Clare Bronowski, an attorney with the law firm of Manatt, Phelps, Rothernberg & Phillips, delves into the expected implications of AB 3180 to developers and environmentalists. These stakeholders had expected the statute to have similar drastic effects on development that CEQA brought. Bronowski reveals the current status of the statute and its influence on jurisdictions throughout Southern California.
On January 1, 1989, AB 3180 took effect and environmentalists and developers alike waited breathlessly for its impact. The passage of this bill had been called the third major milestone in environmental planning in California—the first two milestones being the original passage of the California Environmental Quality Act (CEQA) in 1970 and the Friends of Mammoth decision in 1972.
AB 3180 (which added Section 21081.6 to the Public Resources Code) requires public agencies to adopt mitigation monitoring or reporting programs for all projects for which environmental impact reports or negative declarations have been prepared. The text of AB3180 requires that, when making findings pursuant to an EIR or when adopting a negative declaration, a public agency shall adopt a monitoring program for the changes to the project which it has made a condition of project approval. The law also requires that “the reporting or monitoring program shall be designed to ensure compliance during project implementation.”
Ten months have passed since AB 3180's effective date and, in many jurisdictions including Los Angeles, the impact of the legislation has in fact been minimal. Many jurisdictions are still struggling with the creation of an implementation program, and most are dealing with the legislation on an ad hoc basis.
AB 3180 contains no additional regulations or guidelines concerning its implementation. As a result, each local jurisdiction must develop its own local implementation program. Although no CEQA Guidelines on monitoring has been issued, the Governor’s Office of Planning and Research (OPR) has issued an informational paper regarding AB 3180 which stresses that the legislation gives local agencies broad latitude in developing programs to meet the variety of projects and circumstances affecting their jurisdictions.
AB 3180 does not provide any new powers to local governments. The enforcement powers behind a monitoring or reporting program must be those powers already within the purview of the agency—public nuisance enforcement, police power, zoning, health, safety and welfare regulations.
There are two basic approaches to a reporting or monitoring implementation program. The first is to develop, on a case-by-case basis, specially tailored monitoring programs for large development projects. The second approach is adoption of a comprehensive, standardized program that will apply to all approvals which are impacted by AB 3180. Either approach is legally adequate.
For “project-specific” reporting and monitoring programs, a local jurisdiction may require the developer to enter into an agreement for an independent enforcement program and coordinator.
In Santa Barbara County, as a condition of approval for the Hyatt Hotel which was the subject of the Citizens of Goleta Valley lawsuit in 1988, the county required the project developer to participate in an “environmental quality assurance program” which included monitoring procedures, a regular schedule of progress reports, sanctions, and an independent environmental coordinator to administer and enforce the program. All costs of the monitoring program, including the salary of the environmental coordinator, were passed on to the project developer.
Other jurisdictions, such as San Diego and San Luis Obispo, use standard plan check, building inspection and certificate of occupancy procedure as their mitigation monitoring program. City building inspectors must ensure that all project changes are incorporated into city permit plans and are constructed on-site, and the city will withhold the certificate of occupancy for the project unless all measures have been completed.
Some cities have enacted uniform procedures as part of their own CEQA Guidelines to establish a mitigation monitoring system. For examp1e, the City of Santa Maria has established a monitoring checklist which follows a project from city department to department from project approval through completion. Any ongoing measures which require monitoring after the final inspection are also handled through the checklist, which requires periodic city inspections until each mitigation measure is complete. This program is funded through fees collected from applicants.
In the City of Los Angeles, the City Planning Department has suggested an approach to mitigation monitoring, but no policy has been adopted by the Planning Commission or the Council to date.
The Planning Department's proposed policy includes a full discussion of each monitoring measure in the Draft EIR (for projects with EIR's) and a program of signed clearances from City departments to enforce mitigation conditions of mitigated negative declarations.
The City Planning Department has proposed a standard monitoring condition which will require that an applicant identify a licensed professional (civil engineer, architect, landscape architect, surveyor, etc.) who, through a recorded Covenant and Agreement, shall be obligated to provide certification of compliance with each mitigation measure prior to the issuance of a final permit or other applicable City approval. For those measures for which the applicant has a continuing obligation, recertification of compliance shall occur (by Covenant and Agreement) at prescribed time intervals.
As of September, 1989, this policy has yet to be implemented. The Planning Commission has requested further input from the City Attorney's office. At this time, the City continues an ad hoc system of mitigation monitoring.
AB 3180 is a simple statute with a simple goal: to ensure that projects which are conditioned to comply with CEQA are built and operated according to those conditions. A simple checklist system is in the best interest of developers and the public—providing a simple document to ensure uniform and predictable enforcement of the appropriate conditions.
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