Sean Hecht 
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Re: “How an Environmental Law Is Harming the Environment

And the cases I cite in my other comment are just a start. I'm not familiar with the other cases, but from the face of the Holland and Knight study itself, it appears that they have characterized as infill at least the following types of projects: school playgrounds, approval of a habitat conservation plan, and a church.

1 like, 0 dislikes
Posted by Sean Hecht on 03/20/2013 at 1:52 PM

Re: “How an Environmental Law Is Harming the Environment

Mr. Gammon,
Thanks for your response. I understand that you think SB 226 didn't do enough. But anyone reading the article would have come away with the misimpression that the Legislature has done nothing to address the issue with infill development and CEQA, since you didn't even mention its infill provisions.

Actually, the SB 226 bill language and rulemaking process were focused specifically and directly on how to incentivize “smart growth,” through reducing VMT, encouraging development near transit stations, and other means. See OPR’s narrative and presentation here, which explain the goals and methods:……
Do you really think that was so irrelevant as to not be worth mentioning?

As for the Holland and Knight study, it’s not remotely relevant to “smart growth,” nor is it limited to "development" the way you or I might think of that word. You should not have relied on it. There are numerous non-“development” and non-infill projects characterized as infill on the list appended to the study – enough to dramatically change the numbers, from 59% to well fewer than half. (The total number of cases in the subset was 59, of which 35 were "infill," so a swing of 6 cases would bring it to less than 50%.) To the extent that this study characterized hospital or university stadium expansions or low-density housing or highway rest stops as “infill,” it would hardly seem relevant to your argument – certainly less so than SB 226. Just off the top of my head, here are six cases I'm most familiar with, all of which are designated as "infill" in that study, and the recharacterization of which would make the numbers you reported look very different:

PFEIFFER v. CITY OF SUNNYVALE CITY COUNCIL (2011) 200 Cal.App.4th 1552 (medical campus: “150,000-square-foot, three-story medical office building with two levels of underground parking, a four-level aboveground parking structure, and a 3,250-square-foot storage and waste management area”) What does that have to do with “smart growth”?

FRIENDS OF SHINGLE SPRINGS INTERCHANGE, INC. v. COUNTY OF EL DORADO (2011) 200 Cal.App.4th 1470 (“a Circle K minimart and gas station complex off Highway 50 in Shingle Springs”) What does that have to do with “smart growth”?

Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (2011)197 Cal.App.4th 1042 (hospital expansion – “the amount of hospital and medical office space on the site would nearly double from its current size of 340,071 square feet to 667,434 square feet.”) What does that have to do with “smart growth”?

California Oak Foundation v. The Regents of the University of California (2010) 188 Cal.App.4th 227 (stadium, sports field, law and business schools, and landscaping on UC Berkeley campus) What does that have to do with “smart growth”?

Torrey Hills Community Coalition v. City of San Diego (2010)186 Cal.App.4th 429 (new development in low-density area of San Diego, near sensitive open space/wildlife resources) What does that have to do with “smart growth”?

Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal. App. 4th 1252. This is not about a specific location; it’s actually a planning document, and not a new development at all. The general plan amendment was "designed to provide a long-term strategy to accommodate the anticipated future growth in population and employment and to serve as a guide to amend in the future the more detailed land use plans in the city's 35 (now 37) separate community plans."

3 likes, 2 dislikes
Posted by Sean Hecht on 03/20/2013 at 1:42 PM

Re: “How an Environmental Law Is Harming the Environment

I'm really disappointed in this article. While this article has some grains of truth in it, it is not well-researched, and is misleading on a number of fronts.

First: CEQA was just amended in 2011 to address some of these precise concerns. I don't see how this publication could have published an article of this length about CEQA and infill without a real discussion of SB 226. This article's only reference to that law is the sentence: "And they note that a 2011 law, SB 226, helped streamline approvals for environmentally sustainable development. SB 226, for example, exempts solar power systems installed on existing roofs or over parking lots from CEQA lawsuits." But actually, SB 226's core purpose was to provide streamlined environmental review for infill development! The regulations that will implement SB 226 were just finalized about a month ago, and haven't yet been given a chance. I find it odd that some of the very interest groups and legislators that pushed for SB 226 are now ignoring it or belittling it. (Senator Rubio was one of the sponsors, for example.) The premise of this article is that CEQA needs to be amended to make it easier to approve infill projects; it's strange, to say the least, that this article ignores the recent amendment to CEQA that was intended to address that issue.

Second: the article's characterizations of Holland and Knight's study are wrong. That study (which was performed by a law firm that represents land developers) did not find that "59 percent of the projects challenged under CEQA in state appellate courts or the California Supreme Court from 1997 to 2012 involved infill development." The report makes clear that the 59% figure is a subset of a subset of the cases - the denominator is those cases that could be characterized as "greenfield" or "infill." It's a much smaller percentage of the cases overall. And if you look at the study, it incorrectly characterizes several of the cases. For example, expansions of college and university campuses are counted as "infill." And so are planning documents that apply to urban areas (which is particularly bizarre, since proponents of CEQA reform for infill development always say that the planning level is where people should bring those challenges). Moreover, the universe of appellate cases in this study reveals nothing about trends in CEQA litigation overall. Any social scientist with any background in quantitative methods could tell you that this research has no value for the debate about CEQA.

Finally: This article has a strong bias. The article devotes about 90% of the column ink to the views of those who would want to change CEQA, and two paragraphs to contrary views. The article cites "reform" advocates such as Holland and Knight's lawyers without noting that their clients have a strong interest in changing CEQA. And the article gives short shrift to evidence contrary to its thesis: for example, the Governor's Office of Planning and Research's survey of local government planners, in which a tiny fraction of local government planners identified CEQA as the major barrier to developing infill, compared with other issues such as funding, infrastructure constraints, and lot issues. (See (p. 24 and table in Appendix C). Even the phrase "NIMBY" itself is just rhetoric that doesn't illuminate the discussion. People have many reasons for filing these lawsuits, and while I personally find some of the lawsuits to be counterproductive to environmental goals, many others - some of which address "infill" projects - are vindicating core values and purposes of CEQA, by ensuring government transparency and accountability and by protecting public health in urban areas.

Overall, the concerns about infill and CEQA, which have at least some degree of merit in some cases, are being used by interest groups that want to see the law gutted. Sen. Rubio's bill from late last session is a clear example of this. I suspect I share many of your goals from an environmental policy perspective. But I believe this important topic deserves better treatment from journalists.

11 likes, 9 dislikes
Posted by Sean Hecht on 03/18/2013 at 3:29 PM

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