Litigation seeks to block Merge 56, which some called a new model for suburban development


A labor union has filed an environmental lawsuit seeking to block construction of a 72-acre project near Rancho Peñasquitos that many consider a new model for suburban development in San Diego.

Merge 56 aims to be a densely built, walkable community with a sense of place, common in more urban areas. It would include 242 residential units, six-story office buildings, retail shops, a hotel and a movie theater.

The lawsuit is likely to delay construction of the project by creating uncertainty and jeopardizing some of the financing, developer Gary Levitt said by phone on Aug. 7.

The union that filed the lawsuit, Local 89 of the Laborers International Union of North America, has requested Levitt agree to a project labor agreement for Merge 56, which generally imposes terms that are labor-friendly on the builder.

Critics complain that labor unions seeking such union-friendly deals are increasingly using environmental litigation to gain leverage over resistant developers.

Whatever the motivation, the lawsuit raises several significant concerns about Merge 56’s potential effects on nearby wildlife, greenhouse gas emissions, traffic congestion and cancer risk for residents in the area.

Merge 56, which the City Council unanimously approved in May, would be built on mostly vacant land immediately adjacent to the biologically protected Del Mar Mesa Preserve, which includes a U.S. Fish and Wildlife refuge.

A comprehensive environmental impact analysis by the city determined that all environmental impacts could be mitigated to levels below significance.

But the lawsuit says that analysis is severely flawed in several ways, noting that Merge 56 would be built on “the last big stand of old growth chaparral left in coastal Southern California” and a large cluster of vernal pools.

“The biological analysis is incomplete, inadequate and not supported by substantial evidence,” says the lawsuit, which was filed last month by Local 89 attorney Rebecca Davis.

The 72-acre site is south of state Route 56, east of Interstate 5 and west of Interstate 15.

On health issues, the lawsuit says the environmental impact report fails to include a “quantified health risk assessment” of the project.

“The EIR fails to disclose the serious cancer risks to nearby residential communities and an elementary school created by diesel engine exhaust emitted during the construction phase of the project,” the lawsuit says.

The litigation also attacks the traffic analysis.

“The EIR fails to describe the project in a manner sufficient to allow for an accurate assessment of the project’s traffic impacts, as well as air quality impacts that are based on the traffic analysis,” the suit says.

Finally, the lawsuit says the city and the developer should have considered shrinking the project to reduce its environmental impacts.

Levitt said agreeing to a project labor agreement in North County, where such agreements are rare, would put him at an unfair disadvantage compared to other developers. He said the state Legislature should prohibit the disingenuous use of environmental law by labor unions who are simply seeking concessions from developers.

Community leaders have embraced the project, which is a re-design of a development approved for the site in 2004 that would have followed an older model of suburban development: a big box shopping center surrounded by a sizable parking lot with apartment buildings and a self-storage facility nearby.

Thom Clark, chairman of the Rancho Peñasquitos Community Planning Group, said by phone on Aug. 7 that he was disappointed to hear of the lawsuit.

"The community learned what the design was all about and they embraced it at the end," Clark said. "Everybody that came out to the meetings was supportive of the project."

Clark said he agreed that Merge 56 was a new model for suburban development, praising the project’s sense of scale and variety of uses.

"I think it's a very livable, walkable environment that they've proposed," he said.

Hilary Nemchik, a spokeswoman for City Attorney Mara Elliott, declined to comment on the litigation other than saying, “We will review the complaint and respond through the courts.”

--David Garrick is a reporter for The San Diego Union-Tribune