The Highland City Council this week unanimously voted to cancel its previous approval of the Harmony housing project and further called upon the San Bernardino County Registrar of Voters to cancel its November 6 referendum on the project.
The council recently found itself ducking for cover in the aftermath of Superior Court Judge Donald Alvarez’s June 26 ruling that there were insufficiencies in the environmental impact report that had been certified by the city council when it approved the project in the face of considerable residential opposition two years ago.
In the wake of Alvarez’s findings and with sentiment yet running against the project, the council acted quickly at a specially-called meeting Wednesday night to rescind its previous action which had set up a November 6 citywide referendum on the project, which would have cost the city in the neighborhood of $55,000 to put on the ballot. The council’s rescission vote came in time to meet the San Bernardino County Registrar of Voters August 15 deadline for submissions of/cancellations on ballot measures.
The project, which the Lewis Group of Companies called Harmony, was proposed for land at the confluence of Mill Creek and the Santa Ana River, directly adjacent to San Bernardino National Forest lands on 1,657 acres that Orange County purchased to construct the Seven Oaks Dam. It was to entail 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.
A draft environmental impact report was circulated among nearby property owners between March 21, 2014 and May 5, 2014. 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 project opponents’ objections were addressed.
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 city’s staff report relating to the project proposal 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.” Nevertheless, staff emphasized that 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.
Though advocates for some environmental groups, the Greenspot Residents Association and a handful of disparate other residents were vocal in their opposition to the project proposal, it is unclear whether city officials fully appreciated the depth of the opposition to the project and whether they considered the potential that any of those entities would leap into the breach by filing legal action.
Indeed, two lawsuits ensued. One was brought by the Center for Biological Diversity, the San Bernardino Valley Audubon Society and the Greenspot Residents Association. It maintained 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 would 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.
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, chastened city officials, 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 Group of Companies 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, and that the environmental impact report further 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.
In essence, Alvarez’s ruling invalidated the project approval and introduced a requirement that if Lewis is to resubmit an application for the project that an adequate environmental impact report be carried out.
The ball was in the court of Lewis and the city to 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. Simultaneously, the current members of the council found themselves in a circumstance in which growing numbers of their constituents had begun to perceive them as more accommodating of the Lewis Group of Companies than the residents they were elected to represent.
The Lewis Group of Companies’ intention with regard to the project has been difficult to fathom, and its corporate officers have not signaled whether the company is willing to proceed at this point, or whether it will simply cut its losses. While the company had an option to purchase the 1,657 acres upon which the project was to be developed, title to the property is still held by the Orange County Flood Control District. Thus, the company can cleanly walk away from the deal. No one has said so directly, but it appears that is what occurred.
Highland City Attorney Craig Steele advised the city council it could legally invalidate the entitlements approved in 2016 based upon Alvarez’s ruling which declared the environmental impact report inadequate. He recommended doing so as the city’s best course of action.
Steele said the council should consider rendering null and void “all Harmony project land use approvals, decertifying the project environmental impact report and withdrawing the referendum ballot measure.”
The council on Wednesday night did just that.
Steele said it was best that the city take the action on its own rather than be forced to do the same by some further court order. He said that “the court in the two related challenges to the adequacy of the environmental impact report ruled that portions of the environmental impact report did not comply with the California Environmental Quality Act and must be revised. This order will result in all project actions being invalidated, including the ordinances that were subject to the referendum. Since ordinances must be repealed as a result of the court order, the referendum will be moot before the voters go to the polls.”
The Orange County Flood Control District appears to have similarly given up on the prospect that the Lewis Group of Companies will be able to proceed as it had earlier intended without a major reconfiguration of its plans.
“I understand that our respective staffs have been in discussions about the Harmony project since the California Environmental Quality Act decisions were issued at the end of last month,” Thomas A. Miller, Orange County’s chief real estate officer wrote in a letter to the city on July 26. “As always, we appreciate the city’s efforts and cooperation. Consistent with the request of the city attorney, and at the behest of legal counsel for the Orange County Flood Control District, please accept this letter as a formal request that the city council rescind the Harmony project approvals granted by the city in August 2016. The Orange County Flood Control District and LCD Greenspot, LLC, request that the rescission action occur on or before August 10, 2018.”
-Mark Gutglueck