2005 California Public Resources Code Sections 21159.20-21159.27 Article 6. Special Review of Housing Projects

21159.20.  For the purposes of this article, the following terms
have the following meanings:
   (a) "Census-defined place" means a specific unincorporated land
area within boundaries determined by the United States Census Bureau
in the most recent decennial census.
   (b) "Community-level environmental review" means either of the
following:
   (1) An environmental impact report certified on any of the
following:
   (A) A general plan.
   (B) A revision or update to the general plan that includes at
least the land use and circulation elements.
   (C) An applicable community plan.
   (D) An applicable specific plan.
   (E) A housing element of the general plan, if the environmental
impact report analyzed the environmental effects of the density of
the proposed project.
   (2) Pursuant to this division and the implementing guidelines
adopted pursuant to this division that govern subsequent review
following a program environmental impact report, or pursuant to
Section 21157.1, 21157.5, or 21166, a negative declaration or
mitigated negative declaration was adopted as a subsequent
environmental review document, following and based upon an
environmental impact report on any of the projects listed in
subparagraphs (A), (C), or (D) of paragraph (1).
   (c) "Low-income households" means households of persons and
families of very low and low income, as defined in Sections 50093 and
50105 of the Health and Safety Code.
   (d) "Low- and moderate-income households" means households of
persons and families of low or moderate income, as defined in Section
50093 of the Health and Safety Code.
21159.21.  A housing project qualifies for an exemption from this
division pursuant to Section 21159.22, 21159.23, or 21159.24 if it
meets the criteria in the applicable section and all of the following
criteria:
   (a) The project is consistent with any applicable general plan,
specific plan, and local coastal program, including any mitigation
measures required by a plan or program, as that plan or program
existed on the date that the application was deemed complete and with
any applicable zoning ordinance, as that zoning ordinance existed on
the date that the application was deemed complete, except that a
project shall not be deemed to be inconsistent with the zoning
designation for the site if that zoning designation is inconsistent
with the general plan only because the project site has not been
rezoned to conform with a more recently adopted general plan.
   (b) Community-level environmental review has been adopted or
certified.
   (c) The project and other projects approved prior to the approval
of the project can be adequately served by existing utilities, and
the project applicant has paid, or has committed to pay, all
applicable in-lieu or development fees.
   (d) The site of the project does not contain wetlands, does not
have any value as a wildlife habitat, and the project does not harm
any species protected by the federal Endangered Species Act of 1973
(16 U.S.C. Sec. 1531 et seq.) or by the Native Plant Protection Act
(Chapter 10 (commencing with Section 1900) of Division 2 of the Fish
and Game Code), the California Endangered Species Act (Chapter 1.5
(commencing with Section 2050) of Division 3 of the Fish and Game
Code), and the project does not cause the destruction or removal of
any species protected by a local ordinance in effect at the time the
application for the project was deemed complete.  For the purposes of
this subdivision, "wetlands" has the same meaning as in Section
328.3 of Title 33 of the Code of Federal Regulations and "wildlife
habitat" means the ecological communities upon which wild animals,
birds, plants, fish, amphibians, and invertebrates depend for their
conservation and protection.
   (e) The site of the project is not included on any list of
facilities and sites compiled pursuant to Section 65962.5 of the
Government Code.
   (f) The site of the project is subject to a preliminary
endangerment assessment prepared by a registered environmental
assessor to determine the existence of any release of a hazardous
substance on the site and to determine the potential for exposure of
future occupants to significant health hazards from any nearby
property or activity.
   (1) If a release of a hazardous substance is found to exist on the
site, the release shall be removed, or any significant effects of
the release shall be mitigated to a level of insignificance in
compliance with state and federal requirements.
   (2) If a potential for exposure to significant hazards from
surrounding properties or activities is found to exist, the effects
of the potential exposure shall be mitigated to a level of
insignificance in compliance with state and federal requirements.
   (g) The project does not have a significant effect on historical
resources pursuant to Section 21084.1.
   (h) The project site is not subject to any of the following:
   (1) A wildland fire hazard, as determined by the Department of
Forestry and Fire Protection, unless the applicable general plan or
zoning ordinance contains provisions to mitigate the risk of a
wildland fire hazard.
   (2) An unusually high risk of fire or explosion from materials
stored or used on nearby properties.
   (3) Risk of a public health exposure at a level that would exceed
the standards established by any state or federal agency.
   (4) Within a delineated earthquake fault zone, as determined
pursuant to Section 2622, or a seismic hazard zone, as determined
pursuant to Section 2696, unless the applicable general plan or
zoning ordinance contains provisions to mitigate the risk of an
earthquake fault or seismic hazard zone.
   (5) Landslide hazard, flood plain, flood way, or restriction zone,
unless the applicable general plan or zoning ordinance contains
provisions to mitigate the risk of a landslide or flood.
   (i) (1) The project site is not located on developed open space.
   (2) For the purposes of this subdivision, "developed open space"
means land that meets all of the following criteria:
   (A) Is publicly owned, or financed in whole or in part by public
funds.
   (B) Is generally open to, and available for use by, the public.
   (C) Is predominantly lacking in structural development other than
structures associated with open spaces, including, but not limited
to, playgrounds, swimming pools, ballfields, enclosed child play
areas, and picnic facilities.
   (3) For the purposes of this subdivision, "developed open space"
includes land that has been designated for acquisition by a public
agency for developed open space, but does not include lands acquired
by public funds dedicated to the acquisition of land for housing
purposes.
   (j) The project site is not located within the boundaries of a
state conservancy.
21159.22.  (a) This division does not apply to any development
project that meets the requirements of subdivision (b), and meets
either of the following criteria:
   (1) Consists of the construction, conversion, or use of
residential housing for agricultural employees, and meets all of the
following criteria:
   (A) Is affordable to lower income households, as defined in
Section 50079.5 of the Health and Safety Code.
   (B) Lacks public financial assistance.
   (C) The developer of the development project provides sufficient
legal commitments to the appropriate local agency to ensure the
continued availability and use of the housing units for lower income
households for a period of at least 15 years.
   (2) Consists of the construction, conversion, or use of
residential housing for agricultural employees and meets all of the
following criteria:
   (A) Is housing for very low, low-, or moderate-income households
as defined in paragraph (2) of subdivision (h) of Section 65589.5 of
the Government Code.
   (B) Public financial assistance exists for the development
project.
   (C) The developer of the development project provides sufficient
legal commitments to the appropriate local agency to ensure the
continued availability and use of the housing units for low- and
moderate-income households for a period of at least 15 years.
   (b) (1) If the development project is proposed within incorporated
city limits or within a census defined place with a minimum
population density of at least 5,000 persons per square mile, it is
located on a project site that is adjacent, on at least two sides, to
land that has been developed, and consists of not more than 45
units, or is housing for a total of 45 or fewer agricultural
employees if the housing consists of dormitories, barracks, or other
group living facilities.
   (2) If the development project is located on a project site zoned
for general agricultural use, and consists of not more than 20 units,
or is housing for a total of 20 or fewer agricultural employees if
the housing consists of dormitories, barracks, or other group living
facilities.
   (3) The project satisfies the criteria in Section 21159.21.
   (4) The development project is not more than five acres in area,
except that a project site located in an area with a population
density of at least 1,000 persons per square mile shall not be more
than two acres in area.
   (c) Notwithstanding subdivision (a), if a project satisfies the
criteria described in subdivisions (a) and (b), but does not satisfy
the criteria described in paragraph (1) of subdivision (b), this
division does not apply to the project if the project meets all of
the following criteria:
   (1) Is located within either an incorporated city or a
census-defined place.
   (2) The population density of the incorporated city or
census-defined place has a population density of at least 1,000
persons per square mile.
   (3) The project site is adjacent on at least two sides to land
that has been developed and the project consists of not more than 45
units, or the project consist of dormitories, barracks, or other
group housing facilities for a total of 45 or fewer agricultural
employees.
   (d) Notwithstanding subdivision (c), this division shall apply to
a project that meets the criteria described in subdivision (c) if a
public agency that is carrying out or approving the project
determines that there is a reasonable possibility that the project,
if completed, would have a significant effect on the environment due
to unusual circumstances or that the cumulative impacts of successive
projects of the same type in the same area, over time, would be
significant.
   For the purposes of this section, "agricultural employee" has the
same meaning as defined by subdivision (b) of Section 1140.4 of the
Labor Code.
21159.23.  (a) This division does not apply to any development
project that consists of the construction, conversion, or use of
residential housing consisting of 100 or fewer that is affordable to
low-income households if both of the following criteria are met:
   (1) The developer of the development project provides sufficient
legal commitments to the appropriate local agency to ensure the
continued availability and use of the housing units for lower income
households, as defined in Section 50079.5 of the Health and Safety
Code, for a period of at least 30 years, at monthly housing costs, as
determined pursuant to Section 50053 of the Health and Safety Code.
   (2) The development project meets all of the following
requirements:
   (A) The project satisfies the criteria described in Section
21159.21.
   (B) The project site meets one of the following conditions:
   (i) Has been previously developed for qualified urban uses.
   (ii) The parcels immediately adjacent to the site are developed
with qualified urban uses, or at least 75 percent of the perimeter of
the site adjoins parcels that are developed with qualified urban
uses and the remaining 25 percent of the perimeter of the site
adjoins parcels that have previously been developed for qualified
urban uses, and the site has not been developed for urban uses and no
parcel within the site has been created within 10 years prior to the
proposed development of the site.
   (C) The project site is not more than five acres in area.
   (D) The project site is located within an urbanized areaor within
a census-defined place with a population density of at least 5,000
persons per square mile or, if the project consists of 50 or fewer
units, within an incorporated city with a population density of at
least 2,500 persons per square mile and a total population of at
least 25,000 persons.
   (b) Notwithstanding subdivision (a), if a project satisfies all of
the criteria described in subdivision (a) except subparagraph (D) of
paragraph (2) of that subdivision, this division does not apply to
the project if the project is located within either an incorporated
city or a census defined place with a population density of at least
1,000 persons per square mile.
   (c) Notwithstanding subdivision (b), this division applies to a
project that meets the criteria of subdivision (b), if there is a
reasonable possibility that the project would have a significant
effect on the environment or the residents of the project due to
unusual circumstances or due to the related or cumulative impacts of
reasonably foreseeable projects in the vicinity of the project.
   (d) For the purposes of this section, "residential" means a use
consisting of either of the following:
   (1) Residential units only.
   (2) Residential units and primarily neighborhood-serving goods,
services, or retail uses that do not exceed 15 percent of the total
floor area of the project.
21159.24.  (a) Except as provided in subdivision (b), this division
does not apply to a project if all of the following criteria are met:
   (1) The project is a residential project on an infill site.
   (2) The project is located within an urbanized area.
   (3) The project satisfies the criteria of Section 21159.21.
   (4) Within five years of the date that the application for the
project is deemed complete pursuant to Section 65943 of the
Government Code, community-level environmental review was certified
or adopted.
   (5) The site of the project is not more than four acres in total
area.
   (6) The project does not contain more than 100 residential units.
   (7) Either of the following criteria are met:
   (A) (i) At least 10 percent of the housing is sold to families of
moderate income, or not less than 10 percent of the housing is rented
to families of low income, or not less than 5 percent of the housing
is rented to families of very low income.
   (ii) The project developer provides sufficient legal commitments
to the appropriate local agency to ensure the continued availability
and use of the housing units for very low, low-, and moderate-income
households at monthly housing costs determined pursuant to paragraph
(3) of subdivision (h) of Section 65589.5 of the Government Code.
   (B) The project developer has paid or will pay in-lieu fees
pursuant to a local ordinance in an amount sufficient to result in
the development of an equivalent number of units that would otherwise
be required pursuant to subparagraph (A).
   (8) The project is within one-half mile of a major transit stop.
   (9) The project does not include any single level building that
exceeds 100,000 square feet.
   (10) The project promotes higher density infill housing. A project
with a density of at least 20 units per acre shall be conclusively
presumed to promote higher density infill housing. A project with a
density of at least 10 units per acre and a density greater than the
average density of the residential properties within 1,500 feet shall
be presumed to promote higher density housing unless the
preponderance of the evidence demonstrates otherwise.
   (b) Notwithstanding subdivision (a), this division shall apply to
a development project that meets the criteria described in
subdivision (a), if any of the following occur:
   (1) There is a reasonable possibility that the project will have a
project-specific, significant effect on the environment due to
unusual circumstances.
   (2) Substantial changes with respect to the circumstances under
which the project is being undertaken that are related to the project
have occurred since community-level environmental review was
certified or adopted.
   (3) New information becomes available regarding the circumstances
under which the project is being undertaken and that is related to
the project, that was not known, and could not have been known, at
the time that community-level environmental review was certified or
adopted.
   (c) If a project satisfies the criteria described in subdivision
(a), but is not exempt from this division as a result of satisfying
the criteria described in subdivision (b), the analysis of the
environmental effects of the project in the environmental impact
report or the negative declaration shall be limited to an analysis of
the project-specific effect of the projects and any effects
identified pursuant to paragraph (2) or (3) of subdivision (b).
   (d) For the purposes of this section, "residential" means a use
consisting of either of the following:
   (1) Residential units only.
   (2) Residential units and primarily neighborhood-serving goods,
services, or retail uses that do not exceed 15 percent of the total
floor area of the project.
21159.25.  (a) For a project in the City of Oakland that consists of
multiple-family residential development, or a residential and
commercial or retail mixed-use development with not more than 25
percent of the total floor area of the project utilized as retail
space, a focused environmental impact report may be prepared,
notwithstanding that the project was not identified in a master
environmental impact report, if all of the following conditions are
met:
   (1) The Oakland City Council does both of the following:
   (A) Authorizes the implementation of this section.  The city
council may authorize the implementation of this section only by
voting to approve the practice of preparing focused environmental
impact reports for projects in the central business district housing
target areas specified in paragraph (11).
   (B) Determines that the general plan, zoning ordinance, and
related policies and programs are consistent with principles that
encourage compact development in a manner that does both of the
following:
   (i) Promotes efficient transportation systems, economic growth,
affordable housing, energy efficiency, and an appropriate balance of
jobs and housing.
   (ii) Protects the environment, open space, and agricultural areas.
   (2) The city submits a draft determination to the Office of
Planning and Research that the applicable general plan, zoning
ordinance, and any related policies and programs are consistent with
the principles described in subparagraph (B) of paragraph (1) prior
to the city council making its determination regarding that
consistency.  The office may submit comments on the draft findings to
the city council within 30 days from the date that the city submits
the draft determination to the office.
   (3) The city has an average population density of at least 5,000
persons per square mile.
   (4) The project is consistent with the general plan, any
applicable specific plan and community plan, and zoning ordinance,
including any variance that is properly granted pursuant to that
zoning ordinance, an environmental impact report was prepared for the
general plan, and the application for the project is deemed complete
pursuant to Section 65943 of the Government Code within three years
of the date this section is effective.
   (5) The lead agency cannot make the finding described in
subdivision (c) of Section 21157.1, a negative declaration or
mitigated negative declaration cannot be prepared pursuant to Section
21080, 21157.5, or 21158, and Section 21166 does not apply.
   (6) The project meets one or both of the following conditions:
   (A) The parcel on which the project is to be developed is
surrounded by immediately contiguous urban development.
   (B) The parcel on which the project is to be developed is, or has
been previously, developed with urban uses.
   (7) The density of the project is at least 40 units per net acre.
   (8) The parcel on which the project is to be developed is within
one-half mile of an existing rail transit station.
   (9) The project can be adequately served by existing utilities and
municipal services, and there will be adequate capacity for
infrastructure, utilities, and services to serve other projects
approved and proposed in the service area.
   (10) The project does not include a single level building that
exceeds 100,000 square feet.
   (11) The project is located in one of the following central
business district housing target areas:
   (A) The Valdez cluster, which is bounded on the west by Telegraph
Avenue, on the south by 23rd Street, on the east by Harrison Street,
and on the north by 27th Street.  A project located in this cluster
that meets the condition described in paragraph (8) may include a
portion up to one acre that does not meet that condition.
   (B) The Uptown cluster, which is bounded on the west by Castro
Street, on the south by 14th Street from Castro Street to Jefferson
Street and 16th Street and Broadway from 16th Street to 22nd Street,
and on the north by 22nd Street.
   (C) The 11th Street cluster, which is bounded by Franklin Street
from 12th Street to 15th Street, by Webster Street from 11th Street
to 12th Street, by Alice Street from 11th Street to 13th Street, by
12th Street from Franklin Street to Webster Street, by 11th Street
from Webster Street to Alice Street and 13th Street from Alice Street
to Madison Street, and on the east by Madison Street from 13th
Street to 15th Street, and on the north by 15th Street from Franklin
Street to Madison Street.
   (D) The Old Oakland cluster, which is bounded on the west by
Castro Street, on the south by 7th Street, on the east by Broadway,
and on the north by 11th Street.
   (b) A focused environmental impact report prepared pursuant to
this section shall be limited to a discussion of potentially
significant effects on the environment specific to the project.  No
discussion shall be required of alternatives to the project,
cumulative impacts of the project, or the growth inducing impacts of
the project.
   (c) (1) On or before July 1, 2004, the city shall submit a report
to the Office of Planning and Research that includes, but that is not
necessarily limited to, all of the following information:
   (A) The number of focused environmental impact reports prepared
pursuant to this section.
   (B) The types of projects for which focused environmental impact
reports were prepared pursuant to this section.
   (C) The time periods for preparing each of the focused
environmental impact reports prepared pursuant to this section, and
for acting on each project from the date that the application was
deemed complete.
   (D) A description of any alternatives to a project, cumulative
impacts of a project, growth inducing impacts of a project, or other
issues that may have been identified and analyzed if an environmental
document, other than a focused environmental impact report, had been
prepared for the project.
   (2) Prior to submitting the report to the office pursuant to
paragraph (1), the city shall hold at least one public hearing and
shall respond to oral and written comments regarding the draft
report.  The city shall include the comments and responses in the
final report.
   (d) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
21159.26.  With respect to a project that includes a housing
development, a public agency may not reduce the proposed number of
housing units as a mitigation measure or project alternative for a
particular significant effect on the environment if it determines
that there is another feasible specific mitigation measure or project
alternative that would provide a comparable level of mitigation.
This section does not affect any other requirement regarding the
residential density of that project.
21159.27.  A project may not be divided into smaller projects to
qualify for one or more exemptions pursuant to this article.