The Morning Report
San Diego news and info
you need to take on the day.
A bunch of small farming-related businesses in Lakeside have a powerful ally in their attempts to keep a much larger competitor from opening next door: the California Environmental Quality Act.
The legal case has small businesses fighting not only their would-be competitor, but also the county for using an uncommon method to get the project approved quickly.
CEQA is often blamed for making life difficult for businesses and developers in San Diego. It requires long, expensive environmental reviews that can result in beneficial changes being made to projects. But it’s also ripe for abuse from groups who have non-environmental interests in slowing, stopping and changing proposed projects.
Now, it’s become a thorn in the side of Hix Snedeker, a commercial development company based in Alabama that’s trying to build a tractor supply store in Lakeside. The Tractor Supply Co. megastore, with locations around the country, would sell everything from chickens, tools and truck-, towing- and agricultural-related products to small gifts and clothing.
The proposed new building fits within local development restrictions, and has the support of the local planning group and the countywide Planning Commission.
But because it would include an outdoor display and storage unit for drive-through purchases of larger items, it required a special permit that meant the elected County Board of Supervisors needed to sign off.
To speed things up, the county said the developers didn’t need to do a new environmental review. Instead, it said they could glom onto a review done for an old project pondered for that location, approved in 2008 but never built.
The county determined that project – a warehouse, office building, restaurant and parking lot – wouldn’t have a detrimental effect on the environment. After that project fell apart, Hix Snedeker bought the property just more than a year ago.
Hix Snedeker’s new project didn’t seem to have significant new environmental impacts, the county decided, so it used a wrinkle within CEQA that says minor changes to a project don’t require a new environmental review.
But it’s not usually used for an entirely new project by an entirely different company.
“CEQA does not allow this,” said Rory Wicks, a lawyer for the coalition of neighborhood businesses, Save Our Stores, during a Board of Supervisor’s meeting on the issue. “The courts do not allow this.”
Save Our Stores demanded a full environmental review, and submitted its own traffic study challenging the company’s that said its impacts wouldn’t exceed the old project.
Hix Snedeker’s lawyer, Cynthia Eldred, said the challenge circumvents the intent of CEQA: protecting the environment.
“The focus under CEQA, as we all know, is on environmental impacts,” Eldred said during the hearing. “It’s not on the name of the project. It’s not on the name of the applicant. The point is: Has the public been given the chance and has the decision-maker been given the chance to fully review and analyze the potential impacts of the project?”
Most of the nearby stores are “mom and pop” outfits, selling agricultural products that would directly compete with the superstore.
“I know what healthy competition can do,” said Rita Gallant, one of the store owners, during the hearing. “And I understand that down the road I’m going to have some healthy competition, just about 1,000 feet away from my store. I want to welcome Tractor Supply when they open that store. I do. I’m standing here before you today because I would never be able to go and open a building like that down the street. I would be required to do all the things that I’m asking this company does today because I don’t have that kind of money. I don’t have the legal team that Tractor Supply has.”
The three Board of Supervisors present at the meeting unanimously voted to approve the project at the end of September. Save Our Stores filed a lawsuit in October alleging that the county didn’t have the right to use an addendum in this scenario.
Supervisor Bill Horn said he didn’t think 2008 was all that long ago. His shoes, he said, were from 1979.
This isn’t the first time an agency has used the CEQA provision, but the courts will still have a decision to make.
In 2006, a court ruled on a similar issue in Placerville, saying the city did not have the right to an old project’s environmental review for a new project. In that case, a study for a 1997 project that was never built was used to give the greenlight for a project in 2004.
Since then, there have been four other cases where cities did something similar and courts said it was OK. A similar case is pending before the state Supreme Court.
During the Board of Supervisors meeting, Supervisor Dianne Jacob – who represents Lakeside – asked the county’s legal counsel whether they stood behind the staff’s decision.
One of the county’s attorneys, William Witt, said he believed recent court decisions backed the county’s move.
Wicks, the Save Our Stores lawyer, disagrees. In an interview, he said the four cases upholding the usage involved changes to an existing project. The only two cases that dealt with using an existing environmental law on a completely new project don’t favor the county, he said.
Both the county and Eldred declined to comment, since the case is still open.
Hix Snedeker has already begun preliminary work on the project, after a judge denied a request by Save Our Stores to halt the work. The case won’t be heard until December 2016.
“At the very least, my lawsuit will have a major effect on the salability of the property and the leaseability,” said Wicks. “Who is going to buy the property when there is litigation pending? We’re trying to settle it with them, but that’s something I can’t discuss.”