Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Purpose. The purpose of this section is to streamline the environmental review process for eligible infill projects by limiting the topics subject to review at the project level where the effects of infill development have been addressed in a planning level decision or by uniformly applicable development policies.
(b) Eligibility. To be eligible for the streamlining procedures prescribed in this section, an infill project must:
(1) Be located in an urban area on a site that either has been previously developed or that adjoins existing qualified urban uses on at least seventy-five percent of the site's perimeter. For the purpose of this subdivision "adjoin" means the infill project is immediately adjacent to qualified urban uses, or is only separated from such uses by an improved public right-of-way;
(2) Satisfy the performance standards provided in Appendix M; and
(3) Be consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy, except as provided in subdivisions (b)(3)(A) or (b)(3)(B) below.
(A) Only where an infill project is proposed within the boundaries of a metropolitan planning organization for which a sustainable communities strategy or an alternative planning strategy will be, but is not yet, in effect, a residential infill project must have a density of at least 20 units per acre, and a retail or commercial infill project must have a floor area ratio of at least 0.75.
(B) Where an infill project is proposed outside of the boundaries of a metropolitan planning organization, the infill project must meet the definition of a small walkable community project in subdivision (f)(5), below.
(c) Streamlined Review. CEQA does not apply to the effects of an eligible infill project under two circumstances. First, if an effect was addressed as a significant effect in a prior EIR for a planning level decision, then, with some exceptions, that effect need not be analyzed again for an individual infill project even when that effect was not reduced to a less than significant level in the prior EIR. Second, an effect need not be analyzed, even if it was not analyzed in a prior EIR or is more significant than previously analyzed, if the lead agency makes a finding that uniformly applicable development policies or standards, adopted by the lead agency or a city or county, apply to the infill project and would substantially mitigate that effect. Depending on the effects addressed in the prior EIR and the availability of uniformly applicable development policies or standards that apply to the eligible infill project, streamlining under this section will range from a complete exemption to an obligation to prepare a narrowed, project-specific environmental document. A prior EIR will be most helpful in dealing with later infill projects if it deals with the effects of infill development as specifically and comprehensively as possible. With a good and detailed analysis of such development, the effects of many infill projects could be found to have been addressed in the prior EIR, and no further environmental documents would be required.
(d) Procedure. Following preliminary review of an infill project pursuant to Section 15060, the lead agency must examine an eligible infill project in light of the prior EIR to determine whether the infill project will cause any effects that require additional review under CEQA. Determinations pursuant to this section are questions of fact to be resolved by the lead agency. Such determinations must be supported with enough relevant information and reasonable inferences from this information to support a conclusion, even though other conclusions might also be reached. (See Section 15384.)
(1) Evaluation of the Infill Project. A lead agency should prepare a written checklist or similar device to document the infill project's eligibility for streamlining and to assist in making the determinations required by this section. The sample written checklist provided in Appendix N may be used for this purpose. A written checklist prepared pursuant to this section should do all of the following:
(A) Document whether the infill project satisfies the applicable performance standards in Appendix M.
(B) Explain whether the effects of the infill project were analyzed in a prior EIR. The written checklist should cite the specific portions of the prior EIR, including page and section references, containing the analysis of the infill project's significant effects. The written checklist should also indicate whether the infill project incorporates all applicable mitigation measures from the prior EIR.
(C) Explain whether the infill project will cause new specific effects. For the purposes of this section, a new specific effect is an effect that was not addressed in the prior EIR and that is specific to the infill project or the infill project site. A new specific effect may result if, for example, the prior EIR stated that sufficient site-specific information was not available to analyze the significance of that effect. Substantial changes in circumstances following certification of a prior EIR may also result in a new specific effect.
(D) Explain whether substantial new information shows that the adverse environmental effects of the infill project are more significant than described in the prior EIR. For the purpose of this section, "more significant" means an effect will be substantially more severe than described in the prior EIR. More significant effects include those that result from changes in circumstances or changes in the development assumptions underlying the prior EIR's analysis. An effect is also more significant if substantial new information shows that:
(1) mitigation measures that were previously rejected as infeasible are in fact feasible, and such measures are not included in the project;
(2) feasible mitigation measures considerably different than those previously analyzed could substantially reduce a significant effect described in the prior EIR, but such measures are not included in the project; or
(3) an applicable mitigation measure was adopted in connection with a planning level decision, but the lead agency determines that it is not feasible for the infill project to implement that measure.
(E) If the infill project will cause new specific effects or more significant effects, the written checklist should indicate whether uniformly applicable development policies or standards will substantially mitigate those effects. For the purpose of this section, "substantially mitigate" means that the policy or standard will substantially lessen the effect, but not necessarily below the level of significance. The written checklist should specifically identify the uniformly applicable development policy or standard and explain how it will substantially mitigate the effects of the infill project. The explanation in the written checklist may be used to support the finding required in subdivision (d)(2)(D) below.
(2) Environmental Document. After examining the effects of the infill project in light of the analysis in any prior EIR and uniformly applicable development policies or standards, the lead agency shall determine what type of environmental document shall be prepared for the infill project.
(A) No Further Review. No additional environmental review is required if the infill project would not cause any new specific effects or more significant effects, or if uniformly applicable development policies or standards would substantially mitigate such effects. Where the lead agency determines that no additional environmental review of the effects of the infill project is required, the lead agency shall file a Notice of Determination as provided in Section 15094. Where the lead agency finds that uniformly applicable development policies substantially mitigate a significant effect of an infill project, the lead agency shall make the finding described in subdivision (d)(2)(D).
(B) Negative Declaration, Mitigated Negative Declaration or Sustainable Communities Environmental Assessment. If the infill project would result in new specific effects or more significant effects, and uniformly applicable development policies or standards would not substantially mitigate such effects, those effects shall be subject to CEQA. If a new specific effect is less than significant, the lead agency may prepare a negative declaration. If new specific effects or more significant effects can be mitigated to a less than significant level through project changes agreed to prior to circulation of the written checklist, the lead agency may prepare a mitigated negative declaration. In these circumstances, the lead agency shall follow the procedure set forth in Sections 15072 to 15075. Alternatively, if the infill project is a transit priority project, the lead agency may follow the procedures in Section 21155.2 of the Public Resources Code. In either instance, the written checklist should clearly state which effects are new or more significant, and are subject to CEQA, and which effects have been previously analyzed and are not subject to further environmental review. Where the lead agency finds that uniformly applicable development policies or standards substantially mitigate a significant effect of an infill project, the lead agency shall make the finding described in subdivision (d)(2)(D).
(C) Infill EIR. If the infill project would result in new specific effects or more significant effects, and uniformly applicable development policies or standards would not substantially mitigate such effects, those effects are subject to CEQA. With respect to those effects that are subject to CEQA, the lead agency shall prepare an infill EIR if the written checklist shows that the effects of the infill project would be potentially significant. In this circumstance, the lead agency shall prepare an infill EIR as provided in subdivision (e) and, except as otherwise provided in this section, shall follow the procedures in Article 7. Where the lead agency finds that uniformly applicable development policies or standards substantially mitigate a significant effect of an infill project, the lead agency shall make the finding described in subdivision (d)(2)(D).
(D) Findings. Any findings or statement of overriding considerations required by Sections 15091 or 15093 shall be limited to those effects analyzed in an infill EIR. Findings for such effects should incorporate by reference any such findings made in connection with a planning level decision. Where uniformly applicable development policies or standards substantially mitigate the significant effects of an infill project, the lead agency shall also make a written finding, supported with substantial evidence, providing a brief explanation of the rationale for the finding.
(e) Infill EIR Contents. An infill EIR shall analyze only those significant effects that uniformly applicable development policies or standards do not substantially mitigate, and that are either new specific effects or are more significant than a prior EIR analyzed. All other effects of the infill project should be described in the written checklist as provided in subdivision (d)(1), and that written checklist should be circulated for public review along with the infill EIR. The written checklist should clearly set forth those effects that are new specific effects, and are subject to CEQA, and those effects which have been previously analyzed and are not subject to further environmental review. The analysis of alternatives in an infill EIR need not address alternative locations, densities, or building intensities. An infill EIR need not analyze growth inducing impacts. Except as provided in this subdivision, an infill EIR shall contain all elements described in Article 9.
(f) Terminology. The following definitions apply to this section:
(1) "Infill project" includes the whole of an action consisting of residential, commercial, retail, transit station, school, or public office building uses, or any combination of such uses that meet the eligibility requirements set forth in subdivision (b). For retail and commercial projects, no more than one half of the project area may be used for parking. "Transit station" means a rail or light-rail station, ferry terminal, bus hub, bus transfer station, or bus stop, and includes all streetscape improvements constructed in the public right-of-way within one-quarter mile of such facility to improve multi-modal access to the facility, such as pedestrian and bicycle safety improvements and traffic-calming design changes that support pedestrian and bicycle access.
(2) "Planning level decision" means the enactment or amendment of a general plan or any general plan element, community plan, specific plan, or zoning code.
(3) "Prior EIR" means the environmental impact report certified for a planning level decision, as supplemented by any subsequent or supplemental environmental impact reports, negative declarations, or addenda to those documents.
(4) "Qualified urban use" is defined in Public Resources Code Section 21072.
(5) "Small walkable community project" means a project that is all of the following:
(A) In an incorporated city that is not within the boundary of metropolitan planning organization;
(B) Within an area of approximately one-quarter mile diameter of contiguous land that includes a residential area adjacent to a retail downtown area and that is designated by the city for infill development consisting of residential and commercial uses. A city may designate such an area within its general plan, zoning code, or by any legislative act creating such a designation, and may make such designation concurrently with project approval; and
(C) Either a residential project that has a density of at least eight units to the acre or a commercial project with a floor area ratio of at least 0.5, or both.
(6) The terms "sustainable communities strategy" and "alternative planning strategy" refer to a strategy for which the State Air Resources Board, pursuant to subparagraph (H) of paragraph (2) of subdivision (b) of Section 65080 of the Government Code, has accepted a metropolitan planning organization's determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve its greenhouse gas emission reduction targets.
(7) "Uniformly applicable development policies or standards" are policies or standards adopted or enacted by a city or county, or by a lead agency, that reduce one or more adverse environmental effects. Examples of uniformly applicable development policies or standards include, but are not limited to:
(A) Regulations governing construction activities, including noise regulations, dust control, provisions for discovery of archeological and paleontological resources, stormwater runoff treatment and containment, protection against the release of hazardous materials, recycling of construction and demolition waste, temporary street closure and traffic rerouting, and similar regulations.
(B) Requirements in locally adopted building, grading and stormwater codes.
(C) Design guidelines.
(D) Requirements for protecting residents from sources of air pollution including high volume roadways and stationary sources.
(E) Impact fee programs to provide public improvements, police, fire, parks and other open space, libraries and other public services and infrastructure, including transit, bicycle and pedestrian infrastructure and traffic calming devices.
(F) Traffic impact fees.
(G) Requirements for reducing greenhouse gas emissions, as set forth in adopted land use plans, policies, or regulations.
(H) Ordinances addressing protection of urban trees and historic resources.
(8) "Urban area" is defined in Public Resources Code Section 21094.5(e)(5).
1. New section filed 2-14-2013; operative 2-14-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 7).
Note: Authority cited: Sections 21083 and 21094.5.5, Public Resources Code. Reference: Sections 21094.5 and 21094.5.5, Public Resources Code.
