BILL NUMBER: AB 37 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 18, 2013
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, for specified
projects or upon the request of a project applicant and the consent
of the lead agency, that the lead agency , at the
request of a project applicant, to, 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 , for specified projects, 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) (1) 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:
(1)
(A) The lead agency for the project shall prepare the
record of proceedings pursuant to this division concurrently with the
administrative process.
(2)
(B) 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 the
agency's its Internet Web site to another
Internet Web site containing that information.
(3)
(C) 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).
(4)
(D) 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.
(5)
(E) 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.
This paragraph does not apply to comments that are submitted
less than five days prior to the decision on the project.
(6)
(F) Within seven business days after the receipt of any
written 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.
This paragraph does not apply to comments that are submitted
less than seven days prior to the decision on the project.
(7)
(G) 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.
(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.
(b) Any dispute regarding the record of proceedings shall be
resolved by the court in an action or proceeding brought pursuant to
subdivision (b) or (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 (b) or (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
TO WILL BE POSTED ON THE LEAD AGENCY'S
INTERNET WEB SITE IN A TIMELY MANNER , 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.