By David M. Greenwald
Executive Editor
The Law Firm of Holland and Knight reviewed changes in the state housing laws last week called AB 1633, from Assemblymember Phil Ting, “the most direct reform in recent years aiming to crack down on excessive CEQA review practices that are weaponized against residential development.”
The law was inspired by the controversial decision by the San Francisco Board of Supervisors to uphold a CEQA appeal of a proposed 495-unit infill development project.
But even this law failed to directly take on CEQA or amend it.
Instead, “AB 1633 operates by defining two new violations of the Housing Accountability Act (HAA), which can expose jurisdictions to litigation and vulnerability to pay attorneys’ fees and penalties.”
Under AB 1633, however, it is now a violation of the Housing Accountability Act “to refuse to make a CEQA exemption determination when dealing with an AB 1633-protected project that is entitled to a CEQA exemption.”
As the attorneys explain, “This addition is designed to prevent local governments from insisting on full CEQA analysis when a project is entitled to bypass CEQA.”
It also creates a 90-day notice procedure, “whereby applicants who believe they are entitled to CEQA exemptions may protest when local governments proceed with CEQA review.”
If there is substantial evidence that the project is entitled to a CEQA exemption, “then the agency has 90 days to make an exemption determination. Failure to do so constitutes an HAA violation.”
The second major change is that it now a violation of the Housing Accountability Act “for a local government to hold a meeting at which an Environmental Impact Report (EIR) or similar CEQA document is considered, but decline to approve that document, if there is substantial evidence to support EIR certification and the project is protected by AB 1633.”
This directly addresses the San Francisco Board of Supervisors action.
Holland and Knight note “the Board of Supervisors indicated they were seeking to disapprove the project but avoided liability by technically only rejecting certification of the project’s EIR.”
AB 1633 does not apply statewide. Instead, it applies to project sites that are within an urbanized area and that meet one of four requirements:
- It is within one-half mile of a high-quality transit corridor or a major transit stop.
- It is located in a very low vehicle travel area.
- It is “proximal” to six or more amenities (bus stations or ferry terminals, grocery stores, parks, community centers, pharmacies, clinics or hospitals, libraries or schools).
- It is adjoined on three sides by parcels with urban uses (or 75 percent if not a four-sided site).
In addition, “Although it remains to be seen how often the law can be effectively invoked, the law makes important steps toward making a CEQA exemptions something an applicant can insist on—rather than something lead agencies can simply decline to adopt at their preference.”
