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Case Studies |

Case Studies

CEQA Misuse Case Study: Parkmerced: Green & Affordable Housing Community, San Francisco

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April 18  |  Case Studies  |   afrew

Largest Ever West Side SF Investment in Affordable Housing Halted Because of Special-Interest CEQA Lawsuit 

The Parkmerced complex, located adjacent to Lake Merced in Western San Francisco, will transform an aging housing development from a dated landscape into a vibrant neighborhood and an international model of urban sustainability. With a goal of becoming one of America’s first net-zero carbon communities, Parkmerced will be greener, safer, healthier, and will be an important contribution to San Francisco affordable housing.

Parkmerced creates 3,221 permanently rent-controlled homes, 900 below-market-rate inclusionary homes, and as a private development, costs taxpayers nothing. According to Housing Action Coalition Executive Director Tim Colen, Parkmerced “represents the largest investment EVER made in affordable housing in [San Francisco’s] west side.” The development provides all current residents rent-controlled apartments.

Parkmerced is a proving ground for the most advanced techniques in combating climate change and providing innovative transportation strategies. The development will update the ecologically unsound World War II-era complex by reducing its carbon footprint and improving quality of life for residents and neighbors. Parkmerced currently has virtually no on-site retail and poor access to public transit, forcing residents to travel by car for basic services. Parkmerced contributes to environmental sustainability by embracing smart design and planning principles and including a vibrant social heart where residents can access neighborhood services on foot. To support those who work from home, Parkmerced provides onsite business centers in many new units. Moreover, Parkmerced will improve transportation in the area by rerouting the Muni Metro M-Line light rail into the complex; providing residents with smart travel options; and reconfiguring roads to ease traffic congestion.

Despite its environmental and affordable housing benefits, Parkmerced faced a series of CEQA hurdles. Because CEQA considers any unmodified structure over 50 years old to be a historic resource, the lead agency was compelled to identify a significant impact on historic resources and adopt additional mitigation before proceeding with the renovation.

Shortly after the San Francisco Board of Supervisors approved the plan in May 2011, anti-development advocate San Francisco Tomorrow filed suit alleging CEQA deficiencies across a whole range of issues, including: (1) insufficient number of alternatives discussed for the historic resources section (even though eight were discussed), (2) unidentified greenhouse gas impacts (even though this is an infill project proposed as a net-zero carbon community), (3) constructing new buildings on the West Side of San Francisco create a “hazard” amounting to a CEQA impact by virtue of being close to the San Andreas fault, (4) hypothetical issues related to a PG&E gas pipeline nearby. (5) “unstable” project description because the project was to be developed over a period of 20 to 30 years (because the impacts 20 years in the future are different from 30 years in the future, the city was allegedly required to analyze both scenarios.)

A CEQA lawsuit based on these allegations was filed in July 2011, and was not heard for over a year, partially because the petitioner delayed in compiling the administrative record for a period of six months. The project is currently ready to go, but it is still on hold awaiting resolution of the CEQA lawsuit.

COST OF CEQA MISUSE:

  • 18 month Delay and related carrying costs due to the CEQA lawsuit so far, but the delay is ongoing.

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CEQA Misuse Case Study: Edward II Inn Affordable Housing Project, San Francisco

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April 3  |  Case Studies  |   afrew

Marina Homeowners use CEQA to Deter Housing Project for Homeless Teens

 San Francisco faces an enormous shortage of affordable housing for young people at risk of homelessness, with almost 5,700 people between 13 and 24 homeless or at risk. By 2015 San Francisco will require 400 new units of housing to accommodate young adults transitioning out of foster care. The city currently has fewer than 250 units available.

In order to meet this crisis, Community Housing Project and Larkin Street Youth Services are working with the Mayor’s Office to renovate the vacant Edward II Inn into an affordable housing project, providing 24 studio rental units of supportive housing to youth aged 18-24 at risk of homelessness, including youth aging out of foster care.

This project, at the corner of Scott and Lombard Streets in the affluent Marina neighborhood, is designed to provide a safe and supportive transition space for youth exiting foster care and the shelter system. 

The Edward II project has gathered support from a growing list of civic, labor and elected leaders. According to John Burton, former congressman and current chair of the California Democratic Party, this project would “[put] San Francisco on the map as a nationwide housing policy leader…we can once again lead with our hearts by providing a helping hand to good kids who need an opportunity to succeed.”

To be economical, the project required rezoning to a density of 24 units from the former hotel’s current 16, triggering a special use district zoning change. The city was forced to do an expensive and time-intensive CEQA review for the otherwise exempt project. Doing this Negative Declaration added more than a year to the CEQA process for this project.

Unfortunately this was not the end of the project’s CEQA troubles. Well-heeled neighborhood NIMBY groups concerned with preserving the affluent nature of the Marina have utilized the CEQA process to frustrate the project. These groups appealed the project’s CEQA review first to the planning commission, and then to the board of supervisors, adding time and money to a project. The NIMBY groups did not have a legitimate environmental ground for the review, but rather argued that the project’s CEQA review did not look at the cumulative and growth-inducing impacts of the group housing on the project site.

The delay that occurred as a result of these administrative appeals, stretching over a period of 6 months, and the related uncertainty about when the project would complete its CEQA process, caused the project to miss two funding deadlines for Low Income Housing Tax Credits, setting the project back a whole annual cycle. In order to be eligible for a Low Income Housing Tax Credit, the possibility for project appeal must have passed. The project is currently on hold, still waiting to get a Low Income Housing Tax Credit in order to proceed.

Of the project detractors, SF Planning Commissioner Ron Miguel said, “A large number [of project opponents] I can only describe as blatant, elitist NIMBYs. It only discourages me about my fellow San Franciscans.” These neighbors have appeared at planning meetings arguing that an affordable housing project in their vicinity would change the character of their residential neighborhood, negatively affecting their housing values, and lead to an increase in crime in the wealthy Marina district.

The uncertainty and added costs that occurs as a result of these sorts of appeals discourages development of affordable housing in San Francisco, and complicates efforts to fund such projects.

COST OF CEQA MISUSE:

  • Approximately $200,000 added to project costs
  • Project missed two funding deadlines, delaying funding
  • 2 years of delay

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CEQA Misuse Case Study: Hollywood Bowl Reconstruction, Hollywood

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March 27  |  Case Studies  |   afrew

Local Group Sues over Aesthetics in an Attempt to Block Reconstruction of Hollywood Bowl

Since its opening on July 11, 1922, the Hollywood Bowl has been an integral part of the Los Angeles community as a public gathering place. The LA icon hosts concerts, shows, and cultural events and is home to the Hollywood Bowl Orchestra and the Los Angeles Philharmonic.

In an effort to renew the Bowl, Los Angeles County and the Los Angeles Philharmonic Association together created a plan to demolish the 80-year old, deteriorating bowl and replace it with a bowl that was acoustically and structurally superior. In 1992, voters agreed and approved an $18 million budget to be used for the reconstruction of the Bowl and related stage improvements. Over the next eight years, plans were drafted, public outreach was conducted and a full CEQA Environmental Impact Report (EIR) was prepared, detailing a host of mitigation measures developed through the CEQA process.

In late 2000, the County Board of Supervisors certified the Final EIR and approved the Hollywood Bowl project.

In 2001, a local group, hoping to derail the reconstruction project, filed a CEQA lawsuit arguing that the Hollywood Bowl is a historic site and alternative measures should be considered, such as additions to the structure rather than a full reconstruction. The group also claimed that CEQA was violated on the basis of aesthetic impacts since part of the plans involved construction of new, taller support towers for the Bowl. While measures to mitigate the visual impact of the towers were incorporated into the plan and EIR, the opponents felt these were insufficient.

The group also contended that the demolition was partially motivated by the desire of the County to reconstruct the Bowl to accommodate rock concerts rather than its original purpose of holding classical concerts. However, in addition to the seismic and other structural reasons for the project, the Bowl’s reconstruction was also designed to expand the size of the bowl to accommodate a full orchestra. Ultimately, the opposition group’s claims were couched under CEQA but their clear basis had nothing to do with the environment.

It was announced in June 2001 that the lawsuit would delay the project by at least a year. 

The Court of Los Angeles County decided in the County’s favor later that year.  The opponents took up the issue again in the California Court of Appeal.  The case was heard in August 2002 and the appellate court again found that the County had fully complied with CEQA. The plaintiffs appealed the case to the California Supreme Court who denied review in November 2002. 

Despite voter approval of the project funding, public review and outreach on the project plans and the preparation of a comprehensive EIR, the Hollywood Bowl CEQA litigation added two years of delays and cost the County thousands of taxpayer dollars to pay for attorney’s fees.

The new Hollywood Bowl Shell’s design has received praise for both its aesthetics and functionality. The American Planning Association awarded the project for outstanding planning and integration of the historic features of the Hollywood Bowl.

COST OF CEQA MISUSE:

  • Voter-approved project challenged by NIMBYs
  • Two years of delays
  • Thousands of dollars in attorney’s fees— borne by taxpayers

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CEQA Misuse Case Study: Netflix Campus Expansion, Los Gatos

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March 20  |  Case Studies  |   afrew

Neighbors Use CEQA in Attempt to Block Smart Growth and Job Creation Project

In August of 2011, Los Gatos Business Park, LLC received approval from the Town of Los Gatos to redevelop an old business park.  Their update to the existing office complex called for a Planned Development Rezoning to accommodate up to 168 senior homes and up to 550,000 square feet of office space. The 21 acre site, which includes the office park and surface parking lots, is within 1,000 feet of a planned light rail extension, and is bordered by Highway 85—making it a quintessential smart growth infill development.

Across the highway from the Los Gatos Business Park project is the 10 year old Netflix campus. The, well-known technology company had been looking for a new home for its 900 and growing employees for some time.  When Netflix heard that the Los Gatos Business Park was considering plans to redevelop the site across the freeway, they approached the developers about using the new site as an expansion of the neighboring Netflix campus. Netflix was already a valued member of the community and their expansion would stimulate economic development and create new jobs in the community.

The Los Gatos Business Park agreed to partner with Netflix and completed a mitigated negative declaration environmental review of the project to comply with CEQA.

Unfortunately, there has been a great deal of local NIMBY opposition to using the Business Park redevelopment to house Netflix.  Los Gatos, nestled in the Southwest section of Silicon Valley, is an extremely affluent community and neighbors couched their opposition in terms of a fear of the destruction of the “Town character.” These concerns—which are fundamentally about local aesthetics and not environmental impacts—are questionable given that the town already houses an existing old office park on the site and many other businesses nearby the adjacent freeway off-ramp.

Nonetheless, when local elected officials did not agree with the opponent’s complaints about this mixed-use, infill project they filed a CEQA lawsuit to try to block the Netflix expansion alleging that potential impacts must be studied in a lengthier, full blown Environmental Impact Report, rather than a negative declaration.

In anticipation of further litigation delays and associated carrying and development costs, Netflix decided to scale down the design plans and remove the senior housing component entirely. They also decided to complete a costly and lengthy full Environmental Impact Report for the infill project.

The CEQA delay forced Netflix to abandon its 2012 target date to hire new workers at the site. In reducing the size of the project to cater to a few local neighbors, Netflix was also forced to eliminate the senior housing component completely. Despite the overwhelming consensus that infill and mixed use developments are critical to CEQA’s goals of protecting the environment, CEQA litigation was used in this case to significantly reduce the size of the project and to deprive the community of desperately-needed affordable homes for seniors and high-quality jobs at a time when it is struggling to grow its economy.

COST OF CEQA MISUSE:

  • Elimination of 168 units of senior housing
  • Costly delays to the project timeline
  • Increase in overall project costs due to litigation
  • Delay in job creation and fewer jobs created due to smaller project

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CEQA Misuse Case Study: Los Angeles Public Transit, Metro Expo Line Extension- Phase 2

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March 13  |  Case Studies  |   afrew

NIMBY Neighborhood Group Uses CEQA in Attempt to Stop Public Transit Project

The Expo Line is the first transit line to connect Downtown Los Angeles with the Westside. Phase 1 was approved in 2005 and serves USC, Exposition Park, the Crenshaw District and Culver City. Phase 2, a 6.6 mile extension to downtown Santa Monica will be a high-capacity, high-frequency light rail with seven stations along the way. It is expected to serve 64,000 daily riders by 2030.

The only freeway that makes this east-west connection currently is the I-10 and during commuter rush hours and lunch time, the I-10 suffers from bumper-to-bumper congestion. The Expo Line parallels and provides an alternative to the I-10.

The Expo Line extension is critical for SCAG to meet its greenhouse gas reduction and planning goals under AB 32 and SB 375.

Environmental planning for Expo Line Phase 2 began in January 2007.

Following the public scoping period, during which 1,800 comments were received, a Draft Environmental Impact Report was circulated for public comment. The Draft EIR included six alternatives, four being light rail routes. The light rail alternatives explored four different alignments and further broke them down into segments for detailed environmental analysis. Almost 9,000 comments on the Draft EIR were received, and in response, the Exposition Metro Line Construction Authority (the Expo Authority) undertook more analysis, coordination with other agencies, and community outreach. From the comments received and analysis conducted, a light rail route was identified as the preferred alternative and the design was modified to address concerns that were received.

The Final EIR incorporated all changes and was circulated for public comment in December 2009. Following a public hearing, the Expo Authority approved the project and certified the Final EIR in February of 2010.  The Expo Line extension is also consistent with the Los Angeles Metropolitan Transportation Authority’s 2009 Long Range Transportation plan which sets out a long-term vision for the development of transportation systems for the next 30 years.

During the environmental review period, a group of local homeowners pushed for an alternative route that would take the Expo Line around rather than through their neighborhood. They claimed CEQA violations on several grounds (all of which have been rejected by the courts) and insisted that the only acceptable mitigation measure for a line that runs through their neighborhood would be placement of the entire line underground. Building the line underground would be extremely costly.

In March of 2010, one month after the certification of the Final EIR, the neighborhood group filed a CEQA challenge against the EIR, but lost their case and subsequently brought it to the Court of Appeal where the appeal was denied and the EIR was upheld. This process took two years to complete.

Despite losing the two previous lawsuits, the neighborhood group continued their attempts to stop the project. On August 8, 2012, the State Supreme Court agreed to hear the case. The group then filed for a stay on the Expo Line until the court rules on the latest lawsuit, but on November 15, 2012 the court denied the request for a stay on the project, so construction is able to continue. Barring any future delays, project completion is set for 2015—eight years after the project approval process began.

These continual CEQA lawsuits – despite the project’s extensive environmental review and compliance – have increased the project timeline by two years and driven up costs borne by taxpayers and transit riders. Public transit projects such as the Expo Line are vital to California to help meet greenhouse gas reduction and planning goals set out by AB 32 and SB 375, yet CEQA in its current state is being used as a special-interest tool to stop environmentally-beneficial projects like the Expo Line.

The Metro Line extension is being funded by Measure R funds – the project and funding approved by local voters.

COST OF CEQA MISUSE:

  • Meritless CEQA lawsuits jeopardize thousands of jobs
  • Litigation adds significant costs to project borne by taxpayers 

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CEQA Misuse Case Study: Lucasfilm Studio Expansion, Marin County

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March 6  |  Case Studies  |   afrew

NIMBY Homeowners Group Drives Major Job-Creating Project out of Marin County

Skywalker Properties acquired property in Marin County in 1985 with the intent of expanding its existing Lucas Films studio at Skywalker Ranch. The master plan review for this project, including the associated Environmental Impact Report (EIR) was approved in 1996, after a 10-year review process.

In 2009, a Precise Development Plan (PDP) was submitted for a smaller project that consisted of a 190,485- square foot digital studio with associated parking and outdoor space. The project entailed the construction of a three-story building over the underground parking to be used primarily for advanced digital productions. The project also included other site improvements such as fire roads and water tanks.

The plan also detailed $50-70 million worth of restoration and enhancement for the creeks and tributaries located on the property. Seventy-eight percent (78%) of the total acreage was proposed for permanent preservation as natural open space.

The studio expansion would have led to 350 high-paying technical full-time jobs at the new studio, and the 2-year construction phase would have generated an additional 460 jobs

In 2009, Skywalker Properties submitted a Precise Development Plan and the lead agency began to prepare a Draft Supplement to the 1996 EIR. Four years and three rounds of comments later, the Marin County Planning Commission unanimously voted for approval in February 2012.

On the last day of the Final Supplement EIR review, a local group of homeowners filed an appeal to the Marin County Board of Supervisors alleging CEQA violations. The appeal was accompanied by a 50-page document drafted by an attorney and raised concerns that the project was inappropriately located and would ruin the bucolic setting. The neighbors also asserted that the 1996 Master Plan / EIR and 2012 Precise Development Plan / Supplement EIR had insufficient information and other complaints.

Hoping to avoid a lawsuit, the Board of Supervisors voted to delay the project until more environmental impact studies could be done.

Four years into the permitting process, Skywalker Properties decided to withdraw its application, citing threatened CEQA litigation from the homeowners as the reason and the last straw.

Hundreds of construction jobs and hundreds of high-tech jobs were lost due to the CEQA delays, and the county has apparently permanently lost the potential of tens of millions in tax revenues.

COST OF CEQA MISUSE:

  • Over 800 high-tech and construction jobs lost
  • Tens of millions in tax revenue lost
  • $50 to $70 million worth of environmental restoration lost 

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CEQA Misuse Case Study: Carmageddon, Los Angeles

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February 27  |  Case Studies  |   afrew

Threat of CEQA Lawsuit Causes “Carmageddon”

In July 2011 and again in September 2012, Interstate 405 in Los Angeles – the busiest and most congested freeway in the United States – was brought to a near shut down in incidents now infamously known as “Carmageddon”. Commuters were stopped in traffic for hours as the direct result of construction work that could have been minimized were it not for a CEQA lawsuit.

The Los Angeles Metropolitan Transportation Authority (LA Metro) and CalTrans had proposed an alternative construction plan that would have minimized traffic congestion, sped up the project, and saved taxpayers millions of dollars. Unfortunately, local NIMBY groups and CEQA got in the way.

In 2009, LA Metro launched the Sepulveda Pass Improvements Project, a $1 billion effort to relieve congestion, improve safety and reduce pollution by shortening commute times on the I-405. The project would add a 10-mile High Occupancy Vehicle lane to the highway, and improve supporting infrastructure such as ramps, bridges and sound walls.  It will also widen lanes from the Santa Monica Freeway (I-10) to the Ventura Freeway (US-101). It is an extremely high priority for the LA Region with the goal of a 2013 completion.

In order to make the project feasible, the Mulholland Drive Bridge needed to be removed and replaced. A comprehensive Environmental Impact Report and public review process was completed in compliance with CEQA.

As part of the CEQA process and in  preparation for the demolition and reconstruction of the Mulholland Bridge, the state developed two alternative construction plans. The first plan would require closure of the 405 freeway for two separate weekends as well as narrowing Mulholland Drive, a busy commuter road, from four lanes to two.

An alternative design was also developed specifically to lessen the blow of the bridge construction project. It would have only required the I-405 to be shut down for one weekend instead of two and would not have narrowed the busy Mulholland Drive. This alternative design also addressed issues the community brought forth, including issues with retaining walls, aesthetics, traffic operations, constructability, and bridge stability. The alternative plan was also completely environmentally sound, being fully vetted under the environmental review process that was completed for the original plan.

However, property owners near the project rose up against the faster, less expensive, alternative design, namely because they had aesthetic objectives to the bridge and road design. In particular, they wanted LA Metro to hire a “world-class” architect to design a better looking overpass/bridge.

The property owners threatened to file a CEQA lawsuit against the I-405 project, alleging that a full environmental document should be prepared for the alternative design, even though it was fully in line with the full environmental review conducted for the original design.

Though LA Metro was confident in the illegitimacy of an environmental lawsuit, time and financial constraints forced project leaders to revert back to the original project plan. They were quoted saying, “Between the uncertainties of the City process and the risk of a lawsuit, LACMTA is concerned the project could be significantly delayed…. This is the reason the I-405 Project has made the decision to go back to the baseline design in the Contract.”

The first shutdown of the I-405 required by the project took place on July 15, 2011 and was referred to as “Carmageddon”, causing major congestion and havoc for all attempting to navigate Los Angeles freeways.   “Carmageddon” was repeated for a second time in the last weekend of September 2012 – and again, caused massive congestion and chaos.

The alternative design could have saved between $4 million and $10 million, and between six months to a year of work.

COST OF CEQA MISUSE:

  • CEQA threats cause massive shutdown of traffic
  • Between $4 and $10 million in taxpayer dollars added to cost of project because of lawsuit threat
  • Added six months to project construction time

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CEQA Misuse Case Study: Moe’s Stop, San Jose

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February 20  |  Case Studies  |   afrew

Competitor Uses CEQA to Try to Prevent Gas Station Owner from Expanding

Moe’s Stop is a gas station at the corner of McKee Road and N. 33rd St. in San Jose. The gas station consists of a 1,400 square foot building used for auto servicing and a small store. In April 2009, the owner of Moe’s Stop proposed to add three additional gas dispensers to the existing three dispensers on site.

After filing a Conditional Use Permit application, a California Environmental Quality Act (CEQA) environmental review (Negative Declaration) was conducted and found that the project would have no significant environmental impacts. At a public hearing held in April of 2010 after a public review and comment period, the City of San Jose’s Planning Commission unanimously voted to approve the Moe’s expansion project.

Moe’s Stop directly competes with a gas station located on the opposite corner, called Andy’s BP. The owner of Andy’s BP had a history of using the courts to gain a competitive advantage against Moe’s Stop prior to the project approval. The day after the Planning Commission voted to approve the Moe’s project, the owner of Andy’s BP appealed the decision to the City Council arguing that the addition of three new gas pumps would result in increased traffic. The City Council unanimously disagreed and upheld the Moe’s project approval consistent with the environmental review on June 15th.

Andy’s BP then filed a CEQA lawsuit against the City of San Jose. This time he alleged that a full Environmental Impact Report (EIR), rather than the previously adopted Negative Declaration was required to properly assess the traffic impacts. Moe’s Stop was ultimately required to prepare an EIR, which was done at considerable expense and delay. The EIR demonstrated, among other things, that Moe’s project was consistent with the traffic requirements in the San Jose General Plan, and the project would have less-than-significant impacts associated with traffic, therefore no mitigation was required. Despite the additional analysis contained in the new EIR as they requested, Andy’s BP continued to object to the Moe’s project. Andy’s BP filed the only comments received by the City on the Moe’s EIR.  The City subsequently denied Andy’s BP’s claims and approved the Moe’s project based on the comprehensive EIR in November 2011—more than 17 months after they had originally approved the project. Two days later, Andy’s BP appealed the certification of the Final EIR, but the City Council rejected the appeal and upheld the approval.

In April of 2012, Andy’s BP filed a lawsuit with the Federal District Court against the City of San Jose and Moe’s Stop alleging violations of the 14th Amendment for unfair competition and interference with economic advantage. The Court denied Andy’s claim and granted the motion to dismiss.

The owner of Moe’s Stop estimates that the overall cost of the project delay was at least $500,000. The EIR alone cost the small business owner $75,000, plus $150,000 in attorneys’ fees. Additionally, the gas station remained closed for eight months while waiting for litigation to progress, which the owner of Moe’s Stop estimates cost him at least $300,000.

“I’m just a small business owner. If I didn’t have any financial backing from investments, I could have easily gone under,” says Amir Shirazi, owner of Moe’s Stop. “And if I had gone under, the guy across the street could have easily bought my property for half of what it was worth and put his own pumps on it. And then he’d have a monopoly on the whole corner.”

COST OF CEQA MISUSE:

  • $500,000 in increased costs from litigation
  • 18 months of project delays
  • Small business shut down for 8 months while frivolous litigation proceeded

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CEQA Misuse Case Study: USC University Gateway Project, Los Angeles

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February 13  |  Case Studies  |   afrew

Competitor uses CEQA to try to stop competing projects and monopolize student housing

In 2003, the University of Southern California (USC) and its development partner Urban Partners began making plans for an urban infill, mixed-use, and transit-oriented development project that would provide badly-needed housing near campus for its students. The project, dubbed ‘University Gateway’ would provide housing for approximately 1,600 students and would feature 83,000 square feet of ground-floor retail space, anchored by a new flagship university bookstore.

University Gateway enjoyed strong community support as it would generate 700 jobs in an underserved area with a depressed economy.

Over the course of two years (2004-2006) a comprehensive Environmental Impact Report (EIR) was prepared and extensive measures were taken to address all environmental concerns with the project, including cleaning up the soil after the site’s long use by the auto industry.

During the EIR process Conquest Housing, a competitor housing developer, raised concerns about a shortage of parking spaces, despite the fact that the parking ratio for the project mirrored the ratios at many of Conquest’s own buildings. Conquest sought to create delays by encouraging neighbors to submit similar complaints about parking knowing that under CEQA, every comment must be heard, regardless of its merit. Throughout this process, Conquest did not raise any environmental quality concerns.

After addressing all concerns, the Final Environmental Impact Report was approved in July 2006 and, shortly after, Conquest appealed that decision, again over parking concerns. The appeal was rejected and the final EIR was certified in April 2007. Conquest appealed the certification of the EIR, only to be rejected again. They subsequently filed for a writ of mandate to the California Superior Court

In September of 2007, USC and Urban Partners filed a federal racketeering lawsuit against Conquest, accusing them of violating the RICO Act, the Sherman Act and California Unfair Competition Laws by their frivolous CEQA complaints against Urban Partners. As the case went on, it was revealed that a Conquest executive had specifically stated that they knew how to “bomb” competing projects using CEQA. Conquest had a history of filing CEQA complaints against Urban Partners projects throughout California. Lastly, it was also revealed that Conquest had made efforts to pay local residents to submit their own complaints regarding the project.

In January of 2008, the court ruled in favor of USC and Urban Partners, calling what Conquest had done ‘vexatious litigation’ and that the CEQA appeals were ‘abusive.’

A settlement was reached between Conquest and USC/Urban Partners which required the immediate dismissal of nine lawsuits that Conquest initiated against Urban Partners projects.

All of Conquest’s CEQA appeals were rejected and University Gateway broke ground in July of 2008, a full four years after the initially slated completion date. The continuous challenges from Conquest Housing caused significant delays and added costs to this project.

COST OF CEQA MISUSE:

  • Four years of project delays from continuous frivolous litigation
  • Significant costs added to student housing project

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CEQA Misuse Case Study: Sacramento Senior Homes, Berkeley

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February 6  |  Case Studies  |   afrew

NIMBY group uses CEQA lawsuit to stop affordable housing project for seniors. 

Sacramento Senior Homes is located at the corner of Sacramento Street and Blake Street in Berkeley, CA. This 40-unit infill housing project serves very low income senior citizens, many of whom were homeless before moving into the new building. Low-income senior housing is desperately needed in Berkeley, and was stated as a high priority of the city.

The site of the proposed project was an empty lot which contained a graffiti-laden abandoned storefront. Years earlier a gas-station had existed on the lot and extensive environmental studies had confirmed the site was clear of any hazardous material. 

Prior to actually purchasing the property and filing the permit, the project proponent met with neighbors to hear feedback. Plans ultimately submitted reflected that feedback.

The project also had support from the community and the environmental community. Tim Frank, senior policy advisor for the Sierra Club, said:  “… Sacramento Senior Homes provides housing choices that are desperately needed, and does so in a great location for housing generally, but especially for senior housing. It is served by three bus lines, is within walking distance of BART (Bay Area Rapid Transit) and is close to a whole array of shopping and services and even a library branch.”

In November 2001, non-profit developer Affordable Housing Associates filed a permit with the City of Berkeley and a few months later, an environmental review was conducted and an environmental document was prepared including measures to mitigate potential impacts of noise, air quality, geology/soils during construction, and traffic. The project was then further refined in response to public and staff input.

After eight public meetings, six design overhauls to address concerns, the city council voted to move forward with the project.

Subsequently, the local neighborhood group filed a CEQA lawsuit alleging a more extensive environmental review must be conducted to address the fact that the project was not “visually compatible with its surroundings”. As a reminder, the project was previously an abandoned storefront, so the new project was a significant “visual” improvement.

The court rejected the neighborhood group’s claim, but the NIMBY group appealed the ruling, only to be denied by the court again.  

The lawsuit caused a two year delay and the city spent close to $2 million fighting the challenges. Delays also increased the cost of the project by $3 million – a substantial cost for a project aimed at providing affordable housing. In 2004, while commenting on the added cost, city council member Linda Maio said, “Do you know what we could do with that money? We could build another building. This is precious money that should be spent where it is critically needed.”

The project finally opened in November 2006.

COST OF CEQA MISUSE:

  • $2 million in costs to taxpayers caused by delays
  • $3 million in added costs to housing project
  • Delay of 2 years

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