Sausalito‘s Strategy For Blocking New Housing Development Backfired
Sausalito's Strategy For Blocking New Housing Development Backfired
Sausalito's Strategy For Blocking New Housing Development Backfired
Sausalito's Strategy For Blocking New Housing Development Backfired
California’s YIMBY Law Takes On The City Of Sausalito
“No CEQA exemption for you, Sausalito!”
What is the “Builder’s Remedy?”
It is a pathway that allows for developers to bypass local zoning standards and land use entitlement reviews for proposed housing projects.
It is something that every exclusive, affluent municipality in California is deathly afraid of, because it removes their ability to impose Discretionary Reviews. These reviews allow them to reject proposed new development they don’t like on subjective reasons like the impact to “light and air” and other such squishy reasons. These municipalities love having these subjective reasons at their disposal to deny a project because of the power it gives them to maintain what they call “neighborhood character.” Which of course can’t specifically and objectively be defined either.
For a developer to be eligible for the “Builder’s Remedy,” its project must satisfy criteria #1 and #2, above. #1 is easy. The plan just needs to stipulate that a certain percentage of units in the proposed development will be “affordable”, and deed restricted to have a sale price that is a specific percentage of the area’s median income.
#2 is trickier.
If I were a municipality trying to avoid a developer pursuing the “Builder’s remedy,” here are the options available to me:
- If a multi-unit housing project is proposed in an R-1 (single-family housing zone), ask the developer to complete a full Environmental Impact Report because the proposed project is inconsistent with the zoning restrictions for the site. The findings in that report can then be used to deny the project based on environmental concerns – like increased shadows. How much shade is too much? That’s what’s so great about subjective reasons. They don’t need to be backed with math and logic.
- Demand that the developer pay for infrastructure costs to support the new development, like new sewers, roads, etc. which might make the new development not financially viable.
- Threaten the developer’s other non- “Builder’s Remedy” projects in review with delays (and costs) if the developer pursues a “Builder’s Remedy” on a different project.
The Sausalito City Council chose the first option to thwart developers from satisfying criteria #2. They did it in a unique way.
In a sort of legal slight-of-hand that the City often employs, it filed a CEQA Notice of Exemption (NOE) in early February. It stated that it’s Housing Element “would not result in any direct or indirect physical changes to the environment” because it is “strictly a policy document and does not provide entitlements to any specific land use projects.”
Essentially, what Sausalito was hoping for is that, if its Housing Element was “strictly a policy document”, and that document isn’t a set of plans for new housing, it’s just a piece of paper. And how can a piece of paper have an environmental impact? It’s just a piece of paper.
If its NOE was approved, then any of the sites reported as buildable in its report would each, individually be held to provide Environmental Impact Reports (EIR). So, if a developer wanted to build a multi-unit building that conformed to #1, above, on a site that the City Council deemed “buildable” per their Housing Element, the city could demand an EIR. And then declare that report noted an environmental impact (the building would create too many “shadows”, for example), and reject the proposed building.
So, the project would have failed criteria #2, above, and therefore the “Builder’s Remedy” could not be employed by the developer. On a site that the Sausalito government said was “buildable.”
Not so fast, said YIMBY Law, a non-profit organization. That Housing Element isn’t just a piece of paper. It’s a set of unique “projects.”
On March 8th, 2023, YIMBY Law sued the City of Sausalito. Their rationale?
“We sued the city of Sausalito, California following the city’s adoption and self -certification of a housing element we believe is noncompliant with state law.
“The main issues are that Sausalito did not do an Environmental Impact Report for their Housing Element, which is a CEQA violation, and their site inventory contains too many unrealistic sites.”
YIMBY Law’s contention is that “A general plan element is a “project” under CEQA. (14 Cal. Code Regs. § 15378, subd. (a)(1).)” Therefore, the Housing Element is not just a piece of paper. Each of the proposed sites identified within it are “projects.” And therefore, subject to CEQA. Which means that Sausalito should have completed EIRs for every parcel of land that it put forth as “buildable” in the Element.
I’ve got my popcorn ready; this will be a fascinating show.
Here is the verbatim text from the lawsuit itself (Microsoft Word – DRAFT Sausalito Petition (courthousenews.com) )
February 1: The City Declares the Project Exempt from CEQA 172.
- The City filed its Notice of Exemption (NOE) with the Marin County Clerk on February 1, 2023. (See Pub. Resources Code § 21152, subd. (b); above ¶ 36.)
- On information and belief, the City never posted this NOE to its website. (Contra Pub. Resources Code § 21092.2.)
- In declaring the project exempt from CEQA, the City primarily relied on the CEQA Guidelines’ “common sense exemption.” (14 Cal. Code Regs. § 15061, subd. (b)(3).)
- To qualify for this exemption, “it [must] be seen with certainty that there is no possibility that the [project] . . . may have a significant effect on the environment.” (Ibid. [italics added].)
- The NOE does not claim to be “certain[]” there is “no possibility” that the project may have a significant effect on the environment, including any cumulative and growth-inducing impacts.
- The NOE cites no evidence that the City considered whether or how the project may have a significant impact on the environment.
- Instead, the NOE asserts “there is no substantial evidence that the [project] may have a significant effect on the environment,” which is the wrong standard for the common sense exemption.
- Alternatively, the NOE invokes a statutory CEQA exemption applicable to “regional housing needs determinations made by [HCD], a council of governments, or a city.” (14 Cal. Code Regs. § 15283 [italics added]; see Gov. Code § 65584, subd. (g).)
- The project is a revision to a housing element, not a regional housing needs determination.
- The regional housing needs determination for the City occurred before the project, when the City was assigned its RHNA of 724 homes including 315 lower-income homes. 182.
- In fact, the City administratively appealed this regional housing needs determination to the Association of Bay Area Governments before commencing the project of revising its housing element. (See City of Sausalito, 6th Cycle Regional Housing Needs Allocation (RHNA) Appeal (July 9, 2021))
- In connection with its administrative appeal, the City cited “significant physical and environmental barriers to housing production” that the City contended would “render [its] allocation unrealistic, particularly in the creation of housing.” (City of Sausalito, City Appeals Regional Housing Allocation (July 16, 2021))
- Specifically, the City contended in its administrative appeal that “the City c[ould] realistically accommodate 123 units during the 6th Cycle,” and that any allocation “higher [than 306 units through 2050] represents unrealistic assumptions that do not meet the methodology standards of [the Housing Element Law],” including factors such as “the availability of land suitable for urban development or for conversion to residential use.” (RHNA Appeal, above, at p.34.)
- The Association of Bay Area Governments denied the City’s administrative appeal, along with those of every other Bay Area jurisdiction except for Contra Costa County. (See Ass’n of Bay Area Gov’ts, 2023–2031 RHNA Appeals Process (last updated Dec. 17, 2021))
- The Association’s denial of the City’s administrative appeal was not judicially reviewable. (See City of Coronado v. San Diego Ass’n of Gov’ts (2022) 80 Cal.App.5th 21; City of Irvine v. S. Cal. Ass’n of Gov’ts (2009) 175 Cal.App.4th 506