HomeMy WebLinkAbout2025-01-15; Planning Commission; 02; Overview of CEQA and discussion of prospective changes to Chapter 19.04 of the Municipal Code – Informational Report & DiscussionMeeting Date: Jan. 15, 2025 Item 2
To: Planning Commission
Staff Contact: Mike Strong, Assistant Director of Community Development
442-339-2721, mike.strong@carlsbadca.gov
Subject: Overview of CEQA and discussion of prospective changes to Chapter 19.04 of the
Municipal Code – Informational Report & Discussion
Location: Citywide
Case Numbers: ZCA2024-XXX (PUB2024-XXX)
Applicant/Representative: City of Carlsbad Community Development Department
CEQA Determination: ☒Not a Project ☐ Exempt ☐ IS/ND or IS/MND ☐ EIR☐Other:
Permit Type(s): ☐SDP ☐ CUP ☐ CDP ☐ TM/TPM ☐ GPA ☐ REZ ☐ LCPA☒Other: N/A
CEQA Status: ☐The environmental assessment IS on the Agenda for discussion☒A CEQA determination was already issued. That decision is final and
IS NOT on the Agenda
Commission Action: ☐Decision ☐ Recommendation to City Council ☒ Informational (No Action)
Recommended Action
Receive a report and presentation on the California Environmental Quality Act (CEQA) and discuss prospective
amendments to Carlsbad Municipal Code (CMC) Chapter 19.04 (Environmental Protection Procedures).
Project Description
The requirements and procedures for complying with CEQA are contained in the CEQA statute (Public Resources
Code Section 21000 et seq.), the CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.),
published court decisions interpreting CEQA, and locally adopted CEQA procedures. CEQA requires public agencies
to inform themselves of the environmental effects of their proposed action, carefully consider all relevant
information before they act, provide an opportunity for public comment on environmental issues, and avoid or
reduce significant environmental impacts when feasible. Because CEQA’s provisions are enforced, as necessary,
by the public through litigation and the threat of litigation, CEQA has turned in to being one of the most important
state laws affecting local planning decisions.
In the City of Carlsbad, the City Planner has the primary responsibility for determining whether a CEQA exemption
applies to a project before the decision-making body decides whether to carry out or approve the project. On
Sept. 24, 2024, the City Council directed the City Manager to change this process and draft amendments to
Chapter 19.04 of the Municipal Code to require exemptions be decided upon by decision-making authority
responsible for deciding on the project. Amendments to Title 19 of the Municipal Code do not require a
recommendation from Planning Commission prior to adoption; however, this staff report presents general
information about the requested changes to the Municipal Code and background information about CEQA.
Jan. 15, 2025 Item #2 1 of 10
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Background of CEQA
Public agencies weigh a variety of factors when deciding whether to approve or deny a proposed land use, activity,
or development project. One such factor is what kind of effect a proposed project would have on the environment.
The term “environment” includes natural and man-made elements of our surroundings. This includes land, air,
water, minerals, habitat, noise, etc. The basic purpose of CEQA is to: 1) inform governmental decision makers and
the public about the potential significant environmental effects of proposed activities; 2) identify ways that
environmental damage can be avoided or significantly reduced; 3) require changes in projects through the use of
alternatives or mitigation measures when feasible; and 4) disclose to the public the reasons why a project was
approved if significant environmental effects are involved.
Under CEQA, a use or activity is not subject to CEQA if it is not considered a “project.” A proposed project qualifies
as a “project” covered by CEQA if it is undertaken, approved, or funded by a public agency, has the potential to
result in a physical change in the environmental, directly or ultimately, and involves a discretionary approval by
the public agency. If the use or activity is a “project” subject to CEQA, the city then determines whether the
project is exempt under CEQA. There are three types of exemptions to consider: statutory exemptions, categorical
exemptions, and the common sense exemption. One of the more common examples of statutory exemptions
includes uses or activities requiring only ministerial approvals, which are not subject to environmental review
under CEQA, pursuant to Section 21080(b)(1) of CEQA and Section 15268 of the State CEQA Guidelines. Projects
requiring any discretionary approvals may be subject to environmental review under CEQA unless otherwise
exempt, pursuant to Section 21080(a) of CEQA, and Section 15002(i) of the State CEQA Guidelines. For categorical
exemptions, the California Secretary for Natural Resources prepares and adopts a list of classes of projects which
have been determined not to have a significant effect on the environment and are considered “exempt” from
CEQA. These classes are known as “categorical exemptions.” However, a categorical exemption is conditioned by
limitations defined in the CEQA Guidelines and by the statutory authorization limiting such exemptions to projects
with no significant environmental effect. Lastly, if a project is not statutorily exempt and a categorical exemption
does not apply, it may qualify for the common sense exemption, formerly called “general rule exemptions” (CEQA
Guidelines 15061(b)(3)). A common sense exemption, in the context of CEQA, refers to a provision that exempts
a project from environmental review if it can be definitively determined that the project has absolutely no
potential to significantly impact the environment, essentially applying a "common sense" assessment that the
activity is too minor to warrant further review. Currently, all three types of exemptions (statutory exemptions,
categorical exemptions, and common sense exemptions) may be decided outside of a public hearing. As of this
writing, the City Planner decides whether a project is eligible for exemption as part of the preliminary review of
the project.
When it is determined through an initial study that there is substantial evidence that the project may have a
significant effect upon the environment, then an Environmental Impact Report (EIR) must be prepared. When the
city determines that there is no substantial evidence that the project may have a significant effect on the
environment, or when potential significant environmental effects are shown in the initial study, but the project is
modified such that the environmental effects are rendered less than significant, a negative declaration is
prepared. When potential significant environmental effects are shown in the initial study, but conditions of
approval include mitigation measures that reduce all significant impacts to a level that is less than significant, a
mitigated negative declaration is prepared.
For more information about CEQA and the environmental review process, refer to Exhibit 1.
Purpose of CMC Chapter 19.04 and the Proposed Code Amendments
The purpose of CMC Chapter 19.04 is to provide a basis for implementation of CEQA by the city, working in
conjunction with CEQA statute and CEQA Guidelines. Currently, CMC Section 19.04.060 establishes that the City
Planner is exclusively responsible for determining whether a private or public project is exempted from the
requirements of CEQA (an exemption), and the City Planner’s decision is made and acted upon before the decision-
making body reviews or considers a project and takes final action.
Jan. 15, 2025 Item #2 2 of 10
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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 CEQA exemptions will be reviewed and considered by
the decision-making authority responsible for deciding on the project, instead of the current process that grants
that authority exclusively to the City Planner. The proposed code amendments also include other ancillary changes
to be consistent with published court decisions interpreting CEQA and help specify and clarify local procedures.
Conclusion
At the Jan. 15, 2025 Planning Commission meeting, staff will facilitate an overview of CEQA. This overview will
include information regarding the environmental review process and the role the Planning Commission plays in
that process. City staff will also provide a brief presentation and walk through some potential changes to CMC
Chapter 19.04 that would make it so that the project’s decision maker reviews, considers, and adopts an
environmental decision before making a decision on a project.
Exhibits
1.Informational Bulletin – CEQA (IB -150)
Jan. 15, 2025 Item #2 3 of 10
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 rooted 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 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 are 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.
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 is intended
to supplement state CEQA guidelines.
Exhibit 1
Jan. 15, 2025 Item #2 4 of 10
{city of
Carlsbad
Informational Bulletin
Page 2 of 7 IB-150_Environmental Review July 2022
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, many city actions and
activities 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 (§21080) are created by the
state legislature and found in CEQA Guidelines
§15260-15285. A project that falls within a statutory
exemption is not subject to CEQA even if it has the
potential to significantly affect the environment.
Common statutory exemptions applied to city
projects 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
Unlike statutory exemptions, which are adopted by
the California Legislature, state law (§21084) directs
the CRNA to adopt classes of projects that are
determined to not have a significant effect on the
environment (§15300-15333). Common categorical
exemptions applied by the city include the following:
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, under state
law 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.
•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.
Jan. 15, 2025 Item #2 5 of 10
IB-150_Environmental Review July 2022 Page 3 of 7
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 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 and
environmental consultants 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
So, when is an impact “significant?” Good question. 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). 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. 15, 2025 Item #2 6 of 10
Page 4 of 7 IB-150_Environmental Review July 2022
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. 15, 2025 Item #2 7 of 10
IB-150_Environmental Review July 2022 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
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.
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.
Jan. 15, 2025 Item #2 8 of 10
Page 6 of 7 IB-150_Environmental Review July 2022
•The decision-making authority for the discretionary
permit/action does NOT approve the use of the
exemption as part of their decision on the
discretionary permit and/or action; that
responsibility resides solely with the City Planner.
•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.
•A determination that a project is “not a project”
under CEQA is not a formal exemption and City
Planner’s notice of determination and NOE are not
required.
NEGATIVE DECLARATIONS/MITIGATED ND
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.
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. 15, 2025 Item #2 9 of 10
IB-150_Environmental Review July 2022 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
[CEQA exempt projects excluded]
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-makers 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. 15, 2025 Item #2 10 of 10
From:Planning
To:Cynthia Vigeland
Cc:Eric Lardy
Subject:FW: Public comment on Planning Commission 1/15/2025 Item #2 (CEQA exemption review)
Date:Wednesday, January 15, 2025 9:32:34 AM
Attachments:2024-10-17 ELUA Proposed CEQA exemption determination revisions.pdf
-----Original Message-----
From: Steve Linke <splinke@gmail.com>
Sent: Wednesday, January 15, 2025 9:26 AM
To: Planning <planning@carlsbadca.gov>
Subject: Public comment on Planning Commission 1/15/2025 Item #2 (CEQA exemption review)
Planning Commissioners:
The attached communication, which was provided to the City Council and your commission on 10/18/2024,
triggered the CEQA review that is on this evening's meeting agenda. I thought it would be useful for you to have a
chance to review it again to guide recommendations you make to the City Council on changes to the city's CEQA
exemption/review process.
Best regards,
Steve Linke
Equitable Land Use Alliance
CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe.
Item 2 - Correspondence received by 5pm 1-15-25
Equitable Land Use Alliance
300 Carlsbad Village Dr, PMB 108A-79
Carlsbad, CA 92008
hello@equitablelanduse.org
1
October 17, 2024
Carlsbad City Council
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: CEQA exemption determination process revisions
City Council and Staff:
Council, thank you for agendizing an update to the CEQA exemp�on determina�on process. For
reference, Carlsbad Municipal Code (CMC) § 19.04.060 gives the City Planner unilateral
authority to declare projects exempt from CEQA. This is coupled with an imprac�cally short (10
calendar-day) and expensive ($900) appeal window to the Planning Commission. CMC §
21.54.140-150, states (in part):
The appeal shall specifically state the reason or reasons for the appeal. The burden of
proof is on the appellant to establish by substan�al evidence that the grounds for the
requested ac�on exist…the Planning Commission shall consider only the evidence
presented to the City Planner for considera�on in the determina�on or decision being
appealed.
City Atorney McMahon has clarified that the above means that a poten�al appellant must
provide all appeal topics and every eviden�ary argument and other evidence in their appeal
document submited within 10 days of the City Planner pos�ng their determina�on on the city
website (see Atachment A). The Planning Commission is not allowed to consider anything not
provided to the City Planner within that �meframe.
As an example, the City Planner posted the CEQA Determina�on of Exemp�on for the Carlsbad
Village Mixed Use project (CVMU) to the city website on Thursday February 29th, 2024, which
included only six working days within the 10 calendar-day appeal window.
Only individuals who were previously aware of CVMU and had made a request to the planner in
charge to be contacted with updates, or who had subscribed to receive all Planning updates,
would have become aware of the CEQA determina�on (and even some of those individuals
claimed not to have been contacted). During that 10-day window, Mar�n Danner (now
Equitable Land Use Alliance 2
President of Equitable Land Use Alliance [ELUA]) sent mul�ple emails to staff ques�oning the
determina�on, but his concerns were largely dismissed, and no appeal was filed. Staff
subsequently told the Planning Commission on mul�ple occasions that no comments were
received regarding the CEQA determina�on, which is not true and troubling.
The CVMU exemp�on and atachments included 548 pages of highly technical CEQA-related
informa�on. It would not have been possible to hire a CEQA atorney and subject-mater
experts to review the documenta�on and generate an appeal that includes all topics and
evidence within the six working days provided. It would have been challenging just to schedule
ini�al consulta�ons within that �meframe.
Below are ELUA’s recommended revisions to the CEQA Determina�on of Exemp�on process.
Project types
ELUA’s posi�on is that any project that invokes State Density Bonus Laws or other State laws
that supersede City laws, and/or that is seeking any sort of incen�ves/concessions,
design/development waivers, or other variances from standard city requirements should be
subject to public review prior to exemp�on from CEQA. Proposed CEQA exemp�ons for the
above-referenced project types should be presented to a decision-making body (Planning
Commission or City Council) as part of their review/approval process.
Project size
ELUA recognizes the prac�cality of small projects con�nuing to be exempted by staff (subject to
appeal). We recommend establishing a size threshold based on vehicle trip genera�on. Both the
State of California’s vehicle miles traveled guidance and the City of Carlsbad’s local mobility and
vehicle miles traveled analysis guidance use the well-established threshold of “less than 110
projected average daily trips” to define small projects. However, the calcula�on needs to be
based only on gross trips for the proposed use, without subtraction for existing uses. As an
example, the exemp�on power would remain with staff for apartment projects proposing 18 or
less units (apartment units are assumed to generate 6 daily trips). Proposed CEQA exemp�ons
for projects that are projected to have 110 or more trips should be presented to the decision-
making body as part of their review/approval process.
Appeal procedure/cost – Administra�ve appeal (staff)
The City of Carlsbad has a no-fee “administra�ve appeal” process for certain planning decisions.
Appeals are heard by staff at “administra�ve hearings,” during which evidence can be
presented, and staff later issues a decision based upon the evidence. For any projects that
Equitable Land Use Alliance 3
council decides should remain under the power of staff to decide CEQA exemp�ons, there
should be an opportunity for such no-cost administra�ve appeals.
Appeal procedure/cost – Public appeal (Planning Commission/City Council)
For any projects that council decides should remain under the power of staff or the unelected
Planning Commission to decide CEQA exemp�ons, State law requires an appeal process to the
elected decision-making body—the City Council (California Public Resources Code § 21151(c)).
Although it is legal to charge a reasonable fee for such appeals, there is no requirement to do
so. ELUA recommends either elimina�ng the $900 fee or significantly reducing it. For example, a
$200 fee would prevent frivolous appeals but be reasonable for small ci�zen groups. ELUA also
feels that, if a fee must be paid for an appeal to the Planning Commission, no addi�onal fee
should be necessary for an appeal to the City Council. In addi�on, the fee should be refunded
for successful appeals.
Appeal �me window
In order to decide whether there is sufficient reason to file an appeal and to develop
arguments/evidence in favor of the appeal, ten calendar days is nowhere near sufficient. ELUA
recommends that the ini�al appeal window be expanded to 35 days from the pos�ng of the
determina�on, consistent with the window created by the State for appeals of CEQA No�ces of
Exemp�on (California Code of Regula�ons Title 14 § 15062).
Sincerely,
Steve Linke (on behalf of Equitable Land Use Alliance)
Subject: RE: Inquiry about appeals to City Planner CEQA Determina�ons of Exemp�on
From: Cindie McMahon <Cindie.McMahon@carlsbadca.gov>
Date: 9/16/2024, 2:29 PM
To: Steve Linke <splinke@gmail.com>
CC: Sco� Chadwick <Sco�.Chadwick@carlsbadca.gov>, Geoff Patnoe <Geoff.Patnoe@carlsbadca.gov>
Mr. Linke,
You asked two questions relating to an appeal of a City Planner CEQA exemption
determination:
1. Must the appeal document include all topics of appeal?
2. Must the appeal document include all associated evidence or may the evidence be provided
after the
10-day appeal period?
In response to the first question, the appeal document must state the reason or reasons for
the appeal. (CMC 21.54.140(B).) "The Planning Commission shall determine all matters not
specified in the appeal have been found by the City Planner and are supported by
substantial evidence." (CMC 21.54.140(C).)
In response to the second question, the only evidence the Planning Commission may consider
is "the evidence presented to the City Planner for consideration in the determination or
decision being appealed." (CMC 21.54.140(C).)
Best regards,
Cindie McMahon
-----Original Message-----
From: Steve Linke <splinke@gmail.com>
Sent: Friday, August 23, 2024 11:23 AM
To: City Attorney <attorney@carlsbadca.gov>
Subject: Inquiry about appeals to City Planner CEQA Determinations of Exemption
Carlsbad City Attorney's Office:
I plan to recommend to the City Council that they make changes to the Municipal Code
regarding the City Planner's CEQA Determinations of Exemption (Sections 19.04.060 and
21.54.140-150). I have a question about the current process. The above-referenced
sections currently state that an appellant has 10 days from the date the determination is
published to file an appeal, and they go on to say: "The appeal shall specifically state
the reason or reasons for the appeal. The burden of proof is on the appellant to
establish by substantial evidence that the grounds for the requested action exist...the
Planning Commission shall consider only the evidence presented to the City Planner for
consideration in the determination or decision being appealed. The Planning Commission
shall determine all matters not specified in the appeal have been found by the City
Planner and are supported by substantial evidence."
Does this mean that the appeal document filed within 10 days has to include all of topics
of appeal, as well as all of the underlying evidence to be considered. Or can additional
evidence that falls under the appeal topics be provided after the 10 days?
As an example, the Determination of Exemption and attachments for the Carlsbad Village
Mixed Use project included 548 pages of technical CEQA-related information. I am trying
to figure out how it would be possible to find and hire a CEQA attorney and subject-
matter experts to review the documentation and generate an appeal that includes all
topics and evidence within 10 days. It would be challenging just to schedule initial
consultations within that time period.
Thanks,
Steve Linke
CAUTION: Do not open attachments or click on links unless you recognize the sender and
know the content is safe.
CAUTION: Do not open attachments or click on links unless you recognize the sender and know
the content is safe.
CEQA Overview and
Discussion of Potential
Changes to CMC Chapter
19.04
Mike Strong, Associate Planner
Community Development
Jan. 15, 2025
1
{ City of
Carlsbad
CEQA Overview and Discussion
22
CEQA makes environmental protection a
mandatory part of a decision-making process.
CEQA applies to all projects subject to public
agency discretionary action.
What is CEQA?
{city of
Carlsbad
CEQA Overview and Discussion
33
The statute – Public Resources Code Sections
21000 et seq.
The Guidelines – California Code of Regulations
Title 14, Section 15000 et seq.
The courts – ongoing case law.
Local procedures – CMC Chapter 19.04.
Where are the CEQA rules?
{city of
Carlsbad
CEQA Overview and Discussion
44
1.Inform decision makers and the public.
2.Identify ways to avoid or mitigate
environmental damage.
3.Avoid or reduce environmental impacts.
4.Disclose to the public the reasons for
approval of projects.
CEQA Objectives
{city of
Carlsbad
CEQA Overview and Discussion
55
Lead Agency – has primary approval authority
over the project.
Responsible Agency – has approval authority
over some aspect of a project.
Trustee Agency – has authority over some
resources related to a project.
Agency Types and Roles
{city of
Carlsbad
Timing of CEQA
1.Completing an application.
2.Preliminary environmental assessment.
3.Environmental clearances.
4.Project consideration/approval.
Carlsbad Premium Outlets Kiosk Program
6
{ City of
Carlsbad
Tiers or Phases of CEQA
1.Tier 1 – is the proposed use or activity a “project”
subject to CEQA?
2.Tier 2 – is the proposed use or activity exempt from
further environmental review?
3.Tier 3 – environmental review and processing.
Carlsbad Premium Outlets Kiosk Program
7
{ City of
Carlsbad
Three Types of Exemptions
1.Statutorial – blanket exemptions given by Legislature.
2.Categorical – types or classes of projects determined to
not have a significant impact.
3.“Common sense” or general rule – CEQA only applies
to projects with potential for significant impact on
environment.
8
CEQA Overview and Discussion
{ City of
Carlsbad
Statutory Exemptions
1.Ongoing projects.
2.Emergency repairs.
3.Feasibility and planning studies.
4.Ministerial approvals (absence of discretion).
5.Others.
9
CEQA Overview and Discussion
{ City of
Carlsbad
CEQA Overview and Discussion
1010
Ministerial vs. Discretionary
Ministerial projects:
1.Conformance with fixed standards or objective
measurements.
2.Requires little or no personal judgement by a public
official.
Discretionary projects:
1.Requires exercise of judgement or deliberation by a
public agency to determine project approval.
Categorical Exemptions
1.Class 1: Existing facilities.
2.Class 2: Replacement or reconstruction.
3.Class 3: New construction or minor conversion of small
structures.
4.Class 4: Minor alterations to land.
5.Class 32: Infill.
6.Others: a total of 30+ categories.
11
CEQA Overview and Discussion
{ City of
Carlsbad
Categorical Exemptions Cont’d
Further review may still be required if:
1.There are unusual circumstances; or
2.There are exceptions to the use of a categorical
exemption such as a sensitive location,
cumulative impact, scenic highways, etc.
12
CEQA Overview and Discussion
{ City of
Carlsbad
Preparation of an Exemption
1.If eligible, staff assembles evidence and
prepares supporting documentation.
2.Evidence based standard.
3.Supplemental analysis may be required.
4.Exemption made by City Planner prior to
project approval.
13
CEQA Overview and Discussion
{ City of
Carlsbad
Approval of an Exemption
1.Adoption by City Planner with a Notice of
Decision.
2.Notice of Exemption filed.
Decision-making authority provided by CMC. City
Council provided direction to propose changes so
that the entity approving the project concurrently
reviews the exemption request.
14
CEQA Overview and Discussion
Environmental Documents
1.Initial study – identify potential environmental
impacts.
2.Three potential environmental review documents.
- No significant impacts (ND).
- Significant impacts that can be mitigated
(MND).
- Some impacts that cannot be avoided or
mitigated (EIR).
15
CEQA Overview and Discussion
Use of a Prior Document
1.Use of “within a scope” finding.
2.Use of addenda.
3.Use of subsequent environmental document.
4.Use of tiering.
Carlsbad Premium Outlets Kiosk Program
16
Checklist Topics
1.Aesthetics.
2.Agriculture.
3.Air quality.
4.Biological resources.
5.Cultural resources.
6.Others: 20 categories.
17
CEQA Overview and Discussion
{ City of
Carlsbad
Preparation of a ND / MND / EIR
1.Draft ND / MND / EIR.
2.Fair argument standard.
3.Public review period.
4.State agency review.
5.Public hearings.
6.Recirculation.
18
CEQA Overview and Discussion
{ City of
Carlsbad
Approval of a ND / MND / EIR
1.Public hearing is not required by state law but
the city requires adoption at public hearing.
2.MMRP (for MND / EIR).
3.Notice of Determination.
19
CEQA Overview and Discussion
{ City of
Carlsbad
Substantial Evidence
1.Standard used to support ND / MND / EIR
findings.
2.Facts and expert opinion supported by facts.
3.Not speculation, unsubstantiated opinion, etc.
20
CEQA Overview and Discussion
{ City of
Carlsbad
Conclusion
1.CEQA overview
2.Project awareness (code amendments)
21
CEQA Overview and Discussion
{ City of
Carlsbad
CEQA Overview and
Discussion of Potential
Changes to CMC Chapter
19.04
Mike Strong, Associate Planner
Community Development
Jan. 15, 2025
1
{ City of
Carlsbad
CEQA Overview and Discussion
22
CEQA makes environmental protection a
mandatory part of a decision-making process.
CEQA applies to all projects subject to public
agency discretionary action.
What is CEQA?
{city of
Carlsbad
CEQA Overview and Discussion
33
The statute – Public Resources Code Sections
21000 et seq.
The Guidelines – California Code of Regulations
Title 14, Section 15000 et seq.
The courts – ongoing case law.
Local procedures – CMC Chapter 19.04.
Where are the CEQA rules?
{city of
Carlsbad
CEQA Overview and Discussion
44
1.Inform decision makers and the public.
2.Identify ways to avoid or mitigate
environmental damage.
3.Avoid or reduce environmental impacts.
4.Disclose to the public the reasons for
approval of projects.
CEQA Objectives
{city of
Carlsbad
CEQA Overview and Discussion
55
Lead Agency – has primary approval authority
over the project.
Responsible Agency – has approval authority
over some aspect of a project.
Trustee Agency – has authority over some
resources related to a project.
Agency Types and Roles
{city of
Carlsbad
Timing of CEQA
1.Completing an application.
2.Preliminary environmental assessment.
3.Environmental clearances.
4.Project consideration/approval.
Carlsbad Premium Outlets Kiosk Program
6
{ City of
Carlsbad
Tiers or Phases of CEQA
1.Tier 1 – is the proposed use or activity a “project”
subject to CEQA?
2.Tier 2 – is the proposed use or activity exempt from
further environmental review?
3.Tier 3 – environmental review and processing.
Carlsbad Premium Outlets Kiosk Program
7
{ City of
Carlsbad
Three Types of Exemptions
1.Statutorial – blanket exemptions given by Legislature.
2.Categorical – types or classes of projects determined to
not have a significant impact.
3.“Common sense” or general rule – CEQA only applies
to projects with potential for significant impact on
environment.
8
CEQA Overview and Discussion
{ City of
Carlsbad
Statutory Exemptions
1.Ongoing projects.
2.Emergency repairs.
3.Feasibility and planning studies.
4.Ministerial approvals (absence of discretion).
5.Others.
9
CEQA Overview and Discussion
{ City of
Carlsbad
CEQA Overview and Discussion
1010
Ministerial vs. Discretionary
Ministerial projects:
1.Conformance with fixed standards or objective
measurements.
2.Requires little or no personal judgement by a public
official.
Discretionary projects:
1.Requires exercise of judgement or deliberation by a
public agency to determine project approval.
Categorical Exemptions
1.Class 1: Existing facilities.
2.Class 2: Replacement or reconstruction.
3.Class 3: New construction or minor conversion of small
structures.
4.Class 4: Minor alterations to land.
5.Class 32: Infill.
6.Others: a total of 30+ categories.
11
CEQA Overview and Discussion
{ City of
Carlsbad
Categorical Exemptions Cont’d
Further review may still be required if:
1.There are unusual circumstances; or
2.There are exceptions to the use of a categorical
exemption such as a sensitive location,
cumulative impact, scenic highways, etc.
12
CEQA Overview and Discussion
{ City of
Carlsbad
Preparation of an Exemption
1.If eligible, staff assembles evidence and
prepares supporting documentation.
2.Evidence based standard.
3.Supplemental analysis may be required.
4.Exemption made by City Planner prior to
project approval.
13
CEQA Overview and Discussion
{ City of
Carlsbad
Approval of an Exemption
1.Adoption by City Planner with a Notice of
Decision.
2.Notice of Exemption filed.
Decision-making authority provided by CMC. City
Council provided direction to propose changes so
that the entity approving the project concurrently
reviews the exemption request.
14
CEQA Overview and Discussion
Environmental Documents
1.Initial study – identify potential environmental
impacts.
2.Three potential environmental review documents.
- No significant impacts (ND).
- Significant impacts that can be mitigated
(MND).
- Some impacts that cannot be avoided or
mitigated (EIR).
15
CEQA Overview and Discussion
Use of a Prior Document
1.Use of “within a scope” finding.
2.Use of addenda.
3.Use of subsequent environmental document.
4.Use of tiering.
Carlsbad Premium Outlets Kiosk Program
16
Checklist Topics
1.Aesthetics.
2.Agriculture.
3.Air quality.
4.Biological resources.
5.Cultural resources.
6.Others: 20 categories.
17
CEQA Overview and Discussion
{ City of
Carlsbad
Preparation of a ND / MND / EIR
1.Draft ND / MND / EIR.
2.Fair argument standard.
3.Public review period.
4.State agency review.
5.Public hearings.
6.Recirculation.
18
CEQA Overview and Discussion
{ City of
Carlsbad
Approval of a ND / MND / EIR
1.Public hearing is not required by state law but
the city requires adoption at public hearing.
2.MMRP (for MND / EIR).
3.Notice of Determination.
19
CEQA Overview and Discussion
{ City of
Carlsbad
Substantial Evidence
1.Standard used to support ND / MND / EIR
findings.
2.Facts and expert opinion supported by facts.
3.Not speculation, unsubstantiated opinion, etc.
20
CEQA Overview and Discussion
{ City of
Carlsbad
Conclusion
1.CEQA overview
2.Project awareness (code amendments)
21
CEQA Overview and Discussion
{ City of
Carlsbad