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

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Date Published: 02/19/2021 09:00 PM
AB1277:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1277

Introduced by Assembly Member Blanca Rubio

February 19, 2021

An act to add Chapter 6.8 (commencing with Section 21189.60) to Division 13 of the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 1277, as introduced, Blanca Rubio. California Environmental Quality Act: student housing development projects: expedited judicial review.
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 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 and a procedure for the preparation and certification of the record of proceedings upon the filing of an action or proceeding challenging a lead agency’s action on the grounds of noncompliance with CEQA.
This bill would authorize a public university, as defined, carrying out a project to certify the project as a student housing development project if the project meets certain requirements.
The bill would authorize an applicant, as defined, proposing a project within 2 miles of a campus of a public university to apply to the public university for a determination that the project qualifies as a student housing development project. If the public university determines that the project proposed by the applicant qualifies as a student housing development project, the bill would require the public university to notify the lead agency of that qualification. The bill would encourage the Regents of the University of California to implement these provisions. The bill would require the lead agency to certify the project as a student housing development project if the lead agency makes a certain determination.
The bill would authorize an applicant of a project that is within 2 miles of a campus of a private not-for-profit university and not within 2 miles of a campus of a public university to apply to the lead agency for certification of the project as a student housing development project. The bill would require the lead agency to certify the project if the project meets certain requirements.
The bill would, if a project is certified as a student housing development project, require the public university or lead agency, as appropriate, to provide a specified notice. The bill would require the lead agency, if it determines that a student housing development project is exempt from CEQA, to provide a notice of exemption, as provided.
The bill would require the lead agency to prepare the record of proceedings concurrent with the administrative process for the environmental review of a certified student housing development project and to certify the record of proceedings, as specified.
Because this bill would impose additional duties on public universities, such as the California community colleges, and lead agencies regarding the certification of a project proposed by an applicant as a student housing development project and would require the lead agency to file a notice of exemption if it determines that the student housing development project is exempt from CEQA, this bill would impose a state-mandated local program.
The bill would require the Judicial Council, by July 1, 2022, to adopt rules of court establishing procedures requiring actions or proceedings seeking judicial review challenging the lead agency’s action regarding a project certified as a student housing development project pursuant to CEQA and certain other actions related to the student housing development project, or the granting of project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 business days of the filing of the certified record of proceedings with the court.
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 with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


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) “Public university” means the University of California, the California State University, or a California community college.
(d) “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 __ percent of the project consist of student housing.
(2) The project is located in either of the following:
(A) Within the campus of the public university.
(B) Within two miles of the outer boundary of a public university or a private not-for-profit university.
(3) For a project proposed by an applicant, at least 10 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) The project is located in an area that provides easy access to a 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 does not result in any net additional emission 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.
(e) “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 a 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 two or more campuses of a public university, the application for certification shall be submitted to the 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.

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 a campus of a private not-for-profit university and not within two miles of a 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) 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.

21189.65.
 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.

21189.66.
 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.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.