Desk Item 03-10-20 DESK ITEM
PLANNING
COMMISSION
MEETING
3 - 10 - 2020
Overview of the
California Environmental
Quality Act
March 10, 2020
CARMEN J . BORG, AICP
JOSEPH PETTA
SHUTE, MIHALY & WEINBERGER LLP
SHUTE, MIHALY
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Objectives of CEQA
Environmental Protection
Avoid/Minimize Effects
j \
Mitigation
Disclosure
Inform decision makers about environmental consequences
Disclose to the public why decisions were made
Public Participation
SHUTS 'MIK [_Y
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Interpreting CE A
CEQA Statute
CEQA Regulations and Guidelines
Local CEQA Guidelines
Court Cases
Governor's Office of Planning and Research
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doesWhen
Public Agency determines vrhether Not
the activity is a "project"
Project
Project is ministerial
Public Agency determines if No possible significant effect
the project is exempt „�,,,,,,,■,Statutory exemption
=me Categorical exemption
I Not Exempt
Public Agency evaluates project IF
to determine if there is a possibility No further action rr
that the project may have a Notice of Exemption required under
significant effect on the environment may be filed CEQA
S H U T E M I H A Ll,
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Types ofCEQADocuments
Exemptions
Initial Study (IS) a.k.a. "the CEQA Checklist"
Negative Declaration (ND)/Mitigated Negative Declaration (MND)
Environmental Impact Report (EIR)
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Initial
CEQA Guidelines
§ 15063. Initial Study
An "Initial Study" is a preliminary analysis prepared to determine if the
project may have a significant effect on the environment.
An IS must be prepared prior to issuing a Negative Declaration or a Mitigated
Negative Declaration.
Must be based on facts not argument, speculation, unsubstantiated opinion,
or erroneous information.
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Negative Declaration
CEQA Guidelines
§ 21064. NEGATIVE DECLARATION
"Negative declaration" means a written statement briefly describing the
reasons that a proposed project will not have a significant effect on the
environment and does not require the preparation of an environmental
impact report.
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Declaration
Negative
PREPARED WHEN :
There is no substantial evidence, in light of the whole record before the
lead agency, that the project may have a significant effect on the
environment.
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Mitigated Negative
Declaration M
D
CEQA GUIDELINES
§ 21064.5. MITIGATED NEGATIVE DECLARATION
"Mitigated negative declaration" means a negative declaration prepared for
a project when the initial study has identified potentially significant effects
on the environment, but
(1) revisions in the project plans or proposals made by, or agreed to by, the
applicant before the proposed negative declaration and initial study are
released for public review would avoid the effects or mitigate the effects to
a point where clearly no significant effect on the environment would occur,
and
(2) there is no substantial evidence in light of the whole record before the
public agency that the project, as revised, may have a significant effect on
the environment.
SHUTS MIHALY
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Mitigated Neative
Declaration M D
PREPARED WHEN :
The lead agency, based on the initial study, determines that there is
substantial evidence in the record that the project may have a significant
effect on the environment but:
revisions in the project plans or proposals would avoid or mitigate the
effects to a point where clearly no significant effect on the environment
would occur and
there is no substantial evidence in light of the whole record that the
project, as mitigated, may have a significant effect on the environment.
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Environmental Impact Report EIR
An informational document to inform regarding environmental
impacts, ways to minimize impacts, and alternatives.
Prepared when :
When there is substantial evidence, in light of the whole record,
that the project may have a significant effect on the environment.
EIR conclusions must be based on substantiale evidence (e.g.,
technical studies)
Much more detailed than an IS
Includes evaluation of alternatives to the project
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MND or EIR ?
MND -
"Fair Argument Standard": whether it can be fairly argued, based
on substantial evidence, that project may have a significant effect
on the environment. ( Initial Study/ND/MND)
EIR -
"Substantial Evidence Test": means enough relevant information
to support a conclusion . Substantial evidence shall include facts,
reasonable assumptions predicated upon facts, and expert
opinion supported by facts. ( EIR)
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MND or EIR ?
"Fair Argument Standard"
Whether it can be fairly argued, based on substantial evidence, that the
project may have a significant effect on the environment.
- any substantial evidence showing potential for significant effects
- burden on the lead agency to provide evidence
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MND or EIR ?
"Substantial Evidence"
"Enough relevant information and reasonable inferences from this information
that a fair argument can be made to support a conclusion, even thought 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 evidence. " Pub. Resources Code, 21082.2, subd. (c); CEQA Guidelines 15384.
- burden is on challenger to provide evidence
- courts defer to lead agencies
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Initial Study
CONTENTS
Table of Contents/Summary Discussion of Cumulative
Impacts
Project Description Discussion of Mitigation
Measures
Environmental Setting
Mitigation and Monitoring
Thresholds of Significance Program
(usually Appendix G of CEQA
Guidelines)
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Initial
PROCESS
Publication
Public review period (20 — 30 days)
Lead agency review of IS/MND and any #v
public comments
.
Approval of project, adoption of MND and mom
Notice of Determination (starts statute of
limitations)
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E I R
CONTENTS
Table of Growth Inducing Impacts
Contents/Summary Discussion of Cumulative
Project Description Impacts
p Discussion of Mitigation
Environmental Setting Measures
Thresholds of Alternatives Analysis
Significance Mitigation and Monitoring
A endix G ofProgram
( usually pp
CEQA Guidelines)
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E I R
PROCESS
Notice of Preparation (NOP) and Scoping
Publication and Public review period (30 — 45
days or longer)
Lead agency review of EIR and any public
comments
Publication of FEIR (includes responses)
Approval of project, certification of EIR and
adoption of MMRP
Notice of Determination (starts statute of
limitations).
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Initial Study/ MNDand
EIR
- - - - -- - -
Mitigation Measures
Evidence of feasibility
Cannot be deferred
Fully enforceable
Essential nexus 4
"Roughly proportional»
-/ _
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Pitfalls
Watch for:
Incomplete Description
Deferred Analysis
Deferred Mitigation
Cumulative Impacts
Reasonable alternatives
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Online Resources
Governor's Office of Planning and Research (OPR)
http://www.ca.gov/
http://www.opr.ca.gov/cega/technical-advisories.html
Statutes, Guidelines, Appendix G/Initial Study Checklist
http://resources.ca.gov/ceqa/guidelines/
http://resources.ca.gov/ceqa/flowchart/
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& --WEINBERGERL.L.P 22
Ir SHUTS
M I HALY
ThankYou ! WEINBERGER
Carmen J. Borg, A I C P Celebrating 40 years of serving the public interest
Joseph Petta
smwlaw.com
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Benjamin Fu
From: Jean Bedord <Jean@bedord.com>
Sent: Sunday, March 8, 2020 11:28 PM
To: City Council; City of Cupertino Planning Commission; Benjamin Fu; Cupertino City
Manager's Office
Subject: Planning Commission is wasting legal and staff resources -why????
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you recognize the
sender and know the content is safe.
Mayor Scharf, council members and planning commission,
The agenda for the Planning Commission on Tuesday, March 10, consists of only Item #2 Study Session regarding
common terms and documents related to the CEQA process No details. Presumably this is a remedial item for
the inexperienced commissioners, including the chair. CEQA is complex, and compliance depends on the
individual project which is also governed by multiple regulatory requirements.
Why is this commission wasting valuable legal and scarce staff time for superfluous meetings which don't have
action items? It was bad enough that the Planning Commission spent FIVE meetings reviewing the General
Plan annual report line-by-line. The reformatting of the report could have accomplished in a single meeting;
the rest of the review was outside the General Plan amendment process.
Please cancel this meeting until meaningful development items are on the agenda.
Warm regards,
Jean Bedord
Cupertino resident
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Benjamin Fu
From: David Fung
Sent: Tuesday, March 10, 2020 4:12 PM
To: Benjamin Fu;Joseph D. Petta
Subject: On topic and conflicts for tonight's PC meeting
Ben,Seph—
I wanted to express a concern regarding the study session on CEQA process (item#2) on the Planning Commission
agenda tonight.
There were no attachments, so I don't really know who is presenting or what material they were intending to cover. For
the record, I was opposed to this session during the work plan process—a brief overview has little value for the public
and an in-depth review is complicated and tedious,which will ultimately also be of little value to the public.
But I'm particularly concerned about the potential for conflict of interest on the topic tonight, since Chairperson Moore
is a current litigant against the City of Cupertino in a matter that materially contains a number of CEQA complaints. I
believe that there is high potential for comments from the commission members challenging the efficacy and process of
CEQA which are very likely to infringe on the territory of the lawsuit and are not appropriate for the discussion tonight.
The charter of the Planning Commission includes"Endeavor to promote public interest in, comment upon, and
understanding of the General Plan, and regulation relating to it(CMC 2.32.070.D). Holding an impartial, factual
discussion of the CEQA process can promote that objective, but a biased presentation or discussion runs counter to that
goal. I believe that Commissioner Moore did comment at the time of the work plan to the effect that understanding
CEQA would increase the capacity for residents to oppose projects,which I believe would be outside the appropriate
bounds of this item.
I hope that staff and the CAO's office can frame the appropriate bounds of the discussion both before the item and in
the ensuing discussion.
Thank you,
David Fung
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