Land Use Regulations on a Collision Course in California

The future of planning in California depends on how lawyers reconcile the Housing Accountability Act with the California Environmental Quality Act.

December 2, 2021, 8:00 AM PST

By James Brasuell @CasualBrasuell

California State Capital

cmshepard / Shutterstock

Christopher S. Elmendorf and Tim Duncheon write the first in a series of blog posts to examine the merging conflict between the state of California's Housing Accountability Act (HAA) and the California Environmental Quality Act (CEQA).

According to Elmendorf and Duncheon, the emerging conflict was made obvious when the San Francisco Board of Supervisors rejected a proposal for 495 apartments on a downtown parking lot. "Oakland and Sonoma have also used the same maneuver, albeit to much less fanfare."

According to the article, these examples are early indications of an "epic clash" between two examples of legal scholars Bill Eskridge and John Ferejohn have termed "super-statutes," and defined as followed:

(1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute.

The fact that both laws could be fairly classified as super-statutes creates a massive problem, which is likely to be litigated again and again for the foreseeable future: both the laws "could not be more different in their basic institutional and normative principles," according to Elmendorf and Duncheon.

In the second post in the series, which has also been published as of this writing, the authors show that CEQA and the HAA further elaborate on the idea that both CEQA and the HAA have plausible claims to being super-statutes.

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