The California Environmental Quality Act is an existential threat to new development in the Golden State. The fact that the CEQA “guideline” process exists at all is a deterrent in particular to smaller and medium-tier builders from investing here as opposed to other states. The EIR study process, disclosures and public hearings are complicated, time consuming and expensive. These are all up-front speed bumps that need to be overcome before a vote is ever taken. Builders hate this process, and understandably so. However, too often project-runners myopically believe these delays are the real threat of CEQA. They’re wrong. The real threat comes later.
Under CEQA, almost anybody can sue to stop a project. There is no physical proximity requirement or a provable standard of damages/risks to meet. For a NIMBY, if you’ve got a lawyer and a public comment letter that pokes a few rhetorical holes in the EIR process, you’ve got all you need to put a two-year plus roadblock in front of a project AFTER it’s been approved by the city council. Growth obstructionists live and feed on the low-standard hurdle of filing a CEQA lawsuit. California has spawned a cottage industry of lawyers who do nothing but recruit community members to act as straw men in disingenuous CEQA fights. Often, these attorneys are looking for a lucrative settlement from builders, but they have no qualms about dragging a process out and causing as much pain as possible to make sure the next builders is more likely to cave in to settlement.
However, there is one thing CEQA abusers fear: a truly bulletproof EIR approval. One of the kindnesses of CEQA is that any CEQA-based objections to the process MUST be in the administrative record before the vote is taken. Anything later is inadmissible in court. For this reason, the attorneys representing NIMBYs often inject volumes of objections into the record at the last minute. Out of frustration, builders and city council members eager to move forward foolishly take the bait and rush the approval without fully vetting the objections. This is exactly what your opposition wants you to do.
We counsel our clients to do the opposite: Take every objection seriously, minimize the criticisms of your project both politically and legally, and make time your friend instead of an adversary. Be willing to pull back and accept a one-month study delay in order to prevent a two-year legal battle. Do everything possible to craft an unassailably perfect EIR process. This can make opposition incredibly uncomfortable with their strategy. Force them to risk potential sanctions from the court for filing a frivolous lawsuit. Use the force of your opposition against them and you will find that CEQA, though arduous, can reward the patient and the prudent builders.
NEXT WEEK, Part 4: "Bad Projects" can ruin "Good Projects".