Will CEQA Reform Really Reform CEQA?

"If you're waiting for CEQA reform from the legislature, get a life! If you're going to reform CEQA, you have to do it at home."

Those words came from veteran land use lawyer William Abbott at Friday's UCLA Land Use Law and Planning conference -- but they seemed to represent the general sentiment of the 300 land use practitioners gathered for the annual event in downtown Los Angeles. Although Senate leader Darrell Steinberg managed to get SB 743 passed last year, major reform of the California Environmental Quality Act proved elusive and the consensus is that Steinberg -- who will be termed out after this year -- doesn't have the stomach to keep trying.

However, with five cases pending, the California Supreme Court could play a significant role in shaping CEQA in the coming year. "There was a time in the late '90s when the Supreme Court didn't seem interested in CEQA," veteran CEQA lawyer Jim Moose said at the UCLA conference. "They're quite interested now. Most of their case load is criminal. They get to choose and of the civil cases they take, CEQA is a surprisingly large percentage. They take seriously their role on CEQA."

SB 743 declares parking and aesthetics to not be significant impacts in infill situations and also exempts projects approved within an adopted specific plan area under certain circumstances. Though it stops far short of the of sweeping CEQA reform under discussion a year ago, the bill does provide significant streamlining for infill projects.

Not that the new law stopped the UCLA panelists from debating the very things that SB 743 seeks to clear up. CEQA panelists Moose and Susan Brandt-Hawley, for example, had a vigorous debate over the parking question -- which has vexed CEQA practitioners for decades. 

For example, in Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (215 Cal.App.4th 1013), the appellate court found that a mitigated negative declaration for installing lights at a high school football field was insufficient for a variety of reasons, including inadequate analysis of traffic and parking. Among other things, the case declined to follow up on a different appellate court's decision in San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, 102 Cal.App.4th 656 (2002), saying that San Diego did not have the same strong transit policies that San Francisco had and therefore inadequate parking is "not merely a social inconvenience."

"So what's the takeaway?" moderator Margaret Sohagi asked. "Do we have to go back to scrutinizing parking?"

"It depends," Moose said. "You need to make the case. The General plan or other policies favoring transit may downgrade the parking impact. There may be interplay with the upcoming OPR guidance" -- meaning proposed CEQA Guidelines changes forthcoming from the Governor's Office of Planning & Research, directed by SB 743, to look at alternatives to level of service as a standard under CEQA.

But Brandt-Hawley, one of the most successful CEQA plaintiff lawyers in the state, disputed the idea that parking isn't an environmental issue. "Parking alone doesn't have any impact but parking is related to traffic" she said. "If there isn't enough parking it creates more traffic. It never really made sense that parking isn't environment. What has happened since [the San Francisco case] is that planners have called it [the impact] traffic rather than parking."