Legislature Overwhelmingly Approves New CEQA Legislation With Two Aims: Limited Streamlining of California’s Premier Environmental Law and Fast-Tracking a New Sacramento Arena

On the final night of this year’s legislative session, Senate President Pro Tem Darrell Steinberg won approval in both houses for Senate Bill 743. The bill contains limited reforms to the California Environmental Quality Act and would help expedite Sacramento’s new sports arena. Support for the bill, which now goes to the Governor, was overwhelming. The Assembly voted 55 to 6 in favor, the Senate 32 to 5.

The successful legislation marks the convergence of two Steinberg CEQA bills. SB 743 originally was designed to shorten the process for handling CEQA lawsuits expected to be brought against the new Sacramento Entertainment and Sports Complex, which the City of Sacramento and the Sacramento Kings are planning to build in downtown Sacramento. Steinberg’s other bill, SB 731, was originally conceived as a broad overhaul of CEQA. It faced a rocky path as the business sector, environmental community and labor unions fought over its contents. Near the very end of the legislative session, Steinberg moved several elements from SB 731 into SB 743, while converting SB 731 into a two-year bill. Passage of the merged bill came after a series of final negotiations the evening of September 12, 2013.

Fast-tracking the Arena

Under SB 743, injunctive relief to stop construction of the planned arena in downtown Sacramento could be granted only if a court found a danger to public health and safety, or an impact on Native American archaeological grounds.  The legislation also would allow any necessary eminent domain proceedings involving the specific arena site at 545 and 600 K Street (currently a Macy’s store) to proceed concurrently with the CEQA process.

New CEQA Provisions

In addition, the bill as amended adds a new chapter to the CEQA statute, commencing with new Section 21099.  It is titled “Modernization of Transportation Analysis for Transit-Oriented Infill Projects.”

One provision would remove parking and aesthetics standards as grounds for legal challenges against project developments in urban infill areas within transit priority areas for residential, mixed-use residential, or “employment center” projects. These standards often are used in litigation to slow or stop new development. An employment center project is defined as being located within a transit priority area on property zoned for commercial uses with a floor area ratio of no less than 0.75. In an interesting nuance, the legislation states that, for purposes of this section, “aesthetic impacts do not include impacts on historical or cultural resources.” Thus, the prohibition on concern under CEQA with aesthetic impacts under the bill must not translate into a disregard for adverse effects on historical or cultural resources.

This new section also seeks to modernize the statewide measurements against which traffic impacts are assessed and resolved within transit priority areas. It does so by authorizing the Governor’s Office of Planning and Research (OPR) to recommend CEQA Guidelines amendments that in transit priority areas would shift CEQA analysis away from traditional standards based on congestion levels at intersections and require it to rely instead on new measures to analyze an infill project’s actual reduction in car usage because of its proximity to jobs, retail, and mass transit options.

More specifically, the legislation directs OPR to prepare revisions to the CEQA Guidelines establishing criteria for determining the significance of transportation impacts of projects within such transit priority areas. These new guidelines would include recommendations for metrics to measure transportation impacts that may include vehicle miles traveled, vehicle miles traveled per capita, automobile trip generation rates, or automobile trips generated. Once the revised guidelines are adopted, automobile delay – as described by “Levels of Service” or similar measures of congestion – would not be considered a significant impact on the environment within transit priority areas. Receiving OPR’s guidance for alternative measures of traffic impacts may help preclude the argument that any small increment of new traffic being added to already severely congested intersections is a significant impact. For infill projects with nearby transit options, these measures may enable traffic consultants to show that locating residential or mixed-use projects in such areas actually reduces vehicle miles traveled or new trip generation.

Not included in SB 743 were many provisions that the development community sought to streamline CEQA processes and to reduce the existing potential for significant delays in litigation.

(Written by Deb Kollars)