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.
Berkeley Law’s free webinar on best practices for integrating infill-supportive policies into general plans will happen today at 10am PT. Joining us will be Chris Calfee from the Governor’s Office of Planning and Research (OPR), who will provide the latest on the general plan guidelines update process.
We will discuss the Center for Law, Energy and the Environment’s (CLEE) new guidance report on infill planning, which reviews 20 infill-supportive policies and includes sample policy language and recommendations on financing, CEQA exemptions, and other infill implementation measures. We’ll also have time for audience Q&A.
Register here or via this link. And you can download the new infill planning report here.
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.
I’m pleased to see that the governor signed AB 52 (Gatto), a significant reform to both the California Environmental Quality Act (CEQA) and the state’s attitude toward its diverse Native American tribes. For years, I’ve been shocked to see California’s rich heritage of historical and sacred sites bulldozed for new development, with little fanfare or protection. Here’s an example from near where I grew up in Lafayette, when a major new village site was discovered and dismantled for luxury homes back in 2004:
With at least as many Native American remains and artifacts — including projectile points, stone mortars and beads — still hidden beneath what soon will be two dozen upscale homes, experts say they may have discovered one of the region’s last large, and largely intact, Indian burial sites.
“I would not be surprised if in the inner Bay Area … I never saw another one of this caliber for the rest of my career,” said Allen Pastron, an urban archaeologist from Oakland who is leading the dig.
Bedrock mortars at Indian Grinding Rock State Park
Unfortunately, many people simply don’t care about these priceless resources. But that’s unfortunate. We all have a stake in preserving these sites, not just Native Americans. I spent the early part of my legal career working with Native Americans at a nonprofit dedicated to helping resolve intra-tribal disputes, and I appreciate the commonly expressed sentiment that these are their sovereign sites, often with strong religious meaning for practices that aren’t just historical but carry on to the present.
As a non-Native, however, my perspective is sympathetic but different. I view these sites as part of all of our human history and legacy, and we should preserve them to educate future generations about our diversity, history and cultural practices. Once they are gone, they are gone forever — and lost is an opportunity to appreciate the 13,000 years of human history in California. Not to mention the opportunity to learn about different ways of managing our natural resources.
CEQA should theoretically provide protections for these sites. But the protections are often weak and unenforced. AB 52 remedies that in key ways. First, it changes the definition of the tribal resource to be protected, opening it up to include landscapes, places and objects that aren’t just within the current political boundaries of the related tribe but within the historic and cultural range of that tribe. The lead agency will have to consult with that affected tribe and determine feasible mitigation measures.
Second, for the first time, the law includes non-federally recognized tribes in California as having a stake in these cultural resources. Currently, there are 110 federally recognized tribes in California and 78 tribal communities petitioning for recognition. Many of those unrecognized tribes were dropped arbitrarily by the federal government in the twentieth century, but they still maintain cultural activities and self-governance institutions. I’m glad to see them included in the process of protecting these sites.
But more importantly, I’m glad that these cultural treasures will have a better chance of surviving on our land for future generations to enjoy and learn from.
Net zero buildings for everyone!
In last night’s California gubernatorial debate, Republican candidate Neel Kashkari proposed a major reform to the California Environmental Quality Act (CEQA), which requires environmental review of new projects. But rather than gutting CEQA completely, a la State-Senator-turned-Chevron-lobbyist Michael Rubio, Kashkari proposed to give all projects the same breaks that the Sacramento Kings received in last year’s SB 743 (Steinberg). As Kashkari explained:
When the Sacramento Kings were going to leave, and the NBA said we need a new arena…Governor Brown signed an expedited review, gave them a special deal… But instead of just giving it to those who are politically connected who can hire high-priced lobbyists, why don’t we actually adopt that new standard and make it available to everyone?
And from Kashkari’s website:
[A]ll projects that come under CEQA challenge should be afforded the same injunctive relief and expedited review process that the Sacramento arena warranted.
So what exactly did the Sacramento Kings get? As I described at the time:
SB 743 [gave] Sacramento Kings basketball arena proponents accelerated environmental review and immunity from injunctive relief unless the project is found to jeopardize public health, safety, or archaeological resources. In exchange for these benefits, the new stadium must meet strict environmental performance measures, including net-zero greenhouse gas emissions from passenger trips to the stadium, LEED Gold certification, and compliance with the sustainable land use plan for the region under SB 375. In short, basically the same performance standards required for $100 million projects under AB 900 (2011)
So the Sacramento Kings only received the injunctive relief and expedited review upon pledging to meet high environmental standards related to energy efficiency and greenhouse gas emissions. Somehow I don’t think that’s the standard Kashkari wants to apply to all businesses in California. First of all, it’s unworkable given the range of projects covered by CEQA (a transit line, for example, isn’t even eligible for LEED gold certification, which is limited to “buildings”). Secondly, it would ensure greater environmental protection, which Kashkari doesn’t seem to prioritize. Third, it would place a huge burden on the courts to expedite these projects, and Kashkari doesn’t seem likely to spend more money to boost their staffing to be able to handle the additional caseloads.
To echo the governor’s words last night, this “glib” proposal belies the true nature of the deal that the Kings received. Coupled with Kashkari’s plan to shift high speed rail bond funds to additional water storage projects (a move that would be illegal — not to mention a betrayal of the majority of voters who approved those funds in 2008 for high speed rail only), the candidate appears to be playing fast and loose with the facts, at least on environmental issues.
