The battle between the California Infill Builders Federation and the Council of Infill Builders may be ending. I’ve written about the unfortunate spat before, where the nominally pro-infill Federation was pushing a bill to first roll-back, then delay, important reforms to the California Environmental Quality Act and its analysis of transportation impacts for infill. The California Planning & Development Report has a great paywalled piece on the fight that I summarized.
But now the Federation seems to be taking a much more sensible approach. In amendments posted Monday, the group deleted language that would delay the implementation of the regulations. Instead, the bill would give the Governor’s Office of Planning and Research authority to give all residential and mixed-use projects in “transit priority areas” (within 1/2 mile of major transit) an outright pass on transportation analysis. Outlying sprawl projects would still have to undergo a vehicle miles traveled (VMT) analysis.
This change would give much more certainty to infill project developers, who would otherwise have to determine if they should apply VMT or not (most wouldn’t have to do any transportation analysis anyway under the proposed guidelines, but it’s always nice to have certainty). And the “pass” wouldn’t apply to bad projects near transit, such as parking garages and big box stores. Those uses might still need to do a VMT analysis. Meanwhile, the preservation of VMT in outlying areas is critical to transforming how we treat sprawl in California.
Overall, it’s a welcome change. Let’s hope the “Infill Wars” are over and we can get back to the business of sensible CEQA reforms.
Don Perata, California’s former state senate pro tem, has been representing the California Infill Builders Federation for a few years now. But you wouldn’t know it if you heard the arguments in his San Francisco Chronicle op-ed today deriding one of the most pro-infill reforms the state has proposed in years with the SB 743 guidelines.
Perata tries to make the point that the SB 743 guidelines will introduce more “uncertainty” and litigation for infill. But in fact SB 743 will have the exact opposite effect, making infill easier and sprawl more difficult.
Let’s go down the list of his arguments. From the third paragraph in:
The guidelines add many untested impacts under CEQA. The biggest would add a new transportation impact to CEQA: total vehicles miles traveled required for all projects, even those that comply with local transit-oriented development plans and regional greenhouse gas and vehicle use reduction plans such as the comprehensive Plan Bay Area, which have already completed the CEQA review process.
First, the SB 743 guidelines don’t add “many” new untested impacts to the CEQA process. They relate to transportation-related impacts only, as directed by the statutory language of SB 743. Perata is correct that VMT is the new metric proposed by OPR, but that metric replaces the old auto-delay traffic study (again, as directed by statute) and will likely only be used, per the proposed guidelines, for areas outside of a 1/2 mile distance to a major transit stop (including high-quality bus stops) and in areas with above average VMT levels. All projects near transit and in areas with below average VMT will be presumed to have no impact on transportation at all. That is a huge victory for infill projects, any way you cut it.
As another inaccuracy, Perata claims the proposed VMT analysis measures “total vehicle miles traveled” from a project. Instead, OPR requires that VMT “be measured per capita, per employee, per trip, per person-trip or other appropriate measure.” That makes a big difference in the results and once again benefits infill projects immensely.
Fourth paragraph:
The vehicle miles traveled element would measure a project’s traffic impacts in an entire region by calculating driving miles. These guidelines treat all auto trips the same, whether they are driven in a Prius or a Hummer. It does not take into account if a project is helping the state to meet its greenhouse-gas reduction mandates. The state received more than 100 letters critical of its proposal to expand CEQA and make it more litigation friendly.
VMT is directly correlated to greenhouse gas emissions, as Perata should well know. That’s the basis for implementing SB 375, which he mentions in the piece as a good measure of infill. Second, while it would be nice to differentiate among polluting miles by car type, the VMT metric is a major step forward in assessing and reducing overall traffic and pollution. Would Perata really want to inject another layer of analysis on VMT, particularly when VMT alone is already a great measure of pollution and traffic? VMT is already a huge win for infill, why complicate it?
Final paragraph:
The Office of Planning and Research is heading in the wrong direction. Its guidelines promote costly and duplicative environmental impact reports and cumbersome CEQA processes for projects that meet greenhouse gas reduction targets. By expanding CEQA into untested strategies, the office has created new opportunities for abusive lawsuits. This serves no purpose other than NIMBY-ism, costly litigation and cynical abuse of real concern for the environment. The Office of Planning and Research must not aid and abet these foes of economically sound infill development.
VMT is the exact opposite of “costly and duplicative.” That might describe the current traffic study process under CEQA, which these guidelines do away with. VMT is an off-the-shelf metric that is easy and cheap to use. Local governments use it all the time in putting together climate action plans. The state is moving aggressively to enshrine VMT as the metric of choice in many of our policy decisions, precisely because of its simplicity and correlation to traffic and pollution.
Ultimately, despite Perata’s complaint that this CEQA relief for infill will only boost NIMBYism, OPR and infill advocates’ purpose in tossing out the hated CEQA traffic study in favor of VMT is to make urban infill easier and cheaper to build. It’s a shame that Perata does not recognize the SB 743 process for what it is: a significant victory for infill development in California.
I’ll be joining LA’s KPCC Radio (89.3 FM) “AirTalk” program with Larry Mantle today at noon to discuss the SB 743 reforms to the California Environmental Quality Act (CEQA). The show comes on the heels of the recent LA Times editorial applauding the reforms, which help infill development by eliminating traffic delay in the immediate project area as an area of study under CEQA. The Times, however, calls for local governments to maintain some level of transportation analysis for projects within one-half mile of transit, given that some bad projects (like big parking lots) could sneak through under this reform.
UPDATE: Audio is now available via this link, along with listener comments on the topic.
The effect that the California Environmental Quality Act (CEQA) has on infill development has been well-debated. Many infill proponents argue that CEQA hurts infill and drives development out to the sprawl hinterlands where “cows don’t sue.” Others claim that CEQA improves infill development through better planning and public involvement, while protecting the public from bad projects.
USC’s Bedrosian Center and Lusk Center for Real Estate co-hosted a lunchtime panel on this subject two weeks ago. I was part of a panel with infill developer Mott Smith, Los Angeles deputy mayor Rick Cole, and Ann Sewill of the California Community Foundation. The Bedrosian Center just posted the video here:
You can also read an article write-up of the discussion here. Overall, the debate highlighted the challenges that CEQA poses for developers like Smith, while Rick Cole described the gridlock in Sacramento that prevents meaningful reforms from taking place. Sewill noted CEQA successes while acknowledging it gets “hijacked” by bad actors. For my part, I described the overall public purpose of CEQA and the need to keep the law in context with other barriers facing infill, as well as the current SB 743 reform process taking place.
The San Francisco Chronicle is running a joint op-ed today from the Council of Infill Builders and Greenbelt Alliance that supports Gov. Brown’s efforts on SB 743. As you may recall, the controversial implementation of this law will allow transit-friendly infill projects to escape the need for litigation-enabling traffic studies, while requiring sprawl projects to reduce their overall impact on regional traffic and driving miles.
The op-ed seems to be a response to a misguided outcry from state business leaders who claim to want more infill but see this reform as simply creating more “uncertainty” for infill projects. Their claims are basically meritless, and the real aim seems to be a larger campaign to unravel the California Environmental Quality Act (CEQA). After all, slowly fixing the seriously deficient parts of the law, like with this traffic analysis, undermines their case for wholesale change.
As the piece describes of the transportation impacts analysis:
This perverse result has to change, and the Brown administration is taking action. Following a 2013 state law, the Governor’s Office of Planning and Research has developed an alternative way to address traffic effects. Project developers must now look at how a project will affect the overall driving miles as measured throughout the metropolitan region. So downtown-oriented projects, where most people can walk, take transit or bike (modes of transport that are good for the environment and relieve traffic regionwide), would not trigger lengthy CEQA review on this particular issue. Outlying projects, however, must account for the regional traffic they generate and mitigate where feasible. Mitigation could include anything from free transit passes for residents to adding more jobs and retail opportunities on-site so residents don’t have to drive long distances to access them.
I hope Governor Brown follows the advice here and stays the course. CEQA was long overdue for this modernization. Final comments to OPR are due on Friday.
Streetsblog LA reports on two recent SB 743 discussion events, including the “debate” last week at USF Law with me and Jennifer Hernandez. The article notes that OPR is still seeking feedback on a few critical issues:
OPR has made several other suggestions in their proposed guidelines, and are seeking public input to help them refine the changes. Specifically, they are asking for help on the following questions:
- Under the proposed guidelines, any project built within a half mile of transit with frequent service (running at least every 15 minutes) would be deemed to have no significant impact on travel, and wouldn’t have to undergo a VMT review. Is this an appropriate rule? Are there other factors that should be considered?
- What amount of vehicle miles generated by a development should be considered significant, and thus require an environmental impact report (EIR)? Who should decide what those levels are?
- What kinds of strategies should be used to mitigate increases in vehicle miles generated by a project?
The issue of “thresholds” — i.e. where is the line that divides projects with a free pass on transportation impacts from those that should require study — will be particularly important. My guess is OPR is heading in the direction of letting locals determine their own thresholds, but we’ll see. In any event, comments to OPR can be sent via this site by November 21st.
California’s Governor’s Office of Planning and Research (OPR) has been getting slammed for trying to implement sensible reform to benefit infill development. As I described back in August, the law firm of Holland & Knight issued a wrong-headed attack on OPR’s proposed new guidelines for the California Environmental Quality Act (CEQA). And a statewide business coalition also weighed in, parroting the Holland & Knight attacks. All because OPR, complying with a directive from SB 743 (Steinberg, 2013), is essentially exempting infill projects from transportation review under CEQA, while introducing a simpler vehicle miles traveled (VMT) analysis for sprawl projects.
So it was a nice opportunity for me to debate one of the Holland & Knight attorneys, Jennifer Hernandez, on this subject on Tuesday night at University of San Francisco School of Law. I participated in a four-person panel, with Michael Schwartz (lead transportation planner in San Francisco), Amanda Eaken (NRDC), and Jennifer and me, plus Adam Hofmann moderating.
SB 743 reform will allow projects like this Van Ness BRT line to happen much quicker
We took turns making our case. Michael covered how the dysfunctional, status quo “level of service” standard of review works, as well as its negative effect on specific projects San Francisco, like the long-delayed bus rapid transit line down Van Ness. Amanda then made the pitch for VMT but expressed concern about OPR’s proposal to give a “pass” on transportation analysis to any project that merely meets the regional average or better for VMT — she believes the bar should be higher. She also didn’t want to see a blanket “pass” for all projects within one-half mile of transit, given that there are certainly some bad projects near transit, like parking lots, that should have to account for their traffic impacts. Finally, she didn’t like OPR’s inclusion of language in the proposed guidelines related to safety, which she fears could be a back-door way to encourage more automobile-oriented mitigation measures from project developers.
I then gave my pitch for VMT as well, but I tried to put the SB 743 reform in context. The change to VMT certainly won’t solve the challenges that CEQA can pose for infill projects, but it will remove a big arrow from the litigation quiver of project opponents. More importantly, the reform could have a huge impact on sprawl projects. The mitigation measures for high VMT for these outlying projects could be potentially transformational. These measures could include requiring more mixed uses in the developments (like adding retail and office to residential sprawl), shuttles and new transit lines, more affordable housing, and transit passes and the like. In short, it will change the character of sprawl in California and also make it more expensive and legally difficult to get these projects built in the first place.
But for some reason, no one seems to be talking about this potential effect on sprawl, perhaps given all the hullabaloo about how infill projects will supposedly be hurt by the new VMT analysis. It’s even more bizarre given that under this proposal, essentially all infill projects would be exempt from any transportation analysis at all. And if they do have to do an analysis, it will be under the far simpler and cheaper VMT metric.
Jennifer Hernandez went last. She began her presentation by describing CEQA’s negative impact on all sorts of projects, but especially infill. She debuted a new study that her firm conducted on CEQA litigation, which apparently shows how so much of it is directed at infill and infill-related projects. As a result, she argued that California needs wholesale CEQA reform, and not just this incremental reform. In her perfect world, CEQA would set broad environmental standards and then provide deference to agency decision-making to meet those standards.
She didn’t engage much with the details of the SB 743 guidelines, only arguing that they essentially introduce more “uncertainty” into the process and that OPR should use its discretion (which I don’t believe it has under the law) to simply remove transportation analysis entirely or possibly set a broader standard on transportation impacts that would be easier for agencies to meet. In one of her few specific criticisms of the guidelines, she questioned how planners can run a VMT analysis on projects like schools, hospitals and churches, as an example of the “uncertainty” created by this new metric (in fact, the models cover these uses).
In the Q&A, I applauded the Holland & Knight study for bringing facts and data into the otherwise anecdotally driven debate. But it’s important to keep in mind that the study only looks at the universe of CEQA litigation without a broader context for how rampant or not CEQA litigation is in the state. It’s one thing to say 55% [not the exact number in the study] of CEQA litigation targets infill, but what percentage of infill projects across the state are subject to CEQA litigation at all? Perhaps it’s relatively puny. But it would be nice to know to put these numbers in context.
The study also doesn’t capture the non-litigation effects of CEQA, such as the defensive decision-making at the project and planning level to avoid litigation. It also doesn’t capture the pre-litigation settlements and the administrative processes that don’t give rise to litigation. And of course it doesn’t capture the benefits of mitigation measures and the role CEQA plays in stopping bad outlying projects. Of course, these impacts are really hard to document, but we should keep in mind that we’re missing that picture when all we focus on is the litigation.
I also questioned the Holland & Knight “doom and gloom” view of how hard it supposedly will be to run a VMT analysis. The VMT models exist and are currently in use, and they are much easier and cheaper to use than traffic studies. And under the current guidelines, no projects would even need to bother with a VMT study at all in essentially all of the existing urban areas of California. Jennifer did not respond to these points.
Overall, it’s easy to make broad claims about the danger of injecting more “uncertainty” into CEQA and expressing fear of a new metric. But when you actually grapple with the details of what OPR is proposing, it’s hard to see what the fuss is about, at least if you’re pro-infill. Of course, if you’re pro-sprawl (or at least anti-infill), then you should be worried about these guidelines.
OPR is almost certainly going to change the guidelines significantly, so in many respects we’re debating a moving target. But their basic approach is legally and practically sound and seeks to achieve the exact outcomes California needs on the ground. I tried to make that point on Tuesday night. In the meantime, we’ll have to stay tuned to see how OPR revises their proposal.
I’ve blogged before about SB 743, a significant reform to the California Environmental Quality Act (CEQA) that will change how transportation analyses are done. Gone is the dreaded “level of service” standard, which rewarded bad sprawl projects with new auto lanes while penalizing inill projects for causing too much on-site congestion.
Now it looks like the Governor’s Office of Planning and Research (OPR) may be rethinking two aspects of the new proposed implementing guidelines. At a recent forum covered by the California Planning and Development Report, OPR leads Chris Calfee and Chris Ganson (collectively known as the “Chris’s” — I don’t want to write anything that looks like “crises”), stated a willingness to change two aspects of the guidelines. First, they might delay the statewide phase-in of the guidelines, currently proposed for 2016, while transit oriented areas would still go “live” with the new rules right away. Second, they may tighten down the metric of “regional vehicle miles traveled (VMT),” in which projects in areas below that threshold might be exempt from transportation analysis under CEQA. As CP&DR reports:
[Calfee] said OPR “would really appreciate your input on things like, what might be the appropriate recommendation for a threshold? We started out with regional average but we know others have some good ideas as well so please submit those.” He said the staff knew the safety discussion needed to be further refined, “and also, give us your thoughts on whether the timing that we set out is appropriate.”
Both changes sound basically reasonable to me, if indeed OPR pursues them. On the statewide phase-in, I’d love to see it happen sooner rather than later. But the way the timing is going, the guidelines won’t be adopted until late 2015 anyway. So pushing back the statewide version a few months or even a year would give more jurisdictions time and possibly lessen any political blowback.
On the regional VMT average, some environmentalists and others feel that exempting projects in areas below regional average VMT is too weak. For example, in the Southern California region, the regional average covers a massive area of widely varying urbanity/sprawl. All of urban Los Angeles, for example, might qualify as below the regional average, compared to the Mojave Desert and Inland Empire. So rethinking and tightening this standard would be beneficial, provided we don’t lose the elegancy and simplicity of the simple VMT metric and the bright line, wherever it may fall.
Overall, it’s quite likely that the guidelines will change significantly from what is proposed now, if history is any guide. But let’s hope OPR only strengthens them in the face of stakeholder input, rather than weaken them.
Last year, the California legislature passed badly needed reform to change how agencies evaluate a project’s transportation impacts under the California Environmental Quality Act (CEQA). The Governor’s Office of Planning and Research (OPR) was tasked with coming up with new guidelines for how this analysis should be done going forward. As I blogged about, the new proposed transportation metric, vehicle miles traveled (VMT), will inherently benefit infill projects and punish sprawl projects, because infill by its nature decreases VMT.
But you would never know that if you just read the misleading diatribe against the new guidelines by the influential large law firm Holland & Knight. Right off the bat, Holland & Knight attorneys get it wrong on both the legislation and the guidelines:
OPR proposes to dramatically expand CEQA by mandating evaluation and mitigation of “vehicle miles traveled” (VMT) as a new CEQA impact and single out certain infill projects as the first category of projects that must comply with this new VMT regime before it becomes mandatory for all projects in 2016.
In fact, the opposite is true. The guidelines essentially exempt any project within a half-mile of transit — or in areas that are below the regional average VMT levels — from any transportation analysis under CEQA. And lest you think that’s a small area, keep in mind that almost the entirety of urban Los Angeles is within a half-mile of a high quality transit stop, due to the extensive bus network.
A little less of this, please
What OPR is actually doing is eliminating the existing “level of service” (LOS) transportation analysis (which basically means auto delay) from CEQA in infill areas first and statewide by 2016. OPR is then replacing it with a VMT study requirement only in areas with high average VMT. Projects in low average VMT or transit areas either won’t need to do any transportation study whatsoever or won’t need to mitigate at all. That hardly equals an “expansion” of CEQA. Furthermore, the 2013 CEQA legislation specifically required OPR to come up with a replacement for LOS and called out VMT as the most likely substitute.
Holland & Knight attorneys then attempt to scare infill developers and their advocates by claiming that the new metric will lead to additional litigation. First of all, as mentioned, most infill projects won’t even need a transportation analysis under CEQA anymore, eliminating expensive and contentious traffic studies. Second, these traffic studies already trigger litigation all the time under the existing LOS transportation analysis, so it’s not like these guidelines are ruining the wonderful world for infill under the status quo. And finally, and most importantly, the OPR guidelines make lead agency decisions as bulletproof as possible on how to analyze transportation impacts under the new metric. How? By giving lead agencies discretion to pick the VMT model of their choice and to use their professional judgment in applying it to projects. LOS analysis certainly doesn’t have that kind of legal protection, as traffic studies are challenged all the time based on their methodology and assumptions.
But Holland & Knight attorneys protest that lead agencies lack affordable and easy-to-use VMT models, leading to more uncertainty:
[I]t must be acknowledged that we have few, if any, models that purport to be able to accurately characterize VMT at a project-specific level for infill projects. The absence of such models will lead to increased study costs (at a minimum) and litigation/enforcement uncertainty as “NIMBY” opponents will have a new tool to use in CEQA lawsuits aimed at stopping or delaying a project.
The reality is that agencies around the state are using off-the-shelf VMT models all the time, most notably for local climate action plans and for regional plans under SB 375. This is not a new field, and dozens of models exist for lead agencies to use their discretion to use.
Finally, Holland & Knight attorneys complain that the measures required to mitigate high VMT levels “go beyond CEQA’s statutory scope and delve into socioeconomic and land use policy planning issues that the legislature has repeatedly declined to include in CEQA.” I disagree. OPR’s suggested mitigation measures are sensible and targeted to reducing VMT, such as by improving access to transit, providing transit passes and bike-sharing, and reducing or unbundling parking. Ultimately, how else could a project with high VMT mitigate this impact? The goal here, after all, is to reduce driving and to use CEQA as a tool to encourage that reduction where feasible.
It’s unfortunate that Holland & Knight attorneys are attempting to spread this misinformation to their clients and beyond. The state needs to leave behind the old framework of prioritizing autos over transit, bicycling, and walking. At the same time, CEQA should require sprawl project developers to account for their impacts on regional traffic and air pollution. VMT is the most sensible metric to accomplish these goals, and OPR’s guidelines are well thought out, with opportunity for continued refinement from stakeholder input. Yes, it will involve a new framework and some getting used to. Yes, LOS will still exist in some local plans and agency analyses. But this is the beginning of a long overdue transition, and Holland & Knight should cease with the misinformation and let the state move forward.
Back in 2013, there was significant discussion about reforming the California Environmental Quality Act (CEQA), with the business community and its attorneys arguing that CEQA is nothing more than a litigation tool for opponents of new projects. Some environmentalists and labor unions countered that CEQA is necessary for decision-makers to adequately assess the environmental impacts of new projects and mitigate negative outcomes where feasible.
So of course the result of this debate was to streamline environmental review of a new basketball arena in downtown Sacramento.
But when California legislators passed SB 743 (Steinberg), they included an important provision related to CEQA review of project transportation impacts. Despite CEQA having an “E” for “Environmental,” transportation impacts basically meant auto-delay, or “Level of Service” (LOS). If your project slowed traffic anywhere, that was a negative impact, even if you were building a bus rapid transit line or new infill development that would reduce sprawl and traffic overall. Sprawl projects benefited, and infill and transit was penalized.
SB 743 directed the Governor’s Office of Planning and Research (OPR) to ditch this counter-productive LOS metric for something like a “vehicle miles traveled” standard (SB 743 gave OPR discretion to evaluate other metrics, too). OPR just released their draft proposal for the SB 743 guidelines and has settled on VMT.
Bus rapid transit shouldn’t get dinged for slowing cars
Why VMT? In short, the overall goal of our development patterns should be to provide housing, jobs and retail/services within convenient access of each other, without forcing long and frequent drives and creating more pollution. If we can reduce traffic overall, we’ve succeeded. VMT is the best and simplest metric to determine progress. Free VMT calculators exist, and many lead agencies already use it to calculate greenhouse gas emissions from projects.
Under the new proposed guidelines, OPR directs lead agencies to find less than significant transportation impacts if a project is located 1/2 mile from high-quality transit or in areas of less than the regional average for VMT. Local governments can set more stringent requirements if they want, but this will be the new floor. By 2016, OPR will phase in this standard across California, not just in infill areas.
The statute — and OPR — is basically trying to give infill projects a pass on transportation impacts under CEQA, while simultaneously dinging sprawl projects for creating more regional traffic. As Streetsblog LA observed:
When the state measured transportation impacts of a project based on car delay, it was fighting against its own environmental goals. Using LOS, it was easier and cheaper to build projects in outlying areas where individual intersections would show less delay resulting from new development. At the same time it was much harder and more expensive to build in dense areas where there was already a lot of traffic, and where measured LOS impacts would require expensive mitigations or reduced project size — but also where higher density would make transit, walking, and bicycling more viable transportation choices.
Planning expert Bill Fulton also noted:
Almost as bold as the proposal to switch to a VMT standard is OPR’s suggestion that expanded roadways in congested areas – currently often a mitigation under CEQA – should actually be examined as a possible growth-inducing impact under CEQA.
So while the focus now is on making infill projects easier to get entitled, the real action will be to slow or stop sprawl projects under CEQA, using the new VMT provision. Perhaps that’s why the big builders are worried about this change to VMT. In any event, the guidelines are not final, and OPR welcomes comments, which are due by October 10th. Yet while we can expect changes, the overall framework of VMT is unlikely to change, for the betterment of the state.
