In the 40-plus years since its enactment, the California Environmental Quality Act (better known as "CEQA") has provided an almost endless source of litigation, controversy and confusion.
Along with the Byzantine and voluminous regulations and case law it has spawned, CEQA has understandably frustrated courts, practitioners and developers throughout the state. For many Californians, legislatively reforming CEQA (or "modernizing" it, in current parlance) has seemed akin to the quest for the holy grail.
But last week, Senate President Pro Tem Darrell Steinberg took a serious, if incremental, step toward meaningful CEQA reform.
Both houses of the California Legislature passed Senate Bill 743, as recently amended by Steinberg to include modifications of CEQA from former SB 731. Gov. Jerry Brown is expected to sign SB 743 into law.
SB 743 proposes a number of changes to CEQA designed to "modernize" and streamline some of its procedures for certain projects. In a nutshell, it does the following: Immunizes projects in urban areas from challenges based on aesthetics and parking impacts. Adds a new code section exempting from environmental consideration "aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area." "Infill site" and "transit priority area" are broadly defined, so this provision will likely cover significant portions of California's urban areas. This exemption should help get urban infill projects through the CEQA process more expeditiously. Potentially changes the way traffic impacts are evaluated. This aspect of SB 743 is largely theoretical, but still intriguing. It has the potential to shift traffic analyses from the current "level of service" approach -- which focuses on congestion management -- to a more flexible one focusing on promoting infill development, active transportation and greenhouse gas emissions reductions. At this stage, the only mandated action is for the state Office of Planning and Research to develop new guidelines "for determining the significance of transportation impacts of projects within transit priority areas." Whether the agency can promulgate a viable alternative to "level of service" analysis remains to be seen, but if it can, this may have real benefits for important infill projects in California. Expands exemption for urban projects in areas covered by environmentally reviewed specific plans. CEQA currently exempts from review certain residential infill projects in areas with approved plans already reviewed under CEQA. SB 743 expands this exemption to include mixed-use residential/commercial projects with certain qualifiers designed to tie the exemption more closely to SB 375, Steinberg's landmark land-use/transportation planning legislation. Expedites judicial review for large-scale "environmental leadership" projects. Earlier this year, an Alameda County judge struck down part of a prior CEQA reform bill (AB900) as unconstitutional -- namely, a provision that litigation challenging certain large scale environmental leadership projects could only be brought in California's Courts of Appeal. Takes a different tack in trying to speed this kind of favored development through environmental review by subjecting CEQA challenges to these projects to a 270-day time limit. Thus, SB 743 does not bypass trial courts entirely, but does aim to create a drastically accelerated (and, perhaps, unrealistic) litigation timeframe for CEQA cases involving this small and select class of "green" mega-projects.
While SB 743's reforms are not earth-shattering, and the bill leaves many major reform issues unaddressed, it nonetheless moves CEQA reform forward incrementally -- and in a surprisingly thoughtful manner, given the bill's many eleventh-hour amendments.
Ultimately, in the current political and regulatory climate, SB 743's modest steps toward genuine CEQA reform should be viewed as significant and welcome ones.
Arthur Coon and Matthew Henderson are Walnut Creek attorneys who specialize in land-use issues.