MORENO
VALLEY, Calif. — Once heralded as a vital check on corporate influence
over government, California’s ballot initiative system — which allows
residents to propose laws and approve them by popular vote — has been
used to sharply cut property taxes and to enact the country’s first
medical marijuana law.
But
these days, developers are using the process for another purpose: to
sidestep state environmental laws and speed major developments.
Plans
for a stadium in Carson, a shopping center north of San Diego and a
vast warehouse complex in Moreno Valley were approved last year using
the ballot initiative process. Another ballot measure petition hastened
construction of a stadium in Inglewood, where the Los Angeles Rams of
the National Football League will play.
The
advantage for developers is clear: Projects approved by ballot measures
avoid legal challenges under the California Environmental Quality Act.
There is a twist, though: Residents often do not even have a chance to vote.
Once
15 percent of eligible voters have signed a petition, a project
qualifies for the ballot, and local elected officials can call a special
election or accept the proposal without negotiating changes. Officials
often approve the project to avoid paying for a special election that
could further strain tight budgets.
Supporters
of the ballot measures say they allow residents to override a broken
system in which lawsuits and environmental reviews can delay projects
for years.
But
environmentalists argue that the arrangement grants special privileges
to developers, even if only a relatively small fraction of residents
support a project. And land-use experts say the strategy will become
more common unless the state government steps in to curtail it.
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So far, the issue has failed to attract much attention in Sacramento.
“We’ve
ended up with a warping of direct democracy to defeat strong
environmental laws,” said Douglas Carstens, a lawyer specializing in
land use and the environment. “It’s ramping up. Within a year or two,
people will realize what a bad situation this is.”
Developers
have complained for decades about the California Environmental Quality
Act, which is far more exacting than federal regulations. The state law
requires them to identify and mitigate the environmental effects of
their projects. No state agency oversees the law; it is enforced only by
lawsuits. Written broadly, the law allows almost anyone to sue,
claiming environmental harm that can range from destroying animal
habitats to blocking a view. The litigation can add years and millions
of dollars to a project’s cost.
Walmart
has pioneered the use of ballot initiatives to speed construction over
the last decade. Since 2009, the company has taken plans for stores to
the ballot in at least nine cities across the state; elected officials
approved the measures without a vote in eight of those cases.
The
company recently gathered enough signatures in Desert Hot Springs for a
ballot measure that would clear the way for a new superstore.
A
Walmart spokeswoman, Delia Garcia, said the ballot initiative was “a
way to move the process forward,” but she would not address whether the
company was using the process to avoid potential lawsuits.
“We
really wanted to give the public a chance to weigh in,” Ms. Garcia said
of the decision to put the Desert Hot Springs store on the ballot. “We
knew there was strong community support. In 21 days, we surpassed the
required number of signatures.”
The
California Supreme Court affirmed Walmart’s strategy in a 2014 decision
rejecting a challenge to the company’s expansion of a store in Sonora.
An elected board, the court ruled, may approve a ballot measure petition
without a special election, and that project can then bypass an
environmental review.
After the decision, more developers began following Walmart’s approach.
The
court ruling offered “a road map” for how to avoid the environmental
review process, said Richard Frank, a former chief deputy attorney
general in California who began working on Environmental Quality Act
cases shortly after the law was signed in 1970.
“What
is troublesome to me is that some members of the regulated community
are using the Supreme Court decision to circumvent the true intent of
the law,” he said.
Some
city officials, frustrated by lawsuits, see the end run around the
state environmental act as a useful way to speed construction.
In
Carlsbad, the plan to build a shopping complex was certain to prompt a
lawsuit until the developer, Caruso Affiliated, circulated a petition to
put it on the ballot. The City Council approved the measure outright in
a unanimous vote.
“They
would meet our growth standards, and our vote would give them security
about litigation,” Mayor Matt Hall said. Noting that a desalinationplant
in town had faced more than a dozen lawsuits and appeals, he added that
the state environmental law had “become more of a weapon than a
shield.”
Mr.
Frank, the former lawyer in the California attorney general’s office,
said that this use of the ballot initiative system “smacks of a
collusive process.”
Nowhere
have ties between a developer and elected officials come under more
scrutiny than in Moreno Valley. After the City Council approved plans to
build the largest warehouse complex in the United States, environmental
groups sued, contending that the complex would add nearly 70,000 car
and truck trips a day to an area that already had some of the most
polluted air in the country. The developer, Highland Fairview, had also
spent heavily to aid the election of the three Council members who
supported the project.
So
backers of the project gathered signatures for a ballot initiative, and
then the Council approved it outright — shielding the project from
environmental lawsuits.
Jeffrey Giba, one of the councilmen who supported the project, called the environmental lawsuits “an extortion racket.”
“I don’t want to spend my city’s money on a special election when we already approved the project once,” he said.
Responding to accusations of collusion with the developer, he said, “Nobody bought me.”
Although
environmental activists are leaning on state officials to close the
loophole, no new legislation has been proposed this year.
In
the meantime, residents have tried to force local public votes. But
they say it is difficult to fight developers that can put millions
toward the projects.
In
Carlsbad, an affluent seaside community, residents gathered enough
signatures to force a referendum on the shopping center. Voters narrowly
rejected the project in March, overriding the Council’s previous
approval.
De’Ann
Weimer, who helped organize opposition to the shopping center, said
that despite her group’s victory, it was unrealistic to expect residents
to continually fight companies like Caruso Affiliated, which spent more
than $10 million pushing for the shopping center. Her group spent about
$100,000 in the months before the referendum.
“It’s an unfair playing field when an organization has this much power and money and resources,” she said.
In
Moreno Valley, a working-class city where people are clamoring for
jobs, opponents of the warehouse complex said the process had
effectively allowed the developer, Highland Fairview, to buy the right
to build what it wanted.
Opponents
later tried to force a referendum, but they failed to gather enough
signatures. Highland Fairview spent more than $1 million since the
beginning of 2015 in support of the warehouse complex; the local
opposition group raised less than half as much.
“If
we’d all had the same amount of money to plead our case, it would have
been different,” said George Price, a city councilman who opposes the
warehouses. He estimated that 90 percent of the residents in his
district, where the project will be built, opposed the complex.
Echoing
Walmart’s argument, the chief executive of Highland Fairview, Iddo
Benzeevi, said the 49,000 signatures gathered in favor of the ballot
measure proved the public’s support.
“Complaints
about money spent to educate voters are not surprising,” Mr. Benzeevi
said in an email. “Opponents simply lost their argument with the
community.”
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