Bill Text: CA AB2323 | 2019-2020 | Regular Session | Amended

California Assembly Bill 2323 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: California Environmental Quality Act: exemptions.

Spectrum: Slight Partisan Bill (Democrat 3-1)

Status: (Engrossed - Dead) 2020-08-20 - In committee: Held under submission. [AB2323 Detail]

Download: California-2019-AB2323-Amended.html

Amended IN Assembly June 04, 2020

Amended IN Assembly May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 2323

Introduced by Assembly Members Friedman and Chiu
(Coauthors: Assembly Members Carrillo and Mathis)

February 14, 2020

An act to amend Sections ~~21084, 21155.1,~~ 21155.4, 21159.21, ~~21159.24, and 21159.25~~ and 21159.24 of the Public Resources Code, relating to environmental quality.

LEGISLATIVE COUNSEL'S DIGEST

AB 2323, as amended, Friedman. California Environmental Quality Act: exemptions.

(1) The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

CEQA requires the Office of Planning and Research to prepare and develop, and the Secretary of the Natural Resources Agency to certify and adopt, guidelines for the implementation of CEQA by public agencies. CEQA requires those guidelines to include a list of classes of projects that have been determined not to have a significant effect on the environment and those classes of projects are exempt from its requirements. CEQA prohibits projects located on sites that are included in lists regarding the presence of hazardous substances compiled by specified state agencies from being exempt from its requirements under this provision.
CEQA exempts from its requirements a transit priority project that is declared by the legislative body of a local government to be a sustainable communities project and various housing projects, including, among others, agricultural employee housing projects, affordable housing projects, housing projects on infill sites, and residential or mixed-use housing projects, that meet certain requirements.
This bill would allow a project located on a site that is included in lists regarding the presence of hazardous substances compiled by specified state agencies to be exempt from those requirements if the Department of Toxic Substances Control has cleared the site for the proposed land use. The bill would make conforming changes to exemptions for certain transit priority projects, agricultural employee housing projects, affordable housing projects, housing projects on infill sites, and residential or mixed-use housing projects.
(2)CEQA exempts from its requirements a transit priority project that meets certain requirements, including, among others, the site of the project is subject to a preliminary endangerment assessment, as specified.
~~This bill instead would require a transit priority project to be subject to an environmental assessment, as defined, in order to be exempt.~~
~~(3)CEQA~~

CEQA exempts from its requirements certain residential, employment center, and mixed-use development projects meeting specified criteria, including that the project is undertaken and is consistent with a specific plan for which an environmental impact report has been certified.

This bill would require that the project is undertaken and is consistent with either a specific plan prepared pursuant to specific provisions of law or a community plan, as defined, in order to be exempt. Because a lead agency would be required to determine the applicability of this exemption, this bill would impose a state-mandated local program.

~~(4)~~

(2) CEQA exempts from its requirements agricultural employee housing projects, affordable housing projects, and housing projects on infill sites that meet certain requirements, including, among others, the site is not located within the boundaries of a state conservancy.

This bill would allow the location of agricultural employee housing projects, affordable housing projects, and housing projects on infill sites to be located within the boundaries of a state conservancy in order to be exempt.

~~(5)~~

(3) CEQA exempts from its requirements ~~housing~~ residential projects on infill sites that meet certain requirements, including, among others, that the location of the ~~housing~~ residential project on an infill site is no more than 4 acres.

This bill instead would require that the location of a ~~housing~~ residential project on an infill site be no more than 5 acres.

~~(6)~~

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES

The people of the State of California do enact as follows:

SECTION 1.Section 21084 of the Public Resources Code is amended to read:
21084.
(a)The guidelines prepared and adopted pursuant to Section 21083 shall include a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from this division. In adopting the guidelines, the Secretary of the Natural Resources Agency shall make a finding that the listed classes of projects referred to in this section do not have a significant effect on the environment.
(b)A project’s greenhouse gas emissions shall not, in and of themselves, be deemed to cause an exemption adopted pursuant to subdivision (a) to be inapplicable if the project complies with all applicable regulations or requirements adopted to implement statewide, regional, or local plans consistent with Section 15183.5 of Title 14 of the California Code of Regulations.
(c)A project that may result in damage to scenic resources, including, but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway designated as an official state scenic highway, pursuant to Article 2.5 (commencing with Section 260) of Chapter 2 of Division 1 of the Streets and Highways Code, shall not be exempted from this division pursuant to subdivision (a). This subdivision does not apply to improvements as mitigation for a project for which a negative declaration has been approved or an environmental impact report has been certified.
(d)A project located on a site that is included on any list compiled pursuant to Section 65962.5 of the Government Code shall not be exempted from this division pursuant to subdivision (a) unless the Department of Toxic Substances Control has cleared the site for the proposed land use.
(e)A project that may cause a substantial adverse change in the significance of a historical resource, as specified in Section 21084.1, shall not be exempted from this division pursuant to subdivision (a).
SEC. 2.Section 21155.1 of the Public Resources Code is amended to read:
21155.1.
If the legislative body finds, after conducting a public hearing, that a transit priority project meets all of the requirements of subdivisions (a) and (b) and one of the requirements of subdivision (c), the transit priority project is declared to be a sustainable communities project and shall be exempt from this division.
~~(a)The transit priority project complies with all of the following environmental criteria:~~
(1)The transit priority project and other projects approved prior to the approval of the transit priority project but not yet built can be adequately served by existing utilities, and the transit priority project applicant has paid, or has committed to pay, all applicable in-lieu or development fees.
(2)(A)The site of the transit priority project does not contain wetlands or riparian areas and does not have significant value as a wildlife habitat, and the transit priority project does not harm any species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), or the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and the project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete.
~~(B)For purposes of this paragraph, “wetlands” has the same meaning as in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).~~
~~(C)For purposes of this paragraph:~~
(i)“Riparian areas” means those areas transitional between terrestrial and aquatic ecosystems and that are distinguished by gradients in biophysical conditions, ecological processes, and biota. A riparian area is an area through which surface and subsurface hydrology connect waterbodies with their adjacent uplands. A riparian area includes those portions of terrestrial ecosystems that significantly influence exchanges of energy and matter with aquatic ecosystems. A riparian area is adjacent to perennial, intermittent, and ephemeral streams, lakes, and estuarine-marine shorelines.
~~(ii)“Wildlife habitat” means the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.~~
(iii)Habitat of “significant value” includes wildlife habitat of national, statewide, regional, or local importance; habitat for species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code); habitat identified as candidate, fully protected, sensitive, or species of special status by local, state, or federal agencies; or habitat essential to the movement of resident or migratory wildlife.
(3)The site of the transit priority project is not included on any list of facilities and sites compiled pursuant to Section 65962.5 of the Government Code unless the Department of Toxic Substances Control has cleared the site for residential use or mixed-use residential housing.
(4)(A)The site of the transit priority project is subject to an environmental assessment, as defined in Section 25360.3 of the Health and Safety Code, to determine the existence of any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity.
(B)If a release of a hazardous substance is found to exist on the site, the release shall be removed or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements.
(C)If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements.
~~(5)The transit priority project does not have a significant effect on historical resources pursuant to Section 21084.1.~~
~~(6)The transit priority project site is not subject to any of the following:~~
(A)A wildland fire hazard, as determined by the Department of Forestry and Fire Protection, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a wildland fire hazard.
~~(B)An unusually high risk of fire or explosion from materials stored or used on nearby properties.~~
~~(C)Risk of a public health exposure at a level that would exceed the standards established by any state or federal agency.~~
(D)Seismic risk as a result of being within a delineated earthquake fault zone, as determined pursuant to Section 2622, or a seismic hazard zone, as determined pursuant to Section 2696, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of an earthquake fault or seismic hazard zone.
~~(E)Landslide hazard, flood plain, flood way, or restriction zone, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a landslide or flood.~~
~~(7)(A)The transit priority project site is not located on developed open space.~~
~~(B)For purposes of this paragraph, “developed open space” means land that meets all of the following criteria:~~
~~(i)Is publicly owned, or financed in whole or in part by public funds.~~
~~(ii)Is generally open to, and available for use by, the public.~~
(iii)Is predominantly lacking in structural development other than structures associated with open spaces, including, but not limited to, playgrounds, swimming pools, ballfields, enclosed child play areas, and picnic facilities.
(C)For purposes of this paragraph, “developed open space” includes land that has been designated for acquisition by a public agency for developed open space, but does not include lands acquired with public funds dedicated to the acquisition of land for housing purposes.
(8)The buildings in the transit priority project are 15 percent more energy efficient than required by Part 6 of Title 24 of the California Code of Regulations and the buildings and landscaping are designed to achieve 25 percent less water usage than the average household use in the region.
~~(b)The transit priority project meets all of the following land use criteria:~~
~~(1)The site of the transit priority project is not more than eight acres in total area.~~
~~(2)The transit priority project does not contain more than 200 residential units.~~
~~(3)The transit priority project does not result in any net loss in the number of affordable housing units within the project area.~~
~~(4)The transit priority project does not include any single level building that exceeds 75,000 square feet.~~
(5)Any applicable mitigation measures or performance standards or criteria set forth in the prior environmental impact reports, and adopted in findings, have been or will be incorporated into the transit priority project.
~~(6)The transit priority project is determined not to conflict with nearby operating industrial uses.~~
(7)The transit priority project is located within one-half mile of a rail transit station or a ferry terminal included in a regional transportation plan or within one-quarter mile of a high-quality transit corridor included in a regional transportation plan.
~~(c)The transit priority project meets at least one of the following three criteria:~~
~~(1)The transit priority project meets both of the following:~~
(A)At least 20 percent of the housing will be sold to families of moderate income, or not less than 10 percent of the housing will be rented to families of low income, or not less than 5 percent of the housing is rented to families of very low income.
(B)The transit priority project developer provides sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of the housing units for very low income, low-income, and moderate-income households at monthly housing costs with an affordable housing cost or affordable rent, as defined in Section 50052.5 or 50053 of the Health and Safety Code, respectively, for the period required by the applicable financing. Rental units shall be affordable for at least 55 years. Ownership units shall be subject to resale restrictions or equity sharing requirements for at least 30 years.
(2)The transit priority project developer has paid or will pay in-lieu fees pursuant to a local ordinance in an amount sufficient to result in the development of an equivalent number of units that would otherwise be required pursuant to paragraph (1).
~~(3)The transit priority project provides public open space equal to or greater than five acres per 1,000 residents of the project.~~

SEC. 3.SECTION 1.

Section 21155.4 of the Public Resources Code is amended to read:

21155.4.

(a) Except as provided in subdivision (b), a residential project; employment center project, as defined in subdivision (a) of Section 21099; or mixed-use development project, including any subdivision, or any zoning, change that meets all of the following criteria is exempt from the requirements of this division:

(1) The project is proposed within a transit priority area, as defined in subdivision (a) of Section 21099.

(2) The project is undertaken to implement, and is consistent with, a specific plan adopted pursuant to Article 8 (commencing with Section 65450) of Chapter 3 of Division 1 of Title 7 of the Government Code or a community plan, as defined in Section 65458 of the Government Code, for which an environmental impact report has been certified.

(3) 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 an alternative planning strategy for which the State Air Resources Board, pursuant to subparagraph (H) of paragraph (2) of subdivision (b) of Section 65080 of the Government Code, has accepted a metropolitan planning organization’s determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emissions reduction targets.

(b) Further environmental review shall be conducted only if any of the events specified in Section 21166 have occurred.

SEC. 4.SEC. 2.

Section 21159.21 of the Public Resources Code is amended to read:

21159.21.

A housing project qualifies for an exemption from this division pursuant to Section 21159.22, 21159.23, or 21159.24 if it meets the criteria in the applicable section and all of the following criteria:

(a) The project is consistent with an applicable general plan, specific plan, and local coastal program, including any mitigation measures required by a plan or program, as that plan or program existed on the date that the application was deemed complete and with an applicable zoning ordinance, as that zoning ordinance existed on the date that the application was deemed complete, except that a project shall not be deemed to be inconsistent with the zoning designation for the site if that zoning designation is inconsistent with the general plan only because the project site has not been rezoned to conform with a more recently adopted general plan.

(b) Community-level environmental review has been adopted or certified.

(c) The project and other projects approved before the approval of the project can be adequately served by existing utilities, and the project applicant has paid, or has committed to pay, all applicable in-lieu or development fees.

(d) The site of the project does not contain wetlands, does not have any value as a wildlife habitat, and the project does not harm any species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or by the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and the project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete. For purposes of this subdivision, “wetlands” has the same meaning as in Section 328.3 of Title 33 of the Code of Federal Regulations and “wildlife habitat” means the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.

(e) The site of the project is not included on a list of facilities and sites compiled pursuant to Section 65962.5 of the Government ~~Code unless the Department of Toxic Substances Control has cleared the site for residential use or mixed-use residential housing.~~ Code.

(f) (1) The site of the project is subject to a preliminary endangerment assessment prepared by an environmental assessor to determine the existence of any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity.

(2) If a release of a hazardous substance is found to exist on the site, the release shall be removed, or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements.

(3) If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements.

(g) The project does not have a significant effect on historical resources pursuant to Section 21084.1.

(h) The project site is not subject to any of the following:

(1) A wildland fire hazard, as determined by the Department of Forestry and Fire Protection, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a wildland fire hazard.

(2) An unusually high risk of fire or explosion from materials stored or used on nearby properties.

(3) Risk of a public health exposure at a level that would exceed the standards established by a state or federal agency.

(4) Within a delineated earthquake fault zone, as determined pursuant to Section 2622, or a seismic hazard zone, as determined pursuant to Section 2696, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of an earthquake fault or seismic hazard zone.

(5) Landslide hazard, flood plain, flood way, or restriction zone, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a landslide or flood.

(i) (1) The project site is not located on developed open space.

(2) For purposes of this subdivision, “developed open space” means land that meets all of the following criteria:

(A) Is publicly owned, or financed in whole or in part by public funds.

(B) Is generally open to, and available for use by, the public.

(C) Is predominantly lacking in structural development other than structures associated with open spaces, including, but not limited to, playgrounds, swimming pools, ballfields, enclosed child play areas, and picnic facilities.

(3) For purposes of this subdivision, “developed open space” includes land that has been designated for acquisition by a public agency for developed open space, but does not include lands acquired by public funds dedicated to the acquisition of land for housing purposes.

SEC. 5.SEC. 3.

Section 21159.24 of the Public Resources Code is amended to read:

21159.24.

(a) Except as provided in subdivision (b), this division does not apply to a project if all of the following criteria are met:

(1) The project is a residential project on an infill site.

(2) The project is located within an urbanized area.

(3) The project satisfies the criteria of Section 21159.21.

(4) Within five years of the date that the application for the project is deemed complete pursuant to Section 65943 of the Government Code, community-level environmental review was certified or adopted.

(5) The site of the project is not more than five acres in total area.

(6) The project does not contain more than 100 residential units.

(7) Either of the following criteria are met:

(A) (i) At least 10 percent of the housing is sold to families of moderate income, or not less than 10 percent of the housing is rented to families of low income, or not less than 5 percent of the housing is rented to families of very low income.

(ii) The project developer provides sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of the housing units for very low income, low-income, and moderate-income households at monthly housing costs determined pursuant to paragraph (3) of subdivision (h) of Section 65589.5 of the Government Code.

(B) The project developer has paid or will pay in-lieu fees pursuant to a local ordinance in an amount sufficient to result in the development of an equivalent number of units that would otherwise be required pursuant to subparagraph (A).

(8) The project is within one-half mile of a major transit stop.

(9) The project does not include any single level building that exceeds 100,000 square feet.

(10) The project promotes higher density infill housing. A project with a density of at least 20 units per acre shall be conclusively presumed to promote higher density infill housing. A project with a density of at least 10 units per acre and a density greater than the average density of the residential properties within 1,500 feet shall be presumed to promote higher density housing unless the preponderance of the evidence demonstrates otherwise.

(b) Notwithstanding subdivision (a), this division shall apply to a development project that meets the criteria described in subdivision (a), if any of the following occur:

(1) There is a reasonable possibility that the project will have a project-specific, significant effect on the environment due to unusual circumstances.

(2) Substantial changes with respect to the circumstances under which the project is being undertaken that are related to the project have occurred since the community-level environmental review was certified or adopted.

(3) New information becomes available regarding the circumstances under which the project is being undertaken and that is related to the project, that was not known, and could not have been known at the time that the community-level environmental review was certified or adopted.

(c) If a project satisfies the criteria described in subdivision (a), but is not exempt from this division as a result of satisfying the criteria described in subdivision (b), the analysis of the environmental effects of the project in the environmental impact report or the negative declaration shall be limited to an analysis of the project-specific effect of the projects and any effects identified pursuant to paragraph (2) or (3) of subdivision (b).

(d) For purposes of this section, “residential” means a use consisting of either of the following:

(1) Residential units only.

(2) Residential units and primarily neighborhood-serving goods, services, or retail uses that do not exceed 25 percent of the total building square footage of the project.

SEC. 6.Section 21159.25 of the Public Resources Code is amended to read:
21159.25.
~~(a)For purposes of this section, the following definitions apply:~~
(1)“Residential or mixed-use housing project” means a project consisting of multifamily residential uses only or a mix of multifamily residential and nonresidential uses, with at least two-thirds of the square footage of the development designated for residential use.
(2)“Substantially surrounded” means at least 75 percent of the perimeter of the project site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses. The remainder of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that have been designated for qualified urban uses in a zoning, community plan, or general plan for which an environmental impact report was certified.
(b)Without limiting any other statutory exemption or categorical exemption, this division does not apply to a residential or mixed-use housing project if all of the following conditions described in this section are met:
~~(1)The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.~~
(2)(A)The public agency approving or carrying out the project determines, based upon substantial evidence, that the density of the residential portion of the project is not less than the greater of the following:
~~(i)The average density of the residential properties that adjoin, or are separated only by an improved public right-of-way from, the perimeter of the project site, if any.~~
~~(ii)The average density of the residential properties within 1,500 feet of the project site.~~
~~(iii)Six dwelling units per acre.~~
~~(B)The residential portion of the project is a multifamily housing development that contains six or more residential units.~~
~~(3)The proposed development occurs within an unincorporated area of a county on a project site of no more than five acres substantially surrounded by qualified urban uses.~~
~~(4)The project site has no value as habitat for endangered, rare, or threatened species.~~
~~(5)Approval of the project would not result in any significant effects relating to transportation, noise, air quality, greenhouse gas emissions, or water quality.~~
~~(6)The site can be adequately served by all required utilities and public services.~~
~~(7)The project is located on a site that is a legal parcel or parcels wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.~~
~~(c)Subdivision (b) does not apply to a residential or mixed-use housing project if any of the following conditions exist:~~
~~(1)The cumulative impact of successive projects of the same type in the same place over time is significant.~~
~~(2)There is a reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances.~~
(3)The project may result in damage to scenic resources, including, but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway.
(4)The project is located on a site that is included on any list compiled pursuant to Section 65962.5 of the Government Code unless the Department of Toxic Substances Control has cleared the site for residential use or mixed-use housing.
~~(5)The project may cause a substantial adverse change in the significance of a historical resource.~~
(d)If the lead agency determines that a project is not subject to this division pursuant to this section and it determines to approve or carry out the project, the lead agency shall file a notice with the Office of Planning and Research and with the county clerk in the county in which the project will be located in the manner specified in subdivisions (b) and (c) of Section 21152.
~~(e)This section shall remain in effect only until January 1, 2025, and as of that date is repealed.~~

SEC. 7.SEC. 4.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.