CEQA—Admirable Goals, Bad Reputation

By: Caroline Lavenue

04/12/2018

I.   CEQA—Admirable Goals, Bad Reputation

It is no surprise that the people most calling for CEQA reform are the developers, contractors, and those whose goals are impeded by the complex CEQA process. CEQA, like any law, is in place to dissuade potentially illegal action. It is procedurally complex, demanding time and labor in order to navigate. But is the fact that it is costly or time-intensive a reason for the law to be dropped? Is the fact that potentially fraudulent companies dislike the Sarbanes-Oxley Act because of the added cost of auditors a reason to reduce compliance measures?

CEQA holds developers accountable for their actions which, whether directly or indirectly, affect us all. It has objectively good goals; it was passed in an effort to balance policy considerations. It is a preventative, information-forcing statute that informs decision makers and the public about the potentially significant environmental effects of proposed projects before those projects are approved. For this reason, it is nearly inarguably and substantively good. Ideally, one should be able to refer to CEQA as a consistent guide to environmentally-conscious development because CEQA’s inherent goal of reducing impacts is beneficial.

Procedurally, however, it is problematic. CEQA procedural requirements come from three sources: implementing regulations, case law, and statutes. All three sources have begun to recognize the need for procedural change. Some examples are the ability of the Office of Planning Resources (OPR) to change guidelines because of Court of Appeal decisions, very short statutes of limitations (either 180 or 30 days) to file suit, the lack-of-compliance-requirements for ministerial approval, and–the ultimate white flag–approval despite environmental impacts by adopting a statement of overriding consideration.

II.  Areas for Improvement

While steps have been taken to trim the headache that is CEQA, more can be done. All three procedural sources have areas for improvement.

A.  Too Many Accountability Parties and Varying Exemptions

The CEQA process requires three distinct agencies with different roles: a lead agency, a responsible agency, and a trustee agency. While this serves to enhance accountability, it also creates regulatory burdens, for each agency has different roles and responsibilities.

The Lead Agency is the public agency that has the primary responsibility for carrying out or approving a project.[1] A Responsible Agency is a public agency with some discretionary authority over the project.[2] A Trustee Agency is a State agency having jurisdiction over natural resources for the public trust.[3] The Trustee Agency and the Responsible Agency roles should be collapsed into one. This will diminish confusion—communication between agencies requires time and resources–and reduce barriers to entry for proposing, lead agencies.

An added complication comes in the form of various exemptions. In regard to agencies, there are categorical exemptions prescribed by the Secretary of Resources.[4] Further complicating the matter is that there are exceptions to the exemptions. These categorical exemptions are in addition to statutory exemptions set by the Legislature. These layers of exemptions lead to variability and confusion. For this reason, there should be one list of statutory exemptions without waverability (except in extreme circumstances), and they should all be held to the same procedural requirements. In the case of a necessary exception to an exemption, the Legislature should provide courts with a concrete protocol to decide the matter.

B.  Inconsistent Court Decisions and Two Standards of Review

Courts’ decisions are inconsistent, and there is widespread abuse of CEQA lawsuits for non-environmental purposes.[5] Courts should implement a uniform, high-threshold standard of review that would emphasize the Trustee/Regulatory Agency’s (see above) ultimate substantive authority; thus, the substantial evidence standard. Courts should only use CEQA as a way to achieve the requirements stated in statutes and guidelines. This would substantially diminish variability in the court system.

As a preventative measure, courts should impose strict sanctions on plaintiffs for bringing frivolous NIMBY lawsuits. The positive results of this will be seen as sanctions are implemented.

C.  State-Wide Regulations from the Legislature

The above-mentioned areas for improvement can be solved with increased legislation surrounding CEQA. The Legislature must carve out more exceptions to CEQA to accommodate the categorical exemptions provided by the Agencies (see above).[6] Other suggestions include: different punishment for procedural versus substantive mishap delays; a pro/con net point valuation for projects that would result in a zero-sum game overall; different requirements for entrepreneurs versus giant corporations (based on size and/or anticipated profits); and assumption of property right guarantee before project commencement. There should be tiers of CEQA compliance and exceptions with information about potential environmental degradation being the priority.

III.  Conclusion

CEQA was enacted to protect the environment and ensure that voters are given all necessary information when casting a vote. In this way, the substantive goals and concept are simple; but bureaucracy has made the procedural process exceedingly difficult. There is work that needs to be done, but an efficient CEQA process is within sights if the legislature steps up and creates the necessary changes. All in all, California would rather have than have not, for the goals of CEQA are exceedingly important.

 

 

[1] CEQA Guidelines 15367.

[2] CEQA Guidelines 15051.

[3] CEQA Guidelines 15386.

[4] Pub. Res. Code § 21084(a).

[5] Jennifer Hernandez, California Environmental Quality Act Lawsuits and California’s Housing Crisis, Hastings Environmental Law Journal 24 (2017).

[6] CEQA Guidelines 15260-15285.

An Overview of Senate Bill 827

By: Andrew Angeles

Since it was introduced on January 03, 2018 by State Senator Scott Weiner, Senate Bill 827 has been a controversial piece of legislation for California.  The bill could have drastic impacts on California’s land use and housing developments. This client alert aims to break down what the bill does and the major provisions of the amended bill.[1]  This alert will also summarize arguments for and against the bill to inform readers on the potential implications of the policy.

What does SB 827 do?

In its most recent form, Senate Bill 827 would add Chapter 4.35 to the Government Code relating to land use.  The bill creates a bonus for transit-rich projects.[2]  Transit-rich projects are defined in the bill as a residential development projects with all parcels that are ½ mile of a major transit stop or ¼ mile of a stop for a high-quality bus corridor.[3]  High quality bus corridors are fixed bus route services with service intervals of 15 minutes, 20 minutes, 30 minutes dependent upon the time of day.[4]  If a developer complies with the SB 827 planning standards, local governments would be required grant the bonus.  For compliance, developers must meet the requirements for:[5]

  • Demolition permitting
  • Local inclusionary housing ordinances
  • Locally adopted objective zoning standards
  • Locally adopted minimum unit mix
  • Preparation of a relocation benefits and assistance plan.

The bonus is valuable for developers because it preempts local zoning ordinances and exempts the developer from several requirements.  In doing so, the bill bolsters developers and allows for more dense developments near major transit stations and bus stops.  The caveat for recipients is that they must provide benefits to people displaced by a project such as payments, relocation benefits, and assistance plans.  At its essence, the bill makes it easier for developers to build large and dense developments near transit hubs while the displacement assistance attempts to mitigate housing lost.[6]

April 10, 2018 Amendments

The latest amendments incorporate feedback from supporters and opponents of the bill.[7]  The minimum heights requirements were decreased, an 85-foot height allowance was removed, and bus corridors were redefined to apply to fewer stops.[8]The result is that the bill “has been downsized” by the amendments.[9]  These amendments attempt to ensure that the law creates more affordably housing rather than high-rise apartments.

In addition, some amendments directly address affordable housing. For example, if a development has 10 or more units, then a portion must be reserved for low income housing.[10]  Developers also must replace any affordable housing demolished during a project.[11][12]  The amendments also require applicants to provide each resident of the development a free recurring monthly transit pass.[13]

Viewpoints on Implications of the Bill

Proponents of SB 827 include developers, affordable housing advocates, and environmental advocates.  Supporters argue that SB827 would contribute more higher density residential housing helping to alleviate the housing crisis.[14]  Further developments near transit hubs would mean a higher reliance on public transit alleviating traffic issues.[15]  Environmentalists contend that the increased density and lack of parking will force Californians out of cars. (decrease the per person vehicle miles traveled and therefore decrease GHG emissions).[16]

Opponents of the bill argue that SB 827 will allow for wealthy developers to create high priced/luxury housing displacing existing communities.[17]  Particularly San Franciscans are concerned that the new housing bill will result in the Bay Area looking more like Manhattan, NY.[18]  Critics argue that throughout the state low-income communities will be priced out and pushed away from public transit making the housing crisis worse and creating transportation problems.[19]

Takeaways

Why is SB 827 relevant and you should care about it?

SB827 could have a dramatic impact on California’s housing with many potential pros and cons.  If passed, the bill could decrease housing prices and Californians will have more places to live.  If nothing is done, California will still face a steep cost of living and housing prices. Without the bill, California would still need to do something about transit issues (reliance on cars), and housing. The amendments help the affordable housing concerns, but are they enough?  If you are planning on moving to or within California, this bill could change what California looks like, your housing options, and transit options. Even if you don’t plan on moving, you will see the ramifications of the bill or lack thereof in California’s cost of living.

You should care about the bill because the policy is still being hotly debated and formed. The next steps for the bill is a hearing by the California Senate’s Transportation and Housing Committee on April 17, 2018.[20] With the heated discussion around the bill, more negotiations and changes to the bill are expected.    It is crucial for Californians to be vigilant of changes and the potential consequences.  The public discourse has had a dramatic impact in shaping the bill thus far.[21] Since the bill can have large ramifications for all Californians, it is essential that citizens vocalize concerns and provide thoughtful feedback.

 

[1]At the time of writing, the Bill was amended April 10, 2018.

[2]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[3]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (f), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[4]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (d), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[5]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[6]Note: please be aware that this article does not contain all the specific details of SB 827 due to its complexity.

[7]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

[8]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/(from 8 stories to 5 stories (for developments ¼ mile surrounding a transit hub) and from 5 stories to 4 stories (for developments ½ mile away)

[9]Id.

[10]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[11]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[12]Note: The amendments also prevent SB 827 from applying under Ellis Act evictions.  The bill would also have a delayed start (starting January 1, 2021). The delayed start would allow local governments plan for the new bill through studies and updating policies.

[13]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[14]Letters to the Editor, Cities caused housing crisis, SB 827 fixes it,Mercury News (Mar. 25, 2018) https://www.mercurynews.com/2018/03/25/letter-cities-caused-housing-crisis-sb-827-fixes-it/

 

[15]Tom Means, Opinion: SB 827 helps solve Bay Area housing, traffic challenges,The Mercury News (Mar. 19, 2018) https://www.mercurynews.com/2018/03/16/opinion-sb-827/

[16]Matthew Yglesias, The Myth of “forcing people out of their cars”,VOX (Mar. 19, 2018), https://www.vox.com/policy-and-politics/2018/3/19/17135678/sb-827-cars-california-transit-trains-buses

[17]Tara Sreekrishnan, SB827 will exacerbate California’s housing crisis, The Mercury News (Mar. 24, 2018), https://www.mercurynews.com/2018/03/24/opinion-sb-827-will-exacerbate-california-housing-crisis/

[18]Riley McDermid, New housing bill to add housing near transit has residents worried about the ‘Manhattan-ization’ of the Bay Area,Silicon Valley Business Journal (Mar. 5, 2018) https://www.bizjournals.com/sanjose/news/2018/03/05/sb-827-wiener-transit-housing-bill-density.html; See also Adam Brinklow, SF Planning Commission cringes at Wiener’s transit-housing bill,SF Curbed (Mar. 16, 2018) https://sf.curbed.com/2018/3/16/17130904/san-francisco-planning-commission-wiener-housing-transit

[19]Id.

[20]Matt Tinoco, SB 827: A guide to California’s transit density, housing bill, LA Curbed https://la.curbed.com/2018/4/10/17178288/california-senate-bill-827-transit-zoning-los-angeles

[21]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9, 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

Since it was introduced on January 03, 2018 by State Senator Scott Weiner, Senate Bill 827 has been a controversial piece of legislation for California.  The bill could have drastic impacts on California’s land use and housing developments. This client alert aims to break down what the bill does and the major provisions of the amended bill.[1]  This alert will also summarize arguments for and against the bill to inform readers on the potential implications of the policy.

 

What does SB 827 do?

In its most recent form, Senate Bill 827 would add Chapter 4.35 to the Government Code relating to land use.  The bill creates a bonus for transit-rich projects.[2]  Transit-rich projects are defined in the bill as a residential development projects with all parcels that are ½ mile of a major transit stop or ¼ mile of a stop for a high-quality bus corridor.[3]  High quality bus corridors are fixed bus route services with service intervals of 15 minutes, 20 minutes, 30 minutes dependent upon the time of day.[4]  If a developer complies with the SB 827 planning standards, local governments would be required grant the bonus.  For compliance, developers must meet the requirements for:[5]

  • Demolition permitting
  • Local inclusionary housing ordinances
  • Locally adopted objective zoning standards
  • Locally adopted minimum unit mix
  • Preparation of a relocation benefits and assistance plan.

The bonus is valuable for developers because it preempts local zoning ordinances and exempts the developer from several requirements.  In doing so, the bill bolsters developers and allows for more dense developments near major transit stations and bus stops.  The caveat for recipients is that they must provide benefits to people displaced by a project such as payments, relocation benefits, and assistance plans.  At its essence, the bill makes it easier for developers to build large and dense developments near transit hubs while the displacement assistance attempts to mitigate housing lost.[6]

 

April 10, 2018 Amendments

The latest amendments incorporate feedback from supporters and opponents of the bill.[7]  The minimum heights requirements were decreased, an 85-foot height allowance was removed, and bus corridors were redefined to apply to fewer stops.[8]The result is that the bill “has been downsized” by the amendments.[9]  These amendments attempt to ensure that the law creates more affordably housing rather than high-rise apartments.

 

In addition, some amendments directly address affordable housing. For example, if a development has 10 or more units, then a portion must be reserved for low income housing.[10]  Developers also must replace any affordable housing demolished during a project.[11][12]  The amendments also require applicants to provide each resident of the development a free recurring monthly transit pass.[13]

 

Viewpoints on Implications of the Bill

Proponents of SB 827 include developers, affordable housing advocates, and environmental advocates.  Supporters argue that SB827 would contribute more higher density residential housing helping to alleviate the housing crisis.[14]  Further developments near transit hubs would mean a higher reliance on public transit alleviating traffic issues.[15]  Environmentalists contend that the increased density and lack of parking will force Californians out of cars. (decrease the per person vehicle miles traveled and therefore decrease GHG emissions).[16]

 

Opponents of the bill argue that SB 827 will allow for wealthy developers to create high priced/luxury housing displacing existing communities.[17]  Particularly San Franciscans are concerned that the new housing bill will result in the Bay Area looking more like Manhattan, NY.[18]  Critics argue that throughout the state low-income communities will be priced out and pushed away from public transit making the housing crisis worse and creating transportation problems.[19]

 

Takeaways

Why is SB 827 relevant and you should care about it?

 

SB827 could have a dramatic impact on California’s housing with many potential pros and cons.  If passed, the bill could decrease housing prices and Californians will have more places to live.  If nothing is done, California will still face a steep cost of living and housing prices. Without the bill, California would still need to do something about transit issues (reliance on cars), and housing. The amendments help the affordable housing concerns, but are they enough?  If you are planning on moving to or within California, this bill could change what California looks like, your housing options, and transit options. Even if you don’t plan on moving, you will see the ramifications of the bill or lack thereof in California’s cost of living.

 

You should care about the bill because the policy is still being hotly debated and formed. The next steps for the bill is a hearing by the California Senate’s Transportation and Housing Committee on April 17, 2018.[20] With the heated discussion around the bill, more negotiations and changes to the bill are expected.    It is crucial for Californians to be vigilant of changes and the potential consequences.  The public discourse has had a dramatic impact in shaping the bill thus far.[21] Since the bill can have large ramifications for all Californians, it is essential that citizens vocalize concerns and provide thoughtful feedback.

 

[1]At the time of writing, the Bill was amended April 10, 2018.

[2]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[3]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (f), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[4]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (d), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[5]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[6]Note: please be aware that this article does not contain all the specific details of SB 827 due to its complexity.

[7]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

[8]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/(from 8 stories to 5 stories (for developments ¼ mile surrounding a transit hub) and from 5 stories to 4 stories (for developments ½ mile away)

[9]Id.

[10]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[11]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[12]Note: The amendments also prevent SB 827 from applying under Ellis Act evictions.  The bill would also have a delayed start (starting January 1, 2021). The delayed start would allow local governments plan for the new bill through studies and updating policies.

[13]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[14]Letters to the Editor, Cities caused housing crisis, SB 827 fixes it,Mercury News (Mar. 25, 2018) https://www.mercurynews.com/2018/03/25/letter-cities-caused-housing-crisis-sb-827-fixes-it/

[15]Tom Means, Opinion: SB 827 helps solve Bay Area housing, traffic challenges,The Mercury News (Mar. 19, 2018) https://www.mercurynews.com/2018/03/16/opinion-sb-827/

[16]Matthew Yglesias, The Myth of “forcing people out of their cars”,VOX (Mar. 19, 2018), https://www.vox.com/policy-and-politics/2018/3/19/17135678/sb-827-cars-california-transit-trains-buses

[17]Tara Sreekrishnan, SB827 will exacerbate California’s housing crisis, The Mercury News (Mar. 24, 2018), https://www.mercurynews.com/2018/03/24/opinion-sb-827-will-exacerbate-california-housing-crisis/

[18]Riley McDermid, New housing bill to add housing near transit has residents worried about the ‘Manhattan-ization’ of the Bay Area,Silicon Valley Business Journal (Mar. 5, 2018) https://www.bizjournals.com/sanjose/news/2018/03/05/sb-827-wiener-transit-housing-bill-density.html; See also Adam Brinklow, SF Planning Commission cringes at Wiener’s transit-housing bill,SF Curbed (Mar. 16, 2018) https://sf.curbed.com/2018/3/16/17130904/san-francisco-planning-commission-wiener-housing-transit

[19]Id.

[20]Matt Tinoco, SB 827: A guide to California’s transit density, housing bill, LA Curbed https://la.curbed.com/2018/4/10/17178288/california-senate-bill-827-transit-zoning-los-angeles

[21]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9, 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

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