How NIMBYs Hijacked CEQA
The SoFi Stadium in Los Angeles is a testament to the ability of elected officials to streamline new developments to accelerate construction and save money. The stadium famously qualified for streamlining under the California Environmental Quality Act, or CEQA – a courtesy that is commonly extended to not just stadiums, but freeways, government structures, and other large, “popular” projects.
But just blocks away from SoFi, proposed affordable housing developments continue to be endlessly bogged down by the misuse of environmental litigation. Thus begins “Twisted Fate: How California’s Premier Environmental Law Has Worsened the State’s Housing Crisis, and How To Fix It,” a recent publication by attorney Noah DeWitt in the Pepperdine Law Review.
- CEQA as it exists today is a far cry from the original vision for the law, and a major barrier to infill multifamily housing production.
- Many recent efforts to reform CEQA have struggled to pass. Worse yet, many recent reforms that have passed have produced underwhelming results.
- California could learn from successful environmental review reform efforts in Massachusetts, Minnesota, and New York.
It’s hard to argue with the initial goals of the California Environmental Quality Act: As originally designed, CEQA forced public agencies to disclose and mitigate the environmental and public health impacts of major public projects. The Act has unquestionably led to improved environmental outcomes across most of the state, as questionable projects were blocked, or projects in need of improvement were appropriately refined.
The problem arises because, under current CEQA law, any private project that depends on “discretionary” approval—such as a rezoning, variance, or site plan review—must pass through CEQA. This has evolved to include such “environmental threats” as bike and bus lanes, mass transit projects, and, yes, infill multifamily housing near transit and jobs – exactly the kinds of homes we need to reduce our environmental footprint.
While the state has created various “categorical exemptions” to streamline specific types of projects, a typical residential development today nearly always has to run the CEQA gauntlet.
These mandates have increasingly been misapplied to more (and smaller) projects, such as small, multifamily buildings that require some sort of zoning relief. They’ve also been misused by groups with interests that bear little connection to environmental concerns. As DeWitt argues, this dysfunctional status quo is the inevitable result of decades of increasingly strict court decisions and tightening local zoning, which have served to expand the scope, scale, and cost of CEQA.
For this reason, CEQA reform has emerged as a popular issue in Sacramento. DeWitt breaks the recent wave of reform into four categories: litigation streamlining,1 judicial streamlining,2 expanded state zoning preemption,3 and piecemeal multifamily development strategies.4 As DeWitt notes, most of these initiatives failed, for a variety of reasons—see endnotes for greater detail. Other CEQA reform bills have passed, but with what the author characterizes as “fatal flaws.” Among these, DeWitt includes SB 35,5 SB 540,6 and AB 73,7 which trade CEQA exemptions for costly prevailing wage obligations that undermine the benefits of streamlining. Local efforts to reform CEQA have been even less successful, largely due to unfavorable court decisions.
So what can California do to fix CEQA? Perhaps the Golden State should look to other states that have successfully reformed their environmental review laws. In Massachusetts, Chapter 40B serves as a more streamlined alternative to California’s RHNA program, ensuring ministerial permitting for mixed-income housing. In Minnesota, comprehensive plans—i.e. general plans—are exempt from environmental review, as are rezonings adopted in compliance. In New York, anonymous environmental lawsuits are prohibited, standing requirements are higher, and municipalities may adopt local procedures better suited to their needs.
Ultimately, DeWitt suggests that—rather than exempting a handful of income-restricted housing developments, subject to various permitting hurdles or costly standards—CEQA reforms should aim to exempt all types of housing. He recommends that the state remodel RHNA after Massachusetts’ streamlined Chapter 40B program, exempt local general plans from CEQA in the style of Minnesota, and adopt New York-style prohibitions on anonymous litigation and stricter standing requirements.
1. For example, SB 995, which sought to cap CEQA litigation as 270 days, subject to certain provisions. This bill failed owing to what the author characterizes as “fairly baseless criticisms.”
2. For example, SB 55, which aimed to appoint CEQA-specific judges to promptly and professionally adjudicate disputes in California cities with over 200,000 residents. This bill also failed.
3. For example, SB 827 and SB 50, which would have allowed for more ministerial—and thus not subject to CEQA—multifamily development transit. While those bills failed, SB 9 and AB 2011—which exempt projects from CEQA in the same way—have passed over the past few years.
4. For example, AB 68, which guaranteed ministerial approval for accessory dwelling units (ADUs). Unlike the other bills highlighted, this bill passed, and has been key in kicking off the ongoing ADU building boom. A bill that sought to do the same for single-family-to-duplex conversions, SB 1120, wasn’t so lucky.
5. SB 35 affords ministerial approval for mixed-income housing projects in jurisdictions not on track to permit their Regional Housing Needs Assessment (RHNA) allocations.
6. SB 540 allows jurisdictions to designate Workforce Housing Opportunity Zones (WHOZs), completing a single EIR which in turn allows individual low-income housing projects to avoid CEQA mandates.
7. Similar to SB 540, AB 73 allows jurisdictions to complete an EIR that can cover the CEQA obligations for a broader low-income housing preservation acquisition program.
Flickr photo of SoFi Stadium on an NFL game day by Ron Reiring