For Immediate Release, October 27, 2008
Adam Keats, Center for Biological Diversity, (415) 436-3682 x304
Dr. Hugh Bialecki, Save Our Forest Association, (909) 336-7504
Drew Feldmann, San Bernardino Valley Audubon Society, (909) 319-6936
Steve Farrell, Sierra Club Mountains Group, (661) 449-2867
Douglas Carstens, Chatten-Brown and Carstens, (310) 314-8040
Appeal Court Invalidates Controversial Mountain Subdivision, Affirms
County Violated General Plan, State Environmental Law, Fire Safety
RIVERSIDE, Calif.— The state’s 4th District Appeals Court today affirmed a lower court decision that the County of San Bernardino violated state law in approving a controversial Lake Arrowhead subdivision in November 2005.
Three appellate justices upheld Superior Court Judge John P. Wade’s ruling that the County General Plan was “unambiguous” in requiring that an evacuation route be completed before approval could be granted.
The appellate court further ruled that the County violated its own development code as well as state environmental law by failing to identify an adequate water source for the project. The county also failed to do an accurate analysis of biological impacts.
“The decision is a victory for grassroots democracy, public participation and the need for more responsible planning in our local fire-prone mountains,” said Dr. Hugh Bialecki, president of the Save Our Forest Association, speaking for mountain residents and conservation organizations pleased with the ruling.
“The public has every right to expect County officials to ensure basic evacuation capacity in mountain communities,” said Steve Farrell, vice-chair of the Sierra Club Mountains Group.
“After three huge fires in the mountains in four years, hopefully the Supervisors will now recognize that public safety must take precedence over development,” said Drew Feldmann, president of the San Bernardino Valley Audubon Society.
The subdivision project — known as Blue Ridge Estates, or the Hawarden Development — was planned for a steep slope near Cedar Glen, an area considered hazardous for wildfire that was largely burned by the catastrophic Old Fire of 2003.
“Fires are a fact of life in southern California forests, but overdevelopment in highly fire-prone areas, such as the Hawarden site, impedes the natural cycles and greatly compounds the problem,” said Adam Keats, attorney and director of the Center for Biological Diversity’s Urban Wildlands Program.
The Hawarden Project was the first significant mountain development proposal to follow after the devastating Old Fire. By ignoring key public safety and fire protection guidelines as well as critical open-space policies and water shortages, the project aroused intense controversy.
“The public fully expected the Board of Supervisors to be particularly strict in implementing vital safety and open-space policies, after such an alarming wildfire where 80,000 people were evacuated (that’s the entire mountain population),” Bialecki said. “Instead, we were shocked by the stubborn disregard for sensible planning.”
An editorial in the November 26, 2005 issue of the San Bernardino Sun, the local newspaper, echoed the public’s dismay by concluding that: “It is decisions like these, that seem to ignore, and even thumb their noses at, such common-sense objections by residents, that make people question whether their elected officials are really working for them.”
An August 30, 2005 editorial in another area newspaper, the Riverside Press-Enterprise, shared the general astonishment that the project was approved “with no idea where the houses will get their water,” stating: “The county should at least require the developers to specify their water sources before giving builders the green light.”
Representatives of mountain organizations were greatly disappointed in 2005 that former Board Chairman Bill Postmus failed to conduct a fair administrative hearing after charging taxpayers $1,750 and then not allowing reasonable time for key points to be explained.
Encouragement For the Future
“The appellate court decision is a strong endorsement for responsible planning taking precedent over cutting corners for developers,” Bialecki said. “Petitioners in this case had provided the county with extensive detailed testimony, written and oral, clearly pointing out numerous significant flaws of the development proposal.”
“Ironically,” he added, “many of these same points were noted by professional planners and agency personnel at earlier stages, but became reversed at the insistence of the developer. One example was the fire department downgrading the fire hazard level from ‘extreme’ as mandated for steep wildland slopes, to ‘level two’ as intended for flat land, despite the on-site discrepancy, due to developer lobbying.”
“Ideally this court ruling will reinforce the roles of professional planners and especially of informed citizens as essential participants in the decision-making process,” Feldmann said.
The appellate court vigorously upheld the importance of a proper Environmental Impact Report, or EIR, as part of the California Environmental Quality Act. In this case, a careless EIR was overturned due to a notable mathematical error in the developer’s favor, along with fallacious assumptions and faulty analysis. The EIR had deceptively discounted critical wildlife habitat and altogether circumvented the serious lack of a reliable water supply.
“Although we pointed out these problems during the comments phase, the EIR consultants and county politicians basically ignored us and apparently presumed that ordinary citizens wouldn’t have the time, money or endurance to challenge these transgressions,” Feldmann said. “Hopefully, this decision will help encourage them to be more conscientious in the future.”
“The Court fully recognized the vital role that water planning must play in land-use decisions,” said Douglas Carstens, an attorney with the environmental law firm Chatten-Brown and Carstens, which represented the petitioners . “Gone are the days when cities and counties could approve development just based on the assumption that adequate water supplies would somehow materialize in the future.”
"This ruling underscores the importance of overall proper planning for fire safety,” Carstens said. “The County General Plan has numerous interlocking policies that work together to achieve greater safety for residents and firefighters by restricting subdivisions in fire-prone wildland/urban intermix zones and ensuring there is adequate emergency access. Open-space policies for wildlife corridors and critical habitat contribute to lessening urban density in national forest wildlands. The County must respect all these fundamental, mandatory policies. Indeed, in light of recent fires, the County would be well advised to greatly strengthen its enforcement.”
The case is Center for Biological Diversity et al. v. County of San Bernardino, SCVSS 133424.
Case number: E042316, web link: http://www.courtinfo.ca.gov/opinions/nonpub.htm