Thread by @CSElmendorf

San Francisco has posted its doozy of a draft response to warning letter from @GavinNewsom's new housing accountability team.
(Is city's mission to bridge the partisan divide by proving itself a laughingstock to @nytimes & Fox News alike?)
1/n

sfgov.legistar.com/View.ashx?M=A&…

Context: state called out Board of Supes for voting down two large infill housing projects (800+ homes), in apparent violation of state's Housing Accountability Act. 2/n
drive.google.com/file/d/12XIn5y…

State then asked city to provide "written findings" explaining city's "reasoning and evidence," in light of state law. 3/n

https://twitter.com/CSElmendorf/status/1463168601528094742

The city's response is a pair of draft resolutions, which supes will vote on next Tuesday. The resolutions affirm the supes' previous votes w/o even acknowledging the HAA or the state's letter. 4/n

Regarding the O'Farrell St. project, the resolution justifies denial on ground that units would be small, w/minimal kitchens--& thus not in interest of "the neighborhood." But HAA allows denial of zoning-compliant projects only on basis *objective*... 5/n

health or safety standards, and city resolution identifies no such standard requiring larger units or fuller kitchens.
And let's not lose sight of big picture... 6/n

https://twitter.com/CSElmendorf/status/1437591462959456257

As cities across California are licensing tent encampments, providing sheds as shelters, & wracking all available brains to find tolerable housing options between tent-on-sidewalk and a $750k "affordable" unit, SF is... 7/n

denying this microunit project b/c "families are overcrowded."

Might it be that families are overcrowded b/c they're outbid for family-sized homes by groups of young tech workers who share a lease? Workers who'd happily rent a berth in an O'Farrell St "tech dorm"? 8/n

Alternative grounds for denial: city says residents of this car-free project might use Uber when they're not walking or taking transit, causing congestion, pollution, and "increased pedestrian/vehicle collisions." 9/n

Oh, and best of all, city says there is a "glut" of small housing units in the Tenderloin and along Market Street.
10/n

Yes: at moment when CA is spending $22B for homeless & low-income housing, when SF has ~8000 homeless on streets, & when SF is *buying up other microunit projects to use as shelters*, city wants to deny this one b/c of "glut" of small dwelling units. 11/n

https://twitter.com/Yimby_Law/status/1469387386274541572

What about the other project, 469 Stevenson? Here SF is doing its damnedest to provide every other city in the state w/ a roadmap for using enviro review (CEQA) to kill housing projects that state law (HAA) protects. 12/n

sfchronicle.com/opinion/openfo…

The draft resolution justifies reversal of Stevenson St. EIR on ground that the initial scoping document improperly determined that foundation safety, gentrification, & nearby historic resources were not potentially "significant" enviro impacts. 13/n

As @TDuncheon & I explain in a series of @SlogLawBlog posts and now a law review paper, this raises a host of thorny legal questions, including bad faith, enforceability of CEQA deadlines (SF decision is overdue), & CEQA baselines / causation. 14/n

papers.ssrn.com/sol3/papers.cf…

Even if one (wrongly) accepts a conventional CEQA baseline for gauging impact of an HAA-protected project, the supes are pushing a radical expansion of CEQA, against statutory text & precedent. 15/n

First, historic resources. Project site is *parking lot* next to historic districts w/mix of uses. Per McCorkle v. City of St. Helena, aesthetic congruence w/ nearby historic buildings don't count as enviro impacts under CEQA. 16/n

As the McCorkle court said (presaging the 469 Stevenson debacle): "To rule otherwise would mean that an EIR would be required for every urban building project ... if enough people could be marshaled to complain about how it will look." 17/n

Second, gentrification. "Unsubstantiated fears about potential economic effects resulting from a proposed project are not environmental impacts that may be considered under CEQA." So said Court of Appeal in Porterville Citizens v. Porterville (2007). 18/n
casetext.com/case/portervil…

CEQA is concerned w/ "physical environment," not social impacts. Supes' resolution asserts that gentrification may impact phys. env't, but it doesn't (1) specify any such physical impact, or (2) provide evidence beyond "unsubstantiated fears." 19/n

leginfo.legislature.ca.gov/faces/codes_di….

Lastly, we have supes' demand for analysis of alternative foundations, which EIR excluded on ground that foundation safety is covered by building code. This runs against CA Supreme Court holding that seismic risk to project isn't a CEQA impact. 20/n

https://twitter.com/CSElmendorf/status/1453965697327919110

It also upends CEQA's presumption that "building code issues" are ministerial and thus outside scope of CEQA review. 21/n

https://twitter.com/CSElmendorf/status/1468833043154538500

And, if sustained, it might well crush the business model of development in San Francisco, where one set of firms specialize in entitlement and another in construction. 22/n

SF's insane entitlement process (way worse than any other city studied by @ONeillMoiraK) would become even costlier under supes' logic, since all engineering work would have to be done before proponent learns whether city will even accept project's size & appearance. 23/n

This a moment of truth for @GavinNewsom @GVelasquez72 @AGRobBonta @CaHousingGuy & @ShannanWestCA: Are you serious about housing accountability, or are denials just fine if topped w/cherry of progressive rhetoric? 24/end

@ezraklein @JerusalemDemsas

nytimes.com/2021/02/11/opi…