Dan Morain: CEQA overhaul puts lawmakers on tightrope
02/17/2013 12:00 AM
02/25/2013 5:16 PM
At the urging of Gov. Jerry Brown and major business groups, some of the most influential legislators in Sacramento are trying to fix the California Environmental Quality Act.
Lots of luck with that.
Many of the law's defenders say privately that provisions permitting lawsuits are misused. But CEQA's protectors include organized labor, plaintiffs' lawyers and environmentalists, the foundation of the Democratic Party's base, and a reality that suggests there won't be significant change any time soon.
There's nothing simple about CEQA. Signed into law 43 years ago by Gov. Ronald Reagan, the California Environmental Quality Act is ingrained in the fabric of this state. Often, it's a citizen's last defense against encroachment, as Lev Leytes can attest.
Leytes, 57, is the embodiment of the American dream. He emigrated here 30 years ago from the Soviet Union with a wife, a baby, and $300, and set about building a life in Silicon Valley. A mechanical engineer, Leytes has done good and well, developing technology that could detect HIV. He and 120 employees were rewarded when his startup was acquired for $268 million in 2000.
"America is what made us what we are," he said, calling his U.S. citizenship his most prized possession.
A few years ago, Leytes built a ski home on a narrow road in a small development called the Retreat at the Northstar ski resort outside Truckee. It's a stunning structure that blends in on the piney lot, which is deep with snow this time of year. It's perfect for get-togethers with the Leytes' two adult daughters and their families.
A few dozen yards from Leytes' home, there's a one-way gate signifying the end of the public road. An exclusive development, the 650-lot Martis Camp project, is beyond the gate.
Placer County officials threaten the serenity of the Retreat by authorizing Martis Camp residents to pass through the one-way gate and use the road in front of Leytes' home as a shortcut to the Northstar slopes.
Worried that scores of cars each day could take the short route to Northstar, and convinced that the road was never intended to be used as a thoroughfare, Leytes hired the San Francisco law firm Morrison & Foerster. He and neighbors formed Tahoe Residents United for Safe Transit and sued, invoking the California Environmental Quality Act.
"They call it the Retreat at Northstar, not the Highway at Northstar, for a reason," Leytes said.
The Martis Camp developer, DMB/Highlands Group, contends that Martis Camp homeowners have every right to use the public road, narrow though it may be.
By CEQA standards, Leytes' suit is small stuff, though it does make clear that the much-maligned law empowers individuals to take a stand against government and big developers. It also illustrates how small the CEQA world is.
As lawmakers go about their work, DMB, a target of Leytes' suit, is at the Legislature's negotiating table in the person of the firm's senior vice president, attorney David Smith.
Smith confers with legislators and staffers about his area of expertise, urban infill, in which developers put vacant or blighted land to higher use. Environmentalists advocate infill, seeing it as a way to limit sprawl. Politicians see it as a good use of otherwise underused land.
"We've been trying to be an information resource," Smith said.
Again, nothing about CEQA is simple, including urban infill – as Leytes' lawyer, Christopher Carr, knows well. Leytes notwithstanding, Carr represents developers who are targets of CEQA lawsuits.
One of those targets is Avalonbay Communities, developers of 505 apartments in the East Bay town of Dublin.
The urban infill project is part of the Dublin Transit Center, 31 acres that includes apartments, condominiums and lofts, located within a third of a mile of the East Dublin-Pleasanton BART depot.
Because the project would encourage people to use mass transit and reduce the need for cars, the Bay Area Air Quality Management District lauds it as a model of smart growth.
However, after Dublin city officials approved it, Concerned Dublin Citizens filed a CEQA lawsuit to block it. The money behind the suit comes from the carpenters union, which is concerned that Avalon isn't using enough union workers. Avalon won in the trial court. The union is appealing.
Carr, who worked in the Clinton administration's Interior Department, certainly is no anti-environment zealot. But he said CEQA too often is used to "greenmail" developers.
"There haven't been common-sense brakes placed on the law," Carr said. "The Legislature has been frozen by interests who want to have CEQA available as weapon."
CEQA Works, the group defending the law in Sacramento, includes a who's who of Democratic politicians' constituents, roughly 80 organizations ranging from the Humane Society to the Teamsters and Sierra Club.
Scott Wetch, lobbyist for electrical workers, told me that if the Legislature reaches a deal that runs afoul of the coalition, "we have put the resources together to gather the signatures to put a referendum on the ballot" to roll back unwanted changes.
There are instances in which businesses challenge competitors' projects. But for the most part, critics include business groups. They've formed the CEQA Working Group, which includes the California Chamber of Commerce, Silicon Valley Leadership Council and others. Some detractors remain in the background, including the oil industry and big-box stores.
Business interests could attempt an initiative if they fail to get an acceptable deal, although they'd have a tough time defeating a campaign in California organized by labor and environmentalists.
Brown says he wants an overhaul. Senate President Pro Tem Darrell Steinberg is engaged. Sen. Michael Rubio, a Kern County Democrat, is taking the lead, casting himself to be a moderate, though no Democrat with ambition easily crosses organized labor.
In any overhaul, legislators must walk a line: How to limit lawsuits intended to shake down developers, while protecting legitimate concerns of organizations and citizens who don't want thoroughfares or factories in their front yards. Then there's the political question: Will Democrats who control the Legislature cross their base?
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