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California State Archive
Lots of Housing Laws. Not much Housing. Part I
Hearing, data show how the state's 'streamlining' supply-side approach is failing.
Since the 1970s, apostles of growth have decried local control of land use as the evil that has to be stamped out if housing is ever to become abundant and broadly affordable. Today the gospel of market-oriented centralization has achieved hegemony—embraced by the planning profession, many environmentalists, virtually the entire news media, numerous academics, and the denizens of neo-liberal think tanks from coast (Berkeley’s Terner Center) to coast (NYU’s Furman Center).
Most importantly, as documented by a February report from Terner and the Urban Institute, that doctrine has been read into state land use law across the country, with California leading the way.
So are the new laws working?
Yes and No.
In California, the state has effectively preempted local land-use prerogatives but failed to boost housing production or increase affordability. Despite mounting evidence of those failures, the state’s legislators are doubling down on their preemptive, market-friendly course.
Sen. Scott Wiener and Assembly member Buffy Wicks talk about changes to CEQA.
California’s disappointing housing outcomes were heralded in mid-January by Terner’s report on the impact of SB 9, Toni Atkins’ controversial 2021 bill authorizing property owners to split a single-family-zoned lot and then build up to three homes on each of the two new parcels “by right,” that is, without a public hearing. The law conclusively eliminated zoning for single-family homes in the state. SB 9 took effect on January 1, 2022.
A year later, Terner found that SB 9’s impact had been “limited so far,” with “some of the state’s largest cities report[ing] that they have received just a handful of applications for either lot splits or new units.”
San Francisco had received four lot-split applications and approved two, and received 25 applications for SB 9 units and approved four.
Staff sugarcoat the bad news
The news got worse on February 28, when the Senate Housing Committee and the Assembly Housing and Community Development Committee held a joint oversight hearing presided over by their respective chairs, Senator Scott Wiener and Assemblymember Buffy Wicks.
According to the background paper prepared by the committees’ staff, the goals of the hearing were “to understand the recent actions taken by the state Legislature to increase housing production in the state, to ascertain their effectiveness, and to discuss further measures that will be necessary to address the housing crisis.”
The staff paper recites the supply-side catechism. The crisis in California, “where homeownership is out of reach to all but the most affluent, lower income households struggle to pay the rent, and homelessness is rampant,” is due to a “lack of housing.” At fault are the usual suspects—“local permitting and zoning barriers [“loosen the ‘stranglehold’ of single-family zoning,” a favorite Yimby meme], opposition to neighborhood change, segregation and exclusion, mounting construction costs, and a shortage of labor”—plus a culprit that’s too rarely mentioned: “There have not been sufficient federal resources to build housing across the continuum in our state.”
Would that the staffers had delved into that factor.
The paper summarizes 74 housing bills that the state has enacted into law since 2017 and, curiously, one 2007 bill, Sen. Gilbert Cedillo’s SB 2. It groups the statutes into the following categories: Housing Streamlining, i.e. removing local discretionary review and approval; Housing Element and RHNA [Regional Housing Needs Allocations] Reforms; Oversight and Accountability; Density Bonus Law; Entitlement Reforms and Public Land for Affordable Housing; Accessory Dwelling Units [ADUs] Missing Middle Housing; and Reducing Barriers to Housing Access.
Though lengthy, the list is incomplete, as its authors acknowledge. A footnote to the Housing Streamlining Bills discussion states: “This list focuses on housing streamlining measures and is not an exhaustive list of CEQA [California Environmental Quality Act] exemptions available to specified housing developments (i.e., as the CEQA exemption for Homekey projects or infill developments).” Most notably, the staffers left out SB 375, the groundbreaking 2008 statute that sought to reduce greenhouse gas emissions by knitting together housing and transportation policies.
They also omitted a crucial point: CEQA only applies to projects that require discretionary review and approval. Eliminate discretion, and you block action taken under CEQA.
Despite these omissions, the legislative inventory is impressive. So, too, is the record of administrative activity entailed by the new laws. In the last seven years, California has:
- Increased the amount of land on which housing can be built within existing cities both by directly making it legal and by requiring local governments to increase development capacity via the RHNA process.
- Expedited and simplified the approval process at the pre-entitlement, entitlement, and post-entitlement phases, including creating multiple pathways for by-right approvals for ADUs, deed-restricted affordable housing, and market-rate housing.
- Substantially increase[d] the funding for development of affordable housing and simplified the process for applying for funding.
- Created and funded enforcement capacity of state housing laws at HCD [Department of Housing and Community Development].
- Established incentives to increase pay for construction workers, thereby creating a pathway to rebuild the construction workforce.
What, then, has this legislative and administrative juggernaut accomplished on the ground?
The staffers’ answer to that question is equivocal:
“These changes have started to bear fruit. For example, ADU construction has exponentially grown from a handful each year statewide to over 10,000. In the past two years, affordable housing development has approached 20,000 units per year, doubling previous totals. And the adoption of local Housing Elements around the state has required cities to rethink how much housing they permit, where it is allowed, and the process to get it entitled. Nevertheless, there is certainly much more to be done before housing production reaches the levels necessary to ameliorate our housing crisis.”
Much more needs to be done indeed. As the paper states, the Department of Housing and Community Development (HCD) currently estimates that “California must plan for the development of more than 2.5 million homes over the next eight years,” including a million homes for lower-income households. That works out to 312,500 units a year, of which 125,000 are affordable.
The paper includes a bar chart that shows the number of permits issued for residential construction and construction type per year between 1980 and 2020, with permit issuance serving as a proxy for construction.
The horizontal line across the top, at a little over 300,000, is misleading. It indicates the number of homes that, the state estimates, are needed to meet current statewide housing goals, not the goals for the entire 40-year period.
What the chart does make clear is that residential construction never recovered from the 2008 crash. Set against the state’s goal of 312,500 new homes a year, the permitting of 10,000 ADUs and nearly 20,000 affordable housing units is trivial.
The staff paper doesn’t consider that the gaping shortfalls might be due to basic flaws in the state’s approach, nor does it recommend future actions.
Hear no evil
Wiener and Wicks knew the numbers would be grim. Pointing to the meager production, especially the production of affordable housing, critics could question the effectiveness of the preemptive supply-side program at the very moment that legislators were starting to vet 2023 bills intended to expand it. The situation called for damage control.
Accordingly, the hearing was staged as a rally that featured attacks on CEQA and shout-outs to SB 423, Wiener’s amped-up version of his controversial 2017 bill, SB 35. The “witnesses” who’d been summoned to testify at the hearing all applauded the prior legislation and called for more of the same.
About an hour and a half into the meeting, Wiener even took a swipe at Terner for having reported SB 9’s dismal results. “The laws that we’re talking about,” pouted the senator,
“have been in effect somewhere between two months and maybe five years really….We spent 50 years driving the car into the ditch….The Terner Center analysis about SB 9—great that that happened—but super-premature to read a lot into that analysis for a law that’s been in effect for 12 months.”
The public rebuke of the Legislature’s go-to housing consultant was startling—and all the more so given that nobody at the hearing had mentioned the think tank’s January 18 study. Wiener must have been brooding over it for weeks.
Terner seems to have gotten the message. On April 11, it published “a review of California’s recent housing legislation” with the proviso that “[t]his brief..is not meant to be an evaluation of the effectiveness of these state laws” but “[r]ather…is an effort to characterize the breadth and goals of recent legislation, and to assess practitioner experiences”—Terner had interviewed unnamed planners and land use lawyers—“with using these laws to further housing production.”
Terner’s Metcalf: to see real progress, squint
The legislators attended most closely to the testimony of Terner Managing Director and former HCD Director Ben Metcalf, which opened the hearing. Like the committee staffers, Metcalf marked the “staggering” spate of recent housing legislation. California, he said, has enacted “more [housing] legislation than we see in other states in the nation.”
The first slide of his PowerPoint presentation provided an overview:
“Since 2016, nearly 100 laws pertaining to housing have been passed and signed into law, collectively making over 275 changes to code sections (or creating new sections). State housing departments and agencies have promulgated hundreds of new guidelines, NOFAs [Notice of Funding Availability], regulations, and increased headcounts by unprecedented levels.”
Another slide focused on affordability, stating that California “has invested substantially in new affordable housing, roughly doubling the construction of affordable housing to about 20K a year—through No Place Like Home (bonds funds), Affordable Housing and Sustainable Communities (cap and trade), Permanent Local Housing Allocation (doc recording fee, SB 2), Multifamily Housing Program, Serna CalHome (budget), and HomeKey [conversion of hotels to housing].”
Under “Planning and Enforcement,” Metcalf noted the “[m]uch larger regional housing goals (SB 828/AB 1771),” as well as “stricter requirement on what counts as a valid site” for RHNA; “no-net-loss” of zoning capacity (AB 1397/SB 166)’ and a “Fair Housing Overlay on allocations and sites (AB 1771/686)—all backed up by ‘[n]ew enforcement authority (AB 72) [that] has been used to keep cities honest.”
He also marked the state’s new “prescriptive zoning requirements,” observing that “[m]any new laws require localities to approve certain kinds of housing and override local zoning controls.” For example, SB 1096, SB 13, and AB 1881 expedite the approval of ADUs. SB 9, which made approval of single-family lot splits by right, has had a “slow uptake” due to “local barriers” and “capacity issues,” “but [it’s] still early.” The state’s Density Bonus law, strengthened by AB 2345 and AB 1763, is “working well, but only in some places.”
Streamlining entitlement to make housing reviews and approvals faster has had “mixed results.” Stating that “it’s hard to quantify” the effects of “streamlining reforms,” Metcalf only detailed the successes: “Housing Accountability Act reforms (SB 167) have deterred cities from rejecting zoning-compliant projects.” SB 35, AB 2167, and SB 330 “all show some promise, particularly for ministerial approvals for subsidized affordable housing and ADUs.”
At first, it seemed as if, unlike the staffers, Metcalf would not flinch from reporting the scant results of the energized housing regime. “The problem,” he said, “is that when you look at the numbers, you don’t see what you expect to see after all that activity.” From 2017 to 2020, housing permits issued “actually declined.” He headlined one slide with the question: “Bottom Line: Is it working?”
The blunt answer:
“Housing unaffordability remains high, and production relatively stagnant.”
But then Metcalf struck a propitiatory tone. “So we’re coming up short, but I think it’s important to say that it’s early and that it’s important to spotlight places where we’re seeing progress.” He focused on the same places as the background paper: SB 35 and ADUs.
SB 35 says that if a jurisdiction hasn’t permitted the same number of homes as its RHNA, the city loses its discretion over residential development approvals, depending on whether its permit issuance has fallen short for lower-income housing, market-rate housing, or both.
In Metcalf’s view, SB 35 “seems to be working for affordable housing: Nearly three-quarters (13,215)” of the units that have been proposed under the law “are for lower-income households.” And it’s “become a very helpful vehicle for contending with historic Nimby challenges.” The catch: SB 35 “has not delivered in terms of unlocking market-rate housing.”
Praising ADU affordability, Metcalf opined that “[t]he median statewide construction cost of an ADU is significantly less than similar forms of housing. Many units are naturally affordable to households at or below 80 percent of Area Median Income [the official cut-off for affordability] and often located in areas with few other affordable options.”
His final slide asked: “Can Existing Housing Laws Deliver?” The answer was ambiguous: “Time will tell. Numbers are lagging, we may need more time to assess. Impactful legislation like ADUs has taken many rounds of legislative fixes….Cost issues remain untouched: Labor, building materials, ever more stringent code requirements, growing impact fees.” The last of these is “an area that we really haven’t tackled in the last few years.”
Metcalf didn’t note that impact fees are an area that the Legislature commissioned Terner to examine. (Expect to see aggressive anti-impact fee legislation, such as the scheme floated at a recent SPUR forum by Chris Elmendorf and Darien Shanske.) In any case, we need “greater enforcement. The state must keep its foot on the gas with HCD’s Accountability Unit, the Attorney General’s Strike Force, etc.”
Metcalf looked hopefully at “one great leap of faith,” the next RHNA cycle. “The [current] Sixth Cycle greatly increased residential zoned land and forced localities to seriously consider constraints to development, such as high costs or uncertainty. Capacity and experience will be much greater in the Seventh Cycle for Localities, the State, and advocates.” We still lack “objective city-wide measures of constraints.” Such measure will provide “an opportunity for harnessing data and onboarding a common yardstick and may be a game changer.” The Seventh Cycle will “introduce more of an evidence-based approach” that will allow us to see “whether policies that cities have in place are moderately or substantially inhibiting development.” Translation: more surveillance is on the way.
His final comment: “If you squint, you might see an optimistic path forward on making real progress on California’s historic housing shortage.”
Legislators ask hard questions; get muddled replies
Midway in the 3.5-hour hearing, the legislators quizzed some of the witnesses who had just testified.
Senator Dave Cortese asked whether the state has the capacity to implement HCD’s Surplus Lands program. (48 Hills readers may remember how Cortese, then a Santa Clara County supervisor, was the point man in MTC’s hostile takeover of ABAG.) Senator Sharon Quirk-Silva asked for an audit of the program.
But most of the questions were about affordability. Senator Anna Caballero said it was “not clear what’s working and what’s not and where. Blue-collar communities tend to build affordable housing, and wealthy communities don’t.” She asked Metcalf “where the majority of housing is occurring generally in the state, and where the affordable housing is going.”
Metcalf’s reply was garbled. “Your characterization is generally correct,” he said. “Most of the state’s historically affordable housing was in higher poverty neighborhoods. Now it’s getting built more evenly across higher and lower opportunity regions.” Ditto for ADUs.
But the senator had asked about “communities”—presumably cities—not neighborhoods or regions.
Quirk-Silva wondered, “Who got those $40,000 grants for ADUs?” Senator Aisha Wahab said she’d heard “lots about production, but not much about preserving and protecting [affordable] housing.” She pointed out that many “ADUs are not rented out to non-family members” or are rented out at market rates. “There no real discussion about affordability,” said Wahab. “What are we doing to tackle the vacancies in multifamily housing?” The housing crisis is “not just a development problem.”
Metcalf dodged Wahab’s query: “We are still seeing ADUs as an affordable by design solution, even where there are no deed restrictions.” ADUs offer “a different rental price than single-family home new construction.”
Senator Steve Padilla, like Wahab, a rookie state legislator, was the most persistent. He noted that the Statewide Housing Plan annually allots more than $18 billion for the next eight years “to underwrite 140,900 produced units every year” to address the needs of lower-income households. Padilla asked, “Are we characterizing this as construction subsidies? Or direct rental subsidies? And what were the assumed qualifying income thresholds that we used to arrive at that number for underwriting?”
Padilla’s questions befuddled HCD Deputy Director for Housing Policy Development Megan Kirkeby. After a long silence, she said, “Those numbers don’t track exactly for me, but that doesn’t mean they’re wrong. We might need to follow up on the statewide housing planning goals,” which are based on the Area Median Income for each region. “There are extremely and very low-income housing goals, low-income, moderate, and above-moderate income goals, and then they would adjust to the regional AMIs.”
Padilla, a former police detective, replied:
“I understand how we characterize the different segments of the market and the demand of low-income households….What I’m asking is, we have an estimated annual expenditure on the part of the state to bring at least the majority of that demand into affordability. So, is that based on construction subsidies? Is that based on direct rental subsidy? And if so, what were the assumed qualifying income thresholds that would be served by those subsidies? And I am reading from the 2022 Statewide Housing Plan, as it’s cited in the background paper.”
After another silence, Kirekby said,
“I will look into that and figure out what source that is citing so we can answer the question directly. I don’t want to misspeak.”
Padilla:
“Lastly, 21,000 annual production of ADUs is quite a robust number….The assumption [is that] because they are ADUs they are always going to be relatively affordable. However, oftentimes those things are really driven by market factors, geographic factors….Do we have any other data yet about what kinds of rents are being demanded for those ADUs or even costs?”
Kirkeby referred Padilla to the dashboard on the HCD website that has the data from cities’ annual progress reports on their RHNAs, including data that shows “where those rents are set relative to the incomes for the individuals… It gives you a sense of where those ADUs are coming online. Are they serving moderate-income households? Are they serving lower income households for that community?”
Wiener must have sensed that his colleagues’ questions about affordability, coupled with Kirkeby’s halting replies, threatened the credibility of the supply-side narrative because it was right after Kirkeby’s exchange with Padilla that he slapped Terner on the wrist and said it’s way too early to judge the effectiveness of the new housing policy regime.
Even if that were true, it’s well past the date to acknowledge that the supply-side narrative is full of hype. Take the claims about ADU affordability. It’s obvious that, as Metcalf claims, it costs less to build an ADU than a single-family home, and that ADUs offer “different rents” than single-family homes. But it’s not at all obvious that, given ADUs’ markedly smaller size and the inclination of many owners not to rent them to strangers, ADUs are an affordable alternative to single-family housing. Indeed, a glance at the HCD dashboard referenced by Kirkeby undermines the ADU affordability myth.
The SB 35 Con
Far more devious—and consequential—than claims for ADU affordability is the promotion of SB 35 as an affordable housing success story. To show that “SB 35 seems to be working for affordable housing,” Metcalf displayed a pie chart taken from HCD’s Housing Implementation and APR [Annual Progress Report] Dashboard. Terner broke out the percentage of numbers of units.
What’s wrong with this picture?
First, the SB 35 numbers on the HCD dashboard are admittedly unreliable. A note on HCD’s SB 35 page cautions: “Many projects reported as SB 35 projects are likely reported in error. HCD encourages jurisdictions to confirm SB 35 projects and revise their APR [Annual Progress Report] accordingly if corrections should be made.”
Second, the chart shows the number of homes that have been proposed under SB 35. Proposed doesn’t mean approved, much less built.
Third, SB 35 only looks like an affordable housing success story when the affordable units are compared with the market-rate units. But the numbers for both kinds of housing are piddling.
Fourth, even if the numbers weren’t piddling, you can’t legitimately compare the production of affordable housing with the production of market-rate housing. That’s because market-rate housing depends, for its financing, on the market, and affordable housing mainly depends on funding from a government-created and government-administered source, the Low Income Housing Tax Credit program.
Metcalf showed a slide alluding to the LIHTCs. It stated that affordable housing is “[f]acilitated by state scoring systems,…but also compounding oversubscription problems.” Metcalf didn’t unpack that comment. Its meaning is essential to grasping the difference between funding for market-rate and affordable housing, and why SB 35 has facilitated more affordable than market-rate.
In his May 31 analysis of Quirk-Silva’s AB 346, Assembly staffer M. David Ruff explained that the LIHTC program
“is an indirect federal subsidy developed in 1986 to incentivize the private development of affordable rental housing for low-income households. The federal LIHTC program replaced traditional housing tax incentives such as depreciation, with a tax credit that enables low-income housing developers to raise project equity through the allocation of tax benefits to investors. Each year the Federal Government allocates funding to the states for LIHTCs on the basis of a per-resident formula for the 9% credit. State or local housing authorities review the proposals submitted by developers and select projects based on a variety of prescribed criteria. In California, responsibility for administering the federal program is assigned to CTCAC [California Tax Credit Allocation Committee.]”
The problem, as Eden Housing wrote in support of AB 346, is that “[w]ith demand for affordable housing growing, California’s tax credit financing programs are seriously oversubscribed.” In other words, there’s a long line of qualified projects seeking funding. (See Ann Silverberg’s testimony below.) AB 346 would change the funding formula in ways that would give the state more flexibility in awarding tax credits to affordable housing projects.
Meanwhile, SB 35 says that if cities don’t permit their allocation of low-income RHNAs, they will lose their discretion over projects with at least 50 percent low-income housing units. Developers aren’t going to pull permits for projects that can’t get funded. The terms of SB 35 show that the state’s real priority isn’t affordable housing but consolidating power in Sacramento on behalf of the private real estate industry.
Breed’s rep cozies up to Wiener and HCD, raps democratic planning
Next up were the witnesses from three very different cities, Arcata, Pomona, and San Francisco. Presumably, they were chosen to demonstrate the wide range of municipal support for the state’s housing agenda. In a turn worthy of 1984, all three speakers thanked the state for preempting local control of land use—in other words, for mandating their disfranchisement.
But the testimony of the official from San Francisco, Lisa Gluckstein, Mayor London Breed’s housing and land use policy advisor, stood out. For starters, Gluckstein outdid her counterparts in paying tribute to the Legislature and HCD. She said that “recent legislation to streamline housing has benefited San Francisco immensely, especially SB 35 and the Density Bonus law.” She gave some details: "Since 2018, SB 35 has authorized the approval of more than 3,000 housing units in the city, most of them affordable; and permitting is now four times faster—down from 18-24 months to three to six." Gluckstein applauded Wiener’s “work to extend SB 35” via SB 423, as well as former Supervisor, now Assembly member Matt Haney’s AB 1114, “which would help us with the fact that a lot our building permits are discretionary.” Legislation aside, the February 1 certification of San Francisco’s Housing Element “reflects the strong partnership with HCD and the hard work of many state and city employees.” Her slide deck included a photo of Breed and HCD Director Gustavo Velasquez sharing smiles.
Moreover, unlike the speakers from Arcata and Pomona, Gluckstein extensively denigrated her town. “San Francisco’s housing crisis,” she said, “is rooted in a long history of exclusion, population and jobs growth, and chronic underproduction of housing.” A big factor is the city’s “notoriously complex process for approving housing,” some of which is “baked into the Charter, which means they have to go to the voters to be changed.” Besides the problem of voter accountability, “we also have a very strong advocacy community that doesn’t always support new housing,” and “other decision-makers” who can’t be relied upon to “do the right thing.”
Fortunately, in Gluckstein’s telling, the “mayor is taking decisive action to support new housing production very much in line with the state’s mandates….[W]e have to move quickly because San Francisco’s RHNA obligation is quite sizeable”—82,000 units, including more than 46,500 units of affordable housing—by 2031. That, said Gluckstein, is “a 20 percent increase in the city’s total housing stock,” currently about 410,000 units, in eight years. It’s also an enormous (okay, absurd) increase over the nearly 5,000 new units that, she reported, have been built in recent years. “Our RHNA requires an average of 10,000 units per year or roughly three times historical production.”
To meet the state’s fanciful goals, Breed has a two-pronged plan. First, said Gluckstein, the mayor proposes to increase zoning capacity in “well-resourced neighborhoods,” especially “those that haven’t seen much development in recent years.” Breed wants to upzone transit corridors on the city’s westside to accommodate 36,000 homes. Gluckstein cautioned that “zoning capacity is meaningless if we can’t actually get those units built.” To that end, Breed also seeks to “reduc[e] government constraints by making housing approvals simpler and faster, limiting discretion and touch points in the process for decision-makers to interfere, and reducing fees and exactions.”
Gluckstein didn’t name any names, but anyone with a passing familiarity with San Francisco politics would know that her reference to allegedly obstructionist officials was code for the progressive members of the Board of Supervisors who are in a pitched battle with Breed about housing and much more.
With an eye to eliminating such dissent and to “prioritizing Housing Element implementation,” earlier in February Breed had introduced Housing for All Executive Order 23-01. The directive “established oversight structures;…set clear and faster for certain legislative actions—for example, put[ting] forward ordinances that remove certain approval requirements such as conditional use authorizations; re-evaluate[d] the city’s inclusionary requirements, which are quite high compared with other jurisdictions across the state; and look[ed] at new financing mechanisms such as infrastructure financing districts.”
Given that San Francisco’s Sixth Cycle RHNAs includes 46,500 affordable homes, Breed’s proposal to lower the city’s inclusionary requirements might seem perverse. The unspoken rationale here is that, as we’ve just seen, affordable housing is very hard to finance. Requiring less of it in a mixed-income project would presumably entice development. (On July 25, the Board of Supervisors voted 10-1, with Dean Preston dissenting, to cut the city’s affordable housing requirements and reduce the impact fees that developers are charged to fund, among other things, Muni service and parks.)
Gluckstein acknowledged the “affordable housing funding challenges.” Financing the mandated 46,500 affordable units would require $19 billion in local funding, $30 billion from the state in tax credits and soft debt plus other sources. The city, she said, now funds about 40 percent of each affordable housing project locally. Noting that the “competitive CDLAC process [California Debt Limit Allocation Committee] has limited access,” Gluckstein said that the California Housing Accelerator “has filled the gap,” but there’s still “a lot of outstanding need.” She mentioned “new tools, specifically “new bond measures that are in the works” and Wiener’s 2023 “replacement housing bill,” SB 593. That measure would authorize the successor of San Francisco’s dissolved Redevelopment Agency, the City and County of San Francisco, to draw on the city’s Redevelopment Property Tax Trust Fund to finance certain affordable housing projects—an option unavailable to other cities and counties.
Smearing CEQA, fronting for UC
After the three city officials had made their presentations, Wiener invited Arcata Community Development Director David Loya to expand on his comment on the need to strengthen CEQA infill exemptions, adding:
“A consistent refrain that I hear from city planning staff, from city councilmembers and mayors is that “Hey—we’re trying, and CEQA is making our lives a lot harder. We’re trying to comply with state housing law, we’re trying to build sustainable housing near jobs and transit, and we’re having CEQA appeals and lawsuits, and so forth.”
Loya was happy to comply. He said that Wiener “had characterized [the situation] correctly.” A city could “go through its process” and “even” approve a housing project, and then someone could delay construction by filing a CEQA appeal. Unless the project was “protected by a CEQA exemption,” it might be required to go through an environmental review, which
“could get pumped up to an EIR, which is added time and money. And even if [the jurisdiction] prevail[s], it’s been my experience that developers are looking at their holding costs as much as they’re looking at they’re looking at the cost of development. And so each of those procedures, every hearing, every legal challenge that they have to go through, is a holding cost. It creates less housing ultimately.“
Loya recommended “clean[ing] up” the exceptions to the CEQA exemptions.
“I’d just like to see more of that…It would support jurisdictions that are trying to do the right thing and to promote housing, in spite of the fact that in every community you’re going to have at least one person—and that’s all it takes—who’s ready to raise a legal challenge.”
Loya’s remarks encapsulated the prevailing housing absolutism: New housing trumps everything, including environmental protection.
The Arcata official’s testimony was Wiener’s cue to go on an anti-CEQA rant. First, the senator derided the law as a tool of elitist opponents of housing.
“Yeah. Anyone who can pay a lawyer—we’ve seen this with affordable housing in Lafayette—is it Lafayette? I can’t remember the East Bay city [someone says, “Livermore”]—Livermore. Their city council did the right thing and approved a great affordable housing project, and some mega-Nimbys who have money funded a CEQA lawsuit—they don’t represent a majority….It’s super-undemocratic.”
Wiener then claimed that CEQA’s provisions against noise are being used to defame students.
“And of course, we’re seeing what’s happening right now at UC Berkeley, where the California Court of Appeal issued a decision that college students are pollution—they frame it in a rosier way—because everyone knows apparently that college students make noise. Human beings make noise, we all make noise at all ages [Wicks, seated to his immediate left, gives him an appreciative smile], but it was fun to be a college student.”
Wiener’s anti-noise-regulation diatribe was joined by his colleagues. Senator Nancy Skinner volunteered that “[f]amilies with a lot of kids can be loud, too.” Wicks agreed: “Yes, a six-year-old and a two-year-old [the ages of her own children]—they’re very loud.” Turning to Wicks, Wiener said, “People who like music are loud, too. Lots of loud people.” Wicks flashed him another appreciative grin.
Milking his “college students are pollution” trope, which he now unconditionally attributed to the court, Wiener said the CEQA lawsuit over the university’s plan to build housing at People’s Park was dashing students’ aspirations to get an education and join the middle class.
“College students, according to the court, are pollution, and so they have to be mitigated as if they were like tailpipe exhaust or like fumes from a refinery. That’s literally how the California Appeals Court classifies college students, who are just trying to get an education and be part of the middle class, and yet they’re pollution [Wicks nods in agreement]. That’s how far CEQA has fallen from what it was intended to do, which was to protect the environment. We’re doing some work on that [another nod from Wicks], and CEQA has to be fixed.”
What the First District Court of Appeal actually said was that, contrary to the university’s claim, the evidence presented by the plaintiff “amply supported a fair argument that noise impacts from the increased student population associated with the [school’s] plan and Housing Project no. 2”—a projected 9,008 increase in undergraduate beds, of which 1,110 would be in the project proposed for People’s Park—“might be substantial.”
The court cited “an expert report on student-generated noise prepared by Derek Watry, an engineer with almost 30 years of experience with an acoustical consulting firm that had prepared hundreds of noise studies for EIRs.” The university called his findings “speculative.” The court disagreed.
“The record…establishes that UC Berkeley students have a long and well-documented history of disturbing Berkeley residents with loud noise. It is reasonable to assume that it will continue….What is speculative is the Regents’ notion that thousands of additional students placed in the same environment will behave differently.”
The court also held that
“without citing pertinent authority, the Regents suggest environmental impacts from social noise are not subject to CEQA. That is incorrect. Noise impacts are expressly included among the environmental effects subject to CEQA….Nothing in the statutes or Guidelines carves out noise from human socialization as an exception to this, and the case law suggests the contrary is true….Until the Legislature says otherwise, noise is noise.”
It’s true that CEQA can be used to oppose worthy projects, such as the Livermore development, but that doesn’t make CEQA action per se objectionable—and certainly not undemocratic. As Natural Resources Defense Council attorney David Pettit wrote in 2013, no bureaucracy administers CEQA. Instead, the law is “typically enforced only by citizens going to court.” That said, government agencies, including cities, also can and do file CEQA challenges. If anything, it’s the law’s inherently democratic character that Wiener, Wicks, and Skinner find offensive.
The lawsuit against UC Berkeley is far more complex than the Livermore case, involving among other things the university’s failure to follow CEQA and to justify its decision not to specify alternative sites for the housing it wants to build on People’s Park.
Wiener berates cities for skirting their RHNA obligations; UC’s violation of CEQA doesn’t appear to bother him. This likely explains why: As neither he nor Wicks mentioned, on February 16, the assembly member had introduced AB 1307, which would “fix” CEQA by specifying that under certain circumstances, “institutions of public education in an EIR for a residential or mixed-use housing project, are not required to consider alternatives to the location of the proposed project if certain requirements are met.” The proposed requirements would exempt UC’s plan to build student housing at People’s Park from CEQA review.
When introduced, AB 1307 also declared that “noise generated by the unamplified voices of residents is not a significant effect on the environment for residential projects.” According to the staff analyses, Wicks says that if the measure becomes law, “no longer could CEQA consider ‘people as pollution’”—as if that taunt came from the law rather than from Wiener and herself.
On March 16, she strengthened the measure, replacing “unamplified voices of residents” with “occupants.” On June 26, she strengthened it again. From the Legislative Counsel’s Digest: “This bill would specify that the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment for residential projects for purposes of CEQA.”
In a nice irony, AB 1307 designates itself as
“an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect.”
“The facts constituting the necessity:
“Currently in California, there is a substantial housing crisis. To ensure housing projects are not subject to further uncertainty, delay, or risk of lawsuit, it is necessary for this act to take effect immediately.”
AB 1307 may be a timely legislative intervention: The California Supreme Court is poised to review the appeal court’s decision. The bill sailed through the Assembly—not a single No vote—and is now advancing through the Senate.
Click here to read Part II: Skinner’s “Good RHNAs” Charade