CSAC Bulletin Article

Housing, Land Use and Transportation 09/12/2011

California Environmental Quality Act

AB 900 (Buchanan) – Pending
As Amended on September 9, 2011

AB 900, by Assembly Member Joan Buchanan, was gut and amended in the remaining days of the legislative session, to establish the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (Act), which creates expedited judicial review procedures under the California Environmental Quality Act (CEQA) for various types of LEED silver certified infill site projects, clean renewable energy project, and clean energy manufacturing project. Under the Act, eligible “environmental leadership development projects” include:

  1. A residential, retail, commercial, sports, cultural, entertainment, or recreational use project that is certified as LEED silver or better, achieves a 10% greater standard for transportation efficiency than for comparable projects, is located on an infill site, and is within a Sustainable Communicates Strategy or Alternative Planning Scenario pursuant to SB 375.
  2. A clean renewable energy project that generates electricity exclusively through wind or solar, but not including waste incineration or conversion.
  3. A clean energy manufacturing project that manufactures products, equipment, or components used for renewable energy generation, energy efficiency, or for the production of clean alternative fuel vehicles.

A project proponent must apply to the Governor for CEQA streamlining. The application must detail how the project meets all the Act’s requirements and supply any evidence necessary to support the application. The evidence must be made public at least 15 days prior to the Governor making a decision on the application. The Act requires the Governor, prior to certifying a project, to make a determination that each of the following conditions has been met (these findings are not subject to judicial review):

  1. The project will result in a minimum investment of $100 million in California upon completion of construction.
  2. The project creates high-wage, highly skilled jobs that pay prevailing wages and living wages and provide construction jobs and permanent jobs for Californians, and helps reduce unemployment.
  3. The project does not result in any net additional emission of greenhouse gases, including greenhouse gas emissions from employee transportation.
  4. The project applicant has entered into a binding and enforceable agreement that all mitigation measures required pursuant to the Act 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, 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.
  5. The project applicant agrees to pay the costs of the Court of Appeal in hearing and deciding any case, 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.
  6. The project applicant agrees to pay the costs of preparing the administrative record for the project concurrent with review and consideration of the project pursuant to CEQA, in a form and manner specified by the lead agency for the project.

The Act also requires the Joint Legislative Budget Committee to concur with the Governor’s approval of a project application. 

The Act also requires that, notwithstanding any other law, any action or proceeding alleging that a public agency has approved or is undertaking a leadership project certified by the Governor in violation of CEQA shall be conducted in accordance with the following streamlining benefits:

  1. The action or proceeding shall be filed in the Court of Appeal with geographic jurisdiction over the project.
  2. Any party bringing such a claim shall also file concurrently any other claims alleging that a public agency has granted land use approvals for the leadership project in violation of the law. The Court of Appeal shall have original jurisdiction over all those claims.
  3. Requires that the Court of Appeal issue its decision in the case within 175 days of the filing of the petition.
  4. Authorizes the court to appoint a master to assist the court in managing and processing the case.
  5. The court may grant extensions of time only for good cause shown and in order to promote the interests of justice.

The measure was passed by both houses of the Legislature and now awaits action by the Governor. In the Senate Environmental Quality Committee, Senator Steinberg committed to creating a working group to assist with implementation of the measure given the late amendments and possible inconsistencies in the amended language. CSAC does not have a position on the measure; however we have requested that CSAC be given representation on the working group. 

SB 226 (Simitian) – Pending
As Amended on September 9, 2011

SB 226, by Senator Joe Simitian, would make a number of changes related to CEQA exemptions, streamlining, and the comment process. The measure was amended a number of times in the remaining weeks of session and as of the September 9 amendments would do the following:

  1. Exempt from CEQA review the installation of a solar energy system on the roof of an existing building or at an existing parking lot.
  2. Authorize referral of a proposed action to adopt or substantially amend a general plan to an adjacent local government to be conducted concurrently with a scoping meeting required by CEQA for a project of statewide, regional or area-wide significance, and authorizes a local agency to submit its comments on the proposed general plan action at a CEQA scoping meeting.
  3. Provide that a project’s greenhouse gas emissions shall not, by themselves, cause the project to be ineligible for a categorical exemption from CEQA review if the project complies with regulations adopted to implement related statewide, regional or local plans as provided in the CEQA guidelines.
  4. Require the Office of Planning and Research (OPR), by July 1, 2012, to develop and send to the Natural Resources Agency proposed CEQA guidelines for statewide standards for the review of infill projects that promote specified state environmental, transportation and land use goals and requires the Secretary of the Natural Resources Agency to certify and adopt the guidelines by January 1, 2013.
  5. Limit the application of CEQA in the case of the approval of an infill project that meets the statewide standards in the OPR guidelines authorized above.
  6. Provide that CEQA does not require a public agency to consider written materials submitted after the close of the public comment period, with exceptions for materials addressing new information released after the close of the public comment period and permits a lead agency to elect to ignore written materials submitted after the close of the public comment period and provides that such materials shall not be raised in judicial review.

CSAC is now concerned with the provision amended into the bill last week related to the development of OPR guidelines and associated CEQA streamlining for projects meeting those to be determined guidelines. CSAC will monitor implementation of the measure and seek a role in the development of the guidelines through outreach and comments to OPR.

Land Use

AB 1220 (Alejo) – Request for Veto
As Amended on September 2, 2011

AB 1220, by Assembly Member Luis Alejo, would expand from over one year to three years the statute of limitations to sue a city or county, challenging the adoption of a housing element or a number of related ordinances. While the September 2 amendments reduced the original SOL proposal from five to three years, this is still far too long. CSAC opposes a broad statute that allows any interested party to sue struggling cities and counties three years after a decision is made.

The measure passed out of both houses of the Legislature and is now awaiting action by the Governor. CSAC has sent a letter to the Governor requesting his veto and encourages individual counties to send a similar letter.

Public Works Administration

SB 293 (Padilla) – Request for Veto
As Amended on September 2, 2011

SB 293, by Senator Alex Padilla, would cap retention on a public works project at five percent. Current law requires retention of at least five percent on public works projects, with the flexibility for public agencies to utilize the most appropriate retention, case-by-case, to protect taxpayers, ratepayers and Californians who depend upon core local services.

A five percent retention cap imposes a one-size-fits-all policy and removes flexibility to appropriately manage risk on a project-by-project basis. Local agencies must accept the lowest responsible bidder when awarding contracts. The flexibility provided in existing law allows agencies to do a project risk assessment and determine retention provisions that are appropriate to the level of risk assessed for a project.

Prohibiting retention over 5% is bad policy at the worst possible time. During this difficult economic and budgetary time, public agencies, taxpayers and ratepayers cannot afford failures on the part of contractors. Furthermore, in this climate, contractors faced with difficult financial decisions are more likely to abandon a project when he or she deems the remaining work to be unprofitable. 

Supporters assert that this bill is in response to the downturn in the economy; however, this is the eighth attempt to enact this legislative proposal, the first of which dates back to 1996. We do not believe that this legislation is in response to the hard economic times, rather a solution in search of a problem. Furthermore, local agencies have been equally hurt from the downturn in the economy, slashing budgets and staff, and operating in extremely fiscally constrained environments.

Existing law affords contractors an interest-bearing escrow account for all retention proceeds. Current law provides contractors the ability to establish escrow accounts that allow retention proceeds to gain interest payments for the contractor while providing adequate assurance to the public agency that the project will be completed. Additionally, local agencies commonly reduce retention to 5% at the half-way point of project completion, if adequate progress is being made and the contractor is acting in good faith. SB 293 would thwart the ability of local agencies to properly ensure projects are completed. 

SB 293 was passed out of both houses of the Legislature and now awaits action by the Governor. CSAC sent a letter to the Governor requesting his veto on the measure and is asking other individual counties to send a similar letter.

Indian Gaming 

AB 1417 (Hall) – Request for Signature
As Amended on August 31, 2011

AB 1417, by Assembly Member Isadore Hall, would appropriate $9.1 million from the Indian Gaming Special Distribution Fund (SDF) for grants to local governments to help off-set the impacts on infrastructure and public services from tribal gaming.

AB 1417 was passed out of both houses of the Legislature and now awaits action by the Governor. CSAC is requesting the Governor’s signature on this measure.

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