AG Bonta: Warehouse Development Legal Issues
California Attorney General Rob Bonta announced filing a comment letter that identifies serious legal issues concerning the proposed Airport Gateway Specific Plan in the Inland Empire Cities of Highland and San Bernardino. The Airport Gateway Specific Plan would streamline future development of up to 9.2 million square feet of new warehouses just north of the San Bernardino Airport. In his comment letter, Attorney General Bonta raises several problems with the Airport Gateway Specific Plan, primarily that it would displace approximately 2,600 residents in a majority-Hispanic community that already suffers from extreme socioeconomic disadvantages and a shortage of affordable housing, as well as bring nearly 9,000 new heavy-duty diesel truck trips per day into the Highland and San Bernardino communities that already experience some of the worst air pollution in the state.
“Community and environmental groups have raised significant concerns about the proposed Airport Gateway Specific Plan, and they’re absolutely right to do so,” said Attorney General Bonta. “My office has submitted a comment letter because this project, in its current form, would likely violate several California housing and environmental laws. While I support economic development, it must be done responsibly and fairly. It is deeply troubling that thousands of individuals would be displaced under the current Airport Gateway Specific Plan, and that there is no proposed relocation assistance for them.”
In his comment letter to the Inland Valley Redevelopment Agency, the lead agency for the Airport Gateway Specific Plan, and to the Cities of Highland and San Bernardino, Attorney General Bonta writes that the Airport Gateway Specific Plan likely violates:
- The California Fair Employment and Housing Act, which prohibits land use practices that have a discriminatory effect on members of a protected class unless there is no feasible, less discriminatory alternative, as well as the federal Fair Housing Act. The Airport Gateway Specific Plan would, among other things, impact a community that is over 70% Hispanic and have the discriminatory effect of denying housing to residents of the project area by displacing them from their neighborhood, while failing to provide them relocation assistance. For those residents who do remain in the area, the project would bring numerous adverse environmental impacts, such as an increase in air pollution and an increase in greenhouse gas emissions. Further, Attorney General Bonta points out that there is a plethora of feasible, less discriminatory alternatives. For example, the Airport Gateway Specific Plan could include a smaller plan area that displaces fewer or no residents. The Airport Gateway Specific Plan would also frustrate California’s goals of increasing housing supply and affordability — the Cities of Highland and San Bernardino have lagged behind in contributing to that goal.
- The Housing Crisis Act of 2019 (SB 330), which requires local governments to designate replacement housing capacity when a project re-zones or re-designates land to remove residential capacity. The Airport Gateway Specific Plan includes areas currently zoned for residential use in both the cities of Highland and San Bernardino that would be re-designated for non-residential uses. Under SB 330, the designation of replacement housing capacity must happen at the same time the project re-zones residential parcels for industrial use. The Airport Gateway Specific Plan fails to meet this requirement because it only requires designation of replacement residential capacity at the time specific developments are approved.
- The California Environmental Quality Act (CEQA), which requires a lead agency to fully evaluate, disclose, and, whenever feasible, mitigate a project’s significant environmental effects. As required by CEQA, the Inland Valley Redevelopment Agency prepared a draft Programmatic Environmental Impact Report (PEIR). The PEIR fails to comply with CEQA for nine reasons: (1) it does not sufficiently analyze and mitigate the project’s displacement impacts; (2) its air quality analysis is inadequate; (3) it fails to disclose that the project would have significant operational noise impacts, despite mitigation; (4) it fails to disclose that the project would have significant land use impacts by potentially physically dividing an existing community; (5) it does not adopt all feasible mitigation for the project’s significant impacts; (6) it does not consider reduced plan area alternatives; (7) it does not consider whether the project would induce additional air cargo flights to and from the San Bernardino Airport; (8) it lacks clarity on when and to what extent individual projects in the plan area will require further CEQA review; and (9) other industrial developments in the project area are being approved while the project is pending, which risks violating CEQA by failing to consider the environmental impacts of the project as a whole.
Attorney General Bonta is committed to enforcing California’s housing laws that require the building of more housing and to protecting tenants. On November 3, 2021, he announced the creation of a Housing Strike Force — now called the Housing Justice Team — within the California Department of Justice. On April 1, 2022, he issued a consumer alert reminding California’s tenants of their rights and protections under state law. On July 13, 2022, he issued legal guidance about steps law enforcement officers should take to prevent and respond to unlawful lockouts and self-help evictions. On March 9, 2023, he filed a lawsuit against the City of Huntington Beach for violating state housing laws. On May 1, 2023, he filed a lawsuit against the City of Elk Grove, challenging the city’s denial of a proposed supportive housing project in the city’s Old Town Special Planning Area. On June 16, 2023, he announced a settlement against Green Valley Corporation, a San Jose-based housing developer and property manager, to resolve allegations that the company violated the California Tenant Protection Act by issuing unlawful rent increases to nearly 20 of its employee tenants and serving unlawful eviction notices to six of those employee tenants.
Similarly, Attorney General Bonta is committed to fighting environmental injustices throughout the state of California and being a voice for frontline communities who are all too often under-resourced and overburdened. Launched in 2018, Attorney General Bonta announced the expansion of the California Department of Justice’s Bureau of Environmental Justice on April 28, 2021. Since its inception, the Bureau of Environmental Justice has reviewed hundreds of warehouse projects across the state and collected best practices and mitigation measures to assist local governments in complying with CEQA. In addition, on April 18, 2022, Attorney General Bonta announced an innovative settlement with the City of Fontana to protect vulnerable communities from pollution associated with industrial development and, on December 6, 2022, he announced an agreement requiring the City of Stockton to prepare and consider an ordinance implementing robust mitigation measures for future warehouse development in the city and impose similarly robust mitigation measures to the proposed Mariposa Industrial Park Project.