Why this article is important: The NIMBY’s most powerful legal tool to combat development is CEQA. To address California’s housing shortage, a new law wrests some of this CEQA power from NIMBYs, shifting permitting power from councils and boards to administration to allow more certainty for development in desirable residential areas.

CEQA review discourages new housing

The California Environmental Quality Act (CEQA) requires a review of proposed construction for potential environmental impacts of the project.

CEQA adds time and expense — costs — to the permitting process, making new housing more costly and less profitable for builders (and end users). It can also be used obstructively by local advocates against development (known as not-in-my-backyard advocates or NIMBYs) to litigate and delay which creates uncertainty and drives up the costs of projects to often infeasible levels — and in turn halt developments completely.

A new law, passed by Assembly Bill 130, removes CEQA application from housing projects that:

  • are no more than 20 acres (or, for a builder’s remedy project, no more than five acres);
  • are located within an incorporated municipality or an urban area as defined by the U.S. Census Bureau;
  • have been previously developed with an urban use; or
    • at least 75 percent of the perimeter adjoins urban use parcels;
    • at least 75 percent of the area within a ¼ mile radius is developed as urban use; or
    • for sites with four sides, at least three sides are developed with urban uses and at least two-thirds of the perimeter adjoins urban parcels;
  • show substantial evidence that the housing project is consistent with the local plan and zoning ordinances (or at least one when the general plan and zoning are inconsistent);
  • consist of at least 15 units per acre in a metropolitan area or at least 7.5 units per acre in an incorporated municipality in a non-metropolitan area;
  • have no portion of the project for hotel use or other transient housing; and
  • do not require the demolition of an historic structure. [Calif. Public Resources Code §21080.66(a)

Editor’s note — A “builder’s remedy” project is deemed compliant with local zoning regulations and general plan when the local housing element is not in compliance with California housing law. In other words, builders receive a preemptive pass to build taller, denser projects than local ordinances allow.

To qualify for CEQA avoidance, the project needs to provide housing for very-low, low- or moderate-income households at the rate of at least:

  • 7% for extremely low-income households;
  • 10% for very low-income households;
  • 13% for low-income households; or
  • 100% for moderate-income households. [Calif. Government Code §65589.5(h)(3)]

When a project bypasses CEQA review under these exceptions, the developer completes its own assessment for environmental hazards and takes necessary mitigation efforts. [P R C §21080.66(c)(1)]

Further, developments located within 500 feet of a freeway must include air filtration mitigation efforts, including the installation of centralized air and heat in each unit. [P R C §21080.66(c)(2)]

Related article:

NIMBYs judge low-income housing by its sound — and judge wrong