Cal. PRC § 21168.6.7 — California Code / Code prc / Division 13 / Chapter 6 / Section 21168.6.7
Section 21168.6.7
Status: in_force

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

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

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

(3) “Oakland Sports and Mixed-Use Project” or “project” means the following components of a sports center and mixed-use project located at the Howard Terminal site in the City of Oakland, from demolition and site preparation through operation:

(A) A baseball park that will become the new home to the Oakland Athletics and adjacent residential, retail, commercial, cultural, entertainment, or recreational uses developed by the Oakland Athletics, and that meets all of the following:

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

(ii) The project does not result in any net additional emissions of greenhouse gases, including greenhouse gas emissions from employee transportation, as determined by the State Air Resources Board pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code. To maximize public health, environmental, and employment benefits, the lead agency shall require measures that will reduce the emissions of greenhouse gases in the project area and in the neighboring communities of the baseball park. Not less than 50 percent of the greenhouse gas emissions reductions necessary to achieve the requirements of this clause, excluding the greenhouse gas emissions from residential uses of the project, shall be from local, direct greenhouse gas emissions reduction measures that give consideration to criteria air pollutant and toxic air contaminant emissions reductions, including, but not limited to, any of the following:

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

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

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

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

(iv) The project is located within a priority development area identified in the sustainable communities strategy Plan Bay Area 2040 adopted by the Metropolitan Transportation Commission and the Association of Bay Area Governments.

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

(B) Associated public spaces.

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

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

(c) Rules 3.2220 to 3.2237, inclusive, of the California Rules of Court, as may be amended by the Judicial Council, shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification or adoption of any environmental impact report for the project that is certified pursuant to subdivision (d) or the granting of any project approvals, to require the action or proceeding, including any potential appeals therefrom, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court. On or before September 1, 2019, the Judicial Council shall amend the California Rules of Court, as necessary, to implement this subdivision.

(d) The Governor may certify the project for streamlining pursuant to this section if it complies with all of the following conditions:

(1) The project creates high-wage, highly skilled jobs that pay prevailing wages and living wages, provides construction jobs and permanent jobs for Californians, and helps reduce unemployment. For purposes of this subdivision, “jobs that pay prevailing wages” means that all construction workers employed in the execution of the project will receive at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of the Labor Code. If the project is certified for streamlining, the project applicant shall include this requirement in all contracts for the performance of the work.

(2) (A) If the project is certified pursuant to this section, contractors and subcontractors shall pay to all construction workers employed in the execution of the project at least the general prevailing rate of per diem wages.

(B) Except as provided in subparagraph (C), the obligation of the contractors and subcontractors to pay prevailing wages pursuant to subparagraph (A) may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code within 18 months after the completion of the project, or by an underpaid worker through an administrative complaint or civil action. If a civil wage and penalty assessment is issued, the contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of wages covered by the assessment shall be liable for liquidated damages pursuant to Section 1742.1 of the Labor Code.

(C) Subparagraph (B) does not apply if all contractors and subcontractors performing work on the project are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the project and provides for enforcement of that obligation through an arbitration procedure. For purposes of this subparagraph, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.

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

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

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

(6) The project applicant agrees to pay for any additional costs incurred by the courts in hearing and deciding any case brought pursuant to this section, including payment of the costs for the appointment of a special master if deemed appropriate by the court, in a form and manner specified by the Judicial Council, as provided in the rules of court adopted by the Judicial Council.

(7) The project applicant agrees to pay the costs of preparing the record of proceedings for the project concurrent with review and consideration of the project pursuant to this division, in a form and manner specified by the lead agency for the project.

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

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

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

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

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

THIS ENVIRONMENTAL IMPACT REPORT IS SUBJECT TO SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD, IF ANY, FOR THE DRAFT ENVIRONMENTAL IMPACT REPORT. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OR ADOPTION OF THE ENVIRONMENTAL IMPACT REPORT OR THE APPROVAL OF THE PROJECT DESCRIBED IN SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE IS SUBJECT TO THE PROCEDURES SET FORTH IN THAT SECTION. A COPY OF SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS ENVIRONMENTAL IMPACT REPORT.

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

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

(4) Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.

(5) (A) Within five days following the close of the public comment period, a commenter on the draft environmental impact report may submit to the lead agency a written request for nonbinding mediation. The lead agency and applicant shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental impact report and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.

(B) A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.

(C) The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years’ experience in land use and environmental law or science, or mediation. The applicant shall bear the costs of mediation.

(D) A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.

(E) The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency, the applicant, and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this subparagraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agency’s decision to certify or to adopt the environmental impact report or to grant project approval.

(6) The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:

(A) New issues raised in the response to comments by the lead agency.

(B) New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.

(C) Changes made to the project after the close of the public comment period.

(D) Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, if the lead agency releases those documents subsequent to the release of the draft environmental impact report.

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

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

(g) (1) The lead agency shall prepare and certify the record of the proceedings in accordance with this subdivision and in accordance with Rule 3.1365 of the California Rules of Court. The applicant shall pay the lead agency for all costs of preparing and certifying the record of proceedings.

(2) No later than three business days following the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared or received by the lead agency.

(3) Notwithstanding paragraph (2), documents submitted to or relied on by the lead agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of the documents available in an electronic format no later than the date of the release of the draft environmental impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index shall specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.

(4) The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any such comments available to the public in a readily accessible electronic format within five days of their receipt.

(5) Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.

(6) The lead agency shall indicate in the record of the proceedings comments received that were not considered by the lead agency pursuant to paragraph (6) of subdivision (f) and need not include the content of the comments as a part of the record.

(7) Within five days after the filing of the notice required by subdivision (a) of Section 21152, the lead agency shall certify the record of the proceedings for the approval or determination and shall provide an electronic copy of the record to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.

(8) Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.

(9) Any dispute over the content of the record of the proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record shall file a motion to augment the record at the time it files its initial brief.

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