Amended in Assembly March 18, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 37

Introduced by Assembly Member Perea

December 3, 2012

An act to amend, repeal, and add Section 21167.6 of, and to add and repeal Section 21167.6.2 of, the Public Resources Code, relating to environmental quality.

LEGISLATIVE COUNSEL’S DIGEST

AB 37, as amended, Perea. Environmental quality: California Environmental Quality Act: record of proceedings.

(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 (EIR) 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 also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure for the preparation and certification of the record of proceedings upon the filing of an action or proceeding challenging a lead agency’s action on the grounds of noncompliance with CEQA.

This bill would require, until January 1, 2017, begin insert for specified projects or upon the request of a project applicant and the consent of the lead agency, that end insert the lead agency begin delete , at the request of a project applicant, to, end delete among other things, prepare a record of proceedings concurrently with the preparation of negative declarations, mitigated negative declarations, EIRs, or other environmental documents for specified projects. Because the bill would require begin insert , for specified projects, end insert a lead agency to prepare the record of proceedings as provided, this bill would impose a state-mandated local program.

(2)  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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 21167.6 of the Public Resources Code
is amended to read:

21167.6.  

Notwithstanding any other law, in all actions or
proceedings brought pursuant to Section 21167, except as provided
for in Section 21167.6.2 or those involving the Public Utilities
Commission, all of the following shall apply:

(a) At the time that the action or proceeding is filed, the plaintiff
or petitioner shall file a request that the respondent public agency
prepare the record of proceedings relating to the subject of the
action or proceeding. The request, together with the complaint or
petition, shall be served personally upon the public agency not
later than 10 business days from the date that the action or
proceeding was filed.

(b) (1) The public agency shall prepare and certify the record
of proceedings not later than 60 days from the date that the request
specified in subdivision (a) was served upon the public agency.
Upon certification, the public agency shall lodge a copy of the
record of proceedings with the court and shall serve on the parties
notice that the record of proceedings has been certified and lodged
with the court. The parties shall pay any reasonable costs or fees
imposed for the preparation of the record of proceedings in
conformance with any law or rule of court.

(2) The plaintiff or petitioner may elect to prepare the record
of proceedings or the parties may agree to an alternative method
of preparation of the record of proceedings, subject to certification
of its accuracy by the public agency, within the time limit specified
in this subdivision.

(c) The time limit established by subdivision (b) may be
extended only upon the stipulation of all parties who have been
properly served in the action or proceeding or upon order of the
court. Extensions shall be liberally granted by the court when the
size of the record of proceedings renders infeasible compliance
with that time limit. There is no limit on the number of extensions
that may be granted by the court, but no single extension shall
exceed 60 days unless the court determines that a longer extension
is in the public interest.

(d) If the public agency fails to prepare and certify the record
within the time limit established in paragraph (1) of subdivision
(b), or any continuances of that time limit, the plaintiff or petitioner
may move for sanctions, and the court may, upon that motion,
grant appropriate sanctions.

(e) The record of proceedings shall include, but is not limited
to, all of the following items:

(1) All project application materials.

(2) All staff reports and related documents prepared by the
respondent public agency with respect to its compliance with the
substantive and procedural requirements of this division and with
respect to the action on the project.

(3) All staff reports and related documents prepared by the
respondent public agency and written testimony or documents
submitted by any person relevant to any findings or statement of
overriding considerations adopted by the respondent agency
pursuant to this division.

(4) Any transcript or minutes of the proceedings at which the
decisionmaking body of the respondent public agency heard
testimony on, or considered any environmental document on, the
project, and any transcript or minutes of proceedings before any
advisory body to the respondent public agency that were presented
to the decisionmaking body prior to action on the environmental
documents or on the project.

(5) All notices issued by the respondent public agency to comply
with this division or with any other law governing the processing
and approval of the project.

(6) All written comments received in response to, or in
connection with, environmental documents prepared for the project,
including responses to the notice of preparation.

(7) All written evidence or correspondence submitted to, or
transferred from, the respondent public agency with respect to
compliance with this division or with respect to the project.

(8) Any proposed decisions or findings submitted to the
decisionmaking body of the respondent public agency by its staff,
or the project proponent, project opponents, or other persons.

(9) The documentation of the final public agency decision,
including the final environmental impact report, mitigated negative
declaration, or negative declaration, and all documents, in addition
to those referenced in paragraph (3), cited or relied on in the
findings or in a statement of overriding considerations adopted
pursuant to this division.

(10) Any other written materials relevant to the respondent
public agency’s compliance with this division or to its decision on
the merits of the project, including the initial study, any drafts of
any environmental document, or portions thereof, that have been
released for public review, and copies of studies or other documents
relied upon in any environmental document prepared for the project
and either made available to the public during the public review
period or included in the respondent public agency’s files on the
project, and all internal agency communications, including staff
notes and memoranda related to the project or to compliance with
this division.

(11) The full written record before any inferior administrative
decisionmaking body whose decision was appealed to a superior
administrative decisionmaking body prior to the filing of litigation.

(f) In preparing the record of proceedings, the party preparing
the record shall strive to do so at reasonable cost in light of the
scope of the record.

(g) The clerk of the superior court shall prepare and certify the
clerk’s transcript on appeal not later than 60 days from the date
that the notice designating the papers or records to be included in
the clerk’s transcript was filed with the superior court, if the party
or parties pay any costs or fees for the preparation of the clerk’s
transcript imposed in conformance with any law or rules of court.
Nothing in this subdivision precludes an election to proceed by
appendix, as provided in Rule 8.124 of the California Rules of
Court.

(h) Extensions of the period for the filing of any brief on appeal
may be allowed only by stipulation of the parties or by order of
the court for good cause shown. Extensions for the filing of a brief
on appeal shall be limited to one 30-day extension for the
preparation of an opening brief, and one 30-day extension for the
preparation of a responding brief, except that the court may grant
a longer extension or additional extensions if it determines that
there is a substantial likelihood of settlement that would avoid the
necessity of completing the appeal.

(i) At the completion of the filing of briefs on appeal, the
appellant shall notify the court of the completion of the filing of
briefs, whereupon the clerk of the reviewing court shall set the
appeal for hearing on the first available calendar date.

(j) This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2017, deletes or extends that date.

SEC. 2.  

Section 21167.6 is added to the Public Resources Code,
to read:

21167.6.  

Notwithstanding any other law, in all actions or
proceedings brought pursuant to Section 21167, except those
involving the Public Utilities Commission, all of the following
shall apply:

(a) At the time that the action or proceeding is filed, the plaintiff
or petitioner shall file a request that the respondent public agency
prepare the record of proceedings relating to the subject of the
action or proceeding. The request, together with the complaint or
petition, shall be served personally upon the public agency not
later than 10 business days from the date that the action or
proceeding was filed.

(b) (1) The public agency shall prepare and certify the record
of proceedings not later than 60 days from the date that the request
specified in subdivision (a) was served upon the public agency.
Upon certification, the public agency shall lodge a copy of the
record of proceedings with the court and shall serve on the parties
notice that the record of proceedings has been certified and lodged
with the court. The parties shall pay any reasonable costs or fees
imposed for the preparation of the record of proceedings in
conformance with any law or rule of court.

(2) The plaintiff or petitioner may elect to prepare the record
of proceedings or the parties may agree to an alternative method
of preparation of the record of proceedings, subject to certification
of its accuracy by the public agency, within the time limit specified
in this subdivision.

(c) The time limit established by subdivision (b) may be
extended only upon the stipulation of all parties who have been
properly served in the action or proceeding or upon order of the
court. Extensions shall be liberally granted by the court when the
size of the record of proceedings renders infeasible compliance
with that time limit. There is no limit on the number of extensions
that may be granted by the court, but no single extension shall
exceed 60 days unless the court determines that a longer extension
is in the public interest.

(d) If the public agency fails to prepare and certify the record
within the time limit established in paragraph (1) of subdivision
(b), or any continuances of that time limit, the plaintiff or petitioner
may move for sanctions, and the court may, upon that motion,
grant appropriate sanctions.

(e) The record of proceedings shall include, but is not limited
to, all of the following items:

(1) All project application materials.

(2) All staff reports and related documents prepared by the
respondent public agency with respect to its compliance with the
substantive and procedural requirements of this division and with
respect to the action on the project.

(3) All staff reports and related documents prepared by the
respondent public agency and written testimony or documents
submitted by any person relevant to any findings or statement of
overriding considerations adopted by the respondent agency
pursuant to this division.

(4) Any transcript or minutes of the proceedings at which the
decisionmaking body of the respondent public agency heard
testimony on, or considered any environmental document on, the
project, and any transcript or minutes of proceedings before any
advisory body to the respondent public agency that were presented
to the decisionmaking body prior to action on the environmental
documents or on the project.

(5) All notices issued by the respondent public agency to comply
with this division or with any other law governing the processing
and approval of the project.

(6) All written comments received in response to, or in
connection with, environmental documents prepared for the project,
including responses to the notice of preparation.

(7) All written evidence or correspondence submitted to, or
transferred from, the respondent public agency with respect to
compliance with this division or with respect to the project.

(8) Any proposed decisions or findings submitted to the
decisionmaking body of the respondent public agency by its staff,
or the project proponent, project opponents, or other persons.

(9) The documentation of the final public agency decision,
including the final environmental impact report, mitigated negative
declaration, or negative declaration, and all documents, in addition
to those referenced in paragraph (3), cited or relied on in the
findings or in a statement of overriding considerations adopted
pursuant to this division.

(10) Any other written materials relevant to the respondent
public agency’s compliance with this division or to its decision on
the merits of the project, including the initial study, any drafts of
any environmental document, or portions thereof, that have been
released for public review, and copies of studies or other documents
relied upon in any environmental document prepared for the project
and either made available to the public during the public review
period or included in the respondent public agency’s files on the
project, and all internal agency communications, including staff
notes and memoranda related to the project or to compliance with
this division.

(11) The full written record before any inferior administrative
decisionmaking body whose decision was appealed to a superior
administrative decisionmaking body prior to the filing of litigation.

(f) In preparing the record of proceedings, the party preparing
the record shall strive to do so at reasonable cost in light of the
scope of the record.

(g) The clerk of the superior court shall prepare and certify the
clerk’s transcript on appeal not later than 60 days from the date
that the notice designating the papers or records to be included in
the clerk’s transcript was filed with the superior court, if the party
or parties pay any costs or fees for the preparation of the clerk’s
transcript imposed in conformance with any law or rules of court.
Nothing in this subdivision precludes an election to proceed by
appendix, as provided in Rule 8.124 of the California Rules of
Court.

(h) Extensions of the period for the filing of any brief on appeal
may be allowed only by stipulation of the parties or by order of
the court for good cause shown. Extensions for the filing of a brief
on appeal shall be limited to one 30-day extension for the
preparation of an opening brief, and one 30-day extension for the
preparation of a responding brief, except that the court may grant
a longer extension or additional extensions if it determines that
there is a substantial likelihood of settlement that would avoid the
necessity of completing the appeal.

(i) At the completion of the filing of briefs on appeal, the
appellant shall notify the court of the completion of the filing of
briefs, whereupon the clerk of the reviewing court shall set the
appeal for hearing on the first available calendar date.

(j) This section shall become operative on January 1, 2017.

SEC. 3.  

Section 21167.6.2 is added to the Public Resources
Code, to read:

21167.6.2.  

(a)  begin insert (1) end insert begin insert   end insert Notwithstanding Section 21167.6, for a
project described in subdivision (f), upon the written request of a
project applicant received no later than 30 days after the date that
a lead agency makes a determination pursuant to subdivision (a)
of Section 21080.1, Section 21094.5, or Chapter 4.2 (commencing
with Section 21155), the lead agency shall prepare and certify the
record of proceedings in the following manner:

begin delete

(1)

end delete

begin insert (A) end insert  The lead agency for the project shall prepare the record of
proceedings pursuant to this division concurrently with the
administrative process.

begin delete

(2)

end delete

begin insert (B) end insert  All documents and other materials placed in the record of
proceedings shall be posted on, and be downloadable from, an
Internet Web site maintained by the lead agency commencing with
the date of the release of the draft environmental document for a
project specified in subdivision (f). If the lead agency cannot
maintain an Internet Web site with the information required
pursuant to this section, the lead agency shall provide a link on
begin delete the agency’s end delete begin insert its end insert Internet Web site to begin insert another Internet Web site
containing end insert that information.

begin delete

(3)

end delete

begin insert (C) end insert  Except as provided in subdivision (d) of Section 15120 of
Title 14 of the California Code of Regulations, the lead agency
shall make available to the public, in a readily accessible electronic
format, the draft environmental document for a project specified
in subdivision (f) and all other documents submitted to, cited by,
or relied on by, the lead agency in the preparation of the draft
environmental document for a project specified in subdivision (f).

begin delete

(4)

end delete

begin insert (D) end insert  A document prepared by the lead agency or submitted by
the applicant after the date of the release of the draft environmental
document for a project specified in subdivision (f) that is a part of
the record of the proceedings shall be made available to the public
in a readily accessible electronic format within five business days
after the document is released or received by the lead agency.

begin delete

(5)

end delete

begin insert (E) end insert  The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic format,
and shall make any comment available to the public in a readily
accessible electronic format within five days of its receipt. begin insert This
paragraph does not apply to comments that are submitted less
than five days prior to the decision on the project. end insert

begin delete

(6)

end delete

begin insert (F) end insert  Within seven business days after the receipt of any begin insert written end insert
comment that is not in an electronic format, the lead agency shall
convert that comment into a readily accessible electronic format
and make it available to the public in that format. begin insert This paragraph
does not apply to comments that are submitted less than seven
days prior to the decision on the project. end insert

begin delete

(7)

end delete

begin insert (G) end insert  The lead agency shall certify the record of proceedings
within 30 days after the filing of the notice required pursuant to
Section 21108 or 21152.

begin insert

(2) This subdivision does not require the disclosure or posting
of a trade secret, as defined in Section 6254.7 of the Government
Code, information about the location of archeological sites or
sacred lands, or any other information that is subject to the
disclosure restrictions of Section 6254 of the Government Code.

end insert

(b) Any dispute regarding the record of proceedings shall be
resolved by the court in an action or proceeding brought pursuant
to subdivision begin insert (b) or end insert (c) of Section 21167.

(c) The content of the record of proceedings shall be as specified
in subdivision (e) of Section 21167.6.

(d) Subdivisions (g) to (i), inclusive, of Section 21167.6 are
applicable to an appeal of a decision in an action or proceeding
brought pursuant to subdivision begin insert (b) or end insert (c) of Section 21167.

(e) The negative declaration, mitigated negative declaration,
draft and final environmental impact report, or other environmental
document for a project specified in subdivision (f) shall include a
notice in no less than 12-point type stating the following:

“THIS NEGATIVE DECLARATION, MITIGATED
NEGATIVE DECLARATION, EIR, OR ENVIRONMENTAL
DOCUMENT IS SUBJECT TO SECTION 21167.6.2 OF THE
PUBLIC RESOURCES CODE, WHICH REQUIRES THE
RECORD OF PROCEEDINGS FOR THIS PROJECT TO BE
PREPARED CONCURRENTLY WITH THE
ADMINISTRATIVE PROCESS, DOCUMENTS PREPARED
BY, OR SUBMITTED TO, THE LEAD AGENCY begin delete TO end delete begin insert WILL end insert BE
POSTED ON THE LEAD AGENCY’S INTERNET WEB SITE
begin insert IN A TIMELY MANNER end insert , AND THE LEAD AGENCY TO
ENCOURAGE WRITTEN COMMENTS ON THE PROJECT
TO BE SUBMITTED TO THE LEAD AGENCY IN A READILY
ACCESSIBLE ELECTRONIC FORMAT.”

(f) This section applies to the record of proceedings for the
preparation of a negative declaration, mitigated negative
declaration, environmental impact report, or other environmental
document prepared for any of the following:

(1) A project determined to be of statewide, regional, or
areawide environmental significance pursuant to subdivision (d)
of Section 21083.

(2) A project subject to Section 21094.5 or Chapter 4.2
(commencing with Section 21155).

(3) (A) A project, other than one described in paragraphs (1)
and (2), for which the lead agency consents to prepare the record
of proceeding pursuant to this paragraph.

(B) The lead agency shall respond to a request by the project
applicant within 10 business days from the date that the request
pursuant to subdivision (a) is received by the lead agency.

(C) A project applicant and the lead agency may mutually agree,
in writing, to extend the time period for the lead agency to respond
pursuant to subparagraph (B), but they shall not extend that period
beyond the commencement of the public review period for the
proposed negative declaration, mitigated negative declaration, or
draft environmental impact report.

(D) The request to prepare a record of proceedings pursuant to
this paragraph shall be deemed denied if the lead agency fails to
respond within 10 business days of receiving the request or within
the time period agreed upon pursuant to subparagraph (C),
whichever ends later.

(g) The project applicant shall reimburse the lead agency for
the costs incurred in compliance with this section in a manner
specified by the lead agency and a plaintiff or petitioner in an
action or proceeding filed pursuant to Section 21167, if any, is not
required to pay these costs.

(h) The costs of preparing the record of proceedings pursuant
to this section and complying with the requirements of this section
are not recoverable costs pursuant to Section 1033 of the Code of
Civil Procedure.

(i)  This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2017, deletes or extends that date.

SEC. 4.  

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.