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Friday, May 4, 2007 | Local environmentalists have made strides in several recent lawsuits against the city of San Diego over its supervision of local development, with the city’s top two elected officials consistently at odds over a key environmental safeguard.
Recent legal setbacks have drawn scrutiny to an issue that has already proved divisive at City Hall. In the last two months, the city has lost or settled four cases, forcing it to more thoroughly study the impacts of growth and development on surrounding communities.
The lawsuits contend the city did not properly measure the impacts of certain development plans: a blueprint to triple downtown’s residential population over the next two decades; the planned Regents Road Bridge in University City; a Jewish student center in La Jolla; and thousands of condo conversions that have been proposed citywide.
At the heart of the lawsuits is the city’s alleged inability to accurately and thoroughly gauge the effect those projects would have on the nearby environment, such as water resources, animal life, air quality, traffic or the displacement of residents.
“It’s a continuation of ‘let’s get away with the bare minimum, and if the public doesn’t like it, just sue us,’” Councilwoman Donna Frye said.
In each of the four instances, the lawsuits prompted concessions by the city, ranging from paying the environmentalists’ attorney fees to taking on further work that will delay the building plans at the center of the complaints.
Beyond their cost to the city, the legal setbacks are demonstrative of the very extraordinary dynamics that sprout from these land-use decisions. The city’s process for studying the impacts development projects have on traffic, air quality and other facets of the environment has driven an ideological wedge between Mayor Jerry Sanders and City Attorney Mike Aguirre.
“It’s a very awkward situation as sometimes the city attorney’s advice comes very late in the process or it comes as political advice, not legal,” Sanders said.
The reviews are initiated by the development staff of Sanders, an ally of local real estate developers, and are regularly approved by the City Council. But the city’s analyses are also subject to the scrutiny by Aguirre, who often sides with environmentalists.
Also, the environmental reviews seem to have blurred the line between policy and law, as both Sanders’ staff and Aguirre have tried to make the case for more control over the reviews.
With both of those conflicts at work, the city’s efforts to comply with the California Environmental Quality Act, or CEQA, have produced some of the more contentious instances of infighting within the city camp. As a result, the city has sent mixed messages about its interpretation of the law, as well as who’s to fault over its related blunders.
The recent legal developments could foreshadow the impending challenge to the environmental study on the controversial Navy Broadway Complex, which was crafted in 1990. The setbacks may also prompt the city to step up its forthcoming environmental report on the city’s general plan update, which will outline San Diego’s growth citywide.
Aguirre said the city’s inability to wholly defend the lawsuits indicates the weakness of its environmental policies.
“There’s been a real policy in the past of looking at compliance with the law as a policy choice, and that has been so thoroughly discredited now,” said Aguirre, referring to the recent courtroom outcomes.
A Thin Line Between Policy and Law
Every development project reviewed by the city undergoes a CEQA review so the public and policy makers know its impacts. The Mayor’s Office supervises the staff that initially decides the scope and scale of an environmental review.
In his role as the city’s lawyer, Aguirre is tasked with advising the city on CEQA issues when they reach the courtroom. But he has also made efforts to influence the city to back off the courses of action suggested by Sanders’ development staff by publicly issuing legal opinions that counter the mayor.
In November 2005, Aguirre issued an opinion backing up the claims by one environmental group that the city needed to conduct a comprehensive study of the impacts condo conversions had on traffic, parking and the displacement of former renters on the San Diego landscape. The opinion marked a drastic change from the city’s policy of not spending time or money on a study.
Jim Waring, the top development aide for Sanders, partially attributed the settlement of the condo-conversion case to Aguirre’s proclamation, claiming it fueled Citizens for Responsible Equitable Environmental Development’s challenge.
“The plaintiffs in that case cited the city attorney letter in their complaint,” Waring said. “It was highly unusual, and it clearly put the city in a difficult position in defending the case.”
The city concluded its fight against the condo conversion challenge March 27, when the City Council preliminarily agreed to settle. In the settlement, which has not gained final approval, the city agreed to limit the conversion of housing units to 1,000 per year, issue an annual report on the developments, and pay C.R.E.E.D. $75,000.
Waring criticized Aguirre’s handling of the environmental lawsuits, saying his legal advice “reflects his political bent.”
“The city attorney doesn’t like being an attorney. He wants to make policy,” he added.
On the contrary, environmental advocates are skeptical of the Sanders administration, saying they believe his political alliance with the building industry now plays a larger role under the new strong-mayor form of government. All city departments, including the Development Services Department, now report to the mayor, hypothetically putting the influence over the CEQA decisions at his disposal.
Before, the mayor represented just one of the nine City Council votes.
“It seems to me that decisions are being made upon politics and the environmental review is being skewed to align with a predetermined outcome,” said Coast Law Group attorney Marco Gonzalez, who represented the plaintiffs in the cases involving the downtown, Regents Road Bridge and La Jolla student center.
Gonzalez said the city is missing warning signs along the way, an indication that they could be bowing to political influence. He pointed to the Regents Road Bridge lawsuit, which challenged the environmental study of spanning Rose Canyon with a street that would connect the two ends of University City. Gonzalez said red flags were raised by Aguirre, members of the public, planning commissioners and the local planning group.
“And for whatever reason, both the mayor and the council approved this project,” he said.
Frye, who has regularly voted against the mayor’s determinations, said the she didn’t think the city’s environmental review process is any worse than before strong-mayor. She attributed the recent success of CEQA challenges to a more active opposition.
“I think where the changes are coming is that the communities are becoming more organized and are better able to raise money to challenge projects,” Frye said.
A Challenging Law
Waring defended his department’s decisions. He said the city sometimes settled not out of fear of losing in court, but because it was less expensive to simply make the claim go away.
He argued the condo-conversion settlement was made more out of an interest to end C.R.E.E.D.’s appeals than to concede that the city would lose. Waring said the condo-conversion appeals consumed his staff, and that settling the case was the only way to alleviate the strain.
“There were strategic reasons for why we settled,” Waring said.
But the city hasn’t been able to defend other recent decisions made by the mayor’s staff, including one that was decided in trial.
In late March, two citizen groups challenging the sale of city land in La Jolla to Hillel, a Jewish student organization, triumphed in Superior Court. The judge in the case flatly rejected the City Council’s decision to forego a more thorough environmental impact report, a recommendation council members received from the Development Services Department.
Waring said he was surprised by the outcome of the Hillel decision, and contended that there was a level of uncertainty to CEQA that can make challenges such as that one unpredictable.
“It’s a complicated body of law, subject to a variety of interpretations,” he said.
“While every project is different with regard to factual issues, the law is pretty straightforward,” said Rick Frank, executive director of the California Center for Environmental Law and Policy.