BILL ANALYSIS Ó SB 743 Page 1 Date of Hearing: September 10, 2013 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Wesley Chesbro, Chair SB 743 (Steinberg) - As Amended: September 6, 2013 SENATE VOTE : not relevant SUBJECT : Environmental quality: judicial review streamlining for environmental leadership development projects and entertainment and sports center in the City of Sacramento. SUMMARY : Establishes special administrative and judicial review procedures under the California Environmental Quality Act (CEQA) for the City of Sacramento's proposed entertainment and sports center project (i.e., Sacramento Kings arena) intended to decrease potential impediments to construction of the project. Also revises a previous CEQA streamlining bill (AB 900) to correct legal defects and extend its operation. Specifically, this bill : 1)Establishes findings related to the arena project. 2)Establishes definitions for purposes of the bill, including: a) "Downtown arena" means an arena constructed to meet the standards required for Leadership in Energy and Environmental Design (LEED) silver certification or better, associated public spaces, and related facility and infrastructure from demolition and site preparation through operation. b) "Entertainment and sports center project" means a project that substantially conforms to the project description set forth in the City's notice of preparation (NOP). (According to the City's NOP, the proposed project would be located on the Downtown Plaza property and on other property that may transferred to applicant and would include demolition of portions of the existing buildings, the construction and operation of an approximately 18,500 seat arena, and up to 1,500,000 square feet of office, retail, housing and hotel uses at the project site. The arena would serve as the home for the Sacramento Kings, as well as a venue for other sports, entertainment, civic and cultural events.) SB 743 Page 2 3)Authorizes the City to prosecute an eminent domain action associated with the downtown arena prior to certification of the environmental impact report (EIR) for the project. 4)Establishes special procedures applicable to an action or proceeding brought to attack, review, set aside, void, or annul the certification of the EIR for the project or the granting of any project approvals, including requiring Judicial Council to adopt a rule of court, by July 1, 2014, requiring lawsuits and any appeals to be resolved, to the extent feasible, within 270 days of certification of the record of proceedings (which must occur within five days of the lead agency filing the notice of determination on the project). 5)Establishes special procedures for public participation in CEQA review of the project: a) Requires the project EIR to include a specified notice that the EIR is subject to the provisions of the section added by this bill. b) Requires the lead agency to conduct an informational workshop within 10 days of release of the Draft EIR and hold a public hearing within 10 days before close of the public comment period. c) Requires the lead agency and applicant to participate in nonbinding mediation with any party who submitted comments on the Draft EIR and requested mediation within five days of the close of the public comment period, with the cost to be paid by the applicant. Requires mediation to end within 35 days of the close of the public comment period. d) Requires the lead agency to adopt any measures agreed upon in mediation. Prohibits a commenter from raising an issue addressed by that measure in a lawsuit. e) Permits the lead agency to ignore written comments submitted after the close of the public comment period, with specified exceptions for materials addressing new information released after the close of the public comment period. SB 743 Page 3 f) Requires the lead agency to provide all EIR documents and comments in an electronic format (with the exception of certain copyright-protected documents), certify the record within five days of filing the notice of determination, provide the record to a party upon written request, and provide the record to the superior court within 10 days of the filing of a petition for review. 6)Requires the lead agency, as a condition of approval of the project, to require the applicant to implement mitigation measures required by CEQA by the end of the first NBA season during which an NBA team has played at the arena. Requires the lead agency to place highest priority on feasible emission reduction measures on the arena site and downtown area. Requires use of offset credits only after feasible local measures have been implemented, and requires that the applicant place the highest priority on the purchase of offset credits that produce emission reductions within the city or the boundaries of the Sacramento Metropolitan Air Quality Management District. 7)Limits remedies available to a court in a CEQA lawsuit challenging the arena to the following (in effect limiting the equitable powers of the court and prohibiting existing remedies under CEQA such as voiding the lead agency's decision or suspending project activities): a) Generally prohibits a court, in granting relief, from staying or enjoining the construction or operation of the arena and provides that a court may only enjoin those specific activities associated with the arena that present an imminent threat to public health and safety or that materially, permanently, and adversely affect unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values. b) Requires a court, in granting relief, to enter an order requiring the public agency to conduct further environmental review, including consideration of additional feasible mitigation measures, where available and necessary to bring the agency's action into compliance with CEQA. 8)Provides that the provisions of the bill related to the arena (Section 2) are severable, and do not apply if the applicant fails to notify the lead agency prior to release of the Draft SB 743 Page 4 EIR that the applicant is electing to proceed pursuant to the provisions of the bill. 9)Revises AB 900 (Buchanan), Chapter 354, Statutes of 2011, which establishes procedures for expedited judicial review by the Court of Appeal for "environmental leadership" projects certified by the Governor and meeting specified conditions, including LEED silver-certified infill site projects, clean renewable energy projects, and clean energy manufacturing projects, as follows: a) Repeals provision giving original jurisdiction to the Court of Appeal and requiring the court to issue its decision within 175 days. b) Instead requires Judicial Council to adopt a rule of court, by July 1, 2014, requiring lawsuits and any appeals to be resolved, to the extent feasible, within 270 days. c) Extends the deadline for certification of projects under AB 900 from June 1, 2014 to January 1, 2016. d) Extends AB 900's sunset from January 1, 2015 to January 1, 2017. FISCAL EFFECT : Unknown COMMENTS : 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 project may have a significant effect on the environment, the lead agency must prepare an EIR. 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. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting SB 743 Page 5 or monitoring program to ensure compliance with those measures. CEQA actions taken by local public agencies can be challenged in Superior Court once the agency approves or determines to carry out the project. CEQA appeals are subject to unusually short statutes of limitations. Under current law, court challenges of CEQA decisions generally must be filed within 30-35 days, depending on the type of decision. The courts are required to give CEQA actions preference over all other civil actions. The petitioner must request a hearing within 90 days of filing the petition and, generally, briefing must be completed within 90 days of the request for hearing. There is no deadline specified for the court to render a decision. In 2011, AB 900 and SB 292 (Padilla), Chapter 353, Statutes of 2011, established expedited judicial review procedures for a limited number of projects. For AB 900, it was large-scale projects meeting extraordinary environmental standards and providing significant jobs and investment. For SB 292, it was a proposed downtown Los Angeles football stadium and convention center project achieving specified traffic and air quality mitigations. For these eligible projects, the bills provided for original jurisdiction by the Court of Appeal and a compressed schedule requiring the court to render a decision on any lawsuit within 175 days. This promised to reduce the existing judicial review timeline by 100 days or more, while creating new burdens for the courts and litigants to meet the compressed schedule. AB 900's provision granting original jurisdiction to the Court of Appeal was invalidated earlier this year by a decision in the Alameda Superior Court in Planning and Conservation League v. State of California. The stadium project subject to SB 292 has not proceeded. This bill would establish special CEQA procedures modeled on SB 292 for the proposed Sacramento Kings arena project, as well as revise and extend AB 900. This bill differs from SB 292 in several significant respects: 1)This bill does not require the arena project to achieve zero net greenhouse gas emissions from private vehicle trips. 2)This bill does not require the arena project to achieve a league-best "trip ratio" (cars divided by spectators). 3)In addition to limiting the grounds for an injunction, this SB 743 Page 6 bill imposes additional limitations on court remedies and declares that the limited remedies permitted in the bill are the sole remedies available to a court. 4)This bill authorizes the City to proceed with eminent domain prior to certification of the EIR. REGISTERED SUPPORT / OPPOSITION : Support California Infill Building Federation California Teamsters Public Affairs Council Sacramento County Board of Supervisors Opposition Judicial Council of California Planning and Conservation League Sierra Club California Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916) 319-2092