Code Section Group

Public Resources Code - PRC

DIVISION 13. ENVIRONMENTAL QUALITY [21000 - 21189.57]

  ( Division 13 added by Stats. 1970, Ch. 1433. )

CHAPTER 6. Limitations [21165 - 21177]
  ( Chapter 6 added by Stats. 1972, Ch. 1154. )

21165.
  

(a) When a project is to be carried out or approved by two or more public agencies, the determination of whether the project may have a significant effect on the environment shall be made by the lead agency, and that agency shall prepare, or cause to be prepared by contract, the environmental impact report for the project, if a report is required by this division. In the event that a dispute arises as to which is the lead agency, any of the disputing public agencies, or in the case of a project described in subdivision (c) of Section 21065 the applicant for such project, may submit the question to the Office of Planning and Research, and the Office of Planning and Research shall designate, within 21 days of receiving the request, the lead agency, giving due consideration to the capacity of that agency to adequately fulfill the requirements of this division.

(b) For the purposes of this section, a “dispute” means a contested, active difference of opinion between two or more public agencies as to which of those agencies shall prepare any necessary environmental document. A dispute exists where each of those agencies claims that it either has or does not have the obligation to prepare that environmental document. The Office of Planning and Research shall not designate a lead agency in the absence of such a dispute.

(Amended by Stats. 2005, Ch. 267, Sec. 2. Effective January 1, 2006.)

21166.
  

When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs:

(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report.

(b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report.

(c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.

(Amended by Stats. 1977, Ch. 1200.)

21166.1.
  

The decision of a lead agency to prepare an environmental impact report with respect to environmental impacts within a geographic area or for a group of projects shall not be a basis for determining that an environmental document prepared for an individual project within that area or group is inadequate.

(Added by Stats. 1984, Ch. 1514, Sec. 11.)

21167.
  

An action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows:

(a) An action or proceeding alleging that a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment shall be commenced within 180 days from the date of the public agency’s decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.

(b) An action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.

(c) An action or proceeding alleging that an environmental impact report does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152 by the lead agency.

(d) An action or proceeding alleging that a public agency has improperly determined that a project is not subject to this division pursuant to subdivision (b) of Section 21080 or Section 21172 shall be commenced within 35 days from the date of the filing by the public agency, or person specified in subdivision (b) or (c) of Section 21065, of the notice authorized by subdivision (b) of Section 21108 or subdivision (b) of Section 21152. If the notice has not been filed, the action or proceeding shall be commenced within 180 days from the date of the public agency’s decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.

(e) An action or proceeding alleging that another act or omission of a public agency does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.

(f) If a person has made a written request to the public agency for a copy of the notice specified in Section 21108 or 21152 prior to the date on which the agency approves or determines to carry out the project, then not later than five days from the date of the agency’s action, the public agency shall deposit a written copy of the notice addressed to that person in the United States mail, first class postage prepaid. The date upon which this notice is mailed shall not affect the time periods specified in subdivisions (b), (c), (d), and (e).

(Amended by Stats. 2004, Ch. 744, Sec. 7. Effective January 1, 2005.)

21167.1.
  

(a) In all actions or proceedings brought pursuant to Sections 21167, 21168, and 21168.5, including the hearing of an action or proceeding on appeal from a decision of a lower court, all courts in which the action or proceeding is pending shall give the action or proceeding preference over all other civil actions, in the matter of setting the action or proceeding for hearing or trial, and in hearing or trying the action or proceeding, so that the action or proceeding shall be quickly heard and determined. The court shall regulate the briefing schedule so that, to the extent feasible, the court shall commence hearings on an appeal within one year of the date of the filing of the appeal.

(b) To ensure that actions or proceedings brought pursuant to Sections 21167, 21168, and 21168.5 may be quickly heard and determined in the lower courts, the superior courts in all counties with a population of more than 200,000 shall designate one or more judges to develop expertise in this division and related land use and environmental laws, so that those judges will be available to hear, and quickly resolve, actions or proceedings brought pursuant to Sections 21167, 21168, and 21168.5.

(c) In an action or proceeding filed pursuant to this chapter that is joined with any other cause of action, the court, upon a motion by any party, may grant severance of the actions. In determining whether to grant severance, the court shall consider such matters as judicial economy, administrative economy, and prejudice to any party.

(Amended by Stats. 2006, Ch. 538, Sec. 578. Effective January 1, 2007.)

21167.2.
  

If no action or proceeding alleging that an environmental impact report does not comply with the provisions of this division is commenced during the period prescribed in subdivision (c) of Section 21167, the environmental impact report shall be conclusively presumed to comply with the provisions of this division for purposes of its use by responsible agencies, unless the provisions of Section 21166 are applicable.

(Added by Stats. 1977, Ch. 1200.)

21167.3.
  

(a) If an action or proceeding alleging that an environmental impact report or a negative declaration does not comply with the provisions of this division is commenced during the period described in subdivision (b) or (c) of Section 21167, and if an injunction or stay is issued prohibiting the project from being carried out or approved pending final determination of the issue of such compliance, responsible agencies shall assume that the environmental impact report or the negative declaration for the project does comply with the provisions of this division and shall issue a conditional approval or disapproval of such project according to the timetable for agency action in Article 5 (commencing with Section 65950) of Chapter 4.5 of Division 1 of Title 7 of the Government Code. A conditional approval shall constitute permission to proceed with a project when and only when such action or proceeding results in a final determination that the environmental impact report or negative declaration does comply with the provisions of this division.

(b) In the event that an action or proceeding is commenced as described in subdivision (a) but no injunction or similar relief is sought and granted, responsible agencies shall assume that the environmental impact report or negative declaration for the project does comply with the provisions of this division and shall approve or disapprove the project according to the timetable for agency action in Article 5 (commencing with Section 65950) of Chapter 4.5 of Division 1 of Title 7 of the Government Code. Such approval shall constitute permission to proceed with the project at the applicant’s risk pending final determination of such action or proceeding.

(Amended by Stats. 1980, Ch. 131, Sec. 2. Effective May 28, 1980.)

21167.4.
  

(a) In any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.

(b) The petitioner shall serve a notice of the request for a hearing on all parties at the time that the petitioner files the request for a hearing.

(c) Upon the filing of a request by the petitioner for a hearing and upon application by any party, the court shall establish a briefing schedule and a hearing date. In the absence of good cause, briefing shall be completed within 90 days from the date that the request for a hearing is filed, and the hearing, to the extent feasible, shall be held within 30 days thereafter. Good cause may include, but shall not be limited to, the conduct of discovery, determination of the completeness of the record of proceedings, the complexity of the issues, and the length of the record of proceedings and the timeliness of its production. The parties may stipulate to a briefing schedule or hearing date that differs from the schedule set forth in this subdivision if the stipulation is approved by the court.

(d) This section shall become operative on January 1, 2016.

(Repealed (in Sec. 5) and added by Stats. 2010, Ch. 496, Sec. 6. (SB 1456) Effective September 29, 2010. Section operative January 1, 2016, by its own provisions.)

21167.5.
  

Proof of prior service by mail upon the public agency carrying out or approving the project of a written notice of the commencement of any action or proceeding described in Section 21167 identifying the project shall be filed concurrently with the initial pleading in such action or proceeding.

(Added by Stats. 1972, Ch. 1154.)

21167.6.
  

Notwithstanding any other law, in all actions or proceedings brought pursuant to Section 21167, except as provided in Section 21167.6.2 or those involving the Public Utilities Commission, all of the following shall apply:

(a) At the time that the action or proceeding is filed, the plaintiff or petitioner shall file a request that the respondent public agency prepare the record of proceedings relating to the subject of the action or proceeding. The request, together with the complaint or petition, shall be served personally upon the public agency not later than 10 business days from the date that the action or proceeding was filed.

(b) (1) The public agency shall prepare and certify the record of proceedings not later than 60 days from the date that the request specified in subdivision (a) was served upon the public agency. Upon certification, the public agency shall lodge a copy of the record of proceedings with the court and shall serve on the parties notice that the record of proceedings has been certified and lodged with the court. The parties shall pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court.

(2) The plaintiff or petitioner may elect to prepare the record of proceedings or the parties may agree to an alternative method of preparation of the record of proceedings, subject to certification of its accuracy by the public agency, within the time limit specified in this subdivision.

(c) The time limit established by subdivision (b) may be extended only upon the stipulation of all parties who have been properly served in the action or proceeding or upon order of the court. Extensions shall be liberally granted by the court when the size of the record of proceedings renders infeasible compliance with that time limit. There is no limit on the number of extensions that may be granted by the court, but no single extension shall exceed 60 days unless the court determines that a longer extension is in the public interest.

(d) If the public agency fails to prepare and certify the record within the time limit established in paragraph (1) of subdivision (b), or any continuances of that time limit, the plaintiff or petitioner may move for sanctions, and the court may, upon that motion, grant appropriate sanctions.

(e) The record of proceedings shall include, but is not limited to, all of the following items:

(1) All project application materials.

(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.

(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.

(4) Any transcript or minutes of the proceedings at which the decisionmaking body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decisionmaking body prior to action on the environmental documents or on the project.

(5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project.

(6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.

(7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project.

(8) Any proposed decisions or findings submitted to the decisionmaking body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons.

(9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division.

(10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.

(11) The full written record before any inferior administrative decisionmaking body whose decision was appealed to a superior administrative decisionmaking body prior to the filing of litigation.

(f) In preparing the record of proceedings, the party preparing the record shall strive to do so at reasonable cost in light of the scope of the record.

(g) The clerk of the superior court shall prepare and certify the clerk’s transcript on appeal not later than 60 days from the date that the notice designating the papers or records to be included in the clerk’s transcript was filed with the superior court, if the party or parties pay any costs or fees for the preparation of the clerk’s transcript imposed in conformance with any law or rules of court. Nothing in this subdivision precludes an election to proceed by appendix, as provided in Rule 8.124 of the California Rules of Court.

(h) Extensions of the period for the filing of any brief on appeal may be allowed only by stipulation of the parties or by order of the court for good cause shown. Extensions for the filing of a brief on appeal shall be limited to one 30-day extension for the preparation of an opening brief and one 30-day extension for the preparation of a responding brief, except that the court may grant a longer extension or additional extensions if it determines that there is a substantial likelihood of settlement that would avoid the necessity of completing the appeal.

(i) At the completion of the filing of briefs on appeal, the appellant shall notify the court of the completion of the filing of briefs, whereupon the clerk of the reviewing court shall set the appeal for hearing on the first available calendar date.

(Amended by Stats. 2016, Ch. 476, Sec. 4. (SB 122) Effective January 1, 2017.)

21167.6.2.
  

(a) (1) Notwithstanding Section 21167.6, upon the written request of a project applicant received no later than 30 days after the date that the lead agency makes a determination pursuant to subdivision (a) of Section 21080.1, Section 21094.5, or Chapter 4.2 (commencing with Section 21155) and with the consent of the lead agency as provided in subdivision (e), the lead agency shall prepare and certify the record of proceedings 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 Web site maintained by the lead agency commencing with the date of the release of the draft environmental document for the project. If the lead agency cannot maintain an Internet Web site with the information required pursuant to this section, the lead agency shall provide a link on the agency’s Internet Web site to that information.

(C) The lead agency shall make available to the public in a readily accessible electronic format the draft environmental document for the project, and all other documents submitted to, cited by, or relied on by the lead agency, in the preparation of the draft environmental document for the project.

(D) A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental document for the project that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within 5 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 5 business days of its receipt.

(F) Within 7 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) The lead agency shall certify the record of proceedings within 30 days after the filing of the notice required pursuant to Section 21108 or 21152.

(2) This subdivision does not require the disclosure or posting of any trade secret as defined in Section 6254.7 of the Government Code, information about the location of archaeological sites or sacred lands, or any other information that is subject to the disclosure restrictions of Section 6254 of the Government Code.

(b) Any dispute regarding the record of proceedings prepared pursuant to this section shall be resolved by the court in an action or proceeding brought pursuant to subdivision (b) or (c) of Section 21167.

(c) The content of the record of proceedings shall be as specified in subdivision (e) of Section 21167.6.

(d) The negative declaration, mitigated negative declaration, draft and final environmental impact report, or other environmental document shall include a notice in no less than 12-point type stating the following:


“THIS DOCUMENT IS SUBJECT TO SECTION 21167.6.2 OF THE PUBLIC RESOURCES CODE, WHICH REQUIRES THE RECORD OF PROCEEDINGS FOR THIS PROJECT TO BE PREPARED CONCURRENTLY WITH THE ADMINISTRATIVE PROCESS; DOCUMENTS PREPARED BY, OR SUBMITTED TO, THE LEAD AGENCY TO BE POSTED ON THE LEAD AGENCY’S INTERNET WEB SITE; AND THE LEAD AGENCY TO ENCOURAGE WRITTEN COMMENTS ON THE PROJECT TO BE SUBMITTED TO THE LEAD AGENCY IN A READILY ACCESSIBLE ELECTRONIC FORMAT.”


(e) (1) The lead agency shall respond to a request by the project applicant within 10 business days from the date that the request pursuant to subdivision (a) is received by the lead agency.

(2) A project applicant and the lead agency may mutually agree, in writing, to extend the time period for the lead agency to respond pursuant to paragraph (1), but they shall not extend that period beyond the commencement of the public review period for the proposed negative declaration, mitigated negative declaration, draft environmental impact report, or other environmental document.

(3) The request to prepare a record of proceedings pursuant to this section shall be deemed denied if the lead agency fails to respond within 10 business days of receiving the request or within the time period agreed upon pursuant to paragraph (2), whichever ends later.

(f) The written request of the applicant submitted pursuant to subdivision (a) shall include an agreement to pay all of the lead agency’s costs of preparing and certifying the record of proceedings pursuant to this section and complying with the requirements of this section, in a manner specified by the lead agency.

(g) The costs of preparing the record of proceedings pursuant to this section and complying with the requirements of this section are not recoverable costs pursuant to Section 1032 of the Code of Civil Procedure.

(h) Pursuant to subdivision (f) and Section 21089, the lead agency may charge and collect a reasonable fee from the person making the request pursuant to subdivision (a) to recover the costs incurred by the lead agency in preparing the record of proceedings pursuant to this section.

(Added by Stats. 2016, Ch. 476, Sec. 5. (SB 122) Effective January 1, 2017.)

21167.6.5.
  

(a) The petitioner or plaintiff shall name, as a real party in interest, the person or persons identified by the public agency in its notice filed pursuant to subdivision (a) or (b) of Section 21108 or Section 21152 or, if no notice is filed, the person or persons in subdivision (b) or (c) of Section 21065, as reflected in the agency’s record of proceedings for the project that is the subject of an action or proceeding brought pursuant to Section 21167, 21168, or 21168.5, and shall serve the petition or complaint on that real party in interest, by personal service, mail, facsimile, or any other method permitted by law, not later than 20 business days following service of the petition or complaint on the public agency.

(b) The public agency shall provide the petitioner or plaintiff, not later than 10 business days following service of the petition or complaint on the public agency, with a list of responsible agencies and a public agency having jurisdiction over a natural resource affected by the project.

(c) The petitioner or plaintiff shall provide the responsible agencies, and a public agency having jurisdiction over a natural resource affected by the project, with notice of the action or proceeding within 15 days of receipt of the list described in subdivision (b).

(d) Failure to name potential persons, other than those real parties in interest described in subdivision (a), is not grounds for dismissal pursuant to Section 389 of the Code of Civil Procedure.

(e) This section is not intended to affect an existing right of a party to intervene in the action.

(Amended by Stats. 2012, Ch. 162, Sec. 151. (SB 1171) Effective January 1, 2013.)

21167.7.
  

Every person who brings an action pursuant to Section 21167 shall comply with the requirements of Section 388 of the Code of Civil Procedure. Every such person shall also furnish pursuant to Section 388 of the Code of Civil Procedure a copy of any amended or supplemental pleading filed by such person in such action to the Attorney General. No relief, temporary or permanent, shall be granted until a copy of the pleading has been furnished to the Attorney General in accordance with such requirements.

(Amended by Stats. 2002, Ch. 664, Sec. 183.5. Effective January 1, 2003.)

21167.8.
  

(a) Not later than 20 days from the date of service upon a public agency of a petition or complaint brought pursuant to Section 21167, the public agency shall file with the court a notice setting forth the time and place at which all parties shall meet and attempt to settle the litigation. The meeting shall be scheduled and held not later than 45 days from the date of service of the petition or complaint upon the public agency. The notice of the settlement meeting shall be served by mail upon the counsel for each party. If the public agency does not know the identity of counsel for any party, the notice shall be served by mail upon the party for whom counsel is not known.

(b) At the time and place specified in the notice filed with the court, the parties shall meet and confer regarding anticipated issues to be raised in the litigation and shall attempt in good faith to settle the litigation and the dispute which forms the basis of the litigation. The settlement meeting discussions shall be comprehensive in nature and shall focus on the legal issues raised by the parties concerning the project that is the subject of the litigation.

(c) The settlement meeting may be continued from time to time without postponing or otherwise delaying other applicable time limits in the litigation. The settlement meeting is intended to be conducted concurrently with any judicial proceedings.

(d) If the litigation is not settled, the court, in its discretion, may, or at the request of any party, shall, schedule a further settlement conference before a judge of the superior court. If the petition or complaint is later heard on its merits, the judge hearing the matter shall not be the same judge conducting the settlement conference, except in counties that have only one judge of the superior court.

(e) The failure of any party, who was notified pursuant to subdivision (a), to participate in the litigation settlement process, without good cause, may result in an imposition of sanctions by the court.

(f) Not later than 30 days from the date that notice of certification of the record of proceedings was filed and served in accordance with Section 21167.6, the petitioner or plaintiff shall file and serve on all other parties a statement of issues which the petitioner or plaintiff intends to raise in any brief or at any hearing or trial. Not later than 10 days from the date on which the respondent or real party in interest has been served with the statement of issues from the petitioner or plaintiff, each respondent and real party in interest shall file and serve on all other parties a statement of issues which that party intends to raise in any brief or at any hearing or trial.

(g) This section shall become operative on January 1, 2016.

(Repealed (in Sec. 7) and added by Stats. 2010, Ch. 496, Sec. 8. (SB 1456) Effective September 29, 2010. Section operative January 1, 2016, by its own provisions.)

21167.9.
  

Any action brought in the superior court relating to this division may be subject to a mediation proceeding conducted pursuant to Chapter 9.3 (commencing with Section 66030) of Division 1 of Title 7 of the Government Code.

(Added by Stats. 2010, Ch. 699, Sec. 36. (SB 894) Effective January 1, 2011.)

21168.
  

Any action or proceeding to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure.

In any such action, the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record.

(Amended by Stats. 1976, Ch. 1312.)

21168.5.
  

In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.

(Amended by Stats. 1976, Ch. 1312.)

21168.6.
  

In any action or proceeding under Sections 21168 or 21168.5 against the Public Utilities Commission the writ of mandate shall lie only from the Supreme Court to such commission.

(Added by Stats. 1972, Ch. 1154.)

21168.6.5.
  

(a) For the purposes of this section, the following definitions shall apply:

(1) “Applicant” means a private entity or its affiliates that proposes the project and its successors, heirs, and assignees.

(2) “Initial project approval” means any actions, activities, ordinances, resolutions, agreements, approvals, determinations, findings, or decisions taken, adopted, or approved by the lead agency required to allow the applicant to commence the construction of the project, as determined by the lead agency.

(3) “Project” means a project that substantially conforms to the project description for the Convention Center Modernization and Farmers Field Project set forth in the notice of preparation released by the City of Los Angeles on March 17, 2011.

(4) “Stadium” means, except as the context indicates otherwise, the stadium built pursuant to the project for football and other spectator events.

(5) “Subsequent project approval” means any actions, activities, ordinances, resolutions, agreements, approvals, determinations, findings, or decisions by the lead agency required for, or in furtherance of, the project that are taken, adopted, or approved following the initial project approvals until the project obtains certificates of occupancy.

(6) “Trip ratio” means the total annual number of private automobiles arriving at the stadium for spectator events divided by the total annual number of spectators at the events.

(b) (1) This section does not apply to the project and shall become inoperative on the date of the release of the draft environmental impact report and is repealed on January 1 of the following year, if the applicant fails to notify the lead agency prior to the release of the draft environmental impact report for public comment that the applicant is electing to proceed pursuant to this section.

(2) The lead agency shall notify the Secretary of State if the applicant fails to notify the lead agency of its election to proceed pursuant to this section.

(c) (1) (A) Notwithstanding any other law, the procedures set forth in subdivision (d) shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification of the environmental impact report for the project or the granting of any initial project approvals.

(B) Notwithstanding any other law, the procedures set forth in subdivision (j) shall apply to any action or proceeding brought to attack, review, set aside, void, or annul any subsequent project approvals.

(2) Notwithstanding any other law, the procedure set forth in subdivision (f) shall apply to the certification of the environmental impact report for the project and to any initial project approvals.

(d) (1) An action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency certifying the environmental impact report or granting one or more initial project approvals shall be commenced by filing a petition for a writ of mandate with the Second District Court of Appeal and shall be served on the respondent and the real party in interest within 30 days of the filing by the lead agency of the notice required by subdivision (a) of Section 21152.

(2) The petitioner shall file and serve the opening brief in support of the petition for writ of mandate within 40 days of the filing of the petition for a writ of mandate.

(3) The respondent and real party in interest shall file and serve any brief in opposition to the petition for writ of mandate within 25 days of the filing of the opening brief.

(4) The petitioner shall file and serve the reply brief within 20 days of the filing of the last opposition brief to the petitioner’s opening brief.

(5) Except as provided in paragraph (6), parties to the action shall comply with all applicable California Rules of Court in the filing of the petition for writ of mandate and the briefs.

(6) (A) Rule 8.220 of the California Rules of Court shall not apply to the time periods set forth in paragraphs (2) to (4), inclusive.

(B) If a petitioner fails to file the opening brief pursuant to paragraph (2), the Court of Appeal shall dismiss the petition.

(C) If the respondents and real party in interest fail to file the brief in opposition pursuant to paragraph (3), the Court of Appeal shall decide the petition for writ of mandate based on the record, the opening brief, and any oral argument by the petitioner.

(7) Except upon a showing of extraordinary good cause, the Court of Appeal shall not grant any extensions of time to the deadlines specified in this subdivision. Any extension shall be limited to the minimum amount the Court of Appeal deems to be necessary.

(8) The Court of Appeal may, on its motion or upon request from a party, appoint a special master to assist the Court of Appeal in conducting the expedited judicial review required pursuant to this subdivision. If the Court of Appeal appoints a special master, the applicant shall pay all reasonable costs for the special master, not to exceed one hundred fifty thousand dollars ($150,000). If the Court of Appeal determines that the cost of the special master may exceed one hundred fifty thousand dollars ($150,000), it may request that additional funds be provided by the applicant and, if the applicant agrees to provide the funding, shall use the funds to pay the additional costs of the special master.

(9) The Court of Appeal shall hold a hearing and issue a decision on all petitions for writ of mandate filed pursuant to this subdivision within 60 days of the filing of the last timely reply brief.

(10) (A) A petition for review of the decision rendered by the Court of Appeal shall be filed with the Supreme Court and served on all parties to the petition for writ of mandate within 15 days of the decision.

(B) Any opposition to the petition for review shall be filed and served within 15 days of the filing of the petition for review.

(C) The Supreme Court shall render a decision on the petition for review within 30 days after the filing of the petition for review or within 15 days after the filing of the opposition to the petition for review, whichever is earlier.

(11) All briefs and notices filed pursuant to this subdivision shall be electronically served on parties pursuant to Rule 8.71 of the California Rules of Court. Each party to the petition shall provide an electronic service address at which the party agrees to accept the service.

(12) (A) No provision of law that is inconsistent or conflicts with this subdivision shall apply to a petition for a writ of mandate subject to this subdivision, including, but not limited to, any of the following:

(i) Section 21167.4.

(ii) Subdivisions (a) through (d), inclusive, and (g) through (i), inclusive, of Section 21167.6.

(iii) Subdivision (f) of Section 21167.8.

(iv) Section 21167.6.5.

(v) Sections 66031 through 66035, inclusive, of the Government Code.

(B) Except as provided in this section, including subparagraph (A), the requirements of this division are fully applicable to the project.

(e) (1) The draft and final environmental impact report shall include a notice in not less than 12-point type stating the following:


THIS EIR IS SUBJECT TO SECTION 21168.6.5 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 FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 21168.6.5 OF THE PUBLIC RESOURCES CODE AND MUST BE FILED WITH THE SECOND DISTRICT COURT OF APPEAL. A COPY OF SECTION 21168.6.5 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.


(2) The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.

(f) (1) Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that report.

(2) 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 impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.

(3) (A) Within five days following the close of the public comment period, a commenter on the draft environmental impact report 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 impact report 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 a petition for writ of mandate challenging the lead agency’s decision to certify the environmental impact report or to grant one or more initial project approvals.

(4) 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 impact report, 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, where the lead agency releases those documents subsequent to the release of the draft environmental impact report.

(E) New information that was not reasonably known and could not have been reasonably known during the public comment period.

(5) (A) The lead agency shall file the notice required by subdivision (a) of Section 21152 within five days after the last initial project approval.

(B) If the notice required by subdivision (a) of Section 21152 is filed after June 1, 2013, this section shall become inoperative as of June 1, 2013, and is repealed as of January 1, 2014.

(C) In the event this section is repealed pursuant to subparagraph (B), the lead agency shall notify the Secretary of State.

(g) (1) For a petition for writ of mandate filed pursuant to this section, 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 the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report 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) The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any such comment available to the public in a readily accessible electronic format within five days of its receipt.

(4) 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.

(5) The lead agency shall indicate in the record of the proceedings comments received that were not considered by the lead agency pursuant to paragraph (4) of subdivision (f) and need not include the content of the comments as a part of the record.

(6) 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 for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.

(7) Within 10 days after being served with a petition for a writ of mandate pursuant to paragraph (1) of subdivision (d), the lead agency shall lodge a copy of the certified record of proceedings with the Court of Appeal.

(8) Any dispute over the content of the record of the proceedings shall be resolved by the Court of Appeal. Unless the Court of Appeal 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.

(9) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.

(h) It is the intent of the Legislature that the project minimize traffic congestion and air quality impacts that may result from private automobile trips to the stadium through the requirements of this division as supplemented, pursuant to subdivision (i), by the implementation of measures that will do both of the following:

(1) Achieve and maintain carbon neutrality by reducing to zero the net emissions of greenhouse gases, as defined in subdivision (g) of Section 38505 of the Health and Safety Code, from private automobile trips to the stadium.

(2) Achieve and maintain a trip ratio that is no more than 90 percent of the trip ratio at any other stadium serving a team in the National Football League.

(i) (1) As a condition of approval of the project subject to this section, the lead agency shall require the applicant to implement measures that will meet the requirements of this division and paragraph (1) of subdivision (h) by the end of the first season during which a National Football League team has played at the stadium. To maximize public health, environmental, and employment benefits, the lead agency shall place the highest priority on feasible measures that will reduce greenhouse gas emissions on the stadium site and in the neighboring communities of the stadium. Offset credits shall be employed by the applicant only after feasible local emission reduction measures have been implemented. The applicant shall, to the extent feasible, place the highest priority on the purchase of offset credits that produce emission reductions within the city or the boundaries of the South Coast Air Quality Management District.

(2) To ensure that the stadium achieves a trip ratio that is no more than 90 percent of the trip ratio at any other stadium serving a team in the National Football League, the applicant shall implement the necessary measures as follows:

(A) Not later than the date of the certification of the environmental impact report for the project, the lead agency shall develop and adopt a protocol to implement this subdivision pursuant to this division and subdivision (h), including, but not limited to, criteria and guidelines that will be used to determine the trip ratio.

(B) Following the conclusion of the second, third, fourth, and fifth seasons during which a National Football League team has played at the stadium, the applicant shall prepare a report to the lead agency that describes the measures it has undertaken to reduce trips based on the protocol developed and adopted pursuant to subparagraph (A), the trip ratio at the stadium, and the results of those measures. The report shall also include a summary of publicly available data and other data gathered by the applicant regarding average vehicle ridership, nonpassenger automobile modes of arrival, and trip reduction measures undertaken at other stadiums serving a team in the National Football League.

(C) Following the lead agency’s review of the report submitted following the fourth season, the lead agency shall determine whether adequate data is available to determine whether the trip ratio at stadium events is more than 90 percent of the trip ratio at any other stadiums serving a National Football League team. If the lead agency concludes that adequate data does not exist, the lead agency shall take necessary steps to collect, or cause to be collected, the data reasonably necessary to make the determination. The applicant shall pay the reasonable costs of collecting the data pursuant to subdivision (a) of Section 21089.

(D) Following the lead agency’s review of the report submitted following the fifth season, the lead agency shall determine the trip ratio at stadium events and the lowest trip ratio at any other stadium serving a National Football League team. If the trip ratio at the stadium is more than 90 percent of the trip ratio at the other stadium with the lowest trip ratio, the lead agency shall, within six months following the receipt of the report, require the applicant to implement additional feasible measures that the lead agency determines pursuant to subparagraph (E) will be sufficient for the stadium to achieve the target specified in paragraph (2) of subdivision (h).

(E) Any trip reduction measure used at other stadiums serving a National Football League team shall be presumed to be feasible unless a preponderance of the evidence demonstrates that the measure is infeasible. The lead agency’s decision whether to adopt any mitigation measures pursuant to subparagraph (D) other than those used at another stadium serving a National Football League team shall be governed by the substantial evidence test. This subparagraph does not require the applicant to bear the cost of improving the capacity or performance of transit facilities other than the following:

(i) Temporarily expanding the capacity of a public transit line, as needed, to serve stadium events.

(ii) Providing private charter buses or other similar services, as needed, to serve stadium events.

(iii) Paying its fair share of the cost of measures that expand the capacity of a public fixed or light rail station that is used by spectators attending stadium events.

(F) Any action or proceeding to attack, review, set aside, void, or annul a determination, finding, or decision of the lead agency regarding the additional mitigation measures pursuant to subparagraph (D) shall be commenced within 30 days following the lead agency’s filing of the notice required by subdivision (a) of Section 21152 and shall be governed by this division. The procedures set forth in subdivision (d) shall not apply to that action or proceeding. Notwithstanding any other law, compliance or noncompliance with this paragraph shall not result in the stadium being required to cease or limit operations.

(G) If the lead agency requires the applicant to implement additional measures pursuant to subparagraph (D), the applicant shall submit the report described in subparagraph (B) to the lead agency following the conclusion of each subsequent season until the lead agency determines that the applicant has achieved a trip ratio at the stadium that is not more than 90 percent of the trip ratio at any other stadium serving a National Football League team for two consecutive seasons or until the applicant submits the required report following the conclusion of the 10th season, whichever occurs earlier. Nothing in this subparagraph affects the ongoing obligations of the applicant pursuant to subdivision (h) and this subdivision.

(H) All obligations of the applicant set forth in this subdivision or imposed upon the applicant by the lead agency pursuant to this subdivision shall run with the land.

(3) This subdivision and subdivision (h) shall not serve as a basis for any action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency in certifying the environmental impact report for the project or in granting the initial or subsequent project approvals.

(4) The obligations imposed pursuant to this subdivision and subdivision (h) supplement, and do not replace, mitigation measures otherwise imposed on the project pursuant to this division.

(j) (1) An action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency granting a subsequent project approval shall be subject to the requirements of Chapter 6 (commencing with Section 21165).

(2) (A) In granting relief in an action or proceeding brought pursuant to this subdivision, the court shall not stay or enjoin the construction or operation of the 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.

(B) If the court finds that clause (i) or (ii) is satisfied, the court shall only enjoin those specific project activities 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.

(k) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(Added by Stats. 2011, Ch. 353, Sec. 2. (SB 292) Effective January 1, 2012. Conditionally inoperative as prescribed in either subd. (b) or subd. (f) (para. (5)). Repealed, by its own provisions, on January 1 following earliest inoperative date.)

21168.6.6.
  

(a) For the purposes of this section, the following definitions shall have the following meanings:

(1) “Applicant” means a private entity or its affiliates that proposes the project and its successors, heirs, and assignees.

(2) “City” means the City of Sacramento.

(3) “Downtown arena” means the following components of the entertainment and sports center project from demolition and site preparation through operation:

(A) An arena facility that will become the new home to the City of Sacramento’s National Basketball Association (NBA) team that does both of the following:

(i) Receives Leadership in Energy and Environmental Design (LEED) gold certification for new construction within one year of completion of the first NBA season.

(ii) Minimizes operational traffic congestion and air quality impacts through either or both project design and the implementation of feasible mitigation measures that will do all of the following:

(I) Achieve and maintain carbon neutrality or better by reducing to at least zero the net emissions of greenhouse gases, as defined in subdivision (g) of Section 38505 of the Health and Safety Code, from private automobile trips to the downtown arena as compared to the baseline as verified by the Sacramento Metropolitan Air Quality Management District.

(II) Achieve a per attendee reduction in greenhouse gas emissions from automobiles and light trucks compared to per attendee greenhouse gas emissions associated with the existing arena during the 2012–13 NBA season that will exceed the carbon reduction targets for 2020 and 2035 achieved in the sustainable communities strategy prepared by the Sacramento Area Council of Governments for the Sacramento region pursuant to Chapter 728 of the Statutes of 2008.

(III) Achieve and maintain vehicle-miles-traveled per attendee for NBA events at the downtown arena that is no more than 85 percent of the baseline.

(B) Associated public spaces.

(C) Facilities and infrastructure for ingress, egress, and use of the arena facility.

(4) “Entertainment and sports center project” or “project” means a project that substantially conforms to the project description for the entertainment and sports center project set forth in the notice of preparation released by the City of Sacramento on April 12, 2013.

(b) (1) The city may prosecute an eminent domain action for 545 and 600 K Street, Sacramento, California, and surrounding publicly accessible areas and rights-of-way within 200 feet of 600 K Street, Sacramento, California, through order of possession pursuant to the Eminent Domain Law (Title 7 (commencing with Section 1230.010) of Part 3 of the Code of Civil Procedure) prior to completing the environmental review under this division.

(2) Paragraph (1) shall not apply to any other eminent domain actions prosecuted by the City of Sacramento or to eminent domain actions based on a finding of blight.

(c) Notwithstanding any other law, the procedures established pursuant to subdivision (d) shall apply to an action or proceeding brought to attack, review, set aside, void, or annul the certification of the environmental impact report for the project or the granting of any project approvals.

(d) On or before July 1, 2014, 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 of the environmental impact report for the project 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 certification of the record of proceedings pursuant to subdivision (f).

(e) (1) The draft and final environmental impact report shall include a notice in not less than 12-point type stating the following:


THIS EIR IS SUBJECT TO SECTION 21168.6.6 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 FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 21168.6.6 OF THE PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.6 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.


(2) The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.

(3) Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that report.

(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 impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.

(5) (A) Within five days following the close of the public comment period, a commenter on the draft environmental impact report 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 impact report 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 the environmental impact report or to grant one or more initial project approvals.

(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 impact report, 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, where the lead agency releases those documents subsequent to the release of the draft environmental impact report.

(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.

(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 impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report 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 these documents available in an electronic format no later than the date of the release of the draft environmental impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index must 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 comment available to the public in a readily accessible electronic format within five days of its 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.

(g) (1)   As a condition of approval of the project subject to this section, the lead agency shall require the applicant, with respect to any measures specific to the operation of the downtown arena, to implement those measures that will meet the requirements of this division by the end of the first NBA regular season or June of the first NBA regular season, whichever is later, during which an NBA team has played at the downtown arena.

(2) To maximize public health, environmental, and employment benefits, the lead agency shall place the highest priority on feasible measures that will reduce greenhouse gas emissions on the downtown arena site and in the neighboring communities of the downtown arena. Mitigation measures that shall be considered and implemented, if feasible and necessary, to achieve the standards set forth in subclauses (I) to (III), inclusive, of clause (ii) of subparagraph (A) of paragraph (3) of subdivision (a), including, but not limited to:

(A) Temporarily expanding the capacity of a public transit line, as needed, to serve downtown arena events.

(B) Providing private charter buses or other similar services, as needed, to serve downtown arena events.

(C) Paying its fair share of the cost of measures that expand the capacity of a public fixed or light rail station that is used by spectators attending downtown arena events.

(3) Offset credits shall be employed by the applicant only after feasible local emission reduction measures have been implemented. The applicant shall, to the extent feasible, place the highest priority on the purchase of offset credits that produce emission reductions within the city or the boundaries of the Sacramento Metropolitan Air Quality Management District.

(h) (1) (A) In granting relief in an action or proceeding brought pursuant to this section, the court shall not stay or enjoin the construction or operation of the downtown arena unless the court finds either of the following:

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

(ii) The downtown arena 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 downtown arena unless the court stays or enjoins the construction or operation of the downtown arena.

(B) If the court finds that clause (i) or (ii) is satisfied, the court shall only enjoin those specific activities associated with the downtown arena 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)    An action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency granting a subsequent project approval shall be subject to the requirements of Chapter 6 (commencing with Section 21165).

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

(i) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(j) (1) This section does not apply to the project and shall become inoperative on the date of the release of the draft environmental impact report and is repealed on January 1 of the following year, if the applicant fails to notify the lead agency prior to the release of the draft environmental impact report for public comment that the applicant is electing to proceed pursuant to this section.

(2) The lead agency shall notify the Secretary of State if the applicant fails to notify the lead agency of its election to proceed pursuant to this section.

(Added by Stats. 2013, Ch. 386, Sec. 7. (SB 743) Effective January 1, 2014. Conditionally inoperative as provided in subd. (j). Repealed, by its own provisions, on January 1 following inoperative date.)

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) “City of Oakland’s Bird Safety Measures” means bird safe ordinance guidelines added in June 2013 by City of Oakland’s planning staff to the city’s standard building permit requirements to reduce bird collisions and other negative impacts to wildlife.

(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, 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 receives Leadership in Energy and Environmental Design (LEED) Gold certification for new construction within one year after completion of the first baseball season and each new nonresidential building receives LEED Gold certification for new construction within one year after completion of the applicable nonresidential building. Any residential building shall achieve sustainability standards of at least a LEED Gold level or the comparable GreenPoint rating, including meeting sustainability standards for access to quality transit.

(ii) The project 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. To maximize public health, environmental, and employment benefits, the lead agency shall require measures that will reduce the emissions of greenhouse gases in the project area and in the neighboring communities of the baseball park. Not less than 50 percent of the greenhouse gas emissions reductions necessary to achieve the requirements of this clause, excluding the greenhouse gas emissions from residential uses of the project, shall be from local, direct greenhouse gas emissions reduction measures that give consideration to criteria air pollutant and toxic air contaminant emissions reductions, including, but not limited to, any of the following:

(I) Project design features or onsite reduction measures, or both design features and onsite reduction measures.

(II) Off-site reduction measures in the neighboring communities.

The applicant may obtain offset credits for up to 50 percent of the greenhouse gas emissions reductions necessary to achieve the requirement of this clause. The applicant shall, to the extent feasible, place the highest priority on the purchase of offset credits that produce emission reductions within the City of Oakland or the boundaries of the Bay Area Air Quality Management District. Any offset credits shall be verified by a third party accredited by the State Air Resources Board. In no event shall offset credits be used from a project located outside the United States.

(iii)   The project has a transportation management plan or transportation demand management program, or both, that achieves a 20-percent reduction in the number of vehicle trips collectively by attendees, employees, visitors, and customers as compared to operations absent the transportation management plan or transportation demand management program, or both that plan and program. The plan or program for the baseball park shall achieve the 20-percent reduction within one-year after the completion of the first baseball season. The plan or program for the nonbaseball-park portion of the project shall achieve the 20-percent reduction within one year after the completion of that portion. The transportation management plan or transportation demand program shall include a menu of options designed to reduce the number of vehicle trips, including temporarily expanding the capacity of a public transit line, as appropriate, to serve the baseball park events, and participation in a transportation management association that will determine a range of services and programs designed to meet the 20-percent reduction, including providing incentives for transit usage and carpools, bicycle parking and support, signage, and real-time transit information.

(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.

(v) The project is subject to a comprehensive package of community benefits approved by the Port of Oakland or City Council of the City of Oakland, as applicable, which may include local employment and job training programs, local business and small business policies, public access and open space, affordable housing, transportation infrastructure, increased frequency of public transit, and transit accessibility and sustainable and healthy development measures for the surrounding community.

(B) Associated public spaces.

(C) Facilities and infrastructure for ingress, egress, and use of the baseball park and mixed-use development.

(b) As a condition of approval of the project, the lead agency shall require the applicant, with respect to any measures specific to the operation of the baseball park, to implement measures that will meet the requirements of this division by the end of the first baseball season.

(c) 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 impact report for the project that is certified pursuant to subdivision (d) 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 September 1, 2019, the Judicial Council shall amend the California Rules of Court, as necessary, to implement this subdivision.

(d) 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 demonstrates compliance with clauses (i) to (iii), inclusive, of subparagraph (A) of paragraph (3) of subdivision (a) and mitigation measures, to the extent feasible, to reduce any additional greenhouse gas emissions from the project, including greenhouse gas emissions from employee transportation.

(4) The project applicant demonstrates compliance with the requirements of Chapter 12.8 (commencing with Section 42649) and Chapter 12.9 (commencing with Section 42649.8) of Part 3 of Division 30, as applicable.

(5) The project applicant has entered into a binding and enforceable agreement that all mitigation measures required pursuant to this division and any other environmental measures required by this section to certify the project under this chapter shall be conditions of approval of the project, and those conditions will be fully enforceable by the lead agency or another agency designated by the lead agency. In the case of environmental mitigation measures and any other environmental measures required by this section, 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.

(6) The project applicant agrees to pay for any additional costs incurred by the courts in hearing and deciding any case brought pursuant to this 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.

(7) 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.

(8) Project design and implementation will comply with the City of Oakland’s Bird Safety Measures, adopted in 2013. Nighttime programming will apply best management practice strategies to avoid and reduce potential collision hazards for migratory and resident birds, to the extent feasible.

(9) The project meets the requirements of clauses (iv) and (v) of subparagraph (A) of paragraph (3) of subdivision (a).

(e) (1) Prior to certifying the project, the Governor shall make a determination that each of the conditions specified in subdivision (d) has been met. These findings are not subject to judicial review.

(2) The guidelines issued pursuant to Chapter 6.5 (commencing with Section 21178) apply to the implementation of this section, to the extent those guidelines are applicable and do not conflict with specific requirements of this section.

(f) (1) The draft and final environmental impact report shall include a notice in not less than 12-point type stating the following:


THIS ENVIRONMENTAL IMPACT REPORT 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 IMPACT REPORT. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OR ADOPTION OF THE ENVIRONMENTAL IMPACT REPORT 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 IMPACT REPORT.


(2) The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.

(3) Within 10 days after the release of the draft environmental impact report, 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 impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.

(5) (A) Within five days following the close of the public comment period, a commenter on the draft environmental impact report 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 impact report 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 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 impact report, 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 impact report.

(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.

(g) (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 impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report 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 impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. 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 (f) 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.

(Added by Stats. 2018, Ch. 959, Sec. 2. (AB 734) Effective January 1, 2019.)

21168.6.8.
  

(a) For the purposes of this section, the following definitions apply:

(1) “Applicant” means a private or public entity or its affiliates that proposes to implement and operate all or any portion of the project and its successors, heirs, and assignees.

(2) “Arena” means an 18,000 to 20,000 seat arena built as part of the project for National Basketball Association (NBA) basketball games and other spectator events.

(3) “Project” means a project located within the project area consisting of the arena plus practice and athletic training facility, and related parking and access, infrastructure construction or relocation, and landscaping, up to approximately 75,000 square feet of associated office space, up to approximately 30,000 square feet of sports medicine clinic space, up to approximately 70,000 square feet of ancillary retail, restaurant, community space, and similar uses, and a hotel, provided that the project meets all of the following:

(A) Receives Leadership in Energy and Environmental Design (LEED) gold certification for new construction within one year of the completion of the first NBA season.

(B) (i) Requires a transportation demand management program that, upon full implementation, will achieve and maintain a 15-percent reduction in the number of vehicle trips, collectively, by attendees, employees, visitors, and customers as compared to operations absent the transportation demand management program.

(ii) To accelerate and maximize vehicle trip reduction, each measure in the transportation demand management program shall be implemented as soon as feasible, so that no less than a 7.5-percent reduction in vehicle trips is achieved and maintained by the end of the first NBA season during which an NBA team has played at the arena.

(iii) A 15-percent reduction in vehicle trips shall be achieved and maintained as soon as feasible, but not later than January 1, 2030. The applicant shall verify achievement to the lead agency and the Office of Planning and Research.

(iv) If the applicant fails to verify achievement of the reduction required by clause (iii), the lead agency shall impose additional feasible measures to reduce vehicle trips by 17 percent, or, if there is a rail transit line with a stop within one-quarter mile of the arena, 20 percent, by January 1, 2035.

(C) Is located on an infill site.

(D) Is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy for which the State Air Resources Board, pursuant to subparagraph (H) of paragraph (2) of subdivision (b) of Section 65080 of the Government Code, has accepted a metropolitan planning organization’s determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emission reduction targets.

(4) “Project approval” means any action, activity, ordinance, resolution, agreement, approval, determination, finding, or decision taken, adopted, or approved by the lead agency required to allow the applicant to commence the construction of the project, as determined by the lead agency.

(5) “Project area” means real property in the City of Inglewood consisting of approximately 35 acres, including without limitation areas generally described as follows:

(A) Assessor identification numbers 4032-001-005, 4032-001-006, 4032-001-033, 4032-001-035, 4032-001-039, 4032-001-048, 4032-001-049, 4032-001-900 to 4032-001-913, inclusive, 4032-002-913 to 4032-002-917, inclusive, 4032-003-912, 4032-003-914, 4032-003-915, 4032-004-913, 4032-004-914, 4032-007-035, 4032-007-900 to 4032-007-905, inclusive, 4032-008-001, 4032-008-002, 4032-008-006, 4032-008-034, 4032-008-035, 4032-008-900 to 4032-008-905, inclusive, 4032-008-907, 4032-008-908, 4034-004-026, 4034-004-900 to 4034-004-913, inclusive, and 4034-005-900 to 4034-005-912, inclusive.

(B)  West 101st Street from its intersection with South Prairie Avenue westerly to a line approximately 488 feet west of the western boundary of South Prairie Avenue, and West 102nd Street from its intersection with South Prairie Avenue easterly to a line approximately 883 feet east of the eastern boundary of South Prairie Avenue.

(C) Adjacent areas or air space to be used for access.

(6) “Transportation demand management program” means a specific program of strategies, incentives, and tools to be implemented, with specific annual status reporting obligations in accordance with paragraph (5) of subdivision (b), to reduce vehicle trips by providing opportunities for event attendees and employees to choose sustainable travel options such as transit, bicycle riding, or walking. A specific program of strategies, incentives, and tools includes, but is not limited to, the following:

(A) Provision of shuttles, charter buses, or similar services from a major transit stop to serve arena events.

(B) Provision of onsite electric vehicle charging stations in excess of applicable requirements.

(C) Provision of dedicated parking for car-share or zero-emission vehicles, or both types of vehicle, in excess of applicable requirements.

(D) Provision of bicycle parking in excess of applicable requirements.

(E) Inclusion of a transit facility with area dedicated to shuttle bus staging, ride share, bicycle parking, and other modalities intended to reduce the use of single occupant vehicles.

(b) The Governor may certify the project for streamlining pursuant to this section if all the following conditions are met:

(1) The project will result in a minimum investment of one hundred million dollars ($100,000,000) in California upon completion of construction.

(2) (A) (i) The project creates high-wage, highly skilled jobs that pay prevailing wages and living wages, employs a skilled and trained workforce, as defined in subdivision (d) of Section 2601 of the Public Contract Code, 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.

(ii) Clause (i) does not apply to a contractor or subcontractor performing the work on the project that is subject to a project labor agreement requiring the payment of prevailing wages to all construction workers employed in the execution of the project and providing for enforcement of that obligation through an arbitration procedure. For purposes of this clause, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.

(B) (i) If the project is certified pursuant to this subdivision, 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.

(ii) Except as provided in clause (iii), 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.

(iii) Clause (ii) 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 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. The State Air Resources Board is encouraged to make its determination no later than 120 calendar days after receiving an application for review of the methodology and calculations of the project’s greenhouse gas emissions.

(4) The project applicant demonstrates compliance with the requirements of Chapters 12.8 (commencing with Section 42649) and 12.9 (commencing with Section 42649.8) of Part 3 of Division 30, as applicable.

(5) The project applicant has entered into a binding and enforceable agreement that all mitigation measures required pursuant to this division and any other environmental measures required by this section to certify the project under this section shall be conditions of approval of the project, and those conditions will be fully enforceable by the lead agency or another agency designated by the lead agency. In the case of environmental mitigation measures and any other environmental measures required by this section, 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. The project applicant shall submit to the lead agency an annual status report on the implementation of the environmental mitigation measures and any other environmental measures required by this section.

(6) The project applicant agrees to pay any additional costs incurred by the courts in hearing and deciding any case subject to this 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.

(7) 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.

(c) (1) The Governor may certify the project for streamlining pursuant to this section if it complies with the conditions specified in subdivision (b).

(2) (A) Prior to certifying the project, the Governor shall make a determination that each of the conditions specified in subdivision (b) has been met. These findings are not subject to judicial review.

(B) (i) If the Governor determines that the project is eligible for streamlining pursuant to this section, he or she shall submit that determination, and any supporting information, to the Joint Legislative Budget Committee for review and concurrence or nonconcurrence.

(ii) Within 30 days of receiving the determination, the Joint Legislative Budget Committee shall concur or nonconcur in writing on the determination.

(iii) If the Joint Legislative Budget Committee fails to concur or nonconcur on a determination by the Governor within 30 days of the submittal, the project is deemed to be certified.

(3) The guidelines issued pursuant to Chapter 6.5 (commencing with Section 21178) apply for the implementation of this section to the extent the guidelines are applicable and do not conflict with specific requirements of this section, including the transportation demand management program specified in subparagraph (B) of paragraph (3) of subdivision (a).

(d) (1) Within 10 days of the Governor certifying the project pursuant to this section, the lead agency shall, at the applicant’s expense, issue a public notice in no less than 12-point type stating the following:


“THE APPLICANT HAS ELECTED TO PROCEED UNDER SECTION 21168.6.8 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 21186.6.8 OF THE PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.8 OF THE PUBLIC RESOURCES CODE IS INCLUDED BELOW

(2) The public notice shall be distributed by the lead agency as required for public notices issued pursuant to paragraph (3) of subdivision (b) of Section 21092.

(e) Notwithstanding any other law, the procedures set forth in subdivision (f) shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification of any environmental impact report for the project that is certified pursuant to this section or the granting of any project approvals.

(f) 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 of any environmental impact report for the project or granting of any project approvals to require the actions 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.

(g) Notwithstanding any other law, the preparation and certification of the record of proceedings for the certified project shall be performed in the following manner:

(1) The lead agency for the project shall prepare the record of proceedings pursuant to this division concurrently with the administrative process.

(2) All documents and other materials placed in the record of proceedings shall be posted on, and be downloadable from, an Internet Web site maintained by the lead agency commencing with the date of the release of the draft environmental impact report.

(3) The lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to, or relied on by, the lead agency in the preparation of the draft environmental impact report.

(4) A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report 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.

(5) 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.

(6) Within 14 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.

(7) Notwithstanding paragraphs (2) to (6), 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 impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index shall specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.

(8) The lead agency shall certify the final record of proceedings within five days after the filing of the notice required by subdivision (a) of Section 21152.

(9) 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.

(10) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.

(h) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(i) (1) If the lead agency fails to certify an environmental impact report for the project before January 1, 2025, this section shall become inoperative and is repealed as of that date.

(2) The lead agency shall notify the Secretary of State if it fails to certified the environmental impact report for the project before January 1, 2025.

(j) (1) As a condition of approval of the project, the lead agency shall require the applicant, with respect to any measures specific to the operation of the arena, to implement measures that will meet the requirements of this division by the end of the first NBA regular season or June of the first NBA regular season, whichever is later, during which an NBA team has played at the arena.

(2) To maximize public health, environmental, and employment benefits, the lead agency shall require measures that will reduce the emissions of greenhouse gases in the project area and in the neighboring communities of the arena.

(3) Not less than 50 percent of the greenhouse gas emissions reductions necessary to achieve the requirement of paragraph (3) of subdivision (b) shall be from local, direct greenhouse gas emissions reduction measures, including, but not limited to, any of the following:

(A) Project design features or onsite reduction measures, or both design features and onsite reduction measures, that include, but are not limited to, any of the following:

(i) Implementing project design features that enable the arena to exceed the building energy efficiency standards set forth in Part 6 of Title 24 of the California Code of Regulations, except for 50 percent of emissions reductions attributable to design features necessary to meet the LEED gold certification requirement.

(ii) Requiring a transportation demand management program to reduce single-occupancy vehicular travel and vehicle miles traveled.

(iii) Providing onsite renewable energy generation, including a solar roof on the arena with a minimum peak generation capacity of 500 kilowatts.

(iv) Providing solar-ready roofs.

(v) Providing cool roofs and “cool parking” promoting cool surface treatment for new parking facilities.

(B) Off-site reduction measures in the neighboring communities, including, but not limited to, any of the following:

(i) Temporarily expanding the capacity of a public transit line, as appropriate, to serve arena events.

(ii) Paying its fair share of the cost of measures that expand the capacity of public transit, if appropriate, that is used by spectators attending arena events.

(iii) Providing funding to an off-site mitigation project consisting of replacing buses, trolleys, or other transit vehicles with zero-emission vehicles.

(iv) Providing off-site safety or other improvements for bicycles, pedestrians, and transit connections.

(v) Providing zero-emission transit buses to serve arena events and to meet other local transit needs, including senior and public school transportation services.

(vi) Undertaking or funding building retrofits to improve the energy efficiency of existing buildings.

(4) The applicant may obtain offset credits for up to 50 percent of the greenhouse gas emissions reductions necessary to achieve the requirements of paragraph (3) of subdivision (b). The applicant shall, to the extent feasible, place the highest priority on the purchase of offset credits that produce emission reductions within the City of Inglewood or the boundaries of the South Coast Air Quality Management District. Any offset credits shall be verified by a third party accredited by the State Air Resources Board. Offset credits generated by a project located outside the United States shall not be used pursuant to this paragraph.

(k) As a condition of approval of the project, the lead agency shall require the applicant, in consultation with the South Coast Air Quality Management District, to implement measures that will achieve criteria pollutant and toxic air contaminant reductions over and above any emission reductions required by other laws or regulations in communities surrounding the project consistent with emission reduction measures that may be identified for those communities pursuant to Section 44391.2 of the Health and Safety Code.

(1) At a minimum, these measures shall achieve reductions of a minimum of 400 tons of oxides of nitrogen and 10 tons of PM2.5, as defined in Section 39047.2 of the Health and Safety Code, over 10 years following the commencement of construction of the project. Of these amounts, reductions of a minimum of 130 tons of oxides of nitrogen and 3 tons of PM2.5 shall be achieved within the first year following commencement of construction of the project. The reductions required pursuant to this paragraph are in addition to any other requirements imposed by other laws.

(2) If the project applicant can demonstrate and verify to the South Coast Air Quality Management District that it has invested at least thirty million dollars ($30,000,000) to achieve the requirements of this subdivision, the requirements of this subdivision shall be deemed met, so long as one-half of the reductions set forth in paragraph (1) are met.

(3) Greenhouse gas emissions reductions achieved pursuant to this subdivision shall count toward the applicant’s obligations under paragraph (3) of subdivision (j).

(l) This section does not apply to a project that proposes the construction of a new gambling establishment, as defined in Section 19805 of the Business and Professions Code or Section 337 of the Penal Code.

(Added by Stats. 2018, Ch. 961, Sec. 1. (AB 987) Effective January 1, 2019. Conditionally repealed on January 1, 2025, as provided in subd. (i).)

21168.7.
  

Sections 21168 and 21168.5 are declaratory of existing law with respect to the judicial review of determinations or decisions of public agencies made pursuant to this division.

(Added by Stats. 1972, Ch. 1154.)

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 order pursuant to subdivision (a) shall include only those mandates which 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 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.

(Amended by Stats. 1993, Ch. 1131, Sec. 9. Effective January 1, 1994.)

21169.
  

Any project defined in subdivision (c) of Section 21065 undertaken, carried out or approved on or before the effective date of this section and the issuance by any public agency of any lease, permit, license, certificate or other entitlement for use executed or issued on or before the effective date of this section notwithstanding a failure to comply with this division, if otherwise legal and valid, is hereby confirmed, validated and declared legally effective. Any project undertaken by a person which was supported in whole or part through contracts with one or more public agencies on or before the effective date of this section, notwithstanding a failure to comply with this division, if otherwise legal and valid, is hereby confirmed, validated and declared legally effective.

(Added by Stats. 1972, Ch. 1154.)

21170.
  

(a) Section 21169 shall not operate to confirm, validate or give legal effect to any project the legality of which was being contested in a judicial proceeding in which proceeding the pleadings, prior to the effective date of this section, alleged facts constituting a cause of action for, or raised the issue of, a violation of this division and which was pending and undetermined on the effective date of this section; provided, however, that Section 21169 shall operate to confirm, validate or give legal effect to any project to which this subdivision applies if, prior to the commencement of judicial proceedings and in good faith and in reliance upon the issuance by a public agency of any lease, permit, license, certificate or other entitlement for use, substantial construction has been performed and substantial liabilities for construction and necessary materials have been incurred.

(b) Section 21169 shall not operate to confirm, validate or give legal effect to any project which had been determined in any judicial proceeding, on or before the effective date of this section to be illegal, void or ineffective because of noncompliance with this division.

(Added by Stats. 1972, Ch. 1154.)

21171.
  

This division, except for Section 21169, shall not apply to the issuance of any lease, permit, license, certificate or other entitlement for use for any project defined in subdivision (c) of Section 21065 or to any project undertaken by a person which is supported in whole or in part through contracts with one or more public agencies until the 121st day after the effective date of this section. This section shall not apply to any project to which Section 21170 is applicable or to any successor project which is the same as, or substantially identical to, such a project.

This section shall not prohibit or prevent a public agency, prior to the 121st day after the effective date of this section, from considering environmental factors in connection with the approval or disapproval of a project and from imposing reasonable fees in connection therewith.

(Added by Stats. 1972, Ch. 1154.)

21173.
  

If any provision of this division or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this division which can be given effect without the invalid provision or application thereof, and to this end the provisions of this division are severable.

(Added by Stats. 1972, Ch. 1154.)

21174.
  

No provision of this division is a limitation or restriction on the power or authority of any public agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer, including, but not limited to, the powers and authority granted to the California Coastal Commission pursuant to Division 20 (commencing with Section 30000). To the extent of any inconsistency or conflict between the provisions of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000)) and the provisions of this division, the provisions of Division 20 (commencing with Section 30000) shall control.

(Amended by Stats. 1991, Ch. 285, Sec. 1.)

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 prior to 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 prior to 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 prior to the approval of the project, or if the public agency failed to give the notice required by law.

(f) This section shall become operative on January 1, 2016.

(Repealed (in Sec. 11) and added by Stats. 2010, Ch. 496, Sec. 12. (SB 1456) Effective September 29, 2010. Section operative January 1, 2016, by its own provisions.)

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