By Katherine J. Hart
In Banning Ranch Conservancy v. City of Newport Beach (2012) ___ Cal.App.4th ___, the Court of Appeal, Fourth Appellate District, considered whether the City of Newport Beach’s (City) proposal to develop the Sunset Ridge Park was reviewed in a piecemeal fashion (separate and apart from the adjacent proposed Banning Ranch project), and whether the environmental impacts of the park (e.g., cumulative traffic and biological resources impacts, growth-inducing impacts, habitat impacts) were sufficiently considered and mitigated by the City in its EIR. The court of appeal affirmed the trial court’s judgment and denial of the writ.
In 2006, the City adopted its 2025 General Plan. It also happened to purchase approximately 19 acres of undeveloped land at issue in this case and proposed as Sunset Ridge Park. Banning Ranch is a 400-acre piece of property which abuts the proposed park parcel. While only in the City’s sphere of influence in 2006, the City’s General Plan noted that the Banning Ranch property could be acquired for open space purposes or could be developed for a mixed-used residential village with a majority of the property being preserved as open space.
In early 2009, the City issued a notice of preparation (NOP) to annex the Banning Ranch property and for a proposed development on the Banning Ranch property consisting of up to 1,375 residential units, 75,000 square feet of commercial uses, and 75 overnight resort accommodations. The NOP noted that the City’s proposed Sunset Ridge Park would abut the development and that access to the Banning Ranch site would be provided through the park. Shortly thereafter, the City issued its NOP for the Sunset Ridge Park project. That NOP indicated that the access road for the Banning Ranch project would be constructed on approximately 5 acres of the 19-acre park site, and that the City would be constructing a signal at the intersection of proposed access road and West Coast Highway.
The City issued a draft EIR for its park project in October 2009. The draft EIR analyzed the park’s access road as well as the proposed signal on the West Coast Highway. During the City’s public review period, plaintiffs submitted comments arguing that the City was piecemealing the project because it did not include the impacts of the Banning Ranch project. Plaintiffs also argued that the draft EIR failed to assess the park’s growth-inducing impacts, and impacts on biological resources such as wetlands and the gnatcatcher. The City Council prepared the final EIR for the park project and certified it on March 23, 2010. It also approved an access agreement between it and the Banning Ranch developer at the same meeting.
Plaintiff filed a petition for writ of mandate in April 2010, which the trial court denied in May 2011.
Plaintiff argued that the City’s EIR improperly described the Sunset Ridge Park project to include only the park and the access road. In particular, plaintiff claimed that the project description should have included the Banning Ranch project, and the failure to do so constituted piecemeal review of a project.
The court of appeal looked to the piecemealing test set forth by the California Supreme Court in Laurel Heights Improvement Association v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights) [holding the University wrongly piecemealed the environmental review of the relocation of its pharmacy school]:
We hold that an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. (Id. at p. 396.)
The test is fact-based and thus, “the fact of each case will determine whether and to what extent an EIR must analyze future expansion or other action.” (Ibid.) The court of appeal noted the difficulty in determining when a future expansion or other action becomes “reasonably foreseeable” and proceeded to provide a detailed analysis of various piecemealing cases over the past 30 years. In sum, the court of appeal outlined that there is improper piecemealing when the purpose of the reviewed project is to be the first step toward future development or when the reviewed project legally compels or presumes completion of another action/project. It then contrasted those situations with when two or more projects are properly separately environmentally reviewed – when the projects have different proponents, served different purposes, or can be implemented independently. Ultimately, the court of appeal held that the City’s park project was not improperly piecemealed. Specifically, the court reasoned that while the Banning Ranch project was reasonably foreseeable and could impact the scope and nature of the park project (meeting the first part of the Laurel Heights test), the Banning Ranch project was not a reasonably foreseeable consequence of the City’s park project because the park’s access road was only one small step toward the Banning Ranch project and the park was not being built to induce the Banning Ranch development. The court further reasoned that the park and the Banning Ranch projects had two distinct project proponents, that both projects served different purposes – the park providing recreational opportunities for existing residents and the Banning Ranch development a new neighborhood, that the City would and could build the park with or without the Banning Ranch development, and finally, that the City’s general plan called for the construction of the access road through Banning Ranch regardless of whether the property was slated for open space preservation or development.
Environmental Impacts of Park Project
Cumulative Traffic Impacts
Plaintiff contended the cumulative traffic analysis in the City’s park EIR failed to consider any traffic impacts from the Banning Ranch development. The appellate court disagreed holding that the City’s final EIR outlined that the park access road was consistent with the general plan and that the general plan EIR had assumed worst-case scenarios (including development on the Banning Ranch property) and analyzed the traffic impacts from the proposed access road as well as the intersection with the West Coast Highway.
Plaintiff also asserted that the park EIR improperly concluded the park project would have no growth-inducing impacts. The appellate court again disagreed with plaintiff and held that the EIR’s growth-inducing analysis was sufficient. The court reasoned that the Banning Ranch project was proposed first, thus, the park project could not induce it. The court also noted that the park had an independent purpose of providing recreational facilities to serve existing residents, the park’s access road was previously contemplated by the City’s 2025 general plan, the road’s impact on growth only removed one obstacle to the Banning Ranch project, and the Banning Ranch was undergoing separate environmental review.
Cumulative Biological Impacts
Plaintiff argued that the City’s draft EIR analysis for cumulative biological impacts was inadequate because it failed to mention the Banning Ranch project all together. However, the appellate court held that the City’s final EIR reasonably and practically addressed cumulative impacts on biological resources by indicating that the Banning Ranch project was assumed in the draft EIR’s cumulative biological resources analysis because it (like the park property) was included in the Natural Communities Conservation Plan, which by its very nature and purpose evaluated and mitigated for potential cumulative impacts resulting from multiple projects in the plan area.
Habitat Impacts on the California Gnatcatcher
Plaintiff also alleged that the City failed to assess impacts on the California gnatcatcher and failed to adequately mitigate that impact. But, the appellate court noted that the draft EIR outlined the impacts to the gnatcatcher’s habitat and concluded the impact on the gnatcatcher would be significant. However, the impact was mitigated to a less than significant level with mitigation measures that prohibited the removal of scrub during breeding and nesting season, and setting aside two acres of brush for every one acre lost. The court also rejected plaintiff’s argument that the entire 19-acre site was critical habitat simply because it was designated as such by the US Fish & Wildlife Service. The court found that because the City’s biologist’s determination that there was only 0.68 acres of non-degraded habitat was supported by substantial evidence, and that’s all that is required by CEQA. Additionally, the court held that the mitigation measures were sufficient, stating that “mitigation need not account for every square foot of impacted habitat to be adequate,” and mitigation could be implemented over time.
Consistency with the Coastal Act
The final issue addressed by the court of appeal was whether the EIR properly analyzed the park project’s consistency with the Coastal Act. The plaintiff asserted that the EIR wrongly concluded the park project was consistent with the Act’s protection of environmentally sensitive habitat areas (ESHAs) and wetlands. Again, the appellate court disagreed on both counts. First, the court noted that the EIR properly identified relevant Coastal Act policies, the local coastal plan did not identify the project site as an ESHA, but had the potential to be designated and required mitigation for those areas. That was all that was required. Next, the court looked at whether the wetlands analysis was sufficient. In determining it was, the court noted that the EIR specifically concluded that no wetlands defined by the Act were located on the park site, and that the City’s biological technical report supported the EIR’s conclusions, emphasizing that whether an opposite conclusion would have been equally or more reasonable was irrelevant – a court does not reweigh the evidence to determine which argument is better; it simply looks to see whether the conclusion is supported by substantial evidence in the record.
Like so many other CEQA cases issued in 2012, this one contained numerous CEQA issues. This case is yet another reminder of (1) how fact-based many CEQA issues have become, and (2) the benefits of the standard of review in preparing an EIR: experts can argue all they want, but so long as there is substantial evidence in the record supporting the agency’s impact conclusions, a court will uphold the agency’s determinations.
Katherine J. Hart is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.