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1© 2016 Dannis Woliver Kelley
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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.
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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
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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
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CEQA: The Basics
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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…
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How To Comply: The Big 3 Options
Categorical Exemptions – Notice of Exemption
Negative Declaration/Mitigated Negative Declaration
Environmental Impact Report
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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
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… 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
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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)
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MK1
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Slide 11
MK1 Mark Kelley, 10/5/2016
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Discuss: Advantages and Pitfalls Of Each
Categorical Exemptions
Negative Declarations/Mitigated Negative Declarations
Environmental Impact Reports
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Categorical Exemptions
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
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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
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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
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The Consultant’s Perspective
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Sample of Site Plan
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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
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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)
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Examples of mapped site constraints
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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
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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
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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.
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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
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The Legal Perspective
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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
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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
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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
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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