BILL ANALYSIS �
SB 620
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 620
AUTHOR: Correa
AMENDED: As introduced
FISCAL: Yes HEARING DATE: April 4, 2011
URGENCY: No CONSULTANT: RandyPestor
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, et
seq.).
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.
e) An organization or individual who has filed a written
request for notice.
This bill :
1) Until January 1, 2015, exempts a project from CEQA that
consists of the alteration of a vacant retail structure
that existed prior to January 1, 2009, 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.
d) The project does not increase the size of the vacant
retail structure's footprint, floor plan, or floor area
ratio.
2) Requires a scoping meeting notice to also 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).
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COMMENTS :
1) Purpose of Bill . According to the California Retailers
Association, when the Association sponsored a similar bill,
AB 1581 (Torres), in 2010, "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."
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. SB 620 provides an
opportunity for these entities to file a written request to
receive the scoping meeting notice.
2) 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
impacts to the extent feasible, and evaluate a range of
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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.
3) 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
they are not identified and mitigated with an exemption,
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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)
Chapter 496, Statutes of 2010); amendments to procedures
relating to findings of overriding consideration (AB 231
(Huber) Chapter 432, Statutes 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. SB 620, 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 . The SB 620 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 more vacant retail structures that interest certain
retailers (Tesco's Fresh & Easy), including those that
build big box centers (Walmart).
Several recent reports indicate Walmart 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 June 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 Walmart is pursuing 200 to 300 locations,
including vacant buildings that the retailer can lease for
cheap. Walmart 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 June 2010). Brown later noted that AB
1581 "would be huge for them �Walmart]." (de S�, Karen.
"Follow-up: Retailers push sponsored bill to avoid
environmental law." The Mercury News . 30 August 2010).
According to Supermarket News , "Actually, it is the boxes that
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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).
According to California Planning and Development Report ,
"Where does Walmart fit in? It's well-known that the
big-box retailer is considering smaller boxes.
Specifically, its "Neighborhood Marketplace" format would
fit in about 80,000 square feet, or about half to
two-thirds the size of the typical Walmart. News reports
have said the company hopes to open 200 to 300 such stores
in California urban and suburban locations within the next
few years. Most of these smaller format Walmarts would
fill vacant grocery stores and spaces left behind by
Circuit City, Mervyn's and other departed retailers."
(Shigley, Paul. "Walmart-Friendly CEQA Bill Advances."
California Planning and Development Report . 30 August
2010).
2) Opposition concerns . According to Sierra Club California
in opposing SB 620, "SB 620 would prevent the public from
having access to changed conditions analysis or cumulative
impacts analysis which takes into account development in
their town and surrounding communities. Without the
updated information that would be gathered under a CEQA
process, it would be difficult for them to comment on
needed mitigation measures or unconsidered impacts. In
essence, SB 620 seeks to supplant this analysis by
declaring as a 'matter of fact and law' that the alteration
of a retail outlet is per se 'de minimis' even though it is
for potentially a very large operation (120,000 square
feet). Not all retailers operate in the same manner or
have the same impacts. One big box store may have
entirely different traffic patterns and hours than a row of
individual retailers. Diesel driven deliveries burdens may
have significantly different air quality and noise burdens
on neighboring residential areas depending on the nature of
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the new project." Sierra Club California also notes that
"We are very supportive of redeveloping blighted areas and
reuse of structures in urban areas as opposed to developing
open space and encouraging sprawl. But even urban and
suburban areas deserve proper analysis of impacts of new
projects, especially if there have been changes in the
surrounding area in the meantime."
3) Trying again . SB 620 mirrors AB 1581 (Torres) of 2010
(which was approved by the Environmental Quality Committee
August 25, 2010 (4-2) and died on the Senate inactive
file), and AB 1185 (Torres) (which is currently with the
Assembly Natural Resources Committee).
SOURCE : California Retailers Association
SUPPORT : None on file
OPPOSITION : California Labor Federation AFL-CIO
California League of Conservation Voters
Sierra Club California