It’s been two years since San Francisco lawmakers sought to block a new development of nearly 500 homes on a valet parking lot in downtown San Francisco, but the blowback from that baffling vote is still being felt — so much so that SF Assemblymember Phil Ting sponsored legislation to prevent that from ever happening again.
Sacramento saw a lot of housing bills this year, and Gov. Gavin Newsom signed an almost overwhelming number of them, 56 in total. Two prominent ones were from former District 8 supervisor and now state Sen. Scott Wiener, a housing champion. Also among them was Ting’s AB 1633, which might well have been titled the Hold San Francisco Accountable Act. The bill’s backers specifically called out Ting’s hometown and the board’s tendentious 2021 vote against new housing at 469 Stevenson Street when urging the governor to sign it, and again after the signing took place.
“AB 1633 is narrowly targeted at those jurisdictions and actions that abuse CEQA to delay housing project approvals indefinitely,” SPUR policy head Michael Lane said in September, and it wasn’t a mystery which one he was talking about.
When supervisors upheld an appeal to the 469 Stevenson proposal in October 2021 — a vote that, in addition to other fallout, provoked a state investigation about SF’s housing policies — they invoked the California Environmental Quality Act. (Editor’s note: The California Department of Housing and Community Development has finally handed down a potentially devastating slate of findings, which The Frisc will be dissecting in depth in the coming days.)
CEQA, a 1970 law signed by then-governor Ronald Reagan, was meant to safeguard public health. In practice, it’s served as a kind of basilisk that strikes housing developments stone dead, and developers fear little more than the possibility of falling into its coils.
But while it’s hardly unusual for CEQA to scuttle new buildings, the way that SF deployed it on 469 Stevenson was particularly noxious, sending the project back for review while being at best vague, and at worst bonkers about the environmental problems or issues in question. (Worries over gentrification and displacement, for example, aren’t exactly air, water, flora, and fauna.)
This left the proposed development in a hazy limbo of apparently needing additional review for … something or other, details unclear. But because SF supervisors did not technically deny the development, they skirted actually breaking the law, opting to delay the deal to death.
Left-leaning publication Mother Jones cited 469 Stevenson as an example of “greenmailing” housing, where environmental rules are used as a form of extortion. Ting was evidently so tinged off about this stymied project that he crafted AB 1633 to clarify that “bad faith” CEQA deferrals now qualify as a violation of the state’s Housing Accountability Act, or HAA.
“We gave attention to the Stevenson project because it’s not far from the Assemblymember’s district,” Ting spokesperson Nannette Miranda tells The Frisc, but notes that plenty of other cities have resorted to the same trick, including Oakland recently. (For the record, Ting’s district covers about two-thirds of San Francisco but not downtown. Also, if you’re ever looking for the representative to the Farallon Islands, he’s your guy.)
The legislation only applies to infill developments in urbanized zones — the sorts of projects that are actually supposed to be exempt from CEQA anyway, but because of legal ambiguities and local politicking, developers are rarely able to claim that exemption, which is what this bill is looking to fix.
SPUR’s Lane says cities will still have the right to challenge new housing under CEQA; they just have to make a specific case for why they’re doing it. “We’re just saying show your work,” he tells The Frisc. “Right now, the playing field is tilted toward the neighbor” who can challenge pretty much any new project under CEQA with very little effort, and “we just wanted to level the playing field.”
One of the bill’s architects goes even further and argues that Ting may have defused a potential housing law apocalypse with this legislation, and possibly even reformed CEQA on a fundamental level.
UC Davis land-use specialist Chris Elmendorf wrote in a paper earlier this year that, as the law stood, CEQA and HAA might pose a conflict of “super statutes.” Elmendorf and coauthor Timothy Duncheon’s “When Super Statutes Collide” noted that recent bolstering of HAA created possible problems, as “much of what used to pass as ordinary land-use politics is now against the law,” paving the way for potential legal upheaval about which massive state law courts would assert over the other, HAA or CEQA.
AB 1633 was part of a shockingly strong showing for pro-housing interests in Sacramento this year.
But Elmendorf now says Ting has averted that and may curb many of the conventional abuses of CEQA in general, explaining in a long Twitter thread that the vagueness of CEQA as written meant that it was hard for developers to take advantage of exemptions for infill urban housing, while subjecting them to long and arduous environmental reviews.
The new law creates a new paradigm for development, according to Elmendorf, in which builders who believe cities are trying to give them the runaround can cite HAA and defer to the courts, and where the risk of such litigation may alone tame such stunts. (We should note that Elmendorf helped Ting’s office craft the bill that would become AB 1633.) In an email to The Frisc, he notes that some California cities — such as Huntington Beach — might be eager to challenge these new rules in court, so we’ll see how the long-term reform efforts play out.
The bill drew the usual opposition from local activists and community groups. SF’s People Organizing to Demand Environmental and Economic Rights, known as PODER, called it a giveaway to monied interests and decried 469 Stevenson as “an enormous luxury home development.” For the record, out of more than 450 units, the project is slated to include 73 units for low-income residents, with the developer also paying fees for around 30 units elsewhere in the city.
Big stack of bills
AB 1633 was part of a shockingly strong showing for pro-housing interests in Sacramento this year. “Scott Wiener walks on water,” said Mayor London Breed, summing up the session while speaking at a YIMBY “homecoming” event earlier this month.
Among the package of new laws is SB 423, which extends Wiener’s old SB 35 bill, the single most consequential piece of housing legislation in a generation. (Read more here on how that works.) SB 4, a Wiener bill opening up housing development options for churches and colleges, also got the OK from Newsom.
Assemblymember David Alvarez pushed through a law that dangles a gigantic carrot in front of developers in the form of a 70 percent density bonus — that is, a 70 percent increase in the number of units they can legally build — for any project that includes at least 20 percent of units priced for the lowest-income households.
Meanwhile, East Bay rep Tim Grayson’s new law gives cities 180 days to pass new zoning laws in accordance to cities’ Housing Elements (a process SF is embarking on, sort of) or else mixed-use projects can simply disregard special zoning rules and just build in accordance with the local general plan. Existing law already allowed projects that are two-thirds residential to do this, but now almost every proposal could just shrug off attempts at local control unless cities get their acts together in a timely manner.
Assemblymember Pilar Schiavo of Southern California pushed through a new law that lets affordable housing developers challenge “restrictive covenants” on land before they’ve finished buying. California outlawed racial covenants years ago, but many contracts still bear language trying to bar increasing density on the property, or even renting to low-income people. A 2021 law empowered owners to petition cities to throw out these agreements, but it has to be done on a case-by-case basis, and Schiavo’s bill allows affordable developers to pursue properties without the risk of buying a dud.
What’s more, former SF supervisor and now Assemblymember Matt Haney pushed through new renter protections, limiting security deposits to no more than one month’s rent, and another bill expanding the state attorney general’s power to sue cities for violating state housing laws.
Oh, and the 469 Stevenson project that set off Ting to write a law? That development has overcome a local hurdle anew, and we’re certain to see more changes to bureaucratic blocking tactics again.
Adam Brinklow covers housing, development, and more for The Frisc.
