A 12-year battle to build a recycling plant in San Diego County may have single-handedly paved the way for all kinds of new development, including desperately needed housing.
Developers have been complaining for years that environmental restrictions stopped them from building in rural San Diego. That’s all changed since the county lost a lawsuit earlier this year from a recycling plant builder.
Then, in July, county staff announced projects that were within the guidelines of the county’s general plan would no longer be subject to more stringent, climate-conscious rules aimed at limiting long commutes measured in vehicle miles traveled, or VMT. In short, the more driving miles a development provoked, the higher the potential fee. The estimated fees got so high, developers said it made projects infeasible. Then county staff suddenly reversed course because of one seemingly unrelated lawsuit which could exempt developers from complying with all kinds of extra environmental concerns about their project.
How big of a door this exemption creates for future development is still an open question. County data shows at least 119 housing projects – representing 1,273 new housing units – currently being processed fit the county’s general plan and therefore could qualify for the VMT-skipping, fast-tracking effect of this new exemption. Only two project developers requested the exemption so far, one 37-unit project in Vista and another 396-unit project in Bonsall.
But where did this seemingly magical new exemption that promises a way around project-crushing environmental guidelines and public input come from?
It began when a real estate investment corporation called Hilltop Group Inc. wanted to build a construction waste recycling plant in the wild hills north of Escondido. It was 2012, one year after the county had just enshrined what could or couldn’t be built on its 2.3 million acres of unincorporated land in a general plan.
People living in communities near the site freaked. They didn’t want to see, smell or hear a recycling plant anywhere near their neighborhoods. Hilltop Group said, hang on, we’re trying to build something industrial on land that’s zoned for industrial uses – that’s something the county’s general plan said it could do.
But county staff looked at those plans, weighing them against the negative public feedback, and told Hilltop Group to study potential impacts to the environment their project anyway – a requirement under California’s Environmental Quality Act to CEQA. Fine, Hilltop Group said. Come 2015, Hilltop Group returned with a draft environmental impact report and a bunch of studies, concluding ultimately their project didn’t significantly impact the environment, court records show.
Enter David Hubbard, an attorney with Gatzke Dillon & Ballance, who represented Hilltop Group when it eventually filed a lawsuit against the county and took this case to court. Hubbard went, wait a minute, there’s this rule in CEQA that says if a development fits within the general plan of the city or county, we don’t need to go back and do a bunch of environmental studies all over again.
That rule is called exemption 15183. It’s like a reward within state code for developers that propose projects following these big general plans cities and counties write. Those plans take years to make and have their own environmental studies – the incentive being that if developers just create projects that follow that plan, developers won’t have to spend their own money and time studying environmental impacts twice or go through public comment periods, thus projects get built faster.
“If the project is exempt, the fact that there are folks vehemently oppose it doesn’t matter,” Hubbard told Voice of San Diego.
The county’s zoning administrator and seven-member planning commission eventually agreed to Hilltop Group’s exemption argument, until the project made its way to the Board of Supervisors. Now it’s 2020 and various homeowners associations and the city of Escondido turn out to publicly damn the project they deemed to be a plague on their community’s character and aesthetics. It swayed the board, which reversed course and sent Hilltop Group back to do more environmental studies.
That’s when Hilltop Group sued. But the Superior Court ruled the project needed more studies, too. So, Hilltop Group appealed.
In its decision, the Fourth District Court of Appeal said the board’s denial wasn’t following the rules of CEQA which grant these exemptions for projects that don’t add any new environmental impacts outside of what the county already studied in its general plan. Sending Hilltop Group back to the study room was an abuse of its discretion, the court said.
Hubbard said the purpose of this rule is to strike a balance so public officials that spend all this time coming up with comprehensive community plans can standby those plans in the face of future backlash. It’s a way of saying, sorry angry landowner, the time to have complained about the hills north of Escondido being zoned for industrial use – aka a recycling plant – was when we were putting together our general plan back in 2011. Not when someone wants to build what we agreed would go there.
When county staffers issued their notice that it would exempt projects compliant with the general plan, consistent with the court’s ruling, developers considered it a win. It provided a workaround to the seemingly insurmountable hurdle of VMT because it’s pretty much impossible to build anything in the unincorporated county that doesn’t create driving trips for people getting between their more rural homestead to urban work centers. Builders have been looking for ways to develop without incurring costs associated with mitigating or getting rid of the greenhouse gasses these projects create by making new reasons for people to drive. While there’s no official price on those emissions, the county is currently working on setting one through a so-called VMT fee mitigation program.
In the words of developer Jim Whalen, “towns will die with these VMT rules.” The exemption, in contrast, would be a lifesaver for some projects.
“It’s not a get out of jail free card,” said Whalen, a longtime developer in San Diego, of the county’s announcement. “But you won’t have to pay fees if you qualify for an exemption.”
Peter Andersen, chair of Sierra Club San Diego, a group that’s sued the county over its climate action plans and developers and VMT-generating projects, said exemption or not, the choice to limit greenhouse gas emissions is a political one.
“The real question is, is this a pro-environment and anti-climate change Board of Supervisors or not,” he said, in other words, the elected supervisors can still moxie-up and kill projects harmful to the environment.
Just a note. Complaint should be compliant.
Nobody cares. Deport all migrants.