Environmental review for development projects

The California Environmental Quality Act (commonly referred to as CEQA) was adopted in 1970 and is one of the foundational environmental laws in the State of California. CEQA applies to discretionary projects, such as zoning changes, variances, conditional use permits, and subdivision maps, proposed to be approved or carried out by the City that may result in a change in the environment. The environment means the physical conditions which exist in the area including land, air, water, minerals, flora and fauna, ambient noise and objects of historic or aesthetic significance. At its core, CEQA is an informational law.  CEQA requires lead agencies, such as the City of Menlo Park, to carry out the law by analyzing potential environmental impacts of a proposed project and informing decision makers and the public of any potential environmental impacts of the proposed project and, where feasible, mitigating potential environmental impacts. Implementation of any feasible mitigations identified by the CEQA analysis would be the responsibility of the project sponsor (typically referred to as the applicant) and the lead agency would be responsible for monitoring and ensuring implementation.

The purpose of CEQA and environmental review at any level is to:

• Disclose to the public, interested agencies and decision makers the potential environmental impacts of a proposed project.
• Enhance public participation in the environmental review process through scoping meetings, public notices, public review and comment periods, and public hearings.
• Facilitate interagency coordination through notices of preparation, notices of availability, and State Clearinghouse review.
• Minimize project impacts on the environment through development of project alternatives, mitigation measures, and mitigation monitoring during project implementation.
• Publicly disclose the city’s decision-making process through findings and statements of overriding consideration (if significant and unavoidable impacts are identified and the project is approved).

The level of analysis required by CEQA is determined by the lead agency upon receipt of a proposed discretionary project. In some cases, the state has decided that no environmental review is necessary and a project is exempt from the environmental review process. There are two sources of exemptions. One source is the CEQA statute and these exemptions are referred to as “statutory exemptions.” Statutory exemptions include ministerial projects where no discretion is involved (e.g. building permit), residential infill projects meeting certain requirements, regional transportation improvement programs and housing needs allocation. The other source of exemption in the CEQA Guidelines, known as “categorical exemptions.”  Categorical exemptions include classes of projects such as replacement or reconstruction of buildings and minor alterations to land that the state has determined not to have a significant effect on the environment. If a project is not exempt, then an initial study (IS) is typically prepared to determine the level of environmental review, which can be a negative declaration (ND), mitigated negative declaration (MND), or an environmental impact report (EIR). For some projects, a lead agency may determine that an EIR is required without the need to prepare an initial study.

Typically, an initial study (IS) prepared by the lead agency is used to determine whether the appropriate CEQA document is a negative declaration (ND), a mitigated negative declaration (MND) or an environmental impact report (EIR). A ND is appropriate where all of the potential environmental impacts are less than significant.  A MND is appropriate where all potential environmental impacts can be mitigated to less than significant with the implementation of mitigation measures.  An EIR or full environmental review is only required where the proposed project could result in a significant and unavoidable adverse impact.

Because of a legal settlement agreement with the City of East Palo Alto regarding ConnectMenlo, currently some proposed projects that would require only a mitigated negative declaration (MND) are required to prepare an EIR focused on housing and transportation issues.

The CEQA process provides multiple opportunities for members of the public, interested agencies and City decision-making bodies including the Planning Commission and City Council to provide input on the scope of the analysis, the draft environmental documents and the final environmental documents. More details about the process is described in the FAQ question What are the steps in the EIR process?

Environmental documents are used as an informational tool to disclose potential environmental impacts of a proposed project.  As part of the development review process, the final decision-making body on the proposed project will make a decision to adopt a negative declaration (ND) or a mitigated negative declaration (MND) or certify an environmental impact report (EIR) as compliant with all CEQA requirements.  If the CEQA analysis shows a significant and unavoidable impact(s), the decision-makers would need to make findings and a statement of overriding considerations that the specific economic, legal, social, technological or other benefits of the proposed project outweigh the significant and unavoidable impacts before a project can be approved; otherwise the city may deny the project based upon adverse environmental impacts.

There are different steps and review timelines for a negative declaration (ND) or a mitigated negative declaration (MND), however, this discussion will focus on the environmental impact report (EIR) process. For a proposed project that requires an EIR the following steps are incorporated into the review process:

1. Notice of preparation (NOP) and EIR scoping period
   • A NOP provides public notice of the lead agency’s decision to prepare an EIR for a proposed project. 
   • A NOP may be released with an initial study (IS) analyzing and potentially scoping out topic areas that have insignificant environmental impacts or that were adequately evaluated in a previous program level EIR (as in the case of the certified ConnectMenlo program level EIR) or it may be released without an IS if no topic areas are proposed to be scoped out or the EIR is not proposed to tier from a previously certified EIR.
   • The NOP begins the 30-day EIR scoping period to solicit comments on the scope and content of the EIR, including on any topics that were scoped out based on the IS analysis.
   • During the minimum 30-day scoping period, the city solicits and receives written comments and the Planning Commission holds an EIR scoping session to solicit verbal comments on the scope and contents of the EIR for the proposed project.
   • The City will review and consider all comments in the preparation of the draft EIR.
2. Notice of Availability (NOA) and release of draft EIR (DEIR)
   • After the EIR scoping period, the City prepares a DEIR that discloses the proposed project’s potential environmental impacts, identifies applicable mitigation measures, and evaluates project alternatives that could reduce potential environmental impacts.
   • The public review period for a DEIR should not be less than 30 days nor longer than 60 days except in unusual circumstances.  If the project qualifies as a regional project, the DEIR must be submitted to the State Clearinghouse and the public comment period is automatically extended from 30 to a minimum of 45 days.
   • Potentially affected and interested parties upon request, are notified of the release of the DEIR. The City will also send notification to occupants and property owners within a minimum of 300 feet radius from the project site.
   • The DEIR is made available on the City’s website. Hard copies are typically located at the City’s public libraries or may be checked out from the library.
   • During the 45-day comment period, the Planning Commission holds a DEIR public hearing where members of the public are encouraged to provide comments on the DEIR.
   • Public comments may be provided in writing via mail or email to the project planner or orally at the Planning Commission DEIR public hearing.
3. Final EIR (FEIR) certification
   • Following the close of the DEIR comment period, the City will prepare a Response to Comments document generally referred to as the FEIR, which will include responses to all substantive comments received on the DEIR.
   • The FEIR is circulated for a minimum of 10 days prior to any final action on a proposed project.
   • The DEIR and FEIR will be considered by the final decision-making body (Planning Commission and/or City Council) in making the decision to certify the EIR as compliant with CEQA and in taking final action on the proposed project.
   • Certification of the EIR would include adoption of a mitigation monitoring and reporting program (MMRP) requiring the project to implement any required mitigation measures and the City to monitor implementation.
   • If the EIR identifies significant and unavoidable impacts from the proposed project, then the Planning Commission and/or City Council could only approve the project upon making a statement of overriding considerations (SOC) finding that the merits of the proposed project would outweigh the significant and unavoidable environmental impacts.
   • The Planning Commission and/or City Council must certify the final EIR before approving any of the project entitlements.  There is no requirement to approve a project for which an EIR has been certified as compliant with CEQA requirements.
4. Notice of determination (NOD)
   • Upon certification of the EIR, the City will file a NOD with the San Mateo County Clerk’s office, the State Office of Planning and Research, and the State Clearinghouse.