June 12, 2013

CEQA Streamlining Under California Bay Area's "Plan Bay Area"

Holland & Knight Alert
Chelsea Maclean

On March 2, 2013, the Metropolitan Transportation Commission (MTC) and the Association of Bay Area Governments (ABAG) released the Draft Plan Bay Area (Plan), the California Bay Area's first integrated land use, housing and transportation plan prepared pursuant to SB 375 — the Sustainable Communities and Climate Protection Act of 2008 — which aims to reduce greenhouse gas (GHG) emissions from cars and light trucks by improving the efficiency of regional land development patterns.

The Plan integrates MTC's long-range Regional Transportation Plan, which is intended to identify strategies and investments to maintain, manage and improve the region's ground transportation network with ABAG's Regional Housing Need Allocation (RHNA) efforts to allocate specific housing targets to individual cities and counties. For the first time, the Plan also includes a sustainable communities strategy (SCS), a new element required pursuant to SB 375 to demonstrate how the region will meet its GHG targets, as established by the California Air Resources Board (CARB).

Translating these legal obligations into numbers, MTC and ABAG were faced with the challenge of developing a multi-billion dollar, long-range plan to accommodate the nine-county San Francisco Bay region's projected increase of 1.1 million jobs and 2.1 million people by the year 2040, but at the same time achieve a 7 percent reduction in per capita GHG emissions by the year 2020 and a 15 percent reduction in per capita GHG by the year 2035.

Of particular interest to stakeholders are: (1) growth patterns promoted by the Plan; (2) California Environmental Quality Act (CEQA) streamlining opportunities available for future projects that are consistent with the Plan under SB 375; and (3) other streamlining opportunities for non-qualifying projects outside of SB 375. This alert addresses these key topics.

1. Proposed Plan Focuses Growth in PDAs

MTC's and ABAG's regional planning and outreach efforts have been in progress for more than a decade, culminating in a regional initiative called FOCUS, an effort intended to help local governments identify Priority Development Areas (PDAs) (existing neighborhoods nominated by local jurisdictions as appropriate places to concentrate future growth) and Priority Conservation Areas (PCAs) (regionally significant open spaces).

After narrowing the land use scenarios down from five, the scenario ultimately selected as the proposed Plan pairs the "Jobs-Housing Connection Strategy" — which concentrates 80 percent of new housing and 66 percent of new jobs in PDAs and accommodates 100 percent of new growth within existing urban growth boundaries and urban limit lines — with the "Preferred Transportation Investment Strategy" — which devotes 87 percent of transportation funding (or $251 billion) to operating and maintaining the existing transportation network (thereby leaving only a 13 percent of funding (or $37 billion) for new transit and road expansion projects). The Plan reports that it meets and exceeds its GHG emissions reduction targets as well as its housing targets. The map shows the transportation and land use pattern that is the basis of the proposed Plan. It also designates PDAs and PCAs.

Generally speaking, housing and job growth is distributed among the region's nine counties as follows:

  • San Francisco, San Mateo, Santa Clara and Alameda counties account for the majority of housing growth (77 percent) and job growth (76 percent), since these counties have the most developed transit network; also, in furtherance of the goal of connecting homes and jobs. Within these counties, San Francisco, San Jose and Oakland will accommodate 42 percent of housing growth and 38 percent of job growth by 2040.
  • Contra Costa County accounts for 11 percent of job growth and 12 percent of housing primarily within PDAs centered on BART stations in Concord, Richmond, Pittsburg and Walnut Creek.
  • North Bay counties of Marin, Napa, Solano and Sonoma are expected to take the smallest share of growth, comprising 10 percent of new housing and 13 percent of jobs, due the area's limited transit access.

Some jurisdictions have been more accepting of planned growth than others, particularly in smaller cities. On March 6, 2012, Corte Madera voted to withdraw from ABAG in protest of the regional housing targets allocated to the town, believing that ABAG's population projections are overestimated and that the town is already built out. Corte Madera has since tried to rally support from other Marin County cities to form a group that could replace ABAG. Palo Alto has also been active in the debate, requesting the removal of the Downtown area and the El Camino corridor as PDAs in February 2012 and filing a formal appeal in February 2013 of ABAG's adopted RHNA goals for Palo Alto, calling the regional forecasts "unreasonable and unachievable."

2. SB 375 Streamlining: Who Benefits Most

Amid the ongoing debate regarding the RHNA targets, MTC and ABAG released a Draft Environmental Impact Report (Plan EIR) on April 2, 2013 that evaluates the potential environmental effects of adopting and implementing the Plan under CEQA. Many have eagerly anticipated the release of the Plan and Plan EIR for the promise of CEQA streamlining opportunities under SB 375. Streamlining is available for Transit Priority Projects (TPPs) and residential or mixed-use projects consistent with the Plan. Each are discussed below.

Streamlining for TPPs

Despite the Plan's PDA-focused land use pattern, CEQA streamlining under SB 375 is most readily available for Transit Priority Projects (TPPs).

TPPs must: (1) contain at least 50 percent residential uses based upon total building square footage and, if the project contains between 26 percent and 50 percent nonresidential uses, a floor area ratio of not less than 0.75; (2) provide a minimum net density of at least 20 dwelling units per acre; and (3) be located within one-half mile of a major transit stop or high-quality transit corridor included in a regional transportation plan.

Qualifying TPPs will be eligible for the following streamlining options: (1) total exemption where the TPP complies with an extensive list of criteria provided at Public Resources Code Section 21155.1(a); (2) the newly created Sustainable Communities Environmental Assessment (SCEA) (a document similar to a negative declaration in that the lead agency is required to consider, but not respond to, all public comments received on a proposed project, but that enjoys the more deferential "substantial evidence" standard normally reserved for EIRs); (3) or a streamlined EIR. To qualify for streamlining, TPPs must also incorporate all feasible mitigation measures, performance standards and applicable criteria in the Plan EIR.

Neither SCEAs nor streamlined EIRs need analyze growth-inducing impacts or any project-specific or cumulative impacts from cars and light-duty trucks on global warming or the regional transportation network. Lead agencies will also have the opportunity to conclude that where cumulative effects have been adequately addressed and mitigated in a prior EIR (in this case, the Plan EIR), cumulative effects of the TPP need not be treated as cumulatively considerable. Finally, a streamlined EIR prepared for a TPP need not analyze an off-site alternative to the TPP or a reduced residential density alternative to address the effects of car and light-duty truck trips generated by the TPP. The SCEA presents the greatest potential value given that few projects will qualify for exemptions and that the analysis that may be eliminated from the streamlined EIRs is limited.  

In contrast to TPP streamlining, none of the streamlining mechanisms available under SB 375 apply to developments in PDAs, a fact that reveals the tension between ABAG and MTC, which have been developing and refining the PDA pattern for years, and others who believe that only TPPs deserve streamlining. This tension can also be seen in statements throughout the Plan and Plan EIR noting that while PDAs and TPPs overlap, they are not entirely congruent and acknowledging that "TPPs-eligible areas were not identified until after the passage of SB 375 in 2008." In this regard, the analysis of TPPs almost appears as an afterthought in the Plan and Plan EIR. Accordingly, in order to understand the true streamlining opportunities, it is necessary to understand where PDAs and TPPs diverge. The map compares PDA- and TPP-eligible areas.

While the map visually demonstrates the Plan EIR's statements that the "many PDAs (74 percent of PDA acreage) overlap with TPP areas," there are important divergences. In general, TPPs are more closely located near high frequency and high-quality transit corridors. As a result, PDAs in the outer Bay Area jurisdictions — such as Livermore, Concord, Pittsburg, Santa Rosa and Solano County — without transit access will not have the opportunity for TPP streamlining. Alternatively, developments proposed in areas that are only TPP-eligible — such as western San Francisco and portions of Mountain View, Berkeley, and San Jose — will face a different challenge of demonstrating consistency with the Plan's PDA-focused land use pattern.

Streamlined Review for Consistent Residential Projects

SB 375 offers limited CEQA streamlining for residential or mixed-use residential projects that are consistent with the "building intensity, density, use designation, and applicable policies specified for the project area" in an applicable SCS. A residential or mixed-use residential project is defined as a project where at least 75 percent of the total building square footage of the project consists of residential use or a project that is a TPP.

CEQA documents for such residential or mixed-use residential projects are not required to analyze any growth-inducing impacts or any project specific or cumulative impacts from cars and light-duty trucks on global warming or the regional transportation network. Where an EIR is prepared for a qualifying residential or mixed-use project, it is not required to analyze a reduced density alternative or address the effects of car and light-duty truck trips generated by the project. Accordingly, analysis of these specified impacts may be eliminated in the CEQA documents for qualifying residential or mixed use projects. Because the scope of topics that must be discussed in CEQA documents is so vast, the value of eliminating these topic areas is somewhat limited.

Again, the Plan and Plan EIR include relatively minimal discussion regarding streamlining for these residential and mixed-use residential projects. The Plan includes a short definition of qualifying projects. The Plan EIR also includes a discussion of the same qualifying criteria, as well as the streamlining benefits. However, neither the Plan nor the Plan EIR provide further explanation and neither identify the "building intensity, density, use designation, and applicable policies" with which a residential or mixed-use project must be consistent. Presumably, a consistency analysis will entail determining whether a project is in a PDA or whether it conflicts with any resource designations such as a PCA or other protected category. Next, an analysis would likely consider whether the growth associated with the project falls within the growth allocated to a particular jurisdiction. Further, the "Draft Forecast of Jobs, Population and Housing," a supplementary report to the Plan, allocates jobs and housing growth for each PDA. However, the Plan does not appear to include more specific standards or policies for determining consistency.

Interestingly, investigation into other regional SCSs has revealed growth assumptions at more granular levels, namely at the transportation analysis zone or "TAZ" level in the Southern California Association of Government's SCS, and down to a parcel level in the Sacramento Area Council of Government's SCS. We are not aware of MTC or ABAG having released similar data to the public, thereby impairing the ability of the public to determine consistency with the Plan to the level of detail contemplated by SB 375.

3. Other Streamlining Opportunities Available Outside of SB 375

It should be noted that there are additional streamlining opportunities that may be available for Bay Area projects that do not qualify for streamlining under SB 375 — for example, projects in PDAs that are not TPPs, are discussed below. View these flowcharts for determining a project's eligibility for several of these streamlining mechanisms.

  1. Infill Exemption. SB 1925 created a statutory exemption for qualifying infill projects in 2002. Due to the extensive list of qualifying criteria, few projects will qualify for this exemption.
  2. General Plan/Community Plan/Zoning/Specific Plan Exemptions. As Bay Area jurisdictions certify EIRs for general plan and other jurisdiction- or area-wide updates, those plans are likely to reflect but may not be identical to the Plan's growth pattern, particularly since there is nothing in SB 375 provides that there is nothing in the statute that requires a city's "land use policies and regulations....to be consistent with the regional transportation plan." Accordingly, development projects consistent with local planning documents may utilize the exemption for projects consistent with general plans, community plans and zoning (Pub. Res. Code §21083.3), or the exemption for residential projects consistent with a specific plan (Gov't. Code §65457).
  3. SB 226 Streamlining. SB 226, adopted in 2011, authorized streamlining for certain urban infill development that meet qualifying criteria, including performance standards recently adopted by the Office of Planning & Research. It may be noted that one of the criteria for SB 226 eligibility is consistency with an approved SCS, further linking streamlining to consistency with the Plan.
  4. Simplified Greenhouse Gas Analysis. Projects consistent with the Plan may more easily demonstrate less than significant greenhouse gas impacts based on CEQA Guidelines amendments adopted pursuant to SB 97 in 2009. Specifically, CEQA Guidelines section 15064(h)(3) provides that a lead agency may consider the extent to which a project complies with regulations or requirements adopted to implement a statewide, regional or local plan for the reduction or mitigation of greenhouse gas emissions in determining whether a project would have a significant greenhouse gas impact.
  5. Tiering. Future CEQA documents may utilize CEQA's long-established tiering mechanism, further bolstered by two bills adopted in 2010 (SB 1456 and AB 231) that allow a later CEQA document to rely on an assessment of cumulative impacts in a prior EIR and to incorporate a statement of overriding considerations made in a prior EIR. Accordingly, future CEQA documents may rely on cumulative analysis in the Plan EIR and may incorporate by reference any of the nearly 40 significant and unavoidable impacts in the Plan EIR.

Streamlining Mechanisms May Soon Be Tested

Future project-specific environmental review should be considered in the context of the many streamlining provisions mentioned above. Among the myriad options, the SCEA for TPPs present the greatest opportunity, given that few projects will qualify for exemptions and the analysis that may be eliminated from streamlined EIRs is limited. Upon final adoption of the Plan, and in the absence of any litigation on the Plan, many of these streamlining mechanisms — only theoretically discussed and imagined up until now — may soon be tested.

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