Tag: Common Sense Exemption

Use It or Lose It? CEQA’s Bicycle Transportation Exemptions and Legislative Efforts to Preserve Them

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CEQA and the Guidelines’ statutory and categorical exemptions streamline the environmental review process, and can play a key role in project planning and development. The philosophical underpinning of many exemptions is that the environmental impacts for some types of projects are known to be less-than-significant and the public would benefit from having them expeditiously implemented.

Public Resources Code sections 21080.2 and 21080.20.5 typify this philosophy. Comprised of two bills, A.B. 417 and A.B. 2245 (chaptered together as Stats.2013 Chapter 613), they created exemptions for bicycle transportation plans and certain bicycle projects. However, Chapter 613 will sunset in 2018, unless the Legislature acts. Assembly Bill 1218 (2016–2017) seeks to preserve the exemptions. However, Chapter 613 has been underutilized, in favor of older, more time-tested categorical and statutory exemptions. This underutilization may influence the Legislature’s decision whether to extend the sunset provision, remove it, or allow Chapter 613 to simply expire.

Legislative History of Chapter 613: “One petitioner had the power to delay something good from happening for several years.”

The published legislative history of Chapter 613 reflects that it was passed in reaction to a lengthy and expensive CEQA suit against the City and County of San Francisco. In 2005, the San Francisco Board of Supervisors adopted a bicycle transportation plan (Plan). The Plan’s purpose was to promote bicycle transportation and create safe, interconnected routes throughout the city. It called for upgrades to bicycle infrastructure, including separated lanes, painted lanes, and bike parking. It sought to reduce risks to cyclists, pedestrians, and motorists in areas where the data reflected frequent bicycle-involved collisions. In June 2005 the San Francisco County Transportation Authority Commission adopted the Network Improvement Document (Document), a five-year plan to fund and implement the Plan. Believing that there was no possibility that the Plan could have a significant effect on the environment, the agencies proceeded under the “common sense” exemption of CEQA Guidelines, section 15061. (See generally Assem. Com. on Natural Resources, Analysis of Assem. Bill No. 417, (2013–2014 Reg. Sess.).)

A CEQA petition followed, spearheaded by an individual, Rob Anderson. The petition alleged that the Plan and Document together formed a “project” under CEQA, that there was a legitimate question that the project could have an effect on the environment, and that environmental review should be conducted. It took nearly two years for the court to rule in Anderson’s favor, and ultimately enjoin the city proceeding, pending compliance with CEQA. Subsequently, the city prepared a draft EIR in 2008. The EIR was finalized, certified, and a Notice of Determination posted in August 2009. Anderson immediately appealed, alleging deficiencies in the EIR. A year later, in August 2010, the court ruled in favor of the city, upholding the EIR. (Ibid.). In short, it took five years to travel from Plan adoption to implementation. When one considers that the Plan and Document themselves likely took years to draft, the planning and implementation horizon for implementing upgrades to urban bikes lanes spanned close to a decade – half of which was spent in CEQA litigation.

Summarizing public frustration, a legislator noted that “one petitioner had the power to delay something good from happening for several years.” (Senate Rules Comm. Analysis of A.B. 416 (2013–2014 Reg. Sess.), p. 4).

To prevent the San Francisco scenario from repeating throughout the state, the Legislature passed Chapter 613. The legislation garnered overwhelming support from both houses – passing unanimously in the Senate and with only three no votes in the Assembly.

Chapter 613’s Provisions and Underutilization

Chapter 613 seemingly strikes a careful balance between the benefits of environmental review and the public interest in promoting bicycle transportation, by exempting qualified bicycle transportation plans from CEQA (§ 21080.20), but only exempting one limited class of bicycle project (§ 21080.20.5.)

Regarding bike plans, Public Resources Code section 21080.20 states that CEQA does not apply to bicycle transportation plans, as defined. To qualify for the exemption, the plan must be prepared pursuant to the Streets and Highways Code section 891.2; be situated in an urban area; and relate to bicycle transportation. The exemption expressly includes plans that have provisions for the restriping of roadways for bike lanes, bicycle parking and storage, signal timing, and related signage.

For bike projects, Public Resources Code section 21080.20.5 only explicitly exempts highway restriping for bike lanes, done pursuant to a bicycle transportation plan. Presumably, other projects implemented under bicycle transportation plans are not exempt.

Under both sections, the lead agency must hold public hearings, solicit input from local residents, and prepare an assessment of the plan or restriping project’s and traffic and safety impacts, including mitigation measures. If the project or plan is approved, the government must file notice with the state and county clerk. Because traffic and safety impacts were the focus in the San Francisco litigation, by mandating disclosure and mitigation measures the exemption directly and proactively addresses the key concerns that a CEQA environmental review process, or lawsuit, would raise. And by only exempting restriping, projects that are more likely to negatively impact the environment are still required to complete an environmental review process.

Despite the promise of Chapter 613, according to OPR data cited by the Natural Resources Committee in its analysis, the bike plan provision it has never been used, and the bike lane project provision has only been utilized three times. (Comm. Analysis, supra., pp. 3–4.) All three times were by the City of Los Angeles, the provision’s original proponent. (It is worth noting that bill’s author statement cites a different statistic, and states that 17 bike projects have utilized the exemptions, although it is not clear if the bill’s author is referring to Chapter 613, or all of CEQA’s exemptions that have been applied to bike projects. (Id. at p. 4.) The underutilization of the exemption is significant for two reasons: 1) five years after passage, it is uncertain as to how it would be applied by local government and interpreted by the courts; and 2) given its lack of use, begs the question of whether the community considers the exemptions to be necessary or if agency staff are aware of or feel encouraged to use them.

A New Hope? A.B. 1218

Chapter 613 will sunset on January 1, 2018. There is legislative momentum in continuing the exemptions, through A.B. 1218. At issue is whether to: renew the exemptions, but strike the sunset provision; to extend the sunset provision for another term; or allow Chapter 613 to sunset, citing its underutilization.

As originally drafted, A.B. 1218 would have removed the sunset provision entirely, and allowed the law to be codified permanently. However, the current version (as of May 2017, amended in Assembly) preserves the exemptions, but only until 2021. The Assembly Natural Resources Committee addressed this issue in its March 30, 2017 Committee Analysis, citing the exemption’s potential utility, but lack of actual use, and recommending that the bill be amended to sunset in 2021.

The Committee seemed to imply that underutilization does not evince a lack of interest in bicycle plans or projects. Rather, government entities have been relying on other, more “established and frequently used categorical exemptions” in CEQA and the Guidelines. CEQA section 21080.19, passed in 1984, exempts projects that restripe streets to relieve traffic congestion. The Committee notes that the CEQA Guidelines have two applicable categorical exemptions: Guidelines section 15301(c), the Class 1 exemption, for development of existing facilities, where there is negligible expansion of an existing use, which specifically includes existing bicycle trails; and Guidelines section 15304 (h), the Class 4 exemption, for minor alternations to land that do not involve removing mature and scenic trees, and specifically includes the creation of bicycle lanes on existing roadways.

A.B. 1281 passed the Assembly in May 2017, and given its overwhelming support in the Senate in 2013, is likely to pass muster there, too.

Conclusion

Within weeks of the court upholding San Francisco’s bike transportation EIR, bike lanes began sprouting up around the city. Areas that had never had bike lanes became connected to established routes. Established routes on prominent streets, many of which were identified as high collision risks in the Plan, were widened, separated, or re-routed to increase safety. Cal. Bike, an advocacy organization, and SFMTA state that bike usage in San Francisco has increased 10% since 2013. Whether one enjoys cycling or not, this infrastructure is heavily utilized, and cycling is becoming an increasingly important segment of our urban transportation mix. Yet, despite the increase in popularity of urban cycling, the future vitality of the bicycle lane exemptions remain in doubt. Supporters of the exemptions should take heed of the Committee Analysis, and be on notice that may face challenges in the Legislature in 2021 if Chapter 613’s muscle does not start getting flexed on the local level.

Fourth District Court of Appeal Holds Removal of Conservation Overlay on Land Is a Project and Is Not Exempt from CEQA

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Paulek v. Western Riverside County (June 17, 2015) __ Cal.App.4th __, Case No. E059133

In a decision reversing the trial court, Division Two of the Fourth District held that the removal of a conservation overlay constituted a project under CEQA and that the project did not fall within the identified exemptions. The decision involves a Multiple Species Habitat Conservation Plan (HCP) to maintain open spaces in western Riverside County. The HCP identified a “criteria area” broken down into cells, each about 160 acres in size, that were to be evaluated to determine what portions of the criteria area should be included in the conservation area. Part of the criteria area included the Warm Springs Ranch owned by Anheuser-Bush; a conservation overlay had been placed upon the ranch.

In 2005, Anheuser submitted applications to develop the Ranch. The County informed Anheuser that all but 71 acres of the Ranch would be acquired for conservation under the HCP, and in 2011 the parties reached a settlement agreement whereby the Western Riverside County Regional Conservation Authority (the Agency) would purchase the Ranch from Anheuser. The property was to be purchased in 9 phases, and phase 9, which consisted of a 200-acre area, would cost $11 million. One of the purchasing conditions for the phase-9 property was that the conservation overlay would be removed.

Paulek asserted that the Agency should have considered whether removing the conservation overlay would have a significant environmental impact, and contended possible development on that area had the potential to affect wildlife by reducing habitat. The Agency contended that because, as part of the agreement with Anheuser, 1,064 acres would be acquired by the Agency and protected as open space, and because the phase-9 property was highly degraded habitat, the conservation transfer would result in more and better land being protected. Therefore, the Agency reasoned, the action was not a project under CEQA, and if even it was, it was exempt from CEQA.

The court rejected the Agency’s arguments, holding that the removal of the conservation overlay from the phase-9 property constituted a project under CEQA. Among other things, the court reasoned that removing the overlay was analogous to amending a general plan or changing a zoning ordinance, which are projects under CEQA. Removing the conservation overlay embodied a fundamental land use decision that had the potential to cause physical changes in the environment in that the land protected for conservation purposes would no longer be subject to such protections. Therefore, the Agency’s decision to remove the overlay was a project under CEQA.

The court was unpersuaded by the Agency’s arguments concerning the protection of 1,064 acres of more environmentally pristine land in exchange for the 200-acre phase-9 property. The court explained that the decision to remove the overlay was a separate decision from the decision to put 1,064 acres of other land in conservation. But even if the removal of the overlay and addition of overlay elsewhere was considered part of the same project, the fact remained that the 200 acres of the phase-9 property would no longer be protected by the conservation overlay. The court characterized the Agency’s argument as “essentially washing over any negative changes to the phase 9-property by highlighting the positive changes to the [other] properties.” For instance, noted the court, there are two species present on the phase-9 property that are not present on the 1,064 acres, so the land swap would not protect these two species.

The court also rejected the Agency’s argument that the project fell within certain exemptions from CEQA. The court held that a Class 7 exemption, which exempts projects that consist of actions taken by regulatory agencies to assure the maintenance, restoration, or enhancement of a natural resource, did not apply because a fair argument existed that removing the overlay could adversely affect certain species. Although the phase-9 property was not “prime” habitat for those species, there was no indication that it was so superfluous to those species that removing it from conservation would not adversely affect the species.

With respect to the Class 8 exemption, which is nearly identical to a Class 7 exemption except that it applies to the “environment” rather than natural resources, the court held that because there was uncertainty as to whether there would be a significant impact on the environment, the Class 8 exemption did not apply. Evidence in the administrative record demonstrated that the loss of the conservation overlay could affect the neighboring conservation area, and the effects could be significant such that there would need to be an attempt to lessen the effects.

The court also rejected the Agency’s claim that the project fell within the common sense exemption, which applies where it is certain that there is no possibility that an activity will have a significant effect on the environment. The change in designation of the phase-9 property from protected to unprotected had the potential for causing ultimate physical environmental changes, which was sufficient to take the project outside the purview of the exemption.

In addition to rejecting the Agency’s arguments on the merits, the court rejected various procedural arguments made by the Agency, holding that Paulek had standing, that Paulek’s action was timely, and that Paulek did not fail to join an indispensable party.

 

 

Fourth District Holds Storm Drainage Repair and Subsequent Revegetation Project Properly Exempted from CEQA

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The City of San Diego appealed a judgment granting CREED-21’s petition for injunctive and other relief for CEQA violations relating to emergency storm drainage repair and revegetation projects in La Jolla. The court held in favor of the City, finding it had used the correct baseline and had properly issued an exemption for the revegetation project. Furthermore, CREED had not been denied its due process right to a fair hearing. The court affirmed the judgment below to the extent it declared the City’s appeal fee assessment invalid and set it aside. The opinion, filed January 29, was certified for publication on February 18. CREED-21 v. City of San Diego (Feb. 18, 2015) ___ Cal.App.4th ___, Case No. D064186.

In 2010, the City issued an emergency permit for storm drainage repair work, and a notice of exemption from CEQA for the work. The emergency permit was conditioned on seeking a permanent permit and implementing a revegetation plan. The City found the revegetation plan to be exempt from CEQA relying on the “common sense” exemption and two categorical exemptions. CREED filed a lawsuit challenging the revegetation plan, and the work performed under the emergency permit. CREED argued that in reviewing the revegetation plan, the City was required to consider the physical setting of the area prior to the emergency storm drainage work, rather than after when the revegetation work commenced. The court refused to set the baseline earlier. The court similarly held that CREED did not have standing to challenge the 2010 emergency exemption, as it had missed the statute of limitations to challenge that project.

CREED argued that the 2010 emergency exemption was merely for temporary work, and that CEQA required the City to conduct at least a preliminary review, if not an initial study and EIR, to determine whether the already completed repair work might have a significant effect on the environment. The court disagreed, noting that any argument about the temporary status of the emergency work performed by the City in 2010 was based solely on the San Diego Municipal Code and not on CEQA or the Guidelines.

The court found that the City properly relied on the common sense exemption to find the revegetation project exempt from CEQA under Guidelines section 15061, subdivision (b)(3). That exemption applies where there is no possibility that the activity in question may have a significant effect on the environment. Because the revegetation plan would indisputably improve the site’s physical conditions—consisting primarily of bare dirt—the plan would not cause an adverse change so as to constitute a significant effect on the environment. The court added that the revegetation plan would also be exempt under the Class 1 exemption for existing facilities, which encompasses repair to existing topographical features. CREED failed to satisfy its burden of showing that the unusual circumstances exception applied to override the exemption.

The court also found CREED was not denied due process of law when the City did not timely disclose a document requested under the California Public Records Act. The City Council heard and denied CREED’s appeal of the City’s exemption determination, but did not provide CREED with a copy of the initial study until after that hearing. This omission did not deny CREED its right to due process and a fair hearing. CREED had received reasonable notice of the hearing and a reasonable opportunity to be heard.

Finally, the Fourth District held that the trial court had not abused its discretion by denying the City’s request for judicial notice of an ordinance and by finding that an appeal fee was unauthorized. There was no evidence in the record authorizing the $100 appeal fee. CREED alleged there was also no provision in the Municipal Code authorizing the City to charge a fee for an administrative appeal. The City argued there was an ordinance authorizing such fees, and requested the court take judicial notice of the ordinance. The court found the City had not given CREED sufficient notice of its request for judicial notice to allow for preparation of an opposition, and the request’s lack of an attachment listing specific fees rendered the document insufficient for the court to take notice.