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.
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.
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.
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).
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.
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.
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.
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) In an action or proceeding alleging noncompliance with this
division, the Attorney General may file a motion with the court
seeking an expedited schedule for resolution of the case upon the
grounds that it would be in the public interest to do so. This
subdivision does not affect the rights of any party under existing
law to seek an expedited schedule for resolution of the case.
(e) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
21167.6. Notwithstanding any other provision of law, in all actions
or proceedings brought pursuant to Section 21167, except 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.
21167.6.5. (a) The petitioner or plaintiff shall name, as a real
party in interest, any recipient of an approval 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 any public agency having jurisdiction over a natural resource
affected by the project.
(c) The petitioner or plaintiff shall provide the responsible
agencies, and any 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 parties, 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) Nothing in this section is intended to affect an existing
right of a party to intervene in the action.
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.
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 a 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 that 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, or a mediation proceeding
that is conducted pursuant to Chapter 9.3 (commencing with Section
66030) of Division 1 of Title 7 of the Government Code, 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 a 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 a 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 that the
petitioner or plaintiff intends to raise in a brief or at a 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 a brief
or at a hearing or trial.
(g) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
21167.10. (a) Within five business days of the filing of a notice
required by subdivision (a) or (b) of Section 21108, or subdivision
(a) or (b) of Section 21152 by the lead agency, a person wishing to
bring an action or a proceeding pursuant to Section 21167, 21168, or
21168.5 may file with the lead agency and the real party in interest
a notice requesting mediation.
(b) Within five business days of the receipt of the notice
requesting mediation, a lead agency may respond to the person by
accepting the request for mediation and proceed with mediation.
(c) The request for mediation is deemed denied if the lead agency
fails to respond within five business days of receiving the request
for mediation.
(d) The limitation periods provided pursuant to this chapter shall
be tolled until the completion of the mediation conducted pursuant
to this section.
(e) This section shall apply to notices that are filed on or after
July 1, 2011.
(f) This section does not apply in cases where the lead agency has
not filed the notice required by subdivision (a) or (b) of Section
21108, or subdivision (a) or (b) of Section 21152.
(g) (1) Except as set forth in paragraph (2), this section shall
remain in effect only until January 1, 2016, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2016, deletes or extends that date.
(2) Notwithstanding paragraph (1), the tolling of the limitation
periods provided pursuant to subdivision (d) shall apply if a
mediation conducted pursuant to this section is completed on or after
January 1, 2016.
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.
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.
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.
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.
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.
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.
21169.11. (a) At any time after a petition has been filed pursuant
to this division, but at least 30 days before the hearing on the
merits, a party may file a motion requesting the court to impose a
sanction for a frivolous claim made in the course of an action
brought pursuant to this division.
(b) If the court determines that a claim is frivolous, the court
may impose an appropriate sanction, in an amount up to ten thousand
dollars ($10,000), upon the attorneys, law firms, or parties
responsible for the violation.
(c) For purposes of this section, "frivolous" means totally and
completely without merit.
(d) (1) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
(2) Notwithstanding paragraph (1), the sanction provided pursuant
to this section shall apply to an action filed on or before December
31, 2015.
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.
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.
21172. This division shall not apply to any project undertaken,
carried out, or approved by a public agency to maintain, repair,
restore, demolish or replace property or facilities damaged or
destroyed as a result of a disaster in a disaster stricken area in
which a state of emergency has been proclaimed by the Governor
pursuant to Chapter 7 (commencing with Section 8550) of Division 1,
Title 2 of the Government Code.
21172.5. Until the 121st day after the effective date of this
section, any objectives, criteria and procedures adopted by public
agencies in compliance with this division shall govern the evaluation
of projects defined in subdivisions (a) and (b) of Section 21065 and
the preparation of environmental impact reports on such projects
when required by this division.
Any environmental impact report which has been completed or on
which substantial work has been performed on or before the 121st day
after the effective date of this section, if otherwise legally
sufficient, shall, when completed, be deemed to be in compliance with
this division and no further environmental impact report shall be
required except as provided in Section 21166.
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.
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.
21175. In the event that a local agency formation commission,
acting pursuant to the provisions of Chapter 6.6 (commencing with
Section 54773) of Part 1 of Division 2 of Title 5 of, or pursuant to
Division 1 (commencing with Section 56000) of Title 6 of, the
Government Code, has approved a project without complying with this
division, such approval is hereby confirmed, validated, and declared
legally effective notwithstanding the failure to comply with this
division; provided, that such approval shall have occurred prior to
February 7, 1975.
21176. (a) Section 21175 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 February 7, 1975, 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 February 7, 1975.
(b) Section 21175 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.
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 the 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
subdivisions (a) and (b). The grounds for noncompliance may have been
presented directly by a member or by a member agreeing with or
supporting the comments of another person.
(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 remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
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.
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.
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).
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.
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.
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.
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) In an action or proceeding alleging noncompliance with this
division, the Attorney General may file a motion with the court
seeking an expedited schedule for resolution of the case upon the
grounds that it would be in the public interest to do so. This
subdivision does not affect the rights of any party under existing
law to seek an expedited schedule for resolution of the case.
(e) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
21167.6. Notwithstanding any other provision of law, in all actions
or proceedings brought pursuant to Section 21167, except 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.
21167.6.5. (a) The petitioner or plaintiff shall name, as a real
party in interest, any recipient of an approval 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 any public agency having jurisdiction over a natural resource
affected by the project.
(c) The petitioner or plaintiff shall provide the responsible
agencies, and any 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 parties, 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) Nothing in this section is intended to affect an existing
right of a party to intervene in the action.
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.
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 a 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 that 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, or a mediation proceeding
that is conducted pursuant to Chapter 9.3 (commencing with Section
66030) of Division 1 of Title 7 of the Government Code, 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 a 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 a 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 that the
petitioner or plaintiff intends to raise in a brief or at a 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 a brief
or at a hearing or trial.
(g) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
21167.10. (a) Within five business days of the filing of a notice
required by subdivision (a) or (b) of Section 21108, or subdivision
(a) or (b) of Section 21152 by the lead agency, a person wishing to
bring an action or a proceeding pursuant to Section 21167, 21168, or
21168.5 may file with the lead agency and the real party in interest
a notice requesting mediation.
(b) Within five business days of the receipt of the notice
requesting mediation, a lead agency may respond to the person by
accepting the request for mediation and proceed with mediation.
(c) The request for mediation is deemed denied if the lead agency
fails to respond within five business days of receiving the request
for mediation.
(d) The limitation periods provided pursuant to this chapter shall
be tolled until the completion of the mediation conducted pursuant
to this section.
(e) This section shall apply to notices that are filed on or after
July 1, 2011.
(f) This section does not apply in cases where the lead agency has
not filed the notice required by subdivision (a) or (b) of Section
21108, or subdivision (a) or (b) of Section 21152.
(g) (1) Except as set forth in paragraph (2), this section shall
remain in effect only until January 1, 2016, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2016, deletes or extends that date.
(2) Notwithstanding paragraph (1), the tolling of the limitation
periods provided pursuant to subdivision (d) shall apply if a
mediation conducted pursuant to this section is completed on or after
January 1, 2016.
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.
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.
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.
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.
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.
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.
21169.11. (a) At any time after a petition has been filed pursuant
to this division, but at least 30 days before the hearing on the
merits, a party may file a motion requesting the court to impose a
sanction for a frivolous claim made in the course of an action
brought pursuant to this division.
(b) If the court determines that a claim is frivolous, the court
may impose an appropriate sanction, in an amount up to ten thousand
dollars ($10,000), upon the attorneys, law firms, or parties
responsible for the violation.
(c) For purposes of this section, "frivolous" means totally and
completely without merit.
(d) (1) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
(2) Notwithstanding paragraph (1), the sanction provided pursuant
to this section shall apply to an action filed on or before December
31, 2015.
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.
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.
21172. This division shall not apply to any project undertaken,
carried out, or approved by a public agency to maintain, repair,
restore, demolish or replace property or facilities damaged or
destroyed as a result of a disaster in a disaster stricken area in
which a state of emergency has been proclaimed by the Governor
pursuant to Chapter 7 (commencing with Section 8550) of Division 1,
Title 2 of the Government Code.
21172.5. Until the 121st day after the effective date of this
section, any objectives, criteria and procedures adopted by public
agencies in compliance with this division shall govern the evaluation
of projects defined in subdivisions (a) and (b) of Section 21065 and
the preparation of environmental impact reports on such projects
when required by this division.
Any environmental impact report which has been completed or on
which substantial work has been performed on or before the 121st day
after the effective date of this section, if otherwise legally
sufficient, shall, when completed, be deemed to be in compliance with
this division and no further environmental impact report shall be
required except as provided in Section 21166.
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.
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.
21175. In the event that a local agency formation commission,
acting pursuant to the provisions of Chapter 6.6 (commencing with
Section 54773) of Part 1 of Division 2 of Title 5 of, or pursuant to
Division 1 (commencing with Section 56000) of Title 6 of, the
Government Code, has approved a project without complying with this
division, such approval is hereby confirmed, validated, and declared
legally effective notwithstanding the failure to comply with this
division; provided, that such approval shall have occurred prior to
February 7, 1975.
21176. (a) Section 21175 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 February 7, 1975, 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 February 7, 1975.
(b) Section 21175 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.
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 the 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
subdivisions (a) and (b). The grounds for noncompliance may have been
presented directly by a member or by a member agreeing with or
supporting the comments of another person.
(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 remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
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.
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.
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).
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.
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.
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.
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) In an action or proceeding alleging noncompliance with this
division, the Attorney General may file a motion with the court
seeking an expedited schedule for resolution of the case upon the
grounds that it would be in the public interest to do so. This
subdivision does not affect the rights of any party under existing
law to seek an expedited schedule for resolution of the case.
(e) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
21167.6. Notwithstanding any other provision of law, in all actions
or proceedings brought pursuant to Section 21167, except 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.
21167.6.5. (a) The petitioner or plaintiff shall name, as a real
party in interest, any recipient of an approval 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 any public agency having jurisdiction over a natural resource
affected by the project.
(c) The petitioner or plaintiff shall provide the responsible
agencies, and any 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 parties, 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) Nothing in this section is intended to affect an existing
right of a party to intervene in the action.
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.
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 a 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 that 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, or a mediation proceeding
that is conducted pursuant to Chapter 9.3 (commencing with Section
66030) of Division 1 of Title 7 of the Government Code, 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 a 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 a 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 that the
petitioner or plaintiff intends to raise in a brief or at a 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 a brief
or at a hearing or trial.
(g) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
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.
21167.10. (a) Within five business days of the filing of a notice
required by subdivision (a) or (b) of Section 21108, or subdivision
(a) or (b) of Section 21152 by the lead agency, a person wishing to
bring an action or a proceeding pursuant to Section 21167, 21168, or
21168.5 may file with the lead agency and the real party in interest
a notice requesting mediation.
(b) Within five business days of the receipt of the notice
requesting mediation, a lead agency may respond to the person by
accepting the request for mediation and proceed with mediation.
(c) The request for mediation is deemed denied if the lead agency
fails to respond within five business days of receiving the request
for mediation.
(d) The limitation periods provided pursuant to this chapter shall
be tolled until the completion of the mediation conducted pursuant
to this section.
(e) This section shall apply to notices that are filed on or after
July 1, 2011.
(f) This section does not apply in cases where the lead agency has
not filed the notice required by subdivision (a) or (b) of Section
21108, or subdivision (a) or (b) of Section 21152.
(g) (1) Except as set forth in paragraph (2), this section shall
remain in effect only until January 1, 2016, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2016, deletes or extends that date.
(2) Notwithstanding paragraph (1), the tolling of the limitation
periods provided pursuant to subdivision (d) shall apply if a
mediation conducted pursuant to this section is completed on or after
January 1, 2016.
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.
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.
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.
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.
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.
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.
21169.11. (a) At any time after a petition has been filed pursuant
to this division, but at least 30 days before the hearing on the
merits, a party may file a motion requesting the court to impose a
sanction for a frivolous claim made in the course of an action
brought pursuant to this division.
(b) If the court determines that a claim is frivolous, the court
may impose an appropriate sanction, in an amount up to ten thousand
dollars ($10,000), upon the attorneys, law firms, or parties
responsible for the violation.
(c) For purposes of this section, "frivolous" means totally and
completely without merit.
(d) (1) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
(2) Notwithstanding paragraph (1), the sanction provided pursuant
to this section shall apply to an action filed on or before December
31, 2015.
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.
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.
21172. This division shall not apply to any project undertaken,
carried out, or approved by a public agency to maintain, repair,
restore, demolish or replace property or facilities damaged or
destroyed as a result of a disaster in a disaster stricken area in
which a state of emergency has been proclaimed by the Governor
pursuant to Chapter 7 (commencing with Section 8550) of Division 1,
Title 2 of the Government Code.
21172.5. Until the 121st day after the effective date of this
section, any objectives, criteria and procedures adopted by public
agencies in compliance with this division shall govern the evaluation
of projects defined in subdivisions (a) and (b) of Section 21065 and
the preparation of environmental impact reports on such projects
when required by this division.
Any environmental impact report which has been completed or on
which substantial work has been performed on or before the 121st day
after the effective date of this section, if otherwise legally
sufficient, shall, when completed, be deemed to be in compliance with
this division and no further environmental impact report shall be
required except as provided in Section 21166.
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.
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.
21175. In the event that a local agency formation commission,
acting pursuant to the provisions of Chapter 6.6 (commencing with
Section 54773) of Part 1 of Division 2 of Title 5 of, or pursuant to
Division 1 (commencing with Section 56000) of Title 6 of, the
Government Code, has approved a project without complying with this
division, such approval is hereby confirmed, validated, and declared
legally effective notwithstanding the failure to comply with this
division; provided, that such approval shall have occurred prior to
February 7, 1975.
21176. (a) Section 21175 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 February 7, 1975, 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 February 7, 1975.
(b) Section 21175 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.
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 the 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
subdivisions (a) and (b). The grounds for noncompliance may have been
presented directly by a member or by a member agreeing with or
supporting the comments of another person.
(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 remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
