BILL ANALYSIS Ó
SB 743
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 743
AUTHOR: Steinberg
AMENDED: September 12, 2013
FISCAL: Yes HEARING DATE: Sept. 12, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):
KINGS ARENA
SUMMARY :
Existing law :
1) Under the California Environmental Quality Act (CEQA):
a) Requires lead agencies with the principal
responsibility for carrying out or approving a proposed
discretionary project to prepare a negative declaration,
mitigated declaration, or environmental impact report
(EIR) for this action, unless the project is exempt from
CEQA (CEQA includes various statutory exemptions, as
well as categorical exemptions in the CEQA guidelines).
(Public Resources Code §21000 et seq.). If there is
substantial evidence, in light of the whole record
before a lead agency, that a project may have a
significant effect on the environment, the lead agency
must prepare a draft EIR. (CEQA Guidelines
§15064(a)(1), (f)(1)).
b) Sets requirements relating to the preparation,
review, comment, approval and certification of
environmental documents, as well as procedures relating
to an action or proceeding to attack, review, set aside,
void, or annul various actions of a public agency on the
grounds of noncompliance with CEQA.
c) Requires courts to give CEQA-related actions or
proceedings preference over all other civil actions so
that the action or proceeding is quickly heard and
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determined. (Public Resources Code §21167.1).
2) Under the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011 (AB 900 (Padilla),
Chapter 354, Statutes of 2011) (AB 900), which is part of
CEQA, establishes CEQA administrative and judicial review
procedures for an "environmental leadership development
project" (ELDP). Among the provisions of AB 900:
a) Sets procedures that apply to any judicial action or
proceeding alleging that a public agency has approved or
is undertaking an ELDP certified by the Governor in
violation of CEQA (§21185), which among other things: i)
require the action or proceeding to be filed in the
Court of Appeal with geographic jurisdiction over the
project; ii) require the Court to issue its decision in
the case within 175 days of filing of the petition.
b) Sunsets provisions of AB 900 January 1, 2015.
This bill, as approved by the Senate , revised the California
Public Utilities Commission's (CPUC) authority to increase
electricity rates under the California Alternatives Rates for
Energy program.
Assembly amendments (September 12, 2013 version of the bill)
and the basis for referral back to the Committee on
Environmental Quality pursuant to Senate Rule 29.10 , delete
the provisions related to electricity rates, and instead do
the following:
1)Establish findings related to the arena project.
2)Establish definitions for purposes of the bill, including:
a) "Downtown arena" means an arena that will be
certified Leadership in Energy and Environmental Design
(LEED) Gold within one year of the first National
Basketball Association (NBA) season and will minimize
traffic and air quality impacts through project design
or mitigation measures that will do all of the
following:
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i. Reduce to at least zero the net
greenhouse gas (GHG) emissions from private
automobile trips to the arena as compared to the
baseline (existing arena), as verified by the
Sacramento Metropolitan Air Quality Management
District.
ii. Achieve per attendee reduction in GHG
emissions from automobiles and light trucks,
compared to existing arena during 2012-13 NBA
season, that will exceed the GHG emission
reduction targets for 2020 and 2035 adopted for
the Sacramento region pursuant to SB 375.
iii. Achieve and maintain vehicle-miles
traveled per attendee for NBA events that is no
more than 85% of the baseline (i.e., 15% less than
existing arena).
b) "Entertainment and sports center project" means a
project that substantially conforms to the project
description set forth in the City's notice of
preparation (NOP). (According to the City's NOP, the
proposed project would be located on the Downtown Plaza
property and on other property that may transferred to
applicant and would include demolition of portions of
the existing buildings, the construction and operation
of an approximately 18,500 seat arena, and up to
1,500,000 square feet of office, retail, housing and
hotel uses at the project site. The arena would serve
as the home for the Sacramento Kings, as well as a
venue for other sports, entertainment, civic and
cultural events.)
3)Authorize the City to prosecute an eminent domain action
associated with the downtown arena prior to completing CEQA
review for the project. Limits the application of the
eminent domain provision to 545 and 600 K Street and
surrounding publicly accessible areas and rights-of-way
within 200 feet of 600 K Street (i.e., Men's Macy's
property), and provides that the provision shall not apply
to any other eminent domain actions prosecuted by the City
of Sacramento or to eminent domain actions based on a
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finding of blight.
4)Establish special procedures applicable to an action or
proceeding brought to attack, review, set aside, void, or
annul the certification of the EIR for the project or the
granting of any project approvals, including requiring
Judicial Council to adopt a rule of court, by July 1, 2014,
requiring lawsuits and any appeals to be resolved, to the
extent feasible, within 270 days of certification of the
record of proceedings (which must occur within five days of
the lead agency filing the notice of determination on the
project).
5)Establish special procedures for public participation in
CEQA review of the project:
a) Require the project EIR to include a specified
notice that the EIR is subject to the provisions of the
section added by this bill.
b) Require the lead agency to conduct an
informational workshop within 10 days of release of the
Draft EIR and hold a public hearing within 10 days
before close of the public comment period.
c) Require the lead agency and applicant to
participate in nonbinding mediation with any party who
submitted comments on the Draft EIR and requested
mediation within five days of the close of the public
comment period, with the cost to be paid by the
applicant. Requires mediation to end within 35 days of
the close of the public comment period.
d) Require the lead agency to adopt any measures
agreed upon in mediation. Prohibits a commenter from
raising an issue addressed by that measure in a
lawsuit.
e) Permit the lead agency to ignore written comments
submitted after the close of the public comment period,
with specified exceptions for materials addressing new
information released after the close of the public
comment period.
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f) Require the lead agency to provide all EIR
documents and comments in an electronic format (with
the exception of certain copyright-protected
documents), certify the record within five days of
filing the notice of determination, provide the record
to a party upon written request, and provide the record
to the superior court within 10 days of the filing of a
petition for review.
6)Require the lead agency, as a condition of approval of the
project, to require the applicant to implement mitigation
measures required by CEQA by the end of the first NBA season
during which an NBA team has played at the arena.
7)Require the lead agency to consider, and implement if
feasible and necessary to achieve the GHG and traffic
reduction objectives specified in the bill, the following
mitigation measures as a condition of project approval:
a) Temporarily expanding the capacity of a public
transit line, as needed, to serve downtown arena
events.
b) Providing private charter buses or other similar
services, as needed, to serve downtown arena events.
c) Paying its fair share of the cost of measures that
expand the capacity of a public fixed or light rail
station that is used by spectators attending downtown
arena events.
8)Require the lead agency to place highest priority on
feasible emission reduction measures on the arena site and
downtown area. Require use of offset credits only after
feasible local measures have been implemented, and require
that the applicant place the highest priority on the
purchase of offset credits that produce emission reductions
within the city or the boundaries of the Sacramento
Metropolitan Air Quality Management District.
9)Prohibit, generally, a court, in granting relief, from
staying or enjoining the construction or operation of the
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arena and provides that a court may only enjoin those
specific activities associated with the arena that present
an imminent threat to public health and safety or that
materially, permanently, and adversely affect unforeseen
important Native American artifacts or unforeseen important
historical, archaeological, or ecological values.
10)Provide that the provisions of the bill related to the
arena (Section 2) are severable, and do not apply if the
applicant fails to notify the lead agency prior to release
of the Draft EIR that the applicant is electing to proceed
pursuant to the provisions of the bill.
11)Revise AB 900 (Buchanan and Gordon), which establishes
procedures for expedited judicial review by the Court of
Appeal for "environmental leadership" projects certified by
the Governor and meeting specified conditions, including
LEED silver-certified infill site projects, clean renewable
energy projects, and clean energy manufacturing projects, as
follows:
a) Repeal provision that gives original jurisdiction
to the Court of Appeal and requires the court to issue
its decision within 175 days.
b) Instead require Judicial Council to adopt a rule
of court, by July 1, 2014, mandating lawsuits and any
appeals to be resolved within 270 days.
c) Define "prevailing wages" for purposes of AB 900's
requirement that environmental leadership projects pay
prevailing wages.
d) Extend the deadline for certification of projects
under AB 900 from June 1, 2014, to January 1, 2016.
e) Extend AB 900's sunset from January 1, 2015, to
January 1, 2017.
12)Amend the Congestion Management Act (Government Code
Section 65088, et seq.) to expand the definition of "infill
opportunity zone" to include areas within one-half mile of
an existing or planned major transit stop (to be consistent
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with the definition of "transit priority area" in this
bill), and authorizes a city or county to designate an
infill opportunity zone (currently subject to a December 31,
2009, sunset and other limiting conditions), for the purpose
of obtaining an exemption from the application of "level of
service standards" (LOS, a threshold that defines a
deficiency on the congestion management program highway and
roadway system which requires the preparation of a
deficiency plan). The effect of these provisions is to
reinstate prior law allowing local governments to opt out of
LOS requirements in infill areas.
13)Require OPR to propose revisions to the CEQA Guidelines to
establish new, non-LOS criteria for determining the
significance of transportation impacts of projects within
"transit priority areas."
a) Define "transit priority area" as an area within
one-half mile of a major transit stop (i.e., rail
transit station, a ferry terminal served by either a
bus or rail transit service, or the intersection of two
or more major bus routes) that is either existing or
planned, if the planned stop is scheduled to be
completed within the planning horizon of a specified
federal transportation plan.
b) Define "employment center project" as a project
located on property zoned for commercial uses, with a
floor area ratio of no less than 0.75, located within
one-half mile of a major transit stop or high-quality
transit corridor included in a regional transportation
plan.
c) Require the criteria to promote the reduction of
GHG emissions, the development of multi-modal
transportation networks, and a diversity of land uses.
d) Require OPR to recommend potential metrics to
measure transportation impacts, including vehicle miles
traveled, vehicle miles traveled per capita, automobile
trip generation rates, or automobile trips generated.
e) Authorize OPR to establish criteria for models
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used to analyze transportation impacts to ensure the
models are accurate, reliable, and consistent with the
intent of this section.
f) Provide that automobile delay, as described solely
by LOS or similar measures of capacity or congestion,
shall not support a finding of significance pursuant to
CEQA, except in locations specifically identified in
the guidelines, if any, once these guidelines are
certified by the Secretary of the Natural Resources
Agency.
g) Provide that aesthetic and parking impacts of
residential, mixed-use, and employment center projects
on infill sites shall not be considered significant
impacts on the environment for purposes of CEQA, while
also stating that the authority of a lead agency to
consider aesthetic impacts pursuant to local design
review ordinances or other discretionary powers is not
affected.
14)Authorize OPR to adopt CEQA Guidelines establishing metrics
for analysis of transportation impacts that are alternatives
to LOS to be used outside transit priority areas.
15)Establish a new CEQA exemption for a residential,
mixed-use, and employment center project, including any
subdivision or zoning change, that meets the following
conditions:
a) The project is located within a transit priority
area.
b) The project is undertaken to implement and is
consistent with a specific plan for which an EIR has
been certified.
c) The project is consistent with the general use
designation, density, building intensity, and
applicable policies specified for the project area in
either a sustainable communities strategy or
alternative planning strategy adopted pursuant to SB
375.
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d) Requires further environmental review only if any
of the following events have occurred:
i. Substantial changes are proposed in the
project which will require major revisions of the
EIR.
ii. Substantial changes occur with respect
to the circumstances under which the project is
being undertaken which will require major
revisions in the EIR.
iii. New information, which was not known
and could not have been known at the time the EIR
was certified as complete, becomes available.
COMMENTS :
1) Purpose of Bill . Proponents of SB 743 provide the
following reasons why this bill is necessary and urgent:
The team was required to meet a construction
deadline of September 2016 since the competing city was
nearly a year ahead in the construction process.
The EIR certification is anticipated in April of
2014. Without relief from construction injunction
before the date, the project will not meet a demolition
deadline of August 2014.
If the team misses any deadline, penalties in the
amount of $1 million or more will result.
Multiple missed deadlines could result in
forfeiture of the team.
In order to meet the deadlines for completing construction
of the arena, this bill establishes special administrative
and judicial review procedural requirements under CEQA for
this project.
1) Sacramento Entertainment and Sports Center (ESC) . The City
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of Sacramento is the lead agency for the Sacramento Kings
arena project. The project's location includes cross
streets of J, K and L Streets between 3rd and 7th Streets
in downtown Sacramento. The City provides the following
project description in the NOP:
Construction and operation of an entertainment and sports
center on approximately 18.5 acres. The proposed ESC
Project would be located on the Downtown Plaza property
and on other property which may be transferred to
Applicant and would include demolition of portions of the
existing buildings, and the construction and operation of
an approximately 18,500 seat entertainment and sports
center and up to 1,500,000 square feet of office, retail,
housing and hotel uses at the ESC Project Site. The ESC
would serve as the home for the Sacramento Kings, a
National Basketball Association team, as well as a venue
for other sports, entertainment, and civic and cultural
events.
The lead agency commenced the environmental review in April
2013 and the final notice of determination is expected to
be filed in April 2014. The goal of the project proponent
is to have the arena construction completed in the fall of
2016 in time for the NBA basketball season.
2) Eminent Domain Prior To EIR Certification . SB 743
authorizes the City of Sacramento to prosecute eminent
domain proceedings on 545 and 600 K Street in Sacramento,
and surrounding publicly accessible areas and rights-of-way
within 200 feet of 600 K Street prior to certification of
the ESC project EIR.
a) Eminent Domain : "Eminent domain" is the power of the
government to seize private property without the
property owner's consent. Kelo v. City of New London,
545 U.S. 469 (2005) is a case decided by the U.S.
Supreme Court involving the use of eminent domain for
property to be transferred to a private owner for the
purpose of economic development. The Court found that
if an economic project creates new jobs, increases tax
and other city revenues, and revitalizes a depressed or
blighted urban area, then it qualifies as a public use
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within the meaning of the Takings Clause of the Fifth
Amendment of the U.S. Constitution. The Fifth Amendment
forbids the confiscation of private property for public
use "without just compensation", so that anyone whose
property is acquired does receive some compensation.
This is decided not by direct negotiation between
prospective developer and current owner but by the
government agency prosecuting the eminent domain
proceeding.
b) Sequence of events for CEQA review : The
environmental review process is currently underway for
the Kings Arena and expected to be completed in April
2014. As noted above, SB 743 allows for the City of
Sacramento to prosecute an eminent domain proceeding for
specified properties associated with the arena prior to
the certification of the EIR.
CEQA requires a lead agency to prepare an EIR on a project
that the agency proposes to carry out or approve if that
project may cause a significant environmental impact.
The degree to which a lead agency commits to a proposed
project may determine how early in the process CEQA
compliance should occur.
In Save Tara v. City of West Hollywood (2008) 45 Cal.4th
116, the California Supreme Court addressed the question
whether and under what circumstances an agency's
agreement allowing private development, conditioned on
future compliance with CEQA, constitutes approval of the
project within the meanings of PRC §§21100 and 21151.
The Court stated, "When an agency has not only expressed
its inclination to favor a project, but has increased
the political stakes by publically defending it over
objections, putting its official weight behind it,
devoting substantial public resources to it, and
announcing a detailed agreement to go forward with the
project, the agency will not be easily deterred from
taking whatever steps remain toward the project's final
approval." (Save Tara v. City of West Hollywood (2008)
45 Cal.4th 116, 135). The Court concluded that under
some circumstances, such an agreement does amount to
approval and must be preceded by preparation of an EIR.
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A difficult challenge caused by public-private negotiations
for a complex project, like the construction of an NBA
basketball arena, is that the endeavor requires intense
negotiation and cooperation between private parties and
public agencies, which is likely to occur prior to an
environmental review. However, it may not be prudent to
allow the internal momentum of the approval process to
become so strong that the eventual environmental review
simply becomes a "rubber stamp." It would seem consistent
with the holding in Save Tara that an eminent domain
proceeding be prosecuted after completion of the
environmental review. This bill allows the City of
Sacramento to prosecute an eminent domain proceeding prior
to certification of the EIR.
3) Sports Venues and CEQA . Several sports venues built in
California have been subject to CEQA. Two proposed sports
venues have been granted a statutory CEQA exemption or
fast-tracking provisions:
Farmers Field in downtown Los Angeles: SB 292
(Padilla), Chapter 353, Statutes of 2011, established
expedited judicial review procedures and required
implementation of specified traffic and air quality
mitigation measures under CEQA for a proposed new sports
arena and convention center, Anschutz Entertainment
Group's (AEG's) Farmers Field, in downtown Los Angeles.
It is questionable whether the Farmers Field stadium will
actually be built. In late March 2013, Los Angeles
officials agreed to pursue a parallel track for
redeveloping the city's convention Center in the event
that AEG and National Football League (NFL) fail to reach
agreement on the Farmers Field stadium downtown. AEG has
until October 2014 to find a team before its project
agreement with the city expires.
NFL football stadium in City of Industry: ABx3 81
(Hall), Chapter 30, Statutes of 2009, waived
environmental review and land use planning requirements
as they applied to a proposed NFL football stadium
project in the City of Industry. Proponents contended
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that absent the bill, the project would be delayed
needlessly and would jeopardize the project's financing
and postpone the project's economic benefits. Four years
later, the project has yet to break ground.
However, there are a number of major sports venues that
have been built, or currently under construction, and that
have complied with CEQA, including:
Levi Stadium, Santa Clara (Under construction, opening
planned for July 2014).
San Jose Earthquakes Stadium, Santa Clara (Under
construction, opening planned for mid-2014).
Petco Park in San Diego (Opened 2004).
StubHub Center, formerly Home Depot Center, Carson
(Opened 2003).
AT&T Park, San Francisco (Opened in 2000). *
Staples Center and the LA Live complex, Los Angeles
(Opened 1999).
The Honda Center in Anaheim (Opened in 1993).
Sleep Train Arena, originally ARCO Arena, Sacramento
(Opened 1988).
* Some people mistakenly believe that the San Francisco
Giants' baseball park was exempted from CEQA. SB 181
(Kopp), Chapter 4, Statutes of 1997, exempted from CEQA
the relocation of occupants or uses from real property
pursuant to the Relocation Assistance Act on property
consisting of the site on which the San Francisco Giants
Ballpark is located. It should be noted that SB 181
specified that the exemption could not affect the
application of CEQA to any discretionary action by a
public agency not otherwise exempted by this provision,
including the ballpark construction. Also, SB 181
prohibited the exemption from restricting the ability or
rights of relocated occupants to challenge or appeal the
relocation options.
1) Fixing An Issue in AB 900 . One of the benefits provided by
AB 900 for an ELDP was that any CEQA challenge will proceed
directly to the Court of Appeal, bypassing the superior
court, which would reduce the potential for long, drawn-out
litigation and help major construction projects break
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ground more quickly. In April 2012, the Planning and
Conservation League filed a lawsuit in Alameda Superior
Court (Conservation League v. State of California, Alameda
Sup. Ct. Case No. RG1262904) challenging the
constitutionality of this component of AB 900, contending
that AB 900 violates Article VI, Section 10 of the
California Constitution, which provides that "[t]he Supreme
Court, courts of appeal, superior court, and their
judges?have original jurisdiction in proceedings for
extraordinary relief in the nature of mandamus, certiorari,
and prohibition." In March 2013, the Alameda County
Superior Court struck down this provision as
unconstitutional for being "inconsistent with the
constitutional mandates of where writs of mandate can be
brought."
This bill addresses the constitutional issue raised in the
Alameda Superior Court case by repealing the provision
granting original jurisdiction to the Court of Appeal and
requiring the court to issue its decision within 175 days,
and instead requires Judicial Council to adopt a rule of
court, by July 1, 2014, requiring lawsuits and any appeals
to be resolved within 270 days.
2) Court Calendar Preference and Guaranteed Time Frames .
Current law requires the courts to give CEQA-related cases
preference over "all other civil actions? so that the
action or proceeding shall be quickly heard and
determined." (PRC §21167.1). In addition to this existing
mandate, SB 743 provides that the courts must complete the
judicial review process in a given time frame for certain
CEQA-related actions or proceedings when specified criteria
are met. As a consequence, such mandates on a court delay
access for other, unknown cases such as medical malpractice
suits, wrongful death suits, or contract disputes, as well
as potentially exacerbating a court's backlog on civil
documents such as filing a new civil complaint, processing
answers and cross complaints, or processing a demurrer or
summary judgment. This bill requires a court to make room
on its calendar, potentially pushing other cases aside, to
ensure that specified time frames are met on certain CEQA
cases. Calendar preferences and guaranteed time frames
create additional demands and burden on our courts that
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have very limited resources and a never-ending supply of
cases to hear.
In addition, Judicial Council notes, "expedited judicial
review for select projects covered by SB 743 while other
cases proceed under the usual civil procedure rules and
timelines, in the council's view, undermines equal access
to justice. The courts are charged with dispensing equal
access to justice for each and every case on their dockets.
Singling out these special categories of cases for such
preferential treatment appears at odds with how our justice
system has historically functioned."
3) Traffic Level of Service (LOS) . LOS is a measure used by
traffic engineers to determine the effectiveness of
elements of transportation infrastructure. LOS measures
how quickly cars can move through a street. LOS is most
commonly used to analyze highways by categorizing traffic
flow with corresponding safe driving conditions and can
also be applied to intersections, transit, potable water,
sanitary sewer service, solid waste removal, drainage, and
public open space and recreation facilities. Some contend
that LOS is outdated and does not consider person delay and
neglects transit, pedestrian crossings, and bicycles, and
believe that an over-reliance on LOS considerations by
planners has traditionally led to widening intersections
and roadways to move automobile traffic faster at the
expense of other modes of transportation. The bill
authorizes OPR to update the standard for analyzing
transportation impacts of projects to replace LOS in
transit priority areas and as an alternative to LOS in
locations outside of transit priority areas, to the extent
authorized by the Congestion Management Act.
4) Parking . In San Franciscans Upholding the Downtown Plan v.
City and County of San Francisco (1st Dist. 2002) 102
Cal.App.4th 656, the Court found that the fact that an
urban development project does not "self-park" is not a
CEQA impact in and of itself, but any environmental impacts
foreseeably caused by a project's deficiency of "on-site"
parking should be analyzed and mitigated. This holding is
consistent with environmentally beneficial infill policies
that discourage on-site parking and automobile use and
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promotes mass transit and alternative forms of
transportation. Since the San Francisco case,
consideration of parking issues in CEQA has been limited to
questions about whether there might be environmental
impacts from a lack of parking, such as increased traffic
congestion at intersections and air quality impacts caused
by that congestion. This bill provides that the parking
impact of a residential, mixed-use residential, or
employment center project on an infill site within a
transit priority area is not to be considered a significant
impact on the environment.
5) Aesthetics . The purpose of analyzing aesthetics in CEQA is
to identify and evaluate key visual resources in a project
area, and to determine the degree of visual impact that
would be attributable to a proposed project. Aesthetics
refers to visual considerations, including scenic
resources, scenic vistas, changes in visual character,
lighting or glare. This bill provides that aesthetic
impacts of a residential, mixed-use residential, or
employment center project on an infill site within a
transit priority area are not to be considered significant
impacts on the environment.
6) Past Legislation . SB 226 (Simitian), Chapter 469, Statutes
of 2011, establishes abbreviated CEQA review procedures for
specified infill projects, where only specific or more
significant effects on the environment which were not
addressed in a prior planning-level EIR need be addressed.
An EIR for such a project need not consider alternative
locations, densities, and building intensities or
growth-inducing impacts. Infill projects may include
residential, retail, commercial, transit station, school,
or public office building projects located within an urban
area. Requires OPR to develop CEQA guidelines, including
statewide standards to promote smart growth, reduction of
greenhouse gas (GHG) emissions, reduction in water use,
energy efficiency improvements and protection of public
health.
SB 375 (Steinberg), Chapter 728, Statutes of 2008, requires
metropolitan planning organizations to include a
sustainable communities strategy (SCS), as defined, in
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their regional transportation plans, or an alternative
planning strategy (APS), for the purpose of reducing GHG
emissions, aligns planning for transportation and housing,
and creates specified incentives for the implementation of
the strategies, including CEQA exemption or abbreviated
review for eligible residential projects.
SB 1925 (Sher), Chapter 1039, Statutes of 2002, exempts from
CEQA specified residential housing projects which meet
criteria established to ensure the project does not have a
significant effect on the environment, including urban
infill housing projects not more than 100 units on a site
not more than four acres in size which is within one-half
mile of a major transit stop.
SOURCE : Author
SUPPORT : Sacramento Kings
Infill Builders Federation
OPPOSITION : Judicial Council of California