Today's Law As Amended


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AB-1277 California Environmental Quality Act: student housing development projects: expedited judicial review.(2021-2022)



As Amends the Law Today


SECTION 1.
 (a) The Legislature finds and declares all of the following:
(1) The California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) (CEQA) is essential for ensuring that projects and developments in the State of California are environmentally sustainable, and do not pose a threat or danger to the wildlife or the environment of the State of California.
(2) CEQA has been, in the course of the 50 years since its enactment, a force for good in California and maintaining its integrity and effectiveness is of paramount importance.
(3) The primary purpose and ultimate mandate of CEQA is to ensure and enforce environmental sustainability, protection of natural resources, and preservation of California wildlife and ecosystems.
(4) The ability of the public to challenge environmental review performed by a public agency under CEQA is essential to CEQA’s effectiveness.
(5) Nevertheless, certain special interest and nonenvironmentally oriented organizations have misused their ability under CEQA to challenge the development of residential projects, especially student housing development projects. These challenges are often meant to prevent the projects.
(6) Students attending institutions of higher education are facing an immense housing crisis, and are unable to find and attain adequate housing arrangements, often due to the low availability rate of affordable student housing units near and around those campuses.
(7) In areas affected by the lack of affordable student housing units, some residential units are substandard, overcrowded, or noncompliant with state and local housing and building regulations, rendering many rental housing units unfit or unsafe for human occupancy that jeopardizes the health, safety, and welfare of their occupants and the community.
(8) The extreme cost of rent in urban areas and in areas near higher education campuses has led to overcrowding in available units, as students and young professionals are unable to afford housing without pooling their resources. This overcrowding presents clear concerns in the wake of the COVID-19 pandemic, as well as concerns regarding overall health and safety and access to resources.
(9) In addition to overcrowding, high costs have led to a move away from campuses and employment hubs and an increase in the number of commuters, causing a surge in local and overall emissions of greenhouse gases and pollutants, in opposition to CEQA’s original intent and mandate of ensuring environmental quality.
(10) It is critical for the state to ensure that the litigation process under CEQA is not abused in order to prevent or delay the construction of environmentally friendly student housing projects in urban areas and in areas near campuses. In addition, it is essential for the state to ensure that any student housing development projects meet the requirements set forth in CEQA, both in practice and in spirit.
(b) It is the intent of the Legislature to provide a streamlined litigation process when litigation is initiated under CEQA for student housing development projects to ensure that major consideration is given to preventing environmental damage, while ensuring that students who spend their years in California universities seeking knowledge and striving for a better future have decent homes and satisfying living environments.

SEC. 2.

 Chapter 6.8 (commencing with Section 21189.60) is added to Division 13 of the Public Resources Code, to read:

CHAPTER  6.8. Student Housing Development Projects
21189.60.
 For purposes of this chapter, the following definitions apply:
(a) “Applicant” means a private entity or its affiliate that proposes a student housing development project, or its successor, heirs, or assigns.
(b) “Environmental review document” means any of the following:
(1) A negative declaration.
(2) A mitigated negative declaration.
(3) An environmental impact report.
(c) “Main campus” has the same meaning as in Section 94849 of the Education Code.
(d) “Project labor agreement” has the same meaning as in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(e) “Public university” means the University of California, the California State University, or a California community college.
(f) “Skilled and trained workforce” has the same meaning as in Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.
(g) “Student housing development project” means a project that meets all of the following:
(1) (A) For a project proposed by an applicant, at least 70 percent of the square footage of the project consist of residential units of which 70 percent are student-oriented units.
(B) For a project that is carried out by a public university, at least 80 percent of the project consist of student housing.
(2) The project is located in either of the following:
(A) Within any campus of the public university.
(B) Within two miles of the outer boundary of the main campus of a public university or a private not-for-profit university.
(3) For a project proposed by an applicant, at least 15 percent of the residential units are provided to extremely low, very low, and low-income households at monthly housing costs with an affordable housing cost or affordable rent, as described in Section 50052.5 or 50053 of the Health and Safety Code, for which students are eligible to apply.
(4) For a project that is not within a campus of a public university, the project is located in an area that provides easy access to a main campus of a public university or a private not-for-profit university.
(5) The project achieves sustainability standards of at Leadership in Energy and Environmental Design (LEED) Gold level or comparable GreenPoint rating, including meeting sustainability standards for access to quality transit.
(6) The project is not located on a site that is any of the following:
(A) A coastal zone, as defined in Division 20 (commencing with Section 30000).
(B) Either prime farmland or farmland of statewide importance, as defined pursuant to United States Department of Agriculture land inventory and monitoring criteria, as modified for California, and designated on the maps prepared by the Farmland Mapping and Monitoring Program of the Department of Conservation, or land zoned or designated for agricultural protection or preservation by a local ballot measure that was approved by the voters of that jurisdiction.
(C) Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).
(D) Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178 of the Government Code, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202. This subparagraph does not apply to sites excluded from the specified fire hazard severity zones by a local agency, pursuant to subdivision (b) of Section 51179 of the Government Code, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.
(E) A hazardous waste site that is listed pursuant to Section 65962.5 of the Government Code or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless the Department of Toxic Substances Control has cleared the site for residential use or residential mixed uses.
(F) Within a delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2 of the Government Code.
(G) Within a flood plain as determined by maps promulgated by the Federal Emergency Management Agency, unless the project has been issued a flood plain development permit pursuant to Part 59 (commencing with Section 59.1) and Part 60 (commencing with Section 60.1) of Subchapter B of Chapter I of Title 44 of the Code of Federal Regulations.
(H) Within a floodway as determined by maps promulgated by the Federal Emergency Management Agency, unless the project has received a no-rise certification in accordance with Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations.
(I) Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code), habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.
(J) Habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).
(K) Lands under conservation easement.
(7) For a project proposed by an applicant, the project does not require the demolition of residential dwelling units, or the demolition of occupied or vacant protected units.
(h) “Student-oriented unit” means a residential unit that meets all of the following requirements:
(1) The unit is leased by individual leases.
(2) The unit contains at least three, but not more than four, beds.
(3) The unit contains at least one three-quarter bathroom per two beds in the unit.
(4) The unit contains a full kitchen and at least one living space.
21189.61.
 (a) A public university proposing to carry out a project may certify the project as a student housing development project if the public university determines that the project meets all applicable requirements set forth in subdivision (d) of Section 21189.60.
(b) (1) (A) Except as provided in paragraph (3), an applicant proposing a project may apply to the main campus of a public university with an outer boundary that is within two miles of the project site for a determination that the project qualifies for a certification as a student housing development project.
(B) If the project is within two miles of the main campus of more than one public university, the application for certification shall be submitted to the main campus of the public university with the largest number of enrolled students.
(2) Except as provided in paragraph (3), the public university receiving an application pursuant to paragraph (1) shall notify the lead agency that the project qualifies for certification as a student housing development project if the public university determines that the project meets all applicable requirements set forth in subdivision (d) of Section 21189.60.
(3) This subdivision does not apply to the Regents of the University of California. The Regents of the University of California are encouraged to implement this subdivision.
(c) A public university may charge a fee on an applicant to reimburse the reasonable cost incurred by the public university in making the determination pursuant to subdivision (b) and providing the notification pursuant to Section 21189.62.
21189.62.
 (a) For a project proposed by an applicant, if the lead agency receives notification from a public university that the project qualifies for certification as a student housing development project, the lead agency shall certify the project as a student housing development project if either of the following are met:
(1) The project is consistent with the applicable land use designation for the area in which the project is located.
(2) The project is consistent with changes in the applicable land use designation for the area in which the project is located that are made contemporaneous with the proposal of the project.
(b) (1) For a project proposed by an applicant that is within two miles of the main campus of a private not-for-profit university and not within two miles of the main campus of a public university, the applicant may apply to the lead agency for certification of the project as a student housing development project.
(2) The lead agency shall certify the project as a student housing development project if the lead agency determines that the project meets all applicable requirements set forth in subdivision (d) of Section 21189.60 and the requirements of subdivision (a).
21189.63.
 Within 10 days of the certification of a project as a student housing development project pursuant to this chapter, the lead agency or the public university, as applicable, shall issue a public notice in no less than 12-point type stating the following:

“THE PROJECT IS CERTIFIED AS A STUDENT HOUSING DEVELOPMENT PROJECT UNDER CHAPTER 6.8 (COMMENCING WITH SECTION 21189.60) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT ANY JUDICIAL ACTION CHALLENGING THE ENVIRONMENTAL REVIEW DOCUMENT CONDUCTED PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (DIVISION 13 (COMMENCING WITH SECTION 21000) OF THE PUBLIC RESOURCES CODE) OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE ENVIRONMENTAL REVIEW DOCUMENT IS SUBJECT TO THE CALIFORNIA RULES OF COURT ADOPTED PURSUANT TO SECTION 21189.64 OF THE PUBLIC RESOURCES CODE. A COPY OF CHAPTER 6.8 (COMMENCING WITH SECTION 21189.60) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE IS INCLUDED BELOW.”

21189.64.
 (a) For a project certified as a student housing development project that is carried out by a public university, the project shall satisfy both of the following requirements:
(1) All contractors and subcontractors at every tier on the project will be required to pay prevailing wages in accordance with Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.
(2) (A) An entity shall not be prequalified or shortlisted or awarded a contract to perform work on the project unless the entity provides an enforceable commitment to the public university that the entity and its contractors and subcontractors at every tier will use a skilled and trained workforce to perform all work on the project that falls within an apprenticeable occupation in the building and construction trades, in accordance with Chapter 2.9 (commencing with Section 2600) of Part 1 of the Public Contract Code.
(B) This paragraph does not apply if any of the following requirements are met:
(i) The public university has entered into a project labor agreement that will bind all contractors and subcontractors at every tier performing work on the project to use a skilled and trained workforce, and the entity agrees to be bound by that project labor agreement.
(ii) The project is being performed under the extension or renewal of a project labor agreement that was entered into by the public university before January 1, 2022.
(iii) The entity has entered into a project labor agreement that will bind the entity and all of its contractors and subcontractors at every tier performing the project to use a skilled and trained workforce.
(b) For a project proposed by an applicant that is certified as a student housing development project, the applicant shall do both of the following:
(1) Certified to the lead agency that either of the following is true:
(A) The entirety of the project is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.
(B) If the project is not in its entirety a public work and the applicant is not required to pay prevailing wages for all construction workers under Article 2 (commencing with Section 1770) of Chapter 1 of Part 7 of Division 2 of the Labor Code, all construction workers employed on construction of the project will be paid at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of the Labor Code, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. If the project is subject to this subparagraph, then, for those portions of the project that are not a public work, all of the following shall apply:
(i) The applicant shall ensure that the prevailing wage requirement is included in all contracts for the performance of all construction work.
(ii) All contractors and subcontractors at every tier shall pay to all construction workers employed in the execution of the project at least the general prevailing rate of per diem wages, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate.
(iii) (I) Except as provided in subclause (III), all contractors and subcontractors at every tier shall maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided therein.
(II) Except as provided in subclause (III), the obligation of the contractors and subcontractors at every tier to pay prevailing wages may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code, within 18 months after the completion of the development, or by an underpaid worker through an administrative complaint or civil action, or by a joint labor-management committee though a civil action under Section 1771.2 of the Labor Code. If a civil wage and penalty assessment is issued, the contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of wages covered by the assessment shall be liable for liquidated damages pursuant to Section 1742.1 of the Labor Code.
(III) Subclauses (I) and (II) shall not apply if all contractors and subcontractors at every tier performing work on the project are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the development and provides for enforcement of that obligation through an arbitration procedure.
(iv) Notwithstanding subdivision (c) of Section 1773.1 of the Labor Code, the requirement that employer payments not reduce the obligation to pay the hourly straight time or overtime wages found to be prevailing shall not apply if otherwise provided in a bona fide collective bargaining agreement covering the worker. The requirement to pay at least the general prevailing rate of per diem wages does not preclude use of an alternative workweek schedule adopted pursuant to Section 511 or 514 of the Labor Code.
(2) Certified to the lead agency that a skilled and trained workforce will be used to perform all construction work on the project. All of the following requirements shall apply to the project:
(A) The applicant shall require in all contracts for the performance of work that every contractor and subcontractor at every tier will individually use a skilled and trained workforce to construct the project.
(B) Every contractor and subcontractor at every tier shall use a skilled and trained workforce to construct the project.
(C) (i) Except as provided in clause (ii), the applicant shall provide to the lead agency, on a monthly basis while the project or contract is being performed, a report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code. A monthly report provided to the public university pursuant to this subclause shall be a public record under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) and shall be open to public inspection. An applicant that fails to provide a monthly report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code shall be subject to a civil penalty of ten thousand dollars ($10,000) per month for each month for which the report has not been provided. Any contractor or subcontractor that fails to use a skilled and trained workforce shall be subject to a civil penalty of two hundred dollars ($200) per day for each worker employed in contravention of the skilled and trained workforce requirement. Penalties may be assessed by the Labor Commissioner within 18 months of completion of the development using the same procedures for issuance of civil wage and penalty assessments pursuant to Section 1741 of the Labor Code, and may be reviewed pursuant to the same procedures in Section 1742 of the Labor Code. Penalties shall be paid to the State Public Works Enforcement Fund.
(ii) Clause (i) shall not apply if all contractors and subcontractors performing work on the project are subject to a project labor agreement that requires compliance with the skilled and trained workforce requirement and provides for enforcement of that obligation through an arbitration procedure.
21189.65.
 (a) On or before July 1, 2022, the Judicial Council shall adopt rules of court to establish procedures applicable to actions or proceedings brought to attack, review, set aside, void, or annul the determination that a student housing development project certified under this chapter is exempt from this division, or the adoption of a negative or mitigated declaration for a student housing development project certified under this chapter, or the certification of an environmental impact report for a student housing development project certified under this chapter, or the granting of any project approvals that require the actions or proceedings, including any potential appeals to the court of appeal or the Supreme Court, be resolved, to the extent feasible, within 270 business days of the filing of the certified record of proceedings with the court.
(b) The rules of court adopted pursuant to subdivision (a) shall also be applicable to actions or proceeding brought to attack, review, set aside, void, or annul the lead agency’s action taken pursuant to this division for changes to land use designation taken pursuant to paragraph (1) of subdivision (a) of Section 21189.62 or the adoption of those changes.
21189.66.
 Notwithstanding any other law, the preparation and certification of the record of proceedings for a student housing development project certified under this chapter shall be performed in the following manner:
(a) The lead agency for the project shall prepare the record of proceedings pursuant to this division concurrently with the administrative process.
(b) All documents and other materials placed in the record of proceedings shall be posted on, and be downloadable from, an internet website maintained by the lead agency commencing with the date of the release of the draft environmental review document.
(c) 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.
(d) 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 released or received by the lead agency.
(e) 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.
(f) 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.
(g) Notwithstanding paragraphs (b) to (f), inclusive, 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 these 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 must specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(h) The lead agency shall certify the final record of proceedings within five days of its approval of the project.
(i) Any dispute arising from the record of 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.
(j) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.
21189.67.
 If a lead agency determines that a student housing development project certified under this chapter is exempt from this division, the lead agency shall file a notice of exemption with the Office of Planning and Research and the county clerk in the manner specified in subdivisions (b) and (c) of Section 21108 or subdivisions (b) and (c) of Section 21152.
SEC. 3.
 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.