For day two of state housing week, we examine a pair of landmark environmental laws: CEQA and the Coastal Act. For good reasons, the assumptions behind much of the important environmental legislation passed in the late 1960s and early 1970s was that human activity was destroying the planet and that ordinary residents didn’t have a voice in large scale projects and decisions that impacted their lives and surroundings. As a result, many of the new rules motivated by the ecology movement created processes to scrutinize, study and sometimes limit or stop activities that were considered to be problematic. Land development and residential construction played a major role in sparking environmental awareness. Homebuilding was impacted by the new environmental framework.
I worked for environmental groups for twenty years. In examining these measures I am trying to respect their spirit by suggesting changes that will lead to better environment outcomes. Whereas CEQA was motivated skepticism towards change, the Coastal Act also included proactive, positive goals like enhancing access. How can we balance caution and hope? Newer environmental challenges like climate change and environmental injustice may require rapid shifts in existing patterns of habitation, transportation and industry, not just scrutiny of harmful proposals. It will take different tools to unpave paradise than it took to prevent it from being paved.
The California Environmental Quality Act is sometimes used to block new housing, delay and downsize housing, and extract/ extort payments from developers. To help address the housing crisis and promote environmentally beneficial infill development, the state can build upon reform proposals that make procedural fixes or exempt more projects:
1. require plaintiffs to identify themselves and their environmental stake in a project to help avoid repeated lawsuits by ‘fake’ grassroots groups
2. “Restrict judicial invalidation of project approvals to those projects that would harm public health, destroy irreplaceable tribal resources or threaten the ecology.” (This is a direct quote from Holland & Knight’s report on CEQA abuses.) In an example close to where I live, a judge found that the climate change impact analysis for a mixed income housing development on the parking lot of a light rail station was insufficient. Rather than requiring this part of the EIR to be updated, the city’s approval of the entire project was revoked.
3. Expand exceptions and streamlining for infill developments. For example, when jurisdictions produce EIRs for citywide or community plans, developments in these geographies should be exempt from CEQA, unless they are themselves polluting industries. Incidentally, Governor Brown was calling for this type of exemption as early as 1978 in his “An Urban Strategy for California” report. (See urban action program point 2: “CEQA exemptions for housing in built-up areas”
4. “Flip” the assumptions of CEQA impact and mitigation analysis for housing and planning in urban areas. The way CEQA has been written and interpreted, the more new homes that are proposedto be built in a specific development, or the more zoned capacity for future housing that is proposed for a land use plan, the more impacts there are considered to be and the more mitigation measures have to be adopted. Alternatives analysis for both housing developments and plans also assume that ‘less is better.’ The statue should be amended to acknowledge the environmental benefits of adding housing in areas where per capita driving and energy and water use are low. In these urban settings, failing to approve or zone for new homes should be the negative environmental impact that needs to be justified and mitigated.
The California Coastal Commission was created in 1976 to implement the Coastal Act passed by voters in 1972. To pun on a serious topic, it is probably the high-water mark of state level land use regulation in the United States. The Coastal Act and Commission advance important environmental goals. They try to ensure that people can access the coast and that sensitive marine and land natural resources are protected. It also has significant authority over land use in the coastal zone, adding an extra layer of rules and appeals to home constriction in these areas. Some of its land use powers, for example stopping landowners from blocking access to beaches, are critical to the broader mission. But when the Commission acts like a local zoning board and focuses on the height and visual conformity of infill buildings inside cities, it contributes to the growing housing shortage in coastal California. In part due to the coastal commission procedures, places like Venice are among the hardest places in the nation to add new homes. (In fact, the housing supply there has been shrinking). My personal belief is that protection of quaint seaside villages in remote areas on the California coast has its place, but so do allowing and encouraging coastal mid and high rise buildings, California’s versions of Vancouver or Rio de Janeiro or IJburg (Amsterdam) To focus coastal protections on environmental priorities, the state could:
1. Limit the Commission’s power over development in already urbanized areas to ensuring physical access to the coast, requiring replacement of demolished affordable homes and accommodations, and limiting destruction of natural resources. The commission should not have authority over building height or aesthetics in already developed urban areas.
2. Add a new article to the Coastal Act’s policy chapter focusing on climate change. Recent interpretation of CEQA have made it harder for cities to use EIRs to require new buildings to be designed so that habitable floors of homes are above anticipated sea rise and flood levels. The coastal act could take up some of the slack by addressing siting and construction of new housing.
3. Strengthen goals of encouraging coastal access by encouraging more homes of all types near the coast (to complement strategies to encourage people from all over to visit coastal areas). The Coastal act includes language on the positive interaction of denser development and mass transit in coastal urban areas. But as with CEQA, it is easy to use the Coastal Commission to block a three story building but hard to require cities to adequately upzone. Letting more people live near the coast will allow more people to enjoy it. Building more homes of all types closer to the coast will also help address the climate change challenge of rising heat impacting the many Californians forced to lived in hot areas inland due to high costs closer to the Ocean. I'm not sure how best to accomplish this goal without contradicting point 1 above. Maybe coastal plans could remove local limits on density near transit?