Opposition to Development: Litigation & Administrative Appeals

Background

There is an active debate about the role of CEQA litigation as a tool to block infill development. Litigation can add years to overall timeframes if projects are litigated. There is too little research, however, on the topic of whether litigation significantly curtails housing development. The research that does exist has significant limitations.

Findings

Litigation of project approvals is relatively infrequent for new multi-family housing near transit—less than 3% of ~2,000 development approvals we studied faced community opposition through litigation. We also found no noticeable difference between litigation rates for housing in infill or exurban contexts. Litigation rates overall were higher in Southern California cities than in the rest of the cities we studied throughout the state.

In the few instances when litigation occurs, California Environmental Quality Act (CEQA) claims are common—but the majority of lawsuits (almost 3 out of 4) could proceed even if the plaintiff or petitioner could not bring a claim under CEQA. While only 30.19% of the projects in all 20 jurisdictions that faced litigation were challenged under CEQA alone, another 66% were challenged using claims under CEQA as well as under other laws—usually claims that the project violated the local government’s general land-use plan or provisions of the local government’s zoning code.

Of all the projects challenged by lawsuits, petitioners or plaintiffs rarely win on the merits. Petitioners were more likely to reach a settlement with the defendant. Of all lawsuits, more than half were settled. For projects that were litigated, the research found extensive delays, particularly those where there was an appeal of the trial court decision.

Local administrative appeals of approvals were more frequent than lawsuits.

Policy Implications

Local governments could reduce litigation risks by revising and updating local planning codes that are often the basis of legal challenges to development projects. The state could build on current efforts to speed up the resolution of CEQA lawsuits challenging residential development projects.