SACRAMENTO - A ballot initiative to fund a $2 billion bond for statewide remediation of lead paint, mold, asbestos, radon, pests, and other environmental hazards in homes, schools and senior facilities will protect home values and alleviate a state housing crisis, supporters believe.
"The Healthy Homes and School Act of 2018," being advanced by paint companies Sherwin Williams, Con Agra and NL Industries, also would nullify judgment in a long and hard-fought legal battle they've been in with 10 counties and municipalities since 2000, and block future public nuisance type lawsuits going forward.
The proposal comes amidst the companies' appeal of a recent court decision that holds them responsible for abating lead in homes in those 10 jurisdictions at a cost of approximately $600 million. Each of the companies have put in $2 million to the ballot initiative that could go to voters in the November general election if at least 365,880 signatures are gathered by May 4.
Spokesperson for the initiative Tiffany Moffatt called the proposal - which would deal with a wide range of dangers across the state rather than in limited jurisdictions - a "holistic and comprehensive approach to cleaning up existing homes in California by creating a statewide solution to address a variety of hazards in homes, such as mold, lead, asbestos, pests and other threats."
The lead paint public nuisance decision being appealed by the paint companies came out of the California Sixth District Appellate Court on Nov. 14, upholding a lower court decision that ordered the companies to fund the investigation and removal of lead paint from homes in seven of California’s most heavily populated counties - Alameda, Los Angeles, Monterey, San Mateo, Santa Clara, Solano and Ventura, and three of its largest cities - Oakland, San Diego and San Francisco.
Following a protracted bench trial in 2013, Santa Clara Superior Court Judge James Kleinberg had ruled that the three companies were liable for the lead paint in homes built prior to 1980 at a cost of $1.15 billion. But, the Sixth Appellate District in November held that they were only liable for those homes built pre-1950 at a cost of $600 million.
However, the appellate court did not limit the definition of nuisance, which still applies to all pre-1981 homes.
Moffatt said the Health Homes initiative would protect homeowners from "efforts to impose new housing standards on owners of pre-1980 homes and apartments and provides rehabilitation for old housing."
The measure would set aside $1.5 billion for homes, $400 million for schools and $100 million for senior living facilities.
Moffatt said it addresses a state housing crisis by increasing the number of "safe and affordable" homes that otherwise would be unlivable.
According to the ballot proposal, competition for low income housing in the state is "extreme," with only 664,000 affordable rentals available for 2.2 million households in need.
It also says that the California Department of Housing and Community Development has found that "an essential component of any response to California's housing crisis must be to rehabilitate existing homes that are either uninhabitable or pose potential health risks to their residents due to structural or environmental hazards."
The proposal takes aim at trial attorneys who have pursued the lead paint litigation on behalf of the counties and municipalities.
"Despite California's existing regulatory framework which has prevented any public nuisance, trial attorneys have pursued public nuisance actions which could subject responsible homeowners to potential civil liability and criminal penalties for a public nuisance, even if they properly maintain their home," the proposal states.
The Healthy Homes initiative has not set very well with attorneys who have represented plaintiffs, including lead trial attorney Joe Cotchett who told the Sacramento Bee: “They think they can stop me with this crazy initiative. It is an end-run and it’s not going to happen.”
Critics also say it it not fair to shift financial responsibility for remediation to taxpayers.
Assemblywoman Cristina Garcia (D-Bell Gardens) has indicated she will try to block the ballot initiative by introducing legislation, according to a report in the Los Angeles Times.
Noting that it's "difficult to stop measures from going on the ballot, as courts almost always allow them to appear if enough signatures are collected," the Los Angeles Times article says Garcia has floated an option of a constitutional amendment that would reject ballot initiatives that seek to overturn court judgments.
In fighting the counties' and cities' lawsuit through the years, defendants have pointed out that California is the only state where lead paint public nuisance litigation is still ongoing. Cases with similar claims in seven other states - Ohio, Rhode Island, Missouri, New Jersey, Illinois, New York and Wisconsin - have already been rejected either at the state supreme court level or have been voluntarily dismissed.
Regarding the companies' appeal at the California Supreme Court, the plaintiffs answered the paint companies' petitions for review on Jan. 19. The companies are due to file a reply on Jan. 29.
The high court may order review within 60 days after the last petition is filed on Feb. 20 - but it could also allow one or more extensions, up to 90 days after the last petition on March 22.