Article 6 - Special Review of Housing Projects

California Public Resources Code — §§ 21159.20-21159.28

Sections (10)

Added by Stats. 1993, Ch. 1130, Sec. 18. Effective January 1, 1994.

(a)If a project consists solely of compliance with a performance standard or treatment requirement imposed by an agency listed in Section 21159.4, the lead agency for the compliance project shall, to the greatest extent feasible, utilize the environmental analysis required pursuant to subdivision (a) of Section 21159 in the preparation of a negative declaration, mitigated negative declaration, or environmental impact report on the compliance project or in otherwise fulfilling its responsibilities under this division. The use of numerical averages or ranges in an environmental analysis shall not relieve a lead agency of its obligations under this division to identify and evaluate the environmental effects of a compliance project.

(b)If the lead agency determines that an environmental impact report on the compliance project is required, the lead agency shall prepare an environmental impact report which addresses only the project-specific issues related to the compliance project or other issues that were not discussed in sufficient detail in the environmental analysis to enable the lead agency to fulfill its responsibilities under Section 21100 or 21151, as applicable. The mitigation measures imposed by the lead agency for the project shall relate only to the significant effects on the environment to be mitigated. The discussion of alternatives shall be limited to a discussion of alternative means of compliance, if any, with the rule or regulation.

§ 21159.20

Added by Stats. 2002, Ch. 1039, Sec. 12. Effective January 1, 2003.

For the purposes of this article, the following terms have the following meanings:

(a)“Census-defined place” means a specific unincorporated land area within boundaries determined by the United States Census Bureau in the most recent decennial census.

(b)“Community-level environmental review” means either of the following:

(1)An environmental impact report certified on any of the following:

(A)A general plan.

(B)A revision or update to the general plan that includes at least the land use and circulation elements.

(C)An applicable community plan.

(D)An applicable specific plan.

(E)A housing element of the general plan, if the environmental impact report analyzed the environmental effects of the density of the proposed project.

(2)Pursuant to this division and the implementing guidelines adopted pursuant to this division that govern subsequent review following a program environmental impact report, or pursuant to Section 21157.1, 21157.5, or 21166, a negative declaration or mitigated negative declaration was adopted as a subsequent environmental review document, following and based upon an environmental impact report on any of the projects listed in subparagraphs (A), (C), or (D) of paragraph (1).

(c)“Low-income households” means households of persons and families of very low and low income, as defined in Sections 50093 and 50105 of the Health and Safety Code.

(d)“Low- and moderate-income households” means households of persons and families of low or moderate income, as defined in Section 50093 of the Health and Safety Code.

§ 21159.21

Amended by Stats. 2012, Ch. 39, Sec. 96. (SB 1018) Effective June 27, 2012.

A housing project qualifies for an exemption from this division pursuant to Section 21159.22, 21159.23, or 21159.24 if it meets the criteria in the applicable section and all of the following criteria:

(a)The project is consistent with any applicable general plan, specific plan, and local coastal program, including any mitigation measures required by a plan or program, as that plan or program existed on the date that the application was deemed complete and with any applicable zoning ordinance, as that zoning ordinance existed on the date that the application was deemed complete, except that a project shall not be deemed to be inconsistent with the zoning designation for the site if that zoning

designation is inconsistent with the general plan only because the project site has not been rezoned to conform with a more recently adopted general plan.

(b)Community-level environmental review has been adopted or certified.

(c)The project and other projects approved prior to the approval of the project can be adequately served by existing utilities, and the project applicant has paid, or has committed to pay, all applicable in-lieu or development fees.

(d)The site of the project does not contain wetlands, does not have any value as a wildlife habitat, and the project does not harm any species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or by the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), the California

Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and the project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete. For the purposes of this subdivision, “wetlands” has the same meaning as in Section 328.3 of Title 33 of the Code of Federal Regulations and “wildlife habitat” means the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.

(e)The site of the project is not included on any list of facilities and sites compiled pursuant to Section 65962.5 of the Government Code.

(f)The site of the project is subject to a preliminary endangerment assessment prepared by an environmental assessor to determine the existence of

any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity.

(1)If a release of a hazardous substance is found to exist on the site, the release shall be removed, or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements.

(2)If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements.

(g)The project does not have a significant effect on historical resources pursuant to Section 21084.1.

(h)The project site is not subject to any of the following:

(1)A wildland fire hazard, as determined by the Department of Forestry and Fire Protection, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a wildland fire hazard.

(2)An unusually high risk of fire or explosion from materials stored or used on nearby properties.

(3)Risk of a public health exposure at a level that would exceed the standards established by any state or federal agency.

(4)Within a delineated earthquake fault zone, as determined pursuant to Section 2622, or a seismic hazard zone, as determined pursuant to Section 2696, unless the applicable general plan or zoning

ordinance contains provisions to mitigate the risk of an earthquake fault or seismic hazard zone.

(5)Landslide hazard, flood plain, flood way, or restriction zone, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a landslide or flood.

(i)(1) The project site is not located on developed open space.

(2)For the purposes of this subdivision, “developed open space” means land that meets all of the following criteria:

(A)Is publicly owned, or financed in whole or in part by public funds.

(B)Is generally open to, and available for use by, the public.

(C)Is

predominantly lacking in structural development other than structures associated with open spaces, including, but not limited to, playgrounds, swimming pools, ballfields, enclosed child play areas, and picnic facilities.

(3)For the purposes of this subdivision, “developed open space” includes land that has been designated for acquisition by a public agency for developed open space, but does not include lands acquired by public funds dedicated to the acquisition of land for housing purposes.

(j)The project site is not located within the boundaries of a state conservancy.

§ 21159.22

Added by Stats. 2002, Ch. 1039, Sec. 12. Effective January 1, 2003.

(a)This division does not apply to any development project that meets the requirements of subdivision (b), and meets either of the following criteria:

(1)Consists of the construction, conversion, or use of residential housing for agricultural employees, and meets all of the following criteria:

(A)Is affordable to lower income households, as defined in Section 50079.5 of the Health and Safety Code.

(B)Lacks public financial assistance.

(C)The developer of the development project provides sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of the housing units for lower income households for a period of at least 15 years.

(2)Consists of the construction, conversion, or use of residential housing for agricultural employees and meets all of the following criteria:

(A)Is housing for very low, low-, or moderate-income households as defined in paragraph (2) of subdivision (h) of Section 65589.5 of the Government Code.

(B)Public financial assistance exists for the development project.

(C)The developer of the development project provides sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of the housing units for low- and moderate-income households for a period of at least 15 years.

(b)(1) If the development project is proposed within incorporated city limits or within a census defined place with a minimum population density of at least 5,000 persons per square mile, it is located on a project site that is adjacent, on at least two sides, to land that has been developed, and consists of not more than 45 units, or is housing for a total of 45 or fewer agricultural employees if the housing consists of dormitories, barracks, or other group living facilities.

(2)If the development project is located on a project site zoned for general agricultural use, and consists of not more than 20 units, or is housing for a total of 20 or fewer agricultural employees if the housing consists of dormitories, barracks, or other group living facilities.

(3)The project satisfies the criteria in Section 21159.21.

(4)The development project is not more than five acres in area, except that a project site located in an area with a population density of at least 1,000 persons per square mile shall not be more than two acres in area.

(c)Notwithstanding subdivision (a), if a project satisfies the criteria described in subdivisions (a) and (b), but does not satisfy the criteria described in paragraph (1) of subdivision (b), this division does not apply to the project if the project meets all of the following criteria:

(1)Is located within either an incorporated city or a census-defined place.

(2)The population density of the incorporated city or census-defined place has a population density of at least 1,000 persons per square mile.

(3)The project site is adjacent on at least two sides to land that has been developed and the project consists of not more than 45 units, or the project consist of dormitories, barracks, or other group housing facilities for a total of 45 or fewer agricultural employees.

(d)Notwithstanding subdivision (c), this division shall apply to a project that meets the criteria described in subdivision (c) if a public agency that is carrying out or approving the project determines that there is a reasonable possibility that the project, if completed, would have a significant effect on the environment due to unusual circumstances or that the cumulative impacts of successive projects of the same type in the same area, over time, would be significant.

For the purposes of this section, “agricultural employee” has the same meaning as defined by subdivision (b) of Section 1140.4 of the Labor Code.

§ 21159.23

Added by Stats. 2002, Ch. 1039, Sec. 12. Effective January 1, 2003.

(a)This division does not apply to any development project that consists of the construction, conversion, or use of residential housing consisting of 100 or fewer that is affordable to low-income households if both of the following criteria are met:

(1)The developer of the development project provides sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of the housing units for lower income households, as defined in Section 50079.5 of the Health and Safety Code, for a period of at least 30 years, at monthly housing costs, as determined pursuant to Section 50053 of the Health and Safety Code.

(2)The development project meets all of the following requirements:

(A)The project satisfies the criteria described in Section 21159.21.

(B)The project site meets one of the following conditions:

(i)Has been previously developed for qualified urban uses.

(ii) The parcels immediately adjacent to the site are developed with qualified urban uses, or at least 75 percent of the perimeter of the site adjoins parcels that are developed with qualified urban uses and the remaining 25 percent of the perimeter of the site adjoins parcels that have previously been developed for qualified urban uses, and the site has not been developed for urban uses and no parcel within the site has been created within 10 years prior to the proposed development of the site.

(D) The project site is located within an urbanized areaor within a census-defined place with a population density of at least 5,000 persons per square mile or, if the project consists of 50 or fewer units, within an incorporated city with a population density of at least 2,500 persons per square mile and a total population of at least 25,000 persons.

(b)Notwithstanding subdivision (a), if a project satisfies all of the criteria described in subdivision (a) except subparagraph (D) of paragraph (2) of that subdivision, this division does not apply to the project if the project is located within either an incorporated city or a census defined place with a population density of at least 1,000 persons per square mile.

(c)Notwithstanding subdivision (b), this division applies to a project that meets the criteria of subdivision (b), if there is a reasonable possibility that the project would have a significant effect on the environment or the residents of the project due to unusual circumstances or due to the related or cumulative impacts of reasonably foreseeable projects in the vicinity of the project.

(d)For the purposes of this section, “residential” means a use consisting of either of the following:

(1)Residential units only.

(2)Residential units and primarily neighborhood-serving goods, services, or retail uses that do not exceed 15 percent of the total floor area of the project.

§ 21159.24

Amended by Stats. 2014, Ch. 549, Sec. 1. (SB 674) Effective January 1, 2015.

(a)Except as provided in subdivision (b), this division does not apply to a project if all of the following criteria are met:

(1)The project is a residential project on an infill site.

(2)The project is located within an urbanized area.

(3)The project satisfies the criteria of Section 21159.21.

(4)Within five years of the date that the application for the project is deemed complete pursuant to Section 65943 of the Government Code, community-level environmental review was certified or adopted.

(5)The site of the project is not more than four acres in total area.

(6)The project does not contain more than 100 residential units.

(7)Either of the following criteria are met:

(A)(i) At least 10 percent of the housing is sold to families of moderate income, or not less than 10 percent of the housing is rented to families of low income, or not less than 5 percent of the housing is rented to families of very low income.

(ii) The project developer provides sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of the housing units for very low, low-, and moderate-income households at monthly housing costs determined

pursuant to paragraph (3) of subdivision (h) of Section 65589.5 of the Government Code.

(B)The project developer has paid or will pay in-lieu fees pursuant to a local ordinance in an amount sufficient to result in the development of an equivalent number of units that would otherwise be required pursuant to subparagraph (A).

(8)The project is within one-half mile of a major transit stop.

(9)The project does not include any single level building that exceeds 100,000 square feet.

(10)The project promotes higher density infill housing. A project with a density of at least 20 units per acre shall be conclusively presumed to promote higher density infill housing. A project with a density of at least 10 units per acre and a density greater than the average

density of the residential properties within 1,500 feet shall be presumed to promote higher density housing unless the preponderance of the evidence demonstrates otherwise.

(b)Notwithstanding subdivision (a), this division shall apply to a development project that meets the criteria described in subdivision (a), if any of the following occur:

(1)There is a reasonable possibility that the project will have a project-specific, significant effect on the environment due to unusual circumstances.

(2)Substantial changes with respect to the circumstances under which the project is being undertaken that are related to the project have occurred since community-level environmental review was certified or adopted.

(3)New information becomes available regarding

the circumstances under which the project is being undertaken and that is related to the project, that was not known, and could not have been known, at the time that community-level environmental review was certified or adopted.

(c)If a project satisfies the criteria described in subdivision (a), but is not exempt from this division as a result of satisfying the criteria described in subdivision (b), the analysis of the environmental effects of the project in the environmental impact report or the negative declaration shall be limited to an analysis of the project-specific effect of the projects and any effects identified pursuant to paragraph (2) or (3) of subdivision (b).

(d)For the purposes of this section, “residential” means a use consisting of either of the following:

(1)Residential units only.

(2)Residential units and primarily neighborhood-serving goods, services, or retail uses that do not exceed 25 percent of the total building square footage of the project.

§ 21159.25

Amended by Stats. 2024, Ch. 271, Sec. 1. (AB 2199) Effective January 1, 2025. Repealed as of January 1, 2032, by its own provisions.

(a)For purposes of this section, the following definitions apply:

(1)“Residential or mixed-use housing project” means a project consisting of multifamily residential uses only or a mix of multifamily residential and nonresidential uses, with at least two-thirds of the square footage of the development designated for residential use.

(2)“Substantially surrounded” means at least 75 percent of the perimeter of the project site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses. The remainder of the perimeter of the site adjoins, or is separated only

by an improved public right-of-way from, parcels that have been designated for qualified urban uses in a zoning, community plan, or general plan for which an environmental impact report was certified.

(b)Without limiting any other statutory exemption or categorical exemption, this division does not apply to a residential or mixed-use housing project if all of the following conditions described in this section are met:

(1)The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.

(2)(A) The public agency approving or carrying out the project determines, based upon substantial

evidence, that the density of the residential portion of the project is not less than the greater of the following:

(i)The average density of the residential properties that adjoin, or are separated only by an improved public right-of-way from, the perimeter of the project site, if any.

(ii) The average density of the residential properties within 1,500 feet of the project site.

(iii) Six dwelling units per acre.

(B) The residential portion of the project is a multifamily housing development that contains six or more residential units.

(3)The proposed development occurs within an unincorporated area

of a county on a project site of no more than five acres substantially surrounded by qualified urban uses.

(4)The project site has no value as habitat for endangered, rare, or threatened species.

(5)Approval of the project would not result in any significant effects relating to transportation, noise, air quality, greenhouse gas emissions, or water quality.

(6)The site can be adequately served by all required utilities and public services.

(7)The project is located on a site that is a legal parcel or parcels wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.

(c)Subdivision (b) does not apply to a residential or mixed-use housing project if any of the following conditions exist:

(1)The cumulative impact of successive projects of the same type in the same place over time is significant.

(2)There is a reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances.

(3)The project may result in damage to scenic resources, including, but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway.

(4)The

project is located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code.

(5)The project may cause a substantial adverse change in the significance of a historical resource.

(6)The project may cause a substantial adverse impact to tribal cultural resources, as defined in Section 21074.

(d)If the lead agency determines that a project is not subject to this division pursuant to this section and it determines to approve or carry out the project, the lead agency shall file a notice with the Office of Planning and Research and with the county clerk in the county in which the project will be located in the manner specified in subdivisions (b) and (c) of Section 21152.

(e)This section shall remain in effect only until January 1, 2032, and as of that date is repealed.

§ 21159.26

Added by Stats. 2002, Ch. 1039, Sec. 12. Effective January 1, 2003.

With respect to a project that includes a housing development, a public agency may not reduce the proposed number of housing units as a mitigation measure or project alternative for a particular significant effect on the environment if it determines that there is another feasible specific mitigation measure or project alternative that would provide a comparable level of mitigation. This section does not affect any other requirement regarding the residential density of that project.

§ 21159.27

Added by Stats. 2002, Ch. 1039, Sec. 12. Effective January 1, 2003.

A project may not be divided into smaller projects to qualify for one or more exemptions pursuant to this article.

§ 21159.28

Added by Stats. 2008, Ch. 728, Sec. 15. Effective January 1, 2009.

(a)If a residential or mixed-use residential project is consistent with the use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy, for which the State Air Resources Board pursuant to subparagraph (I) of paragraph (2) of subdivision (b) of Section 65080 of the Government Code has accepted the metropolitan planning organization’s determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emission reduction targets and if the project incorporates the mitigation measures required by an applicable prior environmental document, then any findings or other determinations for an exemption, a negative declaration, a mitigated negative declaration, a sustainable communities environmental assessment, an environmental impact report, or addenda prepared or adopted for the project pursuant to this division shall not be required to reference, describe, or discuss (1) growth inducing impacts; or (2) any project specific or cumulative impacts from cars and light-duty truck trips generated by the project on global warming or the regional transportation network.

(b)Any environmental impact report prepared for a project described in subdivision (a) shall not be required to reference, describe, or discuss a reduced residential density alternative to address the effects of car and light-duty truck trips generated by the project.

(c)“Regional transportation network,” for purposes of this section, means all existing and proposed transportation system improvements, including the state transportation system, that were included in the transportation and air quality conformity modeling, including congestion modeling, for the final regional transportation plan adopted by the metropolitan planning organization, but shall not include local streets and roads. Nothing in the foregoing relieves any project from a requirement to comply with any conditions, exactions, or fees for the mitigation of the project’s impacts on the structure, safety, or operations of the regional transportation network or local streets and roads.

(d)A residential or mixed-use residential project is a project where at least 75 percent of the total building square footage of the project consists of residential use or a project that is a transit priority project as defined in Section 21155.