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One of the country’s largest mall developers, Caruso Affiliated, is pushing through a plan for a shopping center near coastal wetlands in Carlsbad using a novel method that could allow it to bypass many of the state’s environmental protection rules.

A California Supreme Court decision last August ruled that if a project gets enough signatures to put it on the ballot, a city council can approve it without going to voters and without a California Environmental Quality Act review, the state’s landmark environmental law that sets mandates for big projects to disclose their environmental impacts and reduce as many of them as possible. Two proposed football stadiums in Inglewood and Carson used voter initiatives to leapfrog CEQA, and Caruso is trying to make it happen for the first time locally.

Caruso is a Los Angeles-based developer, and to call what it typically creates a shopping mall isn’t quite right. Its projects – like The Grove in Los Angeles and Americana in nearby Glendale – are massive and ornate, kind of like if your hometown mall and Disneyland had a love child.

Image via Shutterstock
Image via Shutterstock

The company’s proposed plan in Carlsbad would take 200 acres between I-5 and the south shore of Agua Hedionda Lagoon, turn 15 percent of it into a shopping center and leave the rest for agriculture and trails.

Caruso only needed to collect 15 percent of registered Carlsbad voters’ signatures to qualify the measure for a vote – it submitted twice the number of signatures they needed in early July – and now it only needs to lobby the City Council for the three votes necessary to pass the measure in the next Council meeting on Aug. 25.

The company decided to go this route last September, shortly after the Supreme Court ruling and three years after it entered into an agreement with SDG&E for the property.

“We had no idea this would be our path,” said Bryce Ross, Caruso’s vice president of acquisitions and development.

The company had two reasons for using the initiative, Ross said.

The first was to change development rules on the site, which had been governed by an earlier initiative.

The second reason is to avoid lawsuits from competitors, as the law is often used as a weapon to shape or delay projects. Ross called those suits “an abuse of CEQA.”

This is a sore spot for Caruso, which pulled out of a Santa Anita project in 2011 in part due to numerous CEQA challenges backed by the Westfield Corporation. Westfield also owns a mall nearby in Carlsbad.

The effort provides more benefits for Caruso’s project than it would otherwise have gotten under the old system.

The 397-page initiative proposal would add strict rules to the property’s land-use regulations. That means as Caruso moves forward with more detailed plans, the city would only be able to review them against this document that Caruso wrote itself. And the city has to move more quickly to approve the project than it would have otherwise – if the city doesn’t review Caruso’s plans within 120 days, they will be automatically approved.

Most importantly, even if the City Council approves the measure, it can’t make changes to anything laid out in the document for 15 years. Changes and repeals can only be made by voters. Ross said they wrote this in to ensure they would have time to finish the entire project.

While some of the project’s opponents take issue with the plan, most criticize Caruso’s initiative approach.

“They are trying to do as many things as possible to get their plan set in stone, to give themselves power,” said Marco Gonzalez, a CEQA lawyer and executive director of Coastal and Environmental Rights Foundation.

Caruso’s methodology has led to disputes over the project’s environmental impact. Part of the CEQA environmental review is that everyone uses an agreed-on methodology and standards determine how much environmental damage a project will cause. The company voluntarily submitted a 4,000-page environmental report to the city in May, which it wasn’t required to do.

North County Advocates, a nonprofit opposed to the project, took issue with how Caruso evaluated its environmental impact and paid for consultants to analyze the water and air reports the developer provided. Its air report found that quantities of one airborne toxin would be eight times what Caruso’s report found.

In May, before all the signatures were collected, the Carlsbad City Council also directed staff to conduct an independent analysis of the plan and its environmental and economic effects.

“I have yet to find one person who read [the plan] before signing the petition,” said Diane Nygaard of local environmental group Preserve Calavera. “They were told this is to save the strawberry fields. It doesn’t say that ‘Oh, we have a shopping center to go with it.’”

The plan’s website features the image of a girl in a white dress walking through open fields. The drawings of the plan on the site don’t show a mall. Fliers mailed to households tell voters their signatures will put the plan “on the ballot,” when it may not make it there at all.

“They are walking the fine line between total destruction of the environment and just enough environment to say they are doing something good for the environment,” Gonzalez said. “The question is whether people are going to believe it.”

Though opponents complain about how the signatures were collected, not enough people withdrew their signatures by the time the petition was submitted to make a dent in the number Caruso collected.

Ross said Caruso has open meetings several times a week where community members can come ask questions about the project, the initiative document and the process. Anyone interested in learning the details won’t be misled by political campaigning, Ross said.

The proposed initiative has led DeAnn Weimer, a local community and environmental nonprofit member, to start her own lobbying group.

“You have to respond to the way the situation has evolved on the ground,” said Weimer, founder of Citizens of North County, which was formed only weeks ago. “The process has been so politicized through the Caruso initiative, we had to create a new organization to address what is going on.”

Once the county registrar verifies all the signatures, the staff report will be presented to the City Council. Council members will then decide to either approve the plan or send it to voters. Carlsbad’s City Council is made up of three Council members, the mayor and the mayor pro tem – all of whom have refrained from publicly assuring their vote for or against the project.

The success of this fast-track strategy depends on the ability to get three votes. Sending the project out to a public vote would require extensive campaigning by Caruso, and voters can be unpredictable. Courts have ruled since the early 2000s that voter initiatives don’t need to go through the CEQA process, but developers didn’t latch on to the strategy until they realized that city councils could approve the initiatives outright.

If approved this month by the City Council or in a special election this fall, the project will still face one discretionary review from the Coastal Commission. The commission can require that changes be made to the plan if there are Coastal Act issues, like habitat destruction, before Caruso can begin construction – regardless of the initiative process.

Maya Srikrishnan

Maya was Voice of San Diego’s Associate Editor of Civic Education. She reported on marginalized communities in San Diego and oversees Voice’s explanatory...

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