BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1886
-----------------------------------------------------------------
|Author: |McCarty |
-----------------------------------------------------------------
|-----------+-----------------------+-------------+----------------|
|Version: |5/11/2016 |Hearing |June 29, 2016 |
| | |Date: | |
|-----------+-----------------------+-------------+----------------|
|Urgency: |No |Fiscal: |No |
------------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Joanne Roy |
| | |
-----------------------------------------------------------------
SUBJECT: California Environmental Quality Act: transit priority
projects.
ANALYSIS:
Existing law:
1) Requires lead agencies with the principal responsibility for
carrying out or approving a proposed 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.).
2) Requires metropolitan planning organizations (MPOs) to include
a sustainable communities strategy (SCS), in their regional
transportation plans, or an alternative planning strategy
(APS), for the purpose of reducing greenhouse gas (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
residential or mixed-use residential "transit priority
projects," if the project is consistent with the use
designation, density, building intensity, and applicable
policies specified for the project area in either an approved
SCS or APS.
a) Requires a "transit priority project" to meet the
AB 1886 (McCarty) Page 2 of
?
following conditions:
i) Contain at least 50% residential use;
ii) Provide at least 20 dwellings per acre; and
iii) Be within one-half mile of a major transit stop or
high-quality transit corridor. To qualify, all parcels
within the project must have no more than 25% of their
area farther than one-half mile from transit and not
more than 10% of the residential units or 100 units,
whichever is less, may be farther than one-half mile
from transit.
b) Defines "major transit stop" as a site containing an
existing 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 with a frequency of service
interval of 15 minutes or less during the morning and
afternoon peak commute periods.
c) Defines "high-quality transit corridor" as a corridor
with fixed route bus service with service intervals no
longer than 15 minutes during peak commute hours.
3) For a transit priority project to meet the requirement for an
abbreviated review under the SCS provisions of CEQA, requires
all parcels within the project have no more than 25% of their
area be located farther than one-half mile from a major
transit stop or high-quality transit corridor.
This bill:
For a transit priority project to meet the requirement for an
abbreviated review under the SCS provisions of CEQA, revises the
definition of "transit priority project" by increasing the
percentage, from 25% to 50%, of the project area that may be
AB 1886 (McCarty) Page 3 of
?
farther than one-half mile from a major transit stop or
high-quality transit corridor.
Background
1) Background on CEQA.
a) Overview of CEQA process. CEQA provides a process for
evaluating the environmental effects of a project, and
includes statutory exemptions, as well as categorical
exemptions in the CEQA guidelines. If a project is not
exempt from CEQA, an initial study is prepared to determine
whether a project may have a significant effect on the
environment. If the initial study shows that there would
not be a significant effect on the environment, the lead
agency must prepare a negative declaration. If the initial
study shows that the project may have a significant effect
on the environment, the lead agency must prepare an EIR.
Generally, an EIR must accurately describe the proposed
project, identify and analyze each significant
environmental impact expected to result from the proposed
project, identify mitigation measures to reduce those
impacts to the extent feasible, and evaluate a range of
reasonable alternatives to the proposed project. Prior to
approving any project that has received environmental
review, an agency must make certain findings. If
mitigation measures are required or incorporated into a
project, the agency must adopt a reporting or monitoring
program to ensure compliance with those measures.
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure
must be discussed but in less detail than the significant
effects of the proposed project.
b) What is analyzed in an environmental review? Pursuant
to CEQA, an environmental review analyzing the significant
direct and indirect environmental impacts of a proposed
project may include water quality, surface and subsurface
hydrology, land use and agricultural resources,
transportation and circulation, air quality and greenhouse
gas emissions, terrestrial and aquatic biological
AB 1886 (McCarty) Page 4 of
?
resources, aesthetics, geology and soils, recreation,
public services and utilities such as water supply and
wastewater disposal, and cultural resources. The analysis
must also evaluate the cumulative impacts of any past,
present, and reasonably foreseeable projects/activities
within study areas that are applicable to the resources
being evaluated. A study area for a proposed project must
not be limited to the footprint of the project because many
environmental impacts of a development extend beyond the
identified project boundary. Also, CEQA stipulates that
the environmental impacts must be measured against existing
physical conditions within the project area, not future,
allowable conditions.
c) CEQA provides hub for multi-disciplinary regulatory
process. CEQA assists in moving a project through the
multi-disciplinary, regulatory process because responsible
agencies may rely on the lead agency's environmental
documentation in acting on the aspect of the project that
requires its approval and must prepare its own findings
regarding the project. A variety of issues, many of which
involve permitting and/or regulatory program requirements,
should be coordinated and analyzed together as a whole.
CEQA provides a comprehensive analysis of a project's
impacts in those subject areas.
2) Infill development. "Infill development" occurs in already
built-up areas with existing transportation and utility
infrastructure, often repurposes or replaces existing
buildings, parking lots, or other impervious areas, and adds
homes and/or businesses near the center of cities and towns.
Examples of infill project locations include a disused parking
lot, an old commercial property, or a former industrial site.
Infill development is considered a vital strategy for
efficient growth.
Infill builds within an existing footprint of development, which
can reduce development pressure on outlying areas, helping to
safeguard lands that serve important ecological functions and
preserve open space and prevent conversion of agricultural
land; can reduce the amount that people drive, improving air
quality and reducing GHG emissions; and can lead to the
cleanup and reuse of formerly economically viable but now
abandoned sites, including those contaminated with hazardous
AB 1886 (McCarty) Page 5 of
?
substances. Also, by locating new developments near
population centers and amenities, communities can take
advantage of existing water, sewer, and transportation
systems, avoiding the cost of installing expensive new
infrastructure.
According to the US Environmental Protection Agency (US EPA),
several trends point to a sustained increase in demand for
infill development and a market opportunity for developers.
Consumer preferences for the amenities that infill locations
offer are likely to grow as changing demographics affect the
housing market. In the next couple of decades, the needs and
preferences of aging baby boomers, new households, and
one-person households will drive real estate market trends -
and infill locations are likely to attract many of these
people. As more people choose to live in infill
neighborhoods, employers are following, and vice versa. Many
corporations are moving to infill locations, in part because
they recognize the competitive advantages of being closer to
the central city. (US EPA, "Smart Growth and Economic
Success: Investing in Infill Development," February 2014.)
The Strategic Growth Council (SGC), as a part of its broader
legislative mandate, has identified "infill" development as an
important strategy for achieving AB 32 greenhouse gas (GHG)
emissions reduction targets. While contributing to reductions
of GHG emissions, achieving infill development can confer a
broad range of benefits, such as increased economic vitality
of the state's urban centers; decreased consumption of energy,
water, and other natural resources; reduced conversion of
farmland and natural habitat areas; and the opportunity for
more efficient infrastructure investment and delivery of
municipal services.
Over the past several years, MPOs have been preparing SCS plans
mandated by SB 375 (Steinberg, Chapter 728, Statutes of 2008)
through regional planning efforts. As part of these planning
efforts, MPOs have developed new regional and local population
and employment forecasts that envision increasingly clustered
future regional land use patterns that likely will provide GHG
emissions reductions benefits.
3) Infill development and CEQA. Several changes have been made
to CEQA to encourage infill projects, including the following:
AB 1886 (McCarty) Page 6 of
?
a) SB 743. SB 743 (Steinberg, Chapter 386, Statutes of
2013) made several changes to CEQA for projects located in
areas served by transit (i.e. transit-oriented development
(TOD)). Among the changes, SB 743 directed the Governor's
Office of Planning and Research (OPR) to develop a new
approach for analyzing the transportation impacts under
CEQA. SB 743 also created a new exemption for certain
projects that are consistent with a Specific Plan and
eliminates the requirement to evaluate aesthetic and
parking impacts of a project if the project is a
residential, mixed-use residential, or employment center
project located on an infill site within a transit priority
area.
b) SB 226. 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 to be
addressed. An EIR for such a project need not consider
alternative locations, densities, and building densities or
growth inducing impacts. Any unmitigated effects specific
to the project can be analyzed in an "infill" EIR that
limits review only to those impacts without the need to
analyze alternatives or growth-inducing impacts. SB 226
required OPR to develop CEQA Guidelines for purposes of
this bill.
In order for infill projects to qualify for the CEQA benefits
in SB 226, they must meet statewide performance standards
developed by OPR. The statute required that these
performance standards promote the state's GHG emissions
reductions goals in AB 32 (Núñez, Pavley) and SB 375
(Steinberg), state planning priorities, water conservation
and energy efficiency standards, transit-oriented
development policies, and public health.
c) SB 375. SB 375 (Steinberg, Chapter 728, Statutes of
2008) established the Sustainable Communities and Climate
Protection Act of 2008. SB 375 directed the California Air
AB 1886 (McCarty) Page 7 of
?
Resources Board (ARB) to set regional targets for reducing
GHG emissions, setting up a "bottom up" approach to ensure
that cities and counties are involved in the development of
regional plans to achieve those targets. SB 375 tied
together the regional allocation of housing needs and
regional transportation planning in an effort to reduce GHG
emissions from motor vehicle trips. According to ARB,
transportation accounts for approximately 40% of GHG
emissions, with cars and light trucks making up a
significant majority of those emissions (30% overall).
SB 375 established a collaborative process between regional
and state agencies to set regional GHG reduction targets,
and provided CEQA incentives for development projects that
are consistent with a regional plan that meets those
targets. SB 375 has three major components: (i) Using the
regional transportation planning process to achieve
reductions in GHG emissions consistent with AB 32 goals;
(ii) Offering CEQA incentives to encourage projects that
are consistent with a regional plan that achieves GHG
emission reductions; and, (iii) Coordinating the regional
housing needs allocation process with the regional
transportation process while maintaining local authority
over land use decisions.
d) SB 1925. 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.
Comments
1) Purpose of Bill. According to the author, "Infill housing
development, is the key to creating sustainable communities
across California, unfortunately the vast majority of
California cities are unable to take advantage of efforts to
promote infill. This bill will expand the number of cities,
like Sacramento, which can promote infill development."
2) Is CEQA a major hindrance to infill development?
AB 1886 (McCarty) Page 8 of
?
a) From whose point of view? Ethan Elkind, Director of
Climate Change and Business, with a joint appointment at
UC Berkeley School of Law and UCLA School of Law, states,
"[W]hen it comes to the big factors stopping infill, at
least in California, CEQA ranks below a host of other
barriers, such as local zoning codes that outlaw infill,
lack of infrastructure investment, high construction costs,
tax incentives that favor strip malls over housing, and
poor neighborhood schools.
"So why do infill developers make such a big deal about CEQA?
My theory is that individual developers will be focused
solely on their own projects, and if CEQA is a threat to
their investment and risk-taking, they will understandably
become CEQA haters. But perhaps this project-based focus
distorts the view of the larger forces that stifle business
opportunities throughout the state, such as in the suburb
with the major rail line that won't zone for more downtown
development or the rundown neighborhood near jobs and
services that needs new infrastructure. Ending CEQA
tomorrow won't magically lift these barriers and create new
infill opportunities, and it won't convince local
communities to support new downtown development." (Ethan
Elkind, "Why Developers Shouldn't Blame Environmental
Review for the Lack of Infill," Legal Planet: Insight &
Analysis: Environmental Law and Policy, September 24,
2012).
b) OPR survey shows CEQA is not a significant barrier to
infill projects. OPR's "2012 Annual Planning Survey
Results" asked city and county planners to explain the
primary barriers their jurisdictions have experienced to
implementing infill projects. The chart from the survey
(below) shows the relative unimportance of CEQA as a
barrier to infill development. Instead, infrastructure
constraints, lot issues, lack of funding, community
opposition, and the economy, among others ranked higher.
AB 1886 (McCarty) Page 9 of
?
Based on 238 responses, 25% of jurisdictions reported that
infrastructure constraints were a primary barrier to
implementing infill projects. Just under 25% reported that
they had problems with assembling parcels of the right size
and configuration for infill development. Only 4% of
respondents identified CEQA as a barrier.
A variety of factors affect the production of infill housing
and commercial land uses. Notable infill development
constraints include market conditions, physical conditions,
infrastructure (e.g., sewer, water, streets), and other
community conditions (e.g., schools, public facilities). In
places where market demand, physical conditions, existing
infrastructure, and community conditions are problematic,
current funding and financing options are commonly inadequate,
which hinders local and regional agencies' ability to
implement infill development plans. For the assorted issues
mentioned above that may hinder infill development, this bill
would not alleviate any of them.
3) Substantial changes made to CEQA for infill projects - Need
time to see how they work. As shown above in Background #3,
substantial changes have been made to CEQA in recent years for
infill projects. Some of which necessitate changes to the
CEQA Guidelines which can take a fair amount of time to go
through OPR's vetting process and the Administrative
Procedures Act.
For example, SB 226, which was enacted in 2011, required OPR to
revise the CEQA Guidelines. The process of developing the
guidelines included extensive public outreach efforts such as
hundreds of individual meetings and conversations with
stakeholders, presentations at numerous conferences, three
public workshops, and two rounds of public review on OPR's
AB 1886 (McCarty) Page 10 of
?
preliminary proposals. The revised CEQA Guidelines took
effect in February 2013.
In addition, SB 743 required OPR to amend the CEQA Guidelines to
provide an alternative to LOS for evaluating transportation
impacts. Particularly within areas served by transit, those
alternative criteria must "promote the reduction of greenhouse
gas emissions, the development of multimodal transportation
networks, and a diversity of land uses (PRC §21099(b)(1)).
Measurements of transportation impacts may include vehicle
miles traveled, vehicle miles traveled per capita, automobile
trip generation rates, or automobile trips generated. Once
the CEQA Guidelines are amended to include those alternative
criteria, auto delay will no longer be considered a
significant impact under CEQA. SB 743 also amended congestion
management law to allow cities and counties to opt out of
level of service standards within certain infill areas. Aside
from changes to transportation analysis, SB 743 also included
several changes to CEQA that apply to transit oriented
developments including aesthetics and parking. OPR is
currently working on updating the CEQA Guidelines to implement
SB 743.
Considering the many changes made to CEQA over the recent years
to abbreviate the environmental review process for infill
projects, and the time it takes to update the CEQA Guidelines
accordingly, the Committee may wish to consider whether it
would be prudent to allow more time for these changes to come
to fruition and see how infill projects benefit from them
before amending CEQA again.
4) Walkability and 50% beyond one-half mile. According to the US
EPA, infill sites are usually more walkable than other areas
because many older parts of cities were built when most people
moved around by foot, and many destinations are within easy
reach. For purposes of infill, one-half mile is generally
considered the limit for walkability distance.
Current law allows a maximum of 25% of the project area be
located beyond one-half mile of a major transit stop or
high-quality transit corridor in order to qualify for limited
CEQA review or exemption for transit priority projects. This
bill would double the amount to 50% of project area being
allowed to be located outside of one-half mile from a major
AB 1886 (McCarty) Page 11 of
?
transit stop for the limited CEQA review.
Project areas are not always simple rectangles and can be oddly
shaped, such as narrow and long. Depending on the shape of
the project area, 50% of a project area could go well beyond
one-half mile of a major transit stop or high-quality transit
corridor.
Also, there are no considerations made for other factors to
determine whether the project area is a walkable distance from
a major transit stop. For whom is this project area, beyond
the one-half mile point, walkable - Is it easily walkable for
a senior citizen or a person with a small child and carrying
groceries? Also, are there steep hills to climb? Is walking
beyond the one-half mile mark unbearable in 100-plus degree
heat? A question arises as to whether it is appropriate to
label a project as a "transit priority project" if up to half
of the project area is not within walking distance to a major
transit stop or high-quality transit corridor.
5) Losing sight of the the bigger purpose. Studies by the
California Department of Transportation, the US EPA, and the
Metropolitan Transportation Commission have found that
focusing development in areas served by transit can result in
local, regional, and statewide benefits, including;
Increased transportation choices
Increased public safety
Increased transit ridership
Reduced vehicle miles traveled
Increased household disposable income
Reduced air pollution and energy consumption
Conservation of natural resources and open space
Increased economic development
Increased affordable housing
Reduced local infrastructure costs.
The purpose of providing special treatment to transit priority
projects is to encourage development in areas served by
transit and achieve the benefits noted above. How does
allowing half of a project area to be located beyond walking
distance from a major transit stop contribute to those
benefits? For example, the people living in housing or
working in businesses located in the development but beyond
AB 1886 (McCarty) Page 12 of
?
walking distance from a major transit stop - How are they
served by transit? Will they likely drive to where they need
to go rather than walk to the major transit stop because it is
beyond walking distance even though the project is labeled as
a "transit priority project"? How does calling this project a
"transit priority project" benefit the environment? At what
point does lowering the standard render the term, "transit
priority project," meaningless?
If up to 50% of a project area is farther than one-half mile
away from a major transit stop or high-quality transit
corridor, would that not potentially increase the number of
vehicle miles traveled, air pollution, and local
infrastructure costs than the current requirement of at least
75% of the project is located within that one-half mile range?
To double the percentage of project area to 50% that is
permitted to be farther than a half-mile away from a major
transit stop or high-quality transit corridor, and still be
considered a "transit priority project," a question arises as
to whether this bill loses sight and falls short of the
long-term goals and environmental benefits of being a "transit
priority project" and served by transit.
1) CEQA litigation. It is not unusual for certain interests to
blame CEQA lawsuits for causing problems to a project.
However, it should be noted that the only tool for enforcing
CEQA is litigation. Those citing CEQA litigation as a problem
do not indicate the result of that litigation. For example,
were significant impacts that were not evaluated in the
initial document ultimately addressed? What would have been
the result if those impacts had not been mitigated (e.g.,
flooding, exposure of people to hazards, inadequate public
services, congestion)?
The total number of CEQA cases filed averages about 200 cases per
year statewide and make up approximately 0.02% of 1,100,000
civil cases filed annually in California.
The California Attorney General's office conducted a case study
of CEQA challenges in the City and County of San Francisco
from July 2011 through December 2011 and found that 18
lawsuits were filed out of 5,203 projects considered under
CEQA.
AB 1886 (McCarty) Page 13 of
?
According to the Natural Resources Defense Council, a review of
CEQA challenges in the City of Los Angeles from January 2011
through July 20, 2012, shows that of 1,182 projects reviewed
under CEQA, 18 were challenged, which is a litigation rate of
1.5%.
Although certain interests believe CEQA litigation to be a
swathing impediment to some projects, the numbers above seem
to indicate otherwise. And if a project is the subject of
litigation, perhaps the cause of action has merit and ensures
compliance with the law. The volume of CEQA litigation is low
considering the thousands of projects subject to CEQA each
year as well as the volume of civil litigation in general
statewide.
2) Conclusion. Increasing infill development, particularly
projects served by transit, is a laudable goal. Some
environmental benefits could include reduced vehicle miles
traveled, air pollution, and energy consumption, and
conservation of natural resources and open space. However, if
a project is to be considered transit-oriented, is it
reasonable to allow up to half of the project area to not be
served by transit? In such a case, are the environmental
benefits fully achieved? If not, the Committee may wish to
consider whether such a project should be allowed to receive
the same special treatment under CEQA meant for
transit-oriented projects where a significant majority of the
project area is served by transit.
SOURCE: Author
SUPPORT:
California Association of Realtors
California Building Industry Association
California Transit Association
San Francisco Bay Area Rapid Transit District
Southwest California Legislative Council
OPPOSITION:
California League of Conservation Voters
Natural Resources Defense Council
AB 1886 (McCarty) Page 14 of
?
Sierra Club California
-- END --