HomeMy WebLinkAboutMINUTES - 06081993 - 2.6 TO: BOARD OF SUPERVISORS
FROM: VAL ALEXEEFF, DIRECTOR
GROWTH MANAGEMENT& ECONOMIC DEVELOPMENT AGENCY
DATE: JUNE 8, 1.993
SUBJECT: RECOMMENDATIONS BASED ON CEQA WORKSHOP
SPI_iCil-'IC RIiQIJI:.S'I(S)OIZ RECOMMI NDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
ADOPT the list of CEQA recommendations provided below.
DIRECT staff to pursue incorporating the recommendations into legislation through CSAC
and other sour::es.
REQUEST staff to provide periodic updates of status of recommendations.
FISCAL, IMPACT:
Staff time is required to forward and monitor recommendations.
BACKGROUN ZEASONS FOR RECOMMENDATIONS: (See Page 2)
CONIIVUI:D ON NITACIIMEINI'- _ YES SIGNA•I1JR14-
i
_RECOMMENDA1ION Ol ::()lJN1 Y ADMINISTRAI'OR RI(:OMM1.iNDA1TON Ot,BOARD COMMrI"tiu-.
APPROVE' 0I1II.E.
SIGNAII.JREM:
ACTION OF BOARD ON June 8 , 1993 APPROVED AS RECOMMIiNDFD X O•n-IE'R
VOTE'OF SUPERVISORS I HLRtsBY C11,14IIFY 'ITIAI' IITIS IS A '1 Kll[s AM)
('ORRi-.cr COPY OF AN ACTION TAKEN AND
X UNANIMOUS(ABSENT - - ) EiNIT'R1:D ON 171E MINUTES OF •TIE BOARD Ole
SUPERVISORS ON 1T-I1.7,DXFU S1lOWN.
AYES: NOES:
-- — n 1-I ESITin June 8 , 1993
ABSENT': _ABSTAIN:
PHIL BA•I'(:111iL()lt,CLERK OF THE'BOARI)OF
SUPIiRRVISORS AND C0 UN'1'Y ADMINISTRAIY)R
BY ,UI PIJ 1 Y
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Contact: Val Alexeef£(&46-1620)
CC: County Administrator
Counly Counwi
GME'DA IX,-partments
RECOMMENDATIONS BASED ON CEQA WORKSHOP
JUNE 8, 1993
PAGE 2
BACKGROUND/REASONS FOR RECOMMENDATIONS:
INTRODUCTION
The workshop proceedings and supplemental information are attached. It is clear from its
volume that many things can be said about the current state of the California Environmental
Quality Act. The County has no objection to an effective and efficient environmental review
process. The quality of life in Contra Costa County has been greatly enhanced by
environmental protection.
As a term, "environment" has come to mean everything that one perceives within a current
static state. This means that we are not only protecting endangered species, we are
protecting perceived property values. We are not only protecting air quality, we are
protecting competitive advantage between business. We are not only protecting water
quality, we are protecting current tax rates. CEQA has clearly become used for purposes
other than environmental protection and as a result, CEQA has become a symbol of
everything that is wrong with development processing. CEQA statutes are blamed for
problems of environmental regulation outside CEQA. Sometimes the blame on CEQA is
unfair because every environmental regulation, regardless of origin and enforcement, is
credited to CEQA.
CEQA has enabled individuals with almost no legal standing to raise issues about a project
and in most cases the only one in financial jeopardy is the developer. On the other hand,
actions taken by voters are exempt from CEQA without consideration of effect.
At the workshop, nearly every individual agreed that the number of EIR's should be reduced
to those projects that will significantly affect the environment, as opposed to those projects
which have received some opposition.
The panelists a`reed tbat CEQA's greatest benefits lie in mitigation measures, public access
to information, and public agency accountability.
Criticism of the way CEQA is practiced included five areas:
1. Project development is a dynamic process tied to fixed permit EIR.
2. There is too much recurrent boiler plate. An existing database should
be used and not rewritten each time.
3. An EIR challenge needs to be a constructive process rather than a
means of delay. An environmental issue previously stated should not
need to be restated in every subsequent document.
4. A well defined method of arbitration may improve quality of
environmental analysis rather than inspire new legal theories about the
intent of the language.
5. There is a need to increase exemptions.
Vic Holanda, Director of the Office of Permit Assistance, indicated that his office was
supporting the following modifications:
1. Specification of criteria and threshold for recirculation of EIR's.
RECOMMENDATIONS BASED ON. CEQA WORKSHOP
JUNE 8, 1993
PAGE 3
2. Modification of tiering of EIR's to allow building on previous
documents.
3. Reduction in scope of subsequent and supplemental EIR's
based on local criteria.
4. Modification of alternative analysis to be a meaningful effort.
5. M00-ifica.tion of the definition of project and clarification of
Public Resources Code to reduce unnecessary reviews.
RECOMMENDATIONS:
1. CRITERIA
Items, procedural in nature, that would greatly simplify guesswork for the applicant,
local Jurisdictions, and courts, include the following:
A. Better definitions are needed for the terms: significant, substantial, adequate,
�.r�ject, and environment:
B. Cc.unty should be allowed to establish thresholds of significance, to establish
tests for staying below threshold and to allow demonstration of compliance
throughout conditions, standards, etc.
C. Standards are needed for depth of analysis and level of detail.
D. Statement of project need should be included in documents.
E. Analysis of alternatives should be revised. Currently, alternatives serve little
purpose.
F. Mitigation should be required to consider cost/benefit.
G. Growth inducement should not be considered negative or positive.
H. Findings' requirement should be simplified.
I. Specific tests for recirculation need to be placed into the law or guidelines and
should be limited solely to the new information.
2. MODIFICATION OF REQUIREMENTS AND EXEMPTION
There are certain occasions when interpretations of CEQA have led to analysis
overkill, greatly adding to the expense with limited benefit. These items reduce scope
of analysis when particular conditions are met.
A. I:!.fill proiects with an appropriate General Plan designation, particularly in an
urban setting, should have modified environmental analysis requirements, such
as a mitigates; negative declaration.
B. CEQA exemptions should be considered for low and very low income projects.
RECOMMENDATIONS BASED ON CEQA WORKSHOP
JUNE 8, 1.993
PAGE 4
C. If project has a single significant impact, a complete EIR should not be
required, focus should be on what is significant.
D. Infrastructure studies should be given specialized growth inducement analysis
to counteract tendency to undersize pipes.
E. Alternatives should be part of scoping process. Analysis should be reduced
for projects consistent with general plans.
F. _Por project components governed by Federal and State requirements,
indication of ccrosistency should preclude need for a new layer of review.
3. EIR C(?Id�[1MENTS
These are proposals that would limit some of the excessive issues that are raised for
the sake of completing the proposal.
A. Comments not made in scoping should not be brought up later.
B. Anyene who comments on an EIR should state interests they are representing
a :d their area of expertise.
4. CHANGES IN EIR
Once an EIR is complete, there are sanctions of time and legal jeopardy opposing
re-opening of the an_ilysis. It would be better to provide some flexibility and
protection in chis area and allow the project to be improved than to force the project
to remain in a rigid state though legally defensible.
A. Allow project modification in response to EIR mitigation without recirculation
or EIR for new project.
B. Allow correction of minor problems in the EIR without starting process all
cz�er.
5. ADJUDICATION
CEQA 'aw has evolved so rapidly that there are few judges who have ever received
any training. Consequently, there are wide swings in interpretation and disposition.
A. Process for reviewing challenges to CEQA process should include arbitration
and creatian of land use courts.'
B. C:;-,:arts should retain jurisdiction over environmental documents so errors can
be corrected and resolved. This would prevent delay and voiding the entire
F'-ocess.
C. Standards of review for overriding consideration should not be based on
bstantial evidence.
D. Attorney fees should not be allowed for an appeal unrelated to the
environment or disproportion to percent of case won.
E. Guidelines should be updated to preclude court second-guessing.
RECOMMENDATIONS BASED ON CEQA WORKSHOP
JUNE 8, 1993
PAGE 5
F. In1proved technical training should be provided to judges who review CEQA.
6. RELATED ISSUES
A. A process needs to be established within OPR/OPA to reconcile conflicts
ili-1,10Y ay(Yency comments and to allow appeal of agency discretionary rulings.
B. Consultants should be independent, not working for developer.
C. The term "negative declaration" should be changed to "finding of no impact".
7. UNRESOLVED
Should honey be posted to deter frivolous lawsuits?
z 6
ATTACHMENT B
PROCEEDINGS
CEQA WORKSHOP - FEBRUARY 249 1993
AGENDA
9:00-9:15 Welcome Tom Torlakson, Chair
CCC Board of Supervisors
9:15-10:30 Intent of CEQA vs Practice
Moderator: Dennis Barry, Deputy Director
CCC Community Development Dept.
Speakers - 12 minutes each:
Historic Context Jack Knox, Attorney
Nossaman, Guthner, Knox, and Elliott
Environmental Benefits Terrell Watt, Planning Consultant
Legal Concerns David Gold, Attorney
Morrison & Foerster
Development Experience Mike McKissick, President
MSM Development Corporation
10:45-12:00 Regulatory Evolution/Process
Moderator: Silvano Marchesi, Assistant County Counsel
Contra Costa County
Speakers - 20 minutes each:
Governor's Office Vic Holanda, Director
Governor's Office of Permit Assistance
Judicial Patricia Curtin, Attorney
Gagen, McCoy, McMahon, & Armstrong
Legislative Mark Armstrong, Attorney
Gagen, McCoy, McMahon, & Armstrong
1:00-2:15 What do we want CEQA to be?
Distillation of Positive and Negative
Moderator: Jim Cutler, Principal Planner
CCC Community Development Dept.
Speakers - 15 minutes each:
Development Cost Linda Best, Principal
Hasseltine Best
Environmental Enhancement Ellison Folk, Attorney
Shute, Mihaly.and Weinberger
Process Change Marta Self, Principal
McGill-Martin-Self
Interest Group Participation Daniel Cardozo, Attorney
Adams & Broadwell
2:30-3:30 Potential Changes
Moderator: Harvey Bragdon, Director
CCC Community Development Dept.
Speaker:
State/ABAG/Others Michael Zischke, Attorney
Update on Pending Legislation McCutchen, Doyle, Brown, & Enersen
Participant Perspectives Attendees by sign-up
(2 minute presentation)
3:30-4:30 Recommendations
Work Groups Staff Facilitators
4:30 Closing Remarks
SUPERVISOR TORL AKSON - OPENING REMARKS
Welcome to the Contra Costa CEQA Workshop. When I first ran for office, I was attacked
as the Sierra Club candidate. A charge destined to strike fear into every right thinking
person interested in economic progress. In my recent campaign, I was attacked for being
pro-development. A charge destined to strike fear into every right-thinking person
interested in preservation of resources.
My concern for the environment has not diminished and my admiration for the strides in
environmental cleanup, sensitivity to the environment, and environmental design has not
diminished. Cleaning up the Antioch Dunes, protecting Delta marshlands, improving Bay
Area air quality, and demanding high standards for development mitigation, have been
accomplishments which are very important to me.
I am also concerned about abuse, whether it be drug use or a legal process established to
protect the environment. Most land-use attorneys will agree that to stop a project, it is
easiest to sue on CEQA grounds, regardless of the effect of the project on the environment.
Perhaps that is why CEQA lawsuits out-number general plan and zoning lawsuits 10 to 1.
There are use permits for home occupations challenged OD CEQA grounds. There are
manmade stockponds that must be mitigated 5 to 1 with wetlands habitat. There are public
projects that could provide jobs that are stopped for months or years to satisfy private
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agendas. CEQA has been the primary tool of NIMBY, despite the policy decision within
the General Plan process. Perhaps the worst has been the use of CEQA as blackmail ---
demonstrated by dropping the environmental challenge once a non-environmental objective
was negotiated with the developer or the community.
The courts have recognized the misuses. Servicing non-environmental agendas or attempts
to gain competitive advantage or to create trivial backyard impacts where CEQA was used
solely as a means to delay or block with no regard for environmental solutions has been
acknowledged by the courts. This abuse cheapens the effort of all the environmental
professionals and advocates who work constructively for solutions and resolutions.
I hope this workshop will help the County focus on what's good in CEQA and what needs
to be changed. There has been a groundswell of proposed legislation and workshops. Some
action will be taken in the Legislature this year. Thank you for becoming part of Contra
Costa's voice.
The workshop is organized into four sessions and final work group activity. The first panel
will address CEQA intent and practice. There will be historical perspective and
contemporary practice. The second session will deal with the legal components of CEQA
... the differences between legislative, executive, and judicial. Maybe we can find out who's
responsible. The third session, after lunch, will touch upon what's wrong and what's right
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with CEQA. The fourth session will be a presentation by Mike Zischke on current proposals
before the Legislature. We will also try something new in this session. We will have sign-
ups at lunch for speakers to give a maximum of two minutes each to address a point which
may not have been covered. The final event will be for all of you to become organized by
topic. Each group will come up with recommendations for the Board of Supervisors to
consider and recommend to the Legislature.
I would like to thank staff for keeping this workshop affordable. I think the turnout speaks
to that. The $20 cost does not include donated staff time from Debbie Gorman and
Diane Russ who worked very hard to coordinate the worshop. Nor does it include the
contributions from the law firms of Gagen, McCoy, McMahon, & Armstrong; McCutchen,
Doyle, Brown, & Enersen; and Morrison & Foerster who agreed to underwrite costs above
the $20 you were charged.
The workshop will be video taped and proceedings will be prepared. If you are interested
in purchasing a copy of the video and/or a copy of the proceedings, be sure to add your
name to the sign-up sheets at the registration table.
We look forward to your comments. See you at the end of the day.
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Session I - Intent of CEQA vs Practice
Moderator.• Dennis Barry, Deputy Director,.CCC Commruuty Development Department
Mr. Barry provided a brief summary.of CEQA and the current process. He indicated that
CEQA has evolved from the Friends of Mammoth decision to current application. In that
time, the sophistication of the documents and participants has grown.
1. John Knox, Attorney with Nossaman, Guthner, Knox & Elliott
An historical perspective was provided by former Assemblyman John Knox. He
commented on how CEQA was established and its original intent. He traced the
actions that transformed CEQA from applying to public projects to applying to
private projects. He felt reform was needed to make CEQA more serviceable.
Specific points included:
a. Environmental movement became strong in 1969.
b. Mr. Knox presented the first legislation on CEQA on November 23, 1970.
C. The court case known as Friends of Mammoth concluded that CEQA applied
to "private projects, which require discretionary governmental approval", as
well as public projects. This caused great shock throughout the building
community. This made California unique among states.
d. AB 889 modified CEQA by providing permit streamlining which allowed only
a thirty-day statute of limitations.
e. John Knox stated that the boiler plate should be cut out of EIRs. Apparently
this has not as yet happened. Baseline programmable information would help
decrease the burdensome impact of EIRs.
f. This year, people are gathering to take a critical look at CEQA to see if it
could become more serviceable. It should not be a technical "gotcha".
2. Terrell Watt, Planning Consultant
The environmental perspective was provided by Terry Watt, who discussed the intent
and means by which CEQA has prevented environmental degradation. Her initial
comment suggested the key was telling the truth -- disclosing all significant impacts,
ways to reduce environmental damage, feasible alternatives, and reasons for
proceeding. Environmentalists have been frustrated with CEQA due to political
decisions overruling substantial environmental concerns. Ms. Watt felt CEQA was
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working,especially with regard to identifying mitigation measures. She complimented
the environmental process in connection with the CCC. General Plan. The
environmental community is concerned that there will be tampering with CEQA
rather than improving it. She agreed.that CEQA is misused by groups whose issues .
are not the environment. Specific points included:
a. CEQA is being manipulated. There is an undue reliance on developer
supplied information - geology review often cursory.
b. There is a need for careful evaluation of alternatives. This is where the ball
gets dropped and unrealistic alternatives proposed.
C. There is concern over unsupported findings used to justify project approval.
d. EIRs are prepared after all alternatives have been eliminated.
e. The number of EIRs required should be reduced and that thresholds of
significance be established.
3. David Gold, Attorney with Morrison and Forester
The legal perspective was provided by David Gold. Mr. Gold responded to the
question of the extent to which CEQA has shifted from consideration of
environmental issues to one of legal procedure. Mr. Gold agreed there were too
many attorneys in the process and he felt CEQA should be reformed to reduce
dependence on attorneys. He raised the issue that CEQA, as an informational
document, has been skewed. Mr. Gold also questioned the thresholds of significance.
Does an impact have a statewide or regional impact? Specific points included:
a. There is a considerable legal manipulation of CEQA.
b. Worthy public and private projects are killed by CEQA.
C. Too much "hyper-technical analysis" is conducted through CEQA instead of
through better planning, which is needed. Approximately $1 is spent on
planning for each $3 spent on CEQA. Repetition of the same information
occurs.
d. $300-500 million per year is spent on environmental analysis.
e. The Office of Planning and Research processes 900-1000 EIRs per year.
f. An average EIR for a large project costs approximately $150,000.
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g. Challenges to CEQA are reasonably cheap. Many attorneys will take them
on a contingency basis. Possibly, bonds should be posted for potential impacts
of appeals -- maybe $250,000 for Board of Appeals and $50,000 for Superior
Court.
h. One of the major problems associated with EIR;s is that NIMBY's have too
much of a voice and should be allowed less power to stop projects.
L Current worthy projects which have gotten caught by CEQA include sewer
plants, ferry service, and household hazardous waste sites.
4. Mike McKissick, MSM Development Corporation
The development perspective was provided by Mike McKissick. Mr. McKissick is a
developer who has taken several development projects through the environmental
process. Politically, no growth is acceptable but people keep coming to the State.
He commented on the extent to which CEQA helped identify and solve
environmental issues. Few people in opposition to the project know what's in the
EIR. People who are opposed to the project use the environmental issue, but refuse
to discuss EIR documentation mitigation or other aspects. He felt the document
should be streamlined so it does not need to reiterate information found elsewhere.
He would like to see greater public education on CEQA and more support from
consultants and city/county planning agencies in the process. In the end, he felt the
process was political not environmental. Past problems should be accepted and not
blamed on proposed projects. Specific points included:
a. Paying for two EIRs for major projects. One was successful. The other he
lost $1,500,000 on the cost of preparation of an EIR and $2,000,000 on legal
costs incurred in fighting a referendum. This resulted in a $3,500,000 total
loss. The project was environmentally sensitive, but local opposition was not
interested in resolving environmental issues.
b. It is not necessary to restate all environmental problems in each EIR. This
is a major economic cost.
C. Are the environmental problems existing past problems? or are they new
problems? Past problems have been previously addressed and should not be
evaluated over and over again.
d. Growth inducing impacts are usually assumed to be bad impacts. However,
without growth, the economy of our State and Country would have major
problems.
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e. Shouldn't growth management bills and referendums be subject to CEQA?
f. Arbitration may be a much fairer method of fighting EIRs.
QUESTIONS/COMMENTS FOR PANEL 1:
Question to Watt:
How do you see current environmental policies being upheld while still providing an
affordable home for residents of the Bay Area? How do we weigh our own quality of life
(horrible, lengthy commutes) against environmental impact?
Response:
Distinguishes environmentalists from NIMBY. Most notoriety goes to killing projects.
However, much time is spent improving projects through the EIR process. Sees need for
education. Determine standards of significance to cut off abuse by NIMBY interests.
Question to Gold:
CEQA provides for Master Environmental Assessments (MEAS) yet, this provision has
never, to my knowledge, been utilized. (It's application would operate best with a local
agency's new general plan). To.streamline the CEQA process, it would appear appropriate
to prepare MEAS for each local agency. Future site specific CEQA work could reference
the MEA, probably in electronic data base format. Do you see this approach as viable?
Response:
Too much vulnerability due to too many approvals. Need to continually update rather than
incorporate information by reference.
Question to Gold:
Why can't EIRs be required for "growth management" initiatives and protect referenda?
Response:
Actions taken by voters are exempt from CEQA. He feels this inequity should be corrected
and the-initiative and referendum process have safeguards.
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Question to Gold:
Address the question of"financial accountability" for the misuse of the intent of the CEQA
process, i.e. bigots in green sheets.
Response:
Recommends posting bond for frivolous lawsuits.
Question to Watt:
Would the Golden Gate Bridge have been built if CEQA was in effect then?
Response:
Panel mixed views on whether Golden Gate Bridge would be built today.
Question to McKissick:
In the face of the inevitable growth in California, don't you agree that it is morally
unacceptable for communities to avoid providing their fair share of housing for all segments
of the community?
No Response.
Question to McKissick:
Why shouldn't a community have the right to deny a project if the community does not want
the project in their neighborhood? Reason for objections - quality of life is impacted by
increased costs for water, sewer, public services, traffic congestion, air pollution, increase in
crime rate, etc.
No Response.
Question to Gold:
Your closing remarks were that EIRs should distinguish between projects that deserved
approval and those that don't. Isn't that the elected and/or appointed officials' decision?
Shouldn't the facts be decision-neutral?
No Response.
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Session 2 - Regulatory Evolution
Moderator• Silvan Marches4 Assistant County Counsel
Mr. Marchesi introduced the topic by indicating the original legislation is far different from
current practice. The Friends of Mammoth decision and results of recent LAFCO suits were
earth-shaking in implication.
Question for conference: Has CEQA developed to a point where one can't predict risk
from one course of action to another?
On the State level, CEQA is a product of legislative intent and compromise, executive
guidance, and judicial interpretation.
1. Vic Holanda, Director of the State Office of Permit Assistance
The Executive Branch-focus was provided by Vic Holanda which included the
Executive intent in preparation of guidelines and provision of many unknown services
of the State OPR in connection with CEQA. Mr. Holanda discussed the recirculation
of draft EIRs, and clarified the intent of tiering as well as subsequent and
supplemental EIRs. He commented on alternatives -- what are they, how far does
the jurisdiction need to go. He discussed what a project is, and provided guidance
in specific plan and phased projects. Mr. Holanda discussed the current operation
of the OPA/OPR-run State Clearinghouse and clarified intent of the public resources
code. Specific points included:
a. Office of Permit Assistance intends to receive public comment, then obtain
review from the Secretary of Resources and OLA, and have draft guidelines
available in July.
b. The following major changes in CEQA will be proposed:
(1) Modify when draft EIRs must be recirculated and how they must be
recirculated. Specify criteria and thresholds.
(2) Modify tiering of EIRs. Trigger a new data base and establish
standards to allow building on previous documents.
(3) Modify how subsequent and supplemental EIRs must be handled.
Local agencies should be able to establish criteria.
(4) Modify alternative analysis to be meaningful effort.
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(5) Modify the definition of a project under CEQA. Too many actions are
considered unnecessary. Public Resources Code intent needs to be
clarified.
C. Mr. Holanda's responsibilities under the Office of Permit Assistance include:
(1) Determining lead and responsible agencies for EIRs.
(2) Convening sessions for scoping of major projects.
(3) Following up with State agency comments on Notice of Preparations.
(4) Consolidating hearing process.
(5) Streamlining permit process at State, regional, local levels by collecting
and consolidating ideas.
(6) Eliminating duplicate or conflicting authority at State level by
designating lead status through MOU or other mechanism.
2. Patricia Curtin, Attorney with Gagen, McCoy, McMahon and Armstrong
The legislative and judicial perspectives were provided by Patricia Curtin and
Mark Armstrong. Ms. Curtin identified the legal principle and Mr. Armstrong
provided the implication. The main points were:
a. History of major modifications to CEQA
(1) Initial Chapter 1433 consisted of 1'/z pages in 13 Sections. Current
guidelines consists of 152 pages in 137 Sections.
(2) 1970, CEQA enacted - modeled after NEPA - amended six times.
(3) 1972, determined that CEQA applies to public and private projects
even though NEPA only applies to public projects. (Friends of
Mammoth) Other amendments occurred in 1976, 1978 and 1984
included streamlining.
(4) 1973, first guidelines prepared.
(5) 1984, comprehensive amendment of guidelines occurred.
(6) 1989, monitoring program added.
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b. There have been 418 Appellate decisions with 1.92 CEQA holdings. There
have been 25 Federal cases.
C. There have been 100 cases defining project. "Approve a discretionary project"
- defined by guidelines as decision by public agency to follow a certain course
where government uses judgment to make a decision.
d. Exemptions considered.
e. Significant effect described.
L In EIR, fair argument standard used as a result of case law.
g. Scoping of EIRs from Initial Studies was discussed.
h. Future studies are restricted to satisfy CEQA. Significant impacts must be
addressed up front. This may eliminate opportunities to improve the project.
i. When future mitigation measures are tied to performance standards, some
analysis may be deferred to a later date.
j. The Goleta case found that alternative sites (public and private) need not be
owned by the developer, they can be outside of the jurisdiction.
k. EIRs should be up to 150 pages long, 300 pages are allowed for very
complicated projects. Many EIRs exceed 300 pages.
I. Required "Findings" add considerably to the length of the EIR documents.
Sometimes these are very long, complicated, and very expensive. "Findings"
are often much too long.
in. Judicial review requires the exhaustion of remedies which is required to
elevate the level of consideration of EIRs - very cumbersome. If an
inconsistency is found in the process, it may require starting the EIR process
over again. It is an "all or nothing" process. We should be able to fix minor
problems in EIRs without going through the whole process again.
n. Payment of all attorney fees may be required even if only ten percent of the
case is won.
o. The Permit Streamlining Act should be applied to Legislative Acts.
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3. Mark Armstrong, Attorney with Gagen, McCoy, McMahon and Armstrong
The legislative and judicial perspectives were provided by Mark Armstrong and
Patricia Curtin. Ms.Curtin identified the legal principle and Mr.Armstrong provided
the implication. The main points were:
a. CEQA decisions are -usually made by judges and not by CEQA practitioners.
b. Realistic assessment of significance is needed to eliminate unnecessary EIRs
due to controversy.
C. Significant impacts are not always objective, when in doubt, determine
significance. There should be a fair argument made that a significant impact
may occur.
d. Finite initial descriptions of projects are inconsistent with final projects.
e. Questions why an EIR must be recirculated due to a minor change. The
development may not change or be changed due to this. No opportunity for
minor correction - "all or nothing" process.
L If a project has one significant impact, should a total EIR be required rather
than focus on what is significant?
9. You cannot include alternatives after the adoption of an EIR easily, even if
it is an improvement over previous proposal.
h. Voluminous documents created resulting from statutory purpose.
i. Project development dynamic process tied to fixed point EIR.
j. There needs to be a better understanding of cumulative impact with a legally
adequate definition. When it comes to mitigation measures, the final court
can be over estimated or highly speculative.
k. Standards of review for overriding consideration must now be based on
substantial evidence.
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QUESTIONS/COMMENTS FOR PANEL 2:
Question to Curtin:
In your opinion, when should an alternative site be analyzed? Does this apply to infill
projects when a development plan is consistent with local plans and policies?
Response:
Every project should include alternatives and all alternatives should be identified.
Question to Curtin/Armstrong:
How can you reconcile the near-perfection of EIRs and findings with permit streamlining
requirement?
Response:
Very difficult - permit streamlining is limited to non-legislative acts.
Question to Curtin/Armstrong:
What about the statement of overriding considerations?
Response:
New requirements for substantial evidence will complicate matters.
Question to All:
What types of legislation, if any, should require an EIR? Example: If a community wants
to adopt an ordinance to require owners of unreinforced masonry buildings to seismically
strengthen them, is an EIR required?
Response:
Look at exemptions.
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Question to All:
Does Sacramento 'old town" criteria and mitigation listing standard only apply where, as
there, an EIR is prepared, or do you think it would have been sufficient under the
Sundstrom (neg dec) facts?
No Response.
Question to All:
Does CEQA encourage comprehensive long range planning, "big projects", or by implication
not to reveal the "big bang", foster piecemeal land plan solutions?
Response:
Longer range projects have less CEQA emphasis.
Comment:
Without the Golden Gate Bridge there would be no people in Marin County to oppose it.
However, there probably would be farmers, etc. who wanted access to the Sala Francisco market
and enhancement of their land values via circulation improvements. The Golden Gate Bridge
made Marisa what it is today.
VAAg
ceyasumm 11
(5/20/93)
Session 3 - What do we want CEQA to be? Distillation of Positive and Negative
Moderator.• Jim Cutler, Principal Planner, CCC Community Development Department
Mr. Cutler recounted his first experiences with EIRs.
1. Linda Best, Partner with Hasseltine-Best
Ms.Best identified general concerns from the development community with particular
emphasis on costs associated with the CEQA process. Ms. Best made the following
points:
a.. EIRs have become lengthy and cumbersome.
b. CEQA has become a vehicle for special interest (NIMBY) to stop
projects with no concern for environment.
C. EIR minimum cost appears to be $30,000. Costs for larger projects in
the hundreds of thousands of dollars, much of which is spent on boiler
plate.
d. Public agencies err on side of requiring EIR and the applicant is forced
to agree or run the risk of delay
e. For projects with controversy, there is lots of pressure from opponents to
require an EIR.
f. Often, project opponents will systematically flood County with letters
requiring further work to delay the process. Every comment must
receive response regardless of how frivolous or off the issue at hand.
g. Raising question about recirculation of new information has become a
standard act in the process.
h. Attorneys have become involved to bullet-proof review of documents
due to potential for litigation. There should be accountability in the
event of spurious lawsuits.
i. The award of attorney fees raises cost of projects and encourages
lawsuits.
VA:dg
cegasumm 12
(5/20/93)
j. Public-interest lawsuits against major public projects is unreasonable.
Example: Sierra Club sue on 1-80 project at last minute after being
involved in planning process - cost to Caltrans $3 million and possibly
hundreds of millions in improvement costs if deadlines are not met.
k. Potential cost of funding for project becomes the critical target of
opponents who delay and other measures to increase cost.
1. Industry is unable to provide affordable housing because (1) length of
process adds 1-2%/month carrying impacts, (2) mitigation measures to
satisfy opponents overkill actual effect,limiting affordable housing, and
(3) mitigation fees do not consider cost benefit.
M. There is a need to balance environmental impacts against social needs.
n. Greenbelt Alliance suit on Transportation Authority increases cost to
taxpayers.
0. Reforms seeking balance are needed to overcome abuses and protect original
intent of statute.
2. Ellison Folk of the firm Shute, Mihaly and Weinberger.
Ms. Folk related the benefits of the CEQA process and the ways in which CEQA can
be reformed to its original intent. Ms. Folk made the following points:
a. CEQA statue is blamed for problems of environmental regulation or
project process not connected with CEQA. CEQA requires disclosure
of information.
b. 1% of project EIRs are actually thrown out by courts in a survey by
ABAG.
C. Shute, Mihaly and Weinberger are very selective in choice of cases.
d. CEQA is not responsible for stopping project - project opponents are.
e. Public access to information and public agency accountability are key benefits.
L There are better projects because of CEQA due to review analysis and
mitigation in public review. Success includes more environmentally
improved projects.
VA:dg
ceqasumm 13
(5(20193)
g. Current proposals on table intend to destroy CEQA, such as curtailed
access to courts. When suits are not brought, project is not improved.
In some cases, improved information from CEQA process has reduced
cost of projects.
h. Legislative actions may remove incentives to do EIRs.
i. CEQA litigation does improve projects.
j. CEQA fosters trust in the development process.
k. CEQA provides mechanism for comprehensive review - include all
level of entitlement.
1. CEQA abuse exaggerated - the process is used by everyone.
M. Doesn't like neighborhoods opposing housing projects using CEQA.
3. Marta Self, Partner, McGill-Martin-Self.
Ms. Self discussed unintended results of the CEQA process. She indicated that the
process has changed approval to projects and created two personality types: (1)
developers who are CEQA-phobic, afraid of the process due to time and cost, and
(2) project opponents who are CEQA-holies and look to CEQA to solve all project
issues. Ms. Self suggested that long range visions are needed for development, and
creating procedural obstructions are not a benefit to the entire community. Specific
points included:
a. Criticism of having to study alternatives on another's property.
b. Current practice precludes cost-effective, long-range infrastructure planning
due to growth inducement.
C. In a development, the. first step is to establish physical constraints then
standards then conditions. Inconsistencies emerge and there is no clear
process for resolution.
d. Process needs to be more user-friendly.
e. Opposition wishes to preserve status quo. By increasing time and expense the
project is made less feasible.
L Process should include arbitration time limits and better balance of issues.
VA:dg
cegasumm Iq
(5/20/93)
9- Words such as "adequate", "project", and "significant", need to be defined.
4. Daniel Cardozo, Attorney with Adams & Broadwell
Mr. Cardozo focused on labor participation in the process. Mr. Cardozo, had the
following comments:
a. Importance of public participation - critical component, central aspect,
leads to democratic decision making, public comments and agencies
response - citizens can make important contribution.
b. Public involvement improves quality of decision making.
C. Evolution of construction trade involvement - historically involved,
developers import work crews to cut costs, economic/employment
benefits in EIR not realized, exacerbated unemployment, economic
burden on local communities - no economic benefit - create burden.
d. Employment ramifications of project are relevant and should be
discussed. Feels effect of imported workers should be studied.
e. Legislative acts should include economic implication.
f. Not surprising that developers who want to cut corners on labor are willing to
cut environmental corners.
9. CEQA should comment on workers' safety issues. Example: soil
contamination.
h. Construction workers have a direct effect on the economic and
environmental side of a development.
i. Feels special interest participation contribute positively to planning
decision. In USS POSCO, they challenged the rule of an arbitrary
threshold at and a new rule was drafted defining ministerial projects.
j. More people of interest who participate, increases public disclosure
and agency accountability.
1. Reform is intended to gut CEQA.
VA:dg
cegasumm 15
(5/20/93)
in. The fact that construction trades may have interest in outcome does not limit
the value of their comment. Wide variety of interest and motivation. It is
naive to assume this is not done elsewhere. EBMUD and EBRPD comment
on issues beyond their scope of expertise.
n. CEQA is an interactive process, requires response to comments, and reasons
for rejection. Quality is improved by sharing expertise, disclosing analysis,
considering counter-proposals - all fostering informed self-government.
QUESTIONS/COMMENTS FOR PANEL 3:
Question to Best:
Could you please address Ellison Folk's assertion that only 1% of EIRs are challenged. Is
1% too much? Can you weigh the costs of the I-80 delay against this figure?
No Response.
Question to Folk:
Your statement that only 1% of projects are challenged under CEQA is typical of the way
environmentalists use statistics. Several questions come to mind. (1) The 1% figure gives
no feel of the economic impact of the total dollar cost of all construction projects. What
percent are challenged? (2) Of the other 99%, what percent are categorically or statutorily
exempt, and should not have been included in the number of projects used to compute the
1%?
Response:
Hard to win a CEQA case - most potential cases are not challenged due to cost.
Question to Folk:
The reason developers develop is to fill a need. The growth is induced by the population
growth (explosion), not the developers. What can planners and environmentalists do
together to control population growth?
No Response.
VA:dg
ccgasumm 16
(5/20/93)
Question to Folk:
Since you are not in favor of CEQA reform, do you believe that the excessive cost of
completing EIRs and three years or more to process a project, is justified?
No Response.
Question to Folk:
If, in fact, natural systems are limited, how do you propose to handle the continuing
population growth in California?
No Response.
Question to Cardozo:
If construction workers have a direct and profound interest in both sides of the process, why
dow the interest in the environmental issues disappear once a union contract is signed?
Response:
Once issues raised, they remain.
Question to Cardozo:
Pipe trades union has always dropped CEQA challenges when developer has agreed to use
them. If they are concerned with environmental impacts, why don't they continue to pursue
defective EIRs even after they have received the work ont he project? Provide examples
of work where this is not the case, i.e. have they pursued any EIRs after trades got the
work?
No Response.
Question to Cardozo:
Can conditions be placed on project approval that construction workers be from the local
work force? Are these conditions enforceable?
No Response.
VA:dg
ccqwumm 17
(5120/93)
Question to Cardozo:
If the pipe trades recognize the era of "limited growth', are they asking their members to
quit having children?
No Response.
Question to Cardozo:
Are,you aware of any project in California where a union submitted environmental or
CEQA criticism of a project with an existing union agreement?
No Response.
Question to Cardozo:
Doesn't the "process", including CEQA, take so much out of projects that builders are less
able to afford union labor?
No Response.
Question to Cardozo: '
Can you explain how the pipe trades used CEQA to scare Benjamin Moore Paints from
placing a new plant in Dixon?
No Response.
Question to Cardozo:
You use the term "construction worker" to describe your client. Who exactly is your client?
Is it organized labor?
No Response.
Question to All:
Should special interest groups be allowed to comment on issues that are not in their
expertise? And be allowed to use CEQA as a means to achieve their goals which are not
environmentally related?
Response: Public participation is good.
VAAg
cegasumm ig
(5/20/93)
Question to All:
Why not extend the planning horizons of general plans to fifty-plus years to match the
longevity of major infrastructure, such as sewer pipes?
No Response.
VA;dg
ceqasumm 19
(5/20/93)
Session 4 - Potential Changes
Moderator. Harvey Bragdon, Director CCC Community Development Department
There are many potential changes in CEQA. This session was divided into two parts. The
first part was a presentation by Michael Zischke of the firm McCutchen, Doyle, Brown, &
Enersen. The second part included members of the audience who wished to speak.
1. Michael Zischke - McCutchen, Doyle, Brown, & Enersen
Mr. Zischke provided an overview of current proposals for CEQA change before the
Legislature. He made the following points:
a. CEQA reform is being driven by the high cost and extensive time
involved with the present system. Often the analysis of issues is not
related to the decision. It seems meaningless to look at the potential
for the same project on the other side of town - decision makers are
looking at the appropriateness of this project on this site. Most
significant projects include litigation. There seems to be over
processing of non-significant impacts. CEQA leads to an over cautious
approach. CEQA, in always saying that a questionable impact is
significant, hides real significant impacts. CEQA raises important
issues too late in the process.
b. CEQA reform should be directed at more bang for the buck. The process
needs major changes. The Uberruth Commission Report, Califoniia
Competitiveness and Worker's Compensation, were sited.
C. Cost versus benefit is fuzzy. Consider putting economics in the CEQA
process. What is the benefit of mitigation?
d. It appears that CEQA processing is taking the guts out of the Act.
e. CEQA reform should include ABAG, California Building Industry, California
planning groups, and others.
f. The Governor's Strategic Growth Plan should include front loading CEQA,
reducing redundant review and reanalyzing thresholds - possibly have local
agencies control some of the threshold determinations.
g. The State legislature recognizes the problems associated with CEQA and
sometimes grants exception from the CEQA requirements.
VA:dg
ccgasumm 20
(5/20/93)
h. We are spending time on analysis that does not relate to project before
hearing body. Project alternatives are meaningless.
i. There is significant litigation paranoia., Significant-projects tend to get
lawsuits, particularly in the Bay Area. Developers are over cautious,
over process because litigation may be raised. This caution causes
EIR's to say things are significant even though they may not.be. This
loses distinction between truly significant and significant to be cautious.
j. CEQA has become a polarizing process. Things come up late in
process, issues should come up early. There should be an effort to
resolve them and protect public agency from suit.
The Legislature wants CEQA reform this year, but they will be moderate.
The public will not be shut out and broad-scale reform is not on the table.
Two points appear to be emerging: (1) Frontload process into planning,
separate analysis from process, and (2) Economics of mitigation should.have
reasonable relationship to project requirements.
In addition, the following proposals may emerge:
a. Tightening up the definition of a "project" to keep within environmental
grounds, increasing lawsuits on non-environmental issues.
b. Consider allowing more exemptions for projects with that have
environmental review at another level.
C. Don't allow addition of another layer of Federal programs.
d. Delete redundant review. Adopt the Bay Area Air Quality Plan
and show consistency with that Plan. Develop a multi-species
habitat plan and show consistency with that plan. No need for
new review.
e. Limit alternative analysis under specific and general plans if consistent with
plan, alternatives can be limited.
f. Strengthen the CEQA timeline.
9. Don't allow attorney fees for an appeal not related to the environment.
VA:dg
ceqasumm 21
(5/20/93)
h. Scoping. Expand public hearing process. However, set the
hearing and noticing, if not appealed during scoping, should not
be raised later.
i. Update CEQA guidelines, they are out-of-date. Avoid the court
second guessing.
j: Developers' involvement in consultant preparation of EIRs should be
reanalyzed.
k. Consider changing terms in CEQA. Negative declaration should be changed
to "no impact finding."
1. Cities and counties should be considered in streamlining of CEQA system.
Process is overtaking substance. County should determine thresholds of
significance.
A good example of the process working has been in Stanislaus County. Sand/gravel
mining - funded master environmental assessment - serve as basis for neg dec and
EIRs. The environmental community is concerned about using developer consultants.
Consultants should be independent.
2. Comments from the Floor
a. Brian Donohoe, County Bar Association
Need to solicit comments from judiciary and work with environmental law
section to do so.
b. Tom Koch, Shapell
The cumulative impacts of EIRs should be changed to be more reasonable.
People should indicate their interest.
C. Mike Henn, Assistant Planning Director-City of Lafayette
Wants standards for "environmental good". Is low density good? Only so far.
Is more parking good?
VA:dg
cegasumm 22
(5/20/93)
d. Guy Bjerke, BIA
Balance environmental and economic needs. The balance was lost in the 80's.
Housing is over-regulated. Housing can't afford-time.and fees. New County
regulations: wetlands, inclusionary zoning are driving up housing cost. Re-
establish certainty in the process.
e. Darryl Foreman, Windemere
Who is in control of local regulations? We have arbitrary political boundaries.
With a potential for 16,000 more units in East County and only the 11,000
units anticipated in the Dougherty Valley, we are getting too much flack with
Dougherty Valley for good planning. Financial accountability is necessary.
We need to hold the accountability. We need good fiscal analysis and social
planning.
L Russell Levine, CCCSD
We should apply standard conditions of approval prior.to the initial study.
This may premitigate many construction, traffic, erosion control impacts. No
comments should be allowed on the summary, only the text. Growth
inducement and infrastructure agencies should comment on general plan
documents. The horizon planning period considered in EIRs should be
extended to-allow for long-range planning to allow for infrastructure planning.
9. Michael Zischke - McCutchen, Doyle, Brown, & Enersen
CEQA should differentiate between infill projects and projects outside the
Urban Limit Line.
VAAS
ccqasumm 23
(5/20/93)
4-
WORK GROUP SESSION SUGGESTIONS
ENGINEERS' GROUP
Define infill projects for purposes of exempting from CEQA- limit judicial process to make
it easier to obtain neg dec
document unusual circumstances
set standards - criteria to apply to all projects
Infill - inside ULL
- decrease ULL to focus around cities
- test for meeting thresholds
- demonstrate compliance with thresholds and move on
Reform because of expense of litigation - suits brought for purpose of settlement
- mediation of suits through arbitration be allowed
- specialize courts/judges - eliminate inconsistency
- front loading of CEQA process, expanded noticing, public hearings
Land designation 20-50 years - hard to predict social and economic needs
The court retain jurisdiction over the environmental documentation - orders errors.to be
used and bring back to court with corrections.
Prevents unnecessary delay and voiding of entire document.
Ag
ccqawkgp.no(
LAWYERS' SUGGESTED CEQA REFORM
If a court determines that an EIR and/or project findings, etc., are inadequate, then the
trial court retain jurisdiction over the project. The project shall be referred back to the
public agency for a streamlined process to correct the deficiency. Then the trial court
determine whether the EIR, project findings, etc.,a re adequate.
Result: avoids cost and delay of starting at ground zero, discourages litigation that is
prompted by desire to create substantial delay.
:pis
cegawkgp.not 2
AFFORDABLE HOUSING CONGREGATION
The term "affordable housing" is relative to the proposed location.
The cost of CEQA compliance affects "affordable housing" disproportionately.
Streamlining, while maintaining the goal of environmental protection, will therefore benefit
lower cost housing tremendously.
The point of streamlining CEQA will be lost if any level of government simply creates new
mandates or regulations.
What impact on housing production would the exemption of low- and very-low income
housing projects from CEQA have?
:dg
ceqawkgp.not. 3
ENVIRONMENTAL PLANNERS' GROUP
1. The public is largely uniformed on the CEQA process, especially that the level of
detail needed for an EIR may not require engineering detail required later in the
planning process. This level of detail should be described to the public prior to
all CEQA hearings.
2. There should be a limitation on when opponents can send letters commenting on
EIR adequacy. There is usually a time gap between accepting an EIR and voting
on the merits of the project. Renewed challenges in this timeline are often a
delaying tactic not of CEQA importance.
3. Master Environmental Assessments (MEA) could be more fully utilized if they could
be regularly funded and kept up to date. On the fringe of cities, the city and
county should work cooperatively to develop and jointly use these MEAs.
4. The group does not support 50 year general plans as suggested by another
speaker.
5. Where both CEPA and NEPA are in one document and federal and state
regulators disagree, there should be a procedure where one agency's comments
take precedent over the other. Where regulatory agencies disagree, paralysis of
the process can occur.
6. It would hep for legislation or CEQA guideline revisions to standardize how EIRs
are prepared, the level of detail, and the depth of analysis.
7. What is considered significant is not defined adequately in the guidelines.
8. There may be a conflict of interest of an agency doing an EIR on their own
projecting, i.e., a sewer agency doing a plant expansion EIR. A state agency
could be lead agency in this circumstance and prepare the EIR.
9. Drop interpretive words in CEQA like "substantial' or "significant" and go toward
more technical standard.
10. IF CEQA is to be a citizen involvement process, then the legislature needs to direct
the courts to allow agencies to agree with citizen comments on documents without
requiring recirculation of an EIR. This might lead to more honest final EIR.
Specific tests for recirculation need to be placed into the law or guidelines, and not
be based on minor corrections or minor oversight of issues which could be argued
as significant.
Ag
ccgawkgp.not 4
ATTACHMENT C
a . b
� Contra Costa County
� Workshop
� February 14, 1993
Tot BOARD OF SUPERVISORS
FRO Contra
Supervisor Supervisor Tom Torlakson Costa
October 6, 1992 Cour
SUBJECT( AUTHORIZE COUNTY >F OMKOP ON CEQA REFORM
SPECIFIC REQUESTtS)OR RECOMMENDATION(S)A BACKGROUND AND JUSTIFICATION-
RECOM ENDED ACTION:
(1) Authorize a set of workshops on CEQA (California
Environmental Quality Act) reform to be held in late January or early
February and invite the participation of builders, environmental
groups, public works engineers and planners, planning commissioners,
attorneys with expertise in CEQA, and other interested persons. The
Fiscal Unity Committee should also be invited to comment and advise on
the workshop format and actively participate on this issue.
(2) Refer to the Economic Development Committee and the
Transportation Committee to pursue CEQA reform and develop a set of
workshops that would identify specific areas of CEQA reform and
generate recommendations and develop a formal request for reform to
' our State legislative delegation and the Governor.
(2) Direct the County Administrator to coordinate efforts
by the Community Development Department and the Public Works
Department to work with the above board committees in planning a
set of workshops on CEQA reform.
MCKGROUND INFORMATION: Pursuant to discussions last year
in the Transportation Committee, the Community Development Department
and Public Works staffs have conducted an analysis of CEQA reform.
Supervisor Schroder and I feel very strongly that CEQA, in
its current application, has gotten away from its original purpose and
has been constantly abused. The vagueness of CEQA leaves the process
so open-ended that business cannot predict when it will get en answer
from the policy bodies or how long it will take to work through the
legal system in response to predictable lawsuits.
' Growth Management and Economic Development Director Val
Alexeeff is preparing an outline for these workshops. These workshops
should provide dialogue on the areas that need reform between experts.
in the field. These workshops will provide a framework for
' development a specific request to the State Legislature detailing how
and where the reforms should occur.
CONTINUED ON ATTACHMENTI YES SIONATUREI //7LCNI.GIYI'�
' RECOMMENDATION OF COUNTY ADM.NISTRATOR RECOMMENDATION OF 50A1to COMMITTEE
APPROVE ...oma OTHER
SIGNATUREtS)
ACTION OF BOARD ON October 6. 1992 APPROVED AS RECOMMENDiD_L. OTHER
VOTE OF SUPERVISORS
UNANIMOUS (ABSENT - I 1 HEREBY CERTIFY THAT THIS IS A TRUE
AYESI NOES( AND.CORRECT COPY OF AN ACTION TAKEN
ASSENT) ABSTAIN: AND ENTERED ON THE MINUTES OF THE BOARD
OF SUPERVISORS ON THE DATE SHOWN.
Community Devel. Dept.
CCI Economic Devel. .Cte. ATTESTED October 6. 1992
County Adninis trator Phll Batchelor,Clerk of the Beard of '
Public Works Director SGpBrYliOrSAridCOiltllyAdlAllralDf
n9Pulry
CEQA Reform
October 6# 1992
These workshops should include participation by engineers
and public works administrators that have had to deal with CEQA in
implementing transportation and transit and other infrastructure, home
builders, environmental groups and lawyers that have been on all side
of the CEQA debate.
The Association of Bay Area Governments, through its
-
Legislative Committee, has placed CEQA refoxt at the top of its
1992-93 legislative agenda along with other measures to foster
economic development.
Our Contra Costa County for= on this subject should serve
as a springboard for Say Area and Statewide action. I believe the
voice of local government needs to be heard clearly and forcefully on
this matter. We can network not only with ABAG, but with MTC, CSAC,
the Mayors Conference and the League of California Cities to effect
the changes we know is desperately needed.
TT,:gro
1
CEOA ISSUES
AS DETERMINED BY THE CCAPA/AEP CEQA WORKING GROUP
OCTOBER 1992
1
A. PURPOSES OF CEOA
' 1. PRIME OBJECTIVES - DOES WORKING GROUP AGREE WITH CEOA
OBJECTIVES?
2. IS CEOA ONLY WAY OBJECTIVES CAN BE MET
3. USE OF LESS CUMBERSOME PROCEDURE FOR SOME ISSUES
' 4. FOCUS ON SITE SPECIFIC ISSUES VS/AND/OR MASTER OR
LEVEL/COMPREHENSIVE GENERAL PLAN
B. CEQA PROCESS
1. TIME LIMITS
' 2. CEQA GUIDELINES REVISION
3. DEFINITION OF "PROJECT"
4. CATEGORICAL EXEMPTIONS
5. THRESHOLD DECISION
' 6. DEVELOPER INVOLVEMENT IN OR PREPARATION
7. PROJECT-LEVEL REVIEW IN GENERAL
8. PROJECT-LEVEL REVIEW AND GROWTH MANAGEMENT LEGISLATION
1 9. PRE-APPLICATION CONSTRAINTS ANALYSIS
10. SUPPLEMENTAL ENVIRONMENTAL DOCUMENTS
11. QUANTIFYING OVERRIDING CONCERNS
' 12. NEG DEC PROCESS
13. INITIAL STUDY PROCESS
14. ROLE OF OPR/STATE ADMINISTRATION OF CEQA
15. SPONSORING LEAD AGENCY - CONFLICTS
16. ROLE, AUTHORITY, INFLUENCE OF RESPONSIBLE
AGENCIES/AUTOMATIC LITIGATION
17. IMPLEMENTATION FINDINGS PROCESS
18. PUBLIC PROCESS/INVOLVEMENT/SCOPING/CONSTRUCTIVE
INTERACTION/PUBLIC REVIEW/NOP
C. CONTENT OF ENVIRONMENTAL DOCUMENTS
1. ALTERNATIVES
2. SOCIOECONOMIC IMPACT ANALYSIS
' 3. LIMITS ON MITIGATION
4. MITIGATION MONITORING
5. GROWTH INDUCEMENT
' 6. CUMULATIVE IMPACT ANALYSIS
7. PAGE LIMITS AND FOCUS/BLOAT
8. MANDATORY SECTIONS (LONG-TERM VS SHORT TERM)
9. THRESHOLDS OF SIGNIFICANCE
' 10. PURPOSE & NEED
11. WRITING STYLE OF EIRS (OR SPEAK)
r
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r -
. r
r
D. CEOA LITIGATION
1. STANDING
2. SUBSTANTIAL COMPLIANCE
3. SANCTIONS
4. JUDICIAL REVIEW OF PROJECT-LEVEL ENVIRONMENTAL.DOCUMENTS
5, ALTERNATIVE DISPUTE RESOLUTION
6. CEOA CASE PREFERENCE
7. PERCEPTIONS OF LITIGATION ,
8. STANDARD OF REVIEW FOR EXEMPTIONS
9. BONDING
10. REVIEW OF ALTERNATIVES/STATUTES OF LIMITATION
11. ADMINISTRATIVE LAND USE COURT
12. ATTORNEY FEES
r
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r
Appendix VII -CEQA Guidelines and Discussions 593
Appendix A
' CEQ A PROCESS FLOW CHART
iPublic Agency determines whether
ti e ac;vity is a'projecr __Not a project
Project
Pro%ect is ministerial
Public Agency determines if No possible significant effect
the project is exempt Statutory exemption
' Categorical exemption
Not Exempt
Public agency evaluates project
to determine R there is a possibility
that the project may have a
significant effect on environment
Possible significant effect
Determination of lead agency where Notice of Exemption No further action required
]
more than one public agency is may be Tiled under CEGA
involved
RESPONSIBLE AGENCY LEAD AGENCY
Lead agency prepares initial study
Respond to informal Consultation
consultation
Lead agency decision to prepare.
EIR or Negative Declaration
EIR Negative Declaration
Lead agency sends Notice of Preparation
to responsible agency
Respond to Notice of Preparation Consultation
as to contents of draft EIR ]�
Lead agency prepares draft EIR
Lead agency files Notice of Completion Lead Agency gives public
and gives public notice of notice of availability
Comments on adequacy availability of draft EIR of Negative Declaration
of draft EIR or Consultation Public Review Period Public Review Period
Negative Declaration
Lead agency prepares final EIR
including responses to comments
on draft EIR
Decision-making body considers Consideration and approval
final EIR or Negative Declaration Consideration and approval of of Negative Declaration
prepared by lead agency final EIR by decision-making body by decision-making body
Findings on feasibility of reducing Findings on feasibility of reducing
' or avoiding significant or avoiding significant environmental
environmental effects effects
Decision on permit Decision on project
' State Agencies Local Agencies State Agencies Local Agencies
File Notice of Fite Notice of File Notice of File Notice of
Determination Determination
Determination Determination
with Office of with Office of
with County with Counly
Planning 8 Clerk Planning 8 Clerk
Research Research
NOTE: This flow chart is intended to illustrate the EIR process contemplated by these Guidelines.
In case of discrepancies,the language in the Guidelines takes precedence.
Appendix VII -CEQA Guidelines and Discussions 603
Appendix G
SIGNIFICANT EFFECTS ,
A project will normally have a significant effect on the environment if it will:
(a) Conflict with adopted environmental plans and goals of the community where it is located;
(b) Have a substantial,demonstrable negative aesthetic effect;
(c) Substantially affect a rare or endangered species of animal or plant or the habitat of the species; ,
(d) Interfere substantially with the movement of any resident or migratory fish or wildlife species;
(e) Breach published national,state,or local standards relating to solid waste or litter control;
(f) Substantially degrade water quality;
(g) Contaminate a public water supply;
(h) Substantially degrade or deplete ground water resources;
(i) Interfere substantially with ground water recharge;
0) Disrupt or adversely affect a prehistoric or historic archaeological site or a property of historic or cultural
significance to a community or ethnic or social group;or a paleontological site except as a part of a scientific
study;
(k) Induce substantial growth or concentration of population;
(1) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the
street system; ,
(m) Displace a large number of people;
(n) Encourage activities which result in the use of large amounts of fuel,water,or energy;
(o) Use fuel,water,or energy in a wasteful manner; '
(p) Increase substantially the ambient noise levels for adjoining areas;
(q) Cause substantial flooding,erosion or siltation;
(r) Expose people or structures to major geologic hazards; ,
(s) Extend a sewer trunk line with capacity to serve new development;
(t) Substantially diminish habitat for fish,wildlife or plants;
(u) Disrupt or divide the physical arrangement of an established community; '
(v) Create a potential public health hazard or involve the use,production or disposal of materials which pose a
hazard to people or animal or plant populations in the area affected;
(w) Conflict with established recreational,educational,religious or scientific uses of the area; '
(x) Violate any ambient air quality standard,contribute substantially to an existing or projected air quality
violation,or expose sensitive receptors to substantial pollutant concentrations;
(y) Convert prime agricultural land to non-agricultural use or impair the agricultural productivity of prime '
agricultural land;
(z) Interfere with emergency response plans or emergency evacuation plans.
1
Feb 12 1993 03:56PM FROM TO 99755390 P.02
a
Modifications to the
California Environmental Quality Act
r
A Proposal by the
Regional Planning Committee's
Subcommittee on Modifying CEQA
Subcommittee Members
wil liam].Carroll,Supervisor,County of Solano,Chair
Jnhn C.Dustin.BCDC,Vire Chair
Kenneth R.Mercer,Former Mayor,City of Pleasanton,Vier Chair
' Edith Adam#,General Counsel,Latino Issues Forum
Robert H.Bury,Former Vice.Mayor,City of Redwood City
Ann Draper,Community Development Director,City of Fremont
' Stana Hearne,League of Women Voters•Bay Area
Warren Hopkins,Former Councilmemb+er,City of Rohnert Nark
Steven A.Roberti,Executive Secretary/Treasurer,COLAB
William H.Steele,Chevron USA,Inc.,ABAG Corporate Associates
Association of Bay Area Governments
January 1993
Feb 12,1993 03:56Pm FROM. TO 99755390 P.03
ABAG's PR0110cm.) CEQA MODIFICATIONS
THE SrruATION
Local government officials increasingly are adding their voices to those already
calling for the California Environmental Quality Act(CEQA) and Guidelines to
be amended and streamlined. These officials believe that the problem is not the
intent of the Act but its administration. Too often the concept of helping elected
decision-makers and the public evaluate how a proposed project will affect the
environment is being lost in a morass of paper and procedural issues. Both the
lack of specificity in certain sections of the Act and the Guidelines as well as
increasingly conflicting case law have created a situation where the purpose of
CEQA is sometimes obfuscated.
In its capacity as the representative of over 100 cities and counties in the San
Francisco Bay Area, the Association of Bay Area Governments (ABAG) has been
trying for the last two years to determine how well CEQA is achieving its objec-
tives and how it might be amended to better achieve them. Two surveys have
been conducted, a conference has been held, and a subcommittee. of ABAG's
Regional Planning Committee has been investigating how CEQA should be modi-
fied. Throughout that process local government interest and participation has
been extremely high.
A number of proposals have been considered. Most were proposed and develss
oped by parties close to the difficulties which need to be rectified. We gratefully
thank those who contributed their ideas.*
The ideas which follow are proposed because ABAG bclicvcs they will improve
the CEQA process while assisting local governments in their capacity as lead
aeencies.
• ABACI staff 1"ClUbW would liallicularly like is.slissitk.
h4ichoel Zischke.McCutchen.Ntyk.Brown.A Enerson Robin Myren,McInerney y&Dillon
Tim lWdad,Masi*Cminly plaaning Deparigilgsl Barhara Katity-City of San Matto Comm.Dev.Dir.
Bruce Jensen and Gerry Wallace.Alameda County Plunniur L)rlv. (ka Itudi,League of Women Voters
Zack Cowan,.Greenbelt Alliance Barbara Salzman.Audobon Society
January 6, 1993
Page 2
Feb 12,1993 03:57PM FROM TO 99755390 P.04
ABAC#S PROPORPT) CEQA MODIFICATIONS
THE SPECIFIC PROPOSALS
REDUCE REDUNDANT OR UNNEMSSARY I)OCUMENTATION
Regularly review allowable project exemptions for additions and deletions
Analyze, cumulative and growth-inducing impacts only in plan-level Elks
Encourage adoption of a comprehensive mitigation package with all new
general or specific plans
Permit lead agencies more latitude in setting standards or thresholds
for CEQA implementation
Limit EIRs to environmental analysis
SPECIFY CEQA LITIGATION PROCEDURES
Clarify standard of review
Create land use and environmental review court
Specify status of CEQA guidelines
Provide limited Sanctions for abusive CEQA lawsuits
• CLARIFY THF MEANING OF CFRTAIN PROVISIONS
Tighten definition of"project"
Specify extent of off-site alternative analysis
Document reasons for invoking overriding concerns
Specify how project EIRs should be used for approving subsequent projects
Create standards for compliance on issues such as alternatives or recirculation
January 6,1993
Page 3
Feb 12.1993 .03:57PM FROM TO 99755390 P,05
ABAG's PtanposcD CEQA MODIFICATIONS ,
1
• REDUCE REDUNDANT OR UNNECFSSARY REVIEW
Regularly review allowable project exemptions for additions and deletions ,
Some types of projects are now identified as "categorically" or statutorily exempt ,
from C_EQA : The list of categorically exempted projects should be reevaluated
on a regular schedule to add and/or delete types of projects. Although the Guide-
lines allow for public agencies to request changes by petitioning the Office of '
Planning and Research (OPR), it is appropriate to review the entire list every few
years. This periodic review should allow for public notice and comment as well ,
as public agency input. Criteria should be established for the evaluation process.
Analyze cumulative and growth-inducing impacts only in plan-level EIRs
Understanding the cumulative and growth-inducing impacts of a specific proposal
is crucial.- However, as demonstrated in many EIRs, these two analyses are fre-
quently repetitive because they are based on a larger area such as an air basin or a
city rather than the immediate vicinity of the proposed project. Therefore, lead '
agencies such as cities and counties Should be required to do these repetitive
evaluations only during consideration of the Genetal Plan or specific plans. ,
For projects consistent with valid and up-to-date local plans which have adequate
EIRs, lead agencies should be permitted to incorporate by reference the analysis
of cumulativc and growth-inducing impacts which has been completed for the
environmental documents of those plans. To qualify for this approach, the EIR '
for a general or specific plan should be no more than 5 years old and specific
enough to ensure that cumulative and growth-inducing impacts are adequately
analyzed. This approach should be specifically permitted by CE.QA, rather than
"possibly allowable" tinder the incorporation-by-reference provision. ,
January 6. 1993
Page 4 '
Feb 12,1993 03:58PM FROM TO 99755390 P.06
' ABAG's paor«SFn CEQA MODIFICATIONS
A determination that a proiect is consistent with applicable plans would need to
be subject to public notice and comment. In addition, when a project has impacts
that extend beyond the lead agency's geographical planning boundary cumulative
and growth-inducing impacts could be eliminated from an EIR only under the
following instances: 1) when the plan EIR included an analysis of impacts outside
' the planning boundary, or 2) an existing EIR prepared for the area outside the
planning boundary analyzed the impacts.
' Encourage adoption of a comprehensive mitigation package with all new general
or specific plans
' As a means of streamlining CEQA for specific projects, permit and encourage
public agencies, when functioning as lead agencies, to adopt mitigation standards
twhich proponents can inquire about and apply to their proposals. Responsible
agencies would be required to propose their standards within designated, reason-
able time periods following a general or specific plan's adoption. These standards
should address the impacts identified during the plan's environmental review.
This approach would encourage project applicants to submit almost fully miti-
gated project proposals and would allow the environmental analysis for the pro-
posal to focus on those impacts not already addressed. The process would create
more certainty for the applicant and more clarity for the decision-maker.
These mitigation standards should be reviewed periodically to ensure that they are
adequately.addressing impacts, and modified as soon as they are known to be
' inadequate. The process should apply to any public agency adopting a plan with
sisnificant environmental effects.
' Site-specific impacts not addressed by the mitigation standards would considered
during the proposal's CEQA review.
January 6, 1993
Page 5
Feb 12-1993 03:58PM FROM TO 99755390 P.07
ARAG's PIZO110SED CEQA MODIFICATIONS
Permit lead agencies more latitude in setting standards or thresholds for CEQA
implementation
Public agencies could better administer CEQA if they were given the authority to
designate some local environmental thresholds. Local standards must be'reason-
able and should be no lower than any applicable minimum level sot by the State.
For example, lead agencies could establish infill or public facility level-of-service
standards which they deem appToprinte for their jurisdiction. Then a project
conforming to applicable standards could qualify for a Negative Declaration
instead of an EIR, when all other impacts were, appropriately mitigated.
The authority to establish local thresholds is consistent with the land-use discre-
tion cities and counties already have. These standards or thresholds would need
to be subject to public notice and comment before being adopted into an agency's
ordinances or plans.
Limit EIRs to Environmental Analysis
EIRs often include economic and social project impact analysis which is not
required by CEQA. Including such additional information both increases the size
and cost of an EIR and expands possible grounds for legal challenges. While
such information is needed by decision-makers, it describes impacts which are
not primarily environmental. The Guidelines presently state that.social and eco-
nomic information may be presented in whatever form the agency desires. Were
CEQA to specify that such information is to be presented outside CEQA docu-
ments, EIRs could be reduced in scope and prepared more quickly. The law could
specify that a lead agency can still require that the project proponent pay for other
necessary analyses.
January 6. 19,93
Page 6
Feb 12,1993 04:03PM FROM TO 99755390 P.02
' ABAG's PKUYUSED CEQA M«viricKrIUI\5
' • SPECIFY CEQA LITIGATION PROCF.nURI?.S
' Clarify standard of review
Courts sometimes use the "fair argument" test in considering CEQA-related
litigation. While this is an appropriately cautious standard for the conversion of
raw land outside urban areas, a lesser standard should be acceptable in urban
areas already designated for development. The "substantial evidence" test is
suggested to be used within urbanized areas oi- within cities for commercial,
industrial, or residential proposals meeting certain minimum densities or building
intensities consistent with approved plans. Provided the Plans have been updated
' and are sufficiently detailed. The fair argument standard would continue in effect
for general or specific plan amendments, conversion of agriculture, rangeland, or
' other open space, or instances which involve substantial risk to public health or
safety. .
Create land use and environmental review court
ABAG agrees with the recommendation of the Ueberroth Commission.that a
specialized, state-operated land-use and environmental review court is needed in
California. The complexities of planning law, the California Environmental
Quality Act and its Guidelines would be better executed if the jurists hearing
cases involving such matters could specialize in these aspects of California law.
Since no additional caseload would be precipitated by this measure, implementa-
tion should be accomplished within the resources of the existing judicial system.
This means new fees should not be levied.
' January 6, 1993
Page 7
Feb 12.1993 04:03PM FROM TO 99755390 P.03
ABAG's PxorusL-u CEQA MODIFICATIONS ,
Specify status of CEQA guidelines
Historically, OPR has updated and clarified the Guidelines. While the Guidelines
have been treated by the courts as administrative regulations. they are not offi-
cially so designated. A statute should be adopted which instruct the courts to treat ,
the Guidelines as adminis4ative regulations and to defer to the Guidclincs when
they contain applicable information not included in the Act. This would clarify '
the authority of the Guidelines and provide more certainty and consistency to
public agencies as well as to proJect proponents and opponents. Any inconsisten-
cies between the CEQA statutes and the Guidelines should be eliminated.
Provide limited sanctions for abusive CEQA lawsuits
It is relatively easy for any party to file a CEQA claim to halt a major public
works or private project. and there is no effective sanction against abusive or ,
frivolous CEQA suits. While such suits are a small percentage of CEQA actions.
they can have a very large impact. Examples of such suits might include recent '
litigation against single family home uses and CEQA suits brought by competing
developers. While CEQA is enforced primarily through litigation, it is appropri-
ate to include a limited sanction for the clear abuses. ,
CEQA should specify that sanctions and fees can be awarded for bad-faith actions '
or tactics that are frivolous or solely intended to cause unnecessary delay. This
provision :;urrently applies to any action (including CEQA actions); but adding
this to CEQA may still be helpful when local governments are facing clearly
abusive claims.
CEQA should specify that courts should consider the merits of an action in addi-
tion to irreparable harm prior to granting an injunction or stay. CEQA should ,
specify that courts may consider a loss of revenues or possible loss of a project
also to be an irreparable harm in an appropriate situation.
January b, 1993
Page 8
Feb 1-2,194_77 04:04PM FROM TO 99755390 P.04
1
' ASAG's PROPOSED CEQA MOTHFICATIONS
r
' • CLARIFY THE MEANING OF CERTAIN PROVISIONS
' Tighten definition of"project"
Public agencies' discretionary actions should only be considered "projects" if they
cause direct physical impacts or reasonably foreseeable indirect physical impacts.
The existing definition of "project" is looser--a governmental action can be al-
leged to be a project by merely having the potential for environmental impact.
1
Specify extent of off-site ititernative analysis
r
For proposed projects consistent with approved plans and zoning, off-site alterna-
tive analysis may not be appropriate. The lead agency has already established
within its planning process that the type of use being proposed there is acceptable.
California's planning system is designed, however, to allow freedom of choice
within established planning and zoning limits. CEQA should include a statement
that off-site alternative analysis is not required when a project is consistent with
valid and up-to-date plans.
1
Document reasons for invoking overriding concerns
The Guidelines specify that a finding of overriding concerns must be based on
t information in the record. This statement is not specific enough. CEQA should
specify that a lead agency's findings on overriding concerns need to be supported
by substantial evidence in the record. This recommendation would codify the
rAppellate Court's decision in the Sierra Club vs. Contra Costa County.
r
January 6, 1993
Page 9
Feb 12- 199-7 04:04PM FROM. . TO 99755390 P.05
ADAG's PROI-C)SED CEQA MODIFICATIONS '
Specify how project EiRsshould be tcsed for approving subsequent projects ,
As CEQA now reads, lead agencies often cannot confidently determine the circu-
lation requirements which apply to an existing EIR when new information be-
comes available. Lead agencies should not be "automatically" forced to recircu-
late because of unclear criteria in the Guidelines about when to select a subse-
an addendum to an EIR. To provide more
quent EIR, a supplement to an EIR, or,
certainty, the law should clearly specify the criteria agencies should follow in
making this choice.
to
In addttlon, the law also should provide a safe harbor"bor" to cal agencies. For
example, CEQA could establish a 3-year presumption that after an EIR is certi-
fied, and only if it is not subject to pending litigation, it adequately describes a
project. Therefore, an agency can safely presume for 3 years that the original EIR
can be reused despite minor changes in the project. During the 3 years, a lead
agency would not be required to have a Supplemental EIR if the new information
and/or new circumstances are not significant. After 3 years the presumption '
would dissolve and, although the. EIR could still be used, an agency might pro-
ceed more cautiously and recirculate the document.
Create standards for compliance on issues such as alternatives analysis or
recirculation requirements
Public agencies administering CEQA want more specific instructions on how to
comply with certain provisions. Creating compliance standards would respond to '
the concerns of local planners, who often conduct CEQA review cautiously in an
attempt to protect their agency from litigation. Consequently, they frequently ,
. i
January 6, 1993
Pase 10 '
Feb 1=', 199 04:05PM FROM TO 99755390 P.06
ABAG's PROVOSED CEQA MODIFICATIONS
' choose to include more information than might be considered reasonably neces-
sary. This causes EIRs to take more time to complete, and to be more voluminous
' and complex than necessary.
Setting compliance standards would not. however, lessen a lead agency's respon-
sibility to make a good-faith effort to comply with the intent of CEQA. If stan-
dards are established for complying with CEQA, not only would lead agencies be
more certain whether they have complied with CEQA but so the courts would be
more certain as well.
An example is theappropriate number of ro'cct alternatives. Analyzing three
. Ap � Y �
alternatives besides the "no project" alternative could be the presumptive standard
to provide a safe harbor to lead agencies as long as they provide a reasonable
range of alternatives appropriate to the project. Such a standard would give more
certainty to public agencies administering CEQA. It should be noted, however,
that the provision of a safe harbor does not affect a lead agency's responsibility to
make a good-faith effort to implement the goals of CEQA when analyzing the
chosen alternatives.
Another example is the legal standard for recirculation of a final EIR. The exist-
ing standard for the need to recirculate an EIR is the presence of "significant new
' information," a term which is not defined in CEQA or the Guidelines. The estab-
lishment of a definition for "significant new information" and standards on
whether or not to recirculate would aid all parties of the CEQA process.
January 6, 1593
Page I I
TOTAL F.__-6
E
.6tate of California
+ GOVERNOR'S OFFICE OF PLANNING AND RESEARCH
1400 TENTH STREET
PETE WILSON SACRAMENTO 95814
GOVERNOR
pk�``F oF"*,*,
45
` SENATE JUDICIARY COMMITTEE
TESTIMONY ON THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
' � ,.� January 12, 1993
��OF GUFrOP+
RICHARD SYBERT
' DIRECTOR
Introduction.
' since its enactment in 1970, CEQA has been the subject of a
constant stream of controversy, litigation, and Legislative
tinkering. At 22, CEQA remains one of California's most
discussed, yet least understood laws.
It is important to distinguish between the shortcomings of
California's planning processes and the widely cited failure of
CEQA to protect the environment. The purposes of CEQA are to
inform decisionmaking and disclose the potential adverse
environmental impacts of governmental decisions. CEQA is neither
designed nor intended to substitute for sound land use and
economic planning policies. Traffic, urban sprawl, economic
disparities, loss of farmland, and other problems do not occur as
a result of CEQA. They are the result of policy choices made at
every level of government in response to both the public and the
-powerful forces of the market. CEQA should not be blamed for our
lack of a coherent growth and conservation strategy.
iAt the same time, CEQA's misuse has sometimes operated to
stymie balanced development and sensible land use decisions, and
' to remove land use decisions form elected legislative bodies,
where they belong, to the courts, where they do not. In too many
cases, CEQA has been hijacked by another acronym, NIMBY, and used
as a weapon. CEQA has also spawned a substantial and expensive
' industry in environmental consulting, without necessarily adding
to environmental protection. It can be improved.
Today, the committee poses the question: Is CEQA adequately
performing its role of protecting the environment, or does it
simply generate paperwork? More pertinent questions might be: Is
being adequate enough? And can the tidal wave of paper be
stemmed? My answer to the first question is no. California no
longer has the luxury of inefficient laws, and CEQA is presently
inefficient. My answer to the second question is yes. I believe
that to be effective CEQA must not be synonymous with paperwork.
The Role of EIRs
Many complaints about the CEQA process focus on Environmental
Impact Reports (EIRs) . Under CEQA, an EIR is required when a
project may have a significant adverse effect on the environment.
i -
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EIRs produce information. Too often, however, the information
contained in an EIR is literally discarded once its project. has
been considered. Fewer than half of our cities and counties take
advantage of existing statute which provides that when an EIR is .
prepared for a program or plan, the environmental reviews for ,
later, consistent projects are to be "tiered" upon the previous
EIR; the new document need not revisit previous analyses unless
the project is creating a new impact. Instead, agencies tend to
perform broad new environmental analyses for each project.
Focussing review reduces costs, saves time, and uses existing
information more effectively.
The fear of potential litigation encourages agencies to ,
prepare "bulletproof" EIRs which exceed the scope and level of
detail technically needed for adequacy. As a result, documents
are too complex and broad to be of practical use to
decisionmakers. Key issues and potential adverse effects are
buried under hundreds of pages of discussion. Clarifying the
standard used to determine when an environmental effect is '
"significant" (a determination of significance triggers the need
for an EIR) and strengthening use of focussed review can reduce
the opportunity for unnecessary litigation. '
Suggested Actions
There is widespread agreement that CEQA can be improved.
Following are some of the proposals that have been iterated by
various groups.
Master EIR and "frontloading" - Require that a "master EIR" be
prepared whenever a local general plan is adopted. Require that
environmental analyses for later projects consistent with the plan '
"tier" on the information and mitigations contained therein.
Where a project involves no new environmental effects, no
additional EIR would be required. Where new effects are expected,
the later environmental review would be focussed on those effects,
using the master EIR' as the starting point for analysis. This
"frontloads" much of the analysis and mitigation needed for later
projects which are consistent with the plan. The environmental
analyses will be focussed and concise. In addition, this approach
encourages .use of comprehensive programs, such as hillside
development standards, to mitigate community-wide impacts rather
than relying upon repetitive individual project measures. ,
The jurisdiction may be able to establish through the master EIR
the general scope of later review. This links the planning and .—
CEQA processes and further focuses review.
Focussed EIRs and a revised standard of review - CEQA should
specify that the standard of review for later projects under a
master EIR or program EIR will be the "substantial evidence"
standard rather than the "fairly arguable" standard currently
applicable. The substantial evidence standard is currently used
when determining whether to prepare a subsequent EIR where an
i
individual project EIR has already been prepared. It does not
require the inclusion of every fairly arguable new impact, but
only those which the agency finds are supported by substantial
evidence. This revision would allow agencies to focus EIRs with. .
' less fear of litigation, and would streamline the consideration of
planned development.
Narrowed definition of "project" - The current definition is open
to broad interpretation and has led to some EIR litigation not
related to environmental impacts. This tactic may be curbed by
clarifying that "project" means an action which will directly or
' indirectly lead to a physical effect.
Mitigation banking - Provide a regional mechanism for "banking"
the mitigation of environmental effects. This might involve
contributions to habitat conservation, or preservation of a
particular resource. This would allow larger scale approaches to
mitigating community-, ,region- or statewide impacts.
Local "thresholds of significance" - State, regional, and local
agencies should establish thresholds by which to determine the
significance of potential adverse impacts. Local thresholds
should incorporate State and regional thresholds (i.e. , congestion
management, air quality, etc. ) levels. This will add certainty
and consistency to the process of determining whether a
significant adverse effect may occur.
Linkage to existing regulations and regulatory urograms - Specify
' that existing regulatory programs can mitigate an identified
environmental effect to the extent that it will no longer be
considered significant in projects which comply with the program.
For example, where a congestion management plan and air quality
management plan have been adopted, the cumulative effects of
projects consistent with those plans need not be addressed in a
new EIR.
CEOA Guidelines - Revise the CEQA Guidelines to include new
statutes and case law. This would clarify current law.
The role of the State Clearinghouse - The Clearinghouse
distributes draft negative declarations and EIRs to State agencies
for review and comment. The role of the State Clearinghouse as a
coordinator and comprehensive data base should . be expanded.
A Final Word
' Thank you for this opportunity to address the committee. I
hope that we can work together to make California's environmental
process more efficient, less driven by litigation, and more
responsive to the needs of California.
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tDraft Summary Report
Streamlining CEQA: An Action Agenda
1
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Prepared by:
CEQA Task Force
California Chapter, American Planning Association/
Association of Environmental Professionals
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January 11, 1993
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Task Force Views on CEQA's Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Task Force Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.
Master EIRs and Streamlined Project-Level CEQA Compliance . . . . . . . . . . . . 2
Standards for Recirculation of Draft EIRs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Thresholds of Significance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 '
The Initial Study and Negative Declaration Process . . . . . . . . . . . . . . . . . . . . . 4
Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Socioeconomic Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CumulativeImpacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CEQA Guidelines Revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Other Priority Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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' Draft Summary Report Streamlining CEQA: An Action Agenda
Introduction
r American Pl Association APA
The California Chapter of the Ame can arming o (APA) the
Association of Environmental Professionals (AEP) formed a California Environmental
Quality Act (CEQA) Task Force in late 1992. This Task Force was established to provide
proactive, objective recommendations on streamlining the process of implementing CEQA
and recommending related modifications to the CEQA statute. The planning and
environmental professionals belonging to these organizations are responsible for
implementing and administering CEQA,and are in a unique position to recommend changes
to make the law work better for everyone. .
The Task Force is composed of a geographically diversified balance of public
planners, consultants, and attorneys (see Appendix A). The Task Force's mission is to:
make recommendations for legislative and adminisftwive changes to CEQA to
improve the effectiveness and a dig of its implementation
Task Force Views on CEQA's Objectives
In undertaking this review, the Task Force's fundamental premise is that CEQA is
a vital and constructive component of the decision-making processes of state and local
governments. The Task Force believes that CEQA's policy objectives and basic framework
are sound. CEQA's policy objectives are concisely stated in State CEQA Guidelines Section
15002(c) as follows:
■ inform decision makers and the public about the potential environmental effects
of proposed activities;
■ identify ways that environmental damage can be reduced or avoided; .
■ prevent significant,avoidable environmental damage by requiring project changes
through feasible alternatives and mitigation measures; and
■ provide public disclosure of reasons for approving projects with unavoidable
significant effects.
1
In addition, the Task Force believes a CEQA policy objective similar to that stated
in Public Resources.Code (PRC) Section 21003(a) needs additional emphasis:
■ ensure that environmental review is integrated with local and state comprehensive
planning.
Task Force Recommendations
The APA AEP Task Force has developed recommendations for a number
/ CEQA Q p
of high-priority CEQA issues. Draft recommendations developed to date are summarized
below. Recommendations will be explained more fully in a detailed CEQA Action Agenda '
report currently being prepared. Recommendations for additional CEQA issues may be
presented in future revisions of the Action Agenda.
Master EIRs and.Streamlined Project-Level CEQA Compliance
Problem. Instead of using the tiering process allowed by CEQA, the environmental
review process is frequently lengthened and made more costly by the preparation of project-
level environmental documents (environmental impact reports [EIRs] and Negative
Declarations) that often contain redundant information repeated from document to
document and lengthy discussions of policy decisions already made by lead and responsible
agencies.
Recommendations. Lead agencies should make greater use of existing comprehensive
planning and the tiering procedures identified in CEQA and the State CEQA Guidelines
to streamline CEQA compliance. CEQA should be amended to:
■ allow cities and counties, at their discretion, to prepare Master EIRs concurrently
with any comprehensive or substantial update of their general-plans;
■ require Master EIRs to include analyses of cumulative impacts, growth-inducing
impacts, and land use alternatives; information from other Master EIRs within
the same region; and a description of mitigation programs for later project-
specific mitigation;
■ specify that for a 5-year period following certification, the Master EIR must be '
the primary source of environmental information for CEQA review of later
projects;
■ i certified, analyses of cumulative impacts,
provide that once a Master EIR s cert ys p ,
growth-inducing impacts, land use alternatives, and significant unavoidable
impacts are presumed to be valid; i
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■ provide that for projects consistent with the general land use plan, no further
discussion of cumulative impacts, growth-inducing impacts, land use alternatives
addressed in the Master EIR, or significant unavoidable impacts addressed in the
Master EIR is required within 5 years of Master EIR certification;
■ require an Initial Study to be prepared for future projects, with a finding
supported by substantial evidence that the project conforms to the general plan.
The Initial Study would demonstrate that no new project-specific significant
impacts exist that were not previously addressed by the Master EIR, would show
how the mitigation concepts in the Master EIR will apply to the project, and
would lead to a Negative Declaration subject to CEQA's existing public and
judicial review process; and
■ specifically authorize collection of fees from project applicants in advance of
specific project proposals to provide funding for Master EIRs.
Standards for Recirculation of Draft EIRs
Problem. CEQA and the State CEQA Guidelines do not define the "significant new
information" added to an EIR that would require recirculation of the Draft EIR. The lack
of definition of this threshold creates confusion, encourages needless delays and litigation,
and discourages full disclosure in the Final EIR.
Recommendations. CEQA and the State CEQA Guidelines should be amended to:
■ set a high threshold for requiring EIR recirculation;
■ define"significant new information"as information indicating that the project will
have at least one significant environmental impact not identified in the Draft EIR
(some Task Force members would require the significant impact to be
unavoidable); and
■ provide that only the Draft EIR changes associated with the "significant new
information" need be recirculated, and that the Lead Agency need respond only
to those comments addressing these changes.
Thresholds of Significance
Problem. CEQA provides insufficient guidance on how to determine when an
environmental effect is significant.
Recommendations. CEQA and the State CEQA Guidelines should be amended to:
■ require each Lead and Responsible Agency to adopt and periodically update as
part of the agency's CEQA procedures measurable thresholds of significance;
3
■ require that where a jurisdiction has certified a Master EIR, the Master EIR
should serve as the basis for establishing significance thresholds;
■ require formal adoption of the thresholds, including a public hearing;
■ require the Office of Planning and Research to prepare guidelines to assist local
agencies in establishing thresholds of significance; and
■ require use of the "substantial evidence" standard of review for all CEQA
determinations based on the adopted thresholds.
The Initial Study and Negative Declaration Process '
Problem. Several initial steps in the CEQA process need improvement. The
definition of "project" should be clarified to eliminate activities that would not affect the
physical environment. At present, the distinction between a project and the various
approvals needed to carry out a project is unclear. EIRs are being prepared unnecessarily
when the only significant impacts are cumulative in nature and have already been disclosed
in prior EIRs. The State CEQA Guidelines requirements for Initial Study format are
misleading because they do -not specifically require fact-based explanations of all Initial
Study determinations.
Recommendations. The initial steps of the CEQA process should be clarified and
streamlined. CEQA and the State CEQA Guidelines should be amended to:
■ require that a project's physical environmental impacts be reasonably foreseeable;
■ distinguish between a project and discretionary actions needed to implement a
project, and require better identification of such discretionary actions;
■ either encourage reuse of the previously prepared EIR or allow a new type of
Negative Declaration for projects whose only significant impacts are cumulative
in nature and have been disclosed in previously prepared EIRs; and
■ specifically require all Initial Study determinations to be supported by fact-based
explanations.
Alternatives
Problem. -Requirements for EIR alternatives analysis are imprecisely understood
and inconsistently applied. Particularly problematic are the numbers, locations, and extent
of analysis of alternatives.
4
' Recommendations. CEQA and the State CEQA Guidelines should be amended to:
■ clarify the need for consideration of offsite alternatives in an EIR,
■ strengthen the relationship between project objectives and alternatives in an EIR,
and
■ limit EIR alternatives to those consistent with the general plan when the project
does not require a general plan amendment.
Socioeconomic Impacts
Problem. Although social and economic effects are not impacts under CEQA, they
are often addressed in EIRs. The inclusion of such information increases the scope, cost,
and time of EIR preparation and may increase the potential for legal challenge. Some
propose that all EIRs contain socioeconomic impact analyses and either consider a project's
socioeconomic benefits when selecting mitigation measures or compare the socioeconomic
effects of mitigation measures with environmental benefits.
Recommendations. Socioeconomic analyses of various types are sometimes
appropriate in environmental documents. Requiring that they be included in all EIRs would
add to cost, complexity, and delay without appreciably improving the CEQA process. State
CEQA Guidelines Section 15131 already provides adequate guidance on when social and
economic information may be useful in EIRs. The Task Force does, however, recommend
that CEQA and the State CEQA Guidelines be amended to:
■
require that when socioeconomic factors are to be used to determine the
significance of physical environmental impacts,appropriate procedures should be
specified in each agency's adopted thresholds of significance.
eCumulative Impacts
Problem. CEQA's cumulative impact analysis requirement has a sound policy basis
but is difficult to implement. Project-level cumulative impact analyses are often costly;
redundant, and ignored by the Lead Agency. Neither approach to cumulative impact
analysis recommended by the State CEQA Guidelines (list or projection) is practical to
implement. Also, an extreme interpretation of CEQA would require EIRs to be prepared
for every small project that contributes "one molecule" to a significant cumulative effect.
Recommendations. CEQA and the State CEQA Guidelines should be amended to:
■ authorize a Lead Agency to find that cumulative impacts for some topics have
been adequately analyzed in a planning document, to find that all feasible
cumulative impact mitigation has been .undertaken, and to omit further
discussions on cumulative impacts for those topics;
5
■ clarify appropriate cumulative impact analysis procedures, including thresholds i
of significance, time frames, geographic scope, selection of related projects, and
use of regional plans; and
■ reject the"one molecule" approach to cumulative impacts by encouraging Master
EIRs and other tiering procedures, and by requiring agency thresholds of
significance to specify de minimis thresholds for project contributions to '
significant cumulative impacts.
CEQA Guidelines Revision
Problem. The State CEQA Guidelines have not been thoroughly revised since 1986. '
The current guidelines do not accurately reflect CEQA statutory amendments and case law
on several important topics and provide insufficient guidance to practitioners on CEQA
implementation.
Recommendations. Using an open, formal rule-making process, the State CEQA
Guidelines should be thoroughly revised to:
■ accurately reflect CEQA statutory amendments and case law; and
■ provide accurate and practical guidance to practitioners on how to implement
CEQA.
Other Priority Issues
The CEQA Task Force is considering additional recommendations on other priority
CEQA issues, including the following: ,
■ Should CEQA's time limits be changed?
■ What relationship should exist between CEQA and growth management
legislation?
■ Should requirements for mitigation measures and mitigation monitoring be
clarified?
■ Are changes needed to CEQA litigation procedures?
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6
Appendix A. APA/AEP CEQA Task Force Membership
AMERICAN PLANNING ASSOCIATION PARTICIPANTS .
John E. Bridges,AICP, Principal, Cotton/Beland/Associates.(representing CCAPA's San Diego Section)
Sande George, CCAPA,Executive Director and Legislative Representative
Albert I.Herson,AICP,Senior Vice President and Legal Counsel,Jones&Stokes Associates(past CCAPA President)
Barbara Kautz, AICP, Community Development Director, City of San Mateo, CEQA Task Force Co-chair (past
CCAPA Vice-President for Policy and Legislation)
Mechelle Lawrence, City of San Juan Capistrano (representing CCAPA's Orange County Section)
Kay Melcher, City of Rancho Cucamonga (representing CCAPA's Inland Empire Section)
Robert Odland,AICP, Sedway Cooke Associates (representing CCAPA's Northern Section)
Dana C.Privitt-Arita,AICP,Senior Project Manager,Michael Brandman Associates (representing CCAPA's Orange
County Section)
Mark Riesenfeld,AICP,Planning Director,Marin County (CCAPA Vice President for Policy and Legislation)
Brian Smith Principal,Advance Planning, City Ci of Modesto
P �
Bruce Smith,AICP,County of Ventura,Resource Management Agency(representing CCAPA's Central,Coast Section)
Kathryn Tobias,AICP,Attorney,Downey, Brand,Seymour & Rohwer (representing CCAPA's Sacramento Section)
Mark Winogrond,AICP,Director,Culver City Redevelopment Agency(representing CCAPA's Los Angeles Section)
ASSOCIATION OF ENVIRONMENTAL PROFESSIONALS PARTICIPANTS
Curtis E.Alling,AICP,Senior Vice President, Michael Brandman Associates, CEQA Task Force Co-chair
Ron Bass, Vice President,Jones& Stokes Associates
Nona B. Dennis, Vice President, Environmental Science Associates
Marian A. Harvey,Attorney,Latham &Watkins
Lillian Kawasaki, Environmental Affairs Department, City of Los Angeles
John P.Larson, Senior Environmental Scientist,The PRA Group Inc.
M. Bruce McIntyre, Principal, Lettieri-McIntyre&Associates
Dwight Steinert, Engineering Technology(AEP President)
1 A-1
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EXCERPT FROM CALIFORNIA PLANNER
MAY1992 objectives.The environment needs
protection more than ever.It is neces-
POINT of sary to establish objective standards
for CEQA analysis.We must be able to
by Michael T. Henn have approved massive suburban quantitatively rate projects.For exam= '
business parks. Fifty-thousand new pie,projects should be rated negative-
Like many veteran public agency jobs will appear where there were ly to the extent they create per capita
planners, I have worked with EIRs none a few years before.The Irvine- or per unit pollution,as well as per
since the Friends of Mammoth deci- Costa Mesa area in Orange County and capita water and energy consumption
sion.I suspect many of you have also Hacienda Business Park in Pleasanton or VMTs over a minimum standard.
become discouraged about how the typify these projects.These areas are Projects would also be negatively rated
California Environmental Quality Act characterized by freeway orientation if they are predominantly auto orient-
(CEQA)process has evolved.While and limited transit.Large buildings ed or placed on open space or agricul-
the stated goal of CEQA is to maintain are widely separated by"campus-like" ture land.
a quality environment for the people environments and acres of parking. Projects would receive positive
of California now and in the future, Nothing is within walking distance, points to the extent they achieve the
it has become increasingly clear that but that hardly matters because the following goals:transit and pedestrian-
we have created a process with little feeder streets are too wide or busy to orientation;benefitting existing
prospect of achieving any meaningful safely cross and there are no side- cities versus peripheral suburbs;use
goals. walks. Ninety percent of the com- of existing infrastructure or requiring
muters drive to work alone. new infrastructure;and whether they
"We need to recognize that correlate job types with local housing
` types.The negative and positive
CEQA without standards :..the record shows that points could be totalled;if the project
fails to meet its objectives"
CEQA has been regularly received a negative score,there would
and consistently used be a limit on the ability of local gov
to little discernible ernments to make approvals.We
Unfortunately,CEQA has become should make the granting of overrid-
a monstrously cumbersome process. environmental end." ing considerations subject to stricter
EIRs have achieved mind-numbing legal review and if the project is larger
proportions and costs.The question of than a certain size,make approval
which projects require EIRs and what The rich city that approved the subject to the regional Council of
those EIRs must contain has been project wants the park's tax base,but Government(COG).
subject to local whims and political it doesn't want tax-draining housing, Of course,I am not blaming the
"squeaky wheels"This is not surpris. so residential construction is limited to disastrous planning decisions of the
ing since CEQA lacks any real defini- a small number of high income hous- 1980s on CEQA.The usual demo-
tions of what form or pattern of ing units.There typically is no eco- graphic and economic forces as well
development is environmentally nomic correlation between the type of as municipal greed,parochialism and
superior to any other form or pattern housing permitted(executive level) regional shortsightedness drove these
of development.in spite of the end- and the majority of the jobs created trends.The important conclusion is
less verbiage of the state law itself and (service sector),however apparently that CEQA,without any meaningful
numerous local ordinances and court CEQA's legally required blessing has standards,was of no benefit in pre-
cases which make finer and finer occurred. venting these trends.Worse yet,CEQA
procedural distinctions,the record 3)In older,closer-in suburbs or still has even been used to halt the pro-
shows that CEQA has been regularly attractive parts of central cities,envi- jects with the least relative environ-
and consistently used to little dis- ronmentally preferable higher densi- mental impacts.
cernible environmental end. ties or urban re-use of passed over Henn is assistant planning direc-
lands has been successfully fought by for for the city of Lafayette.
The CEQA Process CEQA wielding project neighbors.
Witness the following 1980s These are areas with existing infras-
statewide development trends,all tructure and good transit.They are Ws PrQC $
of which were somehow blessed by areas close to traditional downtowns
the CEQA process: and affordable housing.Yet when Co ued from page 1
1)The massive development projects come forth,neighborhood Spb of Influence
of distant suburbs on good or prime opponents successfully use CEQA to es ereof' ence is a guid-
agricultural land.These places are halt what are relatively the most ance docu ent re tired for each
characterized by little local job base environmentally desirable projects that public ager for hich LAFCO sets
with two-thirds of the commuters objective planners could conceive of. the"probabl to boundary"
driving more than one hour to jobs in This has happened with proposed
the cities. Moreno Valley,Tracy and developments around the Rockridge Some LAFCOs ase these lines at 10,
BART station in Oakland,the stopping Manteca typify these kinds of areas. pp g 20,or 50 ye ; e set no phasing.The gove ent a again lists
The limited local infrastructure is of offices and higher densities in factors fo view en setting these
overwhelmed,few transit alternatives Pasadena and the apparently success- hour s based on a"Three P's"
are available and development is ful halting of the expansion of UC Th phe a of ion cc helps
almost entirely auto-oriented.The Medical Center in San Francisco. LAF review bounds pansion
sustainable agricultural base is system Establishing Standards fro an overall viewpoin of piece-
atically destroyed.But bylaw, CEQA I.Although the sphere re aw
' must have been complied with. We need to recognize that CEQA idance document,the laquires
2)In the existing suburbs of the without standards fails to meet its tre
major urban complexes,certain cities hat an area be within thew line
i
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BACKGROUND MATERIALS ON PROPOSALS TO REFORM THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
Prepared By
Michael H. Zischke
Attorney at Law
McCutchen, Doyle, Brown & Enersen
Walnut Creek, California
(510) 975-5376
A Contra Costa County Workshop on CEQA
Sponsored by the Contra Costa County Growth Management
and Economic Development Agency
February 24, 1993
Concord, California
CONTENTS
1 . Summary of CEQA Reform Efforts, by Michael H. Zischke
2 . Excerpt from the Ueberroth Commission (Council on
California Competitiveness) Report, "California' s Jobs
and Future, " April 23 , 1992, regarding land use
problems .
3 . Comments upon the Ueberroth Commission' s CEQA
Recommendations (testimony prepared by Michael H.
Zischke for the Senate Housing Committee hearings,
July 29 , 1992) .
4 . Outline of comments on the California Environmental
Quality Act (background paper prepared by Michael H.
�1 Zischke for the Joint Hearing on CEQA by the Senate
Committees on Governmental Organization, Judiciary,
Local Government, Housing and Natural Resources and
Wildlife, January 12, 1993) .
5 . OPR' s CEQA recommendations (testimony presented by
Richard Sybert, Director of the Governor ' s Office of
Planning and Research, at the January 12, 1993 Joint
CEQA Hearing) .
6 . ABAG' s CEQA recommendations ( "Modifications to the
California Environmental Quality Act,. A Proposal by the
Regional Planning Committee' s Subcommittee on Modifying
CEQA" (January 1993) ) .
7. Greenbelt Alliance CEQA Recommendations (testimony
presented by Zach Cowan, Vice President of the
Greenbelt Alliance, at the January 12, 1993 Joint CEQA
Hearing) .
6729L
B. Land-Use Problems
California's population is expanding by 600,000 annually, whether we plan for it or
not. Poor facilities, infrastructure, and housing will not deter the immigration, but
they will lower the quality of life for those currently living here.
(1) State Planning and Growth Management
Problem•
All segments of the community suffer because of the poor planning and inadequate
management of California's growth. Development decisions occur all too often on
a project-by-project basis. Consequently, the balancing of the public goals of
development and environmental protection, as well as the public debate over limits
on growth, now occur only in the context of a specific construction project.
California needs a growth-management system that reconciles and balances the
state's competing needs. State government must clearly identify statewide objectives
and require regional and local agencies to conduct their activities in concert with
those objectives. Better planning at all levels of government provides predictability
in land use for resource protection and for development.
A sound growth-management system should provide environmental protection
standards, require local governments to zone buildable land for housing, establish
clear and objective standards for permit approval, require the preparation of local
capital improvement plans,set statutory standards to limit antigrowth moratoria,and
establish state limits on and guidelines for local development impact fees. All of
these steps can help reduce housing costs.
Other states have found that comprehensive state planning can reduce red tape,
provide greater predictability for resource protection and for development, and
increase efficiency in permit processing.
Actions:
♦ Adopt a growth management strategy for California that establishes
clear state policies, goals, and objectives, focuses all land-use decision-
making in the hands of local governments, and holds local governments
accountable for conducting their activities in accordance with state
objectives. The growth management strategy should consider
Regulatory Streamlining 34
LM
environmental quality,economic development,housing,public facilities,
infrastructure and a process that provides predictability in land use..
♦ Provide funding and support to the governor's Office of Planning and
Research as the primary state planning body.
♦ Make the State Clearinghouse perform its intended role as a lead
agency and coordinating body for state review of documents that
require comment or approval by various state agencies.
(2) Local Planning
Problem:
The land development approval process in California is a time-consuming maze. To
obtain approval, public works directors, cities, counties, businesses, builders, etc.,
must interact with literally dozens of agencies and prevail in many public hearings
before citizenadvisory councils, planning and other commissions, and local elected
city councils and boards of'supervisors and other similar bodies.
Extensive public input is imperative, but not in the current form, in which the same
issues are rehashed in agency after agency, jurisdiction after jurisdiction — a
quagmire of a process that wastes resources and puts us further behind in coping
with growth.
Occasionally,attempts have been made to make the land-use permitting process less
cumbersome and costly. "Permit streamlining laws,for example,have been enacted.
Time limits have been placed on federal, state, and local agencies for the processing
of public facilities,infrastructure,tract maps,and permits.In most cases,jurisdictions
literally ignore these reforms and procedures.
Many of the laws and procedures enacted during the past two decades were based
on a very real need to protect the environment. But instead of incorporating the
environmental concerns into a single planning process, the implementation of these
laws has become a whole new layer of agency and jurisdictional bureaucracy, limiting
predictable land-use decision-making and the development of affordable housing.
There has been little attempt, at any level of government, to reconcile the process
by which public policy objectives of environmental quality, economic development,
and other social needs are handled in a timely and efficient fashion. California lacks
a concise process for local planning.
35 Regulatory Streamlining
Actions:
♦ Reinforce and strengthen the "General Plan" as the central tool for
planning, and rename it the "Comprehensive Plan."
♦ Require cities and counties to prepare.Comprehensive and Specific
Plans.
♦ Require that the Comprehensive Plan clearly address state and regional
goals.
♦ Grant local jurisdictions maximum flexibility in meeting state goals
through the Comprehensive Plan.
♦ Require a Master EIR on the Comprehensive Plan and make the
Comprehensive Plan the primary vehicle for environmental assessment
and mitigation.
♦ Require that all facilities and agencies within the jurisdiction of the
state of California, including state facilities, school districts, and other
special districts, be subject to each jurisdiction's Comprehensive Plan.
♦ Require that each Comprehensive Plan include a long-term capital
facilities (infrastructure) plan, including the construction of schools.
♦ Require that each Comprehensive Plan be prepared and adopted in
coordination with adjoining jurisdictions to the maximum extent
possible.
♦ Require that the Comprehensive Plan and the Specific Plans provide
far more detail for development and resource protection than is now
required. If the necessary level of detail is not available in the
Comprehensive Plan, then the issues which will be considered in future
Specific Plans must be listed. To develop an inventory of what
additional detail will be needed, input should be sought from public
works officials, businesses, community groups, and all interest groups.
♦ Require that each Comprehensive Plan provide sufficient development
capacity to accommodate the anticipated growth in the jurisdiction.
♦ Provide adequate opportunity for public participation in the
preparation of the Comprehensive Plan and Specific Plans.
Regulatory Streamlining 36
Upon a finding that a project is consistent with the Comprehensive
Plan and Specific Plans, require that the project be deemed approved.
Allow projects consistent with the Comprehensive Plan and Specific
Plans to proceed.
(3) California Environmental Quality Act
Problem:
The California Environmental Quality Act (CEQA) was enacted more than twenty
years ago to require public agencies to evaluate the environmental impacts of
projects they undertake directly. CEQA was later expanded by a 1972 state
Supreme Court decision to include all, development projects._ that required
discretionary approval by a governmental agency.
CEQA is cumbersome, costly, and often abused. Groups use lawsuits to stall
projects — not to protect the environment. Multiple overlapping agencies
administer CEQA and its related laws,which are directed at traffic, air,water,waste,
endangered species, toxics, preservation of archaeological sites, transportation,
wetlands, and a host of other concerns. Under current law, there are no limitations
on the number or type of reviews that a local jurisdiction can require, even if the
project is completely within the parameters of the General Plan.
The failure of the system to provide a single clearly defined procedure for planning
has created excessive cost and a high level of unpredictability in resource
management. It is not uncommon forpublic works directors in siting facilities,
businesses seeking to build new manufacturing plants, or developers planning new
housing projects to be forced to perform multiple environmental impact reports
(EIRs) in an attempt to obtain approvals. Costs for these redundant reports range
from ten's to hundreds of thousands of dollars.
For example, on February 7, 1992, ten years after the original permit application was
submitted, ground was broken in San Marcos for a $140 million recycling and waste-
reduction center. In those ten years, the project was the target of over 20 lawsuits
by citizen groups and neighboring cities, all but one of which were unsuccessful. In
addition, it was necessary to abandon the incinerator component of the project,
which deprived the project of its waste and energy reduction benefits. Procedural
problems with CEQA were the basis of the suits.
In another example, a company is building three identical plants to produce
oxygenate in Pennsylvania, Mississippi, and California. The oxygenate is needed to
37 Regulatory Streamlining
meet the federal Clean Air Act's November 1, 1992 deadline for oxygenated gasoline
in carbon monoxide nonattainment areas. All three projects were started at the
same time. The projects in Pennsylvania and Mississippi have received all the
necessary permits. The California project is being held up by three citizens' groups
that have appealed the city's determination that an environmental impact report is
not required. This action will delay the project, and as a result, the company will
have to import oxygenate from other states at significant extra cost in order to
comply with the federal requirements.
Actions:
♦ Require a Master EIR on the Comprehensive Plan and make the
Comprehensive Plan the primary vehicle for environmental assessment
and mitigation.
♦ Revise the CEQA Guidelines to eliminate redundant environmental
review and to reflect environmental policies and performance standards
that are more consistent with the intended objectives of CEQA. For
example, limit the number of project alternatives and eliminate the "no
project" alternative. In addition, reduce the number of factors that
trigger preparation of an EIR.
♦ Amend the CEQA guidelines to shorten the environmental review
process to six months, with one 30-day extension, and prohibit waivers
of the time periods. Include in the Guidelines a strong policy
statement opposing the practice of denying approval because review has
not been completed on a timely basis.
♦ Allow projects that comply with an already reviewed EIR to receive
focused environmental review, which would include only those issues
not addressed by the Master EIR (new information not known at Plan
adoption, issues not addressed in the Master EIR, subsequent changes
in projects, etc.).
♦ Provide maximum opportunity for public participation in the
preparation and adoption of the Comprehensive Plan and the Master
EIR,limit interest group review of specific projects which are consistent
with the Comprehensive Plan and the Master EIR and adopt
procedures to govern legal challenges, the award of attorneys fees, and
similar considerations.
♦ Require EIRs to contain a socioeconomic impact analysis that compares
the total social impact mitigation measures with the social benefits to
Regulatory Streamlining 38
be derived. Require the local legislative body to weigh other societal
benefits, such as affordable housing and job production, when deciding
the extent of the mitigation measures to be required.
♦ Insert the- word "economically" in .front of the words "feasible
alternatives" wherever they occur in the Guidelines.
♦ Revise Appendix G of the Guidelines, which lists examples of I�
consequences that will normally have a significant effect on the ■
environment, to diminish. the negative bias against accommodating
California's population growth. Revise the Guidelines to require
consideration of California's growing population and the need to
provide housing and jobs to serve it. The existing section that purports
to accomplish this objective is ineffectual.
(4) State Land-Use Court
Problem:
Many of the problems in the operation of the existing land-use permitting system �■■
result from the refusal of agencies to follow existing law and administrative
procedures. Laws that have been enacted for the sole purpose of streamlining the
permitting process, increasing predictability, and limiting the overall cost of the
permit process are often ignored.
There is a land-use litigation explosion in California, which makes it far more
difficult for the state to carry out sensible land-use planning and growth
management. The legal system fails to resolve land-use disputes expeditiously,
encourages frivolous claims, and greatly adds to the cost of housing. Under the
current system, land-use cases are regularly delayed because higher priority is given
to criminal cases. Land-use cases are often heard by judges who have no special
expertise in land use, construction, or environmental law. As more of the important ,
disputes wind up in litigation, it becomes increasingly clear that the current judicial
structure is unable to render consistent and timely decisions.
Actions:
♦ Establish a state-level land-use court to decide all project-level disputes
between project proponents, local governments, and third parties.
. 39 Regulatory Streamlining
4 In jurisdictions with a plan adopted in conformance with state laws and
plan guidelines, allow appeal of any local decision regarding a
development project and its consistency with a local plan.
♦ Grant the court jurisdiction over the following types of cases:
Disputes arising from proje'ct-level actions of government
agencies.
Challenges to the sufficiency of the environmental review process
including both substance and procedure.
The failure of local agencies to act within adopted schedules.
The appropriateness of fees imposed by a jurisdiction.
IntelJurisdictional disputes between public agencies involving
land-use plans and decisions.
The adequacy of a local plan and its consistency with state
growth policy.
4 Grant the court authority to implement the following remedies:
- Compel the issuance of a permit.
- Sustain the local agency action denying the issuance of a permit.
- Award damages and attorney fees where appropriate.
- On matters of plan dispute, certify a plan as being consistent
with state growth policies.
- Require that an inconsistent plan be revised.
- Order the reduction or elimination of a fee that is determined to
be inconsistent with the law.
♦ Establish specific local performance measures, such as the time-frame
for hearings, reviews, and making consistency determinations. Failure
to comply with these criteria would result in automatic project approval,
unless findings of extenuating circumstances (which should be a part of
Regulatory Streamlining 40
the performance criteria) are adopted. The validity of the findings may
be grounds for damages against the jurisdiction.
(5) Impact Fees/Exactions
Problem:
Fees and exactions are imposed on commercial and residential projects in most
P P J
states throughout the country. However,nowhere are impact fees as onerous as they
are in California. Since the passage of Proposition 13, local government has
financed much of its infrastructure and services for its citizens through the use of
fees and exactions imposed on new projects.
The practice of transferring the financial responsibility for general community
services and facilities to the applicants for building permits is commonplace
throughout California. Public officials recognize that residents continue to demand
the same level of services and facilities but are unwilling to pay for them. General
funding bond issues that require a two-thirds vote are often vetoed by a minority of
the public. Accordingly, those proposing to build or expand a structure are expected
to pay for such facilities as parks, schools, fire stations, public infrastructure,
libraries, childcare facilities, public art objects, community centers, and low-cost
housing.
In the end the costs of these facilities needed b the whole community are borne
Y t3'
by only the users of the new project. This is unfair, and it cripples new building and
job growth. It is an ill-conceived way to deal with permit applicants and public
planning. An applicant should not have. his permit held hostage to an agency's
demands for unrelated public amenities. Permitting agencies should not be the
bodies that determine funding for general public amenities unrelated to the project
being permitted. That should be the job of the planning agencies dealing with the
general issues of traffic, housing, day-care, etc.
Although current law requires local agencies to justify the fees and exactions they
impose on projects and to establish a "reasonable nexus," this requirement is
frequently ignored. There may be little connection between the fee or exaction
being imposed and the projects that are, in theory, generating the need for the fee
or exaction.
At present, the typical jurisdiction imposes a variety of fees on new projects that can .
41 Regulatory Streamlining
reach $40,000 per dwelling unit. In the city of Santa Clarita Valley, fees on a 1650-
square-foot house total more than$34,000. Following is a listing of per-unit fees for
a representative sample of other jurisdictions:
* Brentwood $21,865
* Danville $21,754
* Oakley $22,086
* San Ramon $23,634
The Corona-Norco Unified School District is currently requiring$15,000 per unit--
or
or approximately $9.40 per square foot in school fees alone. In Milpitas, although
the unified school district has a number of empty schools, it extracted from one
housing project more than $1 million in school fees. From these examples, the
depressing effect that fees and exactions have on the construction of affordable
housing is obvious.
Having depressed the supply of affordable housing by exactions,and with a shrinking
supply of federal dollars to finance affordable housing, cities and countiet have
reacted by adopting still more exactions on other projects, i.e., mandatory
inclusionary housing programs and housing trust funds. These programs require that
residential and commercial projects provide solutions to the community's lower-
income housing problems as a quid pro quo for project approval. Masked as a
density bonus incentive, these techniques are little more than a private subsidy for
what should be public obligations borne by society as a whole.
San Francisco offers an excellent example of the types and sizes of fees that
businesses face. In 1991, as much as 15 percent of the cost of a four-story, 100,000-
square-foot office building could be attributed to fees. Following is a partial list of
fees on such a hypothetical building:
* Housing impact fees $ 700,000
* Transit impact fees $ 500,000
* Open space fees $ 200,000
* Childcare fees $ 100,000
* Building permit $ 48,626
* Plan check and processing fee $ 31,570
* Conditional use permit (maximum) $ 52,754
* School fees $ 25,000
* Fire fees $ 1,516
* Water meter fees $ 2,700
Total Fees
Regulatory Streamlining 42
This list of fees excludes the cost of the environmental impact report and review, as
well as annual fees for ongoing transit management, which collectively add another
$90,000 to this hypothetical project.
All these fees must be paid upon issuance of the permit to build. However, the
impacts that the fees are meant to mitigate will not arise, if ever, until the building
is completed and.occupied. The party paying the fees cannot hope to obtain the '
revenue to reimburse these fees until the building is completed and occupied. This
delay places the cost of funds totally on the project, and, in the end, taxes the
consumer.
Actions:
♦ Strengthen existing statutes to provide that payment of develo p ment
fees not be required until the date of actual fiscal impact on the
locality, typically the date of the final inspection, or the date on which
the certificate of occupancy is issued, whichever occurs first.
Circumstances under which fees could be collected earlier should be
specified and very narrowly constrained.
♦ Amend the state constitution (Article XVI, Section 18) to reduce the
voting requirement from two-thirds to a simple majority for passage of
general obligation bonds. If the general fund can be better funded, the
need to squeeze public services from permit applicants will lessen.
♦ Restrict local ability to impose affordable housing "linkage" fees on
commercial projects and to impose mandatory inclusionary housing
programs for lower-income housing on projects as a condition of
approval. Current fee practices used by local government to fund social
programs that are unrelated or marginally related to the proposed
developments should be curtailed.
♦ Enact the action called for in Section 1 to form a Governance
Commission to restructure the sources and use of funds at all levels of
government.
43 Regulatory Streamlining '
SUMMARY OF CEQA REFORM EFFORTS
by Michael H. Zischke
The Ueberroth Commission Started it All
CEQA reform efforts were triggered by the Ueberroth
Commission report last spring, in which the Commission
identified CEQA as one area where regulatory reform is required
to strengthen California' s competitive posture and attract (and
keep) business and jobs (Council on California Competitiveness,
!, California' s Jobs and Future, report dated April 23 , 1992) .
The Commission suggested EIRs should evaluate the economics and
cost of environmental mitigation, to avoid overloading any one
! project with too much mitigation. Another primary suggestion
was to "front-load" the process, requiring environmental review
primarily at the planning stage and omitting most review when
specific projects are approved.
A number of other groups have been looking at CEQA
reform, with the Association of Bay Area Governments (ABAG) and
the California Building Industry Association the first to
develop specific reform proposals . Planner ' s organizations
(the Association of Environmental Professionals and the
California chapter of the -American Planning Association) are
preparing recommendations, as is the new environmental section
of the state bar .
And Now To the Legislature .
The legislative response to all these proposals has
been moderate, and some proposals have been floated that would
actually complicate the process . After several hearings and
meetings on CEQA reform, primarily on the Senate side, several
trends are emerging:
* Several key legislators want moderate proposals
supported by a consensus of interested parties,
including businesses, CEQA practitioners, planners,
public agencies and environmentalists .
* There is general consensus the definition of
"projects" subject to CEQA should be tightened up, to
help prevent the abusive use of CEQA lawsuits in
"non-environmental" situations . There is also some
agreement on limiting attorney fee awards when the
primary aim of a CEQA suit is not environmental
protection.
1
!
* There is general consensus agencies should be
encouraged to use mitigated negative declarations and
focused EIRs, by including more explicit authority and
guidance in the CEQA statute.
* There is some consensus cumulative impact
analyses should be omitted or reduced for projects
consistent with general plans or resource plans .
* Environmental groups, primarily the Sierra Club,
the Planning and Conservation League, and the
Greenbelt Alliance, have participated in many of the
meetings and responded to various proposals . Some
groups have indicated they will suggest additional
reforms, but specific proposals have not been
circulated.
* The primary Assembly Bill on CEQA. streamlining ,
last year, Assemblywoman Doris Allen' s AB 3076, will
be reintroduced in similar form this year for
consideration by the Assembly Natural Resources '
Committee.
Other Proposals
A consensus has not yet developed for the many other
proposals being considered, and some proposals to tighten
CEQA' s requirements will be discussed. In addition to
proposals that might be developed by environmental groups , some
legislators have indicated they will introduce bills to tighten
CEQA' s requirements . Such bills are likely to include:
1) A bill by Senator Hayden to prohibit the use
of developer-retained consultants in preparing
EIRs . '
2) A bill by Senator Kopp, aimed at the San
Francisco Airport Commission, requiring
certification of EIRs to be doneby an elected
.body ( if the lead agency has an elected body) .
If certification is done by an unelected body
(such as the Airport Commission) , the bill
probably will require the lead agency to allow
appeal to an elected body.
3) AB 232 (Farr) has been introduced, and would
require an EIR for all general plan amendments .
2
Some other CEQA bills have already been introduced. Current
bills include:
1) SB 199 (Alquist) would exempt from CEQA public
agency budget reductions caused by the failure of
agency revenues to adequately fund programs and
services .
2) AB 305 (Moore) to revive the economic
practices manual (for use in evaluating land use
proposals and now a moribund part of CEQA) and
place these provisions in the Planning Law.
3) AB 269 (Statham) to reduce the negative
declaration review period from 21 to 20 days
(apparently this makes a significant differences
to a city in Statham' s district) .
Prognosis
Given the moderate, consensus approach that appears to
be taking hold, it is unlikely this year ' s efforts will result
in a major overhaul of CEQA -- and they won't do much to
address the Ueberroth Commission' s major concern - the flight
of businesses to states with faster permitting, lower costs ,
and a more receptive attitude towards business and
development . However, the Legislature can make some aspects of
the process more efficient, and a consensus is developing on
several reforms that will make at least a small difference.
6731L
3
1
COMPUNTS ON THE UEBERROTH COMMISSION'S
CEQA RECOMMMATIONS
Michael H. Zischke
McCutchen, Doyle, Brown & Enersen
Walnut Creek
.For the Senate Committee on Housing and Urban Affairs
Informational Hearing on the Recommendations of
the Report on California's Jobs and Future
Prepared by the CouncilonCalifornia Competitiveness
July �9, 1992
Room 4203, State Capitol
Sacramento, California
N THE UEBERROTH COMMISSION'S
COMMENTS 0 S S
CEQA RECOMMENDATIONS
Michael H. Zischke
The following is an outline of my comments on the
Commission recommendations regarding the California
Environmental Quality Act . I have also included some comments
on problems in CEQA practice not discussed by the Commission.
I . COMMENTS ON THE COMMISSION RECOMMENDATIONS
A. Use Master EIRs on Comprehensive Plans.
Recommendation: "Require a Master EIR on the
Comprehensive Plan and make the Comprehensive Plan the
primary vehicle for environmental assessment and
mitigation. "
Comments :
1) The CEQA recommendation - use more Master
EIRs - does not need to be tied to a new
Comprehensive Plan requirement .
2) "Front ending" the CEQA process makes sense.
3) Broad brush analyses such as cumulative
impacts and growth-inducing impacts should be
done at the planning EIR stage, not the
project-specific EIR stage.
4) Requiring new Comprehensive Plans may be
burdensome. Most local governments do not meet
state mandated housing goals now, according to
HCD.
5) From a litigation standpoint, requiring
consistency with more and more state planning
standards gives project opponents more
opportunities to take aim at local approvals .
1
B. Revise the CEQA Guidelines To Streamline the
Process and Set Performance Standards.
' Recommendation: "Revise the CEQA Guidelines to
eliminate redundant environmental review and to
reflect environmental policies and performance
standards that are more consistent with the intended
objectives of CEQA. For example, limit the number of .
project alternatives and eliminate the "no project"
alternative. In addition, reduce the number of
factors that trigger preparation of an EIR. "
Comments:
1 CEQA Guidelines are now 6-7 years out of
date, defeating their purpose in providing
' guidance to public agencies . OPR needs to get
the funds and the directive to publish new
Guidelines .
2) The Legislature should provide more specific
direction as to how the Guidelines should be
revised.
3) The idea of performance standards for CEQA
compliance is excellent . The Legislature should
ask OPR to adopt performance standards, and the
Legislature should pass "safe harbor" amendments
specifying that public agencies complying with
the performance standards are entitled to a
conclusive presumption of CEQA compliance.
4) The number of project alternatives is one
important area where the Legislature should
provide certainty, either through amending CEQA
or providing directives to be implemented in the
Guidelines .
5) For most housing projects, there is little
reason to analyze more than three (3)
j' alternatives . Typically, a lower density
alternative is the most important analysis.
Analyzing alternate sites for private projects
-� adds nothing but speculation to EIRs .
6) "No project" alternative analysis usually is
unimportant, but is also harmless . Typically,
this section of an EIR consists of the
self-evident statements that the project impacts
will not occur if the project is not approved.
Sometimes this section is used to demonstrate the
adverse impacts of not approving the project (for
example, developer would not dedicate parkland
available to other city residents) .
r
2
7) Draft text of a performance standard approach
to the CEQA Guidelines - as could be included in
CEQA amendments - is attached.
h '
C Shorten the CEQA Process to Six Months.
Recommendation: . "Amend the CEQA guidelines to
shorten the environmental review process to six
months, with one 30-day extension, and prohibit
waivers of the time periods . Include in the
Guidelines a strong policy statement opposing the
practice of denying approval because review has not
been completed on a timely basis . "
Comments:
1) This is unworkable for many projects,
especially large capital projects , general plan
EIRs, and the like.
2) This goal could be workable when EIRs are
��
done on more minor , projects .
3) CEQA' s current time limits have absolutely no
teeth, and are violated at will . For public
agencies, there is simply no penalty for failing
to meet the deadlines . Whatever protection was
once offered by the Permit Streamlining Act has
been virtually eliminated, as the courts have
largely gotten that Act .
4) A more realistic change may be to make the
time. limits enforceable, with coordinating
amendments to CEQA and the Permit Streamlining
Act .
5) CEQA should also be amended to specify that
the required level of detail and study for an EIR
must be consistent withwhat is practical during
the specified time period. It would be unfair to
both public agencies and private developers to
impose a six-month time limit and yet require
EIRs to be absolutely "picture perfect" in order
to be legally adequate. Some court decisions
require a level of analysis and study -that
. probably cannot be done in a year .
3
tD. Focussed Review of Projects Consistent with
Earlier EIRs.
Recommendation: "Allow projects that comply with an
already reviewed EIR to receive focussed environmental
review, which would include only those issues not
addressed by the Master EIR (new information not known
at Plan adoption, issues not addressed in the Master
EIR, subsequent changes in projects, etc. ) . "
Comments:
1) Need to provide a clear standard for
determining what is meant by "complies with" or
"is consistent with" the prior EIR.
2) Specify that the broad, program EIR is the
proper place to include analysis of broad,
regional impacts . Thus, cumulative impacts and
growth-inducing impacts should be analyzed in the
program EIR, and should not be included in the
follow-up document .
3) If a scoping process is used to determine the
exact focus of a follow-up CEQA document, it
would be helpful to give agencies the option of
having a publicly noticed scoping process, in
return for which the results of the scoping would
be binding.
E. Promote Public Participation at the Master EIR
Stage and Limit Later Review.
Recommendation: "Provide maximum opportunity for
public participation in the preparation and adoption
of the Comprehensive Plan and the Master EIR, limit
interest group review of specific projects which are
consistent with the Comprehensive Plan and the Master
EIR and adopt procedures to govern legal challenges,
the award of attorneys fees, and similar
considerations . "
Comments:
1) It probably is not possible to limit
"interest group review" without jeopardizingthe
due process rights of neighbors and the public to
�r notice and hearing on projects .
4
1
2) However , subsequent review. can .be streamlined '
if CEQA is amended to limit the judicial remedies
available to project opponents when they raise
issues that should have been raised at the. Master
EIR stage.
3) One way to streamline project-specific
processing and preserve some public review would
be to establish a binding scoping process when
the scope of the subsequent environmental
document is determined.
F. Require Socioeconomic Impact Analysis.
Recommendation: "Require EIRs to contain a socio-
economic impact analysis that compares the total .
social impact [of] mitigation measures with the social
benefits to be derived. Require the local legislative
body to weigh other societal benefits , such as
affordable housing and job production, when deciding
the extent of the mitigation measures to be required. "
Comments:
1) The first suggestion will be �.
counter-productive. Adding more analysis to EIRs
will make the documents longer, and more
vulnerable to legal attack.
2) Excessive mitigation measures can be a
problem. Better place to address this would be
amending CEQA section 21004 , which now specifies
that CEQA does not increase an agency' s power to
mitigate impact . In other words, agencies can
use their statutory and police powers to do
environmental good (subject to all the limits on
those powers) , but CEQA does not now expand
agency' s substantive powers .
3) The question of whether mitigation measures
"go too far" really relates to the Government
Code and other limits on fees and exactions .
5
G. Add "Economically" to the Definition of Feasible.
Recommendation: "Insert the word 'economically' in
front of the words ' feasible' wherever they occur in
the Guidelines . "
fComments:
1) This is a bad idea. Agencies should be free
to determine that mitigation measures or project
alternatives are infeasible on grounds other than
economics .
2) Currently, courts uphold agencies when they
make infeasibility determinations on the basis of
policies . For example, an agency can say that
' certain mitigation measures are not feasible
because they will limit the agency' s ability to
provide housing. A city could say that measures
are not feasible because they will make it more
difficult to comply with general plan goals for
promoting housing.
3) For a recent example, see Sierra Club v. City
of Gilroy, 222 Cal . App. 3d 30 (1990)
(alternatives to housing project rejected as
infeasible due to need for additional quality
housing, environmental impacts of alternatives,
and contribution of project to open space
preservation) .
H. Diminish CEQA s Bias Against Accommodating
Population Growth.
Recommendation: "Revise Appendix G of the
Guidelines, which lists examples of consequences that
will normally have significant .effect on the
environment, diminish the negative bias against
accommodating California ' s population growth. Revise
1 the Guidelines to require consideration of
California ' s growing population and the need to
provide housing and the jobs to serve it. The
existing section that purports to accomplish this
objective is ineffectual . "
6
Comments: '
1) The "ineffectual code" section referenced
here is probably CEQA section 21085, stating that
public agencies may not reduce the number of
proposed housing units as a mitigation measure
whenever another feasible measure provides a
comparable level of mitigation.
2) It may be more effective in promoting
housing to focus on the master plan EIR, and
eliminate subsequent review of projects .
3) Appendix G of the Guidelines sets forth a
long list of consequences that normally lead to
significant effects in the environment, and thus
require preparation of an EIR rather than a
negative declaration. The listed items are very
generally stated (for example "substantial ,
demonstrable negative aesthetic effect" ) . Often,
they simply restate the general "significant"
standard by using the word "substantial" .
Streamlining this appendix, and requiring more
specificity, would require more certainty in the
process .
II . COMMNTS ON OTHER ASPECTS OF CEQA THAT AFFECT HOUSING
A. EIR Recirculation.
1) The legislature should consider the
requirement in CEQA section 21092 . 1 that EIR' s be
recirculated for additional review when there is
"significant new information" . This has become a
primary tactic of project opponents seeking to
obtain political advantage by delaying projects,
and claims for recirculation have expanded far
beyond what was presumably anticipated when the �.
legislature codified the decision in Sutter
Sensible Planning, Inc . v. The Board of
Supervisors, 122 CA3d 813, 1981 .
. i
1L
2) In fact, section 21092. 1 was based on a
State Bar Report suggesting that the term
"significant new information" required
clarification, but that clarification was never
added.
3) There should be some specific limit upon
what constitutes "significant new information"
requiring recirculation, as the standard now is
vague and subject to abuse. Also, any proposal
for reform should specify whether or not the time
required for recirculation is an exception to the
CEQA time limits.
4) As a result of the uncertainty regarding the
standard, groups opposing project approvals can
use EIR comments and recirculation issues to trap
public agencies in a quagmire. Opposition groups
can prepare voluminous comments and draft EIRs .
If the agency then responds fully and adequately
to the comments, groups claim recirculation is
required, because of supporting studies or the
sheer bulk of comments and responses . If the
agency minimizes responses, then opposition
�• groups challenge the responses as inadequate for
failing to deal with all the issues raised.
5) Given the situation, the only safe response
for a public agency is to -recirculate the EIR,
substantial delays in the project time table and
substantial increases in processing costs . CEQA
was originally intended to be a "one time around
the block" process . In practice, because of the
recirculation requirement, this is changing.
6) An appellate decision regarding the
University of California illustrates this
problem. In reviewing a new EIR for the
University' s laboratories at Laurel Heights in
San Francisco, the court required recirculation
even though the responses to comments on the EIR
did not show any new or increased significant
impacts in the environment . Laurel Heights
Improvement Association of San Francisco V.
Regents of the University of California (First
�' 8
Appellate District, unpublished decision dated
June 3, 1992) (petition for review before the
California Supreme Court pending) .
B. Provide Some Guidance For Analyzing Cumulative
Impacts.
1) CEQA specifies cumulative impacts of a
project must be discussed in an EIR if they are
significant. The Guidelines allow agencies to do
this using a "list of projects" approach or
"summary of projections" approach, either one of
which is designed to determine whether or not
impacts of a particular project become
.significant when they are combined with other
planned or projected development.
2) Both methods are legally vulnerable. A list
of projects often can be attacked as under
inclusive, or a summary of projections may be
attacked as outdated.
3) A 1990 decision makes an agency' s task in
analyzing cumulative .impacts even more
difficult. Kings County Farm Bureau v. The Cit
of Hanford, 221 CA3d 692 (1990) .
4) Even though CEQA states that cumulative
impacts need to be analyzed only when they are
significant, the Hanford court required the EIR
to justify the scope of its cumulative impacts
analysis (even when there was expert testimony in
the records supporting that analysis) . This in
effect requires a "mini" cumulative impact study
to justify the cumulative impacts analysis
included in the EIR. This is the type of
decision that is inconsistent with doing an EIR
within a year.
5.) This is one area where some performance
standard, clearly setting forth the way in which ■
agency should perform cumulative impact analysis,
and the types of projects which trigger this
requirement, would be helpful . One approach
9
i
would be to require cumulative impact and gross
inducing impact analysis only in general plan and
general plan amendment EIRs, where it seems
logical to consider such "bigger picture"
concerns .
C. Consider a Safe Harbor Approach Throughout The
Guidelines.
1 Beyond the Ueberroth Commission
proposals ,
more can be done to reduce the uncertainty and
litigation risk facing local governments and
developers . Legislature should consider adopting
a "safe harbor" approach, and directing the
office of planning and research to promulgate new
CEQA Guidelines in accordance with this approach.
2) Under this approach, the State would set
certain general requirements in the CEQA
statute. Then the CEQA Guidelines would specify
what course of action would be deemed to comply
with the statutory standard. Agencies which
comply with the standard would be entitled to the
benefit of a presumption - perhaps a conclusive
presumption - that they have complied with CEQA.
3) This could dramatically reduce the amount of
CEQA litigation.
4) Even more importantly, this would
dramatically reduce the litigation paranoia which
often results in agency planners "overdoing"
their EIRs in an attempt to bullet-proof against
any possible legal attack .
10
1
OUTLINE OF COMMENTS ON THE
CALIFORNIA ENVIROWU TPAL QUALITY ACT (CE:QA)
Michael H. Zischke
Attorney at Law
McCutchen, Doyle, Brown & Enersen
Walnut Creek
For the Hearing on CEQA by the Senate Committees on
Governmental Organization, Judiciary, Local Government,
Housing, and Natural Resources and Wildlife
January 12, 1993
Room 4203, State Capitol
OUTLINE OF COP94ENTS ON THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
Michael H. Zischke
I. INTRODUCTION -- IS CEQA ADEQUATELY PERFORMING ITS ROLE
OF PROTECTING THE ENVIRONMENT, OR HAS IT BECOME A
"PAPER TIGER" WHICH GENERATES A TREMENDOUS AMOUNT OF
PAPER WORK--AT GREAT COST—WITHOUT NECESSARILY
SAFEGUARDING THE ENVIRONMENT?
A. Some parts of CEQA work well . The most effective
provisions are those requiring agencies to
identify mitigation measures to offset the
environmental cost of projects.
B. Other parts of CEQA do little, and primarily
generate paper work and fees . This is especially
true of recently expanded requirements such as
cumulative impact and alternate site analyses.
Often these analyses add nothing to either
mitigate impacts or increase meaningful public
disclosure.
C. As a whole, CEQA has become too uncertain and
expensive. In several areas, the Legislature can
and should provide more certainty:
1 . Require updated Guidelines, and make the
Guidelines a "safe harbor" that protects �.
lead agencies and project applicants who do
what the Guidelines require.
2 . Eliminate redundancy in CEQA by requiring
cumulative impact and alternatives analysis
only at the planning stage. These
requirements do not meaningfully relate to
single projects .
3 . Strengthen the provisions of CEQA for
focussing on significant issues and.
disregarding insignificant impacts. Put
focussed EIRs and mitigated negative
declarations into the statute, and provide
more protection to agencies using those
documents . For example, projects consistent
with general plan densities should be
subject to the substantial evidence standard
on the EIR/negative declaration decision,
not the court-established "fair argument"
test.
1 �,
4 . Establish an optional expanded notice and
P P
scoping process as a way to get early issue
resolution for EIR projects. If adequate
notice is given on a particular issue (for
example, the range of alternatives to be
analyzed) , then disputes about that issue
must be raised during the scoping process.
This expands public participation, allows
the public to make meaningful comments
before the project and the environmental
analysis are locked in, and should
streamline EIR preparation for complex
projects.
5 . Clear up uncertainties in CEQA litigation.
Consistent with current statutory
provisions, specify that reviewing courts
are limited to the administrative record of
the agency. Establish a time limit for the
hearing on the merits in CEQA actions.
D. These suggestions, which are set forth in more
detail in section III , below, will help to reform
CEQA so it is not an easy way to stop almost any
project . With careful drafting, CEQA can be
reformed to eliminate the problems without
cutting public disclosure or environmental
protection.
II . HOW FAR SHOULD WE GO IN SEEKING CEQA REFORM?
A. We should not eviscerate environmental protection
based upon economic fears . Instead, we should
focus on those parts of the CEQA process that
provide little environmental benefit and lots of
processing cost.
B. If the task of CEQA reform, however, is to
attract or keep business that is being wooed by
promises of two week project approval in some
other state, however, we have to do more than
tinker with the provisions that create the most
problems.
C. The balance between CEQA' s goals and the amount
of paper work and time that we throw at those
goals is seriously out of whack. We should be
getting much more environmental bang for our
processing buck, and the reforms suggested below
are a starting point for bringing some
sensibility back to the process.
2
III . PROBLEMS AND SUGGESTED REFORMS
A. Update the CEQA Guidelines and Make Them an
Effective "Safe Harbor" When Agencies Comply with
Guideline Requirements
Problems: (1) The Guidelines have not been
revised since 1985, they are outdated, and they
have become a trap for the unwary rather than a
road map for compliance.
(2) Courts often establish new CEQA requirements
that exceed the Guidelines, and the courts still
have not decided whether or not the Guidelines
are binding.. Thus the Guidelines do not provide
a "safe harbor" for lead agencies .
Solutions: (1) Require OPR to issue a revised
set of the Guidelines . Where the existing law is
uncertain due to conflicting court cases, provide
legislative direction.
(2) Amend the statute to provide that the
Guidelines are binding and that courts should not
impose requirements that exceed the Guidelines.
B. Eliminate Redundancy and Bloated EIRs by Keeping
Plan-Level Issues in Plan-Level EIRs
Problems: (1) EIRs have become bloated with
redundant and unnecessary analyses . Many
planning-level issues such as cumulative and j
growth-inducing impacts of projects are
constantly reconsidered for each project before a
local agency. Often these plan-level issues do
not relate meaningfully to the decision before
the agency, for example, what is the point of an
alternate site analysis if a lead agency cannot
force a private applicant to develop another
site?
(2) Cumulative impact analyses for specific
projects do not meaningfully relate to lead
agency decisions, because the solution to those
background problems cannot legally be loaded onto
one project . Often, this analysis has already
been done at a planning stage and it is wasteful
to do it over again.
3 .
(3) For all EIRs, the provisions regarding
project alternatives and cumulative .impact
analyses need to be more certain, and the statute
and the Guidelines need to provide more effective
guidance.
Solutions: (1) Evaluate the big picture only at
the planning stage. When a project is consistent
with the density or building intensity standard
in a local general plan, for example, the EIR
should evaluate only project specific impacts,
not project alternatives, cumulative impacts, or
other area-wide concerns .
(2) Similarly, when projects are consistent with
adopted resource plans (such as a habitat
preservation plan or air quality management plan)
no further analysis of that impact should be
required beyond establishing consistency with the
plan.
■ (3) The statute should specify that analysis of
alternate project sites is not required when the
lead agency is considering a private applicant ' s
project or when there is a another reasonable
basis for not looking at alternate sites (for
example, if the project is a jail expansion,
there may be no reason to look at sites other
than the site next to the existing jail) .
C. Strengthen the Provisions in CEQA Which Encourage
�. Elimination of Insignificant Issues and Focus on
Significant Issues
Problem: A variety of CEQA provisions are
designed to limit CEQA analysis to significant
issues, and to exclude minor prbjects. Court
rulings have created uncertainties which defeat
the purpose of these simplifying devices :
agencies will be less likely to make the process
simpler if they create more risk by doing so.
Specifically:
(1) There is too much uncertainty about when
exemptions to CEQA apply.
(2) Simplifying devices such as focussed EIRs and
mitigated negative declarations are unusually
vulnerable to legal challenge.
4
1
Solutions: (1) Keep the categorical exemption
process simple by reaffirming that the
substantial evidence test applies to exemption
decisions.
(2) Direct OPR to consider or add new categorical
exemptions . Extensions of tentative subdivision
maps should be exempt because no new activity is
being approved.
(3) Add statutory provisions authorizing
mitigated negative declarations .
(4) Add statutory provisions authorizing focussed
E°IRs (where insignificant impacts are eliminated
during the initial study process) .
D. Amend CEQA Scoping Provisions to Allow for Early
Notice and Dispute Resolution, to Reduce Late
Comments, Litigation and Controversv
Problem: By the time the draft EIR is released,
substantial funds have been expended, the lead
agency and the project applicant resist changes,
and the public feels excluded from the process .
This creates new controversies and deepens
existing ones. Also, lead agencies and private
Applicants don't learn about problems and
controversies until late in the process, and the
risk of litigation accordingly increases.
Solution: Give lead agencies the option of ,
providing a more detailed and early notice of the
project, and conducting the CEQA scoping process
(deciding which impacts to review and how) ,
through public hearings. This increases public
disclosure and allows everyone to look briefly at
the project before the EIR is prepared. The
notice of preparation should be binding, so that
matters which are mentioned in the NOP cannot be
raised later . Later challenges would be limited
to the agency's compliance with the NOP, new
issues that may come up, changes in the project,
and the like.
This process should be optional for several
reasons. It avoids a state mandate, it gives
local agencies the flexibility to use the more
detailed notice for a more complex or
controversial project.
5
E. Bring Certainty Back to the Standards Governing
CEQA Litigation
1. Confirm the Judicial Standard of Review
Problem: Courts are confusing the standards of
judicial review that apply to CEQA decisions by
public agencies. Most CEQA decisions by lead
agencies are governed by the traditional
"substantial evidence" test (where the decision
is upheld the agency' s decision is backed by
substantial evidence) . A court ruled in 1980
that the "threshold" decision of whether to
prepare an EIR is governed by the "fair argument"
standard (the Friends of B Street case) ; this
standard has been accepted as general practice,
I although the statute still refers to the
substantial evidence test for- all CEQA
decisions . Whether or not the court was right in
1980 , the courts are now beginning to confuse the
two standards.
Solution: For public agencies and project
applicants who are defendants in CEQA litigation,
the ideal reform would be a return to the
substantial evidence test and a legislative
overruling of the Friends of B Street decision
establishing the "fair argument" standard.
A more limited reform would be a provision
reaffirming the applicability of the substantial
evidence test for all CEQA decisions apart from
the threshold EIR/negative declaration decision.
This is consistent with the current language of
the statute, but courts too often are
disregarding the statutory provisions
establishing the substantial evidence test as the
governing standard.
2. Preserve the Administrative Record as the
Basis for Judicial Review
Problem: Courts are not limiting CEQA
litigation to the administrative record before
the agency, and are allowing evidence outside
thisrecord to be brought in when the agency
decision is a quasi-legislative one (such as a
general plan amendment) reviewed in ordinary
mandamus under Code of Civil Procedure section
1085 (as opposed to administrative or
quasi-judicial actions such as a land use permit
reviewed under CCP 1094 . 5) . This eviscerates the
6
requirement that opponents exhaust their
administrative remedies by presenting challenges
to the agency when it considers the CEQA document
and can respond to the challenge, rather than
. lying in wait for the court proceeding.
Solution; If makes no sense for the rules
relating to admission of evidence to be based
upon whether the agency's decision is
quasi-judicial or quasi-legislative; the CEQA
requirements for both kinds of action are the
same, and the evidentiary rules should be the
same too. The Legislature should resolve this
confusion about admissibility of evidence outside
the record by amending CEQA to make it clear
courts are limited to the administrative record.
New evidence should be submitted to a reviewing
court only if members of the public were not
given an opportunity to present such evidence
during the administrative proceedings, or the
evidence was improperly excluded from the record
by the agency.
F. Keep economic and social analyses out of CEQA
Problem: A variety of groups want to Put
economics into the CEQA process" . The
suggestions include adding economic analysis to
determing whether the cost of mitigation is
excessive, and adding economic or community
impact analyses to provide special protection to
disadvantaged communities.
Solution: Keep CEQA's mission limited to
environmental disclosure. Project applicants and
public agencies will be far more vulnerable to
legal challenges for a wide variety of projects
if they are subject to new economic or community
impact analysis requirements.
If there are problems with fees and exactions,
they should be handled in the Government Code
sections relating to fees. If there are problems
with impacts in disadvantaged communities, they
could be handled by new planning or findings
requirements. CEQA has become complicated
enough, however, without adding an entire new
area of analysis.
7
GREENBELT ALLIANCE TEL : 1-415-543-1093 Jan 11 .93 12:37 No .004 P .01
11111111111111111
P E. O .r I. '1: G O R O P E N-^S P A C P.
STATEMENT TO SENATE JUDICIARY COMMITTEE
IMPROVEMENTS TO CEQA
Prepared by
Zach Cowan, Vice President and Mark Evanoff, Field Representative
tJanuary 12, 1993
�' •.IOS uction : : : . ... . .
'Ib some extent, CEQA is a paper tiger. On the one hand, the amount of harm-it has
prevented over the last 20+ years is probably incalculable. On the other hand, it allows,
agencies to approve even the most unnecessary, damaging projects if they are
determined to.
There arecertainly improvements that could be made to CEQA. However, we have
found that-many of the criticisms leveled at CEQA are exaggerated or apocryphal, and
that many proposed "solutions" are far broader than the alleged problem they arc -
offered to solve. In fact, It is our observation that many of the problems that have been -
Identified are not really problems with CEQA, as much as problems with the way land
:use planning works(or does not work) in California. We believe that appropriate .
modifications to general plan law -- perhaps with some complementary changes to
CEQA -- would more directly and more successfully address the frustrations of
citizens, local governments, business and developers.
MAIN OFFICE 116 New Montaommy Sulte.W, San Frandsoo CA 94105•(415)543.4291
SOUTH DAY 0WICH• 90 West Badding Sults 224 San Jolie CA "1260 (408)"34W9
- The Bay Area —Keep It Goren /
GREENBELT ALLIANCE TEL :1-415-543-1093 Jan 11 ,93 12:38 No .004 p.02
Cl9QA►Testimony Page Two
pem�tlloll..lan
Local agencies should be provided financial support to help them pay for CEQA
compliance. This is of particular necessity if more CEQA review is to be *front-
loaded", that is, done at the general plan level, instead of at the project level (where a
developer can be forced to pay).
UWgte CEOGuidelines
It is time to update the Guidelines to tape into account ambiguities and gaps that
have,,come to light, and to reflect current case law and CEQA amendments.
Irjjggrated EIRs on Large or HegiQnAl Proiee
Provision should be made for conducting a single environmental review for large
enterprises which involve more than one agency. For instance, opponents challenged
the F..IIt on the Tri-Valley Wastewater Agency sewer project in Alameda County
because it did not adequately address growth inducing impacts or include a smaller-
capacity alternative. These were legitimate concerns, but they should have boon
addressed by the local land use agencies'bdga the sower project was proposed, the
agency.formed, and the sewer EIR prepared.
Conduct Plan Level Environm ntalview at Regional Level
Many critics contend that CEQA and CEQA lawsuits make any project uncertain
and risky, thus increasing its cost. Likewise, many citizens contend that there is no
certainty that specific resources or areas will be protected. One proposed way to
address'these problems is to conduct a greater degree of environmental review at the ..
general plan stage, and make it easier for projects consistent with the general plan to
move forward without redundant CEQA review. There are currently several CEQA and
' Guidelines provisions that permit this, but apparently to no one's satisfaction.
V&believe that a number of changes should be considered. First, existing CE A
and Guidelines provisions should be consolidated and refined.. Second, as much plan
level environmental review as possible should be done,at the regional level, either by
new regional governance agencies or by local agencies working together.
4
GREENBELT ALLIANCE TEL : 1-415-543-1093 Jan 11 ,93 12:38 No .004 P.03
CSQA testimony Page Thrx
Front loading environmental review also requires changes to two related aspects of
planning law. First, much greater attention must be paid to encouraging public input at
the planning stage, rather than the project stage. Agencies must ensure that the public is
as fully involved at the planning stage as it frequently Is at the project stage. While it is
easy for agency employees and officials, and developers, to be fully involved at all
stages on the planning/approval process, it is unrealistic and unfair to demand the same
of members of the public without making sure that the process is open to them and
encouraging them to participate. Greatly improved methods of involving the public
must be identified and included in the,general plan and specific plan processes. S000nd,
the consistency requirement must be strengthened. Currently, agencies generally argue
that consistency determinations arc essentially discretionary and not subject to
meaningful judicial review, and that the general plans with which projects must be
consistent are"general" and "flexible% and "subject to interpretation". If so much ,
Project-level environmental review is to be eliminated on the basis of"consistency",
that concept must be given substance. In particular, (a) general plans must include mon
specific and predictable requirements against which projects are to be judged; (b)
agencies must be required to develop and make available for public review a definod
record of,evidence relevant to the consistency determination; and (e) courts(perhaps a
land use court) must be granted a greater degree of oversight of consistency
determinations.
Finally, we must caution that unless properly limited, front-loaded environmental
review will permit agencies and developers to gloss over or ignore specific, mitigable
project impacts because an earlier plan-level EIR has acknowledged a significant
cum�ilative impact. For instance, a plan-level EIR may well acknowledge an
unmitigable significant impact on habitat and wildlife. A subsequent project may have
an impact on a particular species which maybe feasibly mitigated. The statute and
Guidelines should ensure that site-specific impacts will be fully considered under the
"fair argument" test (as held in Sierra C7ub v Sonoma), and that adequate initial review
of site-spoeifie impacts would be conducted.
Define Scone of Socioeconomic Information in EiRs
In an increasingly urban society, the line between "environmental" data and "social"
data is increasingly blurred. Both environmental and socioeconomic considerations are
critical to evaluating a project's impacts on the human environment and communities
For instance, who is to say that the safety, property value and "quality of life" impacts ,
in a poor community which result from a freeway or traffic generated by an office
project are environmental or social/economic?The affected community would we the
these impacts as being inextricable: additional noise, fumes and cars would have CEQA
i
i
GREENBELT RLLIRNCE TEL :1-415-543-1093 Jan 11 .93 12:39 No .004 P.04
CfiQA 74flmonY Page Four
adverse impacts on property value and quality of"life; in some cases, enough to destroy
a community's identity and fiinction. 'Riese are important issues. CEQA should be
amended to clarify the role of"socioeconomic information" in EIRs.
InducinE Cirowth Includes Provisions of Additional InfrastructureCCaipgdw
CBQA should be amended to clarify that the concept of inducing growth includes
provision of additional infrastructure capacity of all types, as well as indirect growth
Inducement. An example of the latter is where a large infrastructure project induces
local agencies to approve more development to help pay large capital costs.
In addition, the statute should be amended to explicitly reject the "independent
utility" test for determining the scope of an SIR on road segments, and overrule Del
Mar nkrace Concervancy, Inc. v. City Council.
drove Guidance for rormulation of Alternatives
ORs frequently include a large IIuMbeI of alternatives, but not a sufficient am of
alternatives. Many EIRs include several alternatives with similar levels of impact, or
even greater impacts than the proposed project. The Guidelines should be amended•to
clarify that the alternatives requirement is intended to force agencies to devise
alternatives which reduce or eliminate address project impacts. An additional
mandatory alternative should be required, which would, to the maximum extent
permitted by the fundamental project objectives eliminate or maximally.reduce Impacts.
Critical to the issue of devising an adequate set of alternatives is the problem that
frequently agencies define, or allow private project proponents to define, the project
objectives too narrowly. An EIR prepared by Contra Costa County on a 37-unit
housing project defined the project objective(CCR15124(b)) not as developing luxury
houses. but as developing 37 units of luxury housing. On this basis, it refused to
consider alternative with fewer units because they were inconsistent with the project
objectives identified in the MR. While the project as proposed was certainly 37 units,"
to allow the fundamental project objective to be defined as 37 units led to an absurd
result: the EIR's failure to consider an alternative that would have eliminated its
remaining significant impacts.
Greenbelt Alliance has consistently advocated preparation of"Greenbelt
Alternative" an alternative that reduces the size of the developed area, increases the
density, directs development to and locks in an urban limit line. This type of
alternative is not evaluated.
GREENBELT RLLIRNCE TEL : 1-415-543-1093 Jan 11 .93 12:40 No .004 P .05
CE,QA Tstimony Page Five
Codify Sierra JA&v. Colura Costa Cou»ty
Amend CFiQA to require that override findings be supported by substantial avidenpe
in the record, and to codify the recent decision in Sierra Club, et aL v Contra Cas14
County. et al.
-CMI&j and Use Cgurt
We believe that an expert land use court would be able to render better, more .
consistent decisions, more quickly than the current court system..It would thereby
eliminate much of the delay and uncertainty with which many local governments and
.project proponents are concerned.
Standard of i w and R=rd
Currently, case law, is unclear as to the appropriate standard of review of the
adequacy of an EIR's analysis. [We do not address the appropriateness of the
substantial evidence standard in reviewing agencies' findings, made after an EIR is
certified.]
However it is stated, the standard should result in the accomplishment of CEQA's
fundamental goal: full disclosure of relevant information and analysis. The substantial
evidence standard -- which was designed for much more formal adjudicative
proceedings--does not do this, as it allows courts to look only at what the EIR
includes, and prevents them from considering whether an EIR has excluded relevant
information and analysis. Rather,judicial review of MRs should allow courts to
determine if an EIR has adequately disclosed both sides of an issue, and included all
relevant information. Litigants should be permitted to present new information to courts
to show that an EIR is inadequate, as long as the issue was raised during the EIR
process.
In addition, the statute should specify exactly what documents and types of
documents are to be considered part of the record of proceedings, and require that they
be identified as such and made available to the public at all phases of environmental
review.
' Define Standard foLLTnjunctive Relief
Currently injunctions under CEQA are governed by traditional equitable prinoiplas.
These principles are appropriate for disputes between private litigants with similar
stakes. They are not appropriate for actions prosecuted in the public interest. CP-QA
should specify that in cases where the plaintiffs have no financial stake or only a small
..M t..- ,-.:r..r+-•ice..-.�..,•��� �,,.. ,.lr�..�1���fir•� .,...p. t•++►r-w...•ww+v A1�M+�M�vK•hl'T .... : .. �,:,..�1. -
1
GREENBELT ALLIANCE TEL :1-415-543-1093 Jan 11 .93 12:40 No .004 P.06
CEQA Testimony Page Six
diffuse financial stake in the outoome, no bond may be required. In additional, it should
clarify that significant harm to the environment shall be considered irreparable; and
shall not be outweighed by economic harm. In particular, the statute should make clear
that the environment is not limited to wilderness and endangered species, but also
include neighborhoods and human communities.
)Bmurags Se.�ment
The CEQA law could provide greater incentives for settlement before hearing.
Settlement avoids expensive litigation and can often meet the concerns of the interested
parties.
A year ago Greenbelt Alliance sued Contra Costa Transportation Authority. The
Congestion Management Program contained a road that shared the same alignment as
the Mid State Tbll Road. We felt the BIR should evaluate the impact of the toll road.
Staff of the two organizations reached agreement on settlement, which involved
limited additional study. The directors of the Authority did not accept the terms, the
case was litigated, and the courts ruled the toll road was not a reasonably foreseeable
project, and therefore the LIR did not have to evaluate its impact. Preparing the study
stiU would havebeen cheaper for the Authority than litigation. And now, as a second
LIR is being prepared on a new Congestion Management Program, many of the.
questions we asked a year ago, may now be.responded to. It would have been simpler .
if this occurred in the first place. '
Five years ago Greenbelt Alliance, Oakland, and San Leandro sued the'IH Malloy
Wastewater Authority for the new super sewer proposed for the Livermore Valley.
Greenbelt Alliance won. The courts ruled that the MR did not evaluate the growth
Inducing impact and the impact of discharge into San Francisco Bay.
A new TWA EIR has been certified. The project is bigger than it was five years
ago and the point of discharge will have a greater impact than the site selected give
years ago.
A nefw set of cities arc about to sue. Greenbelt Alliance is taking an active role to
bring the cities of Contra Costa and Alameda County together to settle and find a
creative solution to the problem before litigation occurs. The political make-up of the
'Irl Valley Wastewater Authority has changed since the EIR was certified and there is a
good chance to resolve the issue.
' GREENBELT ALLIANCE TEL : 1- - -
415 543 109.3 Jan 11 ,93 12 :40 No .004 P .07
CEQA Ustimony Page Seven
BCQuire Agencies to Publish Response to Comm
Most agencies distribute Response to Comments before certifying the EIR, but not
all.
In Dooember 1992, the city of Dublin did not distribute response to comments or
notify people who responded to the Draft EIR, that the final EIR was available. People
who called the city to find out if the Final EIR was prepared were charged $50.00 for
the document.
Greenbelt Alliance submitted extensive comments on the NOP for the 1993 City of
Brentwood'General Plan. The organization was not notified when the Draft EIR was
published.
Define Re nably Eareseeable Projects
Greenbelt Alliance filed three suits on the Mid State 7bll Road. In one can Contra
Costa County approved a amendment for a goad that shared the same alignment as-the
Mid State Toll Road. In another, the Contra Costa Transportation Authority approved
it Congestion Management Program that contained road improvements that shared the `
am alignment as the Mid State 7bll Road. In each case the courts have ruled against
us arguing that the toll road is not reasonably foreseeable.
We have a difficult time accepting this considering that the California W1 Road
Development Group: employs several people preparing detailed technical work on the
project; published detailed maps and financing programs for the project; and that
Caltrans chose to sign a very detailed Franchise Agreement, long term contract for the
project.
'�'Ni+�.Mi�����I01 'iM il. ... .i.:r.q !/��QfR� RM'd:1•l
OUTLINE OF PROPOSED CEQA REFORMS
(For Discussion Purposes Only)
California Bdilding Industry Association
Task Force on CEQA Reform
A. Provide Guidance in CEQA's Polices tatements
1. Mance environmental and other issues.
2. Don't rethink prior planning in each EIR.
3. Put Goleta in the Policy Statement.
B., Streamline-CEQA by Front-Loading the Process Without Imposing-New Plannine
Requirements and Eliminating Redundant Review
1. Streamline the EIR process by emphasizing the use of focussed, less complex
EIRs.
2. Restrict analysis requirements for projects_consistent with thegoverning plan.
3. Specify that no alternate site analysis is required for private projects.
4. Eliminate cumulative impact analysis for projects consistent with applicable
resource plans.
C. Make the CEOA Process Clearer and More Certain
1. Adopt the substantial evidence test forjudicial review.
2. Delete cumulative impacts as a mandatory finding of significance.
3. Provide statutory support for the use of mitigated negative.declarations.
4. Provide a workable definition of "significant" as it relates to air quality impacts.
.5. Exempt map extensions.
D. Encourage Early Notice/Issue Resolution, and Clarify Litigation Procedures
1. Provide a local-option safe harbor for EIRs by allowing for a binding notice of
preparation process.
2. Strengthen the requirements for exhaustion of administrative remedies.
Outline of Proposed CEQA Reforms
Page 2
3. Limit reviewing courts to the administrative record and keep discovery out of
CEQA litigation.
4. Require courts to dispose of all EIR issues raised.
� Fo
5. Set time limits on the hearing on the merits.
b. Establish a pleading hurdle or frivolous suit standard to help prevent abuses of the
CEQA process.
SUMMARY OF PROPOSED CEQA REFORMS
(For Discussion Purposes Only)
CB� A California Building Industry Association
Task Force on CEQA Reform
' These are intended to be balanced, realistic proposals that offer real help in maldng the process
more clear and certain for all involved. The four sets of proposals are intended to do the
following:
* Provide balance in CEQA's policy statements
r * Streamline CEQA by front-loading the process without imposing new planning
requirements and eliminating redundant review
* Make the CEQA process clearer and more certain
* Encourage early notice/issue resolution and clarify CEQA litigation procedures
These topics, and the specific proposals, are set forth below. This outline may be revised.
While we have examined a broad range of proposals in preparing this list, we welcome
suggestions as to specific proposals, additional proposals that should be considered, or proposals
that should not be pursued. Please provide any comments to Richard Lyon at CBIA by phone
(916) 443-7933-or fax (916) 443-1960.
A. Provide Guidance in CEQA's Policy Statements
Theolic statements in the law are an important source of direction to courts
P Y
interpreting the law. We recommend adding the following statements of policy:
1 1. Balance environmental and other-issues.
Specify that CEQA is one part of the overall planning process and environmental
concerns raised in CEQA documents must be balanced with other concerns,
including economic development and the creation of jobs and housing.
2. Don't rethinkrior planning in each EIR.
P P 8
Specify that CEQA review should be coordinated with governing local and
regional plans to avoid duplication of environmental review. Agencies should
rely upon prior planning decisions in determining. the appropriate .scope of
environmental review and the type of CEQA document to be prepared for
particular actions.
1
Summary of Proposed CEQA Reforms .
Page 2
3. Put Goleta in the Policy Statement.
Add to CEQA the Supreme Court's statement from Goleta that, while CEQA
requires informed decision making, CEQA's provisions should not be subverted
into instruments for the oppression and delay of social, economic or recreational '
development and advancement. .
B. StreamlineCEQA by Front-Loading the Process Without Imposing New Planning
Requirements and Eliminating Redundant Review
1. .Streamline the EIR process by emphasizing the use of focussed, less complex
EIRs.
Authorize focussed EIRs in the CEQA statute (now in-Guidelines only). This
would expand the current CEQA guideline provision by authorizing limited scope
EIRs (analyzing a few impact areas rather than all categories of impact) based
upon an initial study which is use to limit the range of the EIR. The amendment
would specify that agency decisions on the scope of focussed EIRs are to be
upheld if there is substantial evidence supporting the decision (so opponents could
not use a "fair argument" test to challenge the scope of the EIR). The new ,
legislation should specify in general terms what will be included in focussed
EIRs.
2. Restrict analysis requirements for projects consistent with the governing plan.
Certain environmental analyses make sense in an overall planning context, but do
not make sense when applied to projects which are consistent with overall plans.
When projects are consistent, EIRs would not be required to include a cumulative
impact analysis, a project alternatives analysis (other than the no project '
alternative) or analysis of growth inducing impacts.` In addition, if the only
possible impacts of a project have already been analyzed in the overall plan or the
Plan EIR, then a negative declaration can be used for the specific project rather
than anEIR.
The definition of consistency should be spelled out to provide certainty and avoid .
confusion. This provision should apply to a project which is consistent with the
density or building intensity standards in a local general plan and should also ,
apply to projects which provide a less intense use than the general plan (changes
from commercial or industrial to residential use, for.example). This shouldalso
apply to the analysis of any project within a redevelopment area (to the extent
such analysis is required at all).
3. Speck that no alternate site analysis is required for private projects.
This is included within the Goleta decision, but it will be helpful to add it to the
statute.
Summary of Proposed CEQA Reforms
Page 3
A. Eliminate cumulative impact analysis for projects consistent with applicable.
resource plans.
If a project is consistent with a local or regional plan for a particular.resource,
it is-redundant to analyze cumulative impacts of the project on that particular
resource; instead, the lead agency should rely upon the overall plan and no
cumulative impact analysis would be included in the -
project EIR. For example,
if a project is consistent with a local air quality plan, no cumulative air quality
analysis would be required. If a project were *consistent with a multi-species
habitat preservation plan, no cumulative impact analysis on endangered species
would be required.
C. Make the CEQA Process Clearer and More Certain
1. Adopt the substantial evidence test for judicial review.
Change the standard of judicial review for CEQA projects to encourage and
protect the use of negative declarations and mitigated negative declarations.
Curtently, under the court cases interpreting CEQA, if an opponent presents a
"fair argument" of potential impact, an EIR is required (note that the fair
argument test is not explicitly stated in. the law itself). Change the standard so
an agency's decision to prepare a negative declaration or an EIR for a project will
be upheld if the decision is supported by substantial evidence. This is the
traditional test applied by courts in reviewing public agency decisions.
2. Delete cumulative impacts as a mandatory finding of significance.
Currently, an agency must prepare an EIR for a project if -one of several
mandatory findings of significance apply to the project. One of these mandatory
findings requires preparation of an EIR whenever,the cumulative impacts of a
project will be considerable. This is unrealistic, given that most projects have
some degree of cumulative impact; it is also an area of great uncertainty, as it is
not known how the case law on cumulative impacts will be applied in this context.
(it appears, based on the Guidelines forms, that the term has a different meaning
in thi's context than it does in the EIR 'context, but this is far from certain).
The EIR/negative declaration decision will be much clearer if this mandatory
finding is deleted.
3. Provide statutory support for the use of mitigated negative *declarations.
Currently, the CEQA Guidelines authorize mitigated negative declarations, but
the statute does not explicitly do so. This change would provide more certainty',
so local agencies should be more willing to process projects with a negative
declaration when the project impacts can be mitigated'.
Summary of Proposed CEQA Reforms
Page 4 '
4. Provide a workable definition of'significant" as it relates to air quality impacts.
Specify that an air quality impact is not significant if the project complies with
the local air quality management plan and is within the population projections
upon which the AQMP is based. '
5. Exempt map extensions.
Establish a statutory exemption from CEQA for all extensions of time for ,
tentative and vesting tentative subdivision maps.
This could be qualified by stating that, unless there is a change in the project ,
requiring a subsequent EIR, no CEQA analysis of the extension should be
required
D. Encourage Early Notice/Issue Resolution and Clarify CEQA Litigation Procedures
1. Provide a local-option safe harbor for EIRs by allowing for a binding notice of
preparation process.
Thisro osal gives lead agencies the option of obtaining early comments on
P P
environmental issues and the scope of the EIR. Agencies would have the option
of conducting a broader CEQA scoping process, including public notice. and ,
hearing, with a notice of preparation detailing issues, such as the range of impacts
to be analyzed in the EIR, the alternatives to be considered, and the methodology
to be used in studying certain matters. The content of the notice would be in the
agency's discretion. However, if a matter is set forth in the notice of
preparation, then that matter cannot be raised in a court challenge unless the
litigant had made a good faith effort to provide a timely and specific written or
oral objection in response to the NOP.
2. Strengthen the requirements for exhaustion of administrative remedies.
Amend CEQA Section 21177 to require project opponents to make more specific
objections to EIRs. Also, with respect to material contained in.the draft EIR,
require the objection to be raised during the public comment period. Failure to
make a sufficiently specific objection, or to.make a timely objection, would be
a failure to exhaust administrative remedies and would bar suit on the particular '
claim. Also, specify that the timeliness and specificity requirements apply to
subsequently formed organizations under Section 21167(c).
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Summary of Proposed CEQA Reforms .
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3. Limit reviewing courts to the administrative record and keep discovery out of
CEQA litigation.
Specify that, regardless of whether CEQA litigation is.proceeding pursuant to .
' Section 1094.5 or Section 1085,. the court is limited to reviewing the
administrative record and no evidence outside the record is to be introduced.
' 4. Require courts to dispose of all EIR issues raised.
' Specify that, when a court evaluates an EIR, the court must decide all of the
issues which are.raised by the lawsuit challenging the EIR. This is designed to
limit the problem that arises when a court decides an EIR is inadequate on one
basis and .does not reach the other arguments; there is no closure on those other
arguments and they can be asserted again when a revised EIR is prepared in
response to the court order.
5. Set Time Limits on the Hearing on the Merits.
Currently, CEQA petitioners must request a hearing on the merits, and that
request must be made within 90 days. There is' no time limit, however, on
setting the hearing. The law should state that such hearings are required to be
held within some time period, probably 60-90 days after the request for hearing
(or 150-180 days after the suit is originally filed).
6. Establish a pleading hurdle or frivolous suit standard to help prevent abuses of
the CEQA process.
1 Several ideas have been discussed for handling abusive or frivolous CEQA
litigation. The ideas under discussion are:
* Establishing a motion to strike process, similar to the anti-SLAPP suit bill
just passed by the Legislature. In order to allow protects to move
forward,'a respondent or real party in interest in a CEQA suit would be
' entitled to bring a motion to strike, which should be granted unless there
is a reasonable probability the petitioner will prevail at the hearing on the
merits.
* existing provisions -in the Civil Procedure Code for
Specifying that a st g p o e
sanctions for frivolous suits apply to CEQA suits. These provisions
already do apply (because they apply generally to most suits), but it may
be helpful to include a specific statement.to that effect.
* Allowing a motion. by a prevailing respondent or real party in interest
when the petitioner loses.and the court rules, in response to the motion,
that the suit was meritless. This is based upon a similar provision in cases
interpreting federal civil rights law (42 USC § 1988).
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PROCESSING AND CEQA STREAMLINING
IN AN
ERA OF GROWTH MANAGEMENT:
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OBSTACLES AND OPPORTUNITIES
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DAVID A. GOLD
CONTRA COSTA COUNTY CEQ A WORKSHOP
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FEBRUARY 24, 1993
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MORRISON & FOERSTER
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SAN FRANCISCO • LOS ANGELES • SEATTLE • DENVER• NEW YORK•WASHINGTON, D.C.
rSACRAMENTO • PALO ALTO •WALNUT CREEK• ORANGE COUNTY
LONDON • BRUSSELS • HONG KONG •TOKYO
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PROCESSING AND CEQA STREAMLINING
IN AN ERA OF GROWTH MANAGEMENT:
OBSTACLES AND OPPORTUNITIES
David A. Gold]
' I. INTRODUCTION
' From a landowner's perspective, legislation providing for.statewide CEQA reform or growth
management at the regional and local levels may provide new opportunities for more rational and
' streamlined project processing. While CEQA reform could occur independent from more comprehensive
land use legislation, this paper will discuss CEQA streamlining in the context of other project processing
issues.
The perspective of the paper has been developed largely from Morrison & Foerster's
fsignificant experience in representing clients vitally affected by CEQA and growth management issues.
Morrison & Foerster frequently represents clients who are processing projects of regional significance in
' counties with adopted local growth management and urban limit line programs. Morrison & Foerster also
has represented the Northern California Building Industry Association in connection with legislation
' proposed to establish regional growth management in the Bay Area, Senate Bill (SB) 797 (Morgan). In
addition, Morrison & Foerster assisted the Bay Area Council, a prime sponsor of SB.797, by examining the
existing statutory authority of regional agencies in the Bay Area to assess the ramifications of merging these
regional agencies.
H. CURRENT PROJECT PROCESSING: THE
REGULATORY STATUS QUO
A. Projects of Regional Significance
Projects of regional significance2 face a myriad of regional, state and federal requirements in
addition to those at the local level. Such projects include large master planned residential communities,
1 David A. Gold is a partner with Morrison & Foerster's Land Use and Environmental Group in its
Walnut Creek office. Mr. Gold wishes to express his appreciation to Heather B. Lee, associate, and Karen
Bowers, policy analyst, for their assistance with the preparation of this article.
2 CEQA Guidelines § 15206 includes in the definition of Projects of Statewide, Regional or Areawide
Significance, projects that have "the potential for causing significant effects on the environment beyond the
city or county in which the project would be located."
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commercial centers, hospitals or industrial facilities in unincorporated areas often wedged between warring ,
cities and service districts. While processing entitlements for smaller projects within an existing city can
prove difficult, the issues presented in processing a large scale regionally significant project uniquely
illustrate the failure of the current land use regime. Coupled with the likelihood of litigation by no or
slow-growth citizens groups and neighboring communities, the approval process for these larger targets can '
be particularly cumbersome and fraught with uncertainty. Moreover, new growth management performance
standards at the local level have posed problems for developers of such projects regarding how to fund '
major infrastructure improvements without a coordinated capital financing approach'at the regional level.
The growing number of agencies with project review authority creates increasing uncertainty '
in the approval process. As a result, these major impediments to projects of regional significance have
potentially severe economic and social consequences. For example, without such projects, local
governments will find it increasingly difficult to comply with state-mandated housing requirements and
jobs/housing balance issues. Also, without streamlining, important job and revenue producing projects will
flee California for states with a more rational approval process.
B. Major Project Processing Issues
Both developers and open space advocates are dissatisfied with the lack of predictability in '
California's land use regulatory framework. Some contend that, despite its inadequacies, the status quo is a
known quantity and should best be left alone. However, the notion of "one-stop shopping" for project
approvals has increasingly gained favor as developers see the regulatory framework expanding and
becoming more complex.
The daunting list of multi jurisdictional regulatory requirements that must be addressed by
projects of regional significance include: (1) wetlands and endangered species requirements; (2) state
affordable housing requirements; (3) regional air quality requirements; (4) stormwater permits;
(5) transportation and infrastructure growth management performance level requirements; (6) California
Environmental Quality Act ("CEQA")3 requirements, including mitigation monitoring; (7) annexation to
cities or service districts; and (8) Congestion Management Program requirements. This list, which is by no '
means inclusive, entails regulation by numerous government agencies at every level, including city and/or
county agencies and legislative bodies, regional water quality control boards, regional air districts, regional ,
3 Cal. Pub. Res. Code §§ 21000 et. seq.
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transportation agencies, Local Agency Formation Assessment Commissions, State Department of Fish and
Game, United States Environmental Protection Agency, and the United States Army Corps of Engineers.
' Thus, regardless of whether regional governance legislation is adopted, local governments' processing
control is increasingly subject to the authority of such agencies, particularly over regionally significant
' projects.
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III. CEQA AND GROWTH MANAGEMENT PROPOSALS — ,
POTENTIAL OPPORTUNITIES
A. One-Stop Shopping at the Regional Level
In the face of these difficulties, numerous legislative proposals at the state level have
recommended strategies for growth management, including government agency streamlining or r
consolidation of functions. In the Bay Area, a unique coalition of Bay Area business and environmental
groups joined to propose one such legislative solution. State Senator Becky Morgan introduced a bill '
adopting this proposal, SB 797, to merge the three single purpose regional agencies which address land use, '
transportation and air quality issues in the Bay Area: the Association of Bay Area Governments
("ABAG"), the Metropolitan Transportation Commission ("MTC") and the Bay Area Air Quality
Management District ("BAAQMD"). In addition, SB 797 proposed an interim process for developing a
regional plan for the Bay Area to determine where growth should occur over the next 20 years. The bill ,
passed the Assembly, but was defeated in the Senate by a 21-16 margin.
In the debate surrounding SB 797, questions arose concerning the extent to which existing '
regional agencies in the Bay Area already have significant legal authority over activities of regional
significance. In this.context, the Bay Area Council requested the assistance of Morrison & Foerster to '
examine the current power and authority of four existing regional agencies -- ABAG, BAAQMD, MTC,
and the Regional Water Quality Control Board (the "RWQCB"). Based on its research,
Morrison & Foerster produced a report entitled "The Extent of Regional Governance in the Bay Area: The
Authority of Existing Regional Agencies" (the "Report"). ,
The Report illustrates that, to a large extent, regional governance already exists in the
Bay Area. The Report makes several observations about project permitting and growth management at the
regional level, including:
• Existing regional agencies already have legal authority to exert significant direct and
indirect planning, permitting, rule-making, enforcement and financing authority over many activities of
regional concern, including: (1) air quality, (2) water supply and quality, (3) major new development, '
(4) transportation planning and improvements, (5) housing, and (6) solid and hazardous waste management.
• Many local government and private business activities already are limited by, or are
subject to, the authority of existing regional agencies, such as the BAAQMD, the RWQCB or the MTC.
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' • Due to litigation, legislation, and continuing community concerns about the potential
adverse effects of further growth, each regional agency faces increasing pressure to exercise its existing
authority in ways affecting a growing range of regional issues. For example, these trends have impelled
BAAQMD and MTC to act even more aggressively to coordinate their efforts to maintain mobility and
attain federal and state clean air standards.
• BAAQMD, in particular, has enormous potential power and more practical authority over
land use than many local governments have yet realized. BAAQMD currently has some authority to
mandate employer activities to lessen single-occupant automobile commuting by employees under certain
' circumstances, and it has significant authority over other indirect sources.
' • There is currently no general-purpose regional agency that coordinates, plans, implements
and enforces policies of regional significance; such activities are undertaken by existing single-purpose
' agencies within their respective areas of authority.
• Simply consolidating the existing regional agencies would not create an additional layer of
1 government. Integration of the current functions of these existing single-purpose regional agencies into a
cohesive structure potentially could increase government efficiency. Also, consolidation could bring about
' better reconciliation of the policies of the various agencies.
While regional governance legislation for an area such as the Bay Area presents potential for
' limited one-stop project streamlining, it also illustrates how more fundamental changes in State law would
be needed to assure the development community that processing schedules can be shortened and risks of
challenge reduced.
B. Issues and Opportunities in CEQA and Regional Growth
Management Legislation
All of the regional growth management proposals in the 1991-1992 legislative session,
including SB 797, contained some form of urban limit line program. From the developer's perspective,
such programs could be acceptable if they contain mechanisms ensuring that 1) development within the
' urban limit line will occur as market forces dictate, 2) housing will be built, and 3) infrastructure will be
provided. Some of these mechanisms could be contained in the context of a comprehensive growth
management bill and/or developed through separate amendments to existing state legislation, particularly
CEQA.
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1. CEQA Reform ,
Of all the regulatory impediments to development, the vulnerability of projects to legal
challenge under CEQA presents some of the costliest delays in the permitting process. Accordingly, with
the right mix of legislative tradeoffs, developers could view CEQA reform as one of the most important
preconditions to a viable regional growth management plan. '
Under current law,'CEQA requires preparation of an environmental impact report ("EIR") on
any project whenever substantial evidence supports a fair argument that significant impacts on the ,
environment may occur. Although CEQA proposes to eliminate duplication of review, as a practical matter '
the environmental review of regionally significant projects typically results in countless environmental
studies which delay and frustrate all parties involved, ultimately affecting the availability and cost of
housing or other needed public services.4
These comments are not intended to suggest that environmental analysis and studies are ,
without merit. Instead, the issue is whether under new legislation greater emphasis should be put on CEQA
at the earlier planning stages without subjecting consistent projects to subsequent CEQA review. '
The following are some conceptual proposals for CEQA reform:
• Master EIRs. Legislation could provide that CEQA could be satisfied through '
comprehensive local and county general plan EIRs, rather requiring individual project EIRs. Thus, projects
that are consistent with the already-certified EIR -- which should include a mitigation monitoring plan for
projected impacts -- should be reviewed only where specified by the plan EIR.
Another approach would be to strengthen and supplement existing CEQA provisions '
exempting housing projects from CEQA review if they are consistent with specific plans meeting certain
criteria. G.C. Section 65457(a). '
• Presumption of validity for certain project EIRs. Alternatively, CEQA could be
amended to provide a presumption of validity for an EIR on a project if it falls within an urban line or '
housing, commercial, or industrial development zone. In this case, it could be sufficient to rely on the
earlier general plan EIR, with little or no new environmental review, and establish a rebuttable presumption '
of validity to make subsequent legal attack more difficult. This is similar to the presumption of validity
4 CEQA and the CEQA Guidelines provide for the tiering of environmental review, program EIRs, the
use of EIRs from earlier projects, subsequent and supplemental EIRs, addenda, and incorporation by '
reference, and exemptions.from the EIR requirements for certain housing projects.
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given to a locality's general plan housing element if it has been reviewed and approved by the Department
of Housing and Community Development. G.C. Section 65589.3.
• "One bite of the apple" for governmental agencies. Statutes could provide for a legal
standard which requires future discretionary approvals to treat as insignificant any impacts already reviewed
in a general plan EIR, if the general plan meets certain criteria and if the project is planned within an urban
limit line or other growth boundary. This would require state agencies to participate in the environmental
review process at the general plan stage, and would prevent a second attack, or "bite of the apple," at the
' project stage.
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2. Coordination of Service District Planning with land Use '
Decisionmaking
Another opportunity for permit streamlining in the context of growth management legislation '
is for water supply and sewer treatment, police, fire, and other service districts plan expansions and
services to operate in a coordinated manner with general or regional plans. Under the status quo, projects ,
of regional significance encounter numerous politicized single purpose service agencies that frequently are
at odds with land use plans. '
Under existing law, service districts under county or city control are generally required to
provide service within their boundaries to any development approved by the county or city. There are open ,
issues as to whether a special district must provide service to all properties within its existing boundaries,
or whether it must provide only for reasonable expansions. For example, water districts at times deny '
service extensions even if the city or county finds that adequate water exists. The current system provides
no forum for realistically evaluating the unilateral decisions of single purpose service districts in light of r
state mandated housing goals and efforts to retain or attract industry.
Several possibilities exist for implementing a requirement that service districts coordinate
their service and planning with local land use decisions. These include:
• Clarify existing law to mandate that service districts provide service consistent with
general or subregional plans.
• Provide for required joint/coordinated planning. New statutes could require that
district plans must be consistent with local plans which, in turn, must be consistent with '
regional/subregional plans.
• Provide for mandatory service within district boundaries. State law also could
specifically provide that districts are required to serve those within their boundaries except under.limited
emergency circumstances. '
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3. Incentives for Infrastructure Funding
• Capital Improvement Plan. Another feature which might be included in growth
' management legislation would require local governments and special districts to develop a long-range,
coordinated capital improvements plan, including identified funding sources. Regionally-significant
projects present funding issues requiring inter jurisdictional coordination.
Under current law, local governments prepare and annually revise Capital Improvement
Programs ("CIPS" ) covering a four to seven year period. Special districts and agencies created by joint
' powers agreements that "construct or maintain public facilities essential to the growth and maintenance of
an urban population" may prepare a five year CIP.5
' In order to implement long-range CIPS, Government Code provisions could be amended to
require "long-term" (10 to 20 year) CIPS, including projected needs, to be prepared by all localities, local
' agencies, and special districts. Consistency between CIPS, or joint planning, could also be required.
• Funding For Infrastructure. In order to address fair share housing needs, growth
management legislation also could provide that state funding for infrastructure and local amenities be made
available only to those localities that meet measurable performance standards for the development of
housing.
State law currently requires each local general plan to contain a housing element.6 Although
' the Legislature has declared that the availability of housing is of vital statewide importance, and that
attainment of regional housing goals requires the cooperation of all levels of government and the private
' sector,7 no law currently provides a mechanism to encourage such attainment of performance standards.
Moreover, current law does not provide an enforcement mechanism to penalize those localities which fail to
meet their share of regional housing needs.
Possible approaches to implementing performance standards include:
• Establish a carrot & stick approach to stimulate compliance. Legislation could be
enacted which (i) sets out performance standards, (ii) requires annual or bi-annual review of local
5 Cal. Gov't Code § 65403.
' 6 Cal. Gov't Code §§ 65302.
7 See Cal. Gov't Code §§ 65580-65581.
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government performance, (iii) limits or eliminates state funding to noncomplying localities for amenities '
and infrastructure, and (iv) provides credits for communities willing to take more than their fair share.
• Create marketplace for "buying" a share of needs. Legislation could provide a
mechanism whereby each locality can meet its share of the region's housing needs, either by providing
housing or "buying" it for some other location in the region. If a locality did not want to, or could not, '
build or redevelop its share of the region's housing needs, it could provide funds (similar to in-lieu fees) for
housing and affordable housing. This marketplace concept would address the infeasibility of providing low '
income housing in cities with very expensive land values. Similar legislation was introduced in the 1991-
1992 legislative session.8 '
4. Reasonable Limits on Initiative and Referenda
Efforts to halt large, regionally significant projects late in the approvals process can occur '
under California's initiative and referenda laws. Reform in this arena is more difficult due to the ,
constitutional basis of these rights.9 However, a comprehensive approach to regional growth management
could add reasonable restraints to slow.or no growth initiatives.
Many approaches are available for implementing initiative and referenda reform. These
include: '
• Constitutional amendment. The State Constitution could be amended to exclude from
the initiative power the ability to restrict the development of housing or other projects within certain "urban '
zones".
• Provide that local anti-housing initiatives would violate state law. Legislation could ,
require each locality to set aside certain lands for residential development, known as housing development
zones. These zones could include required densities which could.be developed "by right", subject only to '
reasonable design and building requirements. Accordingly, local ballot measures contrary to this provision
would be contrary to state law and, therefore, invalid.
• Create CEQA hurdles for "slow or no growth" initiatives. Citizen initiatives are
currently exempt from CEQA. However, changes to state law could subject initiatives to some form of pre- '
ballot environmental or housing needs review. For example, local general plans could be required to
8 See SB 2037 (Boatwright). '
9 Cal. Const. art. II §§ 8-11.
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provide areas of "by right" development and increased density, consistent with the Council of
Government's determination of housing needs. Then, when an initiative is proposed, review could be
' required regarding the proposed initiative's effect on this "by right" development aspect of the general plan.
• Provide other procedural requirements for proposed initiatives. Although the right of
initiative is guaranteed by the State Constitution, State law can (and does) provide numerous procedural
requirements to exercise this right. If a procedural requirement serves a vital statewide interest such as
1 attaining the state's housing and affordable housing needs, it is more likely to be upheld as a "reasonable"
infringement on the initiative power.
C. A Balanced Approach to Growth Management and Urban
Limit Lines:A Case Study
Until the State Legislature provides otherwise, the responsibility to address growth-related
' issues related to land use will remain primarily with local governments. Many of the streamlining
proposals discussed in this paper will need to occur at the state level to benefit larger, regionally-significant
' projects. Nevertheless, many local governments have undertaken innovative planning efforts at the general
plan level which attempt to balance long-term open space needs with greater certainty for development in
urban limit lines.
Morrison & Foerster was selected special counsel to the Contra Costa County Board of
Supervisors in early 1990 to advise the County on the legal adequacy of its General Plan and environmental
documentation. The County's General Plan update process had been highly controversial, with the search
' for consensus on key land use issues for nearly six years. In the end, no lawsuits were filed against the
County's new General Plan, despite the addition of several new and controversial items: a new growth
management element; a new Countywide urban limit line; and a 65/35 land preservation standard which
limits urban development to no more than 35 percent of the County for the next 20 years. While any shift in
the status quo will result in winners and losers, the Contra Costa County experience demonstrates hope for
consensus when innovative land use planning strikes a reasonable balance between competing interests.
The following is a brief case study of Contra Costa County's approach.
1. Consensus Building
• Step One To A Growth Management Consensus: Transportation Money As A
"Carrot". With transportation consistently named as the number one problem in the County, and
' unplanned growth cited as the cause of gridlock, in 1988, the County's voters approved a measure to raise a
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local sales tax for funding transportation improvement projects. Employing a "carrot approach," the '
measure also required the adoption of a growth management general plan element by both the County and
the cities in order to receive return to source tax dollars for local street maintenance and improvement '
funds.10 Under this measure, known as Measure C, a County Transportation Authority was authorized to
govern the implementation of transportation and growth management programs. Politically, Measure C was
generally supported by a coalition of environmental organizations and the County's development
community.
• Step Two: Voters Approve A Balanced Urban Limit Line Program. In 1990, several
environmental organizations qualified a ballot measure to preclude development in the unincorporated areas '
of the County, through an urban limit line program which sought to freeze development for 20 years at the '
County's 1989 general plan land use map ("Measure F"). To counter Measure F, allow for limited levels
of development in unincorporated areas, and protect specified areas from urban development, the Board of ,
Supervisors initiated the 65/35 Land Preservation Plan, with its more moderate urban limit line program,
for the November 1990 ballot. Measure F was defeated and the 65/35 Land Preservation Plan was adopted. '
The County's General Plan urban limit line program is unique in many respects, although
certain provisions of the County's program incorporate features of,urban service boundary programs in '
several nearby Bay Area counties. While urban limit lines are still discussed as if they are an experimental
concept, by the summer of 1990, almost every Bay Area county had established some form of urban limit '
line or urban service boundary program in its general plan. Some counties, for example, Marin and
Santa Clara, have essentially abdicated significant development to cities as a matter of policy, generally ,
deferring to city spheres of influence for development decisions. In these jurisdictions, urban service
boundariesl I limit growth by the availability of infrastructure supplied by the cities and service districts. '
These programs identify, for the most part, where and when growth may occur or may not occur, at least
through that jurisdictions' general plan process. Approximately eighty percent (80%) of those local '
10 California's 1990 voter approved statewide gas tax measure, requiring cities and counties to prepare
congestion management programs in order to receive gas tax funds, was patterned after Contra Costa.
County's Measure C.
11 See Government Code § 56080 for definition of urban service area. The term is used to identify the
boundary around an area within the sphere of influence of a city which is served by urban facilities, utilities
and services. Government Code § 56428.
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1 governments in California with growth managementprograms also have some form of urban service
boundary or urban limit line policies.12
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1 12 See Office of Planning and Research (OPR), 1991 Local Government Growth Management Survey,
Exhibit D, page 19.
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2. Legal Authority for Urban Limit Lines and Growth '
Management
If a political consensus on growth management and urban limit line programs can be reached
at the regional plan or general plan level, it will be in the interest of all parties that these programs can be
legally defensible against either facial challenges to the entire program or as applied to particular projects. '
The legal source for land use and planning regulations, including growth management and urban limit line
programs is the police power to protect the public health, safety and welfare.13 The measure must bear a ,
substantial and reasonable relationship to the public welfare to be considered a proper exercise of the police
power. Moreover, urban limit line and growth management programs will fail if they neglect competing '
state laws (e.g., housing needs), are inflexible, and otherwise create arbitrary standards.
In the landmark case Construction Industry Association of Sonoma County v. City of
Petaluma,14 Petaluma's efforts to retain its small town image, preserve open space, and grow at an orderly
and deliberate pace by fixing development at 500 dwelling units per year, was upheld. In Marin County, ,
low density land use designations based upon the preservation of ranching, grazing and agricultural
properties have been upheld as a proper legislative balancing between the conflicting interests of open space
preservation and the need for cities and counties to provide their fair share of regional housing needs for '
low income families.15
While many California court decisions have given great latitude to growth management and
other land use regulations, the consequences of a regulation going too far are serious. While a balanced
approach could be supported by government, open space advocates and developers, disappointed ,
landowners may assert that these programs amount to a regulatory taking of their property entitling them to
monetary damages.16 Without careful legal drafting, adequately prepared findings, or a credible
administrative record, these programs may run afoul of legal challenges that they are arbitrary and
capricious and have no substantial relationship to the public health, safety, or general welfare.17
13 Associated Home Builders v. City of Livermore, 18 Cal. 3d 582 (1976).
14 522 F.2d 897 (9th Cir. 1975), cert. denied, 424 U.S. 934 (1976). '
15 Barancik v. County of Marin, 872 F.2d 834; See also Government Code §§ 65302, 65030.
16 First English Evangelical Church of Glendale v. County of Los Angeles, 493 U.S. 304 (1987). '
17 Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
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' IV. CONCLUSION
' Under the land use "status quo," regionally-significant projects are often most vulnerable to
delays and legal challenge since they straddle various cities, counties and service districts. At the same
time, these projects often provide the greatest opportunities for a comprehensive balancing of needs for
affordable housing, major infrastructure improvements,job creation, and vast areas of open space and
trails. To overcome legitimate concerns by the development community and local government that regional
government will not just mean an additional layer of bureaucracy, regional growth management and CEQA
' proposals should aim to provide greater assurances of project streamlining. Because most parties, including
developers and open space advocates, find the status quo to be unpredictable, costly, and often in direct
' conflict with state-mandated goals for the provision of housing and environmental protection, there should
be a move toward reforms that place greater emphasis on general or regional plans. While some counties
with recent experience in updating their general plans have had the opportunity to balance open space
preservation and development concerns, for project streamlining in today's land use regulatory context to be
effective, legislative reforms at the state level are needed.
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