BILL NUMBER: SB 731 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 23, 2013
INTRODUCED BY Senator Steinberg
FEBRUARY 22, 2013
An act to amend, repeal, and add Section 705 of the Fish and
Game Code, to amend Section 65457 of the Government Code,
to amend Section 44273 of the Health and Safety Code, and to amend
Sections 21080, 21081.5, 21081.6, 21167, 21167.6, and 21168.9 of, to
add Sections 21167.6. 2 and 21167.6.3 to, and to add
Chapter 2.7 (commencing with Section 21099) to Division 13 of, the
Public Resources Code, relating to the environment.
LEGISLATIVE COUNSEL'S DIGEST
SB 731, as amended, Steinberg. Environment: California
Environmental Quality Act and sustainable communities strategy.
The
(1) The California Environmental
Quality Act (CEQA) Act, or CEQA,
requires a lead agency, as defined, to prepare, or cause to be
prepared, and certify the completion of, an environmental impact
report (EIR) report, or 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 requires the Office of Planning and Research to develop and
prepare, and the Secretary of the Natural Resources Agency
to certify and adopt, guidelines for the implementation of CEQA by
public agencies. 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. CEQA establishes time
periods within which a person is required to bring a judicial action
or proceeding to challenge a public agency's action taken pursuant to
CEQA.
This bill would state the intent of the Legislature to enact
legislation revising CEQA to, among other things, provide greater
certainty for smart infill development, streamline the law for
specified projects, and establish a threshold of significance for
specified impacts.
This bill would provide that aesthetic impacts of a residential,
mixed-use residential, or employment center project, as defined,
within a transit priority area, as defined, shall not be considered
significant impacts on the environment. The bill would require the
office to prepare and propose, and the Secretary of the Natural
Resources Agency to certify and adopt, revisions to the guidelines
for the implementation of CEQA establishing thresholds of
significance for noise, and for the transportation and parking
impacts of residential, mixed-use residential, or employment center
projects within transit priority areas. The bill would require the
lead agency, in making specified findings, to make those findings
available to the public at least 15 days prior to the approval of the
proposed project and to provide specified notice of the availability
of the findings for public review. Because the bill would require
the lead agency to make the draft finding available for public review
and to provide specified notices to the public, this bill would
impose a state-mandated local program. The bill would require the
lead agency, at the request of a project applicant for specified
projects, 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 a lead agency to
prepare the record of proceedings as provided, this bill would impose
a state-mandated local program. The bill would authorize the tolling
of the time period in which a person is required to bring a judicial
action or proceeding challenging a public agency's action taken
pursuant to CEQA through a tolling agreement that does not exceed 4
years. The bill would authorize the extension of the tolling
agreement.
(2) For mitigation measures required pursuant to an EIR or a
mitigated negative declaration, CEQA requires the lead agency to
adopt a reporting and monitoring program to ensure compliance with
those required mitigation measures during project implementation.
This bill would require the lead agency, as a part of the
mitigation and monitoring plan, to prepare or cause to be prepared an
annual report on project compliance with the required mitigation
measures that is publicly available online. Because the lead agency
would be required to prepare and make available this report, this
bill would impose a state-mandated local program.
(3) Existing law exempts from the requirements of CEQA residential
development projects that are undertaken to implement, and are
consistent with a specific plan for which an EIR has been certified
after January 1, 1980. Existing law provides that this exemption does
not apply if, after the certification of the EIR, a specified event
occurs, unless a supplemental EIR for the specified plan is prepared
and certified.
This bill would specify that the event does not include new
information consisting solely of argument, speculation,
unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts
that do not contribute to, or are caused by, physical impacts on the
environment.
(4) CEQA requires the court, if the court finds that a public
agency has violated the requirements of CEQA, to issue an order
containing specified mandates.
This bill would require the court to issue a peremptory writ of
mandate specifying actions that a public agency needs to take to
comply with the requirements of CEQA. The bill would require the writ
to specify the time by which the public agency is to file an initial
return to a writ containing specified information. Because a public
agency would be required to file an initial return to a writ, this
bill would impose a state-mandated local program.
Existing
(5) Existing law requires the
regional transportation plan for regions of the state with a
metropolitan planning organization to each adopt a sustainable
communities strategy, as part of their regional transportation plan,
as specified, designed to achieve certain goals for the reduction of
greenhouse gas emissions from automobiles and light trucks in a
region. Existing law establishes the Strategic Growth Council to
manage and award grants and loans to support the planning and
development of sustainable communities strategies. Existing law
establishes the Alternative and Renewable Fuel and Vehicle Technology
Fund that is administered by the State Energy Resources Conservation
and Development Commission. Existing law requires that moneys in the
fund, upon appropriation by the Legislature, be expended by the
commission to implement the Alternative and Renewable Fuel and
Vehicle Technology Program to assist in the transition
from the exclusive use of petroleum fuel to a diverse portfolio of
viable alternative fuels that meet petroleum reduction and
alternative fuel use goals and minimizing adverse environmental
impacts.
This bill would state the intent of the Legislature to
provide authorize, upon appropriation by the
Legislature, the use of $30,000,000 annually to
from the Alternative and Renewable Fuel and Vehicle
Technology Fund by the council for the purposes of providing
planning incentive competitive grants
to local and regional agencies to update
and implement general plans, sustainable communities strategies, and
smart growth plans. for planning activities for the
implementation of the sustainable communities strategy.
(6) This bill would, until January 1, 2017, establish in the
office of the Governor the position of Advisor on Renewable Energy
Facilities.
(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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) It is the intent of the Legislature to enact
legislation to adopt provisions of Chapter 3 (commencing with Section
15000) of Division 6 of Title 14 of the California Code of
Regulations (CEQA Guidelines) that are intended to provide greater
certainty for smart infill development, such as Section 15183.3 of
the CEQA Guidelines and related appendices that implement Chapter 469
of the Statutes of 2011. It is further the intent of the Legislature
to explore amendments to expand the definition of "infill" and to
accommodate infill development in the Central Valley.
(b) It is the intent of the Legislature to explore amendments to
the California Environmental Quality Act (Division 13 (commencing
with Section 21000) of the Public Resources Code), to further
streamline the law for renewable energy projects, advanced
manufacturing projects, transit, bike, and pedestrian projects, and
renewable energy transmission projects.
(c) (1) It is the intent of the Legislature to update CEQA to
establish a threshold of significance for noise, aesthetics, parking,
and traffic levels of service, and thresholds relating to these land
use impacts, so that project meeting those thresholds are not
subject to further environmental review for those environmental
impacts. It is further the intent of the Legislature to review other
similar land-use- related impacts to determine if other thresholds of
significance can be set.
(2) It is not the intent of the Legislature to affect authority,
consistent with CEQA, for a local agency to impose its own, more
stringent thresholds.
(3) It is not the intent of the Legislature to replace full CEQA
analysis with state or local standards, with the exception of the
land use standards described in paragraph (1).
(d) It is the intent of the Legislature to amend Section 65456,
which exempts from CEQA projects undertaken pursuant to a specific
plan for which an EIR has been prepared, unless conditions specified
under Section 21166 of the Public Resources Code have occurred, to
define with greater specificity what "new information" means, and to
avoid duplicative CEQA review for projects and activities that comply
with that plan. It is further the intent of the Legislature to
review the possibility of defining other types of plans to determine
if similar treatment could be applied to those plans or portions of
those plans that are consistent with sustainable communities
strategies adopted pursuant to Section 65080 of the Government Code
or that have had a certified EIR within the past five years.
(e) It is the intent of the Legislature to enact amendments to
Section 21168.9 to establish clearer procedures for a trial court to
remand to a lead agency for remedying only those portions of an EIR,
negative declaration, or mitigated negative declaration found to be
in violation of CEQA, while retaining those portions that are not in
violation so that the violations can be corrected, recirculated for
public comment, and completed more efficiently and expeditiously. It
is further the intent of the Legislature to explore options under
which a court could allow project approvals to remain in place, and
for projects to proceed.
(f) It is the intent of the Legislature to amend Section 21091 of
the Public Resources Code and related provisions of law to establish
clear statutory rules under which "late hits" and "document dumps"
are prohibited or restricted prior to certification of an EIR, if a
project proponent or lead agency has not substantively changed the
draft EIR or substantively modified the project.
(g) It is the intent of the Legislature to provide $30 million
annually to the Strategic Growth Council for the purposes of
providing planning incentive grants to local and regional agencies to
update and implement general plans, sustainable communities
strategies, and smart growth plans pursuant to Chapter 728 of the
Statutes of 2008.
SEC. 2. This act shall be known, and may be cited,
as the CEQA Modernization Act of 2013.
SEC. 3. Section 705 of the Fish and
Game Code is amended to read:
705. (a) For purposes of this section, "eligible renewable energy
resources" has the same meaning as in the California Renewables
Portfolio Standard Program (Article 16 (commencing with Section
399.11) of Chapter 2.3 of Part 1 of Division 1 of the Public
Utilities Code).
(b) The department shall establish an internal division with the
primary purpose of performing comprehensive planning and
environmental compliance services with priority given to projects
involving the building of eligible renewable energy resources.
(c) The internal division shall ensure the timely completion of
plans pursuant to the Natural Community Conservation Planning Act
(Chapter 10 (commencing with Section 2800) of Division 3).
(d) The position of Advisor on Renewable Energy Facilities is
hereby established in the office of the Governor.
(e) 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. Section 705 is added to the
Fish and Game Code , to read:
705. (a) For purposes of this section, "eligible renewable energy
resources" has the same meaning as in the California Renewables
Portfolio Standard Program (Article 16 (commencing with Section
399.11) of Chapter 2.3 of Part 1 of Division 1 of the Public
Utilities Code).
(b) The department shall establish an internal division with the
primary purpose of performing comprehensive planning and
environmental compliance services with priority given to projects
involving the building of eligible renewable energy resources.
(c) The internal division shall ensure the timely completion of
plans pursuant to the Natural Community Conservation Planning Act
(Chapter 10 (commencing with Section 2800) of Division 3).
(d) This section shall become operative on January 1, 2017.
SEC. 5. Section 65457 of the Government
Code is amended to read:
65457. (a) Any A residential
development project, including any subdivision, or any zoning change
that is undertaken to implement implement,
and is consistent with with, a
specific plan for which an environmental impact report has been
certified after January 1, 1980, is exempt from the requirements of
Division 13 (commencing with Section 21000) of the Public Resources
Code. However, if after adoption of the specific plan, an event as
specified in Section 21166 of the Public Resources Code occurs, the
exemption provided by this subdivision does not apply unless and
until a supplemental environmental impact report for the specific
plan is prepared and certified in accordance with the provisions of
Division 13 (commencing with Section 21000) of the Public Resources
Code. After a supplemental environmental impact report is certified,
the exemption specified in this subdivision applies to projects
undertaken pursuant to the specific plan.
(b) An action or proceeding alleging that a public agency has
approved a project pursuant to a specific plan without having
previously certified a supplemental environmental impact report for
the specific plan, where required by subdivision (a), shall be
commenced within 30 days of the public agency's decision to carry out
or approve the project.
(c) For the purposes of this section, "an event as specified in
Section 21166 of the Public Resources Code" does not include any new
information consisting solely of argument, speculation,
unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts
that do not contribute to, or are caused by, physical impacts on the
environment.
SEC. 6. Section 44273 of the Health and
Safety Code is amended to read:
44273. (a) The Alternative and Renewable Fuel and Vehicle
Technology Fund is hereby created in the State Treasury, to be
administered by the commission. The moneys in the fund, upon
appropriation by the Legislature, shall be expended by the commission
to implement the Alternative and Renewable Fuel and Vehicle
Technology Program in accordance with this chapter.
(b) Notwithstanding any other provision of law,
the sum of ten million dollars ($10,000,000) shall be transferred
annually from the Public Interest Research, Development, and
Demonstration Fund created by Section 384 of the Public Utilities
Code to the Alternative and Renewable Fuel and Vehicle Technology
Fund. Prior to the award of any funds from this source, the
commission shall make a determination that the proposed project will
provide benefits to electric or natural gas ratepayers based upon the
commission's adopted criteria.
(c) Beginning with the integrated energy policy report adopted in
2011, and in the subsequent reports adopted thereafter, pursuant to
Section 25302 of the Public Resources Code, the commission shall
include an evaluation of research, development, and deployment
efforts funded by this chapter. The evaluation shall include all of
the following:
(1) A list of projects funded by the Alternative and Renewable
Fuel and Vehicle Technology Fund.
(2) The expected benefits of the projects in terms of air quality,
petroleum use reduction, greenhouse gas emissions reduction,
technology advancement, and progress towards achieving these
benefits.
(3) The overall contribution of the funded projects toward
promoting a transition to a diverse portfolio of clean, alternative
transportation fuels and reduced petroleum dependency in California.
(4) Key obstacles and challenges to meeting these goals identified
through funded projects.
(5) Recommendations for future actions.
(d) Notwithstanding any other law, the sum of thirty million
dollars ($30,000,000) may be appropriated by the Legislature in the
annual Budget Act to the Strategic Growth Council to provide
competitive grants to local agencies for planning activities pursuant
to Chapter 4.2 (commencing with Section 21155) of Division 13 of the
Public Resources Code.
SEC. 7. Section 21080 of the Public
Resources Code is amended to read:
21080. (a) Except as otherwise provided in this division, this
division shall apply to discretionary projects proposed to be carried
out or approved by public agencies, including, but not limited to,
the enactment and amendment of zoning ordinances, the issuance of
zoning variances, the issuance of conditional use permits, and the
approval of tentative subdivision maps unless the project is exempt
from this division.
(b) This division does not apply to any of the following
activities:
(1) Ministerial projects proposed to be carried out or approved by
public agencies.
(2) Emergency repairs to public service facilities necessary to
maintain service.
(3) Projects undertaken, carried out, or approved by a public
agency to maintain, repair, restore, demolish, or replace property or
facilities damaged or destroyed as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(4) Specific actions necessary to prevent or mitigate an
emergency.
(5) Projects which a public agency rejects or disapproves.
(6) Actions undertaken by a public agency relating to any thermal
powerplant site or facility, including the expenditure, obligation,
or encumbrance of funds by a public agency for planning, engineering,
or design purposes, or for the conditional sale or purchase of
equipment, fuel, water (except groundwater), steam, or power for a
thermal powerplant, if the powerplant site and related facility will
be the subject of an environmental impact report, negative
declaration, or other document, prepared pursuant to a regulatory
program certified pursuant to Section 21080.5, which will be prepared
by the State Energy Resources Conservation and Development
Commission, by the Public Utilities Commission, or by the city or
county in which the powerplant and related facility would be located
if the environmental impact report, negative declaration, or document
includes the environmental impact, if any, of the action described
in this paragraph.
(7) Activities or approvals necessary to the bidding for, hosting
or staging of, and funding or carrying out of, an Olympic games under
the authority of the International Olympic Committee, except for the
construction of facilities necessary for the Olympic games.
(8) The establishment, modification, structuring, restructuring,
or approval of rates, tolls, fares, or other charges by public
agencies which the public agency finds are for the purpose of (A)
meeting operating expenses, including employee wage rates and fringe
benefits, (B) purchasing or leasing supplies, equipment, or
materials, (C) meeting financial reserve needs and requirements, (D)
obtaining funds for capital projects necessary to maintain service
within existing service areas, or (E) obtaining funds necessary to
maintain those intracity transfers as are authorized by city charter.
The public agency shall incorporate written findings in the record
of any proceeding in which an exemption under this paragraph is
claimed setting forth with specificity the basis for the claim of
exemption.
(9) All classes of projects designated pursuant to Section 21084.
(10) A project for the institution or increase of passenger or
commuter services on rail or highway rights-of-way already in use,
including modernization of existing stations and parking facilities.
(11) A project for the institution or increase of passenger or
commuter service on high-occupancy vehicle lanes already in use,
including the modernization of existing stations and parking
facilities.
(12) Facility extensions not to exceed four miles in length which
are required for the transfer of passengers from or to exclusive
public mass transit guideway or busway public transit services.
(13) A project for the development of a regional transportation
improvement program, the state transportation improvement program, or
a congestion management program prepared pursuant to Section 65089
of the Government Code.
(14) Any project or portion thereof located in another state which
will be subject to environmental impact review pursuant to the
National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et
seq.) or similar state laws of that state. Any emissions or
discharges that would have a significant effect on the environment in
this state are subject to this division.
(15) Projects undertaken by a local agency to implement a rule or
regulation imposed by a state agency, board, or commission under a
certified regulatory program pursuant to Section 21080.5. Any
site-specific effect of the project which was not analyzed as a
significant effect on the environment in the plan or other written
documentation required by Section 21080.5 is subject to this
division.
(c) If a lead agency determines that a proposed project, not
otherwise exempt from this division, would not have a significant
effect on the environment, the lead agency shall adopt a negative
declaration to that effect. The negative declaration shall be
prepared for the proposed project in either of the following
circumstances:
(1) There is no substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant
effect on the environment.
(2) An initial study identifies potentially significant effects on
the environment, but (A) revisions in the project plans or proposals
made by, or agreed to by, the applicant before the proposed negative
declaration and initial study are released for public review would
avoid the effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur, and (B) there is
no substantial evidence, in light of the whole record before the lead
agency, that the project, as revised, may have a significant effect
on the environment.
(d) If there is substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant
effect on the environment, an environmental impact report shall be
prepared.
(e) (1) For the purposes of this section and this division,
substantial evidence includes fact, a reasonable assumption
predicated upon fact, or expert opinion supported by fact.
(2) Substantial evidence is not argument, speculation,
unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts
that do not contribute to, or are not caused by, physical impacts on
the environment.
(f) As a result of the public review process for a mitigated
negative declaration, including administrative decisions and public
hearings, the lead agency may conclude that certain mitigation
measures identified pursuant to paragraph (2) of subdivision (c) are
infeasible or otherwise undesirable. In those circumstances, the lead
agency, prior to approving the project, may delete those mitigation
measures and substitute for them other mitigation measures that the
lead agency finds, after holding a public hearing on the matter, are
equivalent or more effective in mitigating significant effects on the
environment to a less than significant level and that do not cause
any potentially significant effect on the environment. If those new
mitigation measures are made conditions of project approval or are
otherwise made part of the project approval, the deletion of the
former measures and the substitution of the new mitigation measures
shall not constitute an action or circumstance requiring
recirculation of the mitigated negative declaration.
(g) Nothing in this This section
shall does not preclude a project
applicant or any other person from challenging, in an administrative
or judicial proceeding, the legality of a condition of project
approval imposed by the lead agency. If, however, any condition of
project approval set aside by either an administrative body or court
was necessary to avoid or lessen the likelihood of the occurrence of
a significant effect on the environment, the lead agency's approval
of the negative declaration and project shall be invalid and a new
environmental review process shall be conducted before the project
can be reapproved, unless the lead agency substitutes a new condition
that the lead agency finds, after holding a public hearing on the
matter, is equivalent to, or more effective in, lessening or avoiding
significant effects on the environment and that does not cause any
potentially significant effect on the environment.
(h) A project applicant for a renewable energy project may present
to the public agency, orally or in writing, the benefits onsite or
offsite of the project, including, but not limited to, measures that
will mitigate greenhouse gas emissions resulting from the project or
measures that will significantly reduce traffic, improve air quality
or replace higher emitting energy sources, and other significant
environmental or public health impacts.
SEC. 8. Section 21081.5 of the Public
Resources Code is amended to read:
21081.5. (a) In making the findings
required by paragraph (3) of subdivision (a) of
of, and subdivision (b) of, Section 21081, the public
agency shall base its findings on substantial evidence in the record.
Those findings shall be made available in draft form for review
by the members of the public for at least 15 days prior to approval
of the proposed project.
(b) To make the draft findings available to the members of the
public for the purposes of subdivision (a), the lead agency shall
provide a notice of availability of the findings for review either at
the lead agency's office during normal business hours and online
through all of the following mechanisms:
(1) Publication in a newspaper of general circulation in the area
affected by the proposed project. If more than one area will be
affected, the notice shall be published in the newspaper with the
largest circulation from among the newspapers of general circulation
in those areas.
(2) By electronic mail, if available, and mail to the last known
name and address of all individuals and organizations that have
submitted timely comments on the draft environmental impact report.
(3) By electronic mail, if available, and mail to responsible and
trustee agencies that have submitted timely comments on the draft
environmental impact report.
(4) By electronic mail, if available, and mail to the project
applicant, if different from the lead agency, and the applicant's
duly authorized agent.
(5) By electronic mail, if available, and mail to a person who has
filed a written request for notice with the clerk of the governing
body, if there is no governing body, the director of the agency.
SEC. 9. Section 21081.6 of the Public
Resources Code is amended to read:
21081.6. (a) When making the findings required by paragraph (1)
of subdivision (a) of Section 21081 or when adopting a mitigated
negative declaration pursuant to paragraph (2) of subdivision (c) of
Section 21080, the following requirements shall apply:
(1) The public agency shall adopt a reporting or monitoring
program for the changes made to the project or conditions of project
approval, adopted in order to mitigate or avoid significant effects
on the environment. The reporting or monitoring program shall be
designed to ensure compliance during project implementation. For
those changes which have been required or incorporated into the
project at the request of a responsible agency or a public agency
having jurisdiction by law over natural resources affected by the
project, that agency shall, if so requested by the lead agency or a
responsible agency, prepare and submit a proposed reporting or
monitoring program.
(2) The lead agency shall specify the location and custodian of
the documents or other material which constitute the record of
proceedings upon which its decision is based.
(b) A public agency shall provide that measures to mitigate or
avoid significant effects on the environment are fully enforceable
through permit conditions, agreements, or other measures. Conditions
of project approval may be set forth in referenced documents which
address required mitigation measures or, in the case of the adoption
of a plan, policy, regulation, or other public project, by
incorporating the mitigation measures into the plan, policy,
regulation, or project design.
(c) Prior to the close of the public review period for a draft
environmental impact report or mitigated negative declaration, a
responsible agency, or a public agency having jurisdiction over
natural resources affected by the project, shall either submit to the
lead agency complete and detailed performance objectives for
mitigation measures which would address the significant effects on
the environment identified by the responsible agency or agency having
jurisdiction over natural resources affected by the project, or
refer the lead agency to appropriate, readily available guidelines or
reference documents. Any mitigation measures submitted to a lead
agency by a responsible agency or an agency having jurisdiction over
natural resources affected by the project shall be limited to
measures which mitigate impacts to resources which are subject to the
statutory authority of, and definitions applicable to, that agency.
Compliance or noncompliance by a responsible agency or agency having
jurisdiction over natural resources affected by a project with that
requirement shall not limit the authority of the responsible agency
or agency having jurisdiction over natural resources affected by a
project, or the authority of the lead agency, to approve, condition,
or deny projects as provided by this division or any other provision
of law.
(d) As a part of the mitigation monitoring plan established
pursuant to this section, the lead agency shall prepare or cause to
be prepared an annual report on project compliance with mitigation
measures required pursuant to this division. The report shall be made
publicly available online to enhance public disclosure and
accountability.
SEC. 10. Chapter 2.7 (commencing with Section
21099) is added to Division 13 of the Public Resources
Code , to read:
CHAPTER 2.7. STANDARDIZED THRESHOLDS OF SIGNIFICANCE FOR
ENVIRONMENTALLY BENEFICIAL PROJECTS
21099. (a) For purposes of this section, the following terms mean
the following:
(1) "Employment center project" means a project located on
property zoned for commercial uses with a floor area ratio of no less
than 0.75 and that is located within one-half mile of a major
transit stop or high-quality transit corridor included in a regional
transportation plan.
(2) "Floor area ratio" means the ratio of gross building area of
the development, excluding structured parking areas, proposed for the
project divided by the net lot area.
(3) "Gross building area" means the sum of all finished areas of
all floors of a building included within the outside faces of its
exterior walls.
(4) "Lot" means all parcels utilized by the project.
(5) "Net lot area" means the area of a lot, excluding publicly
dedicated land and private streets that meet local standards, and
other public use areas as determined by the local land use authority.
(6) "Transit priority area" means an area within one-half mile of
a major transit stop that is existing or planned, if the planned stop
is scheduled to be completed within the planning horizon established
by Section 450.322 of Title 23 of the Code of Federal
Regulations.
(b) (1) The Office of Planning and Research shall prepare and
propose revisions to the guidelines adopted pursuant to Section
21083, and submit to the Secretary of the Natural Resources Agency
for certification and adoption of, thresholds of significance for
noise, and for the transportation and parking impacts for
residential, mixed-use residential, or employment center projects
within transit priority areas. The thresholds of significance shall
be based upon a project's proximity to a multimodal transportation
network, its overall transportation accessibility, and its proximity
to a diversity of land uses.
(2) On or before July 1, 2014, the Office of Planning and Research
shall circulate a draft revision prepared pursuant paragraph (1).
(c) (1) Aesthetic impacts of a residential, mixed-use residential,
or employment center project within a priority transit area shall
not be considered significant impacts on the environment.
(2) This subdivision does not affect, change, or modify the
authority of a lead agency to consider aesthetic impacts pursuant to
local design review ordinances or other discretionary powers provided
by other laws or policies.
(d) This section does not affect the authority of a public agency
from establishing or adopting transportation or parking standards
applicable to projects or more stringent thresholds of significance.
SEC. 11. Section 21167 of the Public
Resources Code is amended to read:
21167. An action or proceeding to attack, review, set aside,
void, or annul the following acts or decisions of a public agency on
the grounds of noncompliance with this division shall be commenced as
follows:
(a) An action or proceeding alleging that a public agency is
carrying out or has approved a project that may have a significant
effect on the environment without having determined whether the
project may have a significant effect on the environment shall be
commenced within 180 days from the date of the public agency's
decision to carry out or approve the project, or, if a project is
undertaken without a formal decision by the public agency, within 180
days from the date of commencement of the project.
(b) An action or proceeding alleging that a public agency has
improperly determined whether a project may have a significant effect
on the environment shall be commenced within 30 days from the date
of the filing of the notice required by subdivision (a) of Section
21108 or subdivision (a) of Section 21152.
(c) An action or proceeding alleging that an environmental impact
report does not comply with this division shall be commenced within
30 days from the date of the filing of the notice required by
subdivision (a) of Section 21108 or subdivision (a) of Section 21152
by the lead agency.
(d) An action or proceeding alleging that a public agency has
improperly determined that a project is not subject to this division
pursuant to subdivision (b) of Section 21080 or Section 21172 shall
be commenced within 35 days from the date of the filing by the public
agency, or person specified in subdivision (b) or (c) of Section
21065, of the notice authorized by subdivision (b) of Section 21108
or subdivision (b) of Section 21152. If the notice has not been
filed, the action or proceeding shall be commenced within 180 days
from the date of the public agency's decision to carry out or approve
the project, or, if a project is undertaken without a formal
decision by the public agency, within 180 days from the date of
commencement of the project.
(e) An action or proceeding alleging that another act or omission
of a public agency does not comply with this division shall be
commenced within 30 days from the date of the filing of the notice
required by subdivision (a) of Section 21108 or subdivision (a) of
Section 21152.
(f) If a person has made a written request to the public agency
for a copy of the notice specified in Section 21108 or 21152 prior to
the date on which the agency approves or determines to carry out the
project, then not later than five days from the date of the agency's
action, the public agency shall deposit a written copy of the notice
addressed to that person in the United States mail, first class
postage prepaid. The date upon which this notice is mailed shall not
affect the time periods specified in subdivisions (b), (c), (d), and
(e).
(g) The limitation period provided pursuant to this section may be
tolled for a period not to exceed four years if the agreement to
toll the limitation period is in writing and signed by the party
asserting noncompliance with this division, the public agency, and
the real party in interest, as specified in subdivision (a) of
Section 21167.6.5, if any. The tolling agreement shall bar a defense
to any action filed pursuant to this division that the action was not
commenced within the time period specified in this section. Prior to
the expiration of the tolling agreement, the tolling agreement may
be renewed for a further period not to exceed four years from the
immediately preceding tolling agreement. The extension of the tolling
agreement may be made successively.
SEC. 12. Section 21167.6 of the Public
Resources Code is amended to read:
21167.6. Notwithstanding any other provision of law, in all
actions or proceedings brought pursuant to Section 21167, except
as provided 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.
SEC. 13. 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 Section 21167.6.3, the lead agency, upon the
written request of a project applicant received no later than 30 days
after the date that the lead agency makes a determination pursuant
to subdivision (a) of Section 21080.1, Section 21094.5, or Chapter
4.2 (commencing with Section 21155), shall prepare and certify the
record of proceedings in the following manner:
(A) The lead agency for the project shall prepare the record of
proceedings pursuant to this division concurrently with the
administrative process.
(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 Section 21167.6.3. 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
Internet Web site to that information.
(C) The lead agency shall make available to the public in a
readily accessible electronic format the draft environmental document
for a project specified in Section 21167.6.3, 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 Section 21167.6.3.
(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 Section 21167.6.3 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.
(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 business days of its
receipt.
(F) Within seven business days after the receipt of any 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.
(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
any 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 Section 21167.6.3 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 SECTIONS 21167.6.2 AND
21167.6.3 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 BE POSTED ON THE LEAD AGENCY'S INTERNET WEB SITE, 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) For a lead agency that is a state agency, this section shall
apply if the state agency consents to the preparation of the record
of proceedings pursuant to this section.
SEC. 14. Section 21167.6.3 is added to the
Public Resources Code , to read:
21167.6.3. (a) Section 21167.6.2 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 of Chapter 4.2
(commencing with Section 21155).
(3) (A) A project, other than those described in paragraph (1) or
(2), for which the project applicant has requested for, and the lead
agency consents to, the preparation for the record of proceeding
pursuant to this section and Section 21167.6.2.
(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) of Section 21167.6.2 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, draft
environmental impact report, or other environmental document.
(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.
(b) The written request of the applicant submitted pursuant to
subdivision (a) of Section 21167.6.2 shall include an agreement to
pay all of the lead agency's costs of preparing and certifying the
record of proceedings pursuant to Section 21167.6.2 and complying
with the requirements of this section and Section 21167.6.2 in a
manner specified by the lead agency.
(c) The cost of preparing the record of proceedings pursuant to
Section 21167.6.2 and complying with the requirements of this section
and Section 21167.6.2 are not recoverable costs pursuant to Section
1033 of the Code of Civil Procedure.
SEC. 15. 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
issue 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 pursuant to subdivision (a) shall include only those
mandates which 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 action by the public agency is necessary to comply
with this division. However, the order shall
(2) In the case of a negative declaration, mitigated negative
declaration, or environmental impact report found not to be in
compliance with this division, the writ may direct the agency to
revise only those portions of the document found not to be in
compliance with this division.
(3) The writ shall be limited to
that portion of a determination, finding, or decision
decision, or the specific project activity or
activities activities, or document
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
or document is 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 or document to be in
noncompliance with this division. The
(4) A writ shall include a time by which the agency shall make an
initial return of the writ.
(5) 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 to a writ shall describe all of the
following:
(1) The actions the 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
(d) This section
authorizes 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. 16. 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.
However, if the Commission on State Mandates determines that this
act contains other 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.