Article 2.2 — Exemption Process

The provisions of this article shall be known as the exemption process. The purpose of these provisions is to prescribe the procedure for making, appealing, and processing determinations of exemption from environmental review under CEQA. This process shall apply to all projects which are determined to be exempt from environmental review under CEQA.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1200)

For a public project, any city body or officer may make a finding that an action is not subject to environmental review, consistent with the provisions of these procedures. The Environmental Review Officer or his/her representative, the Environmental Review Coordinator, may be requested to make or to confirm such finding by forwarding to him or her a request for determination of exemption from environmental review on a form prescribed by the City Planning Department. In evaluating a proposed activity to determine if there is no possibility that the activity may have a significant effect on the environment, the overall consequences of the city's discretionary action shall be considered, including direct and indirect results.

For a private project, the project sponsor shall submit a request for determination of exemption from environmental review on a form prescribed by the Environmental Review Officer and the appropriate fee according to the master fee schedule. In evaluating a proposed activity to determine if there is no possibility that the activity may have a significant effect on the environment, the overall consequences of

the discretionary action shall be considered, including direct and indirect results. Should the project sponsor believe that the proposed project is not an exemptible project, the project sponsor may prepare and submit a request for environmental review. The process for this step is discussed in Section 17.58.320A of these Environmental Review Regulations.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1210)

Any determination of exemption except those made by a final decision-making body, may be appealed to the City Planning Commission as set forth in Section 17.158.220A.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1220)

Following approval of an exempt project, the Environmental Review officer may be responsible for preparing a notice of exemption, and may cause the notice of exemption and any pertinent fees to be filed with the County Clerk.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1230)

A.

Applicability to Overall Project. When determining whether a particular action or permit is exempt from environmental review, the overall project to which the action or permit is related shall be considered, and the exemption criteria shall be applied to the overall project, not the individual action or permit. If the project is determined to be exempt, all actions and permits related to it shall likewise be deemed exempt. If the project is determined not to be exempt, a single environmental review shall be performed covering all actions and permits related to the project, and none of those actions or permits shall be finalized or issued until environmental review is performed. For example, an easement abandonment for the purpose of constructing a small addition to an existing house would probably be exempt, but a similar easement abandonment for the purpose of constructing a ten-unit apartment building probably would not be exempt.

B.

Applicability of Single and Multiple Exemptions. A project may be subject to more than one exemption from CEQA, in which case all applicable exemptions may be cited. If it is determined that a particular exemption does not apply to a project because of the qualifiers pertaining to that exemption, the project may still be exempt under another exemption. For example, a project involving grading and the construction of a new single- family home on a site with a fifteen (15) percent slope would not be exempt under Categorical Exemption Class 4, "Minor Alterations to Land," because of the qualifier that the slope be less than ten percent, but could still be exempt under Categorical Exemption Class 3, "New Construction or Conversion of Small Structures," because that class has no qualifier pertaining to slope. However, the "rule of reason" must be applied when considering possible multiple exemptions. For example, it would not be reasonable

to exempt a five hundred (500) unit subdivision on a flat site under Class 4 because the project involved grading on a slope of less than ten percent.

(Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11766 § 2 (part), 1994: prior planning code § 1240)

Section 15022(a)(1)(c) of the State CEQA Guidelines requires cities to list those specific activities that are considered to be within the twenty-nine (29) classes of categorical exemptions listed in Article 19 of the Guidelines, provided that none of the exceptions to categorical exemptions identified in Guidelines Section 15300.2, nor any of the qualifiers listed in the individual exemption classes in Sections 15301 through 15329, inclusive, of the State CEQA Guidelines, apply. These activities include but are not limited to the following:

A.

New Construction or Conversion of Small Structures.

Three or fewer single-family homes (Section 15303(a), Class 3).

Apartments with six or fewer units in a single structure (Section 15303(b), Class 3).

Nonresidential buildings with a legal occupant load of thirty (30) persons or less as determined in accordance with the provisions of the Oakland Building Code (Section 15303(c), Class 3).

Utility extensions to serve such construction (Section 15303(d), Class 3).

Accessory structures including but not limited to garages, carports, patios, swimming pools, and fences (Section 15303(e), Class 3).

B.

Additions and Alterations.

Minor interior or exterior alterations to existing structures (Section 15301(a), Class 1).

Additions of ten thousand (10,000) square feet or less to existing structures (Section 15301(e), Class 1).

Seismic retro-fitting of buildings and structures (Section 15302, Class 2).

Minor addition to schools (Section 15314, Class 14).

C.

Condominium Conversions.

Conversion of existing multiple-family residential rental units into condominiums (Section 15301(k), Class 1).

Conversion of existing commercial units in one structure from single to condominium type ownership (Section 15301(o), Class 1).

D.

Subdivision Matters.

Tentative parcel maps for four or fewer lots (Section 15315, Class 15).

Parcel map waivers (Section 15305(a), Class 5).

Private access easements (Section 15305, Class 5).

E.

Tree Removal Permits.

Nondevelopment related tree removal permits (Section 15301(h), Class 1).

Development related tree removal permits if no single tree to be removed has a diameter at breast height of thirty-six (36) inches or greater, and the cumulative trunk area of all trees to be removed, not including hazardous trees, does not exceed 0.1 percent of the total lot area (Section 15304, Class 4).

F.

Other Development Permits.

Encroachment permits (Section 15305(b), Class 5).

Abandonment of public easements (Section 15305, Class 5).

Grading, excavation, and obstruction permits for new construction projects listed in subsection A of this section (Section 15303, Class 3).

Grading, excavation, and obstruction permits for additions and alterations listed in subsection B of this section (Section 15301, Class 1).

G.

Demolition of Nonhistoric Structures.

Three or fewer single-family homes (Section 15301(I)(1), Class 1).

Apartments with six or fewer units in a single structure (Section 15301(I)(2), Class 1).

Nonresidential buildings with a legal occupant load of thirty (30) persons or less as determined in accordance with the provisions of the Oakland Building Code (Section 15301(I)(3), Class 1).

Accessory structures including but not limited to garages, carports, patios, swimming pools, and fences (Section 15301(I)(4), Class 1).

H.

Land and Housing Acquisition.

Land acquisition for open space (Sections 15315, 15316, 15317, or 15325; Classes 15, 16, 17, or 25 respectively).

Land acquisition for construction of three or fewer single-family homes for low and moderate income households (Section 15303, Class 3).

Sales of surplus public property (Section 15312(a)(b)(1)(2)(3), Class 12).

Annexations of areas containing existing public or private structures developed to densities allowed by the current zoning or pre-zoning; provided, that extension of utility services would have a capacity to serve only the existing facilities (Section 15319(a)(b), Class 19).

Leasing of space by the city (Section 15327, Class 27).

Acquisition of housing for housing assistance programs (Section 15326, Class 26).

I.

Minor Projects in Public Rights-of-Way.

Construction of handicap ramps on public rights-of-way (Section 15301(c), Class 1).

Installation of new traffic signalization equipment (Section 15301(c), Class 1).

Easement abandonments (Sections 15301, 15305, or 15312; Classes 1, 5, or 12 respectively).

Street vacations (Sections 15301, 15305, or 15312; Classes 1, 5, or 12 respectively).

J.

Signs and Accessory Structures.

On-premise signs, including those encroaching into the public right of way if permitted by applicable city codes (Section 15311(a), Class 11).

Surface parking lots of no more than sixty thousand (60,000) square feet that are accessory to existing commercial, industrial, or institutional facilities (Section 15311(b), Class 11).

Temporary or moveable facilities such as vending carts, sidewalk tables and chairs, newspaper racks, and portable restrooms (Section 15311(c), Class 11).

K.

Information Collection.

Planning and zoning studies for information gathering purposes only (Section 15306, Class 6).

L.

Public Gatherings.

Public gatherings such as the Festival at the Lake (Section 15323, Class 23).

M.

Energy Plants.

Installation of cogeneration equipment meeting the conditions as described in Section 15329 of the CEQA Guidelines (Section 15329(a)(1)(2), (b)(1), (2), (3), Class 29).

(Ord. 11766 § 2 (part), 1994: prior planning code § 1250)

As described in Section 15260 through Section 15277, inclusive, of the CEQA Guidelines, there are statutory exemptions to CEQA granted by the State Legislature. The purpose of statutory exemptions is to excuse the environmental review process for an entire class of projects. This is in contrast to categorical exemptions where there may be exceptions cited if the proposed project would otherwise have a potentially adverse environmental effect. The list and description of statutory exemptions is not a comprehensive listing as cited in CEQA or the CEQA Guidelines, but rather, it is a list of those that are pertinent to the city. Omission of statutory exemptions that are found in CEQA and the CEQA Guidelines, do not void their appropriate application to specific projects in instances shown below. Therefore, statutory exemptions are described but not limited to those below:

A.

Ongoing Project.

If a public project was approved prior to November 23, 1970, the project shall be exempt from CEQA unless a substantial portion of public funds allocated for the project have not been spent, making it feasible to modify the project or in some other way mitigate potentially adverse environmental effects. An ongoing project may also be subject to CEQA if there are modifications to the project in such a way that there may be new significant effect on the environment (Section 15261(a)(1)(2)).

A private project is exempt from CEQA if the project received an entitlement for use from a public agency prior to April 5, 1973, unless after April 5, 1973, the project received additional discretionary governmental approvals that involve a greater degree of responsibility or control over the project as a whole than did the approvals of entitlements prior to April 5, 1973 (Section 15261(b)(1) (2)(3)).

B.

Feasibility and Planning Studies. Feasibility and planning studies for possible future actions which have not been approved, adopted, or funded are exempt. However, the study should still require environmental consideration. This statutory exemption would not apply to the adoption of a plan that will have a legally binding effect on later activities. For example, the adoption of the Oakland general plan would be subject to CEQA, and an EIR should be prepared (Section 15262).

C.

General Plan Time Extension. The granting of a time extension by the State Office of Planning and Research to the city for the preparation and adoption of one or more elements of the general plan would be statutorily exempt (Section 15266).

D.

Ministerial Projects. Ministerial projects as defined by Section 17.158.090, and described in Section 17.158.180, are exempt from the requirements of CEQA (Section 15268).

E.

Emergency Projects. The following projects are defined as emergency projects and not subject to CEQA:

Projects to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster stricken area in which a state of emergency has been proclaimed by the Governor pursuant to the California Emergency Services Act (Section 15269(a)).

Emergency repairs to public service facilities necessary to maintain service (Section 15269(b)).

Specific actions necessary to prevent or mitigate an emergency (Section 15269(c)).

F.

Projects Which are Disapproved. This statutory exemption allows disapproval on the merits of a project prior to the initiation of the CEQA process, where the city can clearly see that findings for the project cannot be made (Section 15270(a)(b)(c)).

G.

Specified Mass Transit Projects. The institution or increase of passenger or commuter service on rail lines or high-occupancy vehicle lanes already in use, including the modernization of existing stations and parking facilities; facility extensions not to exceed four miles in length which are required for transfer of passengers from or to exclusive public mass transit guideway or busway public transit services (Section 15275(a)(b)).

H.

Railroad Grade Separation Projects. Railroad grade projects which eliminate an existing grade crossing or which reconstruct an existing grade separation (Section 21080.13).

I.

Restriping of Streets or Highways. Projects for restriping of streets or highways to relieve traffic congestion (Section 21080.19).

J.

Right-of-Way. Projects of less than one mile in length within a public street or highway, or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline (Section 21080.21).

(Ord. 11766 § 2 (part), 1994: prior planning code § 1260)

As authorized by Section 15061(b)(3) of the CEQA Guidelines, the Environmental Review Officer, or his/her representative may determine that although a project may not be statutorily or categorically exempt from CEQA, a preliminary review can with reasonable certainty show that there is no possibility that a project may have a significant effect on the environment. Therefore, the project would not be subject to CEQA.

The general rule would apply where it can be plainly seen without an initial study that a proposed project would not exceed the critical thresholds for adverse environmental effects. For example, in the case of a zoning change where the new zoning classification is at least as restrictive or more restrictive as the existing zoning classification for an area. Such a condition would occur if an area were downzoned from a multifamily zoning classification to a single-family zoning district.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1270)