I don't damn CEQA as a tool of "green mail" trolls looking to extract concessions and cash from developers, although the review process has been used that way. And I don't dismiss CEQA because neighborhood NIMBYists often challenge a project for its theoretical effects on property values.
CEQA isn't an all-powerful ogre; it's a set of questions designed to make the planning process more transparent to you and me ... and to the trolls and the NIMBYs, too.
The questions can point to impacts on the environment that might be lightened by better project planning, a smaller footprint, or relatively minor "mitigations" admittedly costing developer time and money.
The questions also reveal some environmental impacts that can't be mitigated, only endured.
Most of the time, the answers to CEQA questions are easy. Sometimes the answers embarrass developers, who would prefer that the unappealing parts of a project be discreetly veiled from the neighbors. Sometimes the answers make a messy project a better neighbor.
And sometimes the answers show how little CEQA can do and how much clout developers and their city council cronies wield.
Since 2002, a judgment by a state appellate court in the Bay Area has edited out some questions from environmental review - questions about parking spaces. Sarah E. Owsowitz and Stephanie R. Straka, writing at PublicCEO.com, explained why:
In San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, a state appellate court considered a challenge to an environmental impact report's discussion of the parking impacts of a massive redevelopment project in downtown San Francisco. ... There was no question that the project would greatly increase the demand for parking in the area, but the project did not include any new parking. The project's opponents challenged the city's decision not to identify the project's parking deficit as an environmental impact. The (court) sided with the city, finding that its environmental analysis was adequate as the "social inconvenience of having to hunt for scarce parking spaces is not an environmental impact; the secondary effect of scarce parking on traffic and air quality is." Thus, the court held that the lack of parking does not, on its own, need to be treated as a significant impact to the environment.
That interpretation of CEQA has been recently unsettled, putting "smart growth" and "transit oriented" development projects in southern California, which typically have reduced parking requirements, in possible trouble.
In a San Diego case relating to nighttime parking at a high school football field, the Fourth District Court of Appeal ruled that the lack of parking spaces for football fans was an environmental impact on the nearby neighborhood that should have been reviewed under CEQA. The school district, the court said, failed to prepare a full environmental impact report rather than the quick, pro-forma document called a "negative declaration." The court ruled that neighborhood concerns about finding a parking space on game nights constituted evidence that "the Project may have a significant impact on parking and thus the environment."
Significant impacts require a full review under CEQA, with associated costs, delays, and potential to fuel court challenges.
Attorneys for the San Diego Unified School District have petitioned the California Supreme Court to review this case. But getting a case before the court takes time, and there are no guarantees what the court will decide.
Waiting puts development projects at some risk.
CEQA in 1970 was all about "power to the people" - although the power was mostly to ask questions and to keep on asking them. Sometimes a judge had to tell "the people" to stop. Sometimes a developer made concessions to make the questions go away. And sometimes a developer just walked away, because the economics of a poorly conceived project favor speed and punish thoughtful redesign.
CEQA reform in 2013 is all about "streamlining the process," particularly for infill projects in urban neighborhoods that are already gentrifying and densifying. Consistency is one goal of reform; proposed legislation would set up statewide thresholds for several categories of environmental impacts for infill projects. But speed is a goal, too. Proposed legislation would accelerate both project reviews and legal challenges.
The San Diego decision is a significant complication to streamlining CEQA, leaving cities wondering how their infill projects are to deal with parking and forcing state legislators to reconsider how CEQA can satisfy both "smart growth" advocates and project developers.
Both would prefer to leave parking spaces out of the environmental equation as much as neighborhood residents want to keep them in.
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