Compared to the recent hoopla over the unveiling of Governor Wilson's long-awaited "Strategic Growth" measures, relatively little attention has been focused on a recent amendment of the California Environmental Quality Act (CEQA).
As the following discussion reveals, the recent CEQA amendment appears to further some of the same objectives as the Governor's plan, white it may provide a more immediate opportunity for improving certain aspects of California's much-criticized and laborious environmental review process.
By Kirsten Shirley Ellis, an associate in the Real Estate Department at Paul, Hastings, Janofsky & Walker, where she specializes in land-use and environmental law.
The CEQA Amendment
Effective this past January 1st, CEQA Section 21083.3 was amended to allow any development project to take advantage of a previously prepared environmental impact report (EIR) for a related zoning or community plan approval, subject (of course) to certain limitations. (AB 3078, Sher; Public Resources Code 21083.3)
To take advantage of the prior EIR, Section 21083.3 requires that the development project be "consistent with" the related zoning or community plan. If there is consistency, any further environmental review for the development project need only cover (a) the project's "effects upon the environment which are peculiar to the parcel" and not discussed in the prior EIR, and (b) any "substantial new information" showing that the project's impacts will be more significant than described in the prior EIR.
If these provisions sound familiar, it’s because they are virtually identical to the CEQA provisions enacted in 1984 for residential projects, under the same Section 21083.3. With the recent amendment, the legislature has inserted a new requirement regarding “substantial new information,” but otherwise it merely deleted one word so that “residential development” is now “development.”
Unfortunately, former Section 21083.3 relating to residential projects was not widely used and there are no published legal opinions that shed light on its strengths and weaknesses. Also, there is not yet any case law interpreting the CEQA amendment, although the legislative history makes it clear that the measure was adopted in order to “streamline the CEQA review process by limiting the scope of CEQA review.”
“Strategic Growth” Recap
As suggested earlier, this CEQA amendment is in keeping with the Governor’s plan for Strategic Growth Management Council, his CEQA reform proposals are designed to provide developers with certainty and avoid the delay that has heretofore plagued the environmental review process.
A focal point of the Governor’s reform proposal is the replacement of the general plan with the “Local Comprehensive Plan.” As proposed, existing general plans would be “reinforced and strengthened” to be consistent with state planning requirements and to provide greater specificity as to permitted development, applicable development criteria, and long-term infrastructure financing. Because the Local Comprehensive Plan must be consistent with a broad array of state guidelines, policies, plans and statutes, the proposal places increased emphasis on the coordination of state, regional and local planning.
With respect to CEQA reform, Wilson’s plan allows for a “Master EIR” to be prepared for each Local Comprehensive Plan, allowing for truncated review at the project level. Similar to the CEQA amendment, this concept allows development projects to “piggy-back” onto previously prepared EIRs for the adopted planning document. As contemplated, only those projects deemed to be inconsistent with the Local Comprehensive Plan or to have aspects “honestly unique or particular to the project” would require a tiered EIR or Mitigated Negative Declaration.
To date, no legislation has been adopted specifically to promote the “Strategic Growth” plan, but the Governor has indicated that the first steps must be taken on a statewide planning level, to crystallize existing and new plans so that planning consistency can be established from the top down. Once this is accomplished, the state would mandate that local governments develop new Local Comprehensive Plans, or revise and recertify existing general plans, in compliance with applicable state standards.
On paper, the Governor’s proposal sounds like a rational way to reform our problematic system and reduce the delays (i.e., costs) associated with development. On a more practical level, however, it appears that the proposal will require a tremendous amount of time, money and coordination before any real changes trickle down to the development community.
How Does Amendment Fit In?
Because the Governor’s policies will take a long time to be implemented, we should turn a hopeful eye to the more immediate possibilities presented by CEQA Section 21083.3
Obviously, Section 21083.3 will be most useful in areas where a Specific Plan or similar land-use/zoning regulation has recently been adopted. For example, the EIR covering the Specific Plan for the Central City West are of Los Angeles could arguably be used for any development project in that area that satisfies the Specific Plan’s basic zoning and design standards. Only those impacts “peculiar to the project” or involving “substantial new evidence” that increases environmental impacts would have to be analyzed.
Importantly, the success of the CEQA amendment will hinge on the breadth of the local decisionmaker’s interpretation of its provisions. Indeed, one could conclude that just about any project has its own “peculiar” circumstances that were not addressed in the prior EIR. For example, a development project in Central City West that does not reach the maximum height standards could arguably give rise to “peculiar” effects in terms of shade and shadow, aesthetics, land-use, etc. This question of interpretation threatens to undermine the goals of streamlining and certainty.
Any Promise for Change?
The importance of interpretation can also allow increased opportunities for change, however. If Section 21083.3 is interpreted in a way that is consistent with its underlying legislative intent and in keeping with the policies and objectives of the Governor's Strategic Growth plan, it promises to be an important mechanism for simplifying and shortening the environmental review process. The legislative intent to streamline the environmental review process supports a broad interpretation of the CEQA amendment, whereby the test of "peculiar" effects would focus on potential increases in environmental impacts, not on the minor peculiarities in the design, structure or even type of use of a development project.
Thus, in Central City West, the development of an eleven-story building in an area zoned for the maximum height (not exceeding the altitude of the First Interstate Tower in downtown L.A.) would allow use of the Specific Plan’s EIR pursuant to Section 21083.3.
If comprehensive plans are developed with the proper scope and attention to detail, there will be very few situations where a development project which does not violate the provisions of the Specific Plan will give rise to “peculiar" circumstances not considered in the Specific Plan’s EIR.
For example, if a parcel consists of undeveloped "open space," the Specific Plan's EIR should have considered all of the environmental impacts from developing the site as permitted under its zoning envelope. Even parcels with potential groundwater contamination or located atop a culturally significant monument need not be viewed as ''peculiar" where the Specific Plan's EIR analyzed these potential impacts.
Prospects and Promise
Taken alone, the CEQA amendment is not enough to alter the foreboding and uncertain nature of the protracted CEQA review process. Also, the Governor's proposal does not promise an immediate change to our current system.
However, the CEQA amendment carries considerable promise when combined with thorough and precise comprehensive planning as well as integrity on the part of local decisionmakers (from the planning staff to the elected officials). The reforms will truly be successful if these decisionmakers are able to take a step back and interpret CEQA in view or the important legislative and executive messages to streamline CEQA review and promote "Strategic Growth."
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