Suits against developments over fire risks may be a trend

Lawsuits challenging the approval of a housing development in a remote part of San Diego County citing the threat of wildfires could foreshadow a trend.

The plaintiffs and several experts said that while the challenge to the sprawling development -- Otay Ranch Village 14 -- wasn't the first to raise concerns about wildfires, it is one of the first to raise it as a matter of public policy.

Environmental groups are starting "to ride a possible public policy wave," when challenging development projects in court, said Mike Danko of Danko Meredith APC who is not involved in the matter.

"There's always been a tremendous need for housing but we have to ask, 'Why are we placing people in harm's way?'" Danko said. "It seems to be that these groups are able to argue to their benefit; it's both an interesting and likely wave of the future."

Maria Severson of Severson Aguirre LLP agreed there's been a spike in citing fire risks to halt development projects in recent years, "because it's in everyone's minds, and we can't ignore the fires in San Diego in 2007, nor the fires around the state caused by utilities."

Severson, who is also not involved in the litigation, said she advises municipalities to approve responsible development but also use their power with franchise agreements to require utilities to employ safe operations when providing services to new homes.

"These homes need utilities," she said. "The buying power needs to be used for the betterment of its people, not just for economics but for public safety."

The lawsuits warn that Otay Ranch Village 14, northwest of Chula Vista, is being built in one of California's most fire-prone areas in the state.

The plaintiffs are the Center for Biological Diversity, Preserve Wild Santee, California Chaparral Institute, California Native Plants Society, Endangered Habitats League and Sierra Club. Center for Biological Diversity, et al v. County of San Diego Board of Supervisors, 37-2019-00038747-CU-WM-CTL (S.D. Super. Ct., filed July 25, 2019).

Each of the lawsuits also make the claims environmentalists typically use to challenge development projects: the potential impacts to wildlife and endangered species.

"It speaks volumes that so many are concerned about this and three separate petitions are bringing claims against the county for violations of the California Environmental Quality Act for approving this," said Peter J. Broderick of the Center for Biological Diversity.

Broderick's colleague, John T. Buse, said, "The suit is one of the first that addresses a fire safety issue as a public policy issue, rather than just a technical defect in an environmental impact report."

San Diego County communications director Michael Workman said Friday that officials have yet to see the lawsuits, but noted, "We don't comment on pending litigation."

The county supervisors in a 3-2 vote approved the project and certified a draft of its Environmental Impact Report on June 26 after a public hearing. The suits followed. Buse and Broderick agreed there is a recent trend in lawsuits citing fire risks and challenging projects that could bolster their claims and calls for more oversight in environmental analyses.

Buse predicted similar lawsuits would be filed soon to challenge other projects throughout the state.

"I don't think the same statewide concern for fires really came up until after the recent fires in Santa Rosa, Paradise, Malibu and Ventura," Buse said. "We hope this issue is something the Legislature looks at. The discretion is there for local cities and counties that can make land use decisions, but something has gone badly wrong at a level where there are individual decisions made by municipalities that aren't really working," he said.

In 2008, the Center for Biological Diversity sued the city of Santee over the Fanita Ranch project, proposed around the time of the 2007 Witch Creek, Guejito and Rice fires that struck San Diego County. That suit aired many of the same concerns as the Otay Ranch Village 14 suit.

"But interestingly, we only ended up winning on the fire safety issue, which temporarily stopped the project," recalled Buse. Santee officials eventually amended their fire safety plan for Fanita Ranch.

The Center for Biological Diversity hopes the county will consider all environmental impacts of Otay Ranch and find ways to mitigate fire risks or consider appropriate alternatives, "which the county is obligated to do anyway under the CEQA," Broderick said.