If It’s Not CEQA, What Is It?

Timothy L. Coyle
Consultant specializing in housing issues

If the Habitat for Humanity affordable housing project in Redwood City isn’t an illustration of CEQA abuse, what is?

In fact, the California Environmental Quality Act (CEQA) is the cause of a 2-year delay in building the project, which matches up nicely with the region’s “smart growth” standards:   six stories and 20-units of lower-income, infill housing located downtown near transit lines, in the heart of Silicon Valley.  The project developer, nonprofit Habitat for Humanity Greater San Francisco, is waiting on a vacant lot, surrounded by a row of portable toilets, a trailer and a dumpster.  

Habitat is ready to go but they face a wise, local attorney, who is playing the now age-old game that neighborhood groups have been playing in California for years.  He filed a CEQA challenge and that brought the project to a halt.  He contends the city’s approval of the apartments violated a sweeping, decades-old environmental law, because the building could increase traffic.  But, really, the Habitat building will likely block the view from his home’s rear windows.

Once again, we are forced to have a public policy debate over whether the nearly 50-year-old law is preserving the state’s natural beauty or simply stopping construction of still another housing proposal.  On one hand, environmentalists say CEQA fairly and adequately protects communities from the negative impacts of new development.  Critics of the law point to the Habitat project and thousands more like it and argue CEQA makes stopping new housing too easy.

“This is not about the environment,” said Jennifer Hernandez, an attorney at Holland & Knight and a vocal advocate for change to the law.

CEQA requires that new public and private projects undergo rigorous reviews to prove they will not cause significant harm to the existing environment.  If they will cause harm, developers are usually faced with downsizing and mitigation.  But, while local agencies and planning departments ultimately sign off on this mitigation, under CEQA the public has another shot.  Indeed, for as little as $150 anyone can file a lawsuit challenging that a project has violated the approval process.  And, as the law allows, those suits are typically filed anonymously.

Now, proponents of CEQA are arming for this debate with ammo unlike their political threats of the past – designed to corner sympathetic lawmakers, no matter how mild the proposed reform, with appeals of “don’t gut CEQA”.  This time they are preparing to run their gambit with studies and “experts”.

University of California, Berkeley environmental law professor Eric Biber is part of a team researching the barriers to new housing in California. The initial leg of the study looked at projects in five Bay Area cities, how long it took for their approval and what steps the cities required.  In San Francisco, Oakland, Redwood City, Palo Alto and San Jose, Biber says CEQA was not an overriding obstacle.

Out of 254 projects studied, only seven faced CEQA lawsuits, according to the study’s most recent data, which the authors say is still preliminary.  Most of those suits they say also allege other non-CEQA violations of state zoning and planning law.  In other words, says the study, the environmental law that has drawn so much ire from developers is used to litigate only a small portion of projects and, without it, those projects would likely end up in court, anyway.

“I think it (CEQA) probably gets more attention than it deserves,” he said. “I like to think of CEQA as a symptom, not a cause of the underlying challenges we face in producing more housing in urban areas in California.”

But, what about the threats of CEQA litigation?  Aren’t developers – and local planners, for that matter – terrified at just the suggestion of a CEQA lawsuit?  Hernandez says the threats outnumber the actual lawsuits, and she compares CEQA abuse to an iceberg.

“The filed lawsuits are the tip,” says Hernandez.  “Underneath the water’s surface is the 90 percent of the iceberg, which is why we’ll spend three years trying to get a project approved.  And, every one of those days adds to the cost of housing.”

Surely, we could dance around the semantics of CEQA until the cows come home but it still may not explain what’s killing housing projects with regularity in California.  But, in the midst of a housing crisis brought on by substandard supply – and when neighborhood opposition is so central to projects, particularly multifamily, not being approved – shouldn’t we find out what’s wrong?

Again, if it’s not the multiple reviews required by CEQA stifling development in California, what is it?

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