BILL ANALYSIS Ó
SB 743
Page 1
Date of Hearing: September 11, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
SB 743 (Steinberg) - As Amended: September 6, 2013
AS PROPOSED TO BE AMENDED
SENATE VOTE : 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. Specifically, this bill :
1)Make a number of legislative findings about the unemployment
rates in Sacramento County, the need for a new, more efficient
entertainment and sports center located in downtown Sacramento
and how Sacramento would benefit from the addition of a
multipurpose event center, the number of jobs such a project
would create, and the unprecedented opportunity to implement
innovative measures that will reduce traffic and air quality
impacts and mitigate the greenhouse gas emissions resulting
from the project.
2)Declare that it is in the interest of the state to expedite
judicial review of the entertainment and sport center project,
as appropriate, while protecting the environment and the right
of the public to review, comment on, and if necessary, seek
judicial review of, the adequacy of the environmental impact
report (EIR) for the project.
3)Define the following terms:
a) "Applicant" to mean a private entity or its affiliates
that proposes the project and its successors, heirs, and
assignees.
b) "City" to mean the City of Sacramento.
c) "Downtown arena" to mean the following components of the
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entertainment and sports center project from demolition and
site preparation through operation:
i) An arena facility that will become the new home to
the City of Sacramento's National Basketball Association
(NBA) team that:
(1) Receives Leadership in Energy and
Environmental Design (LEED) gold certification for new
construction within one year of the completion of the
first NBA season;
(2) Minimizes operational traffic congestion and
air quality impacts through either or both project
design and the implementation of feasible mitigation
measures that will do all of the following:
(a) Achieve and maintain carbon neutrality or
better by reducing to at least zero the net
emissions of greenhouse gas emissions, as defined,
from private automobile trips to the downtown arena
as compared to the baseline as verified by the
Sacramento Metropolitan Air Quality Management
District;
(b) Achieve a per-attendee reduction in
greenhouse gas emissions from automobiles and light
trucks compared to per attendee greenhouse gas
emissions associated with the existing arena during
the 2012-2013 NBA season that will exceed the carbon
reduction targets for 2020 and 2035 achieved in the
sustainable communities strategy (SCS) prepared by
the Sacramento Area Council of Governments (SACOG)
for the Sacramento region pursuant to SB 375
(Steinberg), Chapter 728 of the Statutes of 2008;
and,
(c) Achieve and maintain
vehicle-miles-traveled (VMT) per attendee for NBA
events at the downtown arena that is no more than
85% of the baseline.
ii) Associated public spaces; and,
iii) Facilities and infrastructure for ingress, egress,
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and use of the arena facility.
d) "Entertainment and sports center project" or "project"
to mean a project that substantially conforms to the
project description for the entertainment and sports center
project set forth in the notice of preparation released by
the City of Sacramento on April 12, 2013.
4)Allows the City to prosecute eminent domain actions for 545
and 600 K Street, Sacramento, California and surrounding
publicly accessible areas and rights of ways within 200 feet
of 600 K Street, Sacramento, California, through order of
possession pursuant to the Eminent Domain Law prior to
completing environmental review under CEQA, and specifies that
this 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.
5)Requires, on or before July 1, 2014, the Judicial Council to
adopt a rule of court to establish procedures applicable to
actions or proceedings brought to attack, review, set aside,
void, or annul the certification of the EIR for the project or
the granting of any project approvals that require the actions
or proceedings, including any potential appeals therefrom, be
resolved, to the extent feasible, within 270 days of
certification of the records of proceedings, as specified.
6)Specifies, notwithstanding any other law, that the procedures
established pursuant to 5), above, shall apply to an action or
proceeding to attack, review, set aside, void, or annul the
certification of the EIR for the project or the granting of
any project approvals.
7)Requires the draft and final EIR to include a notice in not
less than 12-point type stating the following:
THIS EIR IS SUBJECT TO SECTION 21168.6.6 OF THE PUBLIC
RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE
LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE
CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE DRAFT EIR. ANY
JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR
THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO
THE PROCEDURES SET FORTH IN SECTION 21168.6.6 OF THE PUBLIC
RESOURCES CODE. A COPY OF SECTION 21168.6.6 OF THE PUBLIC
RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.
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8)Requires the draft EIR and final EIR to contain, as an
appendix, the full text of this section of the bill.
9)Requires, within 10 days after the release of the draft EIR,
the lead agency to conduct an informational workshop to inform
the public of the key analyses and conclusions of that report.
10)Requires, within 10 days before the close of the public
comment period, the lead agency to hold a public hearing to
receive testimony on the draft EIR, and require a transcript
of the hearing to be included as an appendix to the final EIR.
11)Allows, within five days following the close of the public
comment period, a commenter on the draft EIR to submit to the
lead agency a written request for nonbinding mediation, and
require the lead agency and applicant to participate in
nonbinding mediation with all commenters who submitted timely
comments on the draft EIR and who requested the mediation.
12)Specifies that mediation shall end no later than 35 days
after the close of the public comment period.
13)Provides that a request for mediation shall identify all
areas of dispute raised in the comment submitted by the
commenter that are to be mediated.
14)Requires the lead agency to select one or more mediators who
shall be retired judges or recognized experts with at least
five years experience in land use and environmental law or
science, or mediation.
15)Requires the applicant to bear the costs of mediation.
16)Requires that a mediation session shall be conducted on each
area of dispute with the parties requesting mediation on that
area of dispute.
17)Requires the lead agency to adopt, as a condition of
approval, any measures agreed upon by the lead agency, the
applicant, and any commenter who requested mediation.
18)Provides that a commenter who agrees to a measure shall not
raise the issue addressed by that measure as a basis for an
action or proceeding challenging the lead agency's decision to
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certify the EIR or to grant one or more initial project
approvals.
19)Specifies that the lead agency need not consider written
comments submitted after the close of the public comment
period, unless those comments address any of the following:
a) New issues raised in the response to comments by the
lead agency;
b) New information released by the public agency subsequent
to the release of the draft EIR, such as new information
set forth or embodied in a staff report, proposed permit,
proposed resolution, ordinance, or similar documents;
c) Changes made to the project after the close of the
public comment period;
d) Proposed conditions for approval, mitigation measures,
or proposed findings, as required, or a proposed reporting
and monitoring program, as required, where the lead agency
releases those documents subsequent to the release of the
draft EIR; and,
e) New information that was not reasonably known and could
not have been reasonably known during the public comment
period.
20)Requires the lead agency to file the notice required by (a)
of Section 21152 within five days after the last initial
project approval.
21)Requires the lead agency to prepare and certify the record of
the proceedings in accordance with the provisions in the bill
and in accordance with Rule 3.1365 of the California Rules of
Court, and require the applicant to pay the lead agency for
all costs of preparing and certifying the record of
proceedings.
22)Requires the lead agency to make available to the public in a
readily accessible electronic format, no later than three
business days following the date of the release of the draft
EIR, the draft EIR and all other documents submitted to or
relied on by the lead agency in the preparation of the draft
EIR. Requires the document prepared by the lead agency or
submitted by the applicant after the date of the release of
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the draft EIR that is a part of the record of the proceedings
to be made available to the public in a readily accessible
electronic format within five business days after the document
is prepared or received by the lead agency.
23)Clarifies that documents submitted to or relied on by the
lead agency that were not prepared specifically for the
project and are copyright protected are not required to be
made readily accessible in an electronic format,
notwithstanding 22), above. Specifies, for those copyright
protected documents, that the lead agency shall make an index
of documents available in an electronic format no later than
the date of the release of the draft EIR, or within five
business days if the document is received or relied on by the
lead agency after the release of the draft EIR. Provide that
the index must specify the libraries or lead agency offices in
which hardcopies of the copyrighted materials are available
for public review.
24)Specifies that the lead agency shall encourage written
comments on the project to be submitted in a readily
accessible electronic format, and shall make any such comment
available to the public in a readily accessible electronic
format within five days of its receipt.
25)Requires, within seven days after the receipts of any comment
that is not in an electronic format, the lead agency to
convert that comment into a readily accessible electronic
format and make it available to the public in that format.
26)Requires the lead agency to indicate in the record of the
proceedings comments received that were not considered by the
lead agency, as specified, and need not include the content of
the comments as a part of the record.
27)Requires, within five days after the filing of the notice
required by (a) of Section 21152, the lead agency to certify
the record of the proceedings for the approval or
determination and to provide an electronic copy of the record
to a party that has submitted a written request for a copy.
Allows the lead agency to charge and collect a reasonable fee
the fore reasonable cost of reproducing that copy.
28)Requires, within 10 days after being served with a complaint
or a petition for a writ of mandate, the lead agency to lodge
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a copy of the certified record of proceedings with the
superior court.
29)Requires any dispute over the content of the record of the
proceedings to be resolved by the superior court. Requires,
unless the superior court directs otherwise, a party disputing
the content of the record to file a motion to augment the
record at the time it files its initial brief.
30)Requires the contents of the records to be set forth as
specified in (e) of Section 21167.6.
31)Requires, as a condition of approval of the project, the lead
agency to require the applicant, with respect to any measures
specific to the operation of the downtown arena, to implement
those measures that will meet the requirements by the end of
the first NBA regular season or June of the first NBA regular
season, whichever is later, during which an NBA team has
played at the downtown arena.
32)Requires the lead agency, to maximize public health,
environmental, and employment benefits, to place the highest
priority on feasible measures that will reduce greenhouse gas
emission on the downtown arena site and in the neighboring
communities of the downtown arena. Mitigation measures that
shall be considered, and implemented, if feasible, include,
but are not limited to:
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; and,
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.
33)Allows offset credits to be employed by the applicant only
after the feasible local emission reduction measures have been
implemented. Requires the applicant to, to the extent
feasible, 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.
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34)Specifies, in granting relief in an action or proceeding
brought pursuant to the bill's provisions, that the court
shall not stay or enjoin the construction or operation of the
downtown area unless the court finds either of the following:
a) The continued construction or operation of the downtown
arena presents an imminent threat to the public health and
safety; or,
b) The downtown area site contains unforeseen important
Native American artifacts or unforeseen important
historical, archaeological, or ecological values that would
be materially, permanently, and adversely affected by the
continued construction or operation of the downtown arena
unless the court stays or enjoins the construction or
operation of the downtown arena.
35)Specifies, if the court finds that either clause listed in
34), above, is satisfied, that the court shall only enjoin
those specific activities associated with the downtown arena
that present an imminent threat to public health and safety or
that materially, permanently, and adversely affect unforeseen
Native American artifacts or unforeseen important historical,
archaeological, or ecological values.
36)Requires an action or proceeding to attack, set aside, void,
or annul a determination, finding, or decision of the lead
agency granting a subsequent project approval to be subject to
the requirements of Chapter 6 (commencing with Section 21165).
37)Allows, where an action or proceeding challenges aspects of
the project other than the downtown arena and those portions
or specific project activities are severable from the downtown
arena, the court to enter an order as to aspects of the
project other than the downtown arena that includes one or
more of the remedies, as specified.
38)Provides that specified provisions of the bill are severable,
and specifies that if any provision or its application is held
invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid
provision or application.
39)Specifies that the bill's provisions do not apply to a
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project if the Governor does not certify a project as an
environmental leadership development project eligible for
streamlining, as provided.
40)Adds the following definition to the section of law dealing
with streamlining for leadership project:
a) "Jobs that pay prevailing wages" means that all
construction workers employed in the execution of the
project will receive at least the general prevailing rate
of per diem wages for the type of work and geographic area,
as determined by the Director of Industrial Relations
pursuant to Section 1773 and 1773.9 of the Labor Code. If
the project is certified for streamlining, the project
applicant shall include this requirement in all contracts
for the performance of the work.
41)Requires, on or before July 1, 2014, the Judicial Council to
adopt a rule of court to establish procedures applicable to
actions of proceedings brought to attack, review, set aside,
void, or annul the certification of the EIR for an
environmental leadership development project certified by the
Governor pursuant to this chapter or the granting of any
project approvals that require the actions or proceedings,
including any potential appeals therefrom, to be resolved, to
the extent feasible, within 445 days of certification of the
record of proceedings, as specified.
42)Provides that documents submitted to or relied on by the lead
agency that were not prepared specifically for the project and
are copyright protected are not required to be made readily
accessible in an electronic format. For those
copyright-protected documents, the lead agency shall make an
index of these documents available in an electronic format no
later than the date of the release of the draft EIR, or within
five business days, as specified.
43)Provides that disputes arising from the administrative record
shall be resolved by the superior court, as specified.
44)Requires, within 10 days of the Governor certifying an
environmental leadership development project, the lead agency
to, at the applicant's expense, issue a public notice, as
specified, and requires the notice to be distributed by the
lead agency as required for specified public notices.
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45)Finds a declares that a special law is necessary and that a
general law cannot be made applicable because of the unique
need for the development of an entertainment and sports center
project in the City of Sacramento in an expeditious manner.
FISCAL EFFECT : Unknown
COMMENTS :
1)This bill provides relief from injunction during the
construction phase of the Sacramento Arena project (new Kings
venue), except in cases of imminent threat to the public
health or safety, or in cases where there are unforeseen
historical, archaeological or ecological issues or Native
American artifacts. The bill makes a number of other changes
in order to expedite the project to make NBA timelines for a
new arena.
According to the author, the bill has a broad coalition of
support. Requested by the Kings and the City of Sacramento, it
has the bipartisan support of the Sacramento delegation, both
republican and democrat. It is also supported by Mayor Kevin
Johnson, civic groups, organized labor, the City of
Sacramento, the Counties of Sacramento and Yolo, and cities in
the region, from West Sacramento to as far away as
Placerville, since the arena and surrounding development will
have regional economic benefits.
Additionally the author notes that the arena alone will create
approximately 4,000 high wage construction jobs, millions of
dollars in annual revenue for the Sacramento region, and
billions of dollars in economic activity for the first 30
years.
According to the author, he proposal is needed "to ensure the
Kings can break ground and start building the new arena by the
fall of 2014 in accordance with the commitments made to the
NBA to have a new facility built and ready to open in October
2016. Senator Steinberg and Mayor Johnson very openly offered
to consider this type of approach when they were fighting to
keep the NBA from moving the Kings to Seattle last spring."
2)In 2011, AB 900 and SB 292 (Padilla), Chapter 353, Statutes of
2011, established expedited judicial review procedures for a
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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
3)AS PROPOSED TO BE AMENDED. The author is offering amendments
to the September 6th version of the bill, to be adopted in
this Committee, that address the following issues:
a) 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:
i) 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 the Sacramento
Air Quality Management District;
ii) Achieve per attendee reduction in GHG emissions from
automobiles and light trucks, compared to the existing
arena during the 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; and,
iii) Achieve and maintain VMT per attendee for NBA events
that is no more than 85% of the baseline.
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b) Require the lead agency to implement, to the extent
feasible, the following mitigation measures as a condition
of project approval:
i) Temporarily expand the capacity of a public transit
line, as needed, to serve downtown arena events;
ii) Providing private charter buses or similar services,
as needed, to serve downtown arena events; and,
iii) 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.
c) Strike out the additional limitations on court remedies
(page 11, lines 19-30).
d) Limit the application of the eminent domain provisions
to 545 and 600 K Street and surrounding publicly accessible
areas and rights of way within 200 feet of 600 K street
(the Men's Macy's property), and provide 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.
4)This bill was heard in the Natural Resources Committee on
September 11, 2013, and passed on an 8-0 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
Unknown
Opposition
Unknown
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958
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