Essential Projects Under Proposition 45
In less than two weeks, when California voters go to the polls, in addition to voting on who should be governor they will also vote on Proposition 45.
Also known as the Building an Affordable California Act, this proposition has been described as providing some much needed streamlining to the California Environmental Quality Act (CEQA), while others have decried the proposition as a gutting of CEQA. Without delving into this debate, it is clear that Proposition 45 applies to “essential projects.” But what are “essential projects”?
Not every development will qualify as an “essential project.” As such, should Proposition 45 pass, the first thing to ask is whether your project would qualify as an “essential project.”
Proposition 45 applies to:
- “Essential housing projects”
- “Essential clean energy projects”
- “Essential water projects”
- “Essential public health projects”
- “Essential public safety projects”
- “Essential broadband Internet access projects”
- “Essential education facility projects”
- “Essential transportation projects”
Each one of these “essential projects” is further defined in Proposition 45. Some of these definitions may be straightforward. For example, an “essential public health project” is defined as a medical treatment facility. An “essential public safety project” is defined as a first responder facility or a wildlife risk reduction project. And, an “essential education facility project” is defined as the acquisition, construction, expansion, remodeling, renovation, improvement, furnishing or equipping of an educational facility.
Some of the “essential projects” have express carve outs in their definitions. For example, an “essential transportation project” is defined as a project described in subdivision (a) or subdivision (b) of Section 2 of Article XIX of the California Constitution, or electric vehicle charging and refueling infrastructure. But an “essential transportation project” does not include a high-speed train, a high-speed train system, a corridor or a usable segment, as those terms are defined in Streets and Highways Code section 2704.01, or any other component of the Safe, Reliable High-Speed Passenger Train Bond Act for the 21st Century. Similarly, the Delta conveyance facilities are expressly carved out from the definition of “essential water project.” A project that produces or generates electricity from nuclear power is also expressly carved out from the definition of an “essential clean energy project.”
A couple of the “essential project” categories are more specifically defined in other provisions of the proposition. For example, an “essential housing project” is generally defined to include: (i) a project composed of only residential units; (ii) a mixed-use development; (iii) transitional housing, emergency shelters, or supportive housing; (iv) farmworker housing; (v) group living accommodations; (vi) student housing units; (vii) senior housing units; (viii) a subdivision or common interest development consisting of residential units or unimproved residential lots; and (ix) the conversion of an existing commercial building to residential use. The definition of “essential clean energy project” also includes various forms of development.
Proposition 45 applies to all local and state agencies. If a project could qualify as an “essential project,” there are competing advantageous and risks that should be considered before a project opts into the Proposition 45 process. That of course assumes that Proposition 45 passes.
Please stay tuned for more analysis following the election.
