BILL ANALYSIS
AB 1017
Page 1
GOVERNOR'S VETO
AB 1017 (Ma)
As Amended August 22, 2008
2/3 vote
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|ASSEMBLY: |76-0 |(January 29, |SENATE: |35-0 |(August 27, |
| | |2008) | | |2008) |
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|ASSEMBLY: |77-0 |(August 29, | | | |
| | |2008) | | | |
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Original Committee Reference: NAT. RES.
SUMMARY : Establishes 30-60-day deadline for bringing an appeal
of a California Environmental Quality Act (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).
The Senate amendments specify the following additional
procedures governing such appeals:
1)Require the elected body to set the appeal for hearing upon
filing, the hearing be held within 90 days of filing, and a
decision be made within 30-45 days after the hearing.
2)Provide that the statutory time limits for judicial appeal of
the CEQA decision do not begin until after the elected body
acts on the administrative appeal.
3)Provide that a notice of approval or determination filed by
the non-elected body is set aside the approval or
determination has been appealed to the elected body.
4)Require a 30-day deadline for appeals filed in a city and
county (i.e., San Francisco).
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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; or,
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.
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.
AS PASSED BY THE ASSEMBLY , this bill required 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
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period to a maximum of 60 days.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : 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.
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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
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.
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 in other jurisdictions 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.
GOVERNOR'S VETO MESSAGE :
This bill establishes timelines under the California
Environmental Quality Act (CEQA) during which an
administrative appeal of an action taken by a
nonelected decision-making body may be made to the
elected body.
This bill is unnecessary because existing law already
allows local elected officials to set their own
deadlines for administrative appeals under CEQA.
Imposing standard deadlines for the governance of
administrative appeals without regard for variations
in local conditions, caseload impacts and other
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practical considerations unnecessarily limits the
discretion of local governments.
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092
FN: 0007903