The California Environmental          Quality Act (CEQA) and how it may effect your residential project.

The California Environmental Quality Act was adopted in 1970 and was loosely based on the National Environmental Policy Act. There are a lot of online resources about CEQA, its history, purpose, guidelines to its application, etc. so check out those links for further background if you’re interested but CEQA is the chief source of policies and guidelines which are implemented in local permitting processes. Various links in the article are directly to the text of the CEQA Guidelines.

I do not by any means claim to be an expert in this particular field. There are attorneys that specialize in nothing but this area of law. But I will attempt to condense some of the requirements as they apply primarily to residential projects. I hope that in relaying my own experiences, both with my own personal building projects, and with those of several clients over the years, this will be of some help in the planning of your project and get you started on the right path. A flow chart of the basic process used for every project is available online, but I will try to concentrate on clarifying what can be false assumptions you might make about your project, some of which I have made myself, and that have caused a lot of frustration, both for myself and for my clients. Generally speaking, I think most people are quite surprised as to how little cause CEQA can have to require environmental review of their project. Although CEQA has been around quite awhile now, it has literally taken decades to trickle down to affect even small residential projects.

Almost all building projects, no matter how seemingly small (like a deck, for example) may be deemed by your local Planning Department, to be subject to regulation and review under CEQA. I have brought in preliminary drawings to be reviewed over the counter for larger additions and remodel projects and been told then that it didn’t look like any major environmental review would be required, only to find out 30 days after actually submitting the plans that I would in fact have to have environmental review under CEQA. I have even been told on some projects that I would not need a Minor Use Permit and could go straight to the Building Department, only to find out in the middle of the Building Department plan checking process, that the Planning Department (which will give at least a cursory review to almost every project as part of the building permitting process) has found a reason to have to conduct some kind of environmental review. The process is by no means straightforward, it is in fact multi-layered and convoluted.

After your initial submittal to the Planning Department (assuming you have not been given the bi-pass signal), they have 30 days under CEQA guidelines in which to determine if your application is "complete" or whether they will require more information in order to make a determination. Once you have submitted that additional information, which may require among other things, an archaeological study and/or biological study, then your application may deemed to be "complete" which then starts the clock on other time limits within which your project must be approved or rejected. Once they have deemed your application to be complete, they have another 30 days in which to make one of three conclusions about your project. The process they use to determine this is called the Initial Study. I will describe each of these possible determinations separately.

Categorical Exemption-

This would be the most favorable determination, which essentially says that your project falls under certain types of projects specifically delineated in CEQA guidelines to be Categorically Exempt from environmental review. These exemptions are spelled out in several classes, indicated by number. For this article, it is important to understand that most residential projects, including additions and/or remodels of existing single family dwellings (where the expansion to the dwelling is no more than 50% of the existing square footage or 2500 sq.ft., whichever is less), and even new single family dwellings (as opposed to either a tract of a large number of homes, or multi-family dwellings like condos and apartments), are generally considered to be exempt from CEQA.

But there are also exceptions to these exemptions (starting to sound confusing already?) which are also spelled out in the guidelines. These are often subject to interpretation by your local Planning Department which is normally considered to be the "Lead Agency" as described in CEQA. But, in my experience, more and more projects are being determined to fall under one of these exceptions.

The most common exceptions to the exemptions are for the following-

*A project , "…which may cause a substantial adverse change in the significance of a historical resource." Here on the Central Coast of California where the Chumash Indians once lived, this can (although they do have these areas supposedly mapped) be in just about any area, especially along the coast. People are often surprised to find that the 50 or more year-old home they bought 10 or more years ago, is sitting right in one of these areas. This may make you ineligible for a categorical exemption, as well as likely require an archaeological study to have to be done at your expense in order for you to get your permit.

*A project, "….where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." This can mean that you are very close to the ocean, very close to just about any body of water, including creeks that may not even have water in them year round, or that you may have an endangered species (usually plants) on your property. Anything that can be deemed as having a "significant effect", and the interpretation of this, in my experience, is becoming more and more liberal, affecting more and more projects that would otherwise be exempt. This exception may likely require, among other things, a biological study to be done at your expense.

There are other exceptions as well, such as projects located in former or current hazardous waste areas. Enter your address at this website to find out if your project is located in one of these area.  This issue tends to be less common than ones listed above.

So, as more and more, even seemingly small residential projects are getting caught in the CEQA net, and your project is deemed not to be Categorically Exempt, you will be required to go through additional environmental review resulting in one of two further possible determinations.

The next least burdensome (for you) determination after a categorical exemption, is called a Negative Declaration or possibly a Mitigated Negative Declaration.

With a Negative Declaration, the Lead Agency has conducted an Initial Study, including reviewing the additional information you have provided them (studies, etc.) and determined that your project, ".... shows that there is no substantial evidence, in light of the whole record before the agency, that the project may have significant effect on the environment..." They have a 180 day time limit from the date your application is deemed "complete", which you should receive in writing, to make this determination. If they do not make a determination, in writing, prior to this time limit, your project can be considered approved as submitted. Be vigilant about keeping your Lead Agency in compliance with these time limits. Often, during this time period, they may ask you for even more information. This practice is dubious at best but there seems to be a lot of disagreement and mis-understanding about it’s legality. If you are slow to provide the requested additional information, they can effectively stop the clock on the running time limit. Although these time limits are the law, in my experience, you will likely have to hire an attorney to have them enforced if they repeatedly ask for more information and more time. In my personal dealings with local Planning Departments, I still find quite a bit of ambiguity surround the time limits set forth in CEQA.

The next least burdensome determination is called a Mitigated Negative Declaration. Too much to quote here so follow the link for the actual language but what this means, essentially, is that they have determined there may be some effect on the environment due to your project but that there are steps you can take (slight design modifications, controlling erosion, protecting endangered plants, etc. during and after construction, as a few examples) to make that effect negligible. They will often require that you list these mitigation requirements on your plans and may inspect the project during construction to see that these are being implemented.

If neither of these two types of Negative Declarations can be made concerning your project (I have never personally experienced this with a residential project) you will be required to have a complete Environmental Impact Report (EIR)done. As this falls almost entirely out of the scope of this article (residential projects) I will recommend you just follow the previous link and continue your study from there. They have one year in which to complete this report from the day your application was deemed complete.

Also, keep in mind that any projects in the Coastal Zone of California may by appealed to and even by, the Coastal Commission for environmental issues. This can add an almost inestimable delay to your project.  I have had a small residential addition right on the water in Los Osos take over a year and a half to finally get a building permit.

For a low cost feasibility analysis to help flesh out these potential obstacles between you and your building permit, see the link.