January 1 – Valley News – David Ross reports – A court decision that could alter the landscape for developers in San Diego County—by not allowing them to alter the landscape as much as they would like—has been released like a thunderclap, shattering County policy for approving residential developments.
It holds, among many other things, that the County’s director of planning services may not violate the General Plan and approve emission reduction plans at his whim.
Opponents of the Newland Sierra, Warner Ranch and Lilac Hills Ranch projects are encouraged by a court decision they hope could force the County to ramp back approvals of several large developments due to the inadequacy of its Climate Action Plan, which among several other things the court found inadequate, relies on developers—and the County—claiming they have reduced emissions of green house gases, “in exchange for the purchase of carbon offset credits applicable to another location in California, the United States, or the world” in the words of the judge.
On Wednesday, December 26 Superior Court Judge Timothy Taylor issued a final ruling on requests for an injunction in the case of Sierra Club v. County of San Diego, finding that the county’s Climate Action Plan (CAP) was invalid. Taylor ordered the County to stop using Mitigation Measure M-GHG-1, which requires General Plan Amendments to reduce emissions to achieve green house gas emission targets by either “no net increase” or “net zero.” It’s not the goals of M-GHG-1 the judge takes issue with, but the way it achieves them.
The Court held that the CAP failed to comply with the County’s prior commitments in its General Plan and achieve state goals for reducing green house gas emissions (“GHGs”) that allegedly cause climate change.
Taylor invalidated the CAP because it relies in part on offsetting green house gas emissions from developments by relying on offset credits purchased outside the County and State of California.
The judge states: “The County’s General Plan in its 2011 format stated that the CAP should achieve GHG [Green House Gases] emissions from the ‘unincorporated County’ and from ‘County operations,’ and yet the 2018 CAP allows essentially unlimited increases in GHG within the County. In this respect, applicants proposing projects in the County can meet their GHG mitigation requirements by purchasing offsets from anywhere in the world, in the discretion of the Director of a County department.”
The judge ruled “The petitions are granted, and the County is ordered to set aside its February 14, 2018 approval of the 2018 CAP and the Supplemental EIR (SEIR) on which the 2018 CAP is based.”
The judge peppered his ruling with sarcastic comments about SD County’s ability to follow the law when it wants to, concluding that it didn’t want to in this instance. He writes, “The court knows full well that, when it decides to do so, the County knows how to prepare a lawful and valid EIR . . . In finding that the County did not do so when it approved the 2018 CAP, the court does not write on a clean slate. The County’s efforts to comply with the statewide GHG/global warming requirements summarized in part IIA of the Court of Appeal’s September 28, 2018 opinion in Consolidated Case Nos. D072406 and D072433 have given rise to several decisions by the court, and two by the Court of Appeal. Virtually every decision has found the County’s efforts wanting; this is particularly true in connection with the County’s penchant for proceeding in the absence of substantial evidence.”
In the section “The County Persists in Failing to Carry Out its Legal Obligations With Regard to Greenhouse Gas Reduction” the judge provides a long list of the County’s efforts and observes: “Virtually every decision has found the County’s efforts wanting; this is particularly true in connection with the County’s penchant for proceeding in the absence of substantial evidence and without adequate analysis” and adds, “Although it does some things well, the 2018 SEIR fails as an informational document and as a document of public accountability in material ways, and the court finds the County has once again failed to proceed according to CEQA.” CEQA is the California Environmental Quality Act.
Continuing in his methodical take-down of the County’s logic: “The Court noted the County had failed to consider the use of the CAP and the Thresholds ‘as a plan-level program,’. . . that the Sierra Club had proposed ‘feasible mitigation measures,’ that the County ‘rejected these mitigation measures without substantial evidence for doing so,’ and that the CAP did ‘not fulfill the County’s commitment under CEQA and Mitigation Measure CC-1.2, to provide detailed deadlines and enforceable measures to ensure GHG emissions will be reduced.’ ”
The judge added, “More recently, in Golden Door, the Court of Appeal affirmed this court and held the 2016 Guidance Document violated CEQA and that the threshold of significance was not supported by substantial evidence.”
In taking apart the County’s logic for allowing local emissions to be mitigated by reducing omissions in another locale, the judge noted that the County General Plan “incorporated a fundamental, mandatory and clear policy into both the 2011 and the 2018 iterations of the General Plan: that GHG emission reductions be local. In 2011, the County explicitly used the words ‘local GHG emissions.’ ” To be blunt, the County was violating its own General Plan.
The judge writes, “Thus, the County’s General Plan has consistently, for 7 years, stated that it required in-County GHG reductions. However, M-GHG-1, which is expressly incorporated into the 2018 CAP (see e.g., AR 1340:58761 that states the 2018 CAP expressly incorporates M-GHG-1) allows essentially unlimited increases in GHG within the County.”
Not only does the County violate the General Plan, says the judge, it allows Director of Planning Services Mark Wardlaw to violate it at his discretion: “all that is required is the ‘satisfaction’ of the Planning Director.’ No standards or criteria are stated for achieving the ‘satisfaction.’ ”
The practical effect of this ruling could be that no large developments are approved in San Diego County that rely on cheap converted farmland for maximized profit, such as Lilac Hills Ranch or Newland Sierra. In other words, no developments not already called for in the General Plan that was approved in 2011. The result may be that developers will cease to view the General Plan as a mere impediment to largescale projects that can be overcome by greasing the regulatory and political skids with large donations—but instead, one with big, sharp teeth.
The Sierra Club and other environmental groups, include co-petitioners the Center for Biological Diversity, Cleveland National Forest Foundation, Climate Action Campaign, Endangered Habitats League, Environmental Center of San Diego and Preserve Wild Santee, have suggested multi-story housing developments could be built in deserted shopping malls near places where people work.
Judge Taylor ordered the County “to set aside its February 14, 2018 approval of the CAP and the SEIR. A permanent injunction is also issued essentially in accordance with the preliminary injunction granted on September 14, 2018 (ROA 321). The injunction does not prohibit all development projects in the County, only those projects reliant on the use of the program set forth in M-GHG-1. While the injunction is in place, the County may consider any project that does not depend on the use of the M-GHG-1 program.”
This does not invalidate approval of Newland Sierra, Valiano, or Harmony Grove Village South , which relied on similar out-of-area offsets, but places them in jeopardy as Sierra Club, the Golden Door et al have launched a legal challenge on those grounds seeking to invalidate the Board of Supervisors’ General Plan Amendment approval for the projects.
On Friday this courtroom victory encouraged the Sierra Club and its allies to call on the County to comply with state law.
Sierra Club Attorney Josh Chatten-Brown, of the law firm Chatten-Brown and Carstens LLP, commented, “We are extremely grateful for the Court’s comprehensive and well-reasoned decision. Unfortunately, despite losing in Court at every step of the way since 2012, the County has failed to provide the people of San Diego the type of effective and enforceable climate action plan it committed to, and which is sorely needed. As shown in the most recent climate change report from the UN’s International Panel on Climate Change, local governments play a critical role in addressing climate change and our planet will be in dire straits if we don’t dramatically reduce greenhouse gases. Increases in violent storms, flooding, drought, wildfires and extreme temperatures will destabilize countries and threaten life as we know it. Evidence of the adverse health effects of extreme temperatures is just emerging.”
Chatten-Brown concluded: “We hope that the County will finally accept this responsibility and work with the Sierra Club and other stakeholders to promptly prepare a truly effective and enforceable climate action plan.”
Mark Jackson, a leader of the coalition opposing Lilac Hills Ranch, hailed the judge’s action: “This is really good news! The Court found that the County Climate Action Plan is invalid. The top level flaw is that increased greenhouse gases generated by sprawl developments with commuters driving cars can’t be offset by loosely regulated or unregulated offset credits purchased outside the County and State of California.”
George Courser, chairman of the Conservation Committee Sierra Club San Diego, commented, “Today, the people of San Diego County and the environment were the big winners in the Sierra Club’s successful lawsuit against the County of San Diego for its Climate Action Plan (‘CAP’).” He added, “This decision was the latest in a series of defeats by the County and victories for the Sierra Club in challenges to the County’s CAP. . .”
The Pala Band has vehemently opposed the Warner Ranch project proposed near Pala Casino. Robert Smith, chairman of the band, commented, “The Pala Band applauds the decision. It is important that the Court held the County accountable to sound policies that protect the community where a project impacts occur. Allowing leapfrog development under the premise that mitigation may occur in some distant area does not satisfy the intent of CEQA or the County’s obligation to its San Diego constituencies.”
Besides the above-mentioned criticisms, Taylor also ruled that the County violated CEQA by allowing out-of-County offsets without sufficient analysis. And that the County’s EIR was inadequate for several other reasons. Including failing to analyze how facilitating developments in rural lands far from transit and often in high fire hazard zones could impact achievement of SANDAG’s regional plans for so-called smart growth.
Judge Taylor ruling also stated, “the County failed to adequately respond to comments, thereby violating CEQA. Comments are an integral part of the EIR and should be relied upon by the decisionmakers.” He included this example: “Sempra commented that only 13% of CAP GHG reductions would come from a transportation sector that emits 45% of County GHGs and advocated decreasing VMT through the County’s comprehensive planning powers. AR 16:15041-42. The County’s ‘response’ was that it will explore increasing the use of electric vehicles, which was nonresponsive.”
The judge continues, “Response 9 admits that transportation sector reductions are proportionally low, but does not explain why transportation reductions were not included in the alternatives analysis . . . Master Responses 2 and 5 are likewise nonresponsive and rely on data that does not include VMT generated by GPAs under consideration and the ones that are likely to be submitted for County review. These are not adequate responses under CEQA.”
Newland Sierra contends the ruling does not apply to it. Rita Brandin, vice president, Newland Communities, commented, “Our greenhouse gas analysis and mitigation measures were established before the county’s CAP (Climate Action Plan) ever came out.” She added, “We don’t rely on or use the county’s climate action plan. We have our own mitigation, and see no impediment to moving forward with our project.”
We asked for a comment from Lilac Hills Ranch, but an automatic reply from Project Manager Jon Rilling indicated his offices are closed until January 2.
Acknowledging Newland Sierra’s position, Jackson commented, “But, the Project offers mitigation that is sooooo similar to the County’s CAP — buying offshore carbon offset credits for cheap.” He added, “Lilac Hills Ranch took a similar approach — a ‘spin job’ to offer the essence of the County Climate Action Plan but call it something different to try and avoid getting stopped by a Court Order.”
Jackson concluded, “Boiling it down to what it means to Lilac Hills Ranch requires a legal interpretation of the ruling, a guess at how County elected officials and staff will implement the ruling, and a guess at whether or not and when the County or a coalition of Development interests will appeal the Court’s decision.”
Jackson said his group will consult with attorneys in January on how this ruling could relate to Lilac Hills Ranch: “Boiling it down to what it means to Lilac Hills Ranch requires a legal interpretation of the ruling, a guess at how County elected officials and staff will implement the ruling, and a guess at whether or not and when the County or a coalition of Development interests will appeal the Court’s decision.”
He added, “Also in early January, we will contact the County staff and see how the County plans to deal with Lilac Hills Ranch.”
One local observer and activist in many such cases over the years, Patsy Fritz of Pauma Valley commented, “This means that the County cannot approve any GPA [General Plan Amendment] that relies on its defective Climate Action Plan (“CAP”), which would have allowed developers to purchase offsite mitigation for greenhouse gas production – INTERNATIONAL offsite mitigation to ‘the satisfaction of the Department of Planning and Development Services’ and at the lowest cost to the developer … while we would get all the smog, air pollution and GHG (greenhouse gases) locally that these long-haul ‘commuter communities would produce — Lilac Hills Ranch, Newland Sierra (‘Merriam Mountain’ in the old days), Warner Ranch, etc. An overwhelming victory! The County may use your tax dollars to appeal — but this shoots down every one of their arguments.”
Read the full article here.