BILL ANALYSIS Ó
SB 731
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Date of Hearing: July 1, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 731 (Steinberg) - As Amended: May 24, 2013
SENATE VOTE : 39-0
SUBJECT : California Environmental Quality Act and sustainable
communities strategy
SUMMARY : Makes various clarifications and revisions to CEQA,
including limiting the scope of review for certain residential,
mixed-use, and commercial "employment center" projects near
existing or planned transit stops.
EXISTING LAW :
1)CEQA requires lead agencies with the principal responsibility
for carrying out or approving a proposed project to prepare a
negative declaration, mitigated negative declaration, or
environmental impact report (EIR) for this action, unless the
project is exempt from CEQA (CEQA includes various statutory
exemptions, as well as categorical exemptions in the CEQA
guidelines).
2)Requires an EIR to identify and analyze:
a) Significant effects on the environment that would occur
if the project is approved, unless the agency finds that
alternatives to the project or mitigation measures would
address the effects, or specific overriding economic,
legal, social, technological, or other benefits of the
project outweigh them.
b) Cumulative impacts of a project when, considered in the
context of environmental change occurring over time, the
incremental effect is cumulatively considerable.
3)Exempts from CEQA specified residential housing projects which
meet criteria established to ensure the project does not have
a significant effect on the environment, including urban
infill housing projects not more than 100 units on a site not
more than four acres in size which is within one-half mile of
a major transit stop. [SB 1925 (Sher), Chapter 1039, Statutes
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of 2002]
4)Establishes abbreviated CEQA review procedures for specified
infill projects, where only specific or more significant
effects on the environment which were not addressed in a prior
planning-level EIR need be addressed. An EIR for such a
project need not consider alternative locations, densities,
and building intensities or growth-inducing impacts. Infill
projects may include residential, retail, commercial, transit
station, school, or public office building projects located
within an urban area. Requires the Office of Planning and
Research (OPR) to develop CEQA guidelines, including statewide
standards to promote smart growth, reduction of greenhouse gas
(GHG) emissions, reduction in water use, energy efficiency
improvements and protection of public health. [SB 226
(Simitian), Chapter 469, Statutes of 2011]
5)Requires metropolitan planning organizations to include a
sustainable communities strategy (SCS), as defined, in their
regional transportation plans, or an alternative planning
strategy (APS), for the purpose of reducing GHG emissions,
aligns planning for transportation and housing, and creates
specified incentives for the implementation of the strategies,
including CEQA exemption or abbreviated review for eligible
residential projects. [SB 375 (Steinberg), Chapter 728,
Statutes of 2008]
6)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project. Challenges alleging improper
determination that a project may have a significant effect on
the environment, or alleging an EIR doesn't comply with CEQA,
must be filed in the Superior Court within 30 days of filing
of the notice of approval.
7)Establishes that a record of proceeding includes, but is not
limited to, all application materials, staff reports,
transcripts or minutes of public proceedings, notices, written
comments, and written correspondence prepared by or submitted
to the public agency regarding the proposed project.
Establishes a procedure for the preparation, certification,
and lodging of the record of proceedings.
THIS BILL :
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1)Requires OPR, on or before July 1, 2014, to propose revisions
to the CEQA Guidelines to establish thresholds of significance
(to determine if an environmental effect justifies preparation
of an EIR) for noise, transportation, and parking impacts of
residential, mixed-use residential, or employment center
projects within transit priority areas. Requires the
thresholds to be based upon a project's proximity to a
multi-modal transportation network, its overall transportation
accessibility, and its proximity to a diversity of land uses.
a) Defines "employment center project" as a project located
on property zoned for commercial uses, with a floor area
ratio of no less than 0.75, located within one-half mile of
a major transit stop or high-quality transit corridor
included in a regional transportation plan.
b) Defines "transit priority area" as an area within
one-half mile of a major transit stop that is either
existing or planned, if the planned stop is scheduled to be
completed with the 20-year planning horizon of a specified
federal transportation plan.
c) Provides that "aesthetic" impacts of projects subject to
this section shall not be considered significant impacts on
the environment for purposes of CEQA, while also stating
that the authority of a lead agency to consider aesthetic
impacts pursuant to local design review ordinances or other
discretionary powers in not affected. (Section 9)
2)For purposes of the existing exemption for a residential
development project that is consistent with a specific plan
for which an EIR has been prepared, clarifies that "new
information" which would invalidate the exemption does not
include "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" (making the meaning of "new information"
consistent with the existing meaning of "substantial evidence"
in CEQA). (Section 5)
3)Requires, when a public agency finds that specific economic,
legal, social, technological, or other considerations make
infeasible the mitigation measures or alternatives identified
in the EIR and finds that specific overriding economic, legal,
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social, technological, or other benefits of the project
outweigh the significant effects on the environment, that the
agency's findings be published for review for at least 15 days
prior to approval of the project, and provides specified
procedures for publication and transmittal to specified
parties. (Section 7)
4)Requires a lead agency to prepare and publish an annual report
on a project's compliance with mitigation measures adopted
pursuant to CEQA. (Section 8)
5)Provides that the statute of limitations for bringing a CEQA
lawsuit may be tolled for successive periods up to four years
each by agreement of the parties (petitioner, public agency
and real party in interest/applicant). (Section 10)
6)For certain projects and upon a project applicant's request,
authorizes a lead agency to prepare concurrently with the
administrative process the record of proceedings that would be
used in a judicial challenge to an agency's action or decision
under CEQA. Specifies procedures for preparation and
publication of the record. Requires the project applicant to
reimburse the lead agency for the costs incurred to prepare
the record. Applies to projects determined to be of
statewide, regional, or area-wide environmental significance;
infill projects for which an EIR was certified for a city or
county's planning level decision; a project implementing a
sustainable communities strategy pursuant to SB 375; or any
other project for which the lead agency consents to prepare
the record of proceedings pursuant to the above requirements.
(Sections 11-13)
7)Requires the Attorney General to report annually to the
Legislature regarding CEQA lawsuits, including the parties
involved, the type of action and violation alleged, and the
disposition of the case. (Section 14)
8)Requires, when a court finds that a public agency has not
complied with CEQA, that the court issue a peremptory writ of
mandate specifying what action is necessary to comply.
Requires the writ include only those mandates necessary to
achieve compliance and only those project activities in
noncompliance, and permits a writ to direct the agency to
revise only those portions of a CEQA document found not to be
in compliance, provided the non-compliant issues are severable
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from the remainder of the project. (Section 15)
9)Declares the intent of the Legislature to appropriate $30
million to the Strategic Growth Council to provide competitive
grants to local agencies for planning activities related to
implementing SB 375. (Section 16)
10)Authorizes the applicant for a renewable energy project to
present to the public agency the onsite or offsite benefits of
the project. (Section 6)
11)Establishes, until January 1, 2017, the position of "Advisor
on Renewable Energy Facilities" in the office of the Governor.
(Sections 3-4)
12)Declares the intent of the Legislature regarding various CEQA
issues, some of which are addressed in the operative
provisions of the bill and some of which are not. (Section 1)
13)Titles the bill the "CEQA Modernization Act of 2013".
(Section 2)
FISCAL EFFECT : According to the Senate Appropriations
Committee: One-time costs of $73,000 for FY 13-14 and $109,000
annually thereafter from the General Fund for the Department of
Justice for annual reporting requirements. One-time costs of
$500,000 to $750,000 from the General Fund for the Office of
Planning and Research (OPR) to develop threshold standards for
noise, transportation, and parking impacts. Ongoing costs of
approximately $120,000 for the creation of the Advisor on
Renewable Energy Facilities within the Office of the Governor.
Cost pressure of $30 million to the General Fund for local
assistance grants for planning activities administered by the
Strategic Growth Council.
COMMENTS :
1)Background. CEQA provides a process for evaluating the
environmental effects of applicable projects undertaken or
approved by public agencies. If a project is not exempt from
CEQA, an initial study is prepared to determine whether the
project may have a significant effect on the environment. If
the initial study shows that there would not be a significant
effect on the environment, the lead agency must prepare a
negative declaration. If the initial study shows that the
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project may have a significant effect on the environment, the
lead agency must prepare an EIR. A lead agency must base its
determination of significant effects on substantial evidence.
Generally, an EIR must accurately describe the proposed
project, identify and analyze each significant environmental
impact expected to result from the proposed project, identify
mitigation measures to reduce those impacts to the extent
feasible, and evaluate a range of reasonable alternatives to
the proposed project. Prior to approving any project that has
received environmental review, an agency must make certain
findings. If mitigation measures are required or incorporated
into a project, the agency must adopt a reporting or
monitoring program to ensure compliance with those measures.
According to the author's office, this bill is a comprehensive
reform measure to strengthen CEQA's protection of the state's
environment and residents while modernizing the law to aid
California's economic growth. The author states, "today's
bill is the result of months of discussion and negotiation
with key representatives from the business, environmental, and
organized labor communities." These changes were key issues
identified by a CEQA working group of experts brought together
by Senator Steinberg this past fall. The author states,
"taken together they will help reduce litigation and delays
from CEQA while protecting the legitimate uses of the
statute."
2)Intent section doesn't match the bill. The purpose and
relevance of the introductory intent section of this bill is
unclear. Some of the intent subdivisions describe provisions
which are not in the operative sections of the bill [i.e.,
subdivisions (a), (b) and (f)]. Others essentially restate
provisions which are in the bill without adding any additional
meaning [i.e., subdivisions (c), (d), (e) and (g)]. The
author and the committee may wish to consider striking or
revising these subdivisions so the intent section is more
germane to rest of the bill.
3)Conclusion that projects near existing or planned transit
stops are always "environmentally beneficial" is
unsubstantiated. In Section 9, this bill labels a wide range
of residential, mixed-use and commercial "employment center"
projects as "environmentally beneficial" so long as the
project may be located within one-half mile of a major transit
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stop, whether the stop is existing, or planned up to 20 years
in the future. Apart from being labeled "environmentally
beneficial" in the statute, the specific relief offered to
these projects seems modest and a little vague. An eligible
project's noise, transportation and parking impacts may be
measured against statewide thresholds of significance
established by OPR, rather than local standards, so long as
the local agency does not elect to apply local standards. In
addition, aesthetic impacts are specifically barred from
consideration under CEQA. The idea that local noise, traffic
and aesthetic impacts could in some cases be disregarded seems
to be based on the proposition that these projects will occur
on infill sites in urban areas, which are already impacted by
noise and traffic, and that aesthetic impacts are subjective
and not an environmental impact. However, the application of
these provisions is not limited to infill sites, or even urban
areas. Nor is it tied to compliance with the "smart growth"
planning procedures of SB 375 or the environmental performance
standards for infill projects adopted pursuant to SB 226. The
type of residential or commercial projects that might be
eligible is not defined, except that commercial projects must
have a floor area ratio of least 0.75, which excludes
low-intensity "sprawl" development (e.g. single story/large
parking lot). These minimal conditions do not seem adequate
to support the conclusion that these projects should always be
spared from consideration of local noise and transportation
impacts. The author and the committee may wish to consider
additional limits on the application of this section, such as
limiting to infill sites in urban areas, reducing the 20-year
limit for planned transit stops, excluding parking impacts,
and clarifying that aesthetic impacts do not include impacts
on historical or cultural resources.
4)Where are the parties? Many of the parties that normally
engage on CEQA issues, including developers, environmental
advocates and labor unions, have not filed letters or
otherwise provided substantive comments on the bill. A
coalition of local government agencies criticize the bill for
not doing enough to streamline CEQA, while imposing new
burdens on lead agencies, and note that several of the bill's
provisions essentially confirm existing law, while potentially
adding confusion. Historic preservation advocates object to
removing consideration of aesthetics for projects in transit
priority areas because they view consideration of aesthetics
in CEQA review as important to protect historic and cultural
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resources.
5)Technical and clarifying amendments. The author has a variety
of technical and clarifying amendments, which may be presented
at the hearing for adoption in conjunction with any committee
amendments. These include revisions to the intent section to
align it with the operative sections, relocation of Section
6's provisions from Section 21080 to 21081, assigning the CEQA
litigation report to the California Research Bureau, rather
than the Attorney General, and other minor/non-substantive
corrections.
6)Double referral. This bill has been double-referred to the
Assembly Local Government Committee.
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REGISTERED SUPPORT / OPPOSITION :
Support
City of Sacramento
Civil Justice Association of California
Opposition
California Preservation Foundation
Napa Design Partners
Pasadena Heritage
Public Works Coalition (unless amended):
Association of California Healthcare Districts
Association of California School Administrators
California Association of Sanitation Agencies
California Association of School Business Officials
California Special Districts Association
California State Association of Counties
California State University
Coalition for Adequate School Housing
Los Angeles Unified School District
Small School Districts' Association
Rural County Representatives of California
Three Valleys Municipal Water District
Urban Counties Caucus
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092