Just Look at the Map: Bounding Environmental Review of Housing Development in California

91 Pages Posted: 17 May 2024

See all articles by Eric Biber

Eric Biber

University of California, Berkeley - School of Law

Christopher S. Elmendorf

University of California, Davis - School of Law

Nicholas Marantz

University of California, Irvine - Department of Planning, Policy and Design; University of California, Irvine School of Law

Moira O'Neill

University of California, Berkeley - Institute for Urban and Regional Development; University of Virginia, School of Architecture

Date Written: May 16, 2024

Abstract

California faces a dire housing crisis. California’s land-use regulatory system remains a key driver of this crisis. State law grants local governments broad power to craft their own regulations on how to review and approve housing development. Though state law may limit a locality’s ability to outright deny some types of housing development, local governments can and do use creative ways to stall approvals or functionally deny housing by making it infeasible to develop. One such strategy is to demand more intensive environmental review of new housing projects under the California Environmental Quality Act (CEQA) than what state law requires. More intensive environmental review can create substantial delay and uncertainty, increasing the costs for the construction of new housing. Although the state has made many efforts to streamline the process of both local land-use regulation and CEQA review, delays and uncertainty remain.

We propose that the state address this ongoing problem by (1) issuing an authoritative map of urban “infill priority areas” (IPAs) where new housing is expected to provide net social and environmental benefits, and (2) limiting the scope of environmental review, within the IPAs, to environmental impacts identified by the city or members of the public within a brief temporal window and demonstrated by the proponent of environmental review to be significant. In effect, the law would presume no impact from new housing within an IPA unless significant impacts are quickly and unambiguously identified. We also propose enforcement mechanisms. New infill housing reduces carbon emissions, exposure to wildfire risk, and threats to habitat. Environmental review should be calibrated accordingly.

Keywords: land-use, housing, zoning, environmental review, CEQA, infill housing

Suggested Citation

Biber, Eric and Elmendorf, Christopher S. and Marantz, Nicholas and Marantz, Nicholas and O'Neill, Moira, Just Look at the Map: Bounding Environmental Review of Housing Development in California (May 16, 2024). Environmental Law, Vol. 54, 2024, Available at SSRN: https://ssrn.com/abstract=4831370

Eric Biber (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Law Building
Berkeley, CA 94720-7200
United States

Christopher S. Elmendorf

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
530-752-5756 (Phone)
530-753-5311 (Fax)

Nicholas Marantz

University of California, Irvine - Department of Planning, Policy and Design ( email )

300 Social Ecology I
Irvine, CA 92697-7075
United States

HOME PAGE: http://socialecology.uci.edu/faculty/nmarantz

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

Moira O'Neill

University of California, Berkeley - Institute for Urban and Regional Development ( email )

230 Bauer Wurster Hall
#1820
Berkeley, CA 94720
United States

HOME PAGE: http://https://www.law.berkeley.edu/research/clee/about/people/moira-oneill/

University of Virginia, School of Architecture ( email )

Campbell Hall
P.O. Box 400122
Charlottesville, VA 22904
United States

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