According to a new study by UC Berkeley and Columbia University, local land use processes, specifically the approval process, rather than the California Environmental Quality Act, is the main impediment to housing production in California.
CEQA only comes into play if a city or county decides to review housing developments individually. If a local government relies on zoning or other processes to determine whether a particular project gets built, developers don’t have to go through the CEQA process.
“It’s a choice that local governments are making,” said Eric Biber, a law professor at UC Berkeley and one of the report’s authors.
In a column last October for CityWatch, a Los Angeles' opinion, news and information website, Biber wrote, "CEQA only applies to a project if the local government’s land-use approval process is discretionary. If the project is 'as of right,' as a general matter, no CEQA compliance is required."
The BerkeleyLaw report, "Getting it Right: Examining the Local Land Use Entitlement Process in California to Inform Policy and Process," released this month, examined five Bay Area cities: San Francisco, Oakland, San Jose, Redwood City and Palo Alto.
Key Findings (from BerkleyLaw webpage):
We found that these local governments are imposing discretionary review processes on all residential development projects of five or more units within their borders. That means even if these developments comply with the underlying zoning code, they require additional scrutiny from the local government before obtaining a building permit.
This triggers CEQA review of these projects. In other words, what drives whether and how environmental review occurs for residential projects is local land-use law. Our data shows that in many cases, these cities appear to impose redundant or multiple layers of discretionary review on projects.
However, individual CEQA review was required by only 20 percent of the developments in the five cities during the study period. notes Dillan. "The remainder didn’t have to go through that analysis because of prior environmental reviews and other exemptions."
Recommendation (italics added):
The value of improving access to good data cannot be overstated.
Although top-down state reform of environmental regulations (or local regulation over land use) may encounter substantial difficulties, something the state could do now would be to provide guidance to jurisdictions on how to provide better access to accurate project-specific data on land use approvals, and require all jurisdictions to maintain relevant data in a central repository.
Dillan reports that Biber praised last year's controversial housing bill, SB 35, by Sen. Scott Wiener, Democrat from San Francisco, signed into law by Gov. Jerry Brown last July, that streamlines the approval process for eligible housing developments in all but 13 of California's 482 cities and 58 counties.
The 26-page working paper [pdf] was co-written by:
- Giulia Gualco-Nelson, JD, University of California at Berkeley, Berkeley Law
- Moira O’Neill, JD Associate Research Scientist, Law and City & Regional Planning, Institute of Urban and Regional Development, University of California at Berkeley; Adjunct Associate Research Scholar, Graduate School of Architecture Planning and Preservation, Columbia University.
“This is much more than CEQA,” Biber said. “Really if you just went after CEQA, you’re not going to solve the problem.”
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