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Staff Report with Exhibit.CEQA 101 PREPARED BY: Joel Paulson Community Development Director Reviewed by: Community Development Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872 www.losgatosca.gov TOWN OF LOS GATOS PLANNING COMMISSION REPORT MEETING DATE: 06/23/2021 ITEM NO: 4 DATE: June 18, 2021 TO: Planning Commission FROM: Joel Paulson, Community Development Director SUBJECT: Review and Discuss the California Environmental Quality Act PowerPoint. REMARKS: Staff has provided a PowerPoint from the League of California Cities 2021 Planning Commissioner’s Academy titled CEQA 101: From the Beginning (Exhibit 1). This PowerPoint provides an overview of the California Environmental Quality Act (CEQA). We hope you find the PowerPoint helpful and that it serves as an easy to use resource for Planning Commissioners and the public regarding the CEQA process. The Town Attorney and staff look forward to the discussion with the Planning Commission regarding the topic covered in this PowerPoint. EXHIBIT: 1. League of California Cities Planning Commissioner’s Academy CEQA 101: From the Beginning This Page Intentionally Left Blank CEQA: Basics Shannon George & Mark Teague League of California Cities Planning Commissioner’s Academy March 25, 2021 | 3:15 – 4:30 EXHIBIT 1 Presentation Overview History & Purpose of CEQA Terms and Acronyms Who does what in the Process? Types of CEQA Decisions What is a Mitigation Measure Public Comments CEQA Changes ahead CEQA’s History Enacted in 1970; signed into law by Governor Reagan Based on The Environmental Bill of Rights Modeled after National Environmental Policy Act (NEPA ) Implementation at local agency level by Friends of Mammoth v. Board of Supervisors of Mono County (1972) 8 Cal. 3rd 247 Important CEQA amendments in 1972, 1976, 1978, 1984, 1989, 1993, 2010, and 2019 Amended all the time by the legislature, courts, and local jurisdictions What’s the point? Informs you of the environmental effects of the project To solve a project’s environmental impacts if possible; or, To allow your consideration even if it isn’t Probable and/or Possible Key Terms of CEQA Baseline A fixed point in time from which impact of future changes are analyzed Environmental Impact Report A means of approving a project that exceeds a threshold after mitigation Exemption A list of actions that the state believes do not need extensive analysis Fair Argument A reasonable person could come to a different conclusion Impact Change in the environment Initial Study Checklist of environmental topics to consider (Appendix G) Mitigated Negative Declaration A discussion of impacts that conclude that mitigation is needed Mitigation Measure A change to a project designed to reduce an impact below a threshold Negative Declaration A discussion of impacts that determine no mitigation is needed Preponderance of the Evidence 51% of testimony supports the conclusion Significant and Unavoidable Impact An impact that cannot be reduced below the threshold of significance Significant Impact Change in the environment that exceeds a threshold of significance Speculation Making up a future condition Substantial Evidence At least 1 study supports the conclusion Thresholds of Significance A point at which the agency determines an impact is important CEQA Evaluates Change Change from existing condition (not the plan…mostly) Short-and long-term impacts Direct and indirect changes Cumulative changes (includes other projects) Local and regional plans The Players Applicant: A representative of the project who is responsible for the submittal of all information and usually both the cost of the environmental analysis and the legal indemnification if the agency is sued. Staff: Usually someone in the Planning Department charged with coordinating both in-agency review, and communication with other agencies. Public: The recipient of the information, and the target audience. Lead Agency: The agency with discretionary change to which the Applicant has applied. Consultant:Staff from either the public or private sector hired to provide assistance or expertise for the Lead Agency Staff. Responsible Agency: An agency with some permitting authority, but not approval authority over the project. Planning Commission: A volunteer body tasked with reviewing hundreds of pages of highly technical information in order to make a decision narrowly defined by law and to be roundly criticized for having made the decision. (Or not make a decision.) It all starts with a discretionary project… A project means the whole of the action, which has the potential for resulting in either a direct or a reasonably foreseeable indirect physical change in the environment. We must determine the level of environmental review. Three basic outcomes: ◦Exempt ◦Negative Declaration or Mitigated Negative Declaration ◦Environmental Impact Report Once we have a project, then… Once a lead agency has determined that an activity is a project subject to CEQA, a lead agency shall determine whether the project is exempt from CEQA. (15061(a)) Yes, the CEQA Guidelines say this… How are CEQA determinations made? Knowledge of the community Precedent of decision makers Understanding of the impacts Results of technical studies Public Controversy Managing Risk Weighing cost with benefit Higher ‘protection’ comes at a cost Not all decisions are obvious The deciding factor is the difference between fair argument and substantial evidence Ministerial vs. Discretionary Projects Ministerial: Little personal judgment, use of fixed or objective standards Discretionary: Requires exercise of judgment or deliberation Mixed Decision Projects: Considered discretionary Fair Argument Standard When must an EIR be prepared? –When it can be fairly argued, based on substantial evidence, in light of the whole record, that a project may have a significant environmental effect. • This is purposely a low threshold for EIRs • “Fairly argued” means that there is evidence of the potential for impact in the administrative record before the agency • Impacts = direct, indirect, and cumulative contribution impacts • “May have” means that the evidence need not be absolute or unequivocal Substantial Evidence 15384. SUBSTANTIAL EVIDENCE (a) “Substantial evidence” as used in these guidelines means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence. (b) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. What is substantial evidence? What it is: Facts Reasonable assumption predicated on facts Expert opinion supported by facts What it isn’t: Argument Speculation Unsubstantiated opinion or narrative Clearly inaccurate or erroneous information Socioeconomic impact not linked to physical environmental impact Types of CEQA Documents Exemptions ◦Statutory ◦Categorical Environmental Impact Reports ◦Subsequent ◦Supplement ◦Master ◦Program ◦Project Addendum to EIR Negative Declarations ◦Negative Declaration (No Mitigation Measures) ◦Mitigated Negative Declaration Addendum to Negative Declaration Substantial Evidence Fair Argument Statutory:Items ruled by the legislature to be exempt from CEQA. (15260–15285) and other places in the state statutes. Categorical:Items in the state or local agency guidelines that are considered to have little or no environmental impact in most instances. (15300–15332) General:A determination that the project will not result in direct or reasonably foreseeable indirect physical change in the environment. This is known as the common sense exemption. (15060(c)) Exemptions Negative or Mitigated Negative Declaration The difference is whether mitigation is required Based on a checklist (See Appendix G of the Guidelines) Conclusions based on fact in the record Circulated for 30 Days No requirement to respond to public comments, but to consider them before action Considered “draft” until adopted Environmental Impact Report (EIR) Several different types Most follow the same basic format Gold standard of environmental review Circulated for 30-days and then 45-days All comments from the 45-day period must have a reasoned response Considered “draft” until certified Context is Everything Every community has different standards Comparing agencies is difficult Not all large projects have impacts Not all small project don’t How do we know? Threshold of Significance A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, noncompliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant. Found in: ◦CEQA Guidelines ◦General Plan ◦Municipal Code ◦Adopted Development Standards Understanding Thresholds 23 What Is a Mitigation Measure? Avoid Avoid the impact altogether by not taking certain action or parts of an action Minimize Minimize impacts by limiting the degree or magnitude of the action and its implementation Rectify Rectify the impact by repairing, rehabilitating, or restoring the affected environment Reduce or Eliminate Reduce or eliminate the impact over time through preservation and maintenance during the life of the action Compensate Compensate for the impact by replacing or providing substitute resources or environments 24 Project Features that Minimize Impacts Are specifically allowed (perhaps encouraged) by CEQA Should be called out in the project description and the analysis Many put them in the executive summary or monitoring program Design features can be hard to follow through permitting Public Comments The public process is a good part of CEQA Embrace the passion of the community Not all in favor show up…and not all who oppose comment Beware hurrying up at the very end Late hits and document dumps are part of the process Let staff guide you, delaying a meeting is not the end of the world It’s done by the time I get it, what can I do? CEQA is not done until the project is approved You are the last set of eyes before the decision is made Give staff time a heads up if you have a question Add your reasoning to the record EIR Myths The EIR will stop the project. The EIR will tell me how to vote on the project. The EIR will be more expensive than a mitigated negative declaration. The EIR will take longer and than a mitigated negative declaration. The EIR will be more thorough than a ND/MND. The EIR will be bulletproof. 28 What CEQA isn’t… Perfect An advocate for a project The project itself A chance to fix existing problems An encyclopedia of everything everywhere The analysis of ‘worst case’ A decision maker That’s it… CEQA evaluates how the project changes environment The evaluation is circulated for public review If the change is above an adopted threshold then an agency must take action to: ◦Adopt measures (mitigation) to reduce the impact below the threshold; or, ◦Make findings of overriding consideration to approve the project anyway The agency must consider the changes as reported in the analysis before taking action Vehicle Miles Traveled vs. Level of Service Lack of discretionary approval for some projects Objective standards Use of Section 15183.3 Infill to avoid more EIRs Increased use of Addendums More emphasis on planning, less on CEQA Resources for More Information Wikipedia https://en.wikipedia.org/wiki/California_Environmental_Quality_Act Office of Planning and Research https://opr.ca.gov/ceqa/ CEQA Portal –Court Cases and Topic Papers https://ceqaportal.org/ Shameless Plug for CEQA 201 - In The Weeds Wednesday, March 31, 2021 | 10:45 – 12:00