By Daniel S. Cucchi

Banning Ranch Conservancy v. City of Newport Beach
(2015) 236 Cal.App.4th 1341 (“Banning Ranch II”).

In the latest installment of the Banning Ranch saga, we are provided another great example of the importance of carefully chosen words and phrases in a jurisdiction’s general plan policies and action statements.  In Banning Ranch II (2015), the City of Newport Beach approved a residential and commercial project located on one quarter of the 400-acre, largely undeveloped coastal property known as Banning Ranch. As the city processed the application, staff engaged with the Coastal Commission (“Commission”) through: (1) notification that the city was processing the project; (2) meetings to discuss Commission staff’s concerns; and (3) responding to the Commission’s submitted comments on the DEIR. Not satisfied with the project as proposed, the Commission commented that the city was required to work with the Commission to decide the appropriate use of habitats prior to project approval. The city responded by simply making it clear in the EIR that the project would not go forward without a coastal development permit from the Commission. The City then proceeded to approve the project, as is. Banning Ranch Conservancy (“Petitioners”) filed suit, arguing that: (1) the City violated its own general plan by failing to adequately coordinate with the Commission; and (2) the city’s EIR failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The trial court found the city violated its general plan, but upheld the adequacy of its EIR. Both parties appealed.

The appellate court first considered what level of “coordination” with the Commission was the city required to meet under its general plan. The relevant policies required the city to “work with appropriate state and federal agencies to identify wetlands and habitats.”  The court held that this language allowed for an ongoing process and did not require the “work” to be completed before project approval.  It compared the situation to California Native Plant Society v. City of Ranch Cordova (2009) 172 Cal.App.4th 603, which distinguished between the effect of the terms “consult” and “coordinate” in Rancho Cordova’s general plan on its duty to engage with other responsible agencies when processing projects, each requiring a lesser or greater level of engagement, respectively. It reasoned that “work with” was more akin to “consult,” since the term was too vague to specify any particular minimum level of coordination with the Commission. Therefore, the city was free to choose not to follow the Commission’s recommendations prior to approving the project. 

The court also upheld the adequacy of the city’s EIR. The petitioners argued that enough data was available for the city to anticipate likely ESHAs and to, consequently, evaluate whether they required redesign of the project to reduce potential impacts. The Coastal Commission had not yet determined whether ESHAs were present at the site and the site was explicitly excluded from the City’s coastal land use plan. The court disagreed, siding with the city’s view that providing all of the necessary environmental data and studies for the site, though short of calling out likely ESHAs, was sufficient. It reasoned that because identifying ESHAs is a legal conclusion which falls within the duty of the Commission, the city, having provided the underlying data, had no duty to take that final step to “prognosticate as to the likelihood of ESHA determinations and coastal development approval.” 

Even though southern California loves its sequels, I suspect the City of Newport Beach has no desire for this to turn into a trilogy…

Daniel S. Cucchi is an Associate 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.