Tackling California’s Housing Crisis via AB 1633
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Tackling California’s Housing Crisis via AB 1633

Brownstein Client Alert, Dec. 1, 2023

Bill imposes a clock on CEQA review for certain infill housing projects, weakens project opponents' ability to obtain attorney fee awards

AB 1633 strengthens the Housing Accountability Act by closing a loophole that allowed local agencies to delay or block new infill housing projects under the California Environmental Quality Act (CEQA). Perhaps most significantly, it also disincentives NIMBY lawsuits by significantly limiting opportunities for housing project opponents to recover attorneys’ fees.

The Housing Accountability Act prohibits a local agency from disapproving or reducing the density of housing development projects that comply with local and state regulations unless the agency can make certain written findings. Local agencies, however, could still indefinitely delay projects by refusing to complete CEQA review for the housing project. In one infamous example, the City and County of San Francisco Board of Supervisors ordered additional review for a 495-unit project, adding significant delay to a project that had already been approved by the planning commission. The sensitive natural habitat worthy of such extra-ordinary scrutiny? A dilapidated parking lot.

AB 1633, introduced by Assemblymember Phil Ting (D-San Francisco), closes this loophole for certain infill housing development projects by declaring that a local agency’s failure to complete its CEQA review in a timely manner or improper denial of a project on CEQA grounds constitutes a violation of the Housing Accountability Act.

Qualifying Housing Projects

To be eligible for the new protections of AB 1633, a project must qualify as a “housing development project” under the Housing Accountability Act and meet the following requirements:

  1. Be located on a legal parcel within an “urbanized area” and meet certain criteria, such as proximity to a high-quality transit stop or major transit stop; in an area with low vehicles miles traveled (as defined by the statute); located near certain amenities (e.g., within one-half mile of a bus station, ferry terminal, within one mile in urban areas or two miles in rural areas of a grocery store, public park community center, etc.); or on a parcel surrounded by 75 percent (or three sides) by urban uses
  2. Have density of at least 15 units per acre
  3. Not be located in the coastal zone, on certain types of farmland, on wetlands, on a hazardous waste site, within a delineated earthquake fault zone, within a special flood hazard area, within a regulatory floodway, on lands identified for conservation, on habitat for protected species, or in a high or very high fire hazard zone

AB 1633 Procedures

AB 1633 creates two different procedures, one for CEQA exemptions and one for other CEQA determinations.

  • CEQA Exemptions: If a (i) project qualifies for a CEQA exemption based on substantial evidence in the record, and (ii) the local agency fails to make a lawful determination within 90 days (or 180 days if extended by the agency) of timely notice from the applicant that the project is exempt, then AB 1633 deems the agency has disapproved the project under the Housing Accountability Act.
  • Other CEQA Determinations: If a (i) project qualifies for a negative declaration, addendum, EIR or comparable environmental review document under CEQA; (ii) the local agency has held a meeting to adopt or approve the environmental document but the agency fails to do so or requires further environmental study; and (iii) the local agency fails to adopt, approve or certify the environmental document within 90 days of timely notice from the applicant that such action is required, then AB 1633 deems the agency has disapproved the project under the Housing Accountability Act.

Disincentivizing NIMBY Lawsuits

AB 1633 disincentives NIMBY litigation by reducing opportunities for housing project opponents to recover attorneys’ fees—even if the plaintiffs win their case. Specifically, AB 1633 declares that, in deciding whether to award opponents’ attorneys’ fees, the court should give “due weight” to whether approval of the project furthered the purposes of the Housing Accountability Act and “rarely, if ever” award attorneys’ fees for challenges to projects approved by the local agency in good faith. The provision changes the calculus for housing project foes by removing the primary financial incentives to initiate these lawsuits in the first place, likely leading to a significant decrease in these kinds of legal challenges.

Lauded by pro-housing groups, AB 1633 is one of many bills signed this year to address California’s housing crisis. California YIMBY CEO Brian Hanlon, echoing other housing advocate groups, noted: “There is consensus among climate and housing experts that we need much more housing in our urban areas—to reduce climate pollution, but also, to make our cities more affordable, accessible, and sustainable. AB 1633 will end the common practice in some cities of indefinitely delaying CEQA certification for new homes that are clearly in compliance with all relevant environmental regulations.” Despite optimism over the prospect of cutting down on CEQA-induced project delays, some worry that the long list of site exclusions will limit the law’s usefulness.

AB 1633 sunsets on Jan. 1, 2031, unless extended by the legislature.

This document is intended to provide you with general information regarding AB 1633 in California. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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