, the project can’t demolish rent-controlled housing, deed-restricted affordable housing, or tenant-occupied housing. The labor provisions are requirements to pay prevailing wages and use a “skilled and trained workforce.” So SB 35 offers an important CEQA exemption, but there are also lots of strings attached. Some of these conditions are clearly designed to address the concerns of environmentalists, tenants, and labor unions, who ordinarily would be able to use the CEQA process to raise these kinds of issues.
Another type of statutory exemption is for projects in “Housing Sustainability Districts.” This approach does not truly exempt projects from CEQA, but rather consolidates CEQA documentation at the plan level, instead of on a project-by-project basis, in order to streamline the process. In this scenario, a local government prepares an Environmental Impact Report when it creates the district, which identifies in advance mitigation measures to be undertaken by housing developments within the district. Once the EIR is adopted and approved by the California Department of Housing and Community Development (HCD), projects within the district, and which comply with the regulations of the district, are exempted from further review under CEQA. However, this exemption is only applicable within 10 years of the EIR being approved by HCD. This is an example of going through CEQA at the level of a plan, but then exempting specific projects from further CEQA review if they comply with that plan.
Speaking of requiring CEQA at the plan level, one of the more frustrating aspects of CEQA is that local governments must analyze their housing elements, a plan level project, under CEQA and then also take their zoning code amendments to implement those plans through CEQA. If that sounds redundant, that’s because it is. Luckily, SB 10 (2021) provides some relief in this area. It allows rezonings of up to 10 units per parcel on certain infill sites to proceed ministerially. Here’s the catch: this requires a ⅔ vote of the local governing body if it would supersede any zoning regulation adopted by a local initiative.
Unlike statutory exemptions, which are passed by the California Legislature and incorporated into state law, categorical exemptions are regulations adopted under the authority of the CEQA statute by the Secretary of the California Natural Resources Agency. Statutory exemptions relieve qualified projects from CEQA regardless of their impact, while categorical exemptions cannot be used where there is a significant impact associated with the project. They can’t be used, for example, where the cumulative impact of successive projects would be significant, where a project will have a significant effect on the environment due to unusual circumstances, or where a historic resource would be adversely affected (Guidelines Section 15300.2). If you recall the discussion of Appendix G, the Environmental Checklist Form, from the previous post, there are 21 categories of environmental factors to consider, and even one significant impact would take the project out of a categorical exemption. Furthermore, what exactly constitutes a significant impact is often unclear and subject to debate. So this type of exemption is not very reliable and predictable.
Those caveats aside, there are some notable categorical exemptions that can benefit housing developments. Guidelines Section 15303 exempts individual houses, second units, and multifamily residential structures up to six units in urbanized areas. Guidelines Section 15332 exempts certain infill development projects. To qualify for this exemption, the project has to be consistent with the general plan designation and zoning of the site, in an urbanized area, on a site no larger than five acres, on a site with no value as habitats for endangered species, can’t have significant effects on traffic, noise, air quality or water quality (or any CEQA factor really), and on a site that can be served by all needed utilities. While these exemptions are welcome, they are also limited. Building six homes at a time could be useful in some situations, but watch out if you want to build that seventh unit. The infill exemption is vulnerable to attack by a project opponent who would just have to show a plausible argument for one significant impact to drag the project out of the exemption and into court. This makes the exemption risky to use for a homebuilder who is anticipating resistance to the project, a common occurrence for infill housing developments.
Abundant Housing LA supports reforms to make CEQA less burdensome for environmentally-positive, and urgently needed, infill housing that does not displace residents. Two of the bills we are supporting this year move us in that direction. SB 886 (Wiener), would exempt student, faculty, and staff housing developments undertaken by public universities from CEQA when they meet certain requirements, which are similar to the environmental, labor, and tenant protection requirements in SB 35 (also authored by Senator Wiener). SB 1369 (Wieckowski) would require by-right approvals of adaptive reuse to housing projects in commercial areas. “By-right” is another term that refers to the concept of ministerial approval, and as you will recall, ministerial approvals are not subject to CEQA.
Progress aside, we have a long way to go to optimize CEQA, so that it works to ensure truly equitable community engagement and deter environmentally-unsustainable developments, without discouraging or delaying infill housing. We would love to hear from you on this subject! How would you reform CEQA to make it easier to build infill housing? How would you navigate the political barriers to CEQA reform and come out of that process with a policy that is still meaningful? Let us know by sending a message here.
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