HomeMy WebLinkAbout2025-01-28; City Council; 05; Amendments to Carlsbad Municipal Code Chapter 19.04 modifying the California Environmental Quality Act exemption determination approval processCA Review CKM
Meeting Date: Jan. 28, 2025
To: Mayor and City Council
From: Geoff Patnoe, City Manager
Staff Contact: Jeff Murphy, Community Development Director
jeff.murphy@carlsbadca.gov, 442-339-2783
Subject: Amendments to Carlsbad Municipal Code Chapter 19.04 modifying the
California Environmental Quality Act exemption determination approval
process
Districts: All
Recommended Action
Introduce an ordinance amending Chapter 19.04 of the Carlsbad Municipal Code requiring
exemptions to the California Environmental Quality Act be considered and approved by
the decision-making authority responsible for deciding on the project (Exhibit 1).
Executive Summary
The City Council passed a motion on Sept. 24, 2024, directing staff to return within 120 days with
amendments to Carlsbad Municipal Code Chapter 19.04 – Environmental Protection Procedures to
require development project exemptions authorized under the California Environmental Quality
Act be considered and approved by the decision-making authority responsible for deciding on the
permit application, instead of the current process that grants that authority exclusively to the City
Planner.
Staff are now responding to that City Council direction with a proposed ordinance that would
establish this change.
Only the City Council has the authority to make changes to the Municipal Code.
Explanation & Analysis
Background
The City Council directed the City Manager to return with amendments to Carlsbad Municipal
Code Chapter 19.04 in response to community concerns about a proposed mixed use development
project and how the city currently administers its California Environmental Quality Act review
process.
The proposed Municipal Code amendments would change the review process so that CEQA
exemptions will be reviewed and considered by the decision-making authority responsible for
deciding on the project – i.e., the Planning Commission or the City Council – instead of exclusively
by the City Planner.
Jan. 28, 2025 Item #5 Page 1 of 34
The proposed code amendments also include other ancillary changes, which are designed to be a
“cleanup.” They help ensure the chapter is consistent with published court decisions interpreting
the California Environmental Quality Act and help specify and clarify local procedures.
The California Environmental Quality Act
The California Environmental Quality Act, more popularly known as CEQA, became law in 1970 and
applies to all discretionary actions undertaken or funded by a public agency.1 Its basic purpose has
been to foster transparency and integrity in public decision-making so that consideration is given
to prevent or minimize the damage public decisions may have on the environment before an
action is approved or carried out.
CEQA is not a permit, and it does not grant cities any alternative powers to regulate property.
CEQA is a process through which public agencies must evaluate a project, understand its
environmental impacts, and develop measures to reduce those impacts which must be publicly
vetted before a decision can be made. While there are several elements and components to CEQA,
CEQA regulatory authority essentially comes from three complimentary code sections.
CEQA statute
CEQA’s legislative authority is found within the California Public Resources Code (Sections
21000 –21006) and sets forth the overarching regulation and policy for environmental review
and protection.
CEQA Guidelines
The CEQA Guidelines, which are periodically updated by the Governor’s Office of Land Use and
Climate Innovation (formerly known as the Office of Planning and Research)2 and the California
Natural Resources Agency,3 are state administrative regulations that public agencies follow to
comply with CEQA, applicable court decisions and practical planning considerations. The
regulatory authority for the guidelines is found in the Title 14 of the California Code of
Regulations (Sections 15000 –15387), which set forth the steps for determining whether an
activity is subject to environmental review, the steps involved in the environmental review
process and the required content of environmental documents.
Carlsbad environmental procedures
1 A discretionary action is a government decision that involves judgment, interpretation or deliberation when deciding
to approve or disapprove it. A ministerial action, by contrast, is a governmental decision that involves applying fixed
standards or objective measurements that are not open to interpretation or debate. Approving building permits is a
type of ministerial action, and ministerial actions are statutorily exempted from CEQA.
2 The Office of Land Use and Climate Innovation is a part of the Office of the Governor focused on areas impacting
land use, climate, housing opportunities, and community empowerment. It constitutes the state’s comprehensive
planning agency.
3 The Natural Resources Agency is responsible for the restoration, protection and management the state’s natural,
historical and cultural resources. The agency is the parent department for other state departments such as Fish and
Wildlife, Forestry and Fire Protection (CALFIRE), Parks and Recreation and Water Resources.
Jan. 28, 2025 Item #5 Page 2 of 34
Carlsbad Municipal Code Chapter 19.04 establishes and sets forth the procedures for
evaluating the environmental impacts of public and private projects and for administering the
city’s responsibility under CEQA. This chapter follows the CEQA statute and supplements state
CEQA guidelines.
CEQA review
Before initiating any environmental review, jurisdictions, like the City of Carlsbad, must first
determine whether the action or activity being considered (referred to as a “project”) requires
review under CEQA. In short, a CEQA project is defined as a city action that has the potential to
either cause:
• A direct physical change in the environmental, or
• A reasonably foreseeable indirect physical change in the environment
If the action is found to be a project subject to CEQA, the jurisdiction then must determine
whether the project is exempt from CEQA.
There are three types of CEQA exemptions to consider:
Statutory exemptions4
Statutory exemptions are written and adopted by the state Legislature. They are absolute,
meaning that if a project falls under a statutory exemption, there are no exceptions and the
project's environmental review and CEQA compliance requirements are complete. Common
statutory exemptions include the issuance of business licenses or building permits, which are
considered ministerial actions, and the adoption of new government fees.
Categorical exemptions5
Categorical exemptions, developed and adopted by the California Natural Resources Agency,
cover projects found not to have a significant effect on the environment. However, unlike
statutory exemptions that are absolute, a project that falls within a categorical exemption may
still be subject to CEQA if there is a reasonable possibility the project will have a significant
effect on the environment due to unusual circumstances, a significant cumulative impact or
impacts on a uniquely sensitive environment. There are several categorical exemptions that
have been adopted by the California Natural Resources Agency over the years, but the one
most often used for new housing developments is called the “in-fill development exemption.”
To qualify for this exemption, certain criteria and conditions listed in Code of Regulations, Title
14, Section 15332 must be met.
General Rule exemptions6
The general rule exemption, sometimes referred to as the “common sense exemption,” is an
exemption type that applies when it is clear that a project will not have a significant
environmental impact and is used for projects that are too minor to warrant a detailed
environmental review. Examples that fall under this category may include funding and
direction for the replacement or reconstruction of existing structures.
4 California Public Resources Code Section 21080; California Code of Regulations, Title 14, Sections 15260-15285
5 California Public Resources Code Section 21084; California Code of Regulations, Title 14, Sections 15300-15333
6 California Code of Regulations, Title 14, Section 15261(c)
Jan. 28, 2025 Item #5 Page 3 of 34
More than one exemption may apply to a project.
Since the proposed action being considered by the City Council focuses on the review and approval
of CEQA exemptions, details on the remaining project processing steps for CEQA review are not
included here. However, a summary of the entire CEQA processing cycle is available in the city’s
Informational-Bulletin IB-150, which is attached as Exhibit 2.
City CEQA exemption review process – current
Projects subject to CEQA must have the environmental determination considered concurrently
with or prior to the city taking final action on a project. Carlsbad Municipal Code Sections
19.04.060 through 080, which were adopted by the City Council in 2001, set forth the current
procedures for processing CEQA exemptions.
The code establishes that the City Planner is exclusively responsible for determining whether a
private or public project is exempted from the requirements of CEQA. To make this determination,
the City Planner will often request additional information or studies from the applicant to confirm
and support that the required CEQA exemption findings can be made. Once the City Planner
makes that determination, a notice of determination of (CEQA) exemption is prepared and posted
on the city’s website for a 10-day public review period. People who have requested to be informed
when exemption notices are posted are sent notifications via email. If no appeal is filed within the
10-day review period, the exemption becomes final, and the CEQA review process for the project
is complete.
This process is typically completed before a project is ready to be brought forward to the decision-
making body for final action. The time difference can range from one to four months, depending
upon the applicant’s responsiveness in addressing staff comments and corrections on the permit
application.
If the CEQA exemption is not appealed, the permit application for the proposed project is brought
forward to the decision-making body for review and action. Because the CEQA exemption is final,
the decision-making body cannot consider CEQA compliance as part of its review and action.
If the CEQA exemption is appealed, however, the appeal is presented for consideration
concurrently with the permit application and the decision-making body acts on both items, the
permit and the appeal of the CEQA exemption. The appeal would be decided upon first by the
Planning Commission, and subsequently could be appealed to the City Council.
City CEQA exemption review process – proposed
The changes proposed in the attached ordinance amendment are highlighted in Exhibit 3. In short,
city staff will continue to request additional information or studies from the applicant as needed to
confirm and support that the required CEQA exemption findings can be made. However, CEQA
exemptions will now be considered and decided upon by the decision-making body for the permit
type under its authority. Put another way, if the proposed amendments were in place when the
City Council considered the previously mentioned mixed-use development project on Sept. 24,
2024, the City Council would have been required to consider the merits, legal requirements, and
appropriateness in applying the in-fill development CEQA exemption as part of the overall action
on the project.
Jan. 28, 2025 Item #5 Page 4 of 34
The amendments to this process will be effective 30 days after the City Council’s second reading of
the ordinance. Applications currently in process for which a CEQA exemption determination has
not already been made will be subject to the new procedures. The processes for CEQA decisions
for environmental impact reports, mitigated negative declarations, negative declarations, or
documents that rely on previously approved environmental determinations are already delegated
to the decision-making body, rather than the City Planner. These processes would remain
unchanged.
These changes will address the frustrations expressed by residents, businesses and other
community members over their inability to discuss or raise concerns over potential environmental
impacts as part of a public hearing for the permits for a project. Although one of the most
important goals of CEQA is to provide decision-makers with information about the environmental
impacts of projects prior to granting approval or conditional approval, another equally important
goal is to enhance public participation in the planning process and allow the public to comment on
the impacts of projects in their community. The proposed changes accomplish these goals.
Risks associated with denying applicable CEQA exemptions
Over the past decade, the California Legislature has amended state law to expand and strengthen
measures intended to create more affordable housing, in recognition of the critically low volumes
of housing stock across the state and the belief that local jurisdictions are not doing enough to
address the need for more affordable housing. In response, most bills passed by state legislators
have made it easier and faster for housing projects to be approved while limiting a local
government’s ability to deny housing projects, reduce their density or make them infeasible.
California Government Code Section 65589.5(h)(6)(D), effective January 2024, expanded the
definition of “disapprove the housing development project” for purposes of the state’s Housing
Accountability Act to encompass a local agency’s failure to complete the CEQA review and issue an
in-fill development CEQA exemption for projects eligible for this exemption. A decision to deny the
use of this CEQA exemption must be based on a significant, quantifiable, direct and unavoidable
impact based on objective, identified written public health or safety standards, policies or
conditions as they existed on the date the application was deemed complete.
This standard presents a high bar for jurisdictions to overcome, and court decisions have recently
sided with housing developers when such decisions were challenged. Also, by tying the denial of
the CEQA exemption to the Housing Accountability Act, the California Department of Housing &
Community Development and state Attorney General’s Office have enforcement authority to
challenge city actions, which could result in heavy financial penalties and decertification of the
city’s Housing Element – its plan for housing – and developer use of the state’s “Builder’s Remedy”
provisions.
For more information on these risks, including the Builder’s Remedy, refer to Informational-
Bulletin IB-198, The Housing Challenge, provided as Exhibit 4.
Fiscal Analysis
The existing fiscal year 2024-25 budget includes sufficient funding for the cost of developing the
proposed code amendments and updated environmental review procedures. It is anticipated that
the code amendments as proposed would require additional training and education, particularly
Jan. 28, 2025 Item #5 Page 5 of 34
for city staff who prepare staff reports for City Council and certain commissions. Staff will monitor
this workload and report back to the City Council if additional resources are needed.
Next Steps
An ordinance to amend the Municipal Code is typically adopted after the City Council’s second
reading of the item. Once the ordinance is adopted, the City Clerk’s Office will publish a summary
of the ordinance in a newspaper of general circulation within 15 days. The ordinance would be
effective 30 days after its adoption.
Community Development Department staff will work with staff from other city departments to
help train and educate them on the new regulations, particularly for those city staff who prepare
staff reports for the City Council and certain commissions. Staff will also work with the City
Attorney’s Office and Office of the City Clerk to update and revise public noticing and resolution
templates to reflect the code changes. Staff anticipate that final versions of the forms and
templates will be available by March 1, 2025.
Environmental Evaluation
In keeping with California Public Resources Code Section 21065, the code amendments do not
qualify as a project within the meaning of the California Environmental Quality Act in that it has no
potential to cause either a direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment, and therefore does not require environmental
review.
Exhibits
1. City Council ordinance
2. Informational-Bulletin IB-150 – California Environmental Quality Act
3. Ordinance amendment showing proposed changes
4. Informational-Bulletin IB-198 – The Housing Challenge
Jan. 28, 2025 Item #5 Page 6 of 34
ORDINANCE NO. CS-485
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AMENDING CHAPTER 19.04 OF THE CARLSBAD MUNICIPAL
CODE REQUIRING EXEMPTIONS TO THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT BE CONSIDERED AND APPROVED BY THE DECISION-MAKING
AUTHORITY RESPONSIBLE FOR DECIDING ON THE PROJECT
WHEREAS, the California Environmental Quality Act, CEQA, is a California state law initially
adopted in 1970 for the intended purpose of informing government decision makers and the public
about the potential environmental effects of proposed activities and to avoid or reduce significant
environmental impacts when it is feasible to do so; and
WHEREAS, the laws and rules governing the CEQA process are contained in state CEQA statute
(Public Resources Code,§§ 21000 et al.), CEQA Guidelines (California Code of Regulations, Title 14, §§
15000 et al.), published court decisions interpreting CEQA, and locally adopted CEQA procedures
(Chapter 19.04 of the Carlsbad Municipal Code); and
WHEREAS, a public agency must comply with CEQA when it undertakes an activity defined by
CEQA as a "project." A "project" is an activity that may cause either a direct physical change in the
environment or a reasonably foreseeable indirect physical change in the environment, and is
undertaken by a public agency, or a private activity that must receive discretionary approval from a
public agency; and
WHEREAS, every project that requires a discretionary governmental approval will require
some level of environmental review pursuant to CEQA, unless an exemption applies; and
WHEREAS, if a project fits within one of the specified exemptions, or has been determined not
to have a significant effect on the environment, the project is exempt from further environmental
review under CEQA; and
WHEREAS, Carlsbad Municipal Code Section 19.04.060 currently requires the City Planner to
determine whether a private or public project is exempted from the requirements of CEQA, and the
City Planner's decision is made before the decision-making body takes final action on the project;
and
WHEREAS on Sept. 24, 2024, the City Council directed the City Manager to return within 120
days with amendments to Chapter 19.04 to change the CEQA review process so that the
determination of whether a project is exempt from CEQA will be made by the decision-making
authority responsible for deciding on the project, instead of the current process which requires the
City Planner to determine whether a CEQA exemption applies.
NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows:
1. The above recitations are true and correct.
2. Title 19, Chapter 19.04, Section 19.04.030 of the Carlsbad Municipal Code is amended to read
as follows:
§ 19.04.030 City planner responsibilities.
A. Unless otherwise specified in this code, the City Planner, or designee, is responsible for the
general administration and implementation of this chapter. Whenever any notices, reports or
documents are required or permitted to be filed, the City Planner shall be responsible for such filing
unless otherwise provided in this title. Whenever this chapter or CEQA requires the city to make a
determination or perform an act, and the person or body to make the determination or perform the
act is not specified, then the City Planner shall have that responsibility, subject to appeal to the
Planning Commission and City Council. The City Planner shall be responsible for the preparation of
any environmental impact report ("EIR"), negative declaration, mitigated negative declaration or
other related environmental documents required by this chapter.
B. The City Planner may require an applicant for a city entitlement for any private project to
submit data and information which may be necessary to determine whether the proposed project
may have a significant effect on the environment.
C. The City Planner, with the approval of the City Manager, may enter into a contract with a
private consultant(s) to prepare or review all studies, reports, and other documents required or
permitted by CEQA, the CEQA Guidelines, or other applicable laws or regulations, including those
studies, reports, or other documents submitted by the project proponent or any other party. In all
cases, the consultant shall enter into a contract with and shall be responsible directly to the city. All
services shall be performed to the satisfaction of the City Manager, or designee. The cost for such
consultant(s) shall be paid in advance of work performed, by the applicant. The applicant shall have
no direct contact with the consultant unless approved by the City Planner or designee upon advice
from the City Attorney. The consultant shall not be an employee or affiliate of the applicant.
D. The City Planner may request assistance from any city department or unit, however titled, other
governmental entities or the public as determined to be necessary to carry out these responsibilities.
Such requests for assistance shall be promptly responded to.
E. Prior to completing a negative declaration, mitigated negative declaration or draft EIR, the City
Planner may consult directly with any person or organization the City Planner believes will be
concerned with the environmental effects of the project.
F. If the City Planner determines that a project is to be carried out or approved by one or more
public agencies in addition to the city, the City Planner shall first determine which entity will be the
lead agency.
Jan. 28, 2025 Item #5 Page 8 of 34
G. Whenever the city is a responsible agency, the City Planner shall provide the information and
responses to the lead agency which the City Planner deems necessary in order to comply with the
statutory responsibilities of a responsible agency.
3. That Title 19, Chapter 19.04, Section 19.04.040 of the Carlsbad Municipal Code is amended to
read as follows:
§ 19.04.040 Board and commission responsibilities.
A. When a city board or commission is the final decision-making body for a project, except for the
possibility of appeal, it is the responsibility of the board or commission to make an environmental
decision prior to approving, conditionally approving, or denying the project as described in the CEQA
decision for the project. The environmental decision of the board or commission shall be final unless
appealed to the city council in accordance with this Chapter.
B. When the City Council is the final decision-making body for a project, but a city board or
commission review of the project is required, it is the responsibility of the city board or commission
to make a recommendation to the city council regarding the environmental decision, in accordance
with CEQA, and make a recommendation regarding whether the project should be approved,
conditionally approved, or denied.
4. That Title 19, Chapter 19.04, Section 19.04.050 of the Carlsbad Municipal Code is amended to
read as follows:
§ 19.04.050 City Council responsibilities.
Unless a city official, city board or commission is the final decision-making body for a project, it is the
responsibility of the City Council to hold a hearing on and make an environmental decision in
accordance with CEQA prior to approving, conditionally approving, or denying the project.
5. That Title 19, Chapter 19.04, Section 19.04.060 of the Carlsbad Municipal Code is deleted.
§ 19.04.060 Reserved.
6. That Title 19, Chapter 19.04, Section 19.04.070 of the Carlsbad Municipal Code is amended to
read as follows:
§ 19.04.070 Exemption procedures.
A. The following sections implement Section 15300.4 of the CEQA guidelines which requires the
city to list those specific activities which fall within each of the following exempt classes:
Jan. 28, 2025 Item #5 Page 9 of 34
1. Statutory Exemptions. Pursuant to Section 15260, statutory exemptions are those
projects that the legislature has determined should be exempted from CEQA and which are
found in various state statutes. These include ministerial projects, categorical exemptions and
general rule exemptions.
a. Ministerial Projects. Pursuant to Section 15369 of the CEQA guidelines,
ministerial projects are those that involve little or no personal judgment by the public
official as to the wisdom or manner of carrying out the project. They involve the use of
fixed standards or objective measurements. Projects in the city specifically deemed to
be ministerial include all post-approval submittals in substantial conformance with the
approval. Post-approval submittals include certified tentative subdivision maps, final
maps, grading, landscape and improvement plans, CC&Rs and building plans. Other
ministerial projects include final inspections, issuance of licenses, utility service
connections and disconnections, city ordered brush clearance of nonsensitive areas in
accordance with City of Carlsbad procedures and other similar actions for which no
discretion exists that could create or avoid environmental impacts.
b. Categorical Exemptions. Pursuant to Section 15300 of the CEQA guidelines,
categorical exemptions are classes of projects determined not to have a significant
effect on the environment which are therefore exempt. No clarifications or additions
are necessary to Sections 15260 to 15285 and Sections 15300 to 15332 other than to
specify that preliminary design work for capital improvement projects in the city and
lot line adjustments (that do not increase density or intensity of use), within prescribed
parameters, fall within Class 5, Section 15305 of the guidelines.
c. General Rule Exemptions. In addition to all other statutory exemptions provided
for in the Public Resources Code and state CEQA guidelines including ministerial
projects and categorically exempt projects pursuant to Section 15061(b)(3) of the
CEQA guidelines, general rule exemptions are defined as projects "where it can be
seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment, the activity is not subject to CEQA." The
following are specific actions considered not to have a significant effect pursuant to
this provision:
i. Minor zone or municipal code amendments that do not involve physical
modifications, lead to physical improvements beyond those typically exempt, or
which refine or clarify existing land use standards; and
ii. Projects that are not specifically listed as categorical or statutory
exemptions but exhibit characteristics similar to one or more specific
exemptions.
Jan. 28, 2025 Item #5 Page 10 of 34
B. Determination procedures. Preliminary determinations as to whether a statutory, categorical
or general rule exemption is warranted are made by the City Manager, or designee, prior to or
concurrent with notice of a complete application. Prior to project approval, the City Manager, or
designee, shall prepare a notice of exemption, which shall be placed in the project file and be
available for public review. Prior to final action by the decision-making body on the project, the
notice of exemption shall be reviewed and certified by the appropriate decision-makers as part of the
approval action. Written findings supporting the determination on the environmental status and shall
be considered prior to approval of the project and be included on the notice of exemption.
C. Exceptions. Even though a project may otherwise be eligible for an exemption, no exemption
shall apply in the following circumstances:
1. Grading and clearing activities affecting sensitive plant or animal habitats, which disturb,
fragment or remove such areas as defined by either the California Endangered Species Act
(Fish and Game Code Sections 2050 et seq.), or the federal Endangered Species Act of 1973
(16 U.S.C. Section 1531 et seq.); sensitive, rare, candidate species of special concern;
endangered or threatened biological species or their habitat (specifically including sage scrub
habitat for the California Gnatcatcher); or archaeological or cultural resources from either
historic or prehistoric periods; or
2. Parcel maps, plot plans and all discretionary development projects otherwise exempt
but which affect sensitive, threatened or endangered biological species or their habitat (as
defined above), archaeological or cultural resources from either historic or prehistoric periods,
wetlands, stream courses designated on U.S. Geological Survey maps, hazardous materials,
unstable soils or other factors requiring special review, on all or a portion of the site.
7. That Title 19, Chapter 19.04, Section 19.04.080 of the Carlsbad Municipal Code is deleted.
§ 19.04.080 Reserved.
8. That Title 19, Chapter 19.04, Section 19.04.090 of the Carlsbad Municipal Code is amended
to read as follows:
§ 19.04.090 Initial study.
A. The responsible city department or a private applicant for a city entitlement shall submit to the
City Planner a completed environmental impact assessment form and supporting environmental
studies as an aid in evaluating environmental impacts.
B. The City Planner, with assistance from city departments or unit, however titled, shall review
each project for which an initial study form has been filed. Such requests for assistance shall be
promptly responded to. If the City Planner makes a preliminary determination that the project is not
Jan. 28, 2025 Item #5 Page 11 of 34
exempt from CEQA, the City Planner shall conduct an initial study to determine if the project may
have a significant effect on the environment and determine the appropriate level of environmental
review necessary.
C. If it is determined that the project will have no significant impact on the environment, the City
Planner shall prepare a negative declaration.
D. If identified significant effects on the environment can be mitigated so that the project will have
no significant effect on the environment, the City Planner may, with the applicant's agreement, by
imposition of appropriate project conditions, agreements or other measures, including, but not
limited to, revision or redesign of the project, require the mitigation of these effects. A mitigated
negative declaration may then be issued for the project provided, however, that no step or element
of the project which may have a significant effect on the environment may be satisfied or carried out
unless the conditions intended to mitigate that effect have been implemented or assurances have
been provided that the condition will be carried out and enforced.
E. Except as otherwise provided in subsection D of this section, if it is determined that a project
may have a significant impact on the environment, the City Planner shall prepare or cause to be
prepared an EIR according to the requirements of CEQA.
9. That Title 19, Chapter 19.04, Section 19.04.100 of the Carlsbad Municipal Code is amended to
read as follows:
§ 19.04.100 Noticing of negative declarations and mitigated negative declarations.
The City Planner shall prepare a notice of intent to adopt a negative declaration or a mitigated
negative declaration when he or she finds, after the required initial study, that the project qualifies
for a negative declaration or a mitigated negative declaration under the provisions of CEQA. The
notice shall include a statement stipulating that comments on the environmental document from the
public are encouraged. Notice of intent to adopt a negative declaration or a mitigated negative
declaration shall be given in accordance with Sections 15072, 15205, and 15206 of the CEQA
guidelines. Early tribal consultation is also required pursuant to Public Resources Code Sections
21080.3.1 and 21080.3.2.
10. That Title 19, Chapter 19.04, Section 19.04.110 of the Carlsbad Municipal Code is amended
to read as follows:
§ 19.04.110 Reserved.
11. That Title 19, Chapter 19.04, Section 19.04.120 of the Carlsbad Municipal Code is amended
to read as follows:
Jan. 28, 2025 Item #5 Page 12 of 34
§ 19.04.120 Preparation of environmental impact report.
A. If the City Planner determines that an environmental impact report is required for a project, the
City Planner shall immediately send a notice of preparation (NOP) to all parties as provided in Public
Resources Code Section 21080.4 or any successor statute and Sections 15082, 15083, 15086 and
15375 of the CEQA guidelines. Early tribal consultation is also required pursuant to Public Resources
Code Sections 21080.3.1 and 21080.3.2. The City Planner shall cause the NOP to be sent to all
property owners within 600 feet of the perimeter of the subject site. Additionally, the City Planner
may send the NOP to all persons or organizations that he or she believes may have an interest in the
proposed project or related issues. Notices for projects with potential impacts of regional significance
shall be sent to adjacent cities. Notice of preparation shall also be given by publishing once in a
newspaper of general circulation in the area where the project is located and mailing to all persons
who have previously requested such notice. All notices of preparation shall be posted in conspicuous
places accessible to the public as determined by the City Planner, shall be sent to the City Clerk and
county clerk to be posted for a period of at least 30 days and shall be sent to the State Clearinghouse
when appropriate.
B. The City Planner shall provide public notice of availability of a draft EIR in accordance with CEQA
guidelines Section 15087 and Public Resources Code Section 21092 concurrent with the notice of
completion is filed. Copies of the draft EIR may be submitted for comment to any agencies and
persons that the City Planner determines to be necessary. The draft report shall be mailed to the
applicant and a copy shall be available to the public in the planning division. A copy shall also be
furnished and made available to both public libraries until filing of the notice of determination by the
city.
C. At the same time, a notice of availability shall be posted in conspicuous places accessible to the
public as determined by the City Planner and City Clerk.
D. In addition to the notice required by state law, the City Planner may require any additional
notice deemed necessary for the project and shall assess the cost to the applicant.
12. That Title 19, Chapter 19.04, Section 19.04.140 of the Carlsbad Municipal Code is amended
to read as follows:
§ 19.04.140 Public Hearing.
Any time a public hearing is held on the decision to carry out or approve a project, the decision-
making body shall also consider the CEQA issues. Notice of the hearing shall be given as provided in
Section 21.54.060(A) of this code. At the hearing, the city board or commission or City Council shall
hear staff comments on the notice of exemption or environmental document and may refer it back to
staff for further investigation, information and analysis and/or for the inclusion of additional material
if the decision-making body determines such to be necessary for a full and complete determination to
Jan. 28, 2025 Item #5 Page 13 of 34
be made. The City Planner shall supplement the notice of exemption or environmental document if
any significant points are raised at the hearing which have not previously been addressed. Copies of
all environmental documents shall be made available for public review at the planning division.
13. That Title 19, Chapter 19.04, Section 19.04.140 of the Carlsbad Municipal Code is amended
to read as follows:
§ 19.04.170 Appeals.
A. Any challenge to the adequacy of a decision by the Planning Commission on an environmental
decision under this chapter may be appealed to the City Council in accordance with the procedures
set forth in Title 21, Chapter 21.54, Section 21.54.150.
B. Notice of the hearing on appeal before the City Council shall be sent by first class mail to the
applicant and to the appellant.
C. Pending resolution of a timely appeal, decision on the project shall be stayed and no approval,
lease, permit, license, certificate, or entitlement may be issued and no work may proceed. Required
time limits to hear or act on any appeal of the CEQA clearance or the approval or appeal of any
related project approvals shall automatically be extended as necessary to comply with this chapter.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City
Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a
summary of the ordinance prepared by the City Attorney to be published at least once in a
newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption.
Jan. 28, 2025 Item #5 Page 14 of 34
INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the ___ day
of __________, 2025, and thereafter
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the __ day of ________, 2025, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
APPROVED AS TO FORM AND LEGALITY:
_________________________________
CINDIE K. McMAHON, City Attorney
_______________________________________
KEITH BLACKBURN, Mayor
_______________________________________
SHERRY FREISINGER, City Clerk
(SEAL)
Jan. 28, 2025 Item #5 Page 15 of 34
Community Development Department | 1635 Faraday Ave. | Carlsbad, CA 92008 | www.carlsbadca.gov
CALIFORNIA ENVIRONMENTAL
QUALITY ACT IB-150
The California Environmental Quality Act (CEQA) is one of
the most important state environmental protection laws
affecting project-related processing and decision-making
in the public sector. CEQA is an evolving policy that has
been updated by the state legislature and interpreted
by the courts many times over the years. As CEQA is
mainly a process, this Info-Bulletin outlines the city’s
processing requirements and CEQA’s role in
development. Visit our CEQA Website to review the
different city documents referenced in the bulletin.
BACKGROUND
The California Environmental Quality Act, which
became law in 1970, is our state’s landmark
environmental law. CEQA applies to all discretionary
actions undertaken or funded by a public agency. Its
basic purpose has been to foster transparency and
integrity in public decision-making so that
consideration is given to preventing or minimizing
damage public decisions may have on the environment
before the action is approved or carried out. CEQA’s
fundamental goals are relatively basic:
•Disclose the potential significant adverse impacts of
a project to the public and decision-making body.
•Prevent or minimize damage to the environment
through project alternatives and mitigate significant
impacts when feasible.
•Offer opportunities for the public and other
agencies to become involved in the review process.
•Require decision-makers to consider the balance
between development and the environment.
While there are several elements and components to
CEQA that help determine whether a project may
adversely impact the environment and what
requirements need to be met if impacts are identified,
CEQA regulatory authority essentially comes from two complimentary state code sections.
CEQA STATUTE
CEQA’s legislative authority is imbedded within Public
Resources Codes (PRC) §21000 – 21006 and sets forth
the overarching regulation and policy for environmental
review and protection. This is referred to as CEQA
statute.
CEQA statute does not directly regulate land uses, but it
codifies a statewide requirement that all state and local
agencies must make environmental review a mandatory
part of the decision-making process in regulating public
and private activities.
CEQA GUIDELINES
CEQA Guidelines, which are periodically updated by the
Governor’s Office of Planning & Research (OPR) and the
California Natural Resources Agency (CNRA), are state
administrative regulations that public agencies follow in
order to show compliance with CEQA statute, applicable
court decisions, and practical planning considerations.
The regulatory authority for the guidelines is found in
the CA Code of Regulations (CCR) §15000 - 15387, which
set forth the steps on how to determine whether an
activity is subject to environmental review, what steps
are involved in the environmental review process, and
the required content of environmental documents.
Exhibit 2
Jan. 28, 2025 Item #5 Page 16 of 34
Page 2 of 7 IB-150_CA Environmental Quality Act (January 2025)
CARLSBAD ENVIRONMENTAL PROCEDURES
The city adopted §19.04, which establishes the
procedures for evaluating the environmental impacts of
public and private projects and for administering the
city’s responsibility under CEQA. This chapter follows
CEQA statute and supplements state CEQA guidelines.
BASIC ELEMENTS OF CEQA REVIEW
CEQA is not a permit, and it does not grant cities any
new powers to regulate property. CEQA is a process through which public agencies, project developers,
and general public must evaluate a project,
understand its environmental impacts, and develop
measures to reduce those impacts which must be
publicly vetted before a decision can be made. And as
with any process, there are steps that must be followed.
ONLY “PROJECTS” ARE SUBJECT TO CEQA
When the term “CEQA review” is used, visions of
technical studies and detailed analysis often come to
mind. In actuality, however, there are a number of city
actions and activities that are either exempt from, or
otherwise do not require review under CEQA.
Before initiating any environmental review, the city must
first determine whether the action or activity being
considered even requires review under CEQA. City
actions and activities requiring review pursuant to CEQA
are referred to as a “project.” Sections §21065, §15378,
and §15060(c)(3) provide definitions, but generally, a
CEQA project includes any action taken by a public
agency where discretion is applied and if approved, the
action has the potential to cause one of the following:
• A direct physical change in the environment; or,
• A reasonably foreseeable indirect physical change in
the environment.
CERTAIN PROJECTS ARE EXEMPT FROM CEQA
If the action is found to be a project, the city then
determines whether the project is exempt under CEQA,
which there are three types of exemptions to consider.
• Statutory Exemptions
Statutory exemptions are written and adopted by
the state legislature (§21080) and found in CEQA
Guidelines §15260-15285. They are absolute,
meaning that if a project falls under a statutory
exemption, there are no exceptions and the project's
environmental review and CEQA compliance
requirements are complete. Common statutory
exemptions include the following:
o Ministerial (building) permits (§15268)
o Business licenses (§15268)
o Feasibility & planning studies (§15262)
o Emergency projects following disaster (§15269)
o Approval of new permit fees (§15273)
• Categorical Exemptions
Categorical exemptions are developed by the CNRA,
authorized under state law (§21084) and found in
CEQA Guidelines (§15300-15333), with the following
being the most applied.
o In-fill development (§15332)
o Leasing agreements (§15301)
o Minor alteration to land (§15304)
o Minor alteration of existing structures (§15301)
o Minor land divisions (§15315)
However, unlike statutory exemptions that are
absolute, a project that falls within a categorical
exemption may still not be exempt from CEQA under
the following conditions:
o Reasonable possibility of a significant effect on
the environment due to unusual circumstances;
o Significant cumulative impacts from projects of
the same type will result; or
o The project will have impacts on a “uniquely
sensitive environment.”
Regarding the above third condition, city code
(§19.04.070.B) provides specificity on what qualifies
as “uniquely sensitive environment” such as impacts
to sensitive, rare, endangered, or threatened
habitat, wetlands, hazardous materials,
archaeological or cultural resources, or other factors
requiring special review.
Jan. 28, 2025 Item #5 Page 17 of 34
IB-150_CA Environmental Quality Act (January 2025) Page 3 of 7
• Common Sense Exemptions
Common Sense Exemptions (§15061(c)) apply only
to projects where it can be seen with certainty that
there is no possibility that the activity in question may have a significant effect on the environment.
INITIAL STUDY
If the project does not fall under an exemption, the city
then undertakes an “initial study” to determine what
type of environmental document is needed to support
the continued processing of the application. An initial
study is a preliminary analysis comprised of a series of
questions prepared by the “lead agency” (typically, the
city) to determine if the project may have a significant
impact on the specified environmental resource, thereby
requiring mitigation measures or project changes in
order to reduce the impacts to a level of less than
significant (PRC §21080(c); Guidelines §15063–15065)
Generally, the city utilizes the initial study template
found in Appendix G (Environmental Checklist Form) of
the CEQA Guidelines to assist city staff with the
preparation and analysis of environmental documents.
Included in the checklist are environmental issues
presented in the form of questions that are intended to
identify the potential impacts of proposed projects.
In terms of addressing potentially significant adverse
impacts, the impact threshold questions provided in
Appendix G may be used as guidelines to determine the
level of significance for any given impact, provided that
they are relevant to a project's environmental effects
and supplemented as necessary to address additional
environmental effects specific to the proposed project,
the project site, and its surroundings.
The preparation of the initial study should be based on a
comprehensive project description, initial research, site
visit, technical studies (if determined necessary), and
other available and relevant documentation.
GUIDELINES FOR DETERMINING SIGNIFICANCE
To assist in determining whether a specific impact is
significant under CEQA, public agencies are encouraged
to develop administrative guidance often referred to as
thresholds of significance. Thresholds help establish a
clear bright line or standard for when a city determines
an impact is significant under CEQA. That is, a threshold for a given environmental impact defines the level above
which the city will normally consider impacts to be
significant, and below which it will normally consider
impacts to be less than significant.
Thresholds may be defined either as quantitative or
qualitative standards, or sets of criteria, whichever is
most applicable to each specific type of environmental
impact. For example, quantitative criteria are often
applied to traffic, air quality, and noise impacts, while
aesthetic impacts are typically evaluated using
qualitative thresholds.
A city may gather and apply thresholds of significance
from a variety of places including, but not limited to,
general plan policies, ordinances, resolutions, other
agencies’ thresholds, and industry standards. Often
thresholds change in response to CEQA case law;
refinement of recognized scientific analysis of impact
thresholds; or changes in federal, state, and local
regulations. In some cases, a city may utilize project-
specific significance thresholds.
For Carlsbad, the city developed and maintains
significance determination thresholds, which provide
general technical guidance in evaluating the potential
significance of a project’s impact on each environmental
issue listed in the Environmental Checklist Form.
Jan. 28, 2025 Item #5 Page 18 of 34
Page 4 of 7 IB-150_CA Environmental Quality Act (January 2025)
SCREENING CRITERIA
In another method similar to creating significance
thresholds, public agencies are encouraged to develop
“screening criteria” to help quickly and easily screen out
projects that are likely not to cause significant
environmental impacts. The city has developed and
maintains screening criteria for a few resources.
Projects that meet established screening criterion are
presumed to not have a significant environmental impact
on a particular environmental resource and therefore do
not require additional mitigation. In some cases,
applicants may need to prepare an analysis to prove that
their project meets established screening criteria.
Projects that do not meet the screening criteria may be
required to complete additional analysis (technical
studies) and compare the findings with the appropriate
threshold of significance and mitigate the impacts
accordingly.
TECHNICAL STUDIES
Technical studies are often required to assist in
preparing the initial study, or to determine and
document whether a project has a less than significant
impact. These studies may be prepared by staff or an outside consultant. If prepared by a consultant, the study
shall be reviewed by city staff, or a third-party consultant
hired by the city.
To help ensure the quality, accuracy, and completeness
of technical reports and increase the efficiency of the
environmental review process and avoid unnecessary
time delays, the city encourages consultants to follow
the Report Format and Content Requirements for each
study type as established by the County of San Diego.
PREVENTING ENVIRONMENTAL DAMAGE
If potential adverse environmental impacts are
identified, the CEQA process next attempts to identify
ways to prevent or reduce these impacts to a level of less
than significant by requiring consideration of mitigation
measures. Pursuant to CCR §15370, mitigation includes:
o Avoiding the impact altogether by not taking a
certain action or parts of an action.
o Minimizing impacts by limiting the degree or
magnitude of the action and its implementation.
o Rectifying the impact by repairing, rehabilitating, or
restoring.
o Reducing or eliminating the impact over time by preservation and maintenance operations during
the life of the action.
o Compensating for the impact by replacing or
providing substitute resources or environments.
Project revisions may also be utilized to reduce impacts,
with changes in design, location, operations, or scope.
Effective project revisions will achieve any or all of the
above objectives. In reaching its conclusions, the city
must use its own independent and objective judgment,
based on the information before it, to determine that
"clearly no significant effect on the environment would
occur" (PRC §21064.5).
Further, there must be evidence in the record as a whole
to support the conclusion that the level of mitigation or
project revision sufficiently avoids or eliminates a
potential significant effect. Upon approval, the city must
also adopt a mitigation monitoring or reporting program
(CCR §15097).
Jan. 28, 2025 Item #5 Page 19 of 34
IB-150_CA Environmental Quality Act (January 2025) Page 5 of 7
TYPES OF CEQA DOCUMENT PREPARED
Following completion of the initial study, the public
agency then must determine what type of environmental
document to prepare. CCR §15063, 15365; PRC
§21080.1, 21080.3
o Negative Declaration (ND)
This document is used for projects that will not
result in any significant impact on the environment.
CCR §15071
o Mitigated Negative Declaration (MND)
This document is reserved for projects where
specified mitigation measures are necessary in
order to reduce the impacts to a level of less than
significance. CCR §15071
o Environmental Impact Report (EIR)
This document is often reserved for projects that
cannot fully mitigate their impacts to a level of less
than significance. In order to approve the project,
the city must find, supported by substantial
evidence, that the economic and social benefits of
the project override any significant environmental
impacts that would result from the project,
commonly referred to as a Statement of Overriding
Consideration. PRC §21100/CCR §15120
Ordinarily, only one ND, MND, or EIR is prepared for a
project. Once a project has been approved, the public
agency’s role is completed, unless further discretionary
approval on that project is required.
Altered conditions, changes, or additions to the
description of a project (or subsequent discretionary
approvals) that occur after ND, MND, or EIR adoption
may require additional analysis under CEQA or the public
agency may determine that no further environmental
review required.
KEY CEQA PROCESSING TIMELINES
Most permit processing timelines are driven by statute.
The section below highlights the most common
deadlines, but for more information on the entire
process flows for discretionary permits, refer to the
Community Development Department’s Permit &
Service Delivery Guide.
STARTS WITH A COMPLETE APPLICATION
The Permit Streamlining Act (CCR §65920 et seq) was
enacted in 1977 in order to expedite the processing of
permits for development projects by imposing time
limits within which local agencies must either approve or disapprove permits. Once an application is submitted,
the city has 30 days to inform the applicant whether the
application is complete (CCR §15060(a), 15101).
If incomplete, the applicant addresses the deficiencies
and then resubmits the application, which starts a new
30-day review period. If the agency fails to inform the
applicant within the 30-day period, the application is
"deemed complete" (CCR §65943) and the city is limited
in requesting any new information from the applicant.
Environmental processing commences after a
development application is determined to be complete
for processing and the permit applicant provides the
necessary reports, studies, and documents required for
environmental review.
Jan. 28, 2025 Item #5 Page 20 of 34
Page 6 of 7 IB-150_CA Environmental Quality Act (January 2025)
TIMELINES FOR EXEMPTIONS
For projects that are eligible for a statutory, categorical,
or common-sense exemption.
• The project must be presented for decision within
60 days from date application is deemed complete.
• The Notice of Exemption (NOE) must be publicly
posted for five business days and appealed within
ten calendar days of the City Planner’s decision.
• The exemption determination and relevant findings
shall be made part of the recitals within the
approving resolution/ordinance that is prepared for discretionary permit/action.
• The NOE is filed with the County Clerk within five
days following approval of the project. A timely
filed NOE establishes a 35-day statute of limitations
for challenging project approvals that are deemed
exempt, starting from the date the project was
approved. NOEs not timely filed extends the legal
filing period to 180 days.
TIMELINES FOR NEGATIVE DECLARATIONS
For projects that require a negative declaration (ND) or
mitigated negative declarations (MND).
• The ND or MND must be completed and presented
for decision within 180 days from the date when
the city finds the application complete. Timelines
may be longer depending on the timeliness of
submittals and resubmittals (§15109).
• Notice of Intent to Adopt must be posted for 20/30
days. Review and consultation period must be at
least 20 days. Review period extended when
ND/MND sent to state clearinghouse.
• Unlike exemptions, the decision-making authority
for the discretionary permit/action considers and
approves the ND or MND as part of their decision
on the discretionary permit and/or action.
• The environmental determination, relevant
findings, and required mitigation/monitoring shall
be incorporated into a separate approving resolution and/or ordinance.
• In the staff report, the resolution on the
environmental determination shall be listed first,
followed by the resolution and/or ordinance
approving the project. The decision-maker can
approve both actions simultaneously.
• The Notice of Determination (NOD) must be filed
with the County Clerk within five days following
approval of the project. A timely filed NOD
establishes a 35-day statute of limitations for
challenging project approvals that are deemed
exempt, starting from the date the project was
approved. NOEs not timely filed extends the legal
filing period to 180 days.
TIMELINES FOR ENVIRONMENTAL IMPACT
REPORT
Projects requiring an Environmental Impact Report (EIR).
• An EIR must be completed and certified within 365
days of application completeness. Timelines may be
longer depending on the timeliness of submittals
and resubmittals (CEQA Guidelines 15109)
• Prepare/complete the Initial Study, determine
EIR required, and release a Notice of Preparation
(NOP). The NOP must be issued within 30 days of
determination and specify project.
• Notice of Completion to be filed with state
clearinghouse.
• Public review: Notices sent to affected agencies,
surrounding property owners, and requesting
individuals.
Jan. 28, 2025 Item #5 Page 21 of 34
IB-150_CA Environmental Quality Act (January 2025) Page 7 of 7
• Review and consultation period must be at least 30
days, 45 days when submitted to state
clearinghouse.
• Final EIR. Certification prior to project approval and
within one year from complete application
• Findings and Statement of Overriding Consideration
needed for approvals with remaining unmitigated
significant effects.
• EIR Notice of Determination to be filed within five
days of project approval.
• Statute of Limitations to challenge an EIR is 30 days.
Notwithstanding, city procedures provide that the time
limit to complete and approve, adopt, or certify the
environmental document may be extended once for not
more than 90 days upon consent of the applicant.
PUBLIC ENGAGEMENT
As previously noted, CEQA’s basic purpose has been to
foster transparency and integrity in public decision-
making so that consideration is given to minimizing
damage public decisions may have on the environment
before the action is approved or carried out. As such,
there are opportunities for the public to comment.
PUBLIC NOTICING
Public involvement starts when an application is filed
with the city and residents within 600 feet of the
project are notified. Any public comments following
that initial notification are used to help determine
what environmental impacts will be studied and what
type of environmental document will be needed. For
NDs, MNDs, and EIRs, there is a formal comment
period after the initial environmental document is
circulated, where the public is given an opportunity to
review and comment on the city’s environmental
findings and determinations.
PUBLIC HEARINGS
There are hearings, sometimes during and always
after the public comment period. Public hearing notice
requirements are covered by Government Code sections
§65090 and §65091. The possible approval, adoption, or
certification of the environmental assessment for NDs,
MNDs, and EIRs will be announced as part of the public
hearing notice provided for the discretionary action(s)
required for project approval. The public is invited to be
a part of this decision-making process.
DECISION-MAKING BODY DELIBERATIONS
Before making its decision whether
to carry out the proposed project,
the decision-making body (i.e.,
Planning Commission or City
Council) needs to independently
review and consider all relevant
documents, reports, studies, or
other materials that comprise the full environmental
assessment of the project. The decision-maker must also
review and consider all written and oral evidence
submitted to the city in connection with the
environmental assessment and the proposed project
itself. The decision-making body should not approve a
project as proposed if there are feasible
alternatives/mitigation measures available which would
substantially lessen the environmental effects or unless
specific economic, social, or other conditions make the
project alternatives or mitigation measures infeasible,
and specific findings of overriding considerations have
been made per CEQA.
APPROVING PROJECTS WITH IMPACTS
Although the State Legislature established policies
concerning the maintenance of a quality environment
and control of environmental pollution, the city also has
obligations to balance public objectives, including
economic and social factors, in determining whether and
how a project should be approved, conditionally
approved, or denied. In that regard, the decision-making
body may balance environmental objectives with
economic/social objectives in arriving at a final decision
by weighing any adverse environmental effects against
any positive effects/benefits to the public which could
result from the proposed project.
YOUR OPTIONS FOR SERVICE
Please contact the Planning Division at 442-339-2600 or
via email at Planning@carlsbadca.gov for more
information about environmental review and processing.
Jan. 28, 2025 Item #5 Page 22 of 34
Exhibit 3
City of Carlsbad
Proposed Municipal Code Amendments to Chapter 19.04
The following represents proposed amendments to Chapter 19.04 in track change format, with strikeout
typeface (i.e. strikeout) illustrating deletions and underline typeface (i.e. underline) illustrating new text. A
clean copy of the proposed changes is provided in the draft ordinance, found in Exhibit 1.
§ 19.04.030 City planner responsibilities.
A. Unless otherwise specified in this code, Tthe City Planner, or designee, is responsible for the general
administration and implementation of this chapter. Whenever any notices, reports or documents are required
or permitted to be filed, the City Planner shall be responsible for such filing unless otherwise provided in this
title. Whenever this chapter or CEQA requires the city to make a determination or perform an act, and the
person or body to make the determination or perform the act is not specified, then the City Planner shall have
that responsibility, subject to appeal to the Planning Commission and City Council. The City Planner shall be
responsible for the preparation of any environmental impact report ("EIR"), negative declaration, mitigated
negative declaration or other related environmental documents required by this chapter.
B. The City Planner may require an applicant for a city entitlement for any private project to submit data
and information which may be necessary to determine whether the proposed project may have a significant
effect on the environment prior to accepting the application as complete.
C. The City Planner, with the approval of the City Manager, may enter into a contract with a private
consultant(s) to prepare or review all studies, reports, and other documents required or permitted by CEQA,
the CEQA Guidelines, or other applicable laws or regulations, including those studies, reports, or other
documents submitted by the project proponent or any other party. In all cases, the consultant shall enter into
a contract with and shall be responsible directly to the city. All services shall be performed to the satisfaction
of the City Manager, or designee. The cost for such consultant(s) shall be paid in advance of work performed,
by the applicant. The applicant shall have no direct contact with the consultant unless approved by the City
Planner or designee upon advice from the City Attorney. The consultant shall not be an employee or affiliate of
the applicant.
CD. The City Planner may request assistance from any city department or unit, however titled, other
governmental entities or the public as determined to be necessary to carry out these responsibilities. Such
requests for assistance shall be promptly responded to.
DE. Prior to completing a negative declaration, mitigated negative declaration or draft EIR, the City Planner
may consult directly with any person or organization the City Planner believes will be concerned with the
environmental effects of the project.
EF. If the City Planner determines that a project is to be carried out or approved by one or more public
agencies in addition to the city, the City Planner shall first determine which entity will be the lead agency.
FG. Whenever the city is a responsible agency, the City Planner shall provide the information and
responses to the lead agency which the City Planner deems necessary in order to comply with the statutory
responsibilities of a responsible agency.
Jan. 28, 2025 Item #5 Page 23 of 34
§ 19.04.040 Board and Planning Ccommission responsibilities.
A. For projects for which When a city board or the Planning Ccommission is the final decision-making
body for a project, except for the possibility of appeal, it is the responsibility of the board or the Planning
Ccommission to make an environmental decision prior to approving, conditionally approving, or denying the
project as described in the CEQA decision for the project. The environmental decision of the board or
commission shall be final unless appealed to the city council in accordance with this Chapter. hold a hearing on
and adopt or disapprove adoption of a negative declaration or a mitigated negative declaration or to certify by
resolution that an EIR is completed pursuant to CEQA.
B. For projects for which When the City Council is the final decision-making body for a project, but
requiring a city board or the Planning Ccommission review of the project is required, it is the responsibility of
the city board or Planning Ccommission to make a recommendation to the city council regarding the
environmental decision, in accordance with CEQA, and make a recommendation regarding whether the project
should be approved, conditionally approved, or denied. forward the final environmental document to the City
Council with a recommendation for City Council action.
§ 19.04.050 City Council responsibilities.
Unless the City Planner or the Planning Commission a city official, city board or commission is the final
decision-making body for a project, it is the responsibility of the City Council to hold a hearing on and make an
environmental decision in accordance with CEQA prior to approving, conditionally approving, or denying the
project. adopt a negative declaration or mitigated negative declaration or to certify, by resolution, a final EIR
for the project.
§ 19.04.060 Determination of exemption and exception. Reserved.
The City Planner shall determine whether a private or public project is a ministerial project and, if not, whether
it is exempted from the requirements of this chapter. The City Planner's determinations of exempt projects
made according to this section shall be posted weekly for five business days in conspicuous places accessible to
the public as determined by the City Planner. The City Planner shall also determine whether a private or public
project is excepted from the exemptions in the state CEQA guidelines or this title, in which case the applicant
will be notified in writing of the City Planner's determination. Any determination may be appealed as provided
in Title 21, Chapter 21.54, Section 21.54.140 of this code.
§ 19.04.070 Exemption procedures.
A. The following sections implement Section 15300.4 of the CEQA guidelines which requires the city to list
those specific activities which fall within each of the following exempt classes:
1. Statutory Exemptions. Pursuant to Section 15260, statutory exemptions are those projects that the
legislature has determined should be exempted from CEQA and which are found in various state
statutes. These include ministerial projects, categorical exemptions and general rule exemptions.
a. Ministerial Projects. Pursuant to Section 15369 of the CEQA guidelines, ministerial projects
are those that involve little or no personal judgment by the public official as to the wisdom or
manner of carrying out the project. They involve the use of fixed standards or objective
measurements. Projects in the city specifically deemed to be ministerial include all post-approval
submittals in substantial conformance with the approval. Post-approval submittals include
Jan. 28, 2025 Item #5 Page 24 of 34
certified tentative subdivision maps, final maps, grading, landscape and improvement plans,
CC&Rs and building plans. Other ministerial projects include final inspections, issuance of licenses,
utility service connections and disconnections, city ordered brush clearance of nonsensitive areas
in accordance with City of Carlsbad procedures and other similar actions for which no discretion
exists that could create or avoid environmental impacts.
b. Categorical Exemptions. Pursuant to Section 15300 of the CEQA guidelines, categorical
exemptions are classes of projects determined not to have a significant effect on the environment
which are therefore exempt. No clarifications or additions are necessary to Sections 15260 to
15285 and Sections 15300 to 15332 other than to specify that preliminary design work for capital
improvement projects in the city and lot line adjustments (that do not increase density or intensity
of use), within prescribed parameters, fall within Class 5, Section 15305 of the guidelines.
c. General Rule Exemptions. In addition to all other statutory exemptions provided for in
the Public Resources Code and state CEQA guidelines including ministerial projects and
categorically exempt projects pursuant to Section 15061(b)(3) of the CEQA guidelines, general rule
exemptions are defined as projects "where it can be seen with certainty that there is no possibility
that the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA." The following are specific actions considered not to have a significant effect
pursuant to this provision:
i. Minor zone or municipal code amendments that do not involve physical modifications,
lead to physical improvements beyond those typically exempt, or which refine or clarify
existing land use standards; and
ii. Projects that are not specifically listed as categorical or statutory exemptions but
exhibit characteristics similar to one or more specific exemptions.
B. Determination procedures. Preliminary determinations as to whether a statutory, categorical or
general rule exemption is warranted are made by the City Manager, or designee, prior to or concurrent with
notice of a complete application. Prior to project approval, the City Manager, or designee, shall prepare a
notice of exemption, which shall be placed in the project file and be available for public review. Prior to final
action by the decision-making body on the project, the notice of exemption shall be reviewed and certified by
the appropriate decision-makers as part of the approval action. Written findings supporting the determination
on the environmental status and shall be considered prior to approval of the project and be included on the
notice of exemption.
BC. Exceptions. Even though a project may otherwise be eligible for an exemption, no exemption shall
apply in the following circumstances:
1. Grading and clearing activities affecting sensitive plant or animal habitats, which disturb, fragment
or remove such areas as defined by either the California Endangered Species Act (Fish and Game
Code Sections 2050 et seq.), or the federal Endangered Species Act of 1973 (16 U.S.C. Section 1531 et
seq.); sensitive, rare, candidate species of special concern; endangered or threatened biological species
or their habitat (specifically including sage scrub habitat for the California Gnatcatcher); or
archaeological or cultural resources from either historic or prehistoric periods; or
2. Parcel maps, plot plans and all discretionary development projects otherwise exempt but which
affect sensitive, threatened or endangered biological species or their habitat (as defined above),
archaeological or cultural resources from either historic or prehistoric periods, wetlands, stream courses
Jan. 28, 2025 Item #5 Page 25 of 34
designated on U.S. Geological Survey maps, hazardous materials, unstable soils or other factors requiring
special review, on all or a portion of the site.
§ 19.04.080 Appeal on determinations of exemptions or exceptions. Reserved.
A. The determinations made according to Section 19.04.070 are final unless appealed to the Planning
Commission pursuant to the procedures set forth in Title 21, Chapter 21.54, Section 21.54.140 of this code.
B. Notice of hearing on appeal before the Planning Commission shall be sent by first class mail to the
applicant and to the appellant.
§ 19.04.090. Initial study.
A. The responsible city department or a private applicant for a city entitlement shall submit to the City
Planner a completed environmental impact assessment form and supporting environmental studies as an aid
in evaluating environmental impacts.
B. The City Planner, with assistance from city departments or unit, however titled, shall review each
project for which an initial study form has been filed. Such requests for assistance shall be promptly responded
to. If the project is not categorically exempt the City Planner makes a preliminary determination that the
project is not exempt from CEQA, the City Planner shall conduct an initial study to determine if the project may
have a significant effect on the environment and determine the appropriate level of environmental review
necessary.
C. If it is determined that the project will have no significant impact on the environment, the City Planner
shall prepare a negative declaration.
D. If identified significant effects on the environment can be mitigated so that the project will have no
significant effect on the environment, the City Planner may, with the applicant's agreement, by imposition of
appropriate project conditions, agreements or other measures, including, but not limited to, revision or
redesign of the project, require the mitigation of these effects. A mitigated negative declaration may then be
issued for the project provided, however, that no step or element of the project which may have a significant
effect on the environment may be satisfied or carried out unless the conditions intended to mitigate that
effect have been implemented or assurances have been provided that the condition will be carried out and
enforced.
E. Except as otherwise provided in subsection D of this section, if it is determined that a project may have
a significant impact on the environment, the City Planner shall prepare or cause to be prepared an EIR
according to the requirements of CEQA.
§ 19.04.100 Mailing of negative declaration on request Noticing of negative declarations and mitigated
negative declarations.
The City Planner shall prepare a notice of intent to adopt a negative declaration or a mitigated negative
declaration when he or she finds, after the required initial study, that the project qualifies for a negative
declaration or a mitigated negative declaration under the provisions of CEQA. The declaration notice shall
include a statement stipulating that comments on the environmental document from the public are
encouraged. Notice of intent to adopt a negative declaration or a mitigated negative declaration shall be given
in accordance with Sections 15072, 15205, and 15206 of the CEQA guidelines. Early tribal consultation is also
required pursuant to Public Resources Code Sections 21080.3.1 and 21080.3.2.
Jan. 28, 2025 Item #5 Page 26 of 34
§ 19.04.110 Appeal of negative declaration. Reserved.
A. If the City Planner or the Planning Commission has the authority under this code to approve or deny a
project, the decision to adopt, conditionally adopt or disapprove adoption of a negative declaration or a
mitigated negative declaration is final unless any interested party files an appeal of the negative declaration, as
provided by this code in Title 21, Chapter 21.54, Sections 21.54.140 and 21.54.150.
B. Notice of the hearing on appeal before either the Planning Commission or the City Council shall be
sent by first class mail to the applicant and to the appellant.
§ 19.04.120 Preparation of environmental impact report.
A. If the City Planner determines that an environmental impact report is required for a project, the City
Planner shall immediately send a notice of preparation (NOP) to all parties as provided in Public Resources
Code Section 21080.4 or any successor statute and Sections 15082, 15083, 15086, and 15375 of the CEQA
guidelines. Early tribal consultation is also required pursuant to Public Resources Code Sections 21080.3.1 and
21080.3.2. The City Planner shall cause the NOP to be sent to all property owners within 600 feet of the
perimeter of the subject site. Additionally, the City Planner may send the NOP to all persons or organizations
that he or she believes may have an interest in the proposed project or related issues. Notices for projects with
potential impacts of regional significance shall be sent to adjacent cities. Notice of preparation shall also be
given by publishing once in a newspaper of general circulation in the area where the project is located and
mailing to all persons who have previously requested such notice. All notices of preparation shall be posted in
conspicuous places accessible to the public as determined by the City Planner, shall be sent to the City Clerk
and county clerk to be posted for a period of at least 30 days and shall be sent to the State Clearinghouse
when appropriate.
B. The City Planner, with the approval of the City Manager, may enter into a contract with a private
consultant(s) for the preparation of a draft EIR. The cost for such consultant(s) shall be paid in advance of work
performed, by the applicant. The applicant shall have no direct contact with the consultant unless approved by
the City Planner or designee upon advice from the City Attorney. The consultant shall not be an employee or
affiliate of the applicant.
CB. The City Planner shall provide public notice of availability of a draft EIR in accordance with CEQA
guidelines Section 15087 and Public Resources Code Section 21092 concurrent with the notice of completion is
filed. Copies of the draft EIR may be submitted for comment to any agencies and persons that the City Planner
determines to be necessary. The draft report shall be mailed to the applicant and a copy shall be available to
the public in the planning division. A copy shall also be furnished and made available to both public libraries
until filing of the notice of determination by the city.
DC. At the same time, a notice of completion availability shall be posted in conspicuous places accessible
to the public as determined by the City Planner and City Clerk.
ED. In addition to the notice required by state law, the City Planner may require any additional notice
deemed necessary for the project and shall assess the cost to the applicant.
§ 19.04.140 Public Hhearing.
Any time a public hearing is held on the decision to carry out or approve a project, the decision-making body
shall also consider the CEQA issues. A negative declaration, mitigated negative declaration or EIR shall be
Jan. 28, 2025 Item #5 Page 27 of 34
forwarded to the City Planner, who shall cause the matter to be set for hearing by the appropriate decision-
making body if required. Notice of the hearing shall be given as provided in Section 21.54.060(A) of this code.
At the hearing, the city board or Planning Ccommission or City Council shall hear staff comments on the notice
of exemption or environmental document and may refer it back to staff for further investigation, information
and analysis and/or for the inclusion of additional material if the decision-making body determines such to be
necessary for a full and complete determination to be made. The City Planner shall supplement the notice of
exemption or environmental document if any significant points are raised at the hearing which have not
previously been addressed. Copies of all environmental documents shall be made available for public review at
the planning division.
§ 19.04.170 Appeals of environmental impact report.
A. Any challenge to the adequacy of an EIR certified a decision by the Planning Commission on an
environmental decision under this chapter may be appealed to the City Council in accordance with the
procedures set forth in Title 21, Chapter 21.54, Section 21.54.150.
B. Notice of the hearing on appeal before the City Council shall be sent by first class mail to the applicant
and to the appellant.
C. Pending resolution of a timely appeal, decision on the project shall be stayed and no approval, lease,
permit, license, certificate, or entitlement may be issued and no work may proceed. Required time limits to
hear or act on any appeal of the CEQA clearance or the approval or appeal of any related project approvals
shall automatically be extended as necessary to comply with this chapter.
Jan. 28, 2025 Item #5 Page 28 of 34
Community Development Department | 1635 Faraday Ave. | Carlsbad, CA 92008 | www.carlsbadca.gov
The Housing Challenge
IB-198
The high cost of housing in California, especially in
coastal cities, has been a concern for decades. New
housing built over the past 10 years is only about half
as much as what projections say is needed. This lack
of supply has created greater demand and higher
prices. According to the Public Policy Institute of
California, in 2004, 31% of Californians said housing
was causing a financial strain. By 2019, that number
jumped to 52%, resulting in what many are calling a
statewide housing crisis.
In response, the state legislature has increasingly
flexed its authority and adopted --- and continues to
adopt --- legislation that makes it easier and quicker
for homes to be built, while simultaneously reducing
a city’s ability to say, “no.”
To better understand the housing challenges in
Carlsbad, this info-bulletin will cover the following
topic points.
•Contributing factors behind the housing crisis
•Implications if the housing crisis not addressed
•How the city is accommodating housing needs
•State legislature’s reaction to the housing crisis
•Consequences of ignoring state housing laws
THE HOUSING CRISIS
State of California
California is one of the most populous states in the
nation and home to Silicon Valley technology,
Hollywood movie stars and Napa Valley wines. From
its stunning coastlines to soaring mountains, the
diverse scenery in this state is unlike anything else in
the nation. And the great weather allows folks to
enjoy outdoor amenities pretty much all year round.
But it all comes at a cost.
California’s cost of living is among the highest in the
U.S., hovering around 40% higher than the national
average1. There are several contributing factors to
California’s high living costs including state taxes,
state regulations, healthcare, food, utilities…and the
availability of affordable housing.
Consider…
For the past 66 years, population growth in California
experienced a net gain of 24.1 million people, which
equates to an average annual increase of 2.5%2.
Focusing on the last 10 years, an average of 80,000
housing units have been built per year, far below the
160,000 units needed annually to keep up with the
population. This projected need already considers the
fact that California’s population decreased an average
of 0.4% each year between 2020 and 2023.
Low production has not always been the case. From
1955 to 1990, more than 200,000 homes were built
annually in California, and a much greater percentage
were multifamily (apartments and condos), in
contrast to the more recent focus on larger unit
residential development. This lack of supply greatly
affects housing affordability.
Without an adequate supply of housing, basic
market/demand principles prevail, resulting in
increased home prices. For housing costs to be
considered affordable, financial experts advise that a
family’s monthly rent/mortgage payment should not
Documents Referenced
Informational Bulletins; Library
Housing Element Annual Progress Reports; Library
State HCD Certification; Letter
Accessory Dwelling Units; IB-111
State Density Bonus; IB-112
Carlsbad Housing Element; IB-137
AB 2097 Relaxed Parking Standards; IB-131
SB 330 Housing Crisis Act; IB-132
AB 2011 Affordable Housing & High Roads Act; IB-134
SB 35 Multifamily Permit Streamlining; IB-135
SB 6 Middle-Class Housing Act; IB-136
Mills Act Program; IB-161
Accessory Dwelling Units, Unpermitted; IB-254
Objective Design Standards; IB-302
Exhibit 4
Jan. 28, 2025 Item #5 Page 29 of 34
Page 2 of 6 IB-198_The Housing Challenge_October 2024
exceed 30% of their gross annual household income.
Anything more will negatively affect a family’s ability
to save money, prepare for unexpected financial
hardship, or even afford the things that make life
more enjoyable.
So, how affordable is housing in California?
Well…not very. The current average home price in
California is $787,0003. This equates to a monthly
mortgage of roughly $5,2354. The median monthly
rent for a typical apartment in California is $2,8635.
According to the U.S. Census Bureau, the median
household income in California is $91,5516. At this
income rate, for a family to afford an average priced
home in the state, almost 70% of their monthly
income would need to go toward their mortgage
payment --- close to 40% if they were renting.
City of Carlsbad
The housing challenges experienced at the state level
are even more significant in Carlsbad. The city offers
the charm of a small beach town with the
convenience and amenities of an established city,
including miles of coastline, ample open space,
beautiful parks, and a thriving innovation economy.
Living in such a desirable community is expensive.
While California’s cost of living is roughly 40% above
the national average, Carlsbad is closer to 97% above
the national average1. Despite the costs, however,
the city’s population has increased roughly 2.7% each
year for the past 44 years, going from 35,500 people
in 1980 to 115,000 in 2024.
In response, home prices in the city have soared. The
current average home price in Carlsbad is
$1,565,0007, almost double the state price. This
equates to a monthly mortgage payment of roughly
$10,4004. The median rent for a typical apartment in
Carlsbad is currently $4,3508.
According to the U.S. Census Bureau, the median
household income in Carlsbad is $146,5969. Although
60% higher than the state reported household
income, for a family to afford an average priced home
in the city, almost 85% of their monthly income
would need to go toward their mortgage payment --
close to 36% if they were renting.
Implications & Impacts
Cities today are not approving enough housing to
meet the projected needs, which is driving up prices
and causing a whole host of unintended
consequences – from employers not being able to
find enough workers, to adult children being priced
out of their hometowns, and an increase in people
experiencing homelessness for the first time. We
have seen all of these effects right here in Carlsbad.
These pressures have been cited regionally by several
companies as a contributing factor to relocating out
of San Diego or prioritizing growth in other areas. This
is not a new trend, but it has been exacerbated over
the last several years.
According to a study of San Diego County small
businesses, the number one challenge for small
business owners is trouble finding workers (55% of
respondents noted this challenge). The third biggest
challenge is retaining workers (43% of respondents
noted this as a challenge). In a presentation given by
the San Diego Regional Economic Development
Corporation, it was noted that a driving factor of these
challenges is the cost of living for workers. It was also
noted that these issues were not the top challenges
just five years ago.10
LOCAL HOUSING PLAN
State Requirements
Since 1969, California has required that all cities and
counties adequately plan for their share of the state’s
projected housing needs. While cities do not build
housing – that is the function of private developers –
they do adopt plans, regulations and programs that
influence how and where housing development
occurs.
One of the most important housing policy documents
used by jurisdictions is the General Plan. The General
Plan serves as the “blueprint” for how a city will grow
and develop and includes seven state required
chapters, referred to as “elements” --- land use,
transportation, conservation, noise, open space,
safety, and housing elements. Under state housing
laws, a jurisdiction’s Housing Element must:
Jan. 28, 2025 Item #5 Page 30 of 34
IB-198_The Housing Challenge_October 2024 Page 3 of 6
• Provide goals, policies, quantified objectives and
scheduled programs to preserve, improve and
develop housing.
• Identify and analyze existing and projected
housing needs for all economic segments and
income levels of the community.
• Identify adequate properties that are zoned and
available within the eight-year housing cycle to
meet the city’s fair share of regional housing
needs at all income levels.
• Be certified (approved) by the State Department
of Housing and Community Development (HCD)
as complying with state law.
Carlsbad Housing Element
After a yearslong community outreach and
engagement effort, the City Council on April 6, 2021,
approved Resolution No. 2021-073, which introduced
the city’s eight-year housing plan ---The 2021-2029
Carlsbad Housing Element.
On July 13, 2021, the California Department of
Housing & Community Development (HCD) issued a
letter certifying the city’s housing plan as being in
compliance with the minimum mandatory
requirements of state housing law.
The City of Carlsbad is happy to report that the city
remains in good standing with HCD and remains on
track to complete all required housing programs listed
in the Carlsbad Housing Element. This is important as
explained later in this bulletin. The city’s General Plan
& Housing Element Annual Progress Reports are
posted on the city’s website so the public can track the
city’s progress.
STATE’S RESPONSE
Over the past decade, the state legislature has
expanded and amended state law as part of the
overall recognition of the critically low volumes of
housing stock in California. In the state legislature’s
mind, local jurisdictions are not doing enough to
address the need for
more affordable
housing.
According to the
state, this is, in part,
because growth and
development are
unpopular in many cities, and local elected officials
face pressure from their constituents to deny new
housing projects.
Most of the bills passed by the state make it easier
and faster for housing projects to be constructed
while limiting a local government’s ability to deny,
reduce the density of, or make infeasible those
housing projects. Some of the more significant state
laws are summarized below.
Density Bonus
In exchange for making some of the new units
affordable to low-income families (as few as 5% of the
units), state density bonus law gives a developer the
right to increase the total number of homes allowed
on a property, in some cases double the number of
units allowed by a city. For example, if the city’s
general plan allows a maximum of 25 units on a
property, the state density bonus law allows the
In the state legislature’s
mind, local jurisdictions
are not doing enough to
address the need for
more affordable housing.
Jan. 28, 2025 Item #5 Page 31 of 34
Page 4 of 6 IB-198_The Housing Challenge_October 2024
developer to build up to 50 units. The law also allows
developers to reduce city development standards,
such as setbacks and height limits when those
standards prevent the developer from achieving the
density allowed under state law. More info: IB-112
Accessory Dwelling Units
Over the past decade, the legislature has made
several modifications to state housing laws,
progressively making it easier and less expensive for
property owners to build accessory dwelling units,
often called ADUs. The state also passed a bill making
it possible to obtain a retroactive building permit for
an unpermitted accessory dwelling unit. More info:
IB-111 & IB-254
Housing Accountability Act
The Housing Accountability Act (HAA) is a state law
limiting a local government’s decision-making
authority over certain housing development projects,
specifically, projects that include affordable housing
units. The state legislature first enacted the HAA in
1982.
Over the years, the legislature has amended the HAA,
which today involves a multitude of interconnected
and overlapping government code sections. Most
notably, the HAA requires cities to only apply objective
standards to development project (not subjective
standards open to interpretation) and set the
framework for The Builder’s Remedy, which is
discussed further in this bulletin.
Housing Crisis Act (SB 330)
The Housing Crisis Act (HCA), which amended the HAA,
set forth several pro-housing provisions, including
applicant vesting rights, shortened timelines to review
applications, limiting the number of public meetings (a
maximum of 5, including required community
meetings), and limitations on a city’s ability to deny a
housing project that meets established development
requirements. More info: IB-132
Relaxed Parking Requirements (AB 2097)
Restrictions imposed by the state legislature under AB
2097 limit the city’s ability to require minimum
parking standards on private development projects
when located within ½ mile from the Carlsbad or
Poinsettia Coaster Stations. More info: IB-131
Multifamily Permit Streamlining (SB 35)
SB 35, which became effective Jan. 1, 2018, adopted
several provisions designed to promote housing
production throughout the state, including a
streamlined, expedited ministerial (by-right) review
process for multifamily housing developments. More
info: IB-135
Housing on Commercial Sites (SB 6 & AB 2011)
SB 6 (Middle-Class Housing Act) allows residential
development on property that is specifically
designated for onlycommercial use. SB 6 was adopted
the same year as AB 2011 (Affordable Housing and
High Roads Act), which also allows residential
development on commercial property. More info: IB-
134 & IB-136
CARLSBAD’S RESPONSE
In addition to the adoption of
the previously mentioned
Carlsbad Housing Element,
the City of Carlsbad has
taken steps to preserve as
much local control as
possible when it comes to
new development.
Legislative Advocacy
The City Council established a Legislative
Subcommittee to work with city staff and the city’s
professional lobbyists to advocate for local interests at
the state and federal level. This includes promoting
legislation that preserves local control over land uses.
More info: Legislative Committee
Updated Growth Management Plan
The city has begun work on an updated growth
management plan to help protect our future quality of
life. The first step was a citizens committee that met
for over a year to review and suggest updates to
current standards for things like parks, roads and
libraries. The City Council approved the committee’s
recommendations and directed staff to continue work
on the new plan. More info: GMP update
Jan. 28, 2025 Item #5 Page 32 of 34
IB-198_The Housing Challenge_October 2024 Page 5 of 6
Objective Design Standards
In response to recent state housing regulations and to
strengthen local design regulations, the city has
established objective design standards for multifamily
housing and mixed-use development projects. This
helps ensure new projects better fit in with the
existing character. More info: IB-302
Preserving our History
The City Council approved a local Mills Act Program to
encourage the restoration and preservation of historic
buildings to honor Carlsbad's local history and
culture. Learn more about the historic preservation
process, incentives and programs. More info: IB-161
THE BUILDER’S REMEDY
State Authority Over Local Decisions
Under state law (§65589.5(j)(1)), a proposed housing
project that complies with a city’s land use regulations
(i.e., housing element, zoning, subdivision standards,
design criteria) cannot be denied unless the city finds
specific, adverse impacts to public health and safety.
The criteria for a “specific, adverse impact” are
difficult to meet.
Under the law, a “specific, adverse impact” means a
significant, quantifiable, direct, and unavoidable
impact, based on objective, identified written public
health or safety standards, policies, or conditions as
they existed at the time of application, and there is no
feasible method to satisfactorily mitigate or avoid the
adverse impact.
Put another way, simply stating that a proposed
housing project will increase traffic and result in
unsafe conditions is not enough to deny the
project…the traffic impacts must be quantified and
measured against established, published standards
that existed when the application was filed and there
must be no way to satisfactorily mitigate or avoid the
impact.
Court Challenges
As local control over land
use decisions continues to
be eroded by state laws,
some have asked why
jurisdictions don’t fight
back by legally challenging
those laws, or even ignoring them.
In approving these bills, the state legislature made
repeated findings that the lack of market-rate and
affordable housing is a critical problem that threatens
the economic, environmental and social quality of life
in California. There have been several legal challenges
to many of these pro-housing laws, most of which
involve a lawsuit filed following the approval or denial
of a housing project. Some of the more noteworthy
cases include Save Livermore Downtown v. City of
Livermore (‘22) and CA Renters Legal Advocacy &
Education Fund v. City of San Mateo (‘21).
This bulletin does not get into the merits of the legal
challenges, but the outcomes were virtually the
same…the courts affirmed the constitutionality of the
housing laws, and that their mandates are to be taken
seriously. The implications of not complying with the
state housing laws, and the developer allowances
provided under state law are discussed below.
Dept. of Housing & Community Development
Assembly Bill 72, which passed in 2017, authorized the
California Department of Housing & Community
Development (HCD) to review “any action or failure to
act” by a city that it determines “inconsistent” with
the city’s adopted housing element or housing laws.
Under this provision, if HCD determines that a city’s
action or lack of action does not “substantially
comply” with state housing laws or the city’s adopted
housing element as certified by the state, then HCD
may revoke its certification of the city’s housing
element until it determines that the city has come into
compliance. Additionally, HCD may also notify the CA
Office of the Attorney General that the city is in
violation of state law, and that office may take legal
action against the city.
And the state is not shy in threatening jurisdictions, or
even acting upon their threat to decertify an adopted
housing elements if they find that the jurisdiction is
failing to comply with state housing laws. For example:
• In spring 2024, Portola Valley became the first
city to have its housing element decertified.
State officials said the town's council had failed
Jan. 28, 2025 Item #5 Page 33 of 34
Page 6 of 6 IB-198_The Housing Challenge_October 2024
to make the necessary changes in zoning to
accommodate its assigned housing numbers.
• In fall 2024 the Governor’s office announced that
the City of Norwalk’s housing element was
decertified for failure to approve affordable units
and passing legislation that banned shelters and
housing for those at risk of homelessness.
• As of the writing of this bulletin, none of the
housing elements in the San Diego region have
been decertified, but there have been some
cities that have denied housing projects and
received threatening letters from HCD (Sample
NOV Letter) forcing them to reconsider their
actions.
Builder’s Remedy
State housing laws offer significant protections to
proposed development projects that include a certain
number of affordable units --- as low as 20% of the
total units in the project.
Pursuant to Govt. Code §65589.5(d), a jurisdiction
must make one of five findings to deny such housing
projects. One of those findings is a determination that
the project is inconsistent with both the zoning
ordinance and the land use designation as specified in
any general plan element.
Under the state’s eyes, a housing element that is not
certified by HCD is not enforceable, even if it was
officially adopted by the local legislative body (i.e., city
council). Without an enforceable housing element, a
jurisdiction is not able to make the above required
inconsistency finding.
This state law provision creates what has been coined
the “Builder’s Remedy.”
A city that does not have an HCD certified housing
element loses its authority to reject a proposed
housing project on the grounds that they are
inconsistent with local zoning and general plan
requirements…even if the city’s adopted zoning
designation expressly prohibits housing on a site.
Put another way, without a state approved housing
element developers are allowed to place an affordable
housing project pretty much anywhere in the city, with
limited say-so by the city council.
Developers are very much aware of Builder’s Remedy
and have applied the allowance in cities that lack a
certified housing element. For example:
• The City of San Jose received a Builder's Remedy
application initially proposing 3,500 homes to be
built on commercial property that was once
home to the city's flea market.
• The City of Palo Alto received a Builder's Remedy
application for a housing project that includes
177-foot-tall tower in a zone that limits
building height to 50 feet.
• Beverly Hills received upward of six Builder's
Remedy applications, one of which would
involve a 15-story apartment building on an
existing parking lot.
• Locally, the City of Del Mar is struggling with a
Builder's Remedy application that proposes high
density residential development along Del Mar
bluffs, and the list goes on.
If the City of Carlsbad continues to follow its housing
element, complies with state housing laws and
approves projects consistent with its general plan, the
city will avoid the implications of Builder’s
Remedy…which means we continue to have a choice
where housing gets built and how much.
YOUR OPTIONS FOR SERVICE
To learn more please contact the Planning Division at
442-339-2600 or via email at
Planning@carlsbadca.gov.
CITATIONS
1 Council for Community & Economic Research (C2ER), January 2024.
2 United States Regional Economic Analysis Project. Retrieved from California
vs. United States | Population Trends over 1958-2023 (reaproject.org)
x California’s Housing Future: Challenges and Opportunities, Final Statewide
Housing Assessment 2025. Retrieved from SHA_Final_Combined.pdf (ca.gov)
3 California Housing Market Home Value (Zillow, July 2024). Retrieved from
California Housing Market: 2024 Home Prices & Trends | Zillow
4 Assumes a 30-year mortgage, 7% interest, no money down.
5 California Rental Market (Zillow, July 2024). All bedroom types. Retrieved
from Average Rental Price in California & Market Trends | Zillow Rental
Manager
6 U.S. Census Bureau. Retrieved from California - Census Bureau Profile
7 Carlsbad Housing Market Home Value (Zillow, July 2024). Retrieved from
Carlsbad, CA Housing Market: 2024 Home Prices & Trends | Zillow
8 Carlsbad Rental Market (Zillow, July 2024). All bedroom types. Retrieved
from Average Rental Price in Carlsbad, CA & Market Trends | Zillow Rental
Manager
9 U.S. Census Bureau. Retrieved from Carlsbad city, California - Census
Bureau Profile
10 EDC, SBDC Research shows talent acquisition is greatest challenge to small
businesses (San Diego and Imperial County Small Business Development
Center Network and San Diego Regional Economic Development
Corporation, May 2024). Retrieved from
https://www.sandiegobusiness.org/blog/edc-sbdc-research-show-talent-
acquisition-is-greatest-challenge-to-small-businesses/
Jan. 28, 2025 Item #5 Page 34 of 34
Jeff Murphy, Director
Community Development Department
Item #5 – Jan. 28, 2025
Modifying the CEQA Exemption
Determination Process
2
Background
•Concerns raised at the Sept. 24, 2024 City Council
meeting about a proposed mixed-use project
–Ability to comment on env. issues at hearing
–Ability for decision-maker to consider env. issues
–Disconnect between public comment on CEQA
exemptions and public comment on project
ITEM 5: CEQA Exemptions
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•CEQA exemption process set forth in §19.04.060
•Adopted by City Council in 2001
•City Planner exclusively responsible for determination
•Determinations posted for 10-day public review
•Determination is final, if not appealed
Background
ITEM 5: CEQA Exemptions
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•Return with amendments to the CMC, giving the
decision-maker the authority to determine CEQA
exemptions
•Return with changes within 120 days
Background
ITEM 5: CEQA Exemptions
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Proposed Amendments
•CEQA exemptions will be decided by decision-maker
•Staff will continue to request relevant information and
data to support use of CEQA exemptions
•Information will be made available to public and
decision-maker
ITEM 5: CEQA Exemptions
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Additional Information
•CEQA is a complex technical process
•Informational Bulletin helps public
understand the general process (IB-
150; CEQA)
ITEM 5: CEQA Exemptions
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Risks & Challenges
•CEQA exemption & Housing
Accountability Act (AB 1633)
•Denial of CEQA exemption very high
bar to overcome
•Informational Bulletin helps public
understand risks (IB-198; The Housing
Challenge)
ITEM 5: CEQA Exemptions
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Recommendation
Approve the amendments to Carlsbad Municipal
Code Chapter 19.04 modifying the California
Environmental Quality Act exemption
determination approval process, as outlined in the
staff report
ITEM 5: CEQA Exemptions