HomeMy WebLinkAboutSB 476 - Noncompliance Allegations CITY OF PALM DESERT �
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COMMUNITY SERVICES DEPARTMENT
STAFF REPORT
REQUEST: CONSIDERATION OF LEGISLATIVE REVIEW COMMITTEE ACTION
ON SB 476 (CORREA) AT ITS MEETING OF APRIL 28, 2009.
DATE: May 21, 2009
CONTENTS: SB 476 Language
RECOMMENDATION:
By Minute Motion, concur with the action taken by the Legislative Review Committee at its
meeting of April 28, 2009, and direct staff to prepare a letter of opposition for the Mayor's
signature with regard to SB 476 (Correa) relative to noncompliance allegations.
BACKGROUND:
The California Environmental Quality Act requires a lead agency to prepare, or cause to be
prepared and certify, the completion of an Environmental Impact Report on a project that it
proposes to carry out. If passed, SB 476 would allow an action or proceeding to be brought
based on alleged grounds of non-compliance with CEQA raised after the public comment
period, and if it can be demonstrated, that the alleged grounds were not known and could not
have been known with reasonable diligence at the time of the EIR, Negative Declaration or
Mitigated Negative Declaration. Passage of this bill would open an avenue to delay the
completion of approved projects. Current law requires an adequate public comment period for
such situations and no additional legislation is needed.
Therefore, Legislative Review Committee recommends that the City Council oppose SB 476 and
direct staff to prepare a letter stating that position to appropriate legislators and committees for
the Mayor's signature.
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PATRICIA SCULLY, CFE O N WOHLMUTH
SENIOR MANAGEMENT NALYST Y MANAGER
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Original on File with City Clerk s Oflice
° SB 476 5�... )DUCED e---_.. t Page 1 of 5
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BILL NUMBER: SB 476 INTRODUCED
BILI, TEXT
INTRODUCED BY Senator Correa
FEBRUARY 26, 2009
An act to amend Sections 21083, 21091, and 21177 of, and to add
Section 21080.34 to, the Public Resources Code, relating to the
environment.
LEGISLATIVE COUNSEL'S DIGEST
SB 476, as introduced, Correa. Environment: California
Environmental Quality Act: noncompliance allegations: public comment.
(1) The California Environmental Quality Act (CEQA) requires a
lead agency, as defined, to prepare, or cause to be prepared, and
certify the completion of, an environmental impact report (EIR) on a
project that it proposes to carry out or approve that may have a
significant effect on the environment or to adopt a negative
declaration if it finds that the project will not have that effect.
CEQA also requires a lead agency to prepare a mitigated negative
declaration for a project that may have a significant effect on the
environment if revisions in the project would avoid or mitigate that
effect and there is no substantial evidence that the project, as
revised, would have a significant effect on the environment. CEQA
provides for a public review period for the public to review a draft
EIR, proposed negative declaration, or proposed mitigated negative
declaration. CEQA requires a lead agency to evaluate and respond to
comments on a draft EIR, proposed negative declaration, or proposed
mitigated negative declaration made during the public review period
and authorizes a lead agency to evaluate and respond to comments made
on a draft EIR when the comments are submitted after the public
review period. CEQA requires an action or proceeding alleging
noncompliance with its requirements to be based on grounds that were
presented to the public agency orally or in writing by any person
during the public comment period provided under CEQA or prior to the
close of the public hearing on the project before the issuance of the
notice of determination.
This bill would allow an action or proceeding to be brought based
on alleged grounds of noncompliance with CEQA raised after the
public comment period if the person can demonstrate that the alleged
grounds were not known and could not have been known with reasonable
diligence at the time the EIR, negative declaration, or mitigated
negative declaration was made available for public review, and
therefore could not have been presented prior to the close of the
comment period and the person raised the alleged grounds prior to the
close of the public hearing on the project before the issuance of
the notice of determination.
The bill would prohibit a lead agency from considering comments
received after the close of the public review period, except in this
case in which the bill would authorize alleged grounds of
noncompliance with CEQA to be raised after the public comment period.
The bill would limit the evaluation of the cumulative effect of a
project in an EIR to the information available at the time of
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SB 476 Senate Bill - INTRODUCED Page 2 of 5
publishing of the notice of preparation.
(2) CEQA exempts certain specified projects from its requirements.
This bill would exempt from its requirements projects related to
the installation of environmental enhancement on or within a property
or structure if the enhancement does not increase the square footage
of the property or structure. Because a lead agency would be
required to determine whether a project is exempt under this
provision and to provide certain notice regarding its determination,
the bill would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21080.34 is added to the Public Resources Code,
to read:
21080.34. This division does not apply to an approval or a permit
that may be required when an owner or occupant of an existing, or
approved but unbuilt, residential or commercial property or structure
elects to install environmental enhancement on or within that
property or structure. For the purposes of this section,
environmental enhancement, as determined by the lead agency, may
include alterations to the property or structure that reduce energy
and water usage, or emissions, or both usage and emissions. The
enhancement shall not increase the square footage of the existing, or
approved but unbuilt, residential or commercial property or
structure.
SEC. 2. Section 21083 of the Public Resources Code is amended to
read:
21083. (a) The Office of Planning and Research shall prepare and
develop proposed guidelines for the implementation of this division
by public agencies. The guidelines shall include objectives and
criteria for the orderly evaluation of projects and the preparation
of environmental impact reports and negative declarations in a manner
consistent with this division.
(b) The guidelines shall specifically include criteria for public
agencies to follow in determining whether or not a proposed project
may have a "significant effect on the environment. '� The criteria
shall require a finding that a project may have a "significant effect
on the environment" if one or more of the following conditions
exist:
(1) A proposed project has the potential to degrade the quality of
the environment, to curtail the range of the environment,
or to achieve short-term, to the disadvantage of long-term,
environmental goals.
(2) The possible effects of a project are individually limited but
cumulatively considerable. As used in this paragraph, "cumulatively
considerable" means that the incremental effects of an individual
project are considerable when viewed in connection with the effects
of past projects, the effects of other current projects, and the
effects of probable future projects. In evaluating cumulative
effects in an environmental impact report, the information reqvired
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SB 476 Senate Bill - INTRODUCED �e 3 of 5
to be considered shall l�e limited to the information
available at the time of the publishing of the notice of preparation.
(3) The environmental effects of a project will cause substantial
adverse effects on human beings, either directly or indirectly.
(c) The guidelines shall include procedures for determining the
lead agency pursuant to Section 21165.
(d) The guidelines shall include criteria for public agencies to
use in determining when a proposed project is of sufficient
statewide, regional, or areawide environmental significance that a
draft environmental impact report, a proposed negative declaration,
or a proposed mitigated negative declaration shall be submitted to
appropriate state agencies, through the State Clearinghouse, for
review and comment prior to completion of the environmental impact
report, negative declaration, or mitigated negative declaration.
(e) The Office of Planning and Research shall develop and prepare
the proposed guidelines as soon as possible and shall transmit them
immediately to the Secretary of the Resources Agency. The Secretary
of the Resources Agency shall certify and adopt the guidelines
pursuant to Chapter 3 .5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code, which shall become
effective upon the filing thereof. However, the guidelines shall not
be adopted without compliance with Sections 11346.4, 11346.5, and
11346.8 of the Government Code.
(f) The Office of Planning and Research shall, at least once
every two years, review the guidelines adopted pursuant to this
section and shall recommend proposed changes or amendments to the
Secretary of the Resources Agency. The Secretary of the Resources
Agency shall certify and adopt guidelines, and any amendments
thereto, at least once every two years, pursuant to Chapter 3 .5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, which shall become effective upon the filing
thereof. However, guidelines may not be adopted or amended without
compliance with Sections 11346.4, 11346.5, and 11346.8 of the
Government Code.
SEC. 3 . Section 21091 of the Public Resources Code is amended to
read:
21091. (a) The public review period for a draft environmental
impact report may not be less than 30 days. If the draft
environmental impact report is submitted to the State Clearinghouse
for review, the review period shall be at least 45 days, and the lead
agency shall provide a sufficient number of copies of the document
to the State Clearinghouse for review and comment by state agencies.
(b) The public review period for a proposed negative declaration
or proposed mitigated negative declaration may not be less than 20
days. If the proposed negative declaration or proposed mitigated
negative declaration is submitted to the State Clearinghouse for
review, the review period shall be at least 30 days, and the lead
agency shall provide a sufficient number of copies of the document to
the State Clearinghouse for review and comment by state agencies.
(c) (1) Notwithstanding subdivisions (a) and (b) , if a draft
environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration is submitted to the State
Clearinghouse for review and the period of review by the State
Clearinghouse is longer than the public review period established
pursuant to subdivision (a) or (b) , whichever is applicable, the
public review period shall be at least as long as the period of
review and comment by state agencies as established by the State
Clearinghouse.
(2) The public review period and the state agency review period
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SB 476 Senate Bill - INTRODUCED Page 4 of 5
may, but are not required to, begin and end at the same time. Day one
of the state agency review period shall be the date that the State
Clearinghouse distributes the document to state agencies.
(3) If the submittal of a CEQA document is determined by the State
Clearinghouse to be complete, the State Clearinghouse shall
distribute the document within three working days from the date of
receipt. The State Clearinghouse shall specify the information that
will be required in order to determine the completeness of the
submittal of a CEQA document.
(d) (1) The lead agency shall consider comments it receives on a
draft environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration if those comments are
received within the public review period. Except in
circumstances specified in subdivision (a) of Section 21177, the lead
agency sha11 not consider comments received after the close of the
public review period.
(2) (A) With respect to the consideration of comments received on
a draft environmental impact report, the lead agency shall evaluate
comments on environmental issues that are received from persons who
have reviewed the draft and shall prepare a written response pursuant
to subparagraph (B) . —�� Except in
circumstances specified in subdivision (a) of Section 21177, the
lead agency �� s hall
not respond to comments that are received after the close of
the public review period.
(B) The written response shall describe the disposition of each
significant environmental issue that is raised by commenters. The
responses shall be prepared consistent with Section 15088 of Title 14
of the California Code of Regulations, as those regulations existed
on June 1, 1993 .
(3) (A) With respect to the consideration of comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice pursuant to
Section 21080.4, the lead agency shall accept comments via e-mail and
shall treat e-mail comments as equivalent to written comments.
(B) Any law or regulation relating to written comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice received pursuant
to Section 21080.4, shall also apply to e-mail comments received for
those reasons.
(e) (1) Criteria for shorter review periods by the State
Clearinghouse for documents that must be submitted to the State
Clearinghouse shall be set forth in the written guidelines issued by
the Office of Planning and Research and made available to the public.
(2) Those shortened review periods may not be less than 30 days
for a draft environmental impact report and 20 days for a negative
declaration.
(3) A request for a shortened review period shall only be made in
writing by the decisionmaking body of the lead agency to the Office
of Planning and Research. The decisionmaking body may designate by
resolution or ordinance a person authorized to request a shortened
review period. A designated person shall notify the decisionmaking
body of this request.
(4) A request approved by the State Clearinghouse shall be
consistent with the criteria set forth in the written guidelines of
the Office of Planning and Research.
(5) A shortened review period may not be approved by the Office of
Planning and Research for a proposed project of statewide, regional,
or areawide environmental significance as determined pursuant to
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° SB 476 Senate Bill - INTRODUCED Page 5 of 5
Section 21083 .
(6) An approval of a shortened review period shall be given prior
to, and reflected in, the public notice required pursuant to Section
21092.
(f) Prior to carrying out or approving a project for which a
negative declaration has been adopted, the lead agency shall consider
the negative declaration together with comments that were received
and considered pursuant to paragraph (1) of subdivision (d) .
SEC. 4. Section 21177 of the Public Resources Code is amended to
read:
21177. (a) �3� An action or
proceeding -�- sha11 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 --�r- . If
a person can demonstrate that the alleged grounds for non compliance
relate to matters that were not known and could not have been known
with reasonable diligence at the time the environmental impact ,
report, negative declaration, or mitigated negative declaration was
made available for public review, and therefore could not have been
presented prior to the close of the comment period, then an action or
proceeding may be brought pursuant to Section 21167 only if the
alleged grounds for noncompliance with this division were presented
to the public agency by the person prior to the close of the
public hearing on the project before the issuance of the notice of
determination.
(b) -�T� 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 issuance of the notice of
determination.
(c) This section does not preclude -Rrt� an
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.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.
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