Can't say no one saw this coming.
Chargers' Special Counsel Mark Fabiani predicted this was coming, and I'm sure he'll spend all week telling everybody he knew it was coming. That's fine, he needs something true - as opposed to talking points and misrepresentations - to discuss from time-to-time.
I've suggested previously that pursuing an expedited Environmental Impact Report (EIR) was a high-risk strategy by the City of San Diego to comply with the California Environmental Quality Act (CEQA), as it hasn't been successfully done previously, and even if completed, invited legal challenges that the Chargers and NFL wouldn't accept as part of a legitimate stadium plan.
Last night, the law firm Chatten-Brown & Carstens LLP, based in Hermosa Beach, issued a 34 page letter to the City of San Diego. This law firm specializes in environmental law. The full 34 page letter can be read here.
Let's see what their issues are.
Potential Issues with an Expedited EIR
Most of the issues fell under 3 different categories:
1. The Notice of Preparation (NOP) is Inadequate.
This section of the letter makes three claims:
- The NOP doesn't list site alternatives.
- The NOP doesn't properly describe the project, as ancillary development is not defined as part of the project and all previous discussions of the site involved ancillary development.
- The NOP doesn't properly notify all responsible agencies.
Author's Note: I'm aware the City has said they are not planning any additional development for the Qualcomm site. However, it seems clear that pursuing this process means there can't be any additional development for the foreseeable future. If there was the possibility of development only after the new stadium was completed, that development would require a full EIR at the very least and likely would face a legal challenge of its own - the City could justifiably be accused of pulling a "bait and switch" on the public.
This is where the bulk of the concerns are located. There's too many of them to get into in this post, so I'll highlight a few of them below:
- Qualcomm Stadium could be considered a historic resource under CEQA, as the stadium is one of the last multi-purpose stadiums existing in the United States, and has unique design features that no other stadium (multi-purpose or otherwise) has, and it's one of only 3 stadiums ever to host a Super Bowl, World Series, and MLB All-Star Game. Therefore, it could qualify as being worthy of preservation.
- Additional work is necessary to determine how a new stadium might impact the ongoing remediation of the Qualcomm Site by Kinder-Morgan - the seepage from the tank farm northwest of the site. It's possible construction directly over the seepage area could force modifications to the existing extraction and monitoring wells on the site.
- There's little to no description of any potential alternate uses for the Qualcomm site. An EIR is supposed to take potential other options for the site into account, to determine if there's a better potential use of the land. Would it be better as a large city park, as former councilwoman Donna Frye suggested? Would it be better to move the stadium elsewhere, and pursue additional housing or commercial development at the site? Would it be better used as additional land for San Diego State University, as suggested by former Assemblyman Steve Peace?
These concerns are the basis of the letter issued by Chatten-Brown and Carstens. At the end of the letter, written by Carstens, the firm requests that the city re-issue the NOP, taking these potential impacts into consideration.
It should be noted this law firm has a history of opposing exemptions for stadiums:
Our law firm has been involved in efforts to ensure CEQA is properly implemented in projects throughout the state, including in sports stadiums. We helped oppose special exemptions for football stadium proposals in the Cities of Industry and Los Angeles (Farmers Field), and continue to be opposed to public agencies providing special treatment or unique processes for sports stadiums
- Douglas Carstens of Chatten-Brown and Carstens LLP, in a letter to Martha Blake, Senior Planner, City of San Diego 7/20/15
This letter is essentially a warning shot fired across the bow of City leaders, telling them not to proceed with an expedited EIR. To proceed forward would likely prompt a lawsuit.
The timing of this letter is also terrible, coming just days before NFL Vice President Eric Grubman is scheduled to visit San Diego, and only a couple weeks before San Diego gives its presentation to NFL Owners on August 10th.
This is precisely why the Chargers are opposed to the expedited EIR process.They are unwilling to assume the business risks involved with this process, and have instead chosen to pursue the Carson stadium project. Going forward, it's hard to imagine the NFL exposing the Chargers to this risk by forcing them to be part of this particular plan.
Again, unless San Diego does something no one else has ever done, it's likely the expedited EIR will not satisfy all of the requirements of CEQA, and legal challenges will kill the project before it can get started.