SB 743 and CEQA

New Ways To Analyze Transportation Impacts Under SB 743 and the California Environmental Quality Act

January 5, 2016

The traffic impacts of development projects have traditionally been evaluated in light of roadway capacity. If a project is projected to cause excessive delays, impacts are usually considered significant, and the mitigation imposed is generally directed at increasing roadway capacity or otherwise reducing delays. Recent amendments to the California Environmental Quality are about to change that long-standing practice.

In 2013, the California Legislature enacted Senate Bill 743, which directs the Governor’s Office of Planning & Research to develop new CEQA guidelines for transit analyses. It directs OPR to recommend alternative metrics, such as vehicle miles travelled (VMT) or trip generation rates, as thresholds of significance, with an overarching goal of balancing congestion management with statewide goals promoting infill development, public health through active transportation and reduction of greenhouse gas emissions. SB 743 requires use of the new standards in transit priority areas, which are areas within one-half mile of a major transit stop. The Legislature further authorized, but did not require, OPR to develop similar guidelines for areas located outside transit priority areas. SB 743 indicates that the new guidelines will take effect inside transit priority areas when they are filed with the Secretary of Resources, and that their effect on areas outside transit priority areas will depend upon the language of the new guidelines.

In August 2014, OPR circulated its draft SB 743 guidelines for public comment. The draft guidelines propose to use VMT to measure transportation impacts throughout the state and suggest agencies compare project-specific VMT to an undefined regional average. The draft guidelines also suggest that development projects located within one-half mile of an existing major transit stop, and those that result in a net decrease in VMT compared to existing conditions, generally should be considered to have a less-than-significant environmental impact. OPR’s initial draft indicates that the provisions applicable to locations outside transit priority areas would take effect in January 2016.

In response to its 2014 draft, OPR received voluminous public comments. The completion of the new guidelines has, accordingly, been delayed well beyond January 2016. Most stakeholders expect to see another draft circulated for public comment before OPR releases its final version of the new guidelines.

Significant uncertainty remains regarding the timing and content of the new requirements. Even simple questions, such as whether the new requirements will apply to an EIR already in progress, have not been formally addressed. In the Bay Area, the question surrounding subsequent approvals is likely to arise often. Bay Area planning efforts tend to be robust, and it is common for jurisdictions to require multiple levels of approvals for a single project. One issue likely to require extensive analysis is whether the new guidelines will trigger a requirement for supplemental analysis for a project that has already undergone environmental review, but which is seeking a subsequent discretionary project approval. More far-reaching policy questions will likely take years to resolve. For example, many characterize the community separators in Sonoma County as isolating a myriad of small urban centers from each other, thereby extending travel distance and VMT. VMT obviously would be reduced with development patterns that emphasize large, combined urban centers surrounded by open space and agricultural uses, which would promote the goals of SB 743. However, the prospect of evaluating long-standing travel patterns between relatively small cities as significant impacts under CEQA seems unlikely to cause a fundamental change in long development patterns and attitudes that have been embedded in suburban local planning for decades.

OPR’s initial draft does, however, give some insight into how the world of traffic analysis may change in light of SB 743, allowing some conclusions to be drawn.

1. Agencies should continue to analyze congestion and delay. Unless and until the revised guidelines are adopted, the current thresholds, which address traffic congestion and delay, will continue to apply. In addition, SB 743 does not prohibit agencies from using “level of service” standards as part of their local planning process. Accordingly, even though the revised guidelines may eliminate traffic congestion and delay as traffic impact thresholds under CEQA, cities and counties may continue to impose level of service standards and corresponding conditions of approval outside of CEQA.
2. Agencies should gather data concerning the VMT a new project is anticipated to produce. VMT is already being analyzed under CEQA to evaluate a project’s potential greenhouse gas emissions. That data should be analyzed carefully (and perhaps expanded) in anticipation that it also may be used to assess transportation impacts once the revised guidelines are adopted.
3. Agencies should consider new measures to reduce VMT. Reducing the size of a project often reduces traffic congestion under current standards. However, VMTs are often assessed per square foot or per person. When that practice is employed, the significance of VMT cannot be reduced through the simple expedient of reducing the project size. Similarly, the flex-schedule aspects of many transportation demand management programs – which are often used to reduce peak hour congestion – will not reduce VMT. Agencies may, accordingly, want to start work now on developing more robust means of encouraging and enabling people to take public transit, share transportation and live closer to their destinations.
4. Continue to consider measures to reduce traffic impacts on air quality, noise and safety. SB 743 specifically retained a public agency’s authority under CEQA to analyze and mitigate a project’s transportation-related impacts on air quality, noise and safety. Studies of roadway capacity and delay may still be required for this purpose. For example, a study of roadway capacity may be required so that an agency can assess whether a project results in increased congestion and delay that, in turn, results in localized pollution impacts.

The coming year is expected to bring significant changes to how traffic impacts will be evaluated under CEQA, as well as additional uncertainty as to how the revisions will be applied to projects in practice. In the meantime, agencies and developers are well advised to be prepared to study and mitigate the traffic impacts associated with both roadway congestion and VMT in 2016.

Cecily Barclay, partner at law firm Perkins Coie, focuses her practice on land use and entitlements, real estate acquisition and development and local government law. She regularly assists landowners, developers and public agencies throughout Northern California in all aspects of acquisition, entitlement and development of land, including land use application processing, drafting and negotiating purchase and sale agreements, negotiating and securing the approval of development agreements, general plan amendments, specific plans, planned development zoning, annexations, initiatives and referenda, and tentative and final subdivision maps.