The 2021-2022 Legislative Session was light on CEQA amendments, and once again did not produce any significant reform. We saw a continued focus on incentivizing affordable and infill developments on the condition that the project pay prevailing wages (AB 2011), reducing barriers for specified sustainable transit projects (SB 922), and amendments akin to “pet project exemptions” that are targeted to solving a narrower set of concerns (SB 118 and SB 886). None of the amendments, however, more broadly limit CEQA’s reach.
The Legislature also increased efforts to curb greenhouse gas emissions with the passage of Assembly Bill 1279 and Senate Bill 1020, setting net zero emissions targets and renewable energy and zero-carbon targets for California retail electricity sales. While not amendments to CEQA itself, these new targets are worth noting as they will invariably appear in CEQA documents.
Below is a short summary of the key features of these amendments.
AB 2011: Ministerial Review for Specified Housing Projects on Sites Zoned for Office, Retail, and Parking
The most significant CEQA legislative change last year was Assembly Bill 2011 (Wicks), which enacted the “Affordable Housing and High Road Jobs Act of 2022,” which is codified in Government Code section 65912.101 through 65912.140 (the Act”). The Act creates a ministerial approval pathway for qualifying multifamily projects on properties zoned for office, retail, and parking, so long as the projects pay prevailing wages and provide a certain level of affordable housing. As a ministerial approval, these projects would not be subject to CEQA review. Key features of AB 2011 include:
- Provides a streamlined ministerial approval for qualifying multifamily projects that pay prevailing wages, are located on parcels where office, retail, or parking is a principally permitted use, and that fit into one of two categories:
- 100% affordable (lower income) housing projects;
- Mixed income housing projects located in a “commercial corridor” with at least 50 feet of frontage on the commercial corridor if they meet specified affordability requirements:
- Rental: 8% very low and 5% extremely low income OR 15% lower income; 55 year term
- For Sale: 30% moderate income OR 15% to lower income; 45 year term
- Affordable units must have the same number of bedrooms and bathrooms as market rate units.
- The project must comply with development standards contained in the Act (e.g. density, height, setbacks).
- “Multifamily” is defined as “five or more housing units for sale or for rent,” and therefore is not limited to solely apartment projects.
- The term “commercial corridor” is defined as “a highway, as defined in Section 360 of the Vehicle Code, that is not a freeway, as defined in Section 332 of the Vehicle Code, and that has a right-of-way, as defined in Section 525 of the Vehicle Code, of at least 70 and not greater than 150 feet.”
- The ministerial review process includes several additional requirements and exceptions, based on the project type, including but not limited to, the need for the site to be surrounded by urban uses, restrictions on adjacency to industrial uses, and exclusions of sites that contain tribal cultural resources, are within a very high fire hazard severity zone, are located on environmentally sensitive lands, or require the demolition of existing housing or a historic structure. Many restrictions apply only to the mixed income projects, and not the 100% affordable projects.
- The Act has a sunset date of January 1, 2033, unless it is otherwise extended.
SB 6 was the companion bill to AB 2011, but it does not create a ministerial approval process. Instead, SB 6 provides that qualifying projects may invoke SB 35 and the Housing Accountability Act. SB 6 does not contain any affordable housing mandate, but SB 6 projects are required to pay prevailing wages and utilize a “skilled and trained workforce.”
SB 118: UC Enrollment Changes Not A CEQA “Project”
Senate Bill 118 was the State Legislature’s targeted response to Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2020) 51 Cal.App.5th 226. As previously summarized here, the First District Court of Appeal (Division 5) in Save Berkeley’s Neighborhoods held that the university’s enrollment increases were not statutorily exempt under Public Resources Code section 21080.09, which requires an EIR for long range development plans (“LRDPs”). The trial court later issued a ruling requiring the university to freeze enrollment at the same level as 2020-21 until the campus fully identified the impacts of increasing enrollment. Passed as a budget trailer bill (with a mere $50k appropriation inserted into the bill)
Through Senate Bill 118, the Legislature overturned the trial court’s injunction and the Court of Appeal’s holding, by amending Public Resource Code section 21080.09 to provide that “Enrollment or changes in enrollment, by themselves, do not constitute a project as defined in Section 21065.” The bill also amends Section 21080.09 to state that if a “court determines that increases in campus population exceed the projections adopted the most recent long-range development plan” and supporting EIR, and the “increases result in significant environmental impacts, the court may order the campus or medical center to prepare a new, supplemental, or subsequent environmental impact report,” but the university will have 18 months to prepare and certify before the court may enjoin increases in campus population. The bill declares that “any injunction or judgment . . . suspending or otherwise affecting enrollment shall be unenforceable” and that the amendments apply “retroactively to any decision related to enrollment or changes in enrollment made before the effective date of that bill.”
SB 886: University Housing Statutory Exemption
In addition to the carve-out under SB 118 for university enrollment, Senate Bill 886 (Wiener) creates a new statutory exemption through January 1, 2030 for university housing development projects carried out by a public university on university-owned property. University housing projects must meet specific requirements to qualify for the exemption, e.g. they must be LEED certified platinum or better, be consistent with the university’s LRDP EIR; and either be within a half mile of a major transit stop or campus boundary, or have 15% lower per capita vehicle miles traveled. The bill also includes both prevailing wage and skilled and trained workforce requirements.
SB 922: Exemption for Transit/Sustainable Transportation Projects
Senate Bill 922, another bill authored by Senator Wiener, expands upon his previous legislation (SB 288 in 2020, which sunsets on 1/1/2023) to expedite bike, pedestrian, light rail, and rapid bus projects. The bill amends Public Resources Code sections 21080.20 and 21080.25, and extends the existing exemption seven more years, through 1/1/2030. The bill also removes certain eligibility requirements previously required (e.g. now not all projects have to be in urbanized areas), adds “active transportation plans” and “pedestrian plans” to the list of exempt projects, imposes new requirements for anti-displacement analyses for projects exceeding $100 million, and adds new requirements for projects that exceed $50 million.
AB 185: School Level 3 Fees
Assembly Bill 185, enacted as an education omnibus trailer bill, amends a host of different statutory sections including Government Code section 65997(a), which sets forth the exclusive methods of mitigating environmental effects related to the adequacy of school facilities when considering the approval or the establishment of conditions for the approval of a development project under CEQA (i.e. related to impacts on enrollment). This includes the ability of school districts to require higher fees. Previously, the inoperation of Section 65997 was contingent upon the approval of a statewide general obligation bond measure submitted for voter approval that includes funding for construction of K-12 public school facilities. AB 185 amends that section to provide it is inoperable if “‘state resources’ are available” meaning there is an “appropriation for, or deposit into an account” used for “new construction of school facilities or the modernization of school facilities, or both.”
AB 1279 and SB 1020: Climate Bills
As mentioned above, there were two climate bills passed that do not directly involve application of CEQA, but which contain new climate goals and targets that will be referenced in new CEQA documents. Assembly Bill 1279 (Muratsuchi) enacted the California Climate Crisis Act, which declares the policy of the state both to achieve net zero greenhouse gas emissions no later than 2045, to achieve and maintain net negative greenhouse gas emissions thereafter, and to ensure that by 2045, statewide anthropogenic greenhouse gas emissions are reduced to at least 85% below the 1990 levels.
Senate Bill 1020 (Laird) enacted the Clean Energy, Jobs and Affordability Act of 2022, which among other requirements, amends Section 454.53 of the Public Utilities Code to provide that “eligible renewable energy resources and zero-carbon resources supply 90 percent of all retail sales of electricity to California end-use customers by December 31, 2035, 95 percent of all retail sales of electricity to California end-use customers by December 31, 2040, 100 percent of all retail sales of electricity to California end-use customers by December 31, 2045, and 100 percent of electricity procured to serve all state agencies by December 31, 2035.”
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.