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