BILL ANALYSIS �
SB 469
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 469
AUTHOR: Vargas
AMENDED: April 12, 2011
FISCAL: Yes HEARING DATE: May 2, 2011
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : LOCAL GOVERNMENT REVIEW OF SUPERSTORES
SUMMARY :
Existing law :
1) Under the California Constitution, authorizes a city or
county to "make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not
in conflict with general law."
2) Under Planning and Zoning Law, requires cities and counties
to adopt a general plan that includes seven mandated
elements (land use, circulation, housing, conservation,
open space, noise, safety), and creates special
requirements for housing elements. It also requires cities
and counties to adopt zoning ordinances regulating, for
example, the use of buildings, structures, and land.
3) Under the California Environmental Quality Act (CEQA),
requires lead agencies with the principal responsibility
for carrying out or approving a proposed discretionary
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).
4) Under the Permit Streamlining Act (PSA), requires a lead
agency for a development project to approve or disapprove a
project within specified time periods (for example, 180
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days from the date the lead agency certifies an EIR (except
90 days for a very low or low income housing project under
certain conditions), 60 days from the date of adopting a
negative declaration or determining that a project is
exempt from CEQA).
This bill , under Planning and Zoning Law:
1) Requires a city or county, prior to approving or
disapproving a permit for the construction or conversion of
a superstore retailer to cause to be prepared an economic
impact report that must include, but not be limited to, the
following: a) an assessment of the shares of retail sales
in the market area; b) an assessment of how construction
and operation will affect the supply and demand for retail
space in the market area; c) an assessment of how the
construction and operation will affect employment in the
market area; d) a projection of public service and public
facility costs; e) a projection of public revenues; f) an
assessment of the effect on retail operations, including
the potential for blight and business displacement; g) an
assessment on the ability of the city or county to
implement the general plan; h) an assessment on average
total vehicle miles traveled by retail customers; i) an
assessment of the potential for long-term vacancy of the
property in the event the premises are vacated; j) an
assessment of certain housing impacts; k) an assessment on
destruction or demolition of parks, playgrounds, child care
facilities, or community centers; l) an assessment of other
adverse or positive economic impacts or blight; and m) an
assessment of available measures to mitigate adverse
impacts identified by the applicant.
2) Authorizes a city or county to prepare the economic impact
report, or contract with a private entity other than the
permit applicant or with another public agency for
preparation of the report.
3) Requires the applicant to pay the city or county for
economic impact report preparation costs.
4) Prohibits the above requirements from precluding a city or
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county from conducting additional studies of proposed
superstore retailer effects.
5) Requires the city or county to provide the opportunity for
public comment at a meeting on the economic impact report
and its findings.
6) Defines "superstore" to be a business establishment
exceeding 90,000 square feet of gross floor area that sells
a wide range of consumer goods and devotes 10% of the sales
floor area to the sale of items that are exempt from the
state Sales and Use Tax Law. This definition excludes
discount warehouses and discount retail stores selling more
than half of their items in large quantities or bulk, and
also requires shoppers to pay a membership fee.
7) Provides legislative intent relating to superstore retailer
effects, and provides that the review and regulation of
superstore retailers is a matter of statewide concern and
therefore applies to charter cities.
COMMENTS :
1) Purpose of Bill . According to the author, "This policy
offers the public and local policymakers an opportunity to
learn about the potential impacts of a superstore on other
retail options in the area, as well effects on housing,
parks, traffic and jobs. The heart of the concept stems
from proactive recommendations by a superstore company's
(Wal-Mart) representative as a compromise to an ordinance
in Los Angeles between an outright ban and no thoughtful
oversight."
The author notes that "The goal of this bill is to create
financial accountability and the transparency that local
communities need to make land use decisions about the
impact giant supercenters have on existing businesses,
jobs, public services and neighborhoods. Small and
neighborhood businesses are important financial elements to
every local economy and function as the backbone to these
economies. It's important to inform the public about the
consequence that these superstores pose on small and
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neighborhood businesses before a superstore developer comes
into a community and potentially imposes a risk to the
local neighborhoods."
2) Brief background on CEQA - and consideration of economic
impacts under 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. CEQA does not apply to ministerial
projects. 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
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.
Under CEQA, economic and social changes from a project cannot
be treated as significant effects on the environment.
Where a physical change is caused by economic or social
effects of a project, the physical change may be regarded
as a significant effect in the same manner as any other
physical change resulting from the project. (CEQA
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Guidelines ��15064(e) and 15131). For example, in Citizens
Association for Sensible Development v. County of Inyo, 172
Cal. App. 3d 151, 169, 217 Cal. Rptr. 893 (1985), the court
held that an EIR should have been required where a new
retail development and loss of patronage at existing
businesses may result in the physical deterioration of the
downtown area. In Citizens for Quality Growth v. City of
Mt. Shasta, 198 Cal. App. 3d 433, 446, 243 Cal. Rptr. 727
(1988), the court held that an EIR should consider whether
potential economic problems caused by a project could
result in the physical deterioration of a downtown area.
The court also held that where a project's economic effects
could result in urban decay or deterioration, the lead
agency must assess the indirect physical impact
(Bakersfield Citizens for Local Control v. City of
Bakersfield, 124 Cal. App. 4th 1184, 22 Cal. Rptr. 3d 203
(2004)).
3) Support and opposition concerns . According to the United
Domestic Workers of America AFSCME Local 3930/AFL-CIO in
supporting SB 469, "Studies have shown superstores to have
devastating impacts on small businesses, neighborhood
grocery stores, tax revenues, property values, traffic,
local wages and jobs. This bill would provide local
elected officials with the information they need to make
decisions about the future of their communities."
According to the League of California Cities in opposing SB
469, "Cities are neither pro nor anti-big box retail, but
each of the State's 481 diverse cities must maintain the
ability to make decisions which best fit their community.
By singling out a specific type of large retailer, SB 469
fundamentally undermines local land use discretion and
authority."
4) Related legislation . AB 84 (Floyd) of 1999 prohibited a
public agency from authorizing a project that includes a
retail store exceeding 100,000 square feet with over 15,000
square feet devoted to sale of nontaxable merchandise.
According to Governor Davis in vetoing AB 84, "Not only is
this bill anti-competition and anti-consumer, it represents
the worst kind of end-of-session maneuvering by special
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interests." Governor Davis noted that he was signing
another measure, AB 178 (Torlakson) Chapter 462, Statutes
of 1999, which prohibits a city, county, or redevelopment
agency from providing any form of financial assistance to
an automobile dealership or big box retailer that is
relocating from the territorial jurisdiction of one local
agency to the territorial jurisdiction of another local
agency in the same market area under certain conditions.
AB 114 (Torlakson) Chapter 781, Statutes of 2003,
eliminated various conditions contained in AB 178.
SB 1641 (Alarcon) of 2004 prohibited a city or county from
permitting a big box retailer based on a business impact
report that the project would have a significant negative
effect on the business community within that city or county
(a Senate Local Government Committee hearing on SB 1641
was canceled at the author's request). SB 1056 (Alarcon)
of 2004 required a city or county to prepare an economic
impact report prior to approving or disapproving a
superstore retailer, and was vetoed by Governor
Schwarzenegger. SB 1523 (Alarcon) of 2006 similarly
required an economic impact report to be prepared prior to
a city's or county's approval or disapproval of a
superstore retailer, and was again vetoed by Governor
Schwarzenegger.
AB 1581 (Torres) of 2010 exempts a project from CEQA until
2014 that consists of the alteration of a vacant retail
structure of not more than 120,000 square feet under
certain conditions, and died on the Senate inactive file.
SB 620 (Correa) of 2011 mirrors AB 1581, with a 2015 sunset
date, and an April 4, 2011, Senate Environmental Quality
Committee hearing on SB 620 was canceled at the author's
request. AB 1185 (Torres) mirrors SB 620 and is with the
Assembly Natural Resources Committee.
5) Outstanding issues . SB 469 requires a city or county to
prepare an economic impact report prior to approving or
disapproving a permit for a superstore. However, this bill
does not provide guidance on how that report should be
considered - or even if the report should be considered -
by the city or county when determining whether to approve
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or disapprove the permit.
It is also not clear how the SB 469 economic impact report
requirements affect the Permit Streamlining Act time
limits.
SB 469 specifies several economic impact report
requirements. Are these requirements overly prescriptive?
While a superstore may have an adverse economic impact on a
community, is there a basis for an economic impact report
under SB 469 to be limited to those cases where a certain
percentage of the floor area is devoted to the sale of
sales tax-exempt items?
SOURCE : California Labor Federation, Neighborhood
Market Association, Small Business California
SUPPORT : California Nurses Association, California
School Employees Association, Sierra Club
California, State Building and Construction
Trades Council of California, United Domestic
Workers of America, United Food and Commercial
Workers - Western States Conference
OPPOSITION : Associated Builders and Contractors of
California, BOMA - California and San Diego,
Building Industry Association of Southern
California -Irvine and Riverside, California
Advocates, Inc., California Business Properties
Association, CalChamber, California Chamber of
Commerce, California Contract Cities
Association, California Hispanic Chamber of
Commerce, California Retailers Association,
Cerritos Regional Chamber of Commerce, City of
Bakersfield, City of Chino, City of Chino
Hills, City of Lakewood, City of Palmdale,
Commercial Real Estate Development Association,
Contra Costa Taxpayers Association, County of
San Bernardo, Hispanic 100, International
Council of Shopping Centers, Kern County, Kern
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County Farm Bureau, Inc., KernTax, Latin
Business Association, League of California
Cities, Long Beach Area Chamber of Commerce,
Mother Lode Taxpayers Association, NAIOP of
California - Inland Empire Chapter, San Diego
Chapter, and SoCal Chapter, Nisea Farmers
League, North of the River Chamber of Commerce,
Orange County Business Council, South Bay
Association of Chambers of Commerce, San Diego
Regional Chamber of Commerce, Western
Electrical Contractors Association, Walmart