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AB-734 California Environmental Quality Act: Oakland Sports and Mixed-Use Project.(2017-2018)

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Date Published: 07/03/2018 09:00 PM
AB734:v96#DOCUMENT

Amended  IN  Senate  July 03, 2018
Amended  IN  Senate  June 04, 2018
Amended  IN  Assembly  March 23, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 734


Introduced by Assembly Member Bonta

February 15, 2017


An act to add Section 21168.6.7 to the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 734, as amended, Bonta. California Environmental Quality Act: Oakland Sports and Mixed-Use Project.
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 also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA. CEQA requires a court to make specified orders if it finds that any determination, finding, or decision of a public agency has been made without compliance with CEQA.
This bill would require a public agency, in conducting an establish specified procedures for the administrative and judicial review of the environmental review and approvals granted for the Oakland Sports and Mixed-Use Project, as defined, located in the City of Oakland that is certified by the Governor as meeting certain requirements, to comply with specified procedures. The bill would require the public agency to concurrently prepare the record of proceedings and to certify the record of proceeding for the project, as provided. requirements. 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 require the Judicial Council, by July 1, 2019, to adopt a rule apply certain rules of court establishing procedures that require requiring actions or proceedings seeking judicial review of the certification or adoption of the environmental review document for the project 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. The bill would prohibit a court form staying or enjoining the construction or operation of the Oakland Sports and Mixed-Use Project, except as provided. court to an action or proceeding seeking judicial review of the lead agency’s action related to the Oakland Sports and Mixed-Use Project under CEQA.
This bill would make legislative findings and declarations as to the necessity of a special statute for the Oakland Sports and Mixed-Use Project.
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.

 The Legislature finds and declares all of the following:
(a) The California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) requires that the environmental impacts of development projects be identified and mitigated. The act also guarantees the public an opportunity to review and comment on the environmental impacts of a project and to participate meaningfully in the development of mitigation measures for potentially significant environmental impacts.
(b) The existing Oakland Coliseum is an aging facility with a maximum seating capacity of 59,326 seats that must be replaced to retain the Oakland Athletics baseball team. The City of Oakland desires to maintain the Oakland Athletics professional baseball franchise in the city by providing development opportunities that will allow the team to develop a state-of-the-art baseball park in the city, while maximizing the economic benefit of the sports team and its facilities for the city.
(c) The city has identified two viable sites for the new baseball park, the Oakland-Alameda County Coliseum site principally owned by the City of Oakland and the County of Alameda, and the Howard Terminal site owned by the Port of Oakland. The city seeks to capitalize on the development of a new baseball park to maximize the economic benefit of the team and its facilities for the city, county, and port, including critical transit and transportation infrastructure, affordable housing, open space, and job creation. Essential to the success and feasibility of the new baseball park is the development of complementary adjacent mixed-use residential, commercial, and retail uses that will support the baseball park and further the city’s and region’s goals for sustainable transit-oriented development, including an increase in supply of housing, including affordable housing.
(d) It is anticipated that the project will generate many thousand of full-time jobs, including employees hired during both construction and operation of the project. This employment estimate does not include the substantial job generation that will occur with the surrounding development uses, which will generate additional hospitality, office, restaurant, and retail jobs in the City of Oakland.
(e) Development of a new baseball park and mixed-use project at either location presents an unprecedented opportunity to invest in new and improved transit and transportation infrastructure and implement sustainability measures designed to improve air quality and mitigate the emissions of greenhouse gases resulting from the project. Both project sites are located in areas of the City of Oakland that are near bus, rail, or water transit facilities and will be designed to maximize opportunities for nonautomobile mode of travel, consistent with the policies and regional vision included in the Sustainable Communities Strategy Plan Bay Area 2040 adopted in July of 2017 by the Metropolitan Transportation Commission and the Association of Bay Area Governments pursuant of Section 65080 of the Government Code.
(f) The proposed baseball park and mixed-use development is the type of project that will create high-wage, highly skilled jobs that pay prevailing wages and living wages. It is the type of large-scale project that will benefit from a streamlined judicial review process and the procedures described in the California Environmental Quality Act. It is therefore in the interest of the state to expedite judicial review of the proposed project, as appropriate, while protecting the environment and the right of the public to review, comment on, and, if necessary, seek judicial review of, the adequacy of the environmental review of the project under the California Environmental Quality Act.

SEC. 2.

 Section 21168.6.7 is added to the Public Resources Code, to read:

21168.6.7.
 (a) For purposes of this section, the following definitions apply:
(1) “Applicant” means a public or private entity or its affiliates that proposes the project and its successors, heirs, and assignees.
(2) “Environmental review document” means a negative declaration, a mitigated negative declaration, an environmental impact report, an addendum to a negative declaration, a mitigated negative declaration or environmental impact report, or any supplemental or subsequent environmental impact report.
(3) “Oakland Sports and Mixed-Use Project” or “project” means the following components of a sports center and mixed-use project located at the Howard Terminal site in the City of Oakland or the Oakland-Alameda County Coliseum site in the City of Oakland, from demolition and site preparation through operation:
(A) A baseball park that will become the new home to the Oakland Athletics and adjacent residential, retail, commercial, cultural, entertainment, or recreational uses developed by the Oakland Athletics, and that meets all of the following:
(i) The baseball park and each new mixed-use nonresidential building achieves at least LEED Silver Gold certification or its equivalent for new construction after completion or the project achieves at least completion. Any residential building shall achieve at least LEED Neighborhood Design Silver rating or its equivalent. Gold rating or GreenPoint Gold rated new home.
(ii) The baseball park does not result in any net additional emissions of greenhouse gases, including greenhouse gas emissions from employee transportation, as determined by the State Air Resources Board pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code.

(ii)

(iii) The uses are subject to a comprehensive transportation demand management plan to reduce single-occupancy vehicles and prioritize other modes of transportation, such as public transit, waterborne transportation, ride-share, bicycles, and pedestrians.

(iii)

(iv) The project is located within a priority development area identified in the sustainable communities strategy Plan Bay Area 2040 adopted by the Metropolitan Transportation Commission and the Association of Bay Area Governments.
(B) Associated public spaces.
(C) Facilities and infrastructure for ingress, egress, and use of the baseball park and mixed-use development.

(b)On or before July 1, 2019, the Judicial Council shall adopt a rule of court to establish procedures applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification or adoption of the environmental review document for the Oakland Sports and Mixed-Use Project that is certified by the Governor pursuant to this section or the granting of any project approvals that require the actions or proceedings, including any potential appeals therefrom, be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court.

(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 any environmental review document for the project that is certified pursuant to subdivision (c) or the granting of any project approvals, 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 July 1, 2019, the Judicial Council shall amend the California Rules of Court, as necessary, to implement this subdivision.
(c) The Governor may certify the project for streamlining pursuant to this section if it complies with all of the following conditions:
(1) The project creates high-wage, highly skilled jobs that pay prevailing wages and living wages, provides construction jobs and permanent jobs for Californians, and helps reduce unemployment. For purposes of this subdivision, “jobs that pay prevailing wages” means that all construction workers employed in the execution of the project will receive 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. If the project is certified for streamlining, the project applicant shall include this requirement in all contracts for the performance of the work.
(2) (A) If the project is certified pursuant to this section, contractors and subcontractors shall pay to all construction workers employed in the execution of the project at least the general prevailing rate of per diem wages.
(B) Except as provided in subparagraph (C), the obligation of the contractors and subcontractors to pay prevailing wages pursuant to subparagraph (A) 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 project, or by an underpaid worker through an administrative complaint or civil action. 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.
(C) Subparagraph (B) does not apply if all contractors and subcontractors 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 project and provides for enforcement of that obligation through an arbitration procedure. For purposes of this subparagraph, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(3) The project applicant agrees to pay the for any additional costs of the Court of Appeal incurred by the courts in hearing and deciding any case brought pursuant to this division, section, including payment of the costs for the appointment of a special master if deemed appropriate by the court, in a form and manner specified by the Judicial Council, as provided in the rules of court adopted by the Judicial Council pursuant to Section 21185. Council.
(4) The project applicant agrees to pay the costs of preparing the record of proceedings for the project concurrent with review and consideration of the project pursuant to this division, in a form and manner specified by the lead agency for the project.
(d) (1) Prior to certifying the project, the Governor shall make a determination that each of the conditions specified in subdivision (c) has been met. These findings are not subject to judicial review.

(2)The Governor may issue guidelines regarding application for and certification of the project pursuant to this chapter. Any guidelines issued pursuant to this subdivision are not subject to the rulemaking provisions of the Administrative Procedures Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

(2) The guidelines issued pursuant to Chapter 6.5 (commencing with Section 21178) apply to the implementation of this section.
(e) (1) The draft and final environmental review document shall include a notice in not less than 12-point type stating the following:

THIS ENVIRONMENTAL REVIEW DOCUMENT IS SUBJECT TO SECTION 21168.6.7 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 APPROVAL OF THE PROJECT DESCRIBED IN SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE IS SUBJECT TO THE PROCEDURES SET FORTH IN THAT SECTION. A COPY OF SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS ENVIRONMENTAL REVIEW DOCUMENT.

(2) The draft environmental review document and final environmental review document shall contain, as an appendix, the full text of this section.
(3) Within 10 days after the release of the draft environmental review document, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that document.
(4) Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental review document. A transcript of the hearing shall be included as an appendix to the final environmental review document.
(5) (A) Within five days following the close of the public comment period, a commenter on the draft environmental review document may submit to the lead agency a written request for nonbinding mediation. The lead agency and applicant shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental review document and who requested 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 review document 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.
(8) Paragraphs (3) to (6), inclusive, do not apply to an addendum to an environmental impact report or an addendum to a negative declaration.
(f) (1) The lead agency shall prepare and certify the record of the proceedings in accordance with this subdivision and in accordance with Rule 3.1365 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 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 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 (e) 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) 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.
(11) Paragraphs (2) to (10), inclusive, do not apply to an addendum to an environmental impact report or an addendum to a negative declaration.

(g)(1)(A)Except as provided in paragraph (2), in granting relief in an action or proceeding brought against the Oakland Sports and Mixed-Use Project pursuant to this division, the court shall not stay or enjoin the construction or operation of the Oakland Sports and Mixed-Use Project unless the court finds either of the following:

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

(ii)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.

(B)If the court finds that clause (i) or (ii) of subparagraph (A) 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.

(2)Where an action or proceeding brought pursuant to this section challenges aspects of the project other than the baseball park component of the project and those portions or specific project activities are severable from the baseball park component, the court may enter an order as to aspects of the project other than the baseball park component of the project that includes one or more of the remedies set forth in Section 21168.9.

SEC. 3.

 The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique need for the development of a sports and mixed-use project in the City of Oakland in an expeditious manner.

SEC. 4.

 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.