CEQA Exemptions—An Introduction for Land Owners

CEQA exemptions allow lead agencies to bypass the CEQA review process. They need only file a notice of exemptions when the project is approved. There are two types of exemptions in the CEQA guidelines—categorical and statutory. This post will discuss both types of exemptions, and their relevance to residential projects in California.

Most CEQA Exemptions are Not Applicable

CEQA exemptions in the CEQA guidelines for residential projects are not common. Statutory exemptions (defined by PRC § 21080) apply only to certain, non-residential projects. However, a few categorical exemptions do apply to certain residential projects. These are Class 1, 3, and 32 categorical exemptions.

1.  A Class 1 exemption is known as the ‘existing facilities’ exemption. This exemption applies to condo conversions.
2. A Class 3 exemption applies to “New construction or conversion of small structures.” This allows for a single-family home in a residential zone or up to three in an urban area. For multi-family structures, this exemption covers up to four units and six units or less for residential and urban areas, respectively.
3. Class 32 exemptions apply to projects considered in-fill development. Article 19 of the CEQA Guidelines lays out the five conditions a project must meet to be considered in-fill.

Despite over 50 categorical and statutory exemptions, few are applicable to residential projects. Further, categorical exemptions are only applicable if it’s found that there is no possible significant environmental effect. In practice, it’s much more common for a residential project to be “streamlined” through CEQA as opposed to being totally exempt.

As I discussed in my article on the CEQA checklist, CEQA’s threshold for legal action is low. Meaning developers are constantly at risk of litigation. Getting a project approved with an exemption leaves developers extra vulnerable to litigation.

So What are CEQA Exemptions Good for?

CEQA exemptions were not created with residential development in mind. CEQA is an environmental law. And residential development, because it results in a physical change, is rarely exempt.

Exemptions are made only for projects that are not going to have an impact on the environment. The only exception is statutory exemptions. These allow for emergency projects, mass transit projects, general plan time extensions, and more. These projects may proceed without lengthy review, even if they have a significant effect on the environment.

CEQA Streamlining and other CEQA Exemptions

What is much more common in residential projects is CEQA streamlining. A residential project must fit certain criteria to be eligible for CEQA streamlining. And the extent to which the project will be streamlined varies. Some qualifying projects may avoid any environmental review whatsoever. More commonly, streamlined projects still require review, but the requirements are less stringent.

There are more exemptions available than those provided in the CEQA guidelines. They mostly apply to projects in what are called “transit priority areas,” and other projects that exhibit environmental leadership. Other exemptions or streamlined options also exist for in-fill projects.

For residential project, it’s more relevant to focus on streamlining options rather than CEQA exemptions. That’s why we’ll have a whole post dedicated to the subject.