BILL NUMBER: SB 1456 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 2, 2010
AMENDED IN ASSEMBLY JUNE 10, 2010
AMENDED IN SENATE MARCH 23, 2010
INTRODUCED BY Senator Simitian
FEBRUARY 19, 2010
An act to amend, repeal, and add Section 66032 of the Government
Code, to amend, repeal, and add Sections 21094, 21167.4, 21167.8, and
21177 of, and to add and repeal Sections 21167.9 and 21169.10 of,
the Public Resources Code, relating to environmental quality, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1456, as amended, Simitian. Environmental quality: cumulative
effects and mediation.
(1) The California Environmental Quality Act (CEQA) requires a
lead agency, as defined, to prepare, or cause to be prepared, and
certify the completion of, an environmental impact report on a
project that it proposes to carry out or approve that may have a
significant effect on the environment or to adopt a negative
declaration if it finds that the project will not have that effect.
CEQA allows a lead agency to use a tiered environmental impact
report when a prior environmental impact report has been prepared and
certified for a program, plan, policy, or ordinance and a later
project meets certain requirements. Existing law provides that the
report on the later project is not required to examine those effects
that the lead agency determines were, among other things, examined at
a sufficient level of detail in the prior environmental impact
report.
This bill would , until January 1,
2015 2016 , would provide that if a
lead agency determines that a cumulative effect has been adequately
addressed in a prior environmental impact report, in accordance with
a specified procedure, that cumulative effect is not required to be
examined in a later environmental impact report, mitigated negative
declaration, or negative declaration.
(2) CEQA imposes requirements for an attempted settlement upon a
public agency that has been served a petition or complaint for
noncompliance with CEQA. CEQA provides that the settlement meeting is
intended to be conducted concurrently with any judicial proceedings.
Existing law also provides that an action brought in a superior
court relating to certain subjects, including an act or decision of a
public agency made pursuant to CEQA, may be subject to a mediation
proceeding.
Existing law specifies procedures for bringing an action under
CEQA for noncompliance with that act. An organization formed after
the approval of a project is allowed to maintain an action for
noncompliance if a member of that organization has presented the
alleged grounds for noncompliance to the public agency in a specified
manner.
This bill would , until January 1,
2015 2016 , would provide that a
mediation proceeding also is intended to be conducted concurrently
with any judicial proceedings.
This bill , until January 1, 2016, would
require authorize a person wishing to bring an
action or proceeding pursuant to CEQA to file with the lead agency
and the real party in interest a notice requesting mediation within 5
business days from the date of the filing of a notice of
determination occurring on or after July 1, 2011. The bill would
provide that the notice for mediation is deemed to be denied if the
lead agency fails to respond within 3 5
business days of receiving the request for mediation. The bill would
authorize a court to impose a penalty on a party making a frivolous
claim in the course of an action brought under CEQA on or before
January 1 December 31 , 2015.
This bill would, until December 31, 2014 ,
until January 1, 2016, additionally would require a
member of that organization to have objected to the approval of the
project orally or in writing.
This bill would , until January 1,
2015 2016 , also would authorize the
Attorney General to file a motion with the court seeking an expedited
schedule for resolution of an action or proceeding alleging
noncompliance.
This bill would make conforming changes.
(3) This bill would declare that it is to take effect immediately
as an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 66032 of the Government Code is amended to
read:
66032. (a) Except as provided in subdivision (c) of Section
21167.8 of the Public Resources Code, all time limits with respect to
an action shall be tolled while the mediator conducts the mediation,
pursuant to this chapter.
(b) Mediations conducted by a mediator pursuant to this chapter
that involve less than a quorum of a legislative body or a state body
shall not be considered meetings of a legislative body pursuant to
the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of
Part 1 of Division 2 of Title 5), nor shall they be considered
meetings of a state body pursuant to the Bagley-Keene Open Meeting
Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1
of Division 3 of Title 2).
(c) Any action taken regarding mediation conducted pursuant to
this chapter shall be taken in accordance with the provisions of
current law.
(d) Ninety days after the commencement of the mediation, and every
90 days thereafter, the action shall be reactivated unless the
parties to the action do either of the following:
(1) Arrive at a settlement and implement it in accordance with the
provisions of current law.
(2) Agree by written stipulation to extend the mediation for
another 90-day period.
(e) Section 703.5 and Chapter 2 (commencing with Section 1115) of
Division 9 of the Evidence Code apply to any mediation conducted
pursuant to this chapter.
(f) This section shall remain in effect only until January 1,
2015 2016 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2015 2016 , deletes or
extends that date.
SEC. 2. Section 66032 is added to the Government Code, to read:
66032. (a) Notwithstanding any provision of law to the contrary,
all time limits with respect to an action shall be tolled while the
mediator conducts the mediation, pursuant to this chapter.
(b) Mediations conducted by a mediator pursuant to this chapter
that involve less than a quorum of a legislative body or a state body
shall not be considered meetings of a legislative body pursuant to
the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of
Part 1 of Division 2 of Title 5), nor shall they be considered
meetings of a state body pursuant to the Bagley-Keene Open Meeting
Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1
of Division 3 of Title 2).
(c) Any action taken regarding mediation conducted pursuant to
this chapter shall be taken in accordance with the provisions of
current law.
(d) Ninety days after the commencement of the mediation, and every
90 days thereafter, the action shall be reactivated unless the
parties to the action do either of the following:
(1) Arrive at a settlement and implement it in accordance with the
provisions of current law.
(2) Agree by written stipulation to extend the mediation for
another 90-day period.
(e) Section 703.5 and Chapter 2 (commencing with Section 1115) of
Division 9 of the Evidence Code apply to any mediation conducted
pursuant to this chapter.
(f) This section shall become operative on January 1,
2015 2016 .
SEC. 3. Section 21094 of the Public Resources Code is amended to
read:
21094. (a) Where a prior environmental impact report has been
prepared and certified for a program, plan, policy, or ordinance, the
lead agency for a later project that meets the requirements of this
section shall examine significant effects of the later project upon
the environment by using a tiered environmental impact report, except
that the report on the later project is not required to examine
those effects that the lead agency determines were either of the
following:
(1) Mitigated or avoided pursuant to paragraph (1) of subdivision
(a) of Section 21081 as a result of the prior environmental impact
report.
(2) Examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated
or avoided by site-specific revisions, the imposition of conditions,
or by other means in connection with the approval of the later
project.
(b) This section applies only to a later project that the lead
agency determines is all of the following:
(1) Consistent with the program, plan, policy, or ordinance for
which an environmental impact report has been prepared and certified.
(2) Consistent with applicable local land use plans and zoning of
the city, county, or city and county in which the later project
would be located.
(3) Not subject to Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.
(e) (1) If a lead agency determines pursuant to this subdivision
that a cumulative effect has been adequately addressed in a prior
environmental impact report, that cumulative effect is not required
to be examined in a later environmental impact report, mitigated
negative declaration, or negative declaration for purposes of
paragraph (2) of subdivision (a).
(2) When assessing whether a cumulative effect has been adequately
addressed in a prior environmental impact report, the lead agency
shall consider whether the incremental effects of the project are
cumulatively considerable.
(3) (A) For purposes of paragraph (2), if the lead agency
determines the incremental effects of the project are significant
when viewed in connection with the effects of past, present, and
probable future projects, the incremental effects of a project are
cumulatively considerable.
(B) If the lead agency determines incremental effects of a project
are cumulatively considerable, the later environmental impact
report, mitigated negative declaration, or negative declaration shall
examine those effects.
(4) If the lead agency makes one of the following determinations,
the cumulative effects of a project are adequately addressed for
purposes of paragraph (2):
(A) The cumulative effect has been mitigated or avoided as a
result of the prior environmental impact report and findings adopted
pursuant to paragraph (1) of subdivision (a) of Section 21081 as a
result of the prior environmental impact report.
(B) The cumulative effect has been examined at a sufficient level
of detail in the prior environmental impact report to enable the
effect to be mitigated or avoided by site-specific revisions, the
imposition of conditions, or by other means in connection with the
approval of the later project.
(f) When tiering is used pursuant to this section, an
environmental impact report prepared for a later project shall refer
to the prior environmental impact report and state where a copy of
the prior environmental impact report may be examined.
(g) This section shall remain in effect only until January 1,
2015 2016 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2015 2016 , deletes or
extends that date.
SEC. 4. Section 21094 is added to the Public Resources Code, to
read:
21094. (a) Where a prior environmental impact report has been
prepared and certified for a program, plan, policy, or ordinance, the
lead agency for a later project that meets the requirements of this
section shall examine significant effects of the later project upon
the environment by using a tiered environmental impact report, except
that the report on the later project is not required to examine
those effects that the lead agency determines were either of the
following:
(1) Mitigated or avoided pursuant to paragraph (1) of subdivision
(a) of Section 21081 as a result of the prior environmental impact
report.
(2) Examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated
or avoided by site-specific revisions, the imposition of conditions,
or by other means in connection with the approval of the later
project.
(b) This section applies only to a later project that the lead
agency determines is all of the following:
(1) Consistent with the program, plan, policy, or ordinance for
which an environmental impact report has been prepared and certified.
(2) Consistent with applicable local land use plans and zoning of
the city, county, or city and county in which the later project would
be located.
(3) Not subject to Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.
(e) When tiering is used pursuant to this section, an
environmental impact report prepared for a later project shall refer
to the prior environmental impact report and state where a copy of
the prior environmental impact report may be examined.
(f) This section shall become operative on January 1,
2015 2016 .
SEC. 5. Section 21167.4 of the Public Resources Code is amended to
read:
21167.4. (a) In any action or proceeding alleging noncompliance
with this division, the petitioner shall request a hearing within 90
days from the date of filing the petition or shall be subject to
dismissal on the court's own motion or on the motion of any party
interested in the action or proceeding.
(b) The petitioner shall serve a notice of the request for a
hearing on all parties at the time that the petitioner files the
request for a hearing.
(c) Upon the filing of a request by the petitioner for a hearing
and upon application by any party, the court shall establish a
briefing schedule and a hearing date. In the absence of good cause,
briefing shall be completed within 90 days from the date that the
request for a hearing is filed, and the hearing, to the extent
feasible, shall be held within 30 days thereafter. Good cause may
include, but shall not be limited to, the conduct of discovery,
determination of the completeness of the record of proceedings, the
complexity of the issues, and the length of the record of proceedings
and the timeliness of its production. The parties may stipulate to a
briefing schedule or hearing date that differs from the schedule set
forth in this subdivision if the stipulation is approved by the
court.
(d) In an action or proceeding alleging noncompliance with this
division, the Attorney General may file a motion with the court
seeking an expedited schedule for resolution of the case upon the
grounds that it would be in the public interest to do so.
(e) This section shall remain in effect only until January 1,
2015 2016 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2015 2016 , deletes or
extends that date.
SEC. 6. Section 21167.4 is added to the Public Resources Code, to
read:
21167.4. (a) In any action or proceeding alleging noncompliance
with this division, the petitioner shall request a hearing within 90
days from the date of filing the petition or shall be subject to
dismissal on the court's own motion or on the motion of any party
interested in the action or proceeding.
(b) The petitioner shall serve a notice of the request for a
hearing on all parties at the time that the petitioner files the
request for a hearing.
(c) Upon the filing of a request by the petitioner for a hearing
and upon application by any party, the court shall establish a
briefing schedule and a hearing date. In the absence of good cause,
briefing shall be completed within 90 days from the date that the
request for a hearing is filed, and the hearing, to the extent
feasible, shall be held within 30 days thereafter. Good cause may
include, but shall not be limited to, the conduct of discovery,
determination of the completeness of the record of proceedings, the
complexity of the issues, and the length of the record of proceedings
and the timeliness of its production. The parties may stipulate to a
briefing schedule or hearing date that differs from the schedule set
forth in this subdivision if the stipulation is approved by the
court.
(d) This section shall become operative on January 1,
2015 2016 .
SEC. 7. Section 21167.8 of the Public Resources Code is amended to
read:
21167.8. (a) Not later than 20 days from the date of service upon
a public agency of a petition or complaint brought pursuant to
Section 21167, the public agency shall file with the court a notice
setting forth the time and place at which all parties shall meet and
attempt to settle the litigation. The meeting shall be scheduled and
held not later than 45 days from the date of service of the petition
or complaint upon the public agency. The notice of the settlement
meeting shall be served by mail upon the counsel for each party. If
the public agency does not know the identity of counsel for a party,
the notice shall be served by mail upon the party for whom counsel is
not known.
(b) At the time and place specified in the notice filed with the
court, the parties shall meet and confer regarding anticipated issues
to be raised in the litigation and shall attempt in good faith to
settle the litigation and the dispute that forms the basis of the
litigation. The settlement meeting discussions shall be comprehensive
in nature and shall focus on the legal issues raised by the parties
concerning the project that is the subject of the litigation.
(c) The settlement meeting may be continued from time to time
without postponing or otherwise delaying other applicable time limits
in the litigation. The settlement meeting, or a mediation proceeding
that is conducted pursuant to Chapter 9.3 (commencing with Section
66030) of Division 1 of Title 7 of the Government Code, is intended
to be conducted concurrently with any judicial proceedings.
(d) If the litigation is not settled, the court, in its
discretion, may, or at the request of a party, shall, schedule a
further settlement conference before a judge of the superior court.
If the petition or complaint is later heard on its merits, the judge
hearing the matter shall not be the same judge conducting the
settlement conference, except in counties that have only one judge of
the superior court.
(e) The failure of a party, who was notified pursuant to
subdivision (a), to participate in the litigation settlement process,
without good cause, may result in an imposition of sanctions by the
court.
(f) Not later than 30 days from the date that notice of
certification of the record of proceedings was filed and served in
accordance with Section 21167.6, the petitioner or plaintiff shall
file and serve on all other parties a statement of issues that the
petitioner or plaintiff intends to raise in a brief or at a hearing
or trial. Not later than 10 days from the date on which the
respondent or real party in interest has been served with the
statement of issues from the petitioner or plaintiff, each respondent
and real party in interest shall file and serve on all other parties
a statement of issues which that party intends to raise in a brief
or at a hearing or trial.
(g) This section shall remain in effect only until January 1,
2015 2016 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2015 2016 , deletes or
extends that date.
SEC. 8. Section 21167.8 is added to the Public Resources Code, to
read:
21167.8. (a) Not later than 20 days from the date of service upon
a public agency of a petition or complaint brought pursuant to
Section 21167, the public agency shall file with the court a notice
setting forth the time and place at which all parties shall meet and
attempt to settle the litigation. The meeting shall be scheduled and
held not later than 45 days from the date of service of the petition
or complaint upon the public agency. The notice of the settlement
meeting shall be served by mail upon the counsel for each party. If
the public agency does not know the identity of counsel for any
party, the notice shall be served by mail upon the party for whom
counsel is not known.
(b) At the time and place specified in the notice filed with the
court, the parties shall meet and confer regarding anticipated issues
to be raised in the litigation and shall attempt in good faith to
settle the litigation and the dispute which forms the basis of the
litigation. The settlement meeting discussions shall be comprehensive
in nature and shall focus on the legal issues raised by the parties
concerning the project that is the subject of the litigation.
(c) The settlement meeting may be continued from time to time
without postponing or otherwise delaying other applicable time limits
in the litigation. The settlement meeting is intended to be
conducted concurrently with any judicial proceedings.
(d) If the litigation is not settled, the court, in its
discretion, may, or at the request of any party, shall, schedule a
further settlement conference before a judge of the superior court.
If the petition or complaint is later heard on its merits, the judge
hearing the matter shall not be the same judge conducting the
settlement conference, except in counties that have only one judge of
the superior court.
(e) The failure of any party, who was notified pursuant to
subdivision (a), to participate in the litigation settlement process,
without good cause, may result in an imposition of sanctions by the
court.
(f) Not later than 30 days from the date that notice of
certification of the record of proceedings was filed and served in
accordance with Section 21167.6, the petitioner or plaintiff shall
file and serve on all other parties a statement of issues which the
petitioner or plaintiff intends to raise in any brief or at any
hearing or trial. Not later than 10 days from the date on which the
respondent or real party in interest has been served with the
statement of issues from the petitioner or plaintiff, each respondent
and real party in interest shall file and serve on all other parties
a statement of issues which that party intends to raise in any brief
or at any hearing or trial.
(g) This section shall become operative on January 1,
2015 2016 .
SEC. 9. Section 21167.9 is added to the Public Resources Code, to
read:
21167.9. (a) Within five business days of the filing of a notice
required by subdivision (a) or (b) of Section 21108, or subdivision
(a) or (b) of Section 21152 by the lead agency, a person wishing to
bring an action or a proceeding pursuant to Section 21167, 21168, or
21168.5 shall may file with the lead
agency and the real party in interest a notice requesting mediation.
(b) Within three five business days
of the receipt of the notice requesting mediation, a lead agency may
respond to the person by accepting the request for mediation and
proceed with mediation.
(c) The request for mediation is deemed denied if the lead agency
fails to respond within three five
business days of receiving the request for mediation.
(d) The limitation periods provided pursuant to this chapter shall
be tolled until the completion of the mediation conducted pursuant
to this section.
(e) This section shall apply to notices that are filed on or after
July 1, 2011.
(f) This section does not apply in cases where the lead agency has
not filed the notice required by subdivision (a) or (b) of Section
21108, or subdivision (a) or (b) of Section 21152.
(g) (1) This Except as set forth in
paragraph (2), this section shall remain in effect only until
January 1, 2015 2016 , and as of that
date is repealed, unless a later enacted statute, that is enacted
before January 1, 2015 2016 , deletes
or extends that date.
(2) Notwithstanding paragraph (1), the tolling of the limitation
periods provided pursuant to subdivision (d) shall apply if a
mediation conducted pursuant to this section is completed on or after
January 1, 2015 2016 .
SEC. 10. Section 21169.10 is added to the Public Resources Code,
to read:
21169.10. (a) After a court has issued a decision on the merits,
a party may file a motion requesting the court to impose a penalty
for a frivolous claim made in the course of an action brought
pursuant to this division.
(b) Upon a hearing on the motion, a court may impose a penalty on
any party making a frivolous claim in an amount up to ten thousand
dollars ($10,000).
(c) For purposes of this section, "frivolous" means totally and
completely without merit.
(d) (1) This section shall remain in effect only until January 1,
2015 2016 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2015 2016 , deletes or
extends that date.
(2) Notwithstanding paragraph (1), the penalty provided pursuant
to this section shall apply to an action filed on or before December
31, 2014 2015 .
SEC. 11. Section 21177 of the Public Resources Code is amended to
read:
21177. (a) An action or proceeding shall not be brought pursuant
to Section 21167 unless the alleged grounds for noncompliance with
this division were presented to the public agency orally or in
writing by any person during the public comment period provided by
this division or prior to the close of the public hearing on the
project before the issuance of the notice of determination.
(b) A person shall not maintain an action or proceeding unless
that person objected to the approval of the project orally or in
writing during the public comment period provided by this division or
prior to the close of the public hearing on the project before the
filing of the notice of determination pursuant to Sections 21108 and
21152.
(c) This section does not preclude any organization formed after
the approval of a project from maintaining an action pursuant to
Section 21167 if a member of that organization has complied with
subdivisions (a) and (b). The grounds for noncompliance may have
been presented directly by the member or by the member agreeing with
or supporting the comments of another person.
(d) This section does not apply to the Attorney General.
(e) This section does not apply to any alleged grounds for
noncompliance with this division for which there was no public
hearing or other opportunity for members of the public to raise those
objections orally or in writing prior to the approval of the
project, or if the public agency failed to give the notice required
by law.
(f) This section shall remain in effect only until January 1,
2015 2016 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2015 2016 , deletes or
extends that date.
SEC. 12. Section 21177 is added to the Public Resources Code, to
read:
21177. (a) An action or proceeding shall not be brought pursuant
to Section 21167 unless the alleged grounds for noncompliance with
this division were presented to the public agency orally or in
writing by any person during the public comment period provided by
this division or prior to the close of the public hearing on the
project before the issuance of the notice of determination.
(b) A person shall not maintain an action or proceeding unless
that person objected to the approval of the project orally or in
writing during the public comment period provided by this division or
prior to the close of the public hearing on the project before the
filing of notice of determination pursuant to Sections 21108 and
21152.
(c) This section does not preclude any organization formed after
the approval of a project from maintaining an action pursuant to
Section 21167 if a member of that organization has complied with
subdivision (b).
(d) This section does not apply to the Attorney General.
(e) This section does not apply to any alleged grounds for
noncompliance with this division for which there was no public
hearing or other opportunity for members of the public to raise those
objections orally or in writing prior to the approval of the
project, or if the public agency failed to give the notice required
by law.
(f) This section shall become operative on January 1,
2015 2016 .
SEC. 13. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to protect the environment and public health at the
earliest possible time, it is necessary for this act to take effect
immediately.