BILL ANALYSIS Ó
SB 743
Page 1
Date of Hearing: September 11, 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.
The author intends to offer amendments, to be adopted in Local
Government Committee, as follows:
1)Within the definition of "downtown arena," provide that the
arena will be certified LEED Gold within one year of the first
NBA season and will minimize traffic and air quality impacts
through project design or mitigation measures that will do all
of the following:
a) Reduce to at least zero the net GHG emissions from
private automobile trips to the arena as compared to the
baseline (existing arena), as verified by Sacramento air
district.
b) Achieve per attendee reduction in GHG emissions from
automobiles and light trucks, compared to existing arena
during 2012-13 NBA season, that will exceed the GHG
emission reduction targets for 2020 and 2035 adopted for
the Sacramento region pursuant to SB 375.
c) Achieve and maintain vehicle-miles traveled per
attendee for NBA events that is no more than 85 percent
of the baseline (i.e., 15 percent less than existing
arena).
2)Require the lead agency to consider the following mitigation
measures as a condition of project approval:
a) Temporarily expanding the capacity of a public
transit line, as needed, to serve downtown arena events.
b) Providing private charter buses or other similar
services, as needed, to serve downtown arena events.
c) Paying its fair share of the cost of measures that
expand the capacity of a public fixed or light rail
station that is used by spectators attending downtown
arena events.
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3)Strike out the additional limitations on court remedies (page
11, lines 19-30).
4)Limit the application of the eminent domain provision to 545
and 600 K Street and surrounding publicly accessible areas and
rights-of-way within 200 feet of 600 K Street (i.e., Men's
Macy's property), provides that the provision shall not apply
to any other eminent domain actions prosecuted by the City of
Sacramento or to eminent domain actions based on a finding of
blight.
REGISTERED SUPPORT / OPPOSITION :
Support
California Infill Building Federation
California Teamsters Public Affairs Council
City of Sacramento
Sacramento County Board of Supervisors
Sacramento Taxpayers Opposed to Pork
Opposition
Judicial Council of California
Planning and Conservation League
Sierra Club California
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092