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AB-490 California Environmental Quality Act: affordable housing development projects: administrative and judicial streamlining.(2019-2020)

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Date Published: 04/11/2019 09:00 PM
AB490:v97#DOCUMENT

Amended  IN  Assembly  April 11, 2019
Amended  IN  Assembly  March 14, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 490


Introduced by Assembly Member Salas

February 12, 2019


An act to add Section 21168.6.12 to the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 490, as amended, Salas. California Environmental Quality Act: affordable housing development projects: administrative and judicial streamlining.
The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to ew of the environmental review and approvals granted for projects that meet certain requirements, including including, among others, the requirement that the projects be located in an infill site that is also a transit priority area. are affordable housing developments. Because a public agency would be required to comply with those new procedures, this bill would impose a state-mandated local program. The bill would apply certain rules of court establishing procedures requiring actions or proceedings seeking judicial review pursuant to CEQA or the granting of project approvals, including any appeals therefrom, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court to an action or proceeding seeking judicial review of the lead agency’s action related to those projects. The bill would prohibit a court, in an action or proceeding challenging the lead agency’s action for such a project on the grounds of noncompliance with CEQA, from staying or enjoining the construction or operation of the project, except as provided.
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   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 21168.6.12 is added to the Public Resources Code, to read:

21168.6.12.
 (a) For purposes of this section, the following definitions apply:
(1) “Environmental review document” means any of the following:
(A) A determination that a project is exempt from this division.
(B) A negative declaration or mitigated negative declaration.
(C) An environmental impact report.
(2) “Qualified project” means a project that meets all of the following requirements:

(A)The project is located in an infill site that is also a transit priority area, as defined in Section 21099.

(B)The project is consistent with a relevant specific plan for which an environmental impact report has been certified.

(C)

(A) The project creates high-wage, highly skilled jobs that pay living wages and provide construction jobs and helps reduce unemployment in California.

(D)

(B) The project does not result in any net additional emission of greenhouse gases as determined by the State Air Resources Board pursuant to Division the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code. Code).

(E)The project will achieve at least 15 percent greater transportation efficiency as compared to a comparable project.

(F)

(C) The project applicant has entered into a binding and enforceable agreement that all mitigation measures and other measures required pursuant to this division to certify an environmental impact report or to adopt a mitigated negative declaration for the project shall be conditions of approval of the project and that those conditions will be fully enforceable by the lead agency or another agency designated by the lead agency. In 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.

(3)“Transportation efficiency” means the number of vehicle trips by employees, visitors, customers, or other users of the project divided by the total number of employees, visitors, customers, or other users.

(D) The project is an affordable housing development.
(E) The project’s total housing units are designated to be 25 percent to 50 percent affordable housing.
(F) The project is located within a county where 10 percent or more of residents are considered severely housing cost burdened, as defined by the California Budget and Policy Center and as identified by the Department of Housing and Community Development.
(b) Rules 3.2220 to 3.2237, inclusive, of the California Rules of Court, as may be amended by the Judicial Council, shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification or adoption of an environmental review document for a qualified project or the granting of any approval for the qualified project, to require the action or proceeding, including any potential appeals therefrom, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court. On or before September 1, 2020, the Judicial Council shall amend the California Rules of Court, as necessary, to implement this subdivision.
(c) (1) The draft environmental review document and final environmental review document for a qualified project shall include a notice in not less than 12-point type stating the following:

THIS ENVIRONMENTAL REVIEW DOCUMENT IS SUBJECT TO SECTION 21168.6.12 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD, IF ANY, FOR THE DRAFT ENVIRONMENTAL REVIEW DOCUMENT. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OR ADOPTION OF THE ENVIRONMENTAL REVIEW DOCUMENT OR THE Arequested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(B) A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(C) The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years’ experience in land use and environmental law or science, or mediation. The applicant shall bear the costs of mediation.
(D) A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(E) The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency, the applicant, and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this subparagraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agency’s decision to certify or to adopt the environmental impact report or to grant project approval.
(6) The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:
(A) New issues raised in the response to comments by the lead agency.
(B) New information released by the public agency subsequent to the release of the draft environmental review document, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.
(C) Changes made to the project after the close of the public comment period.
(D) Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, if the lead agency releases those documents subsequent to the release of the draft environmental review document.
(E) New information that was not reasonably known and could not have been reasonably known during the public comment period.
(7) The lead agency shall file the notice required by subdivision (a) of Section 21152 within five days after the last initial project approval.
(d) (1) The lead agency shall prepare and certify the record of the proceedings in accordance with this subdivision and in accordance with Rule 3.2205 of the California Rules of Court. The applicant shall pay the lead agency for all costs of preparing and certifying the record of proceedings.
(2) No later than three business days following the date of the release of the draft environmental review document, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental review document and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental review document. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental review document 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 prepared or received by the lead agency.
(3) Notwithstanding paragraph (2), documents submitted to or relied on by the lead agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of the documents available in an electronic format no later than the date of the release of the draft environmental review document, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental review document. The index shall specify the libraries or lead agency offices in which hardcopies of the copyrighted copyright protected materials are available for public review.
(4) The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any such those comments available to the public in a readily accessible electronic format within five days of their receipt.
(5) 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.
(6) The lead agency shall indicate in the record of the proceedings comments received that were not considered by the lead agency pursuant to paragraph (6) of subdivision (c) and need not include the content of the comments as a part of the record.
(7) Within five days after the filing of the notice required by subdivision (a) or (b) of Section 21108 or subdivision (a) or (b) of Section 21152, the lead agency shall certify the record of the proceedings for the approval or determination and shall provide an electronic copy of the record to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(8) Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(9) Any dispute over the content of the record of the proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record shall file a motion to augment the record at the time it files its initial brief.
(10) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.
(e) Subdivision (c) and paragraphs (2) and (3) of subdivision (d) do not apply to a determination that the project is exempt from this division.

(f)(1)In granting relief in an action or proceeding brought pursuant to this division, the court shall not stay or enjoin the construction or operation of a qualified project unless the court finds either of the following:

(A)The continued construction or operation of the project presents an imminent threat to the public health and safety.

(B)The project site contains unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values that would be materially, permanently, and adversely affected by the continued construction or operation of the project unless the court stays or enjoins the construction or operation of the project.

(2)If the court finds that subparagraph (A) or (B) of paragraph (1) is satisfied, the court shall only enjoin those specific activities associated with the project that present an imminent threat to public health and safety or that materially, permanently, and adversely affect unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values.

SEC. 2.

 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.