Opinion: Can California Fix CEQA?

If Bay Area housing stakeholders are to ever address factors that have led to construction delays and the rise in costs for constructing desperately needed housing, we must delve deeper into how a well-intentioned law has inadvertently led to difficulty in producing sufficient housing. The California Environmental Quality Act, better known as CEQA, was adopted under Gov. Ronald Reagan in 1970. The law was meant to mitigate the environmental impacts of public projects.

CEQA requires state and local agencies to deliver an Environmental Impact Report, or an EIR, to document all possible harms of a proposed land use project. It also requires decision-makers to seek out alternatives to reduce adverse impacts and to conduct public hearings for formal comment. Over time, the courts decided this law applied to all land use development projects—both public and private. As a result, projects ranging from low-income housing developments to hotel construction are required to conduct costly and time-consuming EIR studies. Even inner city infill development projects are subject to this expensive and lengthy process that can result in EIR studies that are thousands of pages in length and can take six months to over a year to complete.

In my years as a council member, I have seen CEQA abused to prevent development projects from proceeding. Examples include a disgruntled neighbor who did not want a proposed development next door to “block their view," a convenience store owner who filed a lawsuit against the expansion of a competing gas station, a union that used CEQA to extract valuable contracts, and cities that sued to halt housing and hotel construction near their borders. It is these types of abuses and frivolous lawsuits that hold up projects until the courts decide the validity of the studies. These delays are all factors leading to higher construction costs in the form of labor contracts and materials, unnecessary legal fees as appeals take up to two years or more to resolve, and interest and loan fees accumulating as projects are placed on hold.

A 2015 Holland & Knight study on CEQA abuses concluded that, “The largest single target of CEQA lawsuits… are residential projects,” and these projects, “overwhelmingly [involve] non-polluting land uses.” The study found that of all CEQA lawsuits filed between 2013 and 2015, over 14,000 were challenges to housing construction. If we really want to start addressing the causes of our housing crisis we must work on CEQA reforms. Some fixes that have been discussed but have yet to be implemented include:

  1. Requiring all entities that file CEQA lawsuits to fully disclose their identities and their environmental interests. Currently, claims can be filed anonymously.
  2. Disallowing procedural gamesmanship that pushes CEQA proceedings past a year and beyond.
  3. Ordering the losing party to pay court costs on CEQA lawsuits.
  4. Making infill land development in urban non-riparian areas exempt from challenges.

In recent years, CEQA exemptions and streamlining legislation have passed, highlighting the need for larger comprehensive reform. Just last week, Gov. Gavin Newsom signed Senate Bill 7 into law at the site of Google’s proposed Downtown West project in San Jose. SB 7 will allow dense affordable housing projects to move through the CEQA process at an exponentially faster rate. Although this bill received overwhelming bipartisan support, overarching reform to streamline the arduous CEQA process rarely gains much support.

It is often said that the road to hell is paved with good intentions. California is losing businesses and housing costs are out of control. We cannot afford to ignore CEQA reforms any longer. Let's take this well-intentioned law and make it work for California.

Johnny Khamis is a former San Jose councilmember who is currently running for the Santa Clara County Board of Supervisors District 1 seat. Opinions are the author’s own and do not necessarily reflect those of San Jose Inside. Send op-ed pitches to [email protected].

5 Comments

  1. Here’s one outta left field:

    Johnny Khamis is employed by San Jose Inside.
    If true it certainly changes things from a few perspectives.

    A simple ‘Yes’ or ‘No’ answer from either SJI or Johnny would suffice.

    Since ‘Editor’ is so good at reading comments and quick to correct mistakes, I expect to get an answer right quick.

  2. Johnny Khamis views CEQA as needing fixes, namely to expedite the development review process. Yet, from reading this piece, it is not clear to me why CEQA’s requirements for an Environmental Impact Report (EIR) should not be applied to all land use development projects (which is protested). San Jose has always been somewhat of a bedroom community compared to its business-rich neighbors such as Santa Clara, Mountain View, and Sunnyvale.

    While developers are eager to rezone open land space for or move ahead with high-rise residential buildings, it seems that little thought goes into parking, infrastructure (i.e. new water connections amid drought conditions), and existing housing needs.

    A case in point would be 1007 Blossom Hill Rd replacement of a popular restaurant, the Fish Market, with a 7-story, 270 unit affordable complex. Not sure what “affordable” means in San Jose, but the rough sketch show a big, block, building in the shape of a shoe box. No landscaping; no parking; no parks. Again, perhaps it is a rough sketch. https://www.siliconvalley.com/2021/05/21/san-jose-project-restaurant-site-affordable-homes-real-estate-develop/ The average unit is 767 sq.ft. With a range of 586 sq ft to 1200 sq ft. These units seem to be more like temporary housing. I’m only using this as an example of the new housing developments announced.

    Yes, South Bay needs more housing; no, that does not mean lifting careful examination during the planning process. An EIR is law and a part of the planning process.

    The desire to expedite housing development to fill the gap of affordable housing must be aligned with other community needs, such as available infrastructure already in place, impact on current water accessibility, traffic impacts, parking, existing ecosystem (yes, impacts on existing natural paths, creeks, and open land). Assessing those impacts take time. Moreover, for low income housing, there are additional needs in terms of social support systems, training centers, job access, and transit systems. Our homeless population needs housing and other services —and cities are grappling with this problem as no city hasinfinite resources.

    However, shortening CEQA’s EIR requirement and process is not the answer. If anything, EIR’s are more critical now to sustain San Jose communities and their existing ecosystems. Every time I see a sketch of big, boxy, multiple story high rise, with the emphasis on “affordable housing”, I fear the ghettoization of San Jose. After all, how long will a tenant live in a tiny unit? Most renters will want to move on to a more spacious apartment.

    In terms of the four Fixes, Mr. Khamis suggests for EIR, I agree with #1 (Requiring all entities that file CEQA lawsuit to disclose their identities…). But certainly do not agree with, #2 (Disallowing procedural requirements that may take CEQA longer than a year for approval or disapproval), #3 (Losing party to pay court costs on CEQA lawsuits —why? This could be either party), and #4 (Making infill land development in urban non-riparian areas exempt from challenges —again, why? This is a standard requirement.).

    Finally, Mr. Khamis’ byline should include his current job, Public Relations Consultant Clara County Association of Realtors (SCCAOR), which would give the reader an idea of his angle. Yes, Mr. Khamis is a former San Jose Councilmember where he was quite reliable and did a fine job, but he is definitely representing the SCCAOR, here.

  3. Johnny Khamis has never worked for San Jose Inside. Like many other members of the community, from time to time he submits an opinion piece. Others are invited to as well.

  4. Well, thank you.

    Your actual staff seems to be very anonymous and we really don’t know who writes your ‘Fly’ pieces. It’s staff.
    Only, you are very evasive about who your staff is.
    I have actually seen evidence that Mr. Khamis is an employee. My source could be wrong, but why the mistake?

    Are you interested into who is publishing this misstatement of fact?

  5. Gray Davis, Governor of California, 1999-2003

    To deal with the high cost of housing we must come to terms with the elephant (no not Trump) in the room, The California Environmental Quality Act. Anything else is just tinkering.

    CEQA should be renamed the law of unintended consequences. Originally intended as a way of identifying the environmental impacts of a project (and avoiding or mitigating them), CEQA has been hijacked by litigants to advance their political, social or economic interests. Using CEQA for those reasons has little or nothing to do with protecting the environment.

    If you’re keeping score, here’s what it means. People of already modest means spending upwards of 40-50 percent of their income on housing. Longer commutes. More traffic and pollution. A 23 percent poverty rate, the highest in the nation. Record low home ownership and an exploding homeless population. This is madness, but there are solutions. Here is one; exempt from CEQA any projects that shelter or service the homeless. If the Legislature can provide special expedited environmental review for a NBA arena in Sacramento or a proposed NFL stadium in Los Angeles, surely it can do so for the least amongst us, the homeless!

    Even Gov Davis knows the score, CEQA is a joke and is an easy way to open up development. There is only one way to address the high cost of housing, build more houses. It is as simple as it is impossible with CEQA.

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