Pesticides Discovered in the Soil at Site of Future San Diego Homes
An Excerpt from Everyday Heroes

By: Kevin Johnson and Jared Hanson

One of the more unique and most important features of CEQA is its ability to require project applicants and lead agencies to take a meaningful second look at the methods used by consultants in evaluating possible environmental impacts. In the case of a proposed forty unit subdivision on land used for decades for greenhouse operations, the future residents ended up with a big win from a public health standpoint.

The City of Encinitas, in North County San Diego, is called the “Flower Capital of the World” based on a rich history of greenhouse and field agriculture. When a respected flower grower decided to sell his land for development the buyer/builder faced a friendly reception at City Hall. The initial studies on the project resulted in a staff recommendation that the applicant proceed by way of a Negative Declaration.

The project site was immediately west of and adjacent to Quail Botanical Gardens, a twenty-seven acre public park known for its rare and endangered plant species. The park is visited annually by approximately 120,000 visitors from around the U.S. and the world.

When initially approached about the proposed subdivision, representatives of the Quail Botanical Gardens Foundation requested that consideration be given to a number of potential impacts, including the spectacular ocean views from the Gardens. The Foundation even offered to take any excess dirt from the planned cut and fill operation on the property.

As the project then proceeded through the Negative Declaration process a number of concerns came into focus, including view and noise impacts, impacts on the park’s indigenous wildlife, and concerns that the dirt from the property might be contaminated.

A close review of the limited soil study revealed that the soil samples were not taken in a random manner. One area, where chemicals like DDT and Toxaphene were mixed for decades, was not even sampled. It was noted in public testimony that greenhouses in particular had historically used large quantities of chemicals now known to be toxic to the environment and public health.

The applicant and its soils consultant insisted to the City Council that the sampling methodology was trustworthy. In spite of a variety of impacts that the Foundation and the public felt were not being adequately mitigated, and in spite of calls for a full Environmental Impact Report (EIR), the Council approved the forty unit subdivision.

The Foundation and concerned community members took the City to court. In 1994, the Fourth Appellate District Court of Appeal reversed the Superior Court’s decision and ordered the City to perform a full EIR. (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal. App. 4th 1597.)

Subsequent, random soil testing resulted in the finding that the levels of toxic chemicals in the ground constituted unacceptable risks to human health. The applicant was directed by the City to remove the contaminated soils before it began construction of single family homes.

Today, thanks to CEQA, forty families live in the subdivision next to Quail Botanical Gardens where they can garden, dig, and play in yards free from silent exposure to DDT and other toxic compounds.

Kevin K. Johnson and Jared P. Hanson are attorneys at Johnson & Hanson, LLP. The firm represented Quail Botanical Gardens Foundation, Inc. in this case.