Hanson Bridgett is representing the California Chamber of Commerce with regard to the proposed Affordable California Act initiative measure, Proposition 45 (Prop. 45). Our firm has many decades of experience in representing local governments on land use matters and a variety of public agencies undertaking significant infrastructure projects, including defending such projects against challenges under the California Environmental Quality Act (CEQA). I have personally advised public agencies for more than 30 years on infrastructure and development projects.

I have reviewed Prop. 45 with particular attention to its impact on local land use authority and municipal litigation exposure under CEQA. Based on my review, Prop. 45 would not limit an agency’s discretion to approve, deny, or condition a project. While the measure makes changes to the manner in which local governments process what it defines as “essential projects,” it provides valuable public benefits in clarifying the environmental review process and in limiting CEQA litigation.

Some of these benefits will be financial and significant. While agencies recover most costs for private development from the applicants — which won’t change under Prop. 45 — agencies do not have this option with public projects, including programmatic land use plans, public infrastructure projects, and publicly subsidized development such as affordable housing.

Administrative and judicial delays can consume years of staff time, require extensive consultant and outside counsel support, delay critical public infrastructure, and expose taxpayers to escalating costs. With private projects, costs can be recovered from applicants, but time cannot. With streamlined approval and less litigation risk, the time agency staff expends on continuing hearings and preparing administrative records can be better spent on programs that improve the community.

California’s nonpartisan Legislative Analyst’s Office (LAO) echoed these points, concluding that Prop. 45 “could reduce the ongoing number of CEQA lawsuits” and that local governments could realize savings through smaller administrative records, reduced litigation demands, and limitations on courts’ ability to rescind a project’s approval. The LAO further noted that faster environmental reviews could help state and local governments avoid inflationary cost increases on public infrastructure projects.

With Prop. 45, cities and counties gain tools to deliver essential public infrastructure more efficiently, improve predictability, and reduce taxpayer costs associated with prolonged project delivery. With private projects, local governments will retain full discretion to approve, disapprove, and condition projects while having better certainty their decisions will not be overturned in court, and without having to overwhelm staff with tasks related to challenges, like the preparation of administrative records.

Local Control Is Preserved

Prop. 45 does not transfer land use authority away from cities or counties. It is a purely procedural streamlining measure that does not require any city to approve a project, create any new right to challenge a project denial, or exempt projects from CEQA review. Local governments retain full discretion to determine the appropriate level of CEQA review, approve, condition, or deny projects, apply zoning and general plan policies, require mitigation measures and technical studies, and impose permit conditions necessary to address local impacts. Local governments also retain authority to adopt new standards and requirements for future projects.

Prop. 45 requires projects to be evaluated using the standards local governments themselves establish. Local governments may rely on any applicable statute, regulation, ordinance, policy, or standard in effect when the application is submitted including standards governing density, height, setbacks, design, noise, traffic, open space, and other local development criteria. Prop. 45 does not limit the substantive standards a city may apply; it simply requires agencies to apply the laws that are in place when an application is submitted. Local governments may also apply subsequently adopted requirements necessary to address a life-safety impact. In short, local governments continue to decide what gets built and under what conditions.

Prop. 45 also preserves local cost recovery. Local governments may continue charging applicants for staff time, consultant expenses, and other project review costs, just as they do today.

Many projects eligible for streamlining — including housing, transportation improvements, fire stations, water infrastructure, schools, healthcare facilities, and broadband projects — are projects local governments frequently sponsor and deliver themselves. When acting as both lead agency and project applicant, local governments retain flexibility to extend review timelines while benefiting from the measure’s litigation protections. A city or county also will have more certainty a responsible agency (e.g., LAFCO, utility provider, resource agency), considering and making determinations about a project that local government wants, will act quickly.

Prop. 45 Strengthens Legal Protections for Local Governments

Under current law, a local government’s decision to approve a project may be challenged by third-parties, many of whom use litigation as a delay tactic to make projects more expensive and less likely to be built. CEQA lawsuits often take years to resolve, imposing significant costs on local governments through prolonged staff commitments, consultant expenses, outside counsel fees, and delayed delivery of public infrastructure. In some cases, the cost and uncertainty of litigation can jeopardize important public projects regardless of the merits of the claims. Prop. 45 reduces the time, cost, and uncertainty associated with CEQA litigation through several targeted reforms:

• Common-sense limits on late CEQA comments. Public comment participation is a legal prerequisite to any CEQA lawsuit and local governments must respond to each comment submitted. Some project opponents exploit this requirement by submitting lengthy comments on the eve of a project’s public hearing. Prop. 45 establishes firm public comment periods of 20 days for NDs/MNDs and 45 days for draft EIRs. These periods may not be extended (except by a court), and late comments are excluded from the record except where they could not reasonably have been raised earlier due to project changes or new information. This preserves meaningful public participation while saving agency staff late nights responding to eleventh-hour comments, as well as the time and inconvenience of holding multiple, continued hearings and preparing staff reports and other materials for these purposes. Prop. 45 thereby reduces abuse of the comment process.
• 30-day statute of limitations. CEQA challenges must be filed within 30 days of the Notice of Determination or Notice of Exemption, allowing local governments to achieve legal certainty sooner.
• 270-day judicial resolution. CEQA actions, including appeals, generally must be resolved within 270 calendar days. Replacing multi-year litigation with a defined judicial timeline has the potential to save local governments years of delay and substantial legal expense.
• Substantial evidence standard. Courts must uphold local decisions supported by substantial evidence, reinforcing deference to local government decisions and making it less likely that locally approved projects will be overturned based on competing interpretations of the record.
• Targeted remedies. If a court identifies a deficiency, the remedy is limited to correcting the specific error rather than vacating the entire project approval. This protection will spare local governments from repeating years of environmental review and incurring substantial additional costs to restart project reviews.

Taken together, these provisions provide local governments with meaningful legal protections designed to narrow disputes, expedite their resolution, reduce administrative burdens, and protect taxpayers from the significant costs associated with prolonged CEQA litigation. While it may require some additional effort from cities and counties at the beginning, the benefits will be considerable over time, both to local governments and communities as a whole.

Conclusion

Prop. 45 preserves local control while providing local governments with meaningful legal protections designed to reduce litigation-related delays, improve predictability, and protect taxpayers from the substantial costs associated with prolonged CEQA disputes. While it does impose changes in how local governments process a variety of project approvals, it will make the consideration of many projects more efficient and less costly, adding to the quality of life for the citizens of our state.

Very truly yours,

Michael N. Conneran