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Home builders and industrial developers who have been saying for years that California’s environmental laws are too extreme have a chance to change that.
Proposition 45 – official name the Building and Affordable Care Act – would make changes to the California Environmental Quality Act, a state law that requires public agencies to disclose any environmental damage that could be caused by residential or industrial development.
Signed by then-Gov. Ronald Reagan in 1970, the law requires public agencies to consider the environmental consequences of their discretionary actions, according the Governor’s Office of Land Use and Climate Innovation.
The goal of “CEQA” was to prevent environmental damage before it happened, and no doubt it has succeeded in many cases.
But it has also been a thorn in the side of homebuilders, industrial developers, and anyone else whose project might run afoul of the California’s environmental regulations. They maintain that a project’s opponents – usually environmental groups or unions – use CEQA to delay a project by filing lawsuits that drive up the cost of a project.
Just the threat of a CEQA-related lawsuit can stop a project before it gets started.
“There are all kinds delay tactics that can stall a project for years,” said Dave Bartlett, vice president with Brookfield Residential Properties in Costa Mesa, “If you get stuck going through a process, that can easily turn a $600,000 home into a $750,000 home, with no problem.”
Brookfield Residential does about one-third of its business in Riverside and San Bernardino counties, according to Bartlett.
Prop. 45 – which is supported by multiple organizations, including the California Chamber of Commerce, the California Council for Affordable Housing, and the California Building Industry Association – seeks to change that.
It requires all environmental reviews to be completed in one year, and that CEQA-related lawsuits be settled within 270 days, with only one 90-day extension. It restricts the type of evidence that may be used in court in an environmental dispute, and it limits the number of changes that can be made to a project for environmental reasons.
Prop. 45, which will appear on the Nov. 3 ballot, also shifts the timeline for environmental reviews from calendar days to business days and, if an agency misses a deadline, the applicant-developer may grant more time to the agency.
Supporters believe Prop, 45 will cut the amount of bureaucracy developers have to deal with, reduce the cost of housing and infrastructure, and speed up permitting. They also maintain it will preserve the state’s basic environmental standards.
While it doesn’t solve every problem, Prop. 45 strikes a proper balance between the needs of developers and the rights of citizens trying to safeguard their homes and neighborhoods, according to Bartlett.
“It’s a procedural reform of current state law, and I think it does a good job,” Bartlett said. “It’s not deregulation, it doesn’t eliminate CEQA, and it doesn’t weaken any environmental laws. It restructures timelines, and puts into place potential court reviews.”
The last two points are crucial, because they will make it easier for developers to deal with lawsuits, making it more difficult to stall a project.
“Think of Prop. 45 as a shot clock in basketball,” Bartlett said. “A city, a local agency or the state all have 365 days to complete their environmental reports. If it passes, Prop. 45 won’t guarantee a yes vote, but it will guarantee that the government agencies must get their answers out relatively quickly.”
But critics of Prop. 45 see it differently.
They believe the proposed measure would remove the tools needed to protect communities, create more lawsuits, and all but eliminate the ability to enforce environmental laws.
The Center for Action and Environmental Justice in Jurupa Valley, which has a history of slowing down and occasionally stopping large Industrial projects, has called Prop. 45 a harmful proposal engineered by chambers of commerce and publicly owned utilities that answer to their stockholders.
Prop. 45 shifts power from the public agencies responsible for overseeing large development to the industrial developers backing them, said Mabel Tsang, political director for the California Environmental Justice Alliance, a statewide organization.
“Passing Prop. 45 would be disastrous for communities that already live near industrial pollution, where business interests continue to build new facilities and put our health and safety at risk,” Tsang wrote in CalMatters, a nonpartisan, nonprofit online publication that reports on government and politics in California. “Prop. 45 weakens environmental reviews, reduces community input on polluting projects, and allows wealthy corporations to shift the costs onto taxpayers and families.”
Prop. 45 won’t solve every conflict between developers and the state’s environmental lobby, but it will make it easier to get larger projects built in a reasonable amount of time, said John Ohanian, general manager with DMB Development in Scottsdale, Ariz.
“Prop. 45 will give us some clarity on timelines, which is important when you’re making the kind of capital investment we have to make,” said Ohanian, who has developed more than 4,000 residential units and 15 master planned communities in his career. “But we should add to it, and we should look at the litigation process. Just about every development in California has a CEQA violation, and that leads to lawsuits.
“It’s a free shot at delaying a project, and that’s a big problem.”
In the mid-1990s, opponents of large industrial and residential development began using CEQA to slow down or stop projects.
“Up until then, the first 20 years it was law, I would say CEQA was used properly,” Ohanian said. “But then the advocacy groups figured out how they could use it as a weapon, and they’ve used it that way consistently ever since.”
