Should states have environmental review statutes for rezonings?

Michael Lewyn's picture

After reading an article on the misuse of CEQA in California,* I took a short look at New York law.  In New York, city planners must prepare an environmental assessment when property is rezoned, and must prepare a more detailed environmental impact statement (EIS) if property has a significant effect on the environment.  

For example, my property law textbook has the case of Fisher v. Giuliani (720 NYS 2d 50).**  In that case, the city sought to allow additional development in certain parts of Manhattan's Theater District.  According to the court, the rezoning "did modestly increase the density of particular sites via the transfer of development rights from theaters"- in other words, it allowed development to be transferred from blocks containing historic theaters to other blocks.   The city prepared a 75-page environmental assessment.   This assessment, however, was not enough for the local Not-In-My-Back-Yard lobby, which argued that a full-scale EIS was needed. 

A New York trial court also endorsed a full-scale EIS, holding that the rezoning would create a significant impact because they would "stimulate development"- something that would be true of any upzoning, anywhere, anyplace, anytime.  The New York appellate courts disagreed- but not until three years after the city approved the rezoning.

What do I get out of this case?  First, that in states with environmental review statutes, any rezoning, anywhere, may be subject to years of bureaucratic review and court challenges that would not occur in other states.  

Second, it seems to me that because developers in such states will need to wait for environmental assessment (and maybe for an environmental impact statement as well), environmental review statutes will therefore discourage any development requiring a rezoning, thus constricting the supply and raising the cost of both residential and commercial development.  

Third, I suspect that the environmental review process may encourage development to shift towards outer suburbs.  Here's why: I would guess that infill development is probably more likely to require rezoning than "greenfield" development of semirural areas, and is certainly less likely to attract neighborhood opposition since in the latter type of area fewer people are around to complain.  Thus, the environmental review process may reduce infill development more than it reduces greenfield development.   Having said that, I don't wish to overstate my case: New York and California are certainly high-cost states, but I am not sure how much of this high cost is related to environmental review status.  Moreover, the central cities in California and New York (well, downstate New York anyhow) are healthier than those of many other states, indicating that if environmental review statutes favor sprawl, their impact is not enormous.  



Michael Lewyn is an assistant professor at Touro Law Center in Long Island.





Thanks for drawing attention to this issue. I have found that many planners are uncomfortable with this topic, and can often be quite hostile to any discussions of streamlining environmental review. But here in California, CEQA (our state-level "baby NEPA") is one of the biggest, if not the biggest, obstacles to implementing anything resembling a Smart Growth agenda. Soon or later, we're going to have to face up to this basic fact. So far we, as a community of progressive-minded planners, have not even come close.

It's not that (in California) infill development has to undergo environmental review and that exurban fringe development does not; in most cases, both do (although I'm not sure if one category has a higher rate of being required to produce full-blown EIRs). It's that infill developments are much more likely to have organized neighbor groups that either launch lawsuits or threaten to do so. Virtually any aspect of a given project's environmental review seems to be open for contestation -- it seems that we never arrive at a stable state where the acceptable scope of environmental review is settled and widely agreed upon. That gives tremendous leverage to neighbors, who may or may not be public-spirited. Appeasing these groups often leads infill developers to cut back on the density of their projects, or to add expensive bells and whistles that wouldn't otherwise be required.

I think that another under-recognized aspect of CEQA is that it falls heaviest on smaller-scale projects. It is a structural disincentive to fine-grained, incremental urbanism of the sort that all of us self-professed progressive-minded planners claim to champion. An environmental review process represents the absolute antithesis of the creativity and inventiveness that is required to change land uses in a complex, fast-paced city. It is the worst possible type of regulation, demanding exhaustive analysis with reference to precedents, and discouraging experimentation.

My proposed policy solution? I would start by providing absolute, total exemption from all CEQA requirements for two categories of projects:

1) Housing-oriented developments (let's say, projects where 80% or more of non-parking related square footage is for residential uses) in which at least 10% of units are rented at 80% of AMI or sold for less than 100% of AMI, and that lie within a quarter mile of a rail transit station.

2) Any project that proposes to remove public right-of-way currently used exclusively by automobiles and reallocate it, in whole or in part, to non-auto uses.

(I'm dreaming here, obviously.)

Anyways, thanks for bringing up this topic. I enjoy your posts and look forward to you training your legal mind on environmental review more in the future!

Jake Wegmann

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