BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 743|
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UNFINISHED BUSINESS
Bill No: SB 743
Author: Steinberg (D), et al.
Amended: 9/12/13
Vote: 21
PRIOR VOTES NOT RELEVANT
ASSEMBLY FLOOR : Not available
SUBJECT : Environmental quality
SOURCE : Author
DIGEST : This bill establishes special administrative and
judicial review procedures under the California Environmental
Quality Act (CEQA) for the City of Sacramento's (City'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.
Assembly Amendments delete the prior version of this bill that
eliminated CalWorks as the index for California Alternate Rates
for Energy rate increases and instead establish special
administrative and judicial review procedures under 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.
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ANALYSIS : Existing law:
Requires, under The Jobs and Economic Improvement Through
Environmental Leadership Act (Act) of 2011, a party bringing an
action or proceeding alleging that a lead agency's approval of a
project certified by the Governor as an environmental leadership
development project is in violation of CEQA to file the action
or proceeding with the Court of Appeal with geographic
jurisdiction over the project and requires the Court of Appeal
to issue its decision within 175 days of the filing of the
petition. The Act requires the lead agency to concurrently
prepare the record of proceeding for the leadership project with
the review and consideration of the project. The Act provides
that the above provision does not apply to a project for which a
lead agency fails to certify an environmental impact report on
or before June 1, 2014. The Act is repealed by its own terms on
January 1, 2015.
Requires, under CEQA, a lead agency, as defined, to prepare, or
cause to be prepared, and certify the completion of, an
environmental impact report on a project that it proposes to
carry out or approve that may have a significant effect on the
environment or to adopt a negative declaration if it finds that
the project will not have that effect. CEQA also requires a lead
agency to prepare a mitigated negative declaration for a project
that may have a significant effect on the environment if
revisions in the project would avoid or mitigate that effect and
there is no substantial evidence that the project, as revised,
would have a significant effect on the environment. CEQA
establishes a procedure by which a person may seek judicial
review of the decision of the lead agency made pursuant to CEQA.
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 that will be certified
Leadership in Energy and Environmental Design (LEED) Gold
within one year of the first National Basketball
Association (NBA) season and will minimize traffic and air
quality impacts through project design or mitigation
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measures that will do all of the following:
Reduce to at least zero the net greenhouse gas (GHG)
emissions from private automobile trips to the arena as
compared to the baseline (existing arena), as verified by
the Sacramento Metropolitan Air Quality Management
District.
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 (Steinberg,
Chapter 728, Statutes of 2008).
Achieve and maintain vehicle-miles traveled per
attendee for NBA events that is no more than 85% of the
baseline (i.e., 15% less than existing arena).
A. "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, and civic
and cultural events.)
1. Authorizes the City to prosecute an eminent domain action
associated with the downtown arena prior to completing CEQA
review for the project. Limits 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), and 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.
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2. Establishes special procedures applicable to an action or
proceeding brought to attack, review, set aside, void, or
annul the certification of the environmental impact report
(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).
3. 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.
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,
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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.
1. 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.
2. Requires the lead agency to consider, and implement if
feasible and necessary to achieve the GHG and traffic
reduction objectives specified in the bill, 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.
1. 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.
2. Prohibits, generally, 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.
3. Provides that the provisions of the bill related to the
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arena (Section 2) are severable, and do not apply if the
applicant fails to notify the lead agency prior to release of
the Draft EIR that the applicant is electing to proceed
pursuant to the provisions of the bill.
4. 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 within 270 days.
C. Defines "prevailing wages" for purposes of AB 900's
requirement that environmental leadership projects pay
prevailing wages.
D. Extends the deadline for certification of projects under
AB 900 from June 1, 2014, to January 1, 2016.
E. Extends AB 900's sunset from January 1, 2015, to January
1, 2017.
1. Amends the Congestion Management Act (Government Code
Section 65088, et seq.) to expand the definition of "infill
opportunity zone" to include areas within one-half mile of an
existing or planned major transit stop (to be consistent with
the definition of "transit priority area" in this bill), and
authorizes a city or county to designate an infill
opportunity zone (currently subject to a December 31, 2009,
sunset and other limiting conditions), for the purpose of
obtaining an exemption from the application of "level of
service standards" (LOS, a threshold that defines a
deficiency on the congestion management program highway and
roadway system which requires the preparation of a deficiency
plan). The effect of these provisions is to reinstate prior
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law allowing local governments to opt out of LOS requirements
in infill areas.
2. Requires OPR to propose revisions to the CEQA Guidelines to
establish new, non-LOS criteria for determining the
significance of transportation impacts of projects within
"transit priority areas."
A. Defines "transit priority area" as an area within
one-half mile of a major transit stop (i.e., rail transit
station, a ferry terminal served by either a bus or rail
transit service, or the intersection of two or more major
bus routes) that is either existing or planned, if the
planned stop is scheduled to be completed within the
planning horizon of a specified federal transportation
plan.
B. 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.
C. Requires the criteria to promote the reduction of GHG
emissions, the development of multi-modal transportation
networks, and a diversity of land uses.
D. Requires OPR to recommend potential metrics to measure
transportation impacts, including vehicle miles traveled,
vehicle miles traveled per capita, automobile trip
generation rates, or automobile trips generated.
E. Authorizes OPR to establish criteria for models used to
analyze transportation impacts to ensure the models are
accurate, reliable, and consistent with the intent of this
section.
F. Provides that automobile delay, as described solely by
LOS or similar measures of capacity or congestion, shall
not support a finding of significance pursuant to CEQA,
except in locations specifically identified in the
guidelines, if any, once these guidelines are certified by
the Secretary of the Natural Resources Agency.
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G. Provides that aesthetic and parking impacts of
residential, mixed-use, and employment center projects on
infill sites 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 is not affected.
1. Authorizes OPR to adopt CEQA Guidelines establishing metrics
for analysis of transportation impacts that are alternatives
to LOS to be used outside transit priority areas.
2. Establishes a new CEQA exemption for a residential,
mixed-use, and employment center project, including any
subdivision or zoning change, that meets the following
conditions:
A. The project is located within a transit priority area.
B. The project is undertaken to implement and is consistent
with a specific plan for which an EIR has been certified.
C. The project is consistent with the general use
designation, density, building intensity, and applicable
policies specified for the project area in either a
sustainable communities strategy or alternative planning
strategy adopted pursuant to SB 375.
D. Requires further environmental review only if any of the
following events have occurred:
1) Substantial changes are proposed in the project
which will require major revisions of the EIR.
2) Substantial changes occur with respect to the
circumstances under which the project is being undertaken
which will require major revisions in the EIR.
3) New information, which was not known and could not
have been known at the time the EIR was certified as
complete, becomes available.
Background
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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
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
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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 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.
Comments
According to the author's office, nothing in this bill changes
eminent domain law. This bill simply clarifies for one parcel
at the downtown Sacramento Plaza what many courts already hold:
that cities may exercise their power of eminent domain
concurrent with the CEQA process. While the paper transaction
can occur for this parcel, no earth can be moved until the
conclusion of the CEQA process. The language surrounding eminent
domain in this bill pertains to the arena and only the arena.
Additionally, this bill actually constrains what the city can
use to make a finding of eminent domain as it relates to this
parcel. It does this by eliminating the ability of the City to
make a finding based on blight.
This bill corrects an issue with AB 900 that was found
unconstitutional by the courts and gives the courts more
autonomy in processing AB 900 litigation. Under the new proposed
language, AB 900 project litigation is no longer required to go
directly to the Appellate court. Instead, the courts may
structure their review process, provided they complete the
process in 270 days. It also extends the sunset date for AB 900
construction from 2015 to 2017.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
ARGUMENTS IN SUPPORT :
RM:nl 9/12/13 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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