Wildfire threat becomes tool to fight home builders

Environmental groups have been arguing in California courts that developers are not fully considering the risks of wildfire and choked evacuation routes when they plan their housing developments near fire-prone areas

Preston Brown knows the risk of wildfire that comes with living in the rural, chaparral-lined hills of San Diego County. He’s lived there for 21 years and evacuated twice.

That’s why he fiercely opposed a plan to build more than 1,100 homes in a fire-prone area he said would be difficult to evacuate safely. Brown sits on the local planning commission, and he said the additional people would clog the road out.

“It’s a very rough area,” Brown said. “We have fires all the time now.”

Opponents like Brown, a member of the Sierra Club and California Native Plant Society, scored a win last year. A California court sided with a coalition of environmental groups and blocked a developer’s plan called Otay Village 14 that included single-family homes and commercial space. The groups argued the county didn’t adequately consider fire escape routes, and the judge agreed.

That's not the only time California's escalating cycle of fire has been used as a basis to refuse development.

Environmental groups are seeing increased success in California courts arguing that wildfire risk wasn't fully considered in proposals to build homes in fire-prone areas that sit at the edge of forests and brush, called the wildland-urban interface. Experts say such litigation could become more common.

California Attorney General Rob Bonta has backed a handful of the lawsuits, putting developers on notice.

“You can’t keep doing things the way we’ve been doing when the world is changing around us,” Bonta said in an interview, adding that he supports more housing. His office has, for example, questioned the increased fire risk of a 16,000-acre (6,475-hectare) project that includes a luxury resort and 385 residential lots in Lake County, roughly 130 miles (209 kilometers) north of San Francisco in an area that has already seen significant fire.

Bonta said his office is working on a policy that will help developers and local officials avoid future opposition from his office. It will provide guidance on evacuation routes, planning for population growth and minimizing fire risk, he said.

Developers say they already consider wildfire risks in their plans, comply with strict fire codes and adhere to state environmental policies, all while trying to ease another one of the state’s most pressing problems: the need for more housing.

Builders also say communities sometimes unfairly wield wildfire risk as a tool to stop development. The AG's office has weighed in on this side, too. Last year, the city of Encinitas denied permits to an apartment complex citing the possibility of choked outgoing traffic if there were a fire.

Encinitas — a city with a median home price of $1.67 million — was thwarting the state's affordable housing goals, Bonta's office wrote. Months later, the commission approved the developer’s plan with some changes.

FIRE AND LAWSUITS

California is withering under a megadrought that is increasing the risk of fire, with 12 of the 20 largest wildfires in its history taking place in the past five years. UC Berkeley researchers estimate 1.4 million homes in California are located in high or very high-risk areas. Activists say the public is increasingly aware of fires.

The result is more lawsuits.

Opponents of the developments are employing the often-hated California Environmental Quality Act against local governments in these lawsuits. That law ensures there’s enough information about projects like Otay Village 14 for officials to make informed decisions and address problems. In 2018, the state strengthened requirements for disclosing wildfire risk, leaving developers more vulnerable to this kind of litigation.

Peter Broderick, an attorney with the Center for Biological Diversity, said environmental groups are challenging “the worst of the worst," large projects in undeveloped, high fire-prone areas that cater to wealthy buyers.

“We’re talking about sprawl,” Broderick said.

Pro-housing advocates have said the state’s policies encourage sprawl.

MAJOR HOUSING NEED

But by fighting big developments, environmental groups are holding up thousands of homes, said Mark Dillon, an attorney who represented the Otay Village 14 builders. New developments take fire risk seriously, employing techniques for fire-resistance and complying with building codes, he said. Otay Village 14 would build its own fire station.

California shouldn’t just focus on building in city centers, Dillon countered.

“We shouldn’t be outlawing the single family home,” he said.

Jennifer Hernandez heads the West Coast Land Use and Environmental Group at Holland & Knight LLP. She said developers are adjusting to changes in the environmental review law but that the attorney general’s office should issue a public policy.

“The ad hoc nature of unexpected interventions by the AG's office does a policy disservice to California housing needs,” she said.

Hernandez represents an industry group that sued Calabasas, an affluent community of over 20,000 northwest of Los Angeles, arguing that it improperly cited wildfire risk to deny a 180-unit development.

“It’s on the main street of an existing community,” she said. “And why is this a problem?"

Calabasas City Manager Kindon Meik said the project would violate open space rules and was in a high-risk area that had recently burned, adding the city has plans to meet its new housing needs.

California's housing shortage has made homes unaffordable for many moderate and low-income residents. Researchers, housing policy experts, and others say development at the edge of the forest has been driven in part by these punishing home costs in cities like Los Angeles, San Diego, San Francisco and their suburbs.

In recent years, the state passed measures aimed at ensuring cities build enough new homes, but a recent statewide housing plan said 2.5 million new homes are still needed over the next eight years.

Greg Pierce, a professor of urban environmental policy at the University of California, Los Angeles, said there's very little land left in California that is undeveloped, cheap and at low risk of fire.

Meanwhile, activists have more projects in their crosshairs.

NeySa Ely of Escondido has a list of items like medicine and dog supplies to grab the next time she has to flee a fire. She had to evacuate in 2003 and 2007. The first time, she remembers driving away and seeing flames in the rearview mirror.

“At that point, I just started sobbing,” Ely said.

Her house survived that blaze, but the memory stuck. So when she heard about plans for Harvest Hills, a roughly 550-home development proposed about a mile from her house, she worked to block it, concerned that more residents and buildings in the area would clog the roads out and increase the chance of fire.

The project hasn’t been approved yet, but if it is, Ely said, “I think it will be heavily litigated.”

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