CEQA & Housing
Information on how the Legislature and the CEQA Guidelines have streamlined environmental review of housing projects.
In order to streamline the construction of housing projects in California, the Legislature has created multiple CEQA statutory exemptions for housing projects. Additionally, OPR and the Natural Resources Agency have streamlined regulations for certain classes of projects – such as small housing developments and infill housing – that typically do not have substantial impacts on the environment. In order to assist lead agencies, housing developers, and members of the public with navigating these various provisions, OPR has created and compiled resources on this page.
Developed in coordination with the Department of Housing and Community Development, Site Check is an innovative mapping tool that allows users to see if selected parcels may qualify for an existing streamlining option. Currently in Beta format, the tool allows users to map various CEQA definitions and filter parcels based on planning, transportation, and environmental criteria. Site Check is a good “first step” for developers and public agencies considering how CEQA may apply to a housing project. Version 1.0 is expected in late 2021 or early 2022. Note: Users should not construe as legal advice any contents of, or outputs from, Site Check, and should independently verify all determinations.
OPR has issued two technical advisories on streamlining options for housing projects:
Studies on CEQA & Housing
Multiple studies have analyzed the link between CEQA and housing production. Those studies are linked below. Note: OPR does not endorse any statements or policy recommendations contained in the following reports. They are provided for informational purposes only.
- California’s housing shortage is leading to a rise in housing costs
The CEQA debate:
- Proponents of reform believe CEQA negatively impacts affordable housing
- CEQA supporters assert the law is necessary to mitigate environmental impacts
- Association of Environmental Professionals (AEP) conducted a statewide survey to gather empirical data on the relationship between CEQA review and housing impacts
- 57% of survey respondents suggest that CEQA does not constrain housing
- CEQA review does not cause significant project withdrawal (survey withdrawal rate of 2.8% of total units)
Responses re: key changes to improve CEQA for housing production
- Modify CEQA (e.g. expand exemptions for infill and affordable housing)
- Improve implementation
- Simplify litigation process
- Question posed: what laws or regulations might impede housing construction in high-cost areas?
- Method of analysis: legal and data analysis of residential development projects
- Data from four cities: Los Angeles, Long Beach, Pasadena, and Santa Monica
Relatively few projects within the four cities required a full EIR process
- Los Angeles frequently uses MNDs to comply with CEQA
- The three smaller cities rely on exemptions to reduce the burden of CEQA compliance – nearly all proposed residential development projects in the smaller cities were categorically exempt from CEQA
- Many projects receive multiple CEQA exemptions, which suggests overlap in CEQA review procedures
Project approval timelines: (in all four jurisdictions)
- Exemptions are faster than MNDs and EIRs
- MNDs are faster than EIRs
- Holland & Knight completed a comprehensive statewide report of CEQA lawsuits that target housing projects in California
- The authors allege that CEQA litigation is being used to challenge higher density, infill housing projects, most often supported by environmental and climate policy activists
The authors advance three CEQA litigation abuse reform proposals:
- Extend CEQA transparency and end anonymous CEQA lawsuits funded by shadow interests using CEQA for private gain not environmental protection
- End duplicative CEQA lawsuits for projects that comply with previously-approved projects and plans when a CEQA process has already been completed
- Reserve the judicial remedy of vacating project approvals for projects that could actually harm the natural environment, public health, or irreplaceable tribal resources – and preserve the litigation remedy of requiring adequate study and mitigation of project impacts
- Within California’s most populous region, the Southern California Association of Governments (SCAG), 33% of CEQA lawsuits filed were aimed at stopping approved housing projects (2013–2015)
- The statewide report showed that only 20% of all types of construction projects targeted by CEQA lawsuits challenged greenfield projects
- Within the SCAG region, 99% of CEQA lawsuits were aimed at housing units within the region’s existing communities – and only about 1% of the residential units targeted in CEQA lawsuits were located on greenfield natural, agricultural and rural lands
- BAE Urban Economic’s report closely examines arguments and assumptions underlying the most current calls for CEQA reform
Main arguments against CEQA:
- CEQA litigation abuse
- Burdensome project costs and delays
- Constraints on other policy initiatives (e.g. affordable housing projects)
Responses to arguments against CEQA:
- Recent legislative and regulatory changes have been enacted to streamline CEQA
- California’s consistent high rank for economic prosperity and sustainable development refutes the argument that CEQA constrains economic growth
- Since 2002, there has been an average of 195 CEQA lawsuits per year
- From 2013 to 2016, the estimated rate of litigation for all CEQA projects undergoing environmental review (excluding exemptions) was 0.7% (1 out of every 100 projects)
- In San Francisco, only 14 EIRs were prepared in the tree years between 2013 to 2016 (less than 5 EIRs per year)
- The Housing Workshop prepared a report that examines assumptions and evidence underlying arguments against CEQA and concludes the arguments are unfounded
- For more than 50 years, CEQA has protected the state’s natural environment and many of its iconic places, and is now also used to combat urgent issues of environmental injustice and global climate change
- The authors consider CEQA to be a ‘living law’ that serves as the key tool for community members demanding mitigation for proposed projects’ harmful impacts on residents’ health and wellbeing
- There is no overall pattern of increased litigation – litigation year-to-year does not trend with California’s population growth (14.5% population increase between 2002 to 2019 but number of annual CEQA lawsuits has remained basically the same)
- The cost of CEQA compliance from 5 project case studies ranged from 0.025% to 0.6% of total project costs
- CEQA has not proved to be a significant factor or cause of California’s housing crisis
CEQA applies when a governmental agency can exercise judgment in deciding whether and how to carry out or approve a project. The ability to exercise judgment makes the project “discretionary.” (CEQA Guidelines, § 15357.) Where the law requires a governmental agency to act on a project using fixed standards and the agency does not have authority to use its own judgment, the project is called “ministerial,” and CEQA does not apply. (CEQA Guidelines, §§ 15268(a), 15369.)
State and local laws and guidelines should be consulted when determining whether a project may be ministerial or "by right."
SB 35 - GOV § 65913.4 - Creates a streamlined approval process for developments in localities that have not yet met their housing targets, provided that the development is on an infill site and complies with existing residential and mixed-use zoning. Participating developments must provide at least 10 percent of units for lower-income families. All projects over 10 units must be prevailing wage and larger projects must use skilled and trained labor. See the SB 35 section of HCD’s website.
Recent legislation requires tribal consultation prior to using this option. See OPR’s Technical Advisory on AB 168 for more information.
- AB 2162 – GOV § 65650-65656 - Allows for by-right development for supportive housing anywhere zoned for multifamily and mixed-use housing.
- AB 430 - GOV § 65913.15 - Establishes a ministerial approval process for housing development in the cities of Biggs, Corning, Gridley, Live Oak, Orland, Oroville, Willows and Yuba City. These provisions expire on January 1, 2026.
Housing projects may also be by right under local the zoning code on certain parcels. Check with the appropriate local jurisdiction for more information. Note, where local discretion is limited to design review, the project may not be subject to CEQA. (See McCorkle Eastside Neighborhood Group v. City of St. Helena (2019) 31 Cal.App.5th 80.)