By David M. Greenwald
Executive Editor
Reading Dan Walter’s column this week, he noted the clash between California Gov. Gavin Newsom and conservative commentator Sean Hannity—one of the points that Hannity focused on was the California housing crisis.
“Because housing costs are too high,” Newsom replied to a question. “Our regulatory thickets are too problematic. Localism has been too impactful, meaning people locally are pushing back against new housing starts and construction.”
Writes Walters in response: “Newsom’s synopsis of the issue is quite accurate. The state’s housing shortage stems from the over-regulation of development, largely driven by local opposition. It drives up costs to tenants and would-be homebuyers and pushes some into the streets.”
Walters added, “That cause-and-effect relationship was confirmed in a recent in-depth study of homelessness by a UC San Francisco research team.”
Walters then zeros in on a published article by Christopher Elmendorf, a law professor at UC Davis who specializes in housing issues, and Timothy Duncheon, a San Francisco attorney.
Their article published on June 23 in Ecology Law Quarterly “explores the slow-motion collision between two statutes at the center of California’s housing crisis: the California Environmental Quality Act and the state’s Housing Accountability Act.”
They argued that these two statutes have “a bonafide claim to being a ‘super-statute’—one that exerts a broad effect on the law.”
But because the two statutes came of age in different eras—the California Environmental Quality Act in the 1970s and the Housing Accountability Act in the 2010s— they “have fundamentally different institutional and normative premises.”
The article explores two problems: “(1) cities’ use of endless environmental review to launder the denial of housing projects that the Housing Accountability Act means to protect; and (2) analytical confusion about the proper scope of environmental review for projects protected by the Housing Accountability Act.”
As Walters notes, “They demonstrate through case studies that, while the latter attempts to streamline housing construction, the former is used to slow or even kill housing projects by local interests and labor unions.”
The authors note, “CEQA privileges slow, careful, deliberative evaluation of every possible environmental impact. If there is a fair argument that a project ‘may’ have any significant local environmental impact, CEQA compels the preparation of an exhaustive environmental impact report (EIR).”
Thus, “Litigation over the sufficiency of a CEQA clearance usually blocks construction while the case crawls along.”
The HAA, on the other hand, “calls for speed. It requires cities to notify developers of any general plan or zoning standards a project violates within thirty to sixty days after receiving the complete project application, and it stipulates that violations of the state’s Permit Streamlining Act (PSA) shall be deemed violations of the HAA”
Elemendorf and Ducheon focus on a notoriously torturous case in San Francisco, whose Board of Supervisors used CEQA to block a much-needed apartment project on a vacant downtown parking lot.
The key point which Walters fleshes out is that the conflict between these laws causes inherent problems for judges to determine which law predominates in a given situation.
Sometimes the courts will opt for CEQA while other times they opt for HAA.
“The ostensible ‘super-ness’ of the two statutes creates a predicament for courts and other actors because CEQA and the HAA could not be more different in their basic institutional and normative principles,” the authors write.
“CEQA’s working premise is that ‘new construction’ is bad for the environment,” they point out. “By contrast, the HAA regards housing construction in urbanized areas as presumptively good for the environment.”
The authors make another interesting point, that “courts in CEQA cases presume that cities act in good faith unless the city shortcuts environmental review. When pertinent facts and empirical inferences are disputed, courts defer to the city’s judgment.”
On the other hand this is not so under the HAA, “which eliminates the traditional deference courts gave to cities regarding a housing project’s compliance with local standards.”
While I tend to agree that CEQA has been misused, I would generally support the roadmap laid out by Elmendorf and Duncheon for reforming CEQA.
For example, they suggest limiting CEQA to cases in which there are genuine environmental issues, rather than allowing it to be misused for motives that having nothing to do with the environment—for the most part I don’t believe that CEQA in and of itself is the problem.
Rather it is one tool among many that are used to block housing projects. At the same time, the Housing Accountability Act has become something ignored by local communities who are pushing back against state mandated housing.
There are definitely communities that are pushing back against the HAA just as there are communities attempting to misuse CEQA.
Things like the Builder’s Remedy, the end of single-family zoning, are not likely to solve the housing crisis. The biggest thing that might help would be to reinstate Tax Increment Financing (TIF) for affordable housing or a reestablishment of RDA (Redevelopment Agency).
The other point I would make is that the housing crisis is not going to be solved overnight. It may be that the focus of the state is sufficient if continued for a sufficient length of time.
Short of that commitment, efforts by the state will inherently fail.
