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On January 25, 2012, the Governor’s Office of Planning and Research (OPR) released draft CEQA Guidelines to implement Senate Bill (SB) 226. Signed by the Governor last October, SB 226 promotes infill development by: (1) providing flexibility in project design by basing eligibility largely on environmental performance rather than prescribed project characteristics; and (2) avoiding repetitive environmental review where effects have already been analyzed at a programmatic level. Based on these policies, SB 226 directed OPR to develop a streamlined review process under the California Environmental Quality Act (CEQA) for qualified infill development projects.

In response, OPR has proposed new Guidelines section 15183.3, which would require that a project, in order to be eligible for streamlined review: (1) be located in an urban area on a site that has been previously developed or is surrounded by at least 75% urban uses; (2) satisfy the performance standards set forth in proposed Appendix M (described below); and (3) be consistent with the general use designation, density, building intensity, and applicable policies set forth in an applicable sustainable communities strategy (SCS).

Proposed Appendix M sets forth the specific performance standards that any infill project must achieve to qualify for streamlined CEQA review. As proposed, in addition to the requirements of proposed section 15183.3, to qualify, the project must: (1) incorporate renewable energy components (e.g., solar rooftops) where feasible; (2) include components that promote the use of transit or active transportation (e.g., walking, bicycling); (3) be consistent with the provisions of a plan for land uses surrounding any existing or proposed transit stations within one-half mile of the project site; and (4) in certain cases, undertake soil and water remediation.

Under proposed Appendix M, residential, commercial, retail, office and school projects would each be subject to additional performance standards. The performance standards rely heavily on reduction of vehicle miles traveled (VMT) as the measures of whether a project will qualify for the SB 226 streamlining.

If a lead agency is able to determine that an infill project qualifies under the requirements of section 15183.3 and the performance standards set forth in Appendix M, the agency will determine what level of streamlined review is appropriate for the project. The lead agency must consider whether the effects of the qualified infill project were addressed in a prior planning-level EIR (e.g., a general plan or specific plan EIR). If so, the agency must then determine whether the effects of the infill project fall within the scope of effects analyzed in the prior EIR.

If a “new specific effect” exists, the lead agency must determine whether such effects can be substantially mitigated by uniformly applicable development policies. If so, then the project need not be analyzed further and a notice of exemption may be posted. If not, an Infill EIR must be prepared. An Infill EIR may focus on those significant effects that have not been mitigated and that are new specific effects or are more significant than a prior EIR analyzed. The Infill EIR need not address grow-inducing impacts or alternative locations, densities or building intensities.

Key Points:

While the streamlined environmental review relying on analysis from previously approved EIRs as set forth in section 15183.3 could provide limited benefits to a qualified infill project, reaching the conclusion that the infill project actually qualifies under the complicated set of performance standards may result in very few projects actually taking advantage of these streamlining benefits. In addition, unlike the provisions in SB 375 that shift the applicable standard of review to substantial evidence, the proposed Guidelines contain no similar provision, so the decision to proceed under an exemption or negative declaration pursuant to the infill streamlining provisions would still be subject to the less deferential fair argument standard of review. The recent decision in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal. App. 4th 656 emphasizes that no shift in the standard of review leaves any applicant with significant litigation exposure if it proceeds under an exemption and the project is contested (the court set aside infill exemption for single family home].)

Additional information on the proposed CEQA Guidelines can be found at: OPR will hold public workshops on the proposed Guidelines in Sacramento, Fresno and Los Angeles during the week of February 20, 2012. Written comments on the proposed Guidelines must be submitted by February 24, 2012.

Written By: Tina Thomas and Amy Higuera

For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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