BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 743
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          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.)








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          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.









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             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  








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            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  








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          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  








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            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