OPINION: Strengthening CEQA to help solve the housing crisis

What if the much-maligned environmental law linked jobs to housing? That would fight displacement and encourage regional cooperation

CEQA, the California Environmental Quality Act, has long been the bugaboo of developers who – surprise, surprise — don’t like restrictions, regulations, rules or zoning getting in the way of their ability to build whatever they feel will generate the maximum level of profits.

While there may be instances in which CEQA itself is used by businesses who want to squelch competition, a deliberate process to protect our environment and to ensure livability as well as sustainability is well worth the tradeoff of the scrutiny which that deliberation creates.

What if Cupertino had to allow housing — or the Apple campus couldn’t be built?

In the most bizarre of alliances, developers throughout the state (aka the Developer Industrial Complex) seem to be in lockstep with some affordable housing advocates and Yimby groups (“Yes in My Back Yard”) in wanting to weaken CEQA’s protections. It should be duly noted that in some cases the Yimby groups are in reality AstroTurf organizations funded by the developers and tech billionaire oligarchs who don’t want to be bothered with such troublesome niceties as environmental protections.

These groups blame CEQA, and in some cases parochialism, for California’s housing crisis.

Yet a move towards a solution of our state’s housing crisis involves strengthening, not weakening some of CEQA’s provisions.

Here’s how:

In theory, cities currently need to consider the impacts of commercial projects on population and housing. For an EIR or Mitigated Negative Declaration (MND) CEQA asks:

“Would the project: 

  1. Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)?

  1. Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere?

  2. Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere?

However, even if there are significant and immitigable impacts, municipalities can make a statement of overriding considerations in approving a project.  So let’s say a city approves a new tech campus which would create 50,000 jobs but doesn’t create housing for the additional employees. Said city could simply adopt a statement of overriding considerations and approve the project, leaving the housing impacts to other neighboring cities.

Of course, that’s not fair, and that needs to change.

This proposal to strengthen the housing provision of CEQA would encompass the following change: a declaration of overriding considerations for housing would no longer be permissible nor would projects creating significant housing impacts be allowed to move forward without putting viable housing solutions in place. 

Clearly, the lead agency city could solve the housing impacts by planning to create the necessary housing itself within its borders.  However, the city could also work to fulfill the housing demand with neighboring cities within the regions. Such collaboration would naturally allow the neighboring municipalities who agree to become part of the housing solution also to negotiate with the lead agency a share of the public benefit generated by the project.

Responsibility for dealing with the impacts of a project can and should be shared with the developer. The corporation or corporations creating the additional housing demand should themselves be called upon to share in the cost of the creation of housing which their development is projected to cause.

A strengthening of CEQA to preclude statements of overriding considerations for the housing impacts would actively encourage – in some cases push – regional cooperation and would not allow a city to reap the benefits of a commercial development while “dumping” the solution on neighboring cities. 

This practice, in part, would seem to explain San Jose’s frustration with some of what is happening in Silicon Valley and why the mayor – out of sheer desperation – is supporting the misguided bill SB827, which would ram by-right, poorly-planned density down cities’ throats, using transit as an alibi.  (SB827 would override cities’ local general plans and permit developers to build state-dictated levels of density within areas which are supposedly served by “mass transit,” defined as four buses an hour during rush hour.)

Let’s not make any bones about it: SB827, in its indiscriminate upzoning, not only represents one of the largest wealth transfers from the public to the private sector in California history. It also takes a notoriously regressive view of public transportation. As transit and commute patterns change, we should be looking, if anything, at AOD (Autonomous Oriented Development) and not the outmoded TOD (Transit Oriented Development) which is the densifiers’ justification. 

Transit should, of course, serve urban planning, and not the other way around.  By flipping things on its head, SB827 cannot turn transit into something it is not. Instead of creating more affordable housing, SB827, would, in fact, turn transit into an amenity for the developers of luxury condos, simply increasing the trends of gentrification and displacement, which so many communities of all colors are concerned about. 

A strengthening of CEQA that links job magnets to housing and which makes housing solutions a prerequisite to project approval would, on the other hand, address the housing crisis at its core, while maintaining the good government principle of subsidiarity, which embraces governmental decision-making as close to home as possible. 

Local control is a key element of good government, but it also demands local responsibility. Most supporters of local control would acknowledge that it does not give cities carte blanche to foist off the impacts of project approvals onto neighboring areas. Situations in which cities can’t solve problems on their own are situations in which subsidiarity would call for regional cooperation and regional solutions.

Preserving the integrity of neighborhoods, while allowing choices about the kind of growth communities themselves want, should be local prerogatives. However, if a community decides to grow in such a way that the growth creates a significant increase in housing demand, then that community needs to present a viable solution, either on its own or in conjunction with neighboring communities who can agree to a joint vision and strategy.

Strengthening CEQA’s housing provisions would force cities to deal with housing challenges as they are created, rather than kicking cans down the road to other cities or to the future, and, in the process, would call on developers to step up and take responsibility for the impacts of their projects, both from a financial and planning perspective, as their projects would not be allowed to move forward without solutions in place.

And while the political and economic oligarchy that does such a good job of controlling Sacramento might decry this strengthening of CEQA as a “job killer” or while we might hear the standard drivel about projects no longer “penciling out,” as sure as the night follows the day, projects will still end up getting built; only now, as they get built, solutions to their impacts will have to be effected, as well.

In strengthening CEQA housing requirements and demanding accountability – rather than through misguided developer giveaways or crony capitalistic Sacramento master-planning — we can finally create ongoing solutions to our state’s housing crisis.

John A. Mirisch is vice mayor, City of Beverly Hills

20 COMMENTS

  1. An organization whose mission statement is to “strengthen low-and moderate-income Latino families by promoting economic equity and social justice” does not set a good example. Ya think?
    MEDA was against SB 35 until it was for it.

  2. I’m not sure the MEDA director has ever really been looking out for his neighborhood as much as he has been looking to make a quick buck. I wouldn’t make MEDA your poster child without looking into a bit further.

  3. Thanks for clarification. Transit priority is within .5 miles of a bus or train? That would include the entire shoreline from Malibu to San Clemente.

    Bypassing CEQA will weaken the validity of Environmental Impact Reports, making it much easier to develop on shorelines and other environmentally sensitive areas.

  4. Well right off the bat the report is showing different numbers than you. Are you sure this is your source? Here’s the bullet point from the report:

    • Of the cases which could be characterized as involving “greenfield” or “infill” projects, 59% involved infill development projects.

    Here’s your bullet point:

    -80% of CEQA lawsuits target urban infill projects, not greenfield

    Total the report is based on 95 projects that were challenged by CEQA lawsuits. The largest challenge locally appears to be the Oakland estuary development, which environmentally is an atrocious development.

  5. Its interesting that the Apple campus is pictured in this article. This Chronicle article highlights another Scott Weiner sponsored law that sidesteps CEQA in housing development that may help create housing in Cupertino.

    “..seek to invoke SB35..a proposal to replace an antiquated shopping
    mall near the Apple campus in Cupertino with a 2,400-unit residential
    complex.”

    https://www.sfchronicle.com/politics/article/Mission-housing-project-invokes-law-to-exchange-12815332.php?utm_campaign=twitter-premium&utm_source=CMS%20Sharing%20Button&utm_medium=social

    But in conjunction with sidestepping CEQA, another core progressive principle is also being abandoned: Inclusionary zoning as a strategy to promote civic tolerance and understanding by breaking the pattern of housing being segregated by social class.

    “Rogers(SF Planning policy advisor) said she expects most of the projects that take advantage of SB35 will be 100 percent affordable.“It’s really unusual for us to see a project that is 50 percent affordable and 50 percent market rate,”

    So, by focusing only on numbers of housing units, we’re slipping back into accepting that “separate but equal” is just and results in social harmony. Well it didn’t and it won’t.

  6. I suspect the composition of CEQA lawsuits is unflattering regardless of how the data is presented. Perhaps this is why no environmental groups have offered a competing analysis?

    Sure, the authors of the Holland and Knight study are biased, but that doesn’t mean the report is bad. One of the big criticisms is they use OPR’s definition of infill, which is fairly broad. We don’t know what the data would look like with a narrower definition because oddly enough, no one has done it.

  7. Do you have any data from alternative sources? E.g. about the percentage of infill vs greenfield ceqa lawsuits? I’d love to see it

  8. Please note that the above troll’s figures come from the study by Holland & Knight, whose website boasts of being “the third largest real estate practice in the world, according to The Lawyer magazine.”

  9. Just out of curiosity, what has Beverly Hills done lately to address the jobs/housing balance? Is it requiring new luxury boutiques to help pay for housing in Beverly Hills for those who work in or clean the boutiques? Or do its oppressed residents simply want another cause of action to bring against projects outside Beverly Hills that might inconvenience their commute?

  10. There is something to be said for having housing close to employment opportunities. There’s also something to be said for being able to live wherever you want.

    Letting Brisbane add 5000 (50,000?) jobs to the Badlands without a stitch of housing is insane. I guess they want to do that because of all the commercial tax revenue, w/o having to invest in schools, libraries and residential amenities.

    Perhaps the revenue ought to be shared on a regional basis. But that would require a degree of cooperation across local lines that threatens the fiefdoms of too many parochial politicians. THAT is where the state can step in. Why aren’t they?

  11. This is a great plan. Instead of building needed housing during a housing shortage, let’s try to stifle the economy and reduce aggregate wages to lower the cost of housing. Brilliant plan by the former mayor of Beverly Hills.

    For anyone who still does not know: CEQA is a primarily a nuisance law masquerading as environmental protection legislation. Some quick facts:

    -80% of CEQA lawsuits target urban infill projects, not greenfield

    -64% of the petitioners filing CEQA lawsuits are either individuals or local “associations” that often have no prior track record of environmental advocacy. By contrast, recognized state and national environmental advocacy groups comprise only 13 percent of CEQA petitioners.

    -49 percent of all CEQA lawsuits target taxpayer-funded projects with no business or other private sector sponsors.

    -CEQA’s most frequently targeted public infrastructure project: transit.

    -CEQA’s most frequently targeted industrial/utility project: renewable energy.

    -Threat of a of a CEQA lawsuit is commonly used by 3rd parties to extract concessions from developers

    -The Sierra Club uses CEQA against urban infill projects to preserve “quality of life” for existing residents, indirectly promoting sprawl and increasing per-capita carbon output