The Bay Area Gets It:  Infill Development is Smart Growth…

​As readers of our update are surely aware, infill development doesn’t just make business sense, it is a vital environmental policy as well.  Creating greater housing density near jobs, public transit and services reduces automobile (and fossil fuel) use, does not encroach onto undeveloped greenfields, beautifies our city, and creates a healthier life for those who can walk and bike to transport themselves.  Underscoring infill’s role as environmental policy is the U.S. Environmental Protection Agency’s annual report tracking infill and non-infill housing development throughout the country.

In EPA’s own words, infill development “can help to create new housing choices, make neighborhoods livelier, increase the tax base, protect rural landscapes, reduce infrastructure costs, and conserve natural resources…residents can drive less if they choose, reducing air pollution, and less paved surface is needed for roads and parking lots, reducing the amount of polluted storm water runoff flowing into waterways.”  Unsurprisingly, EPA’s 2012 report ranks the Bay Area as a region with one of the best records of infill development in the country.

Between 2005 and 2009, 58% of housing development in the San Francisco-Oakland-Fremont region was infill.  During that same time, 84% of housing development in the San Jose-Sunnyvale-Santa Clara region was infill.  This compares to 33% for all California metropolitan regions, and a dismal 21% for the largest 209 metropolitan regions in the country.  While we are doing are part in the Bay Area, unfortunately the report concluded that more metropolitan regions are growing outward rather than inward:  only four metropolitan regions had a percentage of infill development of more than 50% of all new housing development (San Francisco, San Jose, Los Angeles, and New York City).  One encouraging finding is that 70% of the largest 51 metropolitan areas in the country saw their share of infill development grow between 2000 and 2009.  You can find the EPA report at

…Well, Most of Us Get It…

Coincidentally, our friends Jennifer Hernandez and Daniel Golub over at Holland & Knight have just published a study they conducted of CEQA court cases since 1997, and have concluded that close to 60% of them involve – wait for it – infill development.  The analysis also concluded that 70% of plaintiffs in these cases are local organizations, and the breakdown of challenges to public and private projects is roughly 33% and 66%, respectively.  You can find Holland & Knight’s report at

…So CEQA Reform, Right?

What’s a region to do when it is trying to grow in a smart, responsible way, but existing laws provide tools that undermine these efforts?  Change those laws.  And it’s a convenient time to be considering these changes, what with the new Democratic supermajority in the State Legislature and Jerry Brown in the governor’s office.  Reports are, such efforts are already underway.

Progressive blogger Robert Cruickshank – a California progressive, rather than San Francisco progressive – reminds us in a recent post:  “Rather than promote environmentally friendly planning, CEQA’s primary use is for NIMBYs who wish to prevent sustainable change. At times it does serve to stop projects that are truly bad for the environment, but those are rare cases, and too many good projects are delayed or made more expensive by the flawed process.”  And the news out of Sacramento is promising.

According to the San Diego Union-Tribune, State Senator Michael Rubio of Bakersfield is currently developing a reform measure that would amend CEQA in a number of ways, including protecting projects from a court challenge if it complies with an approved city or county general plan, if those plans have an approved environmental impact report (EIR) and the project is consistent with the Sustainable Communities Strategy launched by Senate Bill 375.  That law established a path to lower greenhouse gas emissions linked to global warming through “smart growth” building policies that also encourage more alternative transit, from buses to bicycle paths.  (Key environmental law targeted for overhaul, San Diego Union-Tribune, December 23, 2012.)

The brilliance of this reform would be to use SB 375 – which requires regional transportation authorities to develop sustainable community plans with the main purpose of improving the environment – as an umbrella that would protect individual projects from CEQA challenges.  This is a substantially more efficient way to conduct environmental review.  Instead of leaving every new project – which cumulatively have a big effect on how well regions are improving the environment – to do its own analysis and fend for itself, we would, as a region, develop the environmental standards, likely have it out in court on a macro-level, and then projects would get the green light if they are consistent with region-wide plan.  

These are encouraging developments, and considering the current makeup of the legislature, the reform effort may actually have a chance of passing in this legislative session.  We will be following this issue closely over the next two years.  

Chiu Re-Elected Board President; Land Use Committee Assigned

Last week, Supervisor David Chiu was unanimously re-elected by his Board colleagues for an historic third term as President of the Board of Supervisors.  One of the first items on his to-do list: committee assignments.  Chiu assigned Supervisors to each committee earlier this week.  Supervisor Scott Wiener was named as chair of the Land Use Committee, and Supervisors Jane Kim and David Chiu will round out the three-person committee.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben & Junius, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.