When Will the Madness End?

Timothy L. Coyle
Consultant specializing in housing issues

NOTE: Recently in this space, I wrote about the welcome news that the San Diego Union-Tribune newspaper editorialized in favor of a North County housing development.

Although the project was later approved by the San Diego County Board of Supervisors (“the Board”), a lawsuit using the California Environmental Quality Act (CEQA) was subsequently filed. The following is a story about how CEQA was used in the same county to block another housing project.

CEQA strikes again! This time, sponsors of the CEQA litigation plan to take down a model urban development – 242 residential units surrounded by office buildings and retail space in Rancho Peñasquitos in San Diego County.

But, the issue of the lawsuit provocateurs isn’t about the affect the development will have on the environment. Not in the slightest. Though environmental impacts are claimed, the suit was really filed over how much the developer was planning to pay the hired help there to build the project out. It’s a labor dispute that’s brought work on the mixed-use development, Merge 56, to a grinding halt.

Indeed, the environmental-inspired litigation is shamelessly sponsored by the Local 89 of the Laborers International Union of North America, which wants the developer to enter into a labor-friendly “project labor agreement” or else. This kind of lawsuit is a common and pretentious practice of organized labor.

In fact, the lawsuit is dressed up nicely to gain a judge’s approval for standing. To wit, the recently filed complaint in San Diego County stipulates that, among other things, the development will cause cancer (among neighboring residents). Now, how likely is it that a judge is going raise doubts about a cancer claim?

Noteworthy is the fact that the project was approved by the local land-use governing body after undergoing an extensive environmental review. Due to its location – adjacent to a federal preserve – and the developer’s willingness to effectively mitigate any potential harm to the environment, Merge 56 is otherwise considered as a model development.

But, no matter. Labor union attorneys know the law and the California Environmental Quality Act (CEQA) is so far-reaching that even the most pristine project will likely entangled by the legal rules. And, if you have a mere $150 in your pocket, you can bring a CEQA lawsuit and stop development.

According to the law, only traces of a development project’s environmental impact – broadly defined – need be shown. That’s why labor lawyers can claim that the biological analysis for Merge 56 is “incomplete, inadequate and not supported by substantial evidence.” Moreover, the lawsuit says the environmental impact report (EIR) – a review required by CEQA for nearly all developments in California – fails to include a “quantified health risk assessment” of the project. The suit says:

“The EIR fails to disclose the serious cancer risks to nearby residential communities and an elementary school created by diesel engine exhaust emitted during the construction phase of the project.” 

Diesel exhaust during construction. Serious cancer risks. Rising to a level to warrant an environmental lawsuit? Really?

As previously alluded to, critics of the legal tactics used in this case are many throughout the broader development community. They assert that labor unions seeking union-friendly deals are increasingly using environmental litigation to gain leverage over resistant developers. But, at the state Capitol in Sacramento no Democrat will stand up to labor or the environmental interests who sanction this kind of conduct.

Meanwhile, the madness continues.

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