The 2023 legislative cycle saw another mixed-bag of legislation dealing with CEQA “reform,” with a particular focus on streamlining affordable housing development.[1] While many bills died during the process, a few key laws were passed or extended over the past year. A brief recap of those bills and their impact on CEQA is provided below.[2]
Assembly Bill 356
AB 356 extends the existing law that allows lead agencies to waive consideration of aesthetic impacts for certain projects from sunsetting in 2024 to January 1, 2029. More specifically, AB 356 amends Public Resources Code section 21081.3, which exempts projects that propose the conversion, refurbishment, repurposing, or replacement of an existing dilapidated building from CEQA analysis of potential aesthetic impacts. Qualifying existing buildings must (1) have been abandoned, dilapidated, or vacant for more than 1 year, and (2) the proposed project must include housing.
Assembly Bill 1307
AB 1307, unanimously passed by the State Legislature and signed by Governor Newsom on September 7, 2023, was crafted in response to the court ruling in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656.[3] AB 1307 expressly provides that unamplified noise from the occupants and guests of residential projects is not a significant impact as defined by CEQA. Additionally, the law provides that public universities are not required to consider alternative site locations for their proposed housing or mixed-use housing developments when (1) the project is located on a site no greater than 5 acres, and (2) the site has already been evaluated in an EIR for the University’s long range development plan. The law took effect in September 2023.
Assembly Bill 1449
AB 1449 creates a new exemption from CEQA for certain actions taken by public agencies related to 100% affordable housing projects. To qualify for the exemption, projects must (1) be 100% low-income affordable developments, (2) comply with AB 2011 labor standards and prevailing wage requirements, (3) be an infill project as defined by AB 1449, and (4) meet other transit and development standards. Qualifying projects are CEQA-exempt from agency actions beyond just approval of the project itself. Specifically, the exemption could apply to agency actions leading up to and following approval of the project. The lead agency, in approving the qualifying project, must file a Notice of Exemption for the project and any exempt project-related actions. Such project-related actions could include, for example, any required rezoning for the property and project financing. The exemption, codified at Public Resources Code section 21080.40, is in effect until January 1, 2033.
Assembly Bill 1633
AB 1633 is focused on limiting excessive CEQA review for residential development.[4] To accomplish this goal, the law focuses on creating new violations of the Housing Accountability Act (“HAA”) to force local jurisdictions to better streamline housing projects. Specifically, it is now a violation of the HAA for a local agency to deny a CEQA exemption where the AB 1633 qualifying project is otherwise subject to such an exemption. The law also provides applicants with a 90-day noticing process whereby the local agency, upon provision of substantial evidence of the applicability of a CEQA exemption, has 90 days to review the applicant’s notice and issue the exemption. Failure to issue the exemption shall constitute a violation of the HAA.
Further, if a project qualifies under AB 1633, it is a violation of the HAA for a local agency to deny approval of a CEQA document if substantial evidence exists supporting certification. AB 1633 applies when a project meets SB 35 development criteria and is (1) within ½-mile of a high-quality transit corridor or a major transit stop, (2) is located in a very low vehicle travel area, (3) is proximate to 6 or more amenities, and (4) is adjoined on 3 sides by parcels with urban uses. Other qualifying standards include a project density of at least 15 units per acre, and the project is not located within either a High or Very High Fire Hazard Severity Zone.
Senate Bill 4
SB 4, referred to as “Yes In God’s Backyard,” streamlines the building process for faith-based institutions and certain colleges by providing a process that allows them to build qualifying housing projects. Specifically, this law exempts certain developments with 100% affordable housing on land owned by an independent institution of higher education or a religious institution from CEQA review. This law sunsets on January 1, 2036.
Senate Bill 69
SB 69 requires that all Notices of Determination and Notices of Exemption that are required to be filed with the local county clerk, now also be filed electronically with the State Clearinghouse in the Governor’s Office of Planning and Research. The notice must be posted within 24 hours of receipt.
Senate Bill 91
SB 91 provides an indefinite extension to Public Resources Code section 21080.50 for the CEQA exemption for the conversion of existing motels, hotels, residential hotels, and hostels to supportive or transitional housing. For all qualifying projects approved by January 1, 2025, SB 91 also extends streamlining for environmental leadership transit projects in the County of Los Angeles under Public Resources Code section 211168.6.9 to January 1, 2026.
Senate Bill 149
SB 149 requires CEQA petitioners to prepare the administrative record within 60 days for qualifying projects. If unable to do so, the law allows the agency to prepare the record at the applicant’s expense. Additionally, SB 149 permits the agency to, within 5 days of receiving notice from the petitioner of intent to prepare the record, to deny the petitioner’s request and elect to prepare the record directly. In such instance, the agency is waiving its right to recover these costs. As an urgency statute, SB 149 took effect on July 10, 2023.
SB 149 also extends judicial streamlining to 4 new types of infrastructure projects. These projects include certain energy, transportation, water, and semiconductor projects. In these cases, the courts must resolve, to the extent feasible, CEQA litigation involving qualifying projects within 270 days of the filing of the record of proceedings.
Senate Bill 240
SB 240 authorizes local agencies or nonprofit affordable housing developers to be considered priority buyers of surplus state real property. The affordable housing developer must demonstrate that the property is to be used by the agency or sponsor for transitional housing for formerly incarcerated individuals. Further, the development of surplus state real property for an affordable housing project or transitional housing for formerly incarcerated individuals is exempt from CEQA.
Senate Bill 406
SB 406 expands an existing CEQA exemption under Public Resources Code section 21080.10 for actions taken by the California Department of Housing and Community Development and the California Finance Agency when providing financial assistance or insurance for affordable housing projects. Currently, affordable housing project funding by the State is exempt from CEQA review if review is already being undertaken by a separate agency (i.e., the project’s lead agency). The expansion of the exemption applies to agencies not acting as lead but providing funding for the housing project. The understanding is that the project will undergo any required CEQA review via the lead agency, and therefore, no additional analysis is required. The exemption allows for project funding to not be held up for redundant environmental analysis.
Senate Bill 684
SB 684 provides for ministerial (CEQA-exempt) approval of up to 10-unit housing projects located on small sites. Under this law, parcel maps or tentative maps must be ministerially approved by the local agency when (1) the project is for 10 or fewer units, (2) the site on which the project is located is 5 or fewer acres, and (3) the site meets all other development criteria associated with infill development, including a prohibition on demolishing any existing housing. SB 684 also expedites permitting timelines and exempts projects from certain development standards, all while relaxing public hearing requirements. The law, progeny of prior legislation aimed at encouraging small, infill residential projects, becomes effective on July 1, 2024.
FOOTNOTES
[1] For a more detailed review of this year’s housing legislation, please stay tuned to our forthcoming Annual Housing Legislation Update later this month.
[2] Unless otherwise specified, these laws took effect January 1, 2024.
[3] Make UC a Good Neighbor remains pending before the California Supreme Court, review of which will be limited by AB 1307.
[4] AB 1633 is in response to Yes In My Back Yard et al. v. City and County of San Francisco et al. (SFSC Case No. CPF22517661) related to the permit of the 469 Stevenson Street project currently on appeal before the 1st Appellate District, 2nd Division (Case No. A167949).
