BILL NUMBER: AB 515 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 6, 2014
AMENDED IN ASSEMBLY MARCH 11, 2013
INTRODUCED BY Assembly Member Dickinson
FEBRUARY 20, 2013
An act to amend Sections 21167.1, 21167.8, 21168.9, and
21177 of, and to add Sections 21166.5 and 21167.15 to, the Public
Resources Code, relating to environmental quality. An
act to amend Section 21168.9 of the Public Resources Code, relating
to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 515, as amended, Dickinson. Environmental quality: California
Environmental Quality Act: judicial review.
writ of mandate.
(1) The California Environmental Quality Act requires the court,
if the court finds that a public agency has violated the requirements
of the act, to issue an order, in the form of a peremptory writ of
mandate, specifying what actions by the public agency are necessary
to comply with the requirements of the act.
This bill would require the writ to specify the time by which the
public agency is to make an initial return of the writ containing
specified information. Because a public agency would be required to
file an initial return of a writ, 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, if the Commission on State
Mandates determines that the bill con tains costs mandated
by the state, reimbursement for those costs shall be made pursuant
to these statutory provisions.
The California Constitution vests the judicial power of the state
in the Supreme Court, the courts of appeal, and the superior courts.
Existing law establishes a superior court of one or more judges in
each county and provides that the superior courts have original
jurisdiction, except as provided in the Constitution. Existing law
requires the presiding judge of each superior court to distribute the
business of the court among the judges, and to prescribe the order
of business, subject to the rules of the Judicial Council.
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
judicial review of determinations made by a public agency pursuant to
CEQA and requires actions or proceedings brought pursuant to CEQA to
be given preference over all other civil actions by a trial court.
Existing law requires the superior courts in all counties with a
population of more than 200,000 to designate one or more judges to
develop expertise in CEQA and related land use and environmental
laws, so that those judges will be available to hear, and quickly
resolve, actions or proceedings brought pursuant to CEQA. If the
court finds that a determination made by a public agency pursuant to
CEQA violates the requirements of CEQA, CEQA requires the court to
issue an order, in the form of a peremptory writ of mandate,
specifying what action by the public agency is necessary to comply
with CEQA.
This bill would establish a CEQA compliance division of the
superior court in a county in which the Attorney General maintains an
office and would vest the division with original jurisdiction over
actions of proceedings brought pursuant to CEQA and joined matters
related to land use and environmental laws. The bill would require
the Judicial Council to adopt rules for establishing, among other
things, protocol to govern the administration and efficient operation
of the division, so that those judges assigned to the division will
be able to hear and quickly resolve those actions or proceedings. The
bill would provide that decisions of the CEQA compliance division of
the superior court may be reviewed by way of a petition for an
extraordinary writ. The bill would require the CEQA compliance
division to issue a preliminary decision before the opportunity for
oral argument is granted. If the CEQA compliance division of the
superior court finds that a determination of a public agency violated
CEQA, the bill would require the court's order to specify what
action taken by the public agency was in error and what specific
action by the public agency is necessary to comply with CEQA. The
bill would prohibit an action or proceeding pursuant to CEQA from
being brought unless the alleged grounds of noncompliance were
presented to the public agency with enough specificity that the
public agency could reasonably respond to the alleged violation. The
bill would prohibit a person from maintaining an action or proceeding
pursuant to CEQA unless that person objected during the
administrative process with specificity as to how the public agency's
response to the alleged violation is inadequate.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21168.9 of the
Public Resources Code is amended to read:
21168.9. (a) If a court finds, as a result of a trial, hearing,
or remand from an appellate court, that any determination, finding,
or decision of a public agency has been made without compliance with
this division, the court shall enter an order that includes
a judgment directing the issuance of a peremptory writ
of mandate specifying what action by the public agency is necessary
to comply with this division, including one or more of the
following:
(1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part.
(2) If the court finds that a specific project activity or
activities will prejudice the consideration or implementation of
particular mitigation measures or alternatives to the project, a
mandate that the public agency and any real parties in interest
suspend any or all specific project activity or activities, pursuant
to the determination, finding, or decision, that could result in an
adverse change or alteration to the physical environment, until the
public agency has taken any actions that may be necessary to bring
the determination, finding, or decision into compliance with this
division.
(3) A mandate that the public agency take specific action as may
be necessary to bring the determination, finding, or decision into
compliance with this division.
(b) Any order (1) A
writ issued pursuant to subdivision (a) shall include only
those mandates which that are necessary
to achieve compliance with this division and shall address
only those specific project activities in noncompliance with
this division. The order shall be made by the issuance of a
peremptory writ of mandate specifying what action by the public
agency is necessary to comply with this division. However, the order
(2) The writ shall be limited to
that portion of a determination, finding, or decision or the specific
project activity or activities found to be in noncompliance only if
a court finds that (1) the all of the
following:
(A) The portion or specific
project activity or activities are severable, (2) severance
severable.
(B) Severance will not prejudice
complete and full compliance with this division, and (3) the
division.
(C) The court has not found the
remainder of the project to be in noncompliance with this division.
The trial court shall retain jurisdiction over the public
agency's proceedings by way of a return to the peremptory writ until
the court has determined that the public agency has complied with
this division.
(3) The writ shall include the time by which the public agency
shall make an initial return of the writ.
(4) The trial court shall retain jurisdiction over the public
agency's proceedings by way of a return to the peremptory writ until
the court has determined that the public agency has complied with
this division.
(c) An initial return of the writ shall describe all of the
following:
(1) The actions the public agency will take to come into
compliance with the writ and this division.
(2) A schedule for these actions.
(3) In the case of a negative declaration, mitigated negative
declaration, or environmental impact report found not to be in
compliance with this division, the public comment period applicable
to the agency's revision of the document.
(c) Nothing in this section authorizes
(d) This section does not authorize
a court to direct any a public
agency to exercise its discretion in any particular way. Except as
expressly provided in this section, nothing in
this section is not intended to limit the equitable powers
of the court.
(e) This section does not affect the authority of a court to allow
those determinations, findings, or decisions of a public agency that
are not found to be in violation of this division to proceed, if
allowing the public agency to proceed does not, in any manner,
prejudice complete and full compliance with this division.
SEC. 2. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 21166.5 is added to the
Public Resources Code, to read:
21166.5. (a) There shall be a CEQA compliance division of the
superior court in a county in which the Attorney General maintains an
office.
(b) The CEQA compliance division shall have original jurisdiction
over actions or proceedings brought pursuant to this division, as
well as other matters related to land use and environmental laws that
may be joined with those actions or proceedings.
(c) The judicial council shall adopt rules that do all of the
following:
(1) Establish standards for determining the appropriate superior
court with a CEQA compliance division in which an action or
proceeding brought pursuant to Section 21167, 21168, or 21168.5 may
be filed.
(2) Establish protocol to govern the administration and efficient
operation of the CEQA compliance division to accomplish the goals of
Section 21167.1.
(3) Establish appropriate qualifications for the assignment of
judges to the CEQA compliance division based on the knowledge and
education of a judge in this division.
SEC. 2. Section 21167.1 of the Public Resources
Code is amended to read:
21167.1. (a) In all actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5, including the hearing of an
action or proceeding on appeal from a decision of a lower court, all
courts in which the action or proceeding is pending shall give the
action or proceeding preference over all other civil actions, in the
matter of setting the action or proceeding for hearing or trial, and
in hearing or trying the action or proceeding, so that the action or
proceeding shall be quickly heard and determined. The court shall
regulate the briefing schedule so that, to the extent feasible, the
court shall commence hearings on an appeal within one year of the
date of the filing of the appeal.
(b) To ensure that actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5 may be quickly heard and
determined by judges with expertise in this division and related land
use and environmental laws, actions or proceedings brought pursuant
to Sections 21167, 21168, and 21168.5 shall be heard by the CEQA
compliance division of an appropriate superior court, as determined
by rules developed pursuant to subdivision (c) of Section 21166.5.
(c) In an action or proceeding filed pursuant to this chapter that
is joined with any other cause of action, the court, upon a motion
by any party, may grant severance of the actions. In determining
whether to grant severance, the court shall consider such matters as
judicial economy, administrative economy, and prejudice to any party.
(d) Notwithstanding any other law, review of the decision of the
CEQA compliance division of the superior court shall be pursuant to a
petition for an extraordinary writ.
SEC. 3. Section 21167.8 of the Public Resources
Code, as amended by Section 7 of Chapter 496 of the Statutes of
2010, 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 CEQA compliance
division.
(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,
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. 4. Section 21167.8 of the Public Resources
Code, as added by Section 8 of Chapter 496 of the Statutes of 2010,
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 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 CEQA compliance
division.
(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, 2016.
SEC. 5. Section 21167.15 is added to the Public
Resources Code, immediately following Section 24167.10, to read:
21167.15. To ensure the efficient use of the court's time and a
focused discussion of the issues at oral arguments, the CEQA
compliance division of the superior court shall first issue a
preliminary decision before the opportunity for oral argument is
granted.
SEC. 6. Section 21168.9 of the Public Resources
Code is amended to read:
21168.9. (a) If a court finds, as a result of a trial, hearing,
or remand from an appellate court, that any determination, finding,
or decision of a public agency has been made without compliance with
this division, the court shall enter an order that includes one or
more of the following:
(1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part.
(2) If the court finds that a specific project activity or
activities will prejudice the consideration or implementation of
particular mitigation measures or alternatives to the project, a
mandate that the public agency and any real parties in interest
suspend any or all specific project activity or activities, pursuant
to the determination, finding, or decision, that could result in an
adverse change or alteration to the physical environment, until the
public agency has taken any actions that may be necessary to bring
the determination, finding, or decision into compliance with this
division.
(3) A mandate that the public agency take specific action as may
be necessary to bring the determination, finding, or decision into
compliance with this division.
(b) An order pursuant to subdivision (a) shall include only those
mandates that are necessary to achieve compliance with this division
and only those specific project activities in noncompliance with this
division. The order shall be made by the issuance of a peremptory
writ of mandate specifying what actions were in error and what
specific action by the public agency is necessary to comply with this
division. However, the order shall be limited to that portion of a
determination, finding, or decision or the specific project activity
or activities found to be in noncompliance only if a court finds that
(1) the portion or specific project activity or activities are
severable, (2) severance will not prejudice complete and full
compliance with this division, and (3) the court has not found the
remainder of the project to be in noncompliance with this division.
The CEQA compliance division of the superior court shall retain
jurisdiction over the public agency's proceedings by way of a return
to the peremptory writ until the court has determined that the public
agency has complied with this division.
(c) Nothing in this section authorizes a court to direct any
public agency to exercise its discretion in any particular way.
Except as expressly provided in this section, nothing in this section
is intended to limit the equitable powers of the court.
SEC. 7. 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 with
enough specificity that the public agency could reasonably respond to
the alleged violation.
(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) A person shall not maintain an action or proceeding unless the
person objected during the administrative process with specificity
as to how the public agency's response to the alleged violation is
inadequate under this division.
(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.
(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. 8. Section 21177 of the Public Resources
Code, as added by Section 12 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 with
enough specificity that the public agency could reasonably respond to
the alleged violation.
(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) A person shall not maintain an action or proceeding unless the
person objected during the administrative process with specificity
as to how the public agency's response to the alleged violation is
inadequate under this division.
(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
subdivision (b).
(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.
(g) This section shall become operative on January 1, 2016.