Chapter 9.78
Environmental Impact Assessment
Sections:
9.78.050 Preparation of Environmental Documents
9.78.110 Review and Determination Procedures
9.78.130 Draft Environmental Impact Report
9.78.140 Final Environmental Impact Report
9.78.150 Standards of Adequacy
9.78.160 Content of Environmental Impact Report
9.78.180 Notice of Determination
9.78.010 Purpose of Chapter
This Chapter implements the requirements of the California Environmental Quality Act (CEQA) by providing the City, as lead agency, with criteria, objectives, principles, and procedures for applying the requirements of CEQA to proposed projects, including the application of Statutory and Categorical Exemptions and the preparation and processing of Negative Declarations, Mitigated Negative Declarations, Environmental Impact Reports (EIR), and other environmental review documents for projects that are subject to CEQA. The basic purposes of CEQA, and the provisions of this Chapter are to:
A. Inform government decision makers and the public about the potential environmental effects of proposed activities;
B. Identify ways that potential environmental damage may be avoided or significantly reduced;
C. Prevent significant, avoidable environmental impacts by requiring changes in projects, either by the adoption of alternatives or the imposition of mitigation measures; and
D. Disclose to the public why a project was approved if that project could cause significant environmental effects.
9.78.020 Authority
These guidelines are adopted by the City to implement Public Resources Code Section 21082, hereinafter referred to as the California Environmental Quality Act of 1970, or "CEQA."
9.78.030 Guiding Principles
The following principles shall serve as a guide for all applications submitted to the City for review and approval and determined to be projects under CEQA:
A. Timing of review. Environmental considerations shall be dealt with at the earliest point possible by emphasizing the use of an initial study, or a scoping session. Any potentially adverse effects that are properly mitigated through re-design may preclude more extensive environmental review.
B. Extent of review. The least extensive environmental review consistent with the purpose of this Chapter shall be utilized (e.g., an Environmental Impact Report would not be required if a Negative Declaration can legitimately be prepared). In this way, sufficient environmental protection would be afforded while minimizing costs and the project review period.
C. Consistency. An examination of whether the project is consistent with existing zoning, plans, and other applicable land use controls shall be performed (CEQA Guidelines, Section 15063(d)(5)).
D. Mitigation measures. The primary goal of the environmental review process shall be to incorporate mitigation measures in the project proposal to be considered by the review authority where necessary and appropriate to reduce the potential for significant environmental impacts.
E. Mitigation monitoring. Where mitigation of environmental impacts is required, the mitigation measures shall be monitored over time to ensure that the steps taken are adequate to achieve the intended purpose. An applicant for a project for which mitigation monitoring is required shall be responsible for all costs associated with both the monitoring program and the implementation or any remedial measures should they become necessary in the event that a mitigation measure fails to achieve its intended purpose.
F. Historical resources. Project reviews shall comply with Section 15064.5 of the CEQA Guidelines and/or comply with Subsection 9.53.040 (D) (2) of this Land Use Code when an action which has the potential to adversely affect a historical resource is pending during the project review period.
9.78.040 Applicability
These guidelines are intended to augment CEQA and the guidelines for implementation of CEQA (California Code of Regulations Title 14, Section 15000 et. seq.) This Chapter is not intended to replace CEQA, and full compliance with CEQA is required regardless of the provisions of this Chapter.
A. City actions. These guidelines shall apply to all City actions in the implementation of CEQA.
B. Conflicting provisions. In the event of any conflict between the provisions of this Chapter, and CEQA or the State CEQA Guidelines, CEQA and the State CEQA Guidelines shall prevail.
C. Reference to Negative Declaration. A reference to a Negative Declaration in this Chapter shall implicitly include a Mitigated Negative Declaration, as applicable.
9.78.050 Preparation of Environmental Documents
The City, when it has the principal responsibility for project approval or implementation, shall prepare project environmental documents either directly or by contract as determined by Council protocols.
A. Initial study required. The City shall require the project sponsors to supply an initial study, using a City approved form, to determine whether the project may have a significant effect on the environment and to assist in the preparation of the appropriate CEQA document. Should it become evident that an EIR must be prepared for the project, the initial study requirement may be waived.
B. Independent judgment required. All environmental documents distributed for public review shall be reviewed by the Environmental Coordinator and shall reflect the independent judgment of the City as lead agency.
C. Noticing of document availability required. The public shall be notified of the availability of all environmental documents, including Notice of Exemption, prepared for public review, by the Environmental Coordinator. Noticing can be achieved through detailed agendas for the various review authorities.
9.78.060 Exemptions from CEQA
A. Exemption from CEQA. An exemption from CEQA shall apply to a project if it is exempt by statute, categorical exemption, general rule, or by rejection or disapproval of the project (CEQA Guidelines Section 15061). This includes the determination by the City that the project is exempt under the general rule that CEQA applies only to projects that will have the potential for causing a significant effect on the environment (Section 15061 [b] [3]). Unlike statutory exemptions, categorical exemptions are not absolute. There are exceptions to the exemptions as listed in Section 15300.2 of the CEQA Guidelines. The existence of the exception requires the project to go through the CEQA process regardless of the fact that the project otherwise meets the criteria of a categorical exemption.
B. Ministerial projects. Ministerial projects are statutorily exempt from CEQA review as opposed to discretionary projects which require some sort of judgment to be used by the review authority. The term "ministerial project" shall be applied as it is used in the CEQA Guidelines (see Section 15268), except that certain projects, reviewable by the Environmental Coordinator without a public hearing, shall be considered ministerial. These include the following, except when a project involves a parcel with an average slope greater than 20 percent, or a discretionary review process is already involved:
1. Code interpretations;
2. Determination of ESHA and EBA boundaries and wetland setbacks;
3. Determination of parking requirements;
4. Determination of zoning district boundaries;
5. Extension requests;
6. Modification of off-street loading requirements;
7. Sidewalk non-compliance;
8. Vision clearance waivers; and
9. Tree removals for 4 or fewer trees in accordance with Subsection 9.58.020 (B) (2) (a) (1) of this Land Use Code, except for Landmark Trees.
9.78.070 Fees
Fees to recover the estimated cost for the preparation and/or processing, and reproduction of Negative Declarations, notices, related environmental documents, and other essential administrative costs shall be payable to the City in the amounts and at the times identified by the City’s Fee Schedule. The cost of an EIR shall be deposited with the City in compliance with the applicable City’s Fee Schedule.
9.78.080 Appeals
A. Filing of appeal. Any person may appeal the final decision of any City official, agency, board, or commission rendered in compliance with California Environmental Quality Act, the CEQA Guidelines, or these guidelines. The appeal shall be made, in writing, within 10 days of the date the final decision was rendered, in compliance with Chapter 9.76 (Appeals).
B. Additional notice. In addition to the notice provisions identified in Chapter 9.74 (Public Hearings), the City Clerk shall give notice of the appeal to the project applicant, if the project applicant is not the appellant, and to any organizations or individuals previously requesting the notice in writing.
9.78.090 Public Hearings
A. Public hearing on draft document may be scheduled.
1. A public hearing on the draft environmental document may be scheduled if the Environmental Coordinator, Planning Commission, or Council determines that the magnitude of the project, the complexity of the environmental issues, or the degree of public interest or controversy indicate that a public hearing is appropriate to facilitate the goals and purposes of CEQA and these guidelines.
2. If the Environmental Coordinator, Planning Commission, or Council does so choose to hold a public hearing, the hearing shall take place during the public review period. Public Hearings for Draft EIRs are further described in Section 9.78.130 D., below.
B. Public hearing for adoption or certification. A public hearing may be required for adoption of the Negative Declaration or certification of the final EIR. If a pubic hearing on a Negative Declaration or a draft EIR is otherwise required by this Chapter, State law, Planning Commission, or Council discretionary decision, the hearing may be held in conjunction with the hearing on the project application.
9.78.100 Time Limits
A. Negative Declarations and EIRs. The City shall complete and approve a Negative Declaration in not more than 180 days; and complete and certify an EIR in not more than 12 months.
B. Measurement of time limits. The time limits required by Subsection A. shall be measured from the date on which an application for project approval is accepted as complete by the City, in compliance with Section 9.70.060 (Initial Application Review). The time limits may be waived when the project would require compliance with both CEQA and the National Environmental Policy Act (NEPA), or the applicant has requested or consented to a waiver of the time limits.
C. Applicant failure to notify City. Failure of an applicant to notify the City in writing of the current status of the project and/or failure to pay the administrative cost of starting the EIR within 20 days of the final decision to prepare the EIR, shall automatically terminate any further City consideration of the project.
9.78.110 Review and Determination Procedures
A. Application content and completeness. Each application shall contain sufficient information to allow for a determination whether environmental review is required and, if so, the type of environmental document to be prepared. An application shall not be deemed to be complete without this information.
B. Indemnification and Hold Harmless Agreement. The Environmental Coordinator may require an applicant for a project requiring environmental review to hold the City, its officers, employees and agents, free and harmless from any claim, action or proceeding attacking or seeking to set aside the approval of an applicant’s project.
C. Preliminary determination. Upon receipt by the lead City Department of an application for project approval, or a proposal for a public project, a copy of the application or proposal shall be forwarded to the City’s Environmental Coordinator. The Environmental Coordinator shall make a preliminary determination and report the determination to the lead City Department and the applicant or applicant’s representative.
D. Categorical exemption projects.
1. Certain projects have no substantial environmental impact by their very nature, generally because of the size or type of activity.
2. These projects, as identified by the State Resources Agency, shall be categorically exempt from further provisions of this Chapter.
3. The list of categorical exemptions is published by the State Resources Agency and amended from time to time.
4. In the event that the State no longer publishes a list, a similar list shall be adopted by the Council.
5. A Notice of Exemption if required by the City, shall include a statement that the subject project is categorically exempt (PRC Section 21152), shall be noticed and filed with the County Recorders Office (14 CCR Section 15061d) after project approval.
E. Initial study and determination.
1. Detailed project description and initial study. Along with the formal application the applicant shall submit a detailed project description and an initial study evaluating the project’s potential environmental significance. At this time any potential adverse environmental impacts should be identified. The initial study requirement may be waived for EIRs.
2. Contents of initial study.
a. The initial study shall consist of a checklist and any other materials which may be necessary to determine what level of environmental reporting would be required (e.g., Negative Declaration or an EIR).
b. The initial study may also be used to determine suggested modifications to the project which, if incorporated into the project design, may reduce the level of environmental reporting required.
c. Information in the initial study that may also help determine whether a mitigation monitoring program would be necessary.
F. Submission of data. The Environmental Coordinator may require the applicant to revise the initial study or supply additional data and information necessary for making an environmental determination. The data and information shall be submitted in any format approved by the Environmental Coordinator and may be included, in whole or in part, within any report or determination.
G. Determination.
1. If the initial study or other information discloses potential adverse effects of the proposed project, the applicant may submit proposed changes in the project to mitigate the potentially adverse impacts to a less than significant level.
2. If this information shows that impacts can be avoided, or reduced to a less than significant level, the Environmental Coordinator may then determine that the project will not have a significant impact and proceed with preparation of a Negative Declaration in compliance with Section 9.78.120 (Negative Declaration), below.
3. Preparation of a Negative Declaration may serve as the written determination and will be publicly noticed.
4. The determination shall be completed within 45 days after accepting a complete application.
5. If the submitted information is not considered sufficient to avoid potentially significant impacts, then an EIR shall be prepared in compliance with Section 9.78.130 (Draft EIR), below.
9.78.120 Negative Declaration
In this Chapter, references to Negative Declarations shall implicitly include Mitigated Negative Declarations, as applicable.
A. Notice of intention.
1. Notice required. If the Environmental Coordinator determines that a Negative Declaration shall be proposed, a notice of intent to adopt the Negative Declaration shall appear in the legal advertisement section of a newspaper of general circulation at least 21 days before either the public hearing on the project, if a hearing is required, or project approval, if no hearing is required.
2. Whom shall receive notice. In addition to a legal advertisement in the newspaper, notice shall be given to the County Clerk and all responsible agencies in compliance with Section 15072 of the CEQA Guidelines and to other public agencies having jurisdiction. Additionally, notice may be given to persons having special expertise as provided by the CEQA Guidelines. The notice shall be given at least 21 days before the adoption of the Negative Declaration.
3. 30-day review period . The public review period shall be 30 days for projects where a Negative Declaration is prepared and circulated to the State Clearinghouse per Section 15073 of the CEQA Guidelines. In these cases the notice shall be provided to the County Clerk at least 30 days before the public hearing or decision on the project.
4. Appeal of decision. The decision to file a Negative Declaration may be appealed by any interested party in compliance with Chapter 9.76 (Appeals). In cases where project modification would make the environmental effect insignificant, a provisional Negative Declaration may be issued based upon project modification as required to reduce the environmental effects. The Negative Declaration processing fee shall be identified in the City’s Fee Schedule.
B. Contents. All Negative Declarations prepared by or for the City shall contain the following information:
1. A complete project description;
2. A location map for the project, including the address;
3. A proposed finding that the project will not have a significant effect on the environment;
4. The Initial Study which supports the above finding;
5. Mitigation measures, if any, to avoid potentially significant effects. The applicant shall agree in writing to the mitigation measures identified; and
6. Where a project involves a site that the Department of Toxic Substances Control and the Secretary for Environmental Protection have identified as being affected by hazardous wastes or cleanup problems, in compliance with State law (Government Code Section 65962.5), the Negative Declaration shall make that fact clear.
C. Changes before public review. Changes in the project description which are designed to mitigate significant environmental effects to a level of insignificance shall be completed before the draft Negative Declaration is released for public review, as required by Section 15070 (b)(1) of the CEQA Guidelines. New or additional mitigation measures developed to clearly avoid or mitigate significant environmental impacts, and any applicable monitoring program, shall be agreed to by the applicant before the release and public review of the draft Negative Declaration.
D. Required findings. In adopting a Negative Declaration, the review authority shall determine that the project would not have a significant adverse effect on the environment, consistent with CEQA Guidelines Section 15065, and make findings that the project will not:
1. Substantially degrade environmental quality;
2. Substantially reduce fish or wildlife habitat;
3. Cause a fish or wildlife habitat to fall below self-sustaining levels;
4. Threaten to eliminate a plant or animal community;
5. Reduce the numbers or range of a rare, threatened, or endangered species;
6. Eliminate important examples of the major periods of California history or pre-history;
7. Achieve short term goals to the disadvantage of long term goals;
8. Have possible environmental effects that are individually limited but cumulatively considerable when viewed in connection with past, current, and reasonably anticipated future projects; and
9. Have environmental effects that will directly or indirectly cause substantial adverse effects on human beings.
E. Hearing and adoption.
1. Action on Negative Declaration. Before making a determination on a project, the review authority shall conduct a public hearing to consider the Negative Declaration. The review authority shall either adopt the Negative Declaration, or return it to City staff for further study. The applicant shall address any adverse impacts identified by the review authority and may revise the project to alleviate these impacts. Any revisions to a Negative Declaration shall be conducted in compliance with Section 15073.5 and 15074.1 of the CEQA Guidelines.
2. Switching from a Negative Declaration to an EIR. If the review authority finds that there is substantial evidence, in light of the whole record, that the project, even if revised, may have a significant effect on the environment which cannot be mitigated or avoided, they shall require the applicant to prepare an EIR for the subject project.
F. Notice of Determination. Following adoption of the Negative Declaration, it shall be signed by the Environmental Coordinator. A Notice of Determination shall be filed with the County Clerk and with the Secretary for Resources, if required by the CEQA Guidelines (see Public Resources Code Sections 21152 [a] and 21152.1). Where fees are required to be paid at the time of filing, the Environmental Coordinator shall specify the manner in which those fees are to be handled. (Ord. 1392, eff. 5/15/2009)
9.78.130 Draft Environmental Impact Report
A. Notice of Preparation. Immediately after determining that an EIR is required for a project, the Environmental Coordinator shall send a Notice of Preparation (NOP) to each responsible agency by certified mail and to the State Clearinghouse, stating that an EIR is being prepared.
B. Preparation and adequacy.
1. Preparation of draft EIR.
a. When an EIR is required, the Environmental Coordinator shall determine if the EIR shall be prepared by staff or consultant under contract to the City, per CEQA Guidelines Section 15084a.
b. If the EIR is to be prepared by a consultant, the City shall request EIR proposals under established criteria and select a qualified consultant from respondents, other than the applicant.
c. The City retains the right to hire separate consultants for review of the draft documents.
d. The applicant shall enter into a contract with the City for all EIR preparation costs.
2. Deposit of EIR costs required. The applicant shall deposit with the City EIR contract costs and administrative costs in compliance with the City’s Fee Schedule.
3. Compliance with CEQA. The consultant’s contract shall specify that the EIR shall be prepared to comply with CEQA, the CEQA Guidelines, this Chapter and as determined by the City.
4. Information submitted by applicant. Information submitted by the applicant, after independent analysis, may be included, in whole or in part, within the draft EIR.
5. Preparation of EIR for public project. The City may prepare the draft EIR, in whole or in part, for public projects.
6. Administrative review. The Environmental Coordinator shall review an administrative draft EIR and either determine that it is adequate and authorize preparation of the draft EIR, or determine that the administrative draft EIR is inadequate and return it to the preparer for further analysis.
C. Distribution and review.
1. Public review of draft EIR.
a. Public participation is an essential part of CEQA, in compliance with CEQA Guidelines Section 15201.
b. The City shall provide at least 30 days for public review of the draft EIR.
c. A draft EIR sent to the State Clearinghouse shall include a Notice of Completion, which specifies public review period dates consistent with Clearinghouse requirements for State agency review in compliance with CEQA Guidelines Section 15085.
d. The time for review shall commence the day copies of the draft EIR are received by the Clearinghouse.
2. Public notice. Public notice of the review period shall be given in compliance with Public Resources Code Section 21092. The public notice shall be published in a newspaper of general circulation, and posted in the County Clerk’s office for 30 days.
3. Access to draft EIR. Copies of the draft EIR may be purchased from the City Clerk and/or from a local copy shop for the cost of duplication. An electronic version may also be available from the City.
4. Notice of Availability. The Notice of Availability shall be filed with the County Clerk, all responsible and trustee agencies, and distributed to any person or organization requesting a copy, or who previously requested a copy.
D. Hearing. During the public review period, the review authority may hold a public hearing to accept written and oral comments on the draft EIR.
9.78.140 Final Environmental Impact Report
A. Preparation. Upon completion of the public review period, the Environmental Coordinator shall collect all comments on the draft EIR and provide them to the City’s consultant or City staff. Those comments and appropriate responses shall be included in the final EIR.
B. Review.
1. Administrative review. If requested by the Environmental Coordinator, the City’s consultant or City staff shall submit for review an administrative draft of the final EIR. The Environmental Coordinator shall either determine that it is adequate and authorize preparation of the final EIR, or determine that it is inadequate and return it to the preparer for further analysis.
2. Copies of final EIR. Copies of the final EIR shall be placed in the City Clerk’s office, public library, and in locations designated by the Environmental Coordinator.
3. Access to final EIR. Copies of the final EIR may be purchased from the City Clerk and/or from a local copy shop for the cost of duplication. An electronic version may also be available from the City.
C. Certification. The review authority shall consider and review the final EIR before taking any action on the subject project and shall:
1. Certify compliance with CEQA. Certify that the final EIR has been prepared in compliance with CEQA and this Chapter, that it has been reviewed and considered by the review authority; and that it represents the City’s independent judgment and analysis; or
2. Determine the final EIR to be inadequate. Determine that the final EIR is inadequate, and return it to the City’s consultant or City staff for further processing.
9.78.150 Standards of Adequacy
A. Sufficient degree of analysis.
1. An EIR should be prepared with a sufficient degree of analysis to provide the decision makers with information which enables them to make a decision which intelligently takes into account all potential environmental consequences.
2. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.
3. Disagreement among experts does not make an EIR inadequate.
4. The courts have looked not for perfection but for adequacy, completeness, and good faith effort at full disclosure.
B. Responsibility for adequacy. The draft and final EIRs shall reflect the City’s independent judgment in compliance with CEQA Guidelines Section 15084.
9.78.160 Content of Environmental Impact Report
A. Mandatory topics. All EIRs prepared by or for the City shall include discussion of the following topics as required by CEQA Guidelines Sections 15122 through 15132:
1. Table of contents or index;
2. Summary of discussion contained in the draft EIR;
3. Project description;
4. Environmental setting;
5. Significant environmental effects of the project (including direct, indirect, short-term, cumulative, and unavoidable impacts);
6. Areas of known controversy;
7. Alternatives to the proposed project, including the No-Project Alternative, and identification of the environmentally superior alternative;
8. Mitigation measures for the identified significant environmental effects;
9. Growth-inducing impacts; and
10. Significant irreversible changes due to the proposed project (required only for EIRs on plans, policies, ordinances, Local Agency Formation Commission Actions, and EIR/EISs).
B. Data from other reports. In preparation of the report, data and conclusions may be drawn from other reports accepted by the City which may be referenced.
C. Most critical impacts. The EIR shall address all potential environmental impacts, but concentrate on potential impacts with the greatest adverse effects.
9.78.170 Findings
A. Reviewed and considered the EIR. Before the review authority acts on a project for which an EIR has been certified, it shall certify that it has reviewed and considered the information identified in the EIR, and it shall determine whether the project will or will not have a significant effect on the environment.
B. Required findings. The review authority shall not approve or carry out a project where the certified EIR identifies one or more significant environmental effects without a Statement of Overriding Consideration (see Subsection C, below), unless it makes one or more of the following findings, supported by written evidence:
1. Changes or alterations, which have been required in or incorporated into the project, mitigate or avoid the significant environmental effects identified in the certified EIR.
2. The changes or alterations are within the responsibility and jurisdiction of another public agency, and the changes have been adopted by the other agency or can and should be adopted by the other agency.
3. Specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the certified EIR.
C. Statement of Overriding Considerations.
1. Social and economic benefits. The review authority may approve a project which may result in significant adverse effects on the environment if it determines that there are social and economic benefits which outweigh the possibility of environmental damage.
2. Benefits outweigh the potential environmental effects. In this case the review authority shall issue a Statement of Overriding Considerations stating how they arrived at the conclusion that the overall potential benefits outweigh the potential environmental effects.
3. Publishing of statement. The statement shall be published in a newspaper of general circulation within 14 days of the review authority’s decision.
9.78.180 Notice of Determination
A. After approval or disapproval of a project for which a final EIR has been certified or a Negative Declaration made, the Environmental Coordinator shall file a Notice of Determination with the County Clerk in compliance with the CEQA Guidelines.
B. If the project requires discretionary approval from a State agency, the Notice of Determination also shall be filed with the Secretary of Resources.