How the New EIR Ruling Hurts Smaller Projects

SAN DIEGO—The latest California Supreme Court ruling about EIRs will make local development, especially of smaller projects, a bit more uncertain and expensive, Richard Schulman, an attorney with San Diego-based law firm Hecht Solberg, tells GlobeSt.com exclusively. Schulman explained the ruling in a recent article he wrote for a local publication: “The California Supreme Court recently made it more probable that even small development projects will need costly and time-consuming environmental impact reports. It did this by directing lower courts to favor the evidence supporting challenges to these small projects … Berkeley Hillside Preservation v. City of Berkeley, which the California Supreme Court decided in early March, concerned when to require an EIR for a type of project that does not usually harm the environment. The specific project in question was a single-family home. The Court split the one-sentence regulation in half: Courts will now defer to the lower body, such as a city, in determining whether there were 'unusual circumstances' that could cause impacts. However, courts will not defer to the city in deciding whether the project itself could cause impacts.' ” To see the completed article Schulman wrote, click here.

We spoke with Schulman about the ruling and how he feels it will impact San Diego real estate development.

GlobeSt.com: How will the latest California Supreme Court ruling about EIRs impact San Diego real estate development?

Schulman: The ruling will make local development, especially of smaller projects, a bit more uncertain and expensive. It will do this by requiring that courts favor claims that certain types of projects that don't usually require full EIRs will require them. That's a particular risk locally because a lot of small projects like single-family homes, which in many areas have to be approved under building codes, don't have to be approved here. Instead, local cities require special permits, such as coastal permits or sensitive-lands reviews, that bring the projects under CEQA.

GlobeSt.com: What can developers of smaller projects do to prevent this ruling from slowing down their projects' progress?

Schulman: If there is no opposition to a project that's potentially affected by the ruling, the ruling doesn't matter. If there is opposition, it's often quicker to give up and do an EIR. There are three reasons for this. First, except in the simplest situations, the fight over the shortcuts often takes longer than preparing an EIR would have in the first place. Second, many negative declarations and mitigated negative declarations (statements that a project is not exempt from CEQA but will not cause significant impacts) are as complex as EIRs used to be. Third, if you have an EIR, it's easier to defend in court than the shortcuts are because judges (not just in the Berkeley case) prefer EIRs. You can keep your project on track by figuring these issues out up front, including an honest (or even pessimistic) assessment of whether the project could cause an environmental impact; waiting for opponents to come up with new issues is a great way to lose time.

GlobeSt.com: What else should our readers know about this ruling?

Schulman: All is not lost; there are two ways this won't matter. First, if your project is “ministerial”—meaning the local jurisdiction requires only an objective permit, like a building permit, and not something that it gets to think about, like a use permit or subdivision map—don't worry about it; it's not subject to CEQA anyway. It's just that there are fewer and fewer “ministerial” development permits left in this state. Second, some projects really, truly will not have impacts; it just needs to be perfectly clear to everyone that that's true.