By Amanda Frye and Mark Gutglueck
The rough sledding the Lewis Group of Companies has experienced with its 3,600-dwelling unit Harmony project at the extreme end of Highland culminated late last month with two rulings by Superior Court Judge Donald Alvarez which upheld crucial elements of the plaintiffs’ arguments in two suits brought against the company over the development. Those rulings were revealed in letters received by the parties earlier this week.
While the Center for Biological Diversity, the Greenspot Residents Association and the San Bernardino Valley Audubon Society did not prevail on all of the issues they raised in one lawsuit and the Sierra Club, Crafton Hills Open Space Conservancy, Tri-County Conservation League and Friends of Riverside Hills likewise hit and missed with regard to its causes of action and allegations in another suit, Alvarez made key findings with regard to the inadequacy of the environmental impact report that was completed in conjunction with the project application. The practical effect of Alvarez’s ruling is that Lewis will need to engage in, at the least, a substantial redrafting of the environmental impact report for the project. Based on those environmental issues, there is a fair chance the Upland-based corporation will need to make a complete re-presentation of the plans for the development, and alter the plan both from the standpoint of the intensity of development and important elements of the infrastructure to accompany it, if it does not abandon the project altogether.
Dubbed Harmony by Lewis, the project was proposed for land at the confluence of Mill Creek and the Santa Ana River, directly adjacent to San Bernardino National Forest lands. Lewis intended for it to cover 1,657 acres acquired by the Orange County Flood Control District in the Seven Oaks Dam project area with 3,632 houses and other improvements and amenities. The project area is currently host to numerous endangered species, rare habitats, wetlands and crucial wildlife connectivity corridors.
In its presentations, Lewis said the 3,662 homes would confine themselves to 658 acres within the total project area, and that a neighborhood commercial center would be contained on another six acres, and an additional 16 acres would be set aside for neighborhood commercial uses and community public facilities including the construction of a single elementary school and a fire station on a 1.5-acre site, which would come after 1,000 homes are built. Other infrastructure to accommodate the development would consist of water reservoirs, a water treatment facility, a sewage treatment plant, and a pump station.
Harmony was proposed to be developed in the rustic area straddling the extreme extension of Highland into Mentone along the foothills at the base of the San Bernardino Mountains near the headwaters of the Santa Ana River. The proposed development site is far removed from Highland’s city services and is vulnerable to episodic fire, catastrophic flooding, and the San Andreas Fault, project critics contend. The suit brought by the Center for Biological Diversity, San Bernardino Valley Audubon Society and the Greenspot Residents Association maintains that the environmental review for the project completely ignored that a bridge over Mill Creek – which would be required to access the development – will permanently alter that free-flowing creek. The project will also harm rare and protected species, including critical habitat for endangered San Bernardino kangaroo rats and the federally-protected Santa Ana sucker fish as well as habitat for endangered southwestern willow flycatchers, the plaintiffs, represented by the law firm Shute, Mihaly and Weinberger, asserted in the lawsuit.
A draft environmental impact report was circulated among nearby property owners between March 21, 2014 and May 5, 2014 and after 50 comments from the public were received it was amended and recirculated once more with changes to the air quality, biological resources and traffic issues. A final environmental impact report was completed and made available to the public on March 17, 2016.
In 2016, Highland city staff, led by city manager Joseph Hughes, public works director Ernest Wong, community development director Lawrence Mainez and assistant community development director Kim Stater, generated a report, essentially justifying staff’s collective recommendation to the council to approve the project. In that response, at least some of the opponents’ points were addressed.
While the staff report conceded that “In some instances, mitigation measures for the project could not reduce the level of impact to less than significant [in the areas of] air quality, transportation and traffic,” the city council had the legal authority “to determine whether the benefits of the project outweigh significant environmental effects” and that the council was entitled through its authority to “adopt a statement of overriding considerations stating the reasons supporting the approval notwithstanding the significant environmental effects.”
On August 11, 2016 the Highland City Council held a meeting that was entirely devoted to considering the Harmony project. Ultimately, the council adopted the statement of overriding considerations, adopted the environmental impact report, amendments to the general plan relating to the project, approved the zone change, adopted the specific plan, approved the development agreement, and approved the subdivision of the property.
The Greenspot Residents Association is an unincorporated entity comprised of concerned citizens within the area historically known as “Greenspot” that covers much of the Mentone, Redlands, and Mill Creek Canyon communities. Dedicated to the historic, cultural, ecological and agricultural preservation of the area, the association was formed and is managed exclusively by local residents. Its members were so outraged by the city’s action with regard to the Harmony project that they undertook a signature gathering effort among city residents to endorse a petition to subject the project to citizen review. While that was ongoing, the association joined with Center for Biological Diversity and the San Bernardino Valley Audubon Society in filing suit over the project.
In the same timeframe, the Sierra Club, Crafton Hills Open Space Conservancy, Tri-County Conservation League and Friends of Riverside Hills also filed suit.
Initially, the city council and city staff, assuming the procedural hoops the project opponents faced to be too daunting to overcome, aligned themselves with Lewis. But as the intensity of the effort against the project manifested and the numbers of city residents with misgivings over the development became evident, city officials were chastened, at least somewhat. The city council, calculating that in two years the anti-Harmony fervor might attenuate, consented to putting the Harmony master planned community before voters in the November 2018 election. Those politicians, who were bankrolled in large measure by money put up by the Lewis company and its employees, were hopeful that Lewis could mount a “public information” campaign of its own to persuade the city’s residents to support the project during that two-year period.
Over that span, the lawsuits, which alleged that the Lewis Operating Company’s environmental impact report for the project was “inadequate” and had engaged in faulty analysis of both certain elements and the totality of the project, proceeded.
On June 26, Judge Alvarez finalized and signed his rulings, finding merit in some, though not all, of what the plaintiffs in both suits alleged.
In particular, Alvarez ruled in favor of the plaintiffs in the Center for Biological Diversity/Greenspot Residents Association/Audubon Society suit by determining the city and developer improperly defined the project, and that the environmental impact report was flawed in that it failed to properly analyze or mitigate downstream flooding impacts as well as the potentially deleterious impacts to regional water resources and wildlife habitat.
Another finding favorable to the plaintiffs was that the environmental impact report was flawed by virtue of having left out of the equation the volume of fill required to elevate that portion of the project in a flood zone to a level high enough that the foundations of the structures to be built would be at least one foot above the level of maximum flooding statistically likely to occur every 100 years, together with having failed to reckon the impacts downstream of the grading at the south end of the project. Alvarez indicated this phase of the planning suffered because it had been carried out prematurely, that is, prior to the Federal Emergency Management Agency having done a hydrological analysis of the project area.
In that part of his ruling siding with the city and the developer, Alvarez found the suits’ contentions that the environmental impact report’s assertion that the greenhouse gas emissions were less than significant were inadequately supported by data to be unpersuasive. Alvarez said the environmental impact report relied upon proper metrics and methods for deriving data to indicate the project was in compliance with state emission regulations.
Alvarez ruled in the Sierra Club/Crafton Hills Open Space Conservancy/Tri-County Conservation League/Friends of Riverside Hills suit that the project’s environmental review violated the California Environmental Quality Act by not adequately analyzing water resources, wastewater and energy impacts from the development.
A logical interpretation of Alvarez’s ruling is that it invalidates the project approval and introduces a requirement that if Lewis is to resubmit an application for the project that an adequate environmental impact report be carried out. Alvarez, however, did not include a document outlining the remedies to the flaws contained in the environmental impact report. It remains possible, though unlikely, that Alvarez will let the project approval stand, pursuant to a recertification of the environmental impact report in which only the outlined flaws are addressed and technically rehabilitated. Presumably, however, Alvarez will call for a more comprehensive approach that will require that the city carry out a deliberative process over the project in which the public and the city’s elected leadership will consider the project and an environmental impact report that offers an accurate snapshot of the consequences of the development.
“This is a major victory against an ill-planned, destructive project,” said Aruna Prabhala, a staff attorney with the Center for Biological Diversity. “The ruling affirms concerns raised by the public for many years about this project’s major environmental threats to the community and wildlife. People don’t want the traffic headaches and air pollution caused by building more sprawl near sensitive habitat and limited open space.”
Drew Feldmann, of the San Bernardino Valley Audubon Society, said, “It’s developments such as this that push rare plants and animals to the brink of extinction. The amount of rare wildlife and habitat already existing on the site points to conserving it, not developing it.”
Efforts to reach Randall Lewis of the Lewis Group of Operating Companies by deadline were not successful.
By Amanda Frye and Mark Gutglueck