BILL NUMBER: SB 226 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 17, 2011
AMENDED IN ASSEMBLY JULY 14, 2011
INTRODUCED BY Senators Simitian and Vargas
FEBRUARY 9, 2011
An act to amend Section 65919.10 of the Government Code, and to
amend Sections 21081.2, 21083.9, 21084, and 21177
of, to add Sections 21080.35 and 21155.4
Section 21080.35 to, and to add and repeal Section
21084.2 Sections 21084.2 and 21155.4 of, the
Public Resources Code, relating to environmental quality, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 226, as amended, Simitian. Environmental quality.
(1) The California Environmental Quality Act (CEQA) requires a
lead agency to prepare, or cause to be prepared, and certify the
completion of, an environmental impact report on a project, as
defined, that it proposes to carry out or approve that may have a
significant effect on the environment, as defined, or to adopt a
negative declaration if it finds that the project will not have that
effect.
This bill would exempt from the requirements of CEQA
projects consisting of the installation of a
solar panels energy system, including
associated equipment, on the roof of a
commercial or industrial an existing building
meeting specified conditions. Because a lead agency would be required
to determine whether a project would be exempt under this provision,
this bill would impose a state-mandated local program.
CEQA
(2) CEQA requires a lead agency
to call a scoping meeting for a project of statewide, regional, or
areawide significance, and requires the lead agency to provide notice
of at least one of those scoping meetings to specified entities,
including a county or city that borders on a county or city within
which the project is located, unless otherwise designated annually by
agreement between the lead agency and county or city. Existing law
requires, prior to action by a legislative body to adopt or
substantially amend a general plan, the planning agency to refer the
proposed action to a city or county within or abutting the area
covered by the proposal.
This bill would authorize this referral of a proposed action to
adopt or substantially amend a general plan of a city or county to be
conducted concurrently with the scoping meeting. The city or county
would be authorized to submit specified comments at the scoping
meeting.
(2)
(3) CEQA authorizes the Secretary of the Natural
Resources Agency to certify and adopt guidelines to include a list of
classes of projects that have been determined not to have a
significant effect on the environment and are exempted from the
requirements of CEQA (categorical exemption).
This bill would provide that a project's greenhouse gas emissions
are not, in and of themselves, deemed to cause the exemption to be
inapplicable under specified conditions.
This bill would also require the Secretary of the Natural
Resources Agency, on or before March 1, 2012, to adopt a categorical
exemption for solar photovoltaic projects located on disturbed
agricultural lands meeting specified conditions. Because a lead
agency would be required to determine whether the categorical
exemption would apply to a project, this bill would impose a
state-mandated local program. The bill would repeal this requirement
on January 1, 2015.
(3) CEQA exempts from its requirements a transit priority project
meeting specified requirements if a legislative body declares after
conducting a public hearing that the project is a sustainable
communities project. CEQA also exempts an urban infill project
meeting specified conditions from certain requirements.
This bill would exempt an urban infill project located in a
jurisdiction for which a sustainable communities strategy has been
adopted by the metropolitan planning organization for that
jurisdiction and that is a transit priority project that has been
declared to be a sustainable communities project. Because a lead
agency would be required to determine whether the exemption applies,
this bill would impose a state-mandated local program.
(4) CEQA authorizes the use of a sustainable communities
environmental assessment or modified environmental impact report for
the purposes of CEQA for a transit priority project meeting specified
requirements.
This bill would authorize, until the adoption by a
metropolitan planning organization of a sustainable communities
strategy, the use of a sustainable communities environmental
assessment or modified environmental impact report for a transit
proximity project meeting specified conditions. This bill
would repeal this authorization on January 1, 2015.
(5) CEQA prohibits a person from bringing or maintaining an action
or proceeding unless the alleged grounds for noncompliance with CEQA
were presented to the public agency during the public comment period
or before the close of the public hearing on the project before the
issuance of the notice of determination.
This bill would authorize, until January 1, 2016, with specified
exceptions, a lead agency to not consider written materials submitted
after the close of the public comment period and would prohibit the
use of those materials as a basis for challenging the lead agency's
action pursuant to CEQA.
(6) Existing law authorizes a county and a city to agree upon a
procedure for referral to, and comment by, the city or county
concerning the other entity's proposals to adopt or amend all or part
of a general or specific plan or zoning ordinance, as specified.
This bill would make a technical, nonsubstantive change to this
authorization.
(7) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
(8) 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: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) In 2008, the Legislature passed and the Governor signed Senate
Bill 375, which was chaptered as Chapter 726 of the Statutes of
2008, requiring metropolitan planning organizations to adopt a
sustainable community strategy that will comprehensively integrate
land use planning, transportation investments, and climate policy.
Part of Chapter 726 of the Statutes of 2008 includes incentives under
the California Environmental Quality Act (Division 13 (commencing
with Section 21000) of the Public Resources Code) to encourage
development patterns that would help implement the sustainable
communities strategy.
(b) Metropolitan planning organizations will begin adopting these
strategies in 2011, but adoption will not be complete until 2013.
(c) One of the incentives created under Chapter 726 of the
Statutes of 2008 is the sustainable communities environmental
assessment that provides a more expeditious review under the
California Environmental Quality Act for residential and mixed-use
residential projects that have a proximity to transit.
(d) Because of the severe recession that continues to impact
California and because of the need to promote jobs in the
construction industry, it is important to make the sustainable
communities assessment available as early as possible in order to
promote the construction of projects that will foster the use of
transit.
SEC. 2. Section 65919.10 of the Government Code is amended to
read:
65919.10. If the proposed action is a change in a zoning
ordinance, the county or city need not refer the zoning proposal to
an affected city or county, as the case may be, if the zoning
proposal is consistent with the general plan and the general plan
proposal was referred and acted upon pursuant to this chapter.
SEC. 3. Section 21080.35 is added to the Public Resources Code, to
read:
21080.35. This (a)
Except as provided in subdivision (d), this division does not
apply to a project consisting of the installation of solar
photovoltaic panels on the roof of a commercial or industrial
building that meets both of the following conditions:
(a) The maximum electrical generating capacity of the project is
not more than three megawatts.
(b) The control
equipment for the solar panels will be located inside the commercial
or industrial building. the installation of a solar
energy system on the roof of an existing building.
(b) For the purposes of this section, a "solar energy system"
includes all associated equipment. Associated equipment consists of
parts and materials that enable the generation and use of solar
electricity or solar-heated water, including any monitoring and
control, safety, conversion, and emergency responder equipment, as
well as any equipment necessary to connect the energy generated to
the electrical grid. "Associated equipment" does not include a
substation.
(c) (1) Except for the associated equipment necessary to connect
the energy generated to the electrical grid, which may be located
immediately adjacent to the parcel of the building, associated
equipment shall be located on the same parcel of the building.
(2) Associated equipment shall not occupy more than 500 square
feet of ground surface or disturb water bodies, plants identified as
rare pursuant to Chapter 10 (commencing with Section 1900) of
Division 2 of the Fish and Game Code, wetlands, or riparian areas.
(d) This section does not apply if the associated equipment would
otherwise require one of the following:
(1) An individual federal permit pursuant to Section 401 or 404 of
the federal Clean Water Act (33 U.S.C. Sec. 1341 or 1344) or waste
discharge requirements pursuant to the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code).
(2) An individual take permit for species protected under the
federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.)
or the California Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3 of the Fish and Game Code).
(3) A streambed alteration permit pursuant to Chapter 6
(commencing with Section 1600) of Division 2 of the Fish and Game
Code.
SEC. 4. Section 21081.2 of the Public Resources
Code is amended to read:
21081.2. (a) Except as provided in subdivision (c) or (g), if a
residential project, not exceeding 100 units, with a minimum
residential density of 20 units per acre and within one-half mile of
a transit stop, on an infill site in an urbanized area is in
compliance with the traffic, circulation, and transportation policies
of the general plan, applicable community plan, applicable specific
plan, and applicable ordinances of the city or county with
jurisdiction over the area where the project is located, and the city
or county requires that the mitigation measures approved in a
previously certified project area environmental impact report
applicable to the project be incorporated into the project, the city
or county is not required to comply with subdivision (a) of Section
21081 with respect to the making of any findings regarding the
impacts of the project on traffic at intersections, or on streets,
highways, or freeways.
(b) Subdivision (a) does not restrict the authority of a city or
county to adopt feasible mitigation measures with respect to the
impacts of a project on pedestrian and bicycle safety.
(c) Subdivision (a) does not apply in any of the following
circumstances:
(1) The application for a proposed project is made more than five
years after certification of the project area environmental impact
report applicable to the project.
(2) A major change has occurred within the project area after
certification of the project area environmental impact report
applicable to the project.
(3) The project area environmental impact report applicable to the
project was certified with overriding considerations pursuant to
subdivision (b) of Section 21081 to the significant impacts on the
environment with respect to traffic or transportation.
(4) The proposed project covers more than four acres.
(d) A project shall not be divided into smaller projects in order
to qualify pursuant to this section.
(e) This section does not relieve a city or county from the
requirement to analyze the project's effects on traffic at
intersections, or on streets, highways, or freeways, or from making a
determination that the project may have a significant effect on
traffic.
(f) For the purposes of this section, "project area environmental
impact report" means an environmental impact report certified on any
of the following:
(1) A general plan.
(2) A revision or update to the general plan that includes at
least the land use and circulation elements.
(3) An applicable community plan.
(4) An applicable specific plan.
(5) A housing element of the general plan, if the environmental
impact report analyzed the environmental effects of the density of
the proposed project.
(6) A zoning ordinance.
(g) This section does not apply to a residential project located
in a jurisdiction for which a sustainable community strategy has been
adopted by the metropolitan planning organization of that
jurisdiction pursuant to Section 65080 of the Government Code that
qualifies as a transit priority project, in which case, Section
21155.1 shall apply.
SEC. 5. SEC. 4. Section 21083.9 of
the Public Resources Code is amended to read:
21083.9. (a) Notwithstanding Section 21080.4, 21104, or 21153, a
lead agency shall call at least one scoping meeting for either of the
following:
(1) A proposed project that may affect highways or other
facilities under the jurisdiction of the Department of Transportation
if the meeting is requested by the department. The lead agency shall
call the scoping meeting as soon as possible, but not later than 30
days after receiving the request from the Department of
Transportation.
(2) A project of statewide, regional, or areawide significance.
(b) The lead agency shall provide notice of at least one scoping
meeting held pursuant to paragraph (2) of subdivision (a) to all of
the following:
(1) A county or city that borders on a county or city within which
the project is located, unless otherwise designated annually by
agreement between the lead agency and the county or city.
(2) A responsible agency.
(3) A public agency that has jurisdiction by law with respect to
the project.
(4) A transportation planning agency or public agency required to
be consulted pursuant to Section 21092.4.
(5) An organization or individual who has filed a written request
for the notice.
(c) For an entity, organization, or individual that is required to
be provided notice of a lead agency public meeting, the requirement
for notice of a scoping meeting pursuant to subdivision (b) may be
met by including the notice of a scoping meeting in the public
meeting notice.
(d) A scoping meeting that is held in the city or county within
which the project is located pursuant to the federal National
Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) and
the regulations adopted pursuant to that act shall be deemed to
satisfy the requirement that a scoping meeting be held for a project
subject to paragraph (2) of subdivision (a) if the lead agency meets
the notice requirements of subdivision (b) or subdivision (c).
(e) The referral of a proposed action to adopt or substantially
amend a general plan to a city or county pursuant to paragraph (1) of
subdivision (a) of Section 65352 of the Government Code may be
conducted concurrently with the scoping meeting required pursuant to
this section, and the city or county may submit its comments as
provided pursuant to subdivision (b) of that section at the scoping
meeting.
SEC. 6. SEC. 5. Section 21084 of the
Public Resources Code is amended to read:
21084. (a) The guidelines prepared and adopted pursuant to
Section 21083 shall include a list of classes of projects that have
been determined not to have a significant effect on the environment
and that shall be exempt from this division. In adopting the
guidelines, the Secretary of the Natural Resources Agency shall make
a finding that the listed classes of projects referred to in this
section do not have a significant effect on the environment.
(b) A project's greenhouse gas emissions shall not, in and of
themselves, be deemed to cause an exemption adopted pursuant to
subdivision (a) to be inapplicable if the project complies with all
applicable regulations or requirements adopted to implement
statewide, regional, or local plans consistent with Section 15183.5
of Title 14 of the California Code of Regulations.
(c) A project that may result in damage to scenic resources,
including, but not limited to, trees, historic buildings, rock
outcroppings, or similar resources, within a highway designated as an
official state scenic highway, pursuant to Article 2.5 (commencing
with Section 260) of Chapter 2 of Division 1 of the Streets and
Highways Code, shall not be exempted from this division pursuant to
subdivision (a). This subdivision does not apply to improvements as
mitigation for a project for which a negative declaration has been
approved or an environmental impact report has been certified.
(d) A project located on a site that is included on any list
compiled pursuant to Section 65962.5 of the Government Code shall not
be exempted from this division pursuant to subdivision (a).
(e) The changes made to this section by Chapter 1212 of the
Statutes of 1991 apply only to projects for which applications have
not been deemed complete on or before January 1, 1992, pursuant to
Section 65943 of the Government Code.
(f) A project that may cause a substantial adverse change in the
significance of an historical resource, as specified in Section
21084.1, shall not be exempted from this division pursuant to
subdivision (a).
SEC. 7. SEC. 6. Section 21084.2 is
added to the Public Resources Code, to read:
21084.2. (a) On or before March 1, 2012, the Secretary of the
Natural Resources Agency shall amend the guidelines adopted pursuant
to Section 21084 to add solar photovoltaic projects that are located
on disturbed agricultural lands to the classes of projects that have
been determined not to have a significant effect on the environment
and that are therefore exempt from this division. The amendment shall
be limited to projects that meet all the following conditions:
(1) The project has a maximum electrical generating capacity of
not more than 10 megawatts.
(2) The project is located exclusively on lands previously
used for agricultural production for at least five years that
have been mechanically disturbed or converted from native vegetation
through plowing, bulldozing, or other similar means.
(3) The project is not located on prime farmland, farmland of
statewide importance, unique farmland, and farmland of local
importance, collectively designated as important farmlands by the
Department of Conservation.
(3)
(4) The project is located exclusively on land that,
based upon generally accepted biological survey or assessment
methods, has been determined to have diminished
in a report of a qualified biologist on file with the agency to
have no significant value as habitat for endangered,
threatened, candidate, and other sensitive species, and that provides
no significant habitat or wildlife corridors.
(4)
(5) The project is located on a parcel of
land that is not larger than 100 acres.
(b) (1) For the purposes of this section, a "photovoltaic project"
includes all associated equipment. Associated equipment consists of
parts and materials that enable the generation and use of solar
electricity or solar-heated water, including any monitoring and
control, safety, conversion, and emergency responder equipment, as
well as any equipment necessary to connect the energy generated to
the electrical grid. "Associated equipment" does not include a
substation.
(2) (A) Except for the associated equipment necessary to connect
the energy generated to the electrical grid, which may be located
immediately adjacent to the parcel, associated equipment shall be
located on the same parcel.
(B) Associated equipment shall not occupy more than 500 square
feet of ground surface or disturb water bodies, plants identified as
rare pursuant to Chapter 10 (commencing with Section 1900) of
Division 2 of the Fish and Game Code, wetlands, or riparian areas.
(b)
(c) In adopting an amendment pursuant to this section,
the Secretary of the Natural Resources Agency shall take into
consideration the potential for impacts on agriculture and natural
resources, and may impose additional conditions on the exemption in
order to avoid any significant effects on the environment, including
any effects associated with the decommissioning of the project.
The Secretary of the Natural Resources Agency shall impose conditions
to prevent the repeated application of the class of exemption
provided pursuant to this section to facilities in the same vicinity
and under forms of common ownership or control.
(c)
(d) This section shall remain in effect only until
January 1, 2015, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2015, deletes or
extends that date.
SEC. 8. SEC. 7. Section 21155.4 is
added to the Public Resources Code, to read:
21155.4. (a) A transit proximity project that (1) includes a
major transit stop as part of the project, or (2) that is located
within one-quarter mile of an existing major transit stop or an
existing high-quality transit corridor may be reviewed under the
procedures set forth in subdivision (b) or (c) of Section 21155.2 if
the project has incorporated all mitigation measures or best
practices recommended for protection of public health by the local
air district, air pollution control district, or air quality
management district.
(b) For purposes of this section, a transit proximity project is
one that satisfies paragraphs (1) and (2) of subdivision (b) of
Section 21155 and is located within an urbanized area.
(c) For the purpose of this section, the following definitions
apply:
(1) "Major transit stop" has the same meaning as set forth in
Section 21064.3.
(2) "High-quality transit corridor" has the same meaning as set
forth in subdivision (b) of Section 21155.
(3) This section shall apply only to projects located within a
metropolitan planning organization and shall cease to apply to
projects upon the adoption by that metropolitan planning organization
of a sustainable communities strategy pursuant to Section 65080 of
the Government Code.
(d) This section shall remain in effect only until January 1,
2015, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2015, deletes or extends
that date.
SEC. 9. SEC. 8. Section 21177 of the
Public Resources Code, as amended by Section 11 of Chapter 496 of
the Statutes of 2010, 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.
(c) (1) This division does not require a public agency to consider
written materials submitted after the close of the public comment
period, unless those materials address any of the following matters:
(A) New issues raised in the response to comments by the lead
agency.
(B) New information released by the public agency subsequent to
the release of the proposed final draft
environmental impact report, such as new information set forth or
embodied in a staff report, proposed permit, proposed resolution,
ordinance, or similar legislative document.
(C) Changes made to the project after the close of the public
comment period.
(D) Proposed conditions for approval of a project, mitigation
measures for a project included in an environmental document, or
proposed findings required by Section 21081 or a proposed mitigation
and monitoring program required by paragraph (1) of subdivision (a)
of Section 21081.6, where the public agency releases those documents
subsequent to the release of the proposed final
draft environmental impact report.
(E) New information that was not reasonably known and could not
have been reasonably known during the public comment period.
(2) If a lead agency elects not to consider written materials
submitted after the close of the public comment period, except
as required pursuant to paragraph (1), the lead agency is not
required to respond to that written material, and that written
material shall not be raised in an action or proceeding brought
pursuant to Section 21167.
(d) 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 a member or by a member agreeing with or
supporting the comments of another person.
(e) This section does not apply to the Attorney General.
(f) 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 , including as required pursuant to Section 21092.2
.
(g) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 10. SEC. 9. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because a local agency or school district has
the authority to levy service charges, fees, or assessments
sufficient to pay for the program or level of service mandated by
this act, within the meaning of Section 17556 of the Government Code.
SEC. 11. SEC. 10. 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.