Getting in Its Own Way: Behind California's CEQA Curtain
In 2018, housing was targeted in 60 percent of all California Environmental Quality Act (CEQA) lawsuits against construction projects in the state, according to the latest study by Holland & Knight's land use and environmental attorneys. The study, "California Getting in Its Own Way," concludes that CEQA clearly remains the litigation of choice for housing opponents and that this litigation is a major contributor to California's housing crisis. It was published by the Chapman University Center for Demographics and Policy.
According to the study, one clear culprit in the housing crisis is the lengthy and costly environmental review process required under CEQA, even for housing that complies with local General Plans and zoning codes and the hundreds of applicable environmental, health, safety, and labor laws and regulations. But after new housing is finally approved, any party can – even anonymously – file a CEQA lawsuit seeking to block the housing for "environmental" reasons, resulting in costly, multi-year delays.
"CEQA is not the only obstacle to solving the housing crisis, but nothing has worked as spectacularly well as CEQA in delaying or derailing the construction of approved housing in already-approved locations," said Holland & Knight Partner Jennifer Hernandez, the head of the firm's West Coast Land Use and Environmental Group and the author of the study.
In two prior CEQA litigation studies by Holland & Knight, which covered 2010-2012 and 2013-2015, respectively, more CEQA lawsuits were filed statewide against housing than any other type of project. In 2013-2015, 25 percent targeted housing, only a slight increase over the 23 percent filed in 2010-2012. The 60 percent increase in 2018 is unprecedented.
High-density, multifamily apartments and condos in existing urban neighborhoods are by far the top target of anti-housing CEQA lawsuits, according to the study. But the "not in my backyard" use of anti-development CEQA lawsuits against even one single-family home (e.g., to prevent approved construction based on an aesthetics objection by a neighbor) also dramatically increased to 21 percent of lawsuits in 2018 compared to 13 percent of the lawsuits filed in 2013-2015. Overall, the study found that those filing CEQA lawsuits win nearly 50 percent of them, a vastly higher rate than the 20 percent of such lawsuits won across the country.
"Governor Gavin Newsom and the Legislature agree that California's housing crisis is an existential emergency that threatens the state's economic prosperity and harms its citizens," Ms. Hernandez said. "However, the act of merely filing a lawsuit is enough to halt construction loans for the 95 percent of housing not subsidized by taxpayers, as well as halt grants for government-subsidized affordable housing. This makes Governor Newsom's goal of delivering 3.5 million new housing units in eight years fantastical at best."
"Unless CEQA and other bureaucratic and litigation practices are reformed, the promises made to solve the housing crisis should be considered as little more than political posturing that will not overcome the ongoing housing production paralysis," Ms. Hernandez concluded.
"California Getting in Its Own Way" uses the same methodology as Holland & Knight's earlier studies of statewide CEQA litigation. All CEQA lawsuit petitions must be sent to the California Attorney General's office, and the firm was able to obtain copies of all petitions under the California Public Records Act.
For more information about CEQA or land use concerns in California, please contact Holland & Knight's West Coast Land Use and Environmental Group.