BILL ANALYSIS Ó
AB 641
Page 1
Date of Hearing: April 27, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 641
(Mayes) - As Amended March 26, 2015
SUBJECT: Environmental quality: housing developments
SUMMARY: Establishes special judicial review procedures under
the California Environmental Quality Act (CEQA) for any activity
related to the new construction of houses or dwelling units.
EXISTING LAW:
1)Requires lead agencies with the principal responsibility for
carrying out or approving a proposed project to prepare a
negative declaration, mitigated negative declaration, or
environmental impact report (EIR) for this action, unless the
project is exempt from CEQA (CEQA includes various statutory
exemptions, as well as categorical exemptions in the CEQA
guidelines).
2)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project. Challenges alleging improper
determination that a project may have a significant effect on
the environment, or alleging an EIR doesn't comply with CEQA,
must be filed in the Superior Court within 30 days of filing
of the notice of approval. The courts are required to give
AB 641
Page 2
CEQA actions preference over all other civil actions.
3)Establishes that a record of proceeding includes, but is not
limited to, all application materials, staff reports,
transcripts or minutes of public proceedings, notices, written
comments, and written correspondence prepared by or submitted
to the public agency regarding the proposed project.
Establishes a procedure for the preparation, certification,
and lodging of the record of proceedings.
THIS BILL establishes special CEQA procedures for any "housing
development," as follows:
1)Defines "housing development" as any activity related to the
new construction of houses or dwelling units for the primary
purpose of providing decent, safe, and sanitary housing for
persons and families of all income levels. A housing
development includes, but is not limited to, any building,
land, equipment, facilities, or other real or personal
property that a local agency determines to be necessary or
convenient in connection with the provision of housing,
including, but not limited to, streets, sewers, utilities,
parks, site preparation, landscaping, and other nonhousing
facilities, such as administrative, community, health,
recreational, educational, commercial facilities, and that the
local agency determines are an integral part of a housing
development.
2)Requires Judicial Council to adopt a rule of court, by July 1,
2016, 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)Generally prohibits a court, in granting relief, from staying
or enjoining the construction or operation of a housing
development and provides that a court may only enjoin those
AB 641
Page 3
specific activities associated with the project 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.
(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)
FISCAL EFFECT: Unknown
COMMENTS:
1)Background. 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 public agencies can be challenged in
Superior Court once the agency approves or determines to carry
AB 641
Page 4
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 (Buchanan) and SB 292 (Padilla) 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 in 2013 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. In 2013, SB 743
(Steinberg) established special CEQA procedures modeled on SB
292 for the proposed Sacramento Kings arena project. Like SB
292, SB 743 applied to a single project and included specified
traffic and air quality mitigations.
2)Should the AB 900/SB 292/SB 743 model be expanded? It's an
open question whether the idea of limiting the scope and time
of judicial review of favored projects was ever good policy,
even for one project. The practical benefit of this approach
AB 641
Page 5
to developers is debatable and it's unclear whether that
benefit outweighs the potential sacrifice to effective
environmental review and the increased burden on the courts.
The only project that seems to have used, and possibly
benefited from, the judicial review procedures enacted since
2011 is the Sacramento Kings arena project. It should be
noted that the procedures in SB 743 applied only to the arena
project and SB 743 also required the arena to be certified
Leadership in Energy and Environmental Design (LEED) Gold, as
well as minimize traffic and air quality impacts through
project design or mitigation measures including reducing to at
least zero the net greenhouse gas (GHG) emissions from private
automobile trips to the arena, achieve reductions in GHG
emissions from automobiles and light trucks that will exceed
the GHG emission reduction targets for 2020 and 2035 adopted
for the Sacramento region pursuant to SB 375, and achieve a
15% reduction in vehicle-miles traveled per attendee.
This bill applies similar expedited review procedures to any
activity related to the new construction of houses or dwelling
units, but does not include any mitigation measures. The bill
would apply to an unknown number of future housing development
projects with unknown impacts. Since the projects are
undefined, it's impossible to evaluate their merits, much less
whether those merits justify preferential treatment. The
potential for many projects to qualify also increases the
burden on the courts. Judicial Council indicates that the
requirement to resolve lawsuits within 270 days may be
unworkable in practice, will likely have an adverse impact on
other cases, and undermines equal access to justice.
REGISTERED SUPPORT / OPPOSITION:
Support
AB 641
Page 6
California Building Industry Association
California Chamber of Commerce
Opposition
Center for Biological Diversity
Judicial Council of California
Natural Resources Defense Council
Sierra Club California
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092
AB 641
Page 7