BILL ANALYSIS
AB 1017
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Date of Hearing: January 14, 2008
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Loni Hancock, Chair
AB 1017 (Ma) - As Amended: January 7, 2008
SUBJECT : California Environmental Quality Act (CEQA): appeal
to local lead agency's elected decision-making body.
SUMMARY : Establishes 30-60 day deadline for bringing an appeal
of a CEQA action taken by a non-elected decision-making body
(e.g. planning department or commission) to the elected body
(e.g. city council/board of supervisors).
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.
2)Requires agencies to file a notice following approval of a
project, indicating whether the project will have a
significant effect on the environment and whether an EIR has
been prepared.
3)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project, subject to statutes of limitations
ranging from 30 to 180 days:
a) 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
within 30 days of filing of the notice of approval.
b) Challenges alleging improper determination that a
project is exempt from CEQA must be filed within 35 days of
filing of the notice of exemption, or 180 days if no notice
has been filed.
c) Challenges alleging an agency has failed to determine
whether a project has a significant effect on the
environment must be filed within 180 days.
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4)Permits a CEQA action taken by a non-elected body to be
appealed to the agency's elected body. No deadline is
specified in statute. Local agencies are permitted to set
their own deadlines and otherwise establish procedures
governing such appeals.
THIS BILL : Requires an appeal of a CEQA action taken by a
non-elected body to be brought within 30 days of the action.
The elected body may extend the appeal period to a maximum of 60
days.
FISCAL EFFECT : Unknown, contains state-mandated local program
fee disclaimer.
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COMMENTS :
Background. Generally, 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.
In 2002, the Legislature established an administrative appeal of
CEQA actions taken by non-elected bodies of local lead agencies,
such as planning commissions, to the elected body - city council
or board of supervisors (SB 1393 (Kuehl), Chapter 1121, Statutes
of 2002). SB 1393 did not include a deadline or otherwise
specify procedures governing these administrative appeals.
Local agencies may establish their own procedures, so procedures
vary by locality. For example, Los Angeles has set a 30-day
deadline for administrative appeals. San Francisco has no set
deadline. Instead, the timeliness of appeals is evaluated on a
case-by-case basis by the City Attorney. Project proponents
have complained about the uncertainty caused by this open-ended
appeal period.
According to the author:
Current law provides a relatively new right for
interested persons to appeal the decisions of
nonelected bodies to elected decisionmakers. In
order to litigate a case on CEQA grounds, all
administrative remedies must have been sought.
The absence of a clear statutory deadline for the
administrative appeal creates an inconsistent
statewide standard, when the purpose of CEQA is
to provide uniformity in measuring the impact of
projects on the environment. New guidelines
issued by the Resources Agency confuse the matter
further, as noted in the attached City Attorney
memo.
The guidelines referred to by the author are Section 15061(e) of
the CEQA Guidelines, adopted by the Resources Agency last year.
Section 15061(e) specifies the process for appealing a decision
by a non-elected body that a project is exempt from CEQA.
Section 15061(e) says that an exemption decision may only be
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appealed after the public agency approves the project.
The City Attorney memo referred to by the author addresses an
appeal of the San Francisco Planning Department's determination
that a conditional use permit is exempt from CEQA. The appeal
was filed November 14, 2007, over two months after the Planning
Department's decision. The City Attorney found that the appeal
is not timely because the CEQA Guidelines provide that the
appeal must follow the approval of the project, and the project
has not yet been approved.
Does one size fit all? This bill may point out the need for San
Francisco to adopt clear procedures governing administrative
CEQA appeals, but it doesn't necessarily demonstrate the need
for specifying a 30-day deadline in statute that will apply
statewide. However, the bill does offer local elected bodies
the flexibility to extend the appeal period to 60 days and the
30-day default is consistent with the existing (albeit short)
statute of limitations to file court challenges of CEQA
decisions.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092