BILL NUMBER: AB 1570 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 22, 2012
AMENDED IN SENATE AUGUST 6, 2012
AMENDED IN ASSEMBLY APRIL 10, 2012
INTRODUCED BY Assembly Member Perea
( Principal coauthor: Senator
Simitian )
FEBRUARY 1, 2012
An act to amend, repeal, and add Section 21167.6 of, and
to amend Sections 21178, 21180, 21181, 21183, 21185,
21187, and 21189.2 of, and to add and repeal Section
21167.6.2 21167.6.3 of, the Public Resources
Code, relating to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 1570, as amended, Perea. Environmental quality: California
Environmental Quality Act: record of proceedings.
Act.
(1) The California Environmental Quality Act (CEQA) requires a
lead agency, as defined, to prepare, or cause to be prepared, and
certify the completion of, an environmental impact report (EIR) on a
project that it proposes to carry out or approve that may have a
significant effect on the environment or to adopt a negative
declaration if it finds that the project will not have that effect.
CEQA also requires a lead agency to prepare a mitigated negative
declaration for a project that may have a significant effect on the
environment if revisions in the project would avoid or mitigate that
effect and there is no substantial evidence that the project, as
revised, would have a significant effect on the environment. CEQA
establishes a procedure for the preparation and certification of the
record of proceedings upon the filing of an action or proceeding
challenging a lead agency's action on the grounds of noncompliance
with CEQA.
This bill would require specify ,
until January 1, 2016, the types of projects for which an
applicant can request the lead agency , at the request
of a project applicant, to, among other things, prepare a
record of proceedings concurrently with the preparation of negative
declarations, mitigated negative declarations, EIRs, or other
environmental documents for specified projects. Because the bill
would require a lead agency to prepare the record of proceedings
, as provided, this bill would impose a state-mandated local
program.
(2) This bill would provide that the above provision would not
become operative unless SB 984 of the 2011-12 Regular Session of the
Legislature is enacted on or before January 1, 2013.
(3) The Jobs and Economic Improvement Through Environmental
Leadership Act of 2011 (act) establishes alternative procedures for
creating the administrative record and specified judicial review
procedures for the judicial review of the EIR and approvals granted
for a leadership project related to the development of a residential,
retail, commercial, sports, cultural, entertainment, or recreational
use project, or clean renewable energy or clean energy manufacturing
project. The act authorizes the Governor, upon application, to
certify a leadership project for streamlining pursuant to the act if
certain conditions are met.
The act requires that the project result in a minimum investment
of $100,000,000 in California upon completion of construction and not
result in any net additional emission of greenhouse gases, including
greenhouse gas emissions from employee transportation.
This bill would require instead that a project result in a minimum
investment of $100,000,000 spent on planning, design, and
construction of the project. The bill, in order to maximize public
health, environmental, and employment benefits, would require a lead
agency to place the highest priority on feasible measures that will
reduce greenhouse gas emissions on the project site and in the
neighboring communities of the project site.
(4) The act requires a party seeking judicial review of the EIR to
bring concurrently other claims alleging a public agency has granted
land use approvals or a leadership project in violation of relevant
laws.
This bill would repeal this provision.
(5) The act requires the Judicial Council to report to the
Legislature on or before January 1, 2015, on the effects of the act,
including specific information on benefits, costs, and detriments.
The bill would require instead that the Judicial Council report to
the Legislature on the effects of the act on the administration of
justice. The bill also would make technical and clarifying changes.
Because a lead agency would be required to perform additional
actions, this bill would impose a state-mandated local program.
(2)
(6) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21167.6.3 is added to the
Public Resources Code , to read:
21167.6.3. (a) Section 21167.6.2 applies to the record of
proceedings for the preparation of a negative declaration, mitigated
negative declaration, environmental impact report, or other
environmental document prepared for any of the following:
(1) A project determined to be of statewide, regional, or areawide
environmental significance pursuant to subdivision (d) of Section
21083.
(2) A project subject to Section 21094.5 or Chapter 4.2
(commencing with Section 21155) of Division 13.
(3) (A) A project, other than one described in paragraphs (1) and
(2), for which the lead agency consents to prepare the record of
proceeding pursuant to this paragraph.
(B) The lead agency shall respond to a request by the project
applicant within 10 business days from the date that the request
pursuant to subdivision (a) of Section 21167.6.2 is received by the
lead agency.
(C) A project applicant and the lead agency may mutually agree, in
writing, to extend the time period for the lead agency to respond
pursuant to subparagraph (B), but they shall not extend that period
beyond the commencement of the public review period for the proposed
negative declaration, mitigated negative declaration, or draft
environmental impact report.
(D) The request to prepare a record of proceedings pursuant to
this paragraph shall be deemed denied if the lead agency fails to
respond within 10 business days of receiving the request or within
the time period agreed upon pursuant to subparagraph (C), whichever
ends later.
(b) The written request of the applicant submitted pursuant to
subdivision (a) of Section 21167.6.2 shall include an agreement to
pay all of the lead agency's costs of preparing and certifying the
record of proceedings pursuant to Section 21167.6.2 and complying
with the requirements of this section and Section 21167.6.2, in a
manner specified by the lead agency.
(c) The costs of preparing the record of proceedings pursuant to
Section 21167.6.2 and complying with the requirements of this section
and Section 21167.6.2 are not recoverable costs pursuant to Section
1033 of the Code of Civil Procedure.
(d) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 2. Section 21178 of the Public
Resources Code is amended to read:
21178. The Legislature finds and declares all of the following:
(a) The overall unemployment rate in California is 12 percent, and
in certain regions of the state that rate exceeds 13 percent.
(b) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources
Code) 21100)) requires that the environmental
impacts of development projects be identified and mitigated.
(c) The act also guarantees the public an opportunity to review
and comment on the environmental impacts of a project and to
participate meaningfully in the development of mitigation measures
for potentially significant environmental impacts.
(d) There are large public and private projects under
consideration in various regions of the state that would replace old
and outmoded facilities with new job-creating facilities to meet
those regions' needs while also establishing new, cutting-edge
environmental benefits to those regions.
(e) These projects are publicly financed, privately
financed , or financed from revenues generated from the
projects themselves and that do not
require taxpayer financing.
(f) These projects further will generate thousands of full-time
jobs during construction and thousands of additional permanent jobs
once they are constructed and operating.
(g) These projects also present an unprecedented opportunity to
implement nation-leading innovative measures that will significantly
reduce traffic, air quality pollution ,
and other significant environmental impacts, and fully mitigate the
greenhouse gas emissions resulting from passenger vehicle trips
attributed to the project.
(h) These pollution reductions will be the best in the nation
compared to other comparable projects in the United States.
(i) The purpose of this act is to provide unique and unprecedented
streamlining benefits under the California Environmental Quality Act
for projects that provide the benefits described above for a limited
period of time to put people to work as soon as possible.
SEC. 3. Section 21180 of the Public
Resources Code is amended to read:
21180. For the purposes of this chapter, the following terms
shall have the following meanings:
(a) "Applicant" means a public or private entity or its
affiliates, or a person or entity that undertakes a public works
project, that project or proposes a
project , and its successors, heirs, and assignees.
(b) (1) "Environmental leadership
development project," "leadership project," or "project" means a
project as described in Section 21065 that is one the following:
(1)
(A) A residential, retail, commercial, sports,
cultural, entertainment, or recreational use project that is
designed to be certified as LEED silver or better by the United
States Green Building Council and , where applicable,
that achieves and maintains a 10-percent greater
standard for transportation efficiency than for comparable projects.
These projects must shall be located
on an infill site. For a project that is within a metropolitan
planning organization for which a sustainable communities strategy or
alternative planning strategy is in effect, the infill project shall
be consistent with the general use designation, density, building
intensity, and applicable policies specified for the project area in
either a sustainable communities strategy or an alternative planning
strategy, for which the State Air Resources Board, pursuant to
subparagraph (H) of paragraph (2) of subdivision (b) of Section 65080
of the Government Code, has accepted a metropolitan planning
organization's determination that the sustainable communities
strategy or the alternative planning strategy would, if implemented,
achieve the greenhouse gas emission reduction targets.
(2)
(B) A clean renewable energy project that generates
electricity exclusively through wind or solar, but not including
waste incineration or conversion.
(3)
(C) A clean energy manufacturing project that
manufactures products, equipment, or components used for renewable
energy generation, energy efficiency, or for the production of clean
alternative fuel vehicles.
(2) This subdivision does not affect any requirement for a project
to comply with the California Green Building Standards Code (Part 11
of Title 24 of the California Code of Regulations), or any other
applicable law or regulation.
(c) "Transportation efficiency" means the number of
vehicle private automobile trips by employees,
visitors, or customers of the residential, retail, commercial,
sports, cultural, entertainment, or recreational use project divided
by the total number of employees, visitors, and customers.
SEC. 4. Section 21181 of the Public
Resources Code is amended to read:
21181. This chapter does not apply to a project if the applicant
fails to notify a lead agency prior to the release of the draft
environmental impact report for public comment that the applicant is
electing to proceed pursuant to this chapter. The lead agency shall
notify the Secretary of the Natural Resources Agency if the applicant
fails to provide provides notification
pursuant to this section chapter .
SEC. 5. Section 21183 of the Public
Resources Code is amended to read:
21183. The Governor may shall not
certify a leadership project for streamlining pursuant to this
chapter if unless all the following
conditions are met:
(a) The project will result in a minimum investment of one hundred
million dollars ($100,000,000) in California upon
completion of construction spent on planning, design,
and construction of the project .
(b) The project creates high-wage, highly skilled jobs that pay
prevailing wages and living wages and provide construction jobs and
permanent jobs for Californians, and helps reduce unemployment.
(c) The project does not result in any net additional emission of
greenhouse gases, including greenhouse gas emissions from employee
transportation, as determined by the State Air Resources Board
pursuant to Division 25.5 (commencing with Section 38500) of the
Health and Safety Code. To maximize public health,
environmental, and employment benefits, the lead agency shall place
the highest priority on feasible measures that will reduce greenhouse
gas emissions on the project site and in the neighboring
communities of the project site. Offset credits shall be employed by
the applicant only after feasible local emission reduction measures
have been implemented. The applicant shall, to the extent feasible,
place the highest priority on the purchase of offset credits that
produce emission reductions within the boundaries of an applicable
air pollution control district or air quality management district.
(d) The project applicant has entered into a binding and
enforceable agreement that all mitigation measures required pursuant
to this division to certify the project under this chapter shall be
conditions of approval of the project, and those conditions will be
fully enforceable by the lead agency or another agency designated by
the lead agency. In the case of environmental mitigation measures,
the applicant agrees, as an ongoing obligation, that those measures
will be monitored and enforced by the lead agency for the life of the
obligation.
(e) The project applicant agrees to pay the costs of the Court of
Appeal in hearing and deciding any case, including payment of the
costs for the appointment of a special master if
deemed appropriate by the court, in a form and manner specified by
the Judicial Council, as provided in the Rules of Court adopted by
the Judicial Council pursuant to subdivision (f)
(b) of Section 21185.
(f) The project applicant agrees to pay the costs of preparing the
administrative record for the project concurrent with review and
consideration of the project pursuant to this division, in a form and
manner specified by the lead agency for the project.
SEC. 6. Section 21185 of the Public
Resources Code is amended to read:
21185. (a) Notwithstanding any other law, any action or
proceeding alleging that a public lead
agency or has approved or is undertaking a
leadership project certified by the Governor in violation of this
division shall be conducted in accordance with the following
streamlining benefits:
(1) The action or proceeding shall be filed in the Court of Appeal
with geographic jurisdiction over the project.
(2) Any party bringing such a claim shall also file concurrently
any other claims alleging that a public agency has granted land use
approvals for the leadership project in violation of the law. The
Court of Appeal shall have original jurisdiction over all those
claims.
(3)
(2) The Court of Appeal shall issue its decision
in the case on all petitions for writ of
mandate filed pursuant to this subdivision within 175 days of
the filing of the last petition.
(4)
(3) The court may appoint a master to assist the court
in managing and processing the case.
(5)
(4) The court may grant order
extensions of time only for good cause shown
and in order to promote the interests of justice.
(b) On or before July 1, 2012, the Judicial Council shall adopt
Rules of Court to implement this chapter.
SEC. 7. Section 21187 of the Public
Resources Code is amended to read:
21187. The draft and final environmental impact report shall
include a notice in no less than 12-point type stating the following:
"THIS EIR IS SUBJECT TO CHAPTER 6.5 (COMMENCING WITH SECTION
21178) OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER
THINGS, THAT ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE
EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT
TO THE PROCEDURES SET FORTH IN SECTION 21178.2 OF THE PUBLIC
RESOURCES CODE CHAPTER 6.5 AND MUST BE FILED
WITH THE COURT OF APPEAL. A COPY OF CHAPTER 6.5 OF THE
PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS
EIR."
SEC. 8. Section 21189.2 of the Public
Resources Code is amended to read:
21189.2. The Judicial Council shall report to the Legislature on
or before January 1, 2015, on the effects of this chapter ,
which shall include, but not be limited to, a description of the
benefits, costs, and detriments of the certification of leadership
projects pursuant to this chapter on the
administration of justice .
SECTION 1. Section 21167.6 of the Public
Resources Code is amended to read:
21167.6. Notwithstanding any other law, in all actions or
proceedings brought pursuant to Section 21167, except as provided for
in Section 21167.6.2 or those involving the Public Utilities
Commission, all of the following shall apply:
(a) At the time that the action or proceeding is filed, the
plaintiff or petitioner shall file a request that the respondent
public agency prepare the record of proceedings relating to the
subject of the action or proceeding. The request, together with the
complaint or petition, shall be served personally upon the public
agency not later than 10 business days from the date that the action
or proceeding was filed.
(b) (1) The public agency shall prepare and certify the record of
proceedings not later than 60 days from the date that the request
specified in subdivision (a) was served upon the public agency. Upon
certification, the public agency shall lodge a copy of the record of
proceedings with the court and shall serve on the parties notice that
the record of proceedings has been certified and lodged with the
court. The parties shall pay any reasonable costs or fees imposed for
the preparation of the record of proceedings in conformance with any
law or rule of court.
(2) The plaintiff or petitioner may elect to prepare the record of
proceedings or the parties may agree to an alternative method of
preparation of the record of proceedings, subject to certification of
its accuracy by the public agency, within the time limit specified
in this subdivision.
(c) The time limit established by subdivision (b) may be extended
only upon the stipulation of all parties who have been properly
served in the action or proceeding or upon order of the court.
Extensions shall be liberally granted by the court when the size of
the record of proceedings renders infeasible compliance with that
time limit. There is no limit on the number of extensions that may be
granted by the court, but no single extension shall exceed 60 days
unless the court determines that a longer extension is in the public
interest.
(d) If the public agency fails to prepare and certify the record
within the time limit established in paragraph (1) of subdivision
(b), or any continuances of that time limit, the plaintiff or
petitioner may move for sanctions, and the court may, upon that
motion, grant appropriate sanctions.
(e) The record of proceedings shall include, but is not limited
to, all of the following items:
(1) All project application materials.
(2) All staff reports and related documents prepared by the
respondent public agency with respect to its compliance with the
substantive and procedural requirements of this division and with
respect to the action on the project.
(3) All staff reports and related documents prepared by the
respondent public agency and written testimony or documents submitted
by any person relevant to any findings or statement of overriding
considerations adopted by the respondent agency pursuant to this
division.
(4) Any transcript or minutes of the proceedings at which the
decisionmaking body of the respondent public agency heard testimony
on, or considered any environmental document on, the project, and any
transcript or minutes of proceedings before any advisory body to the
respondent public agency that were presented to the decisionmaking
body prior to action on the environmental documents or on the
project.
(5) All notices issued by the respondent public agency to comply
with this division or with any other law governing the processing and
approval of the project.
(6) All written comments received in response to, or in connection
with, environmental documents prepared for the project, including
responses to the notice of preparation.
(7) All written evidence or correspondence submitted to, or
transferred from, the respondent public agency with respect to
compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the
decisionmaking body of the respondent public agency by its staff, or
the project proponent, project opponents, or other persons.
(9) The documentation of the final public agency decision,
including the final environmental impact report, mitigated negative
declaration, or negative declaration, and all documents, in addition
to those referenced in paragraph (3), cited or relied on in the
findings or in a statement of overriding considerations adopted
pursuant to this division.
(10) Any other written materials relevant to the respondent public
agency's compliance with this division or to its decision on the
merits of the project, including the initial study, any drafts of any
environmental document, or portions thereof, that have been released
for public review, and copies of studies or other documents relied
upon in any environmental document prepared for the project and
either made available to the public during the public review period
or included in the respondent public agency's files on the project,
and all internal agency communications, including staff notes and
memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative
decisionmaking body whose decision was appealed to a superior
administrative decisionmaking body prior to the filing of litigation.
(f) In preparing the record of proceedings, the party preparing
the record shall strive to do so at reasonable cost in light of the
scope of the record.
(g) The clerk of the superior court shall prepare and certify the
clerk's transcript on appeal not later than 60 days from the date
that the notice designating the papers or records to be included in
the clerk's transcript was filed with the superior court, if the
party or parties pay any costs or fees for the preparation of the
clerk's transcript imposed in conformance with any law or rules of
court. Nothing in this subdivision precludes an election to proceed
by appendix, as provided in Rule 8.124 of the California Rules of
Court.
(h) Extensions of the period for the filing of any brief on appeal
may be allowed only by stipulation of the parties or by order of the
court for good cause shown. Extensions for the filing of a brief on
appeal shall be limited to one 30-day extension for the preparation
of an opening brief, and one 30-day extension for the preparation of
a responding brief, except that the court may grant a longer
extension or additional extensions if it determines that there is a
substantial likelihood of settlement that would avoid the necessity
of completing the appeal.
(i) At the completion of the filing of briefs on appeal, the
appellant shall notify the court of the completion of the filing of
briefs, whereupon the clerk of the reviewing court shall set the
appeal for hearing on the first available calendar date.
(j) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 2. Section 21167.6 is added to the Public
Resources Code, to read:
21167.6. Notwithstanding any other law, in all actions or
proceedings brought pursuant to Section 21167, except those involving
the Public Utilities Commission, all of the following shall apply:
(a) At the time that the action or proceeding is filed, the
plaintiff or petitioner shall file a request that the respondent
public agency prepare the record of proceedings relating to the
subject of the action or proceeding. The request, together with the
complaint or petition, shall be served personally upon the public
agency not later than 10 business days from the date that the action
or proceeding was filed.
(b) (1) The public agency shall prepare and certify the record of
proceedings not later than 60 days from the date that the request
specified in subdivision (a) was served upon the public agency. Upon
certification, the public agency shall lodge a copy of the record of
proceedings with the court and shall serve on the parties notice that
the record of proceedings has been certified and lodged with the
court. The parties shall pay any reasonable costs or fees imposed for
the preparation of the record of proceedings in conformance with any
law or rule of court.
(2) The plaintiff or petitioner may elect to prepare the record of
proceedings or the parties may agree to an alternative method of
preparation of the record of proceedings, subject to certification of
its accuracy by the public agency, within the time limit specified
in this subdivision.
(c) The time limit established by subdivision (b) may be extended
only upon the stipulation of all parties who have been properly
served in the action or proceeding or upon order of the court.
Extensions shall be liberally granted by the court when the size of
the record of proceedings renders infeasible compliance with that
time limit. There is no limit on the number of extensions that may be
granted by the court, but no single extension shall exceed 60 days
unless the court determines that a longer extension is in the public
interest.
(d) If the public agency fails to prepare and certify the record
within the time limit established in paragraph (1) of subdivision
(b), or any continuances of that time limit, the plaintiff or
petitioner may move for sanctions, and the court may, upon that
motion, grant appropriate sanctions.
(e) The record of proceedings shall include, but is not limited
to, all of the following items:
(1) All project application materials.
(2) All staff reports and related documents prepared by the
respondent public agency with respect to its compliance with the
substantive and procedural requirements of this division and with
respect to the action on the project.
(3) All staff reports and related documents prepared by the
respondent public agency and written testimony or documents submitted
by any person relevant to any findings or statement of overriding
considerations adopted by the respondent agency pursuant to this
division.
(4) Any transcript or minutes of the proceedings at which the
decisionmaking body of the respondent public agency heard testimony
on, or considered any environmental document on, the project, and any
transcript or minutes of proceedings before any advisory body to the
respondent public agency that were presented to the decisionmaking
body prior to action on the environmental documents or on the
project.
(5) All notices issued by the respondent public agency to comply
with this division or with any other law governing the processing and
approval of the project.
(6) All written comments received in response to, or in connection
with, environmental documents prepared for the project, including
responses to the notice of preparation.
(7) All written evidence or correspondence submitted to, or
transferred from, the respondent public agency with respect to
compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the
decisionmaking body of the respondent public agency by its staff, or
the project proponent,
project opponents, or other persons.
(9) The documentation of the final public agency decision,
including the final environmental impact report, mitigated negative
declaration, or negative declaration, and all documents, in addition
to those referenced in paragraph (3), cited or relied on in the
findings or in a statement of overriding considerations adopted
pursuant to this division.
(10) Any other written materials relevant to the respondent public
agency's compliance with this division or to its decision on the
merits of the project, including the initial study, any drafts of any
environmental document, or portions thereof, that have been released
for public review, and copies of studies or other documents relied
upon in any environmental document prepared for the project and
either made available to the public during the public review period
or included in the respondent public agency's files on the project,
and all internal agency communications, including staff notes and
memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative
decisionmaking body whose decision was appealed to a superior
administrative decisionmaking body prior to the filing of litigation.
(f) In preparing the record of proceedings, the party preparing
the record shall strive to do so at reasonable cost in light of the
scope of the record.
(g) The clerk of the superior court shall prepare and certify the
clerk's transcript on appeal not later than 60 days from the date
that the notice designating the papers or records to be included in
the clerk's transcript was filed with the superior court, if the
party or parties pay any costs or fees for the preparation of the
clerk's transcript imposed in conformance with any law or rules of
court. Nothing in this subdivision precludes an election to proceed
by appendix, as provided in Rule 8.124 of the California Rules of
Court.
(h) Extensions of the period for the filing of any brief on appeal
may be allowed only by stipulation of the parties or by order of the
court for good cause shown. Extensions for the filing of a brief on
appeal shall be limited to one 30-day extension for the preparation
of an opening brief, and one 30-day extension for the preparation of
a responding brief, except that the court may grant a longer
extension or additional extensions if it determines that there is a
substantial likelihood of settlement that would avoid the necessity
of completing the appeal.
(i) At the completion of the filing of briefs on appeal, the
appellant shall notify the court of the completion of the filing of
briefs, whereupon the clerk of the reviewing court shall set the
appeal for hearing on the first available calendar date.
(j) This section shall become operative on January 1, 2016.
SEC. 3. Section 21167.6.2 is added to the
Public Resources Code, to read:
21167.6.2. (a) Notwithstanding Section 21167.6, for a project
described in subdivision (f), the lead agency, upon the written
request of a project applicant received no later than 30 days after
the date that the lead agency makes a determination pursuant to
subdivision (a) of Section 21080.1, Section 21094.5, or Chapter 4.2
(commencing with Section 21155), shall prepare and certify the record
of proceedings in the following manner:
(1) The lead agency for the project shall prepare the record of
proceedings pursuant to this division concurrently with the
administrative process.
(2) All documents and other materials placed in the record of
proceedings shall be posted on, and be downloadable from, an Internet
Web site maintained by the lead agency commencing with the date of
the release of the draft environmental document for a project
specified in subdivision (f). If the lead agency cannot maintain an
Internet Web site with the information required pursuant to this
section, the lead agency shall provide a link on the agency's
Internet Web site to that information.
(3) Except as provided in subdivision (d) of Section 15120 of
Title 14 of the California Code of Regulations, the lead agency shall
make available to the public in a readily accessible electronic
format the draft environmental document for a project specified in
subdivision (f), and all other documents submitted to, cited by, or
relied on by, the lead agency in the preparation of the draft
environmental document for a project specified in subdivision (f).
(4) A document prepared by the lead agency or submitted by the
applicant after the date of the release of the draft environmental
document for a project specified in subdivision (f) that is a part of
the record of the proceedings shall be made available to the public
in a readily accessible electronic format within five business days
after the document is released or received by the lead agency.
(5) The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic format,
and shall make any comment available to the public in a readily
accessible electronic format within five days of its receipt.
(6) Within seven business days after the receipt of any comment
that is not in an electronic format, the lead agency shall convert
that comment into a readily accessible electronic format and make it
available to the public in that format.
(7) The lead agency shall certify the record of proceedings within
30 days after the filing of the notice required pursuant to Section
21108 or 21152.
(b) Any dispute regarding the record of proceedings shall be
resolved by the court in an action or proceeding brought pursuant to
subdivision (c) of Section 21167.
(c) The content of the record of proceedings shall be as specified
in subdivision (e) of Section 21167.6.
(d) Subdivisions (g) to (i), inclusive, of Section 21167.6 are
applicable to an appeal of a decision in an action or proceeding
brought pursuant to subdivision (c) of Section 21167.
(e) The negative declaration, mitigated negative declaration,
draft and final environmental impact report, or other environmental
document for a project specified in subdivision (f) shall include a
notice in no less than 12-point type stating the following:
"THIS NEGATIVE DECLARATION, MITIGATED NEGATIVE DECLARATION, EIR,
OR ENVIRONMENTAL DOCUMENT IS SUBJECT TO SECTION 21167.6.2 OF THE
PUBLIC RESOURCES CODE, WHICH REQUIRES THE RECORD OF PROCEEDINGS FOR
THIS PROJECT TO BE PREPARED CONCURRENTLY WITH THE ADMINISTRATIVE
PROCESS, DOCUMENTS PREPARED BY, OR SUBMITTED TO, THE LEAD AGENCY TO
BE POSTED ON THE LEAD AGENCY'S INTERNET WEB SITE, AND THE LEAD AGENCY
TO ENCOURAGE WRITTEN COMMENTS ON THE PROJECT TO BE SUBMITTED TO THE
LEAD AGENCY IN A READILY ACCESSIBLE ELECTRONIC FORMAT."
(f) This section applies to the record of proceedings for the
preparation of a negative declaration, mitigated negative
declaration, environmental impact report, or other environmental
document prepared for any of the following:
(1) A project determined to be of statewide, regional, or areawide
environmental significance pursuant to subdivision (d) of Section
21083.
(2) A project subject to Section 21094.5 or Chapter 4.2
(commencing with Section 21155).
(3) (A) A project, other than one described in paragraphs (1) and
(2), for which the lead agency consents to prepare the record of
proceeding pursuant to this paragraph.
(B) The lead agency shall respond to a request by the project
applicant within 10 business days from the date that the request
pursuant to subdivision (a) is received by the lead agency.
(C) A project applicant and the lead agency may mutually agree, in
writing, to extend the time period for the lead agency to respond
pursuant to subparagraph (B), but they shall not extend that period
beyond the commencement of the public review period for the proposed
negative declaration, mitigated negative declaration, or draft
environmental impact report.
(D) The request to prepare a record of proceedings pursuant to
this paragraph shall be deemed denied if the lead agency fails to
respond within 10 business days of receiving the request or within
the time period agreed upon pursuant to subparagraph (C), whichever
ends later.
(g) The project applicant shall reimburse the lead agency for the
costs incurred in compliance with this section in a manner specified
by the lead agency and a plaintiff or petitioner in an action or
proceeding filed pursuant to Section 21167, if any, is not required
to pay these costs.
(h) The costs of preparing the record of proceedings pursuant to
this section and complying with the requirements of this section are
not recoverable costs pursuant to Section 1033 of the Code of Civil
Procedure.
(i) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 9. Section 1 of this act shall not become
operative unless Senate Bill 984 of the 2011-12 Regular Session of
the Legislature is enacted on or before January 1, 2013.
SEC. 4. SEC. 10. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because a local agency or school district has
the authority to levy service charges, fees, or assessments
sufficient to pay for the program or level of service mandated by
this act, within the meaning of Section 17556 of the Government Code.