BILL ANALYSIS
AB 1581
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 1581
AUTHOR: Torres
AMENDED: August 20, 2010
FISCAL: Yes HEARING DATE: August 25,
2010
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
1) Requires lead agencies with the principal responsibility
for carrying out or approving a proposed project to prepare
a negative declaration, mitigated 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). (Public Resources Code 21000).
2) Requires a lead agency to call at least one scoping meeting
for a proposed project that may affect highways or other
facilities under Department of Transportation (Caltrans)
jurisdiction, if requested by Caltrans, or for a project of
statewide, regional, or areawide significance. (21083.9).
Notice of at least one scoping meeting must be provided to
the following:
a) A county or city that borders on the county or city
within which the project is located, unless otherwise
designated annually by agreement.
b) A responsible agency.
c) A public agency that has jurisdiction by law with
respect to the project.
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d) A transportation planning agency and public agencies
having transportation facilities within the
jurisdiction.
3) An organization or individual who has filed a written
request for notice.
As approved by the Committee , also requires a scoping meeting
notice to be provided to any entity that has filed a written
request for the notice and is not otherwise required to
receive notice (under a) to d) above).
Senate Floor amendments :
1) Exempt a project from CEQA that consists of the alteration
of a vacant retail structure that existed prior to January
1, 2008, is not more than 120,000 square feet in area, and
meets the following requirements:
a) The project improves the energy efficiency of the
vacant retail structure by an amount that is at least
25% more energy efficient than specified regulations for
those structures, as determined by the State Energy
Resources Conservation and Development Commission.
b) The project reduces water consumption to at least
20% below the previous five-year annual average
consumption for similar retail structures, as determined
by the local water agency that has jurisdiction over the
water district within which the structure is located.
c) The project, including any replacement signage, is
consistent with any applicable general plan, specific
plan, or local coastal plan, including any mitigation
measures required by the plan or program, and any
applicable zoning ordinance or local ordinance.
2) Prohibit this exemption from applying to a project that
increases the size of the vacant retail structure's
footprint, floor plan, or floor area ratio.
3) Sunset the exemption January 1, 2014.
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COMMENTS :
1) Purpose of Bill . Under CEQA, a scoping meeting notice must
be provided to certain public agencies. An organization or
individual may file a written request to receive the
notice, but there is no provision allowing an entity to
receive a scoping meeting notice upon request if that
entity is not otherwise required to receive notice - such
as a special district or nearby city that does not border
the county or city within which the project is located. AB
1581, as approved by the Committee June 29, 2010, provides
an opportunity for these entities to file a written request
to receive the scoping meeting notice.
The author added a CEQA exemption to this bill August 20,
2010.
2) AB 1581 referred to Committee under Senate Rule 29.10 . As
approved by the Committee July 28, 20010 (5-0), as noted
above, AB 1581 revised CEQA scoping notice requirements.
Senate Floor August 20, 2010, adds a CEQA exemption for a
project that consists of a vacant retail structure meeting
certain conditions, which sunsets January 1, 2014.
3) Brief background on CEQA . CEQA provides a process for
evaluating the environmental effects of a project, and
includes statutory exemptions, as well as categorical
exemptions in the CEQA guidelines. If a project is not
exempt from CEQA, an initial study is prepared to determine
whether a 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
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impacts to the extent feasible, and evaluate a range of
reasonable alternatives to the proposed project. Prior to
approving any project that has received environmental
review, an agency must make certain findings. 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.
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure
must be discussed but in less detail than the significant
effects of the proposed project.
4) Blaming CEQA . It is not unusual for certain interests to
assert that a particular exemption will expedite
construction of a particular type of project and reduce
costs. This, however, frequently overlooks the benefits of
environmental review: to inform decisionmakers and the
public about project impacts, identify ways to avoid or
significantly reduce environmental damage, prevent
environmental damage by requiring feasible alternatives or
mitigation measures, disclose to the public reasons why an
agency approved a project if significant environmental
effects are involved, involve public agencies in the
process, and increase public participation in the
environmental review and the planning processes.
If a project is exempt from CEQA, certain issues should be
addressed. For example:
How can decisionmakers and the public be made aware of
impacts, mitigation measures, and alternatives of an
exempt project?
Is it appropriate for the public to live with the
consequences of exempt projects where impacts may not be
mitigated and alternatives are not considered regarding
certain matters, such as air quality, water quality, and
noise impacts?
Because adverse project impacts do not disappear when
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they are not identified and mitigated with an exemption,
does the exemption result in a direct transfer of
responsibility for mitigating impacts from the applicant
to the public ( i.e. , taxpayers) if impacts are ultimately
addressed after completion of the project?
If taxpayers, rather than the project applicant, are
ultimately responsible for mitigating certain impacts of
an exempt project after project completion, what
assessments or taxes will be increased to fund mitigation
or pay for alternatives at a later date?
When some suggest that CEQA "reforms" may be needed, others
note various provisions of CEQA that already provide
streamlined approaches, including master and focused EIRs;
transit priority and residential project streamlining
(enacted by SB 375 (Steinberg, Ducheny) Chapter 728,
Statutes of 2008); expedited review for environmental
mandated projects; special procedures for various types of
housing projects (enacted by SB 1925 (Sher, Polanco)
Chapter 1039, Statutes of 2002); various litigation,
mediation, tiering, and other revisions (SB 1456 (Simitian)
of 2010); amendments to procedures relating to findings of
overriding consideration (AB 231 (Huber) of 2010), and
several categorical exemptions contained in the CEQA
Guidelines. Challenges to CEQA determinations must be
commenced within an unusually short 30 days of an agency's
filing of a notice of determination. Also, no later than
20 days from the date of service upon a public agency, the
public agency must file a notice with the court setting a
time and place for all parties to meet and attempt to
settle the litigation.
CEQA includes various statutory exemptions, as well as
categorical exemptions, in the CEQA guidelines. Some
categorical exemptions cover, for example, minor alteration
of, and addition to, existing structures under certain
conditions; and replacement or reconstruction of existing
structures under certain conditions. AB 1581, however, is
not subject to conditions applying to these categorical
exemptions - but also contains conditions relating to
energy efficiency and water consumption. A statutory
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exemption is also not subject to certain exceptions that
apply to categorical exemptions. A project with a
categorical exemption cannot, for example, affect scenic
resources, be located on a hazardous waste site, or cause a
change in a historical resource.
1) Interest to target former structures for use as
supermarkets . According to the sponsor, the California
Retailers Association, "AB 1581 seeks to amend CEQA as it
applies to vacant/abandoned retail buildings in an effort
to encourage their reuse." The AB 1581 exemption applies
to a vacant structure of not more than 120,000 square feet
that meets certain conditions. With the ongoing recession,
there may be continuing increases in vacant retail
structures that interest certain retailers (Tesco's Fresh &
Easy), including those that build big box centers
(Wal-Mart).
Several recent reports indicate Wal-Mart is interested in
buying numerous smaller store sites for new neighborhood
oriented supermarkets. It was recently reported that those
"in the commercial real estate business say the company has
been aggressively nailing down local sites - mostly former
grocery stores - in advance of a major Northern California
rollout of its new format." Purchasing a vacant retail
store "blunts the costly, time-consuming challenges
Wal-Mart faces from unions and other critics whenever it
seeks approvals to build its warehouse-size supercenters."
(Shallit, Bob. "Wal-Mart plans small stores in Sacramento
area." Sacramento Bee , 26 Jun 2010.)
"Wal-Mart's going huge next year," said Garrick Brown,
research director at Colliers International in Sacramento,
California. "Locally they're looking for sites." Brown
noted that Wal-Mart is pursuing 200 to 300 locations,
including vacant buildings that the retailer can lease for
cheap. Wal-Mart spokesman Steve Restivo noted "We'll
continue to expand into new channels so customers can shop
and experience Wal-Mart when, where, and how they want."
(Johnston, Kelly. "Small Targets, Huge Profits."
Portfolio.com . 2 Jun 2010.)
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According to Supermarket News , "Actually, it is the boxes that
are getting smaller as Wal-Mart finds more efficient ways
of doing the same things in ever-shrinking spaces; as it
seeks sites in more urbanized locations; and as it looks
for ways to skirt big box laws that keep stores of 100,000
square feet out of many communities." This includes a new
Wal-Mart Neighborhood Marketplace with 75,000 to 80,000
square feet. (Zwiebach, Elliot. "Wal-Mart Thinking
Smaller to Get Bigger." Supermarket News . 28 June 2010.)
2) How green ? According to the California Retailers
Association, "The intent of AB 1581 is to encourage retail
property owners/tenants to restore and rehabilitate
deteriorated and non-green buildings. AB 1581 requires
that projects proposed for vacant retail facilities meet
strict new guidelines including energy efficiency, reduced
water consumption, and compliance with local zoning
ordinances. AB 1581 will put people back to work,
reinvigorate our economy while maintaining California's
high environmental standards."
If the committee believes that a CEQA exemption is appropriate
for certain vacant retail structures, should this bill
contain conditions requiring that an alteration covers
matters beyond energy and water efficiency, such as
Leadership in Energy and Environmental Design (LEED)
certification? LEED is an internationally recognized green
building certification system providing third-party
verification that buildings are designed, built, renovated,
remodeled and operated using strategies aimed at improving
performance across all metrics types incluidng not just
energy savings and water efficiency, but CO2 emissions
reduction, improved indoor environmental quality, and
stewardship of resources and sensitivity to their impacts.
LEED offers certifications for renovations, retail
interiors and general building operation and other related
fields. The lead agency would determine what level and
type of LEED certification the building should obtain.
It should be recognized, however, that higher construction and
operational standards do not cover the many issues that
would otherwise be covered under CEQA.
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SOURCE : California Retailers Association
SUPPORT : Building Owners and Managers Association of
California, California Building Industry
Association, California Business Properties
Association, California Chamber of Commerce,
California Grocers Association, Construction
Employers' Association, Commercial Real Estate
Development Association, International Council
of Shopping Centers, San Bernardino County
OPPOSITION : Sierra Club California