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SB-239 California Environmental Quality Act: housing development projects: judicial proceedings.(2023-2024)

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Date Published: 01/24/2023 09:00 PM
SB239:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 239

Introduced by Senator Dahle

January 24, 2023

An act to amend Section 21168.9 of, to add Sections 21167.05, 21167.06, and 21168.9.1 to, to add and repeal Section 21175 of, and to repeal Section 21177 of, the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


SB 239, as introduced, Dahle. California Environmental Quality Act: housing development projects: judicial proceedings.
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 confers standing on a person satisfying specified requirements to file and maintain an action or proceeding alleging that an EIR, a negative declaration, or a mitigated negative declaration was not prepared and certified in compliance with CEQA. CEQA requires a court, in an action or proceeding brought challenging any determination, finding, or decision of a public agency on the grounds of noncompliance with CEQA and a finding by the court of such noncompliance, to enter an order that includes one or more of specified mandates, one of which may be a mandate to suspend any or all specific project activity or activities, as provided. CEQA provides that, except as otherwise specified, it is not intended to limit the equitable powers of the courts.
This bill would limit the standing to file and maintain the above action or proceeding to the Attorney General. The bill would authorize the court, upon its own motion or of a party, to conduct a hearing to determine if the Attorney General is bringing and maintaining an action or proceeding for nonenvironmental purposes, as defined. If the court determines that the action is brought or maintained for nonenvironmental purposes, the bill would authorize the court to take necessary actions, including the dismissal of the action or proceeding, award of attorneys’ fees, or both dismissal and award.
This bill would prohibit the court from staying or enjoining the construction or operation of a project unless it makes certain findings.
This bill would prohibit additional or subsequent CEQA actions or proceedings if an action or proceeding under CEQA has already been instituted against a housing development project, as defined, and a trial court has issued a peremptory writ of mandate, as prescribed. The bill would require that any claims regarding the lead agency’s noncompliance with the peremptory writ be raised during the public comment period provided in connection with the lead agency’s action to comply with the peremptory writ and when the lead agency makes a return to the peremptory writ. The bill would limit those claims to the adequacy of the lead agency’s remedial compliance efforts in response to the peremptory writ, and would prohibit the court from considering issues, claims, or complaints under CEQA that were not raised in the original action or proceeding or that were not resolved by the trial court in favor of the petitioners in the original action or proceeding from which the peremptory writ was issued. The bill would also prohibit subsequent actions or proceedings under CEQA against a housing development project if that project has already been subject to suit under CEQA and a court has entered a final judgment in that action or proceeding. The bill would specify that it does not extend any statute of limitations.
This bill would, until January 1, 2030, require an action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency certifying the EIR for a commercial, housing, or public works project, as defined, that addresses longstanding critical needs in the project area or the granting of project approvals on the grounds of noncompliance with CEQA, to the extent feasible, be resolved within 365 days of the filing of the record of proceedings with the court. The bill would specify that this provision does not apply if the court makes certain findings. The bill would require the Judicial Council to adopt a rule of court to implement this provision.
This bill would repeal a provision that would become obsolete as the result of the above provision limiting the standing to file and maintain an action or proceeding to the Attorney General.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 21167.05 is added to the Public Resources Code, to read:

21167.05.
 (a) Notwithstanding any other law, a person, other than the Attorney General, shall not commence or maintain an action or proceeding alleging that an environmental impact report, a negative declaration, or a mitigated negative declaration does not comply with this division.
(b) The term “plaintiff” or “petitioner,” as used in this chapter, shall refer to the Attorney General.

SEC. 2.

 Section 21167.06 is added to the Public Resources Code, to read:

21167.06.
 (a) It is the intent of the Legislature that this division shall not be used for nonenvironmental purposes.
(b) For purposes of this section, “nonenvironmental purposes” includes, but is not limited to, competing with another business, delaying a project for reasons unrelated to environmental protection, or attempting to extract concessions unrelated to the environment from project proponents.
(c) A court, upon its own motion or that of a party, may conduct a hearing to determine if the Attorney General is bringing and maintaining the action or proceeding under this division for nonenvironmental purposes. If, after a hearing on the evidence, a court determines that the Attorney General is bringing and maintaining the action or proceeding for nonenvironmental purposes, the court may take any action necessary, including, but not limited to, dismissal of the suit, award of attorneys’ fees, or both. At the hearing, the court shall consider any evidence, written or oral, by witness or affidavit, as may be material.
(d) In conducting a hearing pursuant to subdivision (c), the court shall determine whether, and to what extent, the Attorney General is seeking to protect the environment in a manner consistent with the goals and objectives of this division, to advance nonenvironmental purposes outside the goals and objectives of this division, or to advance a mixture of environmental and nonenvironmental purposes. The court shall take the actions specified in subdivision (c) only if it finds nonenvironmental purposes are the primary motivation prompting the Attorney General to file the suit.
(e) When a motion is filed pursuant to subdivision (c) by a party before a hearing on the merits, the action or proceeding is stayed and the moving party need not plead, until 10 days after the motion has been denied.

SEC. 3.

 Section 21168.9 of the Public Resources Code is amended to read:

21168.9.
 (a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following:
(1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part.
(2) If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division.
(3) A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division.
(b) Any An order pursuant to subdivision (a) shall include only those mandates which that are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. However, the order shall be limited to that portion of a determination, finding, or decision or the specific project activity or activities found to be in noncompliance only if a court finds that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with this division, and (3) the court has not found the remainder of the project to be in noncompliance with this division. The trial court shall retain jurisdiction over the public agency’s proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division.

(c)Nothing in this section authorizes

(c) (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 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 location 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 enjoin only 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.
(d) This section does not authorize a court to direct any public agency to exercise its discretion in any particular way. Except as expressly provided in this section, nothing in this section is intended to limit the equitable powers of the court.

SEC. 4.

 Section 21168.9.1 is added to the Public Resources Code, to read:

21168.9.1.
 (a) If an action or proceeding under this division has been instituted against a housing development project, as that term is defined in Section 65589.5 of the Government Code, and a trial court issues a peremptory writ of mandate pursuant to Section 21168.9, no additional or subsequent legal action or proceeding under this division shall be initiated against that project. Any claims regarding the lead agency’s noncompliance with the peremptory writ must be raised during the public comment period provided in connection with the lead agency’s action to comply with the peremptory writ and when the lead agency makes a return to the peremptory writ. Those claims shall be limited to the adequacy of the lead agency’s remedial compliance efforts in response to the peremptory writ. Issues, claims, or complaints under this division that were not raised in the original action or proceeding, and any that were not resolved by the trial court in favor of the petitioners in the original action or proceeding from which the peremptory writ was issued, shall not be considered by a court in determining whether to discharge the peremptory writ.
(b) If an action or proceeding under this division has previously been instituted against a housing development project, as that term is defined in Section 65589.5 of the Government Code, and a court has entered a final judgment in that action or proceeding, no subsequent action or proceeding under this division may be instituted against that project.
(c) Nothing in this section extends any statute of limitations.

SEC. 5.

 Section 21175 is added to the Public Resources Code, to read:

21175.
 (a) For purposes of this section, the following definitions apply:
(1) “Commercial project” means a project, either commercial or industrial, located in a community that has an unemployment rate that is higher than the state’s median unemployment rate at the time that the environmental impact report is certified or in a disadvantaged community as defined in Section 39711 of the Health and Safety Code.
(2) “Housing project” means a project consisting of residential project or a mixed-use project with not less than two-thirds of the square footage designated for residential use. Housing project does not include a project located on a single-family residential lot.
(3) “Project” means a commercial, housing, or public works project that addresses longstanding critical needs in the project area.
(4) “Public works project” means a project carried out by a public agency.
(b) (1) An action or proceeding, including any potential appeals to the Court of Appeal or the Supreme Court, to attack, set aside, void, or annul a determination, finding, or decision of the lead agency certifying the environmental impact report for a project or the granting of project approvals on the grounds of noncompliance with this division, shall, to the extent feasible, be resolved within 365 days of the filing of the record of proceedings with the court.
(2) Paragraph (1) does not apply if 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 location 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.
(3) The Judicial Council shall adopt a rule of court to implement paragraph (1).
(c) This section shall remain in effect only until January 1, 2030, and as of that date is repealed.

SEC. 6.

 Section 21177 of the Public Resources Code is repealed.
21177.

(a)An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or before the close of the public hearing on the project before the issuance of the notice of determination.

(b)A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or before the close of the public hearing on the project before the filing of notice of determination pursuant to Sections 21108 and 21152.

(c)This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b).

(d)This section does not apply to the Attorney General.

(e)This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing before the approval of the project, or if the public agency failed to give the notice required by law.