Changes to the California Environmental Quality Act Enacted in 2023

This article summarizes some of the most significant amendments to the California Environmental Quality Act (CEQA) that were enacted in 2023. Some housing laws that relate to CEQA are discussed in the article, “Recently Effective & Pending State Housing Laws."

Assembly Bill 1307: Noise Effects of Residential Projects; Residential and Mixed-Use Projects of Public Higher Education Institutions

AB 1307 was passed as urgency legislation in response to the ongoing litigation over the University of California, Berkeley’s proposed housing development at People’s Park (a California Supreme Court decision in this case is expected in spring/summer 2024).

AB 1307 added Public Resources Code § 21085, which provides that “for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.” AB 1307 also added Public Resources Code § 21085.2, which provides that for projects with at least two-thirds of the square footage designated for residential use, a public higher education institution is not required to consider alternative locations for the project in the Environmental Impact Report (EIR) if (1) the project site is no more than 5 acres, (2) at least 75% of the adjoining parcels are developed with “qualified urban uses” (defined as any residential, commercial, public institutional, transit or transportation passenger facility, or retail use, or any combination of those uses), and (3) the project has already been evaluated in the EIR for the most recent long-range development plan for the campus.

Senate Bill 69: Notice Filing and Posting

Public Resources Code § 21152 requires a local agency, after approving a project, to file a notice of determination or notice of exemption with the county clerk of each county in which a project is located. These notices must be filed electronically with the county clerk if possible. Previously, this section required county clerks to post these notices for 30 days either in the clerk’s office or on the clerk’s website. SB 69 adds the following additional requirements: These notices must be filed electronically with the State Clearinghouse (in addition to county clerks), county clerks must post these notices for 30 days both in the clerk’s office and on the clerk’s website (clerks no longer have a choice between the two), and the Office of Planning and Research (OPR) must post these notices on the State Clearinghouse website.

Senate Bill 149: Administrative Records; Environmental Leadership Development Projects; Infrastructure Projects

SB 149 made a few modest changes to the procedure and requirements for the administrative record in CEQA lawsuits (amending Public Resources Code § 21167.6).

First, SB 149 requires the agency to produce the administrative record in electronic format, codifying an existing common practice. Second, it requires the court to schedule a case management conference within 30 days of initiation of a lawsuit to review the scope, timing, and cost of the administrative record. Third, the law allows the parties, with the court’s approval, to stipulate to a partial record that does not contain all the specified documents otherwise required to be included in the administrative record. Fourth, the law clarifies that the lead agency must certify the record within 60 days even when a petitioner elects to prepare the record. Fifth, the law allows the agency to deny a petitioner’s request to prepare the record, in which case the agency or real party in interest must bear the costs of preparing the record and cannot recover those costs from the petitioner. Sixth, the law specifies that the administrative record does not include “communications that are of a logistical nature, such as meeting invitations and scheduling communications,” materials that are privileged, and materials that are exempt from disclosure under the California Public Records Act.

Separately, SB 149 extended the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 (Public Resources Code §§ 21178–21189.3), which provides expedited judicial review for “environmental leadership development projects.” To qualify for judicial streamlining, projects must be certified by the governor and meet various specified requirements (including, depending on the type of project, minimum investment amounts, transportation impacts, greenhouse gas emissions mitigation, and labor requirements). These provisions were to have expired on January 1, 2026, with a deadline of January 1, 2024, for projects to be certified by the governor. SB 149 extended these provisions until January 1, 2034, and extended the deadline for projects to be certified by the governor to January 1, 2032. SB 149 also specified that the project applicant cannot recover the costs of preparing the administrative record from a petitioner.

In addition, SB 149 added provisions for expedited judicial review of certain infrastructure projects, as described in the article, "New State Laws to Facilitate Infrastructure Project Development.”

Assembly Bill 1449: Affordable Housing

AB 1449 (codified at Public Resources Code § 21080.40) adds a new statutory exemption from CEQA for specified actions related to qualifying affordable housing projects that will be subject to a recorded California Tax Credit Allocation Committee regulatory agreement. At least two-thirds of the square footage of the project must be designated for residential use, and all residential units (except managers’ units) must be designated for lower income households. In addition, projects must meet numerous specified requirements related to labor standards, location, and environmental site conditions. The exemption applies to the issuance of entitlements for a qualifying project; actions to lease, convey, or encumber land owned by a public agency for a qualifying project; actions to facilitate the lease, conveyance, or encumbrance of land owned or to be purchased by a public agency for a qualifying project; and rezoning, specific plan amendments, or general plan amendments required specifically and exclusively to allow a qualifying project. These provisions will expire January 1, 2033.

Assembly Bill 356: Aesthetic Effects of Dilapidated Building Refurbishment

Public Resources Code § 21081.3 provides that a lead agency is not required to evaluate the aesthetic effects of a project that involves the refurbishment, conversion, repurposing, or replacement of abandoned, dilapidated, and vacant buildings; includes the construction of housing; and meets other specified requirements. AB 356 extends the expiration of this section to January 1, 2029. Further, AB 356 adds a new requirement that the lead agency must file a notice with the county clerk and OPR after it relies on this section when approving a project.

Senate Bill 91: Interim Motel Projects; Environmental Leadership Transit Projects

Public Resources Code § 21080.50 provides a statutory exemption from CEQA for projects that convert a motel, hotel, residential hotel, or hostel to supportive or transitional housing (“interim motel projects”) and meet specified requirements. Previously, this section was to expire on January 1, 2025. SB 91 removed the sunset provision, making this statutory exemption permanent.

In addition, SB 91 extended for one year the streamlining provisions for “environmental leadership transit projects,” which are transit projects located in Los Angeles County that meet specified requirements and are certified by the governor (Public Resources Code § 21168.6.9). As amended by SB 91, an environmental leadership transit project must be approved by January 1, 2025, and the provisions expire January 1, 2026.