You Can’t Build Without CEQA! · CEQA specialists focus on CEQA requirements but don’t know...

1© 2016 Dannis Woliver Kelley

1

© 2

016

Dan

nis

Wol

iver

Kel

ley

SAN FRANCISCO | LONG BEACH | SAN DIEGO | NOVATO | CHICO | SACRAMENTO | SAN LUIS OBISPO www.DWKesq.com

This training is provided for educational, compliance and loss-prevention purposes only, and absent the express prior agreement of DWK, does not create or establish an attorney-client relationship. The training is not itself intended to convey or constitute legal advice for particular issues or circumstances. Contact a DWK attorney for answers to specific questions.

© 2

016

Dan

nis

Wol

iver

Kel

ley

You Can’t Build Without CEQA! November 16, 2016, 9:15 a.m.

Leigh Sata, Sonoma County Junior College District

Mark Kelley and Jessika Johnson, Dannis Woliver Kelley

Amy Skewes-Cox, AICP, Amy Skewes-Cox Environmental Planning

2

© 2

016

Dan

nis

Wol

iver

Kel

ley

Introduction

Today’s Topic

The panel:– Leigh Sata, Santa Rosa CCD– Amy Skewes-Cox, Amy Skewes-Cox Environmental Planning– Mark Kelley, Dannis Woliver Kelley– Jessika Johnson, Dannis Woliver Kelley


3

© 2

016

Dan

nis

Wol

iver

Kel

ley

CEQA: The Basics

4

© 2

016

Dan

nis

Wol

iver

Kel

ley

CEQA: What Is It, And Why Bother?

The California Environmental Quality Act:– The law: California Public Resources Code sec. 21000 et seq.– The Guidelines: California Code of Regulations sec. 15000 et seq.

Requires that all “projects” that could potentially have an impact on the environment be studied at some level under CEQA.

Largely a procedural law, but failure to follow the requirements can have serious delay and cost impacts…


5

© 2

016

Dan

nis

Wol

iver

Kel

ley

6

© 2

016

Dan

nis

Wol

iver

Kel

ley

How To Comply: The Big 3 Options

Categorical Exemptions – Notice of Exemption

Negative Declaration/Mitigated Negative Declaration

Environmental Impact Report


7

© 2

016

Dan

nis

Wol

iver

Kel

ley

8

© 2

016

Dan

nis

Wol

iver

Kel

ley

Categorical Exemptions

One page form: Notice of Exemption

Typically used categories (Guidelines, sec. 15300 et seq.):– Existing facilities (Class 1)– Replacement/reconstruction of existing facilities (Class 2)– Accessory structures (Class 11)

Filing simplified; no publication requirement

35-day challenge period


9

© 2

016

Dan

nis

Wol

iver

Kel

ley

… And, If The Project Isn’t Exempt?

Analyze for potentially significant environmental impacts via the Initial Study

– If there will be no impact of the project: Negative Declaration

– If there could have been an impact, but it has been eliminated or reduced to less than significant: Mitigated Negative Declaration

– If there will be an unmitigated impact: Environmental Impact Report

Each approach has strict transparency and process requirements, the EIR having the most

30-day challenge period after conclusion of process

10

© 2

016

Dan

nis

Wol

iver

Kel

ley

Topics of Environmental Review

Land Use and Planning

Aesthetics

Biological Resources

Cultural Resources

Geology and Soils

Hazards and Hazardous Materials

Hydrology and Water Quality

Transportation/Circulation

Air Quality and Greenhouse Gas Emissions

Noise

Public Services (Fire, Police, Schools, Parks)

Public Utilities (Water Supply, Wastewater Disposal, and Solid Waste)

Energy

Alternatives (No Project; Mitigated Alternative)


11

© 2

016

Dan

nis

Wol

iver

Kel

ley

MK1

12

© 2

016

Dan

nis

Wol

iver

Kel

ley

MK1 Mark Kelley, 10/5/2016


13

© 2

016

Dan

nis

Wol

iver

Kel

ley

Discuss: Advantages and Pitfalls Of Each


Negative Declarations/Mitigated Negative Declarations

Environmental Impact Reports

14

© 2

016

Dan

nis

Wol

iver

Kel

ley


Advantages Timing Cost Less stringent notice requirements Filing Notice of Exemption triggers

35-day challenge period

Pitfalls Exceptions to Exemptions Still need to prepare record in support


15

© 2

016

Dan

nis

Wol

iver

Kel

ley

Negative Declarations/ Mitigated Negative Declarations

Advantages

May reduce time & cost of evaluating project under CEQA

Pitfalls

But if ND/MND challenged, may involve more delay & expense than if an EIR was prepared in the first place

Fair Argument Test – low threshold requires preparation of EIR

16

© 2

016

Dan

nis

Wol

iver

Kel

ley

Environmental Impact Reports

PROS Reduced chances of litigation Inclusion of more information for the public (Setting, Impacts and Mitigation Measures vs. Checklist; Alternatives for consideration)

Opportunity for public to comment and to receive responses Ability to approve a project with unmitigated impact(s), as long as the appropriate process is followed

CONS More time‐consuming (8‐12 months for EIR vs. 5‐6 months for IS/MND) Reduced requirements for responses to public comments


17

© 2

016

Dan

nis

Wol

iver

Kel

ley

The Consultant’s Perspective

18

© 2

016

Dan

nis

Wol

iver

Kel

ley

Sample of Site Plan


19

© 2

016

Dan

nis

Wol

iver

Kel

ley

CEQA from the Perspective of the EIR Consultant –An Overview

Value of architects understanding CEQA early on

Knowing neighborhood issues and involving neighbors

Environmental Impact Reports (EIRs) vs. Initial Studies/Mitigated Negative Declarations

Focusing the EIR for cost savings

Using attorney assistance in review of CEQA documents

Avoiding certain local regulations

20

© 2

016

Dan

nis

Wol

iver

Kel

ley

Value of Architects Understanding CEQA

Make sure CEQA consultant retained early on to work with architects

CEQA team to point out critical environmental constraints

Keep buildings in best areas of site and have clear site plan

Involve architects early on to prepare clear project description

Involve architects later for review of Aesthetics section of EIR and recommended mitigation measures (before EIR is public)


21

© 2

016

Dan

nis

Wol

iver

Kel

ley

Examples of mapped site constraints

22

© 2

016

Dan

nis

Wol

iver

Kel

ley

Knowing Community Issues And Involving Neighbors

Call City Planning Dept. and find out if neighborhood group exists

Make contacts with key neighborhood representatives

Talk to City about recent controversial projects

Hold meetings with neighbors early on to explain project

Allow neighbors to comment and make suggestions

Be prepared for neighbors commenting on Initial Study or EIR


23

© 2

016

Dan

nis

Wol

iver

Kel

ley

Focusing The EIR For Cost Savings

Do an Initial Study checklist early on and focus the EIR to eliminate/reduce topics not relevant (e.g., agricultural resources, mineral resources, population/housing)

Reduces overall number of comments on the EIR

Avoids risk of fair argument and challenge to CEQA process chosen by College

Saves money in terms of EIR preparation and responses to comments

24

© 2

016

Dan

nis

Wol

iver

Kel

ley

Minimizing Local Regulations

Need to obtain resolution from Board EIR to reference this in multiple locations (Land Use,

Biology, Geology) Does not apply to drainage, road, or grading regulations

Sample footnote: Pursuant to California Government Code Section 53094, the governing board of a College district may render city or county zoning ordinances and general plan requirements inapplicable to a proposed classroom facilities project. Even though the District plans to adopt a resolution pursuant to Section 53094 exempting the Master Facilities Implementation Plan from any zoning ordinances or regulations of the City of ______, including, without limitation, the City’s Municipal Code, the City’s General Plan, and related ordinances and regulations that otherwise would be applicable, this EIR evaluates the project’s consistency with local regulations and policies for the purposes of CEQA compliance, and also because it is the District’s goal that local policies and regulations be acknowledged and adhered to as much as feasible. It should be noted that the Section 53094 exemption does not apply to drainage, road, or grading improvement or condition regulations; thus, stormwater control requirements must be met.


25

© 2

016

Dan

nis

Wol

iver

Kel

ley

Involving Counsel

CEQA specialists focus on CEQA requirements but don’t know case law as well Need careful review and anticipation of concerns that may be raised Best phases to involve attorney: Review of scope of work Review of Project Description Review of Administrative Draft EIR Strategizing when public comments received Ready to jump if any challenges to document

26

© 2

016

Dan

nis

Wol

iver

Kel

ley

The Legal Perspective


27

© 2

016

Dan

nis

Wol

iver

Kel

ley

Litigation Consequences

• Standing rules applied liberally ‐Beneficial Interest standing‐Public Interest standing‐Taxpayer standing

• Potential Relief includes:

• Project delays & added costs

‐Injunctive Relief ‐Mandatory & Prohibitory Relief

‐Corrective Action ‐Costs & Attorney Fees

28

© 2

016

Dan

nis

Wol

iver

Kel

ley

Recent Developments in CEQARecent Cases

Friends of the Coll. of San Mateo Gardens v. San Mateo Cnty. Cmty. Coll.

Dist. (2016) 1 Cal.5th 937

Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086

Save Our Schools v. Barstow Unified Sch. Dist. Bd.

of Educ. (2015) 240 Cal.App.4th 128

Recent Legislation

SB 122 – effective January 1, 2017


29

© 2

016

Dan

nis

Wol

iver

Kel

ley

Most Prevalent Complications, Now

Putting new facilities in/near residential areas– Noise– Traffic and parking– “Those” students

Construction schedules forcing compromises on CEQA compliance– And potential exposure to legal challenges for work not yet

analyzed under CEQA

Lack of available sites/expansion room in urban settings

30

© 2

016

Dan

nis

Wol

iver

Kel

ley

Thank You!Leigh SataDirector of Capital ProjectsSonoma County Junior College District1501 Mendocino Avenue Santa Rosa, CA 95401(707) 524‐[email protected]

Amy Skewes‐Cox, AICPAmy Skewes‐Cox Environmental PlanningP.O. BOX 422Ross, CA 94954(415) 203‐[email protected]

Mark Kelley and Jessika JohnsonDannis Woliver Kelley 275 Battery Street, Suite 1150San Francisco, CA 94111(415) 543‐[email protected]@dwkesq.com

You Can’t Build Without CEQA! · CEQA specialists focus on CEQA requirements but don’t know...

Documents

Transcript of You Can’t Build Without CEQA! · CEQA specialists focus on CEQA requirements but don’t know...