The terms upon which the Upland City Council approved Frontier Homes development of sixty-five single-family homes on 9.2 acres of property located within an existing flood control basin near a long established residential neighborhood must be rescinded, according to a Superior Court judge’s tentative ruling which is likely to be finalized within the next month.
At the very least, according to Judge David Cohn, Frontier Homes will need to complete a full-blown environmental impact report before the proposed Villa Serena project is constructed within a portion of a 32-acre percolation basin between 15th Street and 16th Street, roughly a quarter of a mile east of Campus Avenue in the northeastern quadrant of Upland, just north of a residential district within the City of Upland often referred to as Foothill Knolls.
Complicating the issue is that in 1999 the City of Upland entered into a 25-point “streambed alteration agreement” with the California Department of Fish & Game, now known as the Department of Fish & Wildlife, that declared a portion of the percolation basin off limits to development. It thus appears possible if not indeed likely that if a new environmental certification process for the Villa Serena project is undertaken, there will follow a reduction in the number of units to be constructed.
Under the California Environmental Quality Act, most development projects are subjected to an environmental certification process. Some types of environmental certification are more intensive than others, ranging from an environmental impact report to an environmental impact study to an environmental assessment to an environmental examination to a mitigated negative declaration to a negative declaration.
An environmental impact report, the most involved type of environmental analysis and certification there is, consists of an involved study of the project site, the project proposal, the potential and actual impacts the project will have on the site and surrounding area in terms of all conceivable issues, including land use, water use, air quality, potential contamination, noise, traffic, and biological and cultural resources. An environmental impact report specifies in detail what measures can, will and must be carried out to offset those impacts. A mitigated negative declaration falls near the other end of the scale, and exists as a far less exacting size-up of the impacts of a project, by which the panel entrusted with the city’s ultimate land use authority, as in the case of Upland the city council, issues a declaration that all adverse environmental impacts from the project will be mitigated, or offset, by the conditions of approval of the project imposed upon the developer.
On April 13, 2020, during a teleconferenced meeting in which the public participated remotely and electronically rather than in a physical forum, the Upland City Council voted 4-to-1 to give Frontier Homes an entitlement to construct the 65 units of single-family detached residential homes to be known as the Villa Serena project. In granting the project approval, the council did so based on a mitigated negative declaration.
Judge Cohn has now tentatively determined, after a citizens group challenged the city’s approval, that the mitigated negative declaration was insufficient.
In 1939, following the devastating flooding of 1938, the San Bernardino County Flood Control District converted four parcels between 15th Street and 16th Street a little more than a mile east of Euclid Avenue into a 32-acre percolation basin as an augmentation to a then-existing stormwater control system. In addition to allowing for the settling of water at that spot into the water table, the 15th Street basin was also intended to intercept stormwater runoff from 583 acres of surrounding land. That basin was capable of holding more than 50.4 million gallons of water.
In 1969, the dyke/embankment creating the basin, which had been compromised by the burrowing of gophers and squirrels, nearly failed during an intensive set of deluges, and the Foothill Knolls neighborhood, which lies between 15th Street to the north, the the city limits to the east, and Foothill Boulevard to the south and Campus Avenue to the west, was evacuated.
In 1991, Upland obtained title to the basin.
In the 1950s, what had once been a gravel pit east of Campus Avenue and above 14th Street, west and south of the basin, was converted into a landfill. In the early 1980s, that landfill was shuttered. Contaminants at the site festered below the surface, including pockets of methane gas, which was burned off at various venting spots scattered about the site.
Because water seeping through the landfill below ground migrated into the water in the basin, and because the basin was a source of water into the aquifer below Upland, the Santa Ana Regional Water Quality Control Board ordered Upland to stop impounding and percolating water into the water table near the landfill to prevent the migration of contaminants into water wells drawing from the water table. This order required the City of Upland to reduce the size of the basin between 15th Street and 16th Street by filling in its westernmost 12 acres.
The California Department of Fish and Game, exercising its authority, called upon the city to protect the fish and wildlife that could be adversely impacted by the regrading of the earthen-bottomed basin. Ultimately, in 1999, the Department of Fish and Game entered into a streambed alteration agreement with the City of Upland in accordance with Fish and Game Code section 1600, et sequitur. Contained within that pact was language stating, “There shall be no loss of wetland habitat and function. Impacts to wetland habitat shall be mitigated at a 1.5 to 1 ratio by management of the basin to allow for retention of wetland habitat at the eastern sector, which grows as a result of flow and [percolation] in the basin.”
The agreement mandated that Upland provide annual reports until 2006 on the maintenance of the replacement wetlands. Upland had reestablished the wetlands, with the goal of preserving wildlife habitat, in December 2000. The city commissioned LSA Associates to carry out the studies of the condition of the wetlands and provide those mandated annual reports.
Beginning in 1999, a consortium of investors and developers known as the Colonies Partners, led by managing principals Dan Richards and Jeff Burum, began in earnest an effort to develop the Colonies at San Antonio residential and the Colonies Crossroads commercial subdivisions on property in northeastern Upland previously owned by the San Antonio Water Company that had long been deemed undevelopable. Those projects were rendered achievable by the California Department of Transportation’s extension of the 210 Freeway across the northern portion of the city, which further involved the San Bernardino County Flood Control District and the Army Corps of Engineers completing elements of regional flood control projects that were augmented with the Colonies Partners’ construction of storm drain and sewer facilities. Some of the infrastructure the Colonies Partners was to complete for its residential and commercial subdivisions was ultimately dedicated to the city and those improvements increased the capacities of streets, storm water drainage facilities and sewers in some areas within the Upland City Limits outside the specific plan area for the Colonies Partners’ undertaking. Accordingly, on September 24, 2002, the city council approved a development agreement with the Colonies Partners allowing the development of the Colonies at San Antonio Project to proceed. A section of that agreement entailed the city paying the Colonies Partners $5 million as the city’s fair share cost toward the infrastructure the Colonies Partners was undertaking to build in conjunction with its projects. Included in the agreement was that 20.3 acres of the original 32-acre percolation basin near 15th Street would be utilized as a flood water basin. The cash-strapped city was not in a position to pay the Colonies Partners a full five million dollars at that time. On December 22, 2003, the city council voted to modify the city’s agreement with the Colonies Partners by paying Richards’ and Burum’s company $1.5 million, and granting Burum and Richards a ten-year first right of refusal to explore possible uses for a portion of the reduced basin footprint, and agreeing that upon such a mutually satisfactory project being identified, the city would transfer title to that portion to the Colonies Partners for one dollar, the Colonies Partners would forgive the city’s remaining $3.5 million debt, the processing of the Colonies Partners’ project proposal would be expedited, and the remainder of the basin property/wetlands preserve would be dedicated to public use.
In 2013, the Colonies Partners had not yet exercised its right toward developing the basin property, which in any event was complicated by the requirement that a good part of it be maintained as wetlands wildlife habitat. The city council detailed then-Assistant City Attorney Kimberly Hall-Barlow to write a letter to the Colonies Partners to note the lack of progress with regard to the development of the property and gently prod it toward action by the January 21, 2014 expiration date of decade-long term in which the Colonies Partners had to make use of the property. Hall-Barlow, however, defied the city council’s instructions on the letter’s tenor, instead penning a much more aggressive missive to the Colonies Partners that might serve as the groundwork for triggering the reversionary clause in the December 2003 revamping of the September 2003 agreement, such that the city would retain the 9.2 acres in question. The council, however, unwilling to confront the Colonies Partners, conveyed to then-City Attorney Richard Adams its displeasure with Hall-Barlow’s effort. Adams conferred with other members of his firm, Jones & Mayer. Hall-Barlow was thereafter eased out of her position as assistant city attorney by Jones & Mayer and moved into the position of city attorney with the City of West Covina, where Jones & Mayer also had a contract to provide legal services.
Though the 10-year term in which the Colonies Partners was to develop the property expired on January 21, 2014, more than a year later, on February 9, 2015, the Upland City Council voted to approve a second amendment to the agreement allowing an additional three years for the Colonies Partners to identify and initiate a project on a portion of the basin.
In June 2017, Rosemary Hoerning, then Upland’s city engineer, accepted a drainage study relating to the basin that the Colonies Partners had the engineering firm Madole & Associates prepare. Madole & Associates concluded that only 11.1 acres of the basin’s 20.3 acres were needed for future flood control purposes, based on the assumption that previous construction of an additional stormwater retention basin upstream and the Army Corps of Engineers’ construction of a concrete drainage channel along the eastern edge of the Colonies at San Antonio project would adequately handle stormwater flows. That document, however, did not deal with the issue of having to maintain a significant portion of the basin footprint as wetlands. Based on the Madole & Associates study, the City of Upland, by a quitclaim deed, transferred 9.2 acres of the western portion of the basin to the Colonies Partners.
Subsequently, the Colonies Partners made an arrangement with Frontier Homes, headed by a personal friend of Jeff Burum, James Previti, to undertake the development of the 9.2 acres. It is not clear whether the Colonies Partners understood the limitations imposed on the development of the property as a consequence of the City of Upland’s pact with the Department of Fish and Wildlife with regard to maintaining the property as wetlands. Nor is it known whether Burum and the Colonies Partners informed Previti and Frontier Homes about the limitations on development at the site.
In 2018 Frontier Homes learned through its consultant, Q3, that reconfiguring the remaining eastern portion of the basin would alter the facility in such way that unless the capacity of the basin was reduced from its current 50.428 million gallons of water to below 16.29 million gallons, it would be subject to the jurisdiction of California’s State Division of Safety of Dams. Without that reduction in holding capacity, that state agency would not sign off on the project without significant upgrades to the remaining basin, including doing excavation so the foundation of the basin embankment could be established on bedrock and its spillway enlarged, a technically challenging and prohibitively costly undertaking. There ensued a manipulation of paperwork to indicate the holding capacity of the basin had dropped to below 16.29 million gallons, which Hoerning, as city engineer, knew to be untrue as to physical fact.
In 2019, Hoerning was installed as Upland’s acting/interim city manager when then-City Manager Jeannette Vagnozzi was sacked. In March 2020, the council dropped the acting/interim prefix from Hoerning’s title, making her the city’s full-fledged city manager. Hoerning, convinced that the city council was in favor of the Villa Serena project, had facilitated at the staff level the processing of Frontier Home’s project application. By chance, the city had contracted with LSA Associates, the same firm that had carried out the annual reports prepared for the California Division of Fish and Wildlife relating to the 15th Street Basin wetlands, to prepare the mitigated negative declaration for the Villa Serena project. In April 2020, on the eve of and the very day of the city council’s hearing on the project, Hoerning learned from LSA Associates personnel, based on a review of the reports that company had done for the California Division of Fish and Wildlife more than a decade-and-a-half previously, of the manner in which the agreement with the California Department of Fish and Wildlife encumbered the property upon which the Villa Serena project was to be built. As the matter was a rather arcane one, and the record with regard to both the streambed alteration agreement and its accompanying limitations were buried in reams of documentation, Hoerning allowed the council to consider the project without being fully apprised of the commitment to maintain a portion of the site as open space.
Accordingly, on April 13, 2020, the Upland City Council voted 4-to-1 with Councilwoman Janice Elliott dissenting, to give Frontier Homes an entitlement to construct 65 single family detached residential units on 9.2-acres owned by the Colonies Partners within the footprint of the defunct flood control detention basin north of 15th Street.
Thereafter, a group of Upland residents living both within and outside the Foothill Knolls District led by Lois Sicking Dieter, formed Friends of Upland Wetlands, which retained attorney Cory Briggs, who filed a petition for a writ of mandate on the newly-formed association’s behalf in San Bernardino County Superior Court, naming the City of Upland as the respondent and Frontier Homes as the real party in interest. The writ sought the rescission of the approval of the Villa Serena project until a full-blown environmental impact report was undertaken and completed.
Judge Cohn in his tentative decision rendered on July 14 wrote, “Frontier Homes prepared an ‘initial study–mitigated negative declaration.’ Upland approved the initial study–mitigated negative declaration and the project overall. Petitioner Friends of Upland Wetlands challenges the approvals, contending that California Environmental Quality Act requires a full environmental impact report for the project, rather than a mitigated negative declaration. Friends of Upland Wetlands is correct. The project site may be a ‘wetlands’ area, requiring consultation with the responsible agencies. Additionally, there is substantial evidence in the administrative record supporting a ‘fair argument’ that the project may result in significant biological, noise, aesthetic, and groundwater recharge impacts. Accordingly, the petition is granted. A full environmental impact report is required.”
The Friends of Upland Wetlands did fail in effectively assailing the project approval on the grounds that the Upland City Council ignored the Upland Planning commission’s recommendation against the approval of the project, Judge Cohn ruled. The planning commission objected to what its members collectively found would be significant environmental impacts. In his decision, Judge Cohn dismissed the Friends of Upland Wetland’s contention that the planning commission’s determination constituted a binding finding that the project was unacceptable. He pointed out that “Although the planning commission recommended denial, it did so without considering certain modifications to the project—modifications that were later considered by Upland’s staff and incorporated into the staff report. Therefore, the planning commission’s recommendation was based on incomplete information. As a result, the planning commission’s recommendation of denial does not constitute substantial evidence of an environmental impact as contended by Friends of Upland Wetlands.”
Still the same, Cohn said, “The initial study–mitigated negative declaration failed to recognize that the project may impact wetlands, requiring consultation with the responsible agencies.”
Cohn’s decision did not directly state but implied that the project site for the Villa Serena project includes property that cannot be built upon.
“Friends of Upland Wetlands contends the initial study-mitigated negative declaration failed to recognize that several acres of the property are ‘wetlands’ and are therefore under the jurisdiction of the California Department of Fish and Wildlife,” Cohn stated. “Upland and Frontier Homes, however, write: ‘This case . . . is premised on the misconception that a decades-old operating flood control channel . . . is a wetland. It is not, and California and Federal law make clear that operating and licensed stormwater facilities are ‘artificial’ or ‘nonwetland.’”
The city and developer are incorrect on that point, Judge Cohn held.
“It is not so simple,” Cohn wrote. “First, Upland and Frontier Homes rely on documents such as State Water Resources Control Board Resolution No. 2019-0015 and the Corps of Engineers Wetlands Delineation Manual (1987), which are not part of the administrative record. The court cannot consider them. Second, and more importantly, the issue is not whether the property is or is not ultimately determined to be wetlands – the issue is whether Friends of Upland Wetlands has submitted ‘substantial evidence’ supporting a ‘fair argument’ that it is, such that a full environmental impact report is required.”
Judge Cohn continued, “Upland and Frontier Homes have ignored substantial evidence cited by Friends of Upland Wetlands supporting a fair argument that the project site is a wetlands area. The 15th Street Basin was originally thirty-two acres, and in 1999-2000, Upland filled in the westerly 11.2 acres with the oversight of the Santa Ana Regional Water Quality Control Board and the California Department of Fish and Wildlife. In the annual report prepared for the California Department of Fish and Wildlife under the 1999 streambed alteration agreement, LSA Associates, Inc., the same consulting firm that prepared the initial study-mitigated negative declaration in this case, states that the 1998 biological assessment of the basin found the habitat quality of the area was of low value due to the limited diversity of vegetation, but that ‘[t]he single habitat component of any notable value on the site is the presence of water, albeit seasonally.’ At that time, the LSA biological assessment characterized the vegetation of the basin as either ‘upland’ or ‘wetland,’ with 6.5 acres of the thirty-two-acre basin delineated as wetlands. Of that amount, 5.3 wetland acres were located in the remaining unfilled portions of the basin. The 1999 agreement also called for 1.8 acres of ‘new’ wetlands area to be created in the basin to replace the ‘lost’ 1.2 acres of wetland area from the fill project. Therefore, additional wetland areas were apparently added to the remaining unfilled portions of the basin, where this project is to be located.”
Cohn wrote, “Upland and Frontier Homes contend that Friends of Upland Wetlands mischaracterizes the 1999 streambed alteration agreement, noting that it expired in 2001 and was issued under a Fish and Game Code section that has since been repealed. That does not mean, however, that the law underlying the agreement no longer exists elsewhere in the code.”
“Cohn continued, “The 1999 streambed alteration agreement was issued pursuant to Fish and Game Code section 1601, which at the time contained provisions regarding notice of construction projects and proposals for modifications, and stated in relevant part: ‘Except as provided in this section, general plans sufficient to indicate the nature of a project for construction by, or on behalf of, any state or local governmental agency … shall be submitted to the California Department of Fish and Wildlife if the project will (1) divert, obstruct, or change the natural flow or the bed, channel, or bank of any river, stream, or lake designated by the California Department of Fish and Wildlife in which there is at any time an existing fish or wildlife resource or from which these resources derive benefit, (2) use material from the streambeds designated by the California Department of Fish and Wildlife, or (3) result in the disposal or deposition of debris, waste, or other material containing crumbled, flaked, or ground pavement where it can pass into any river, stream, or lake designated by the California Department of Fish and Wildlife. If an existing fish or wildlife resource may be substantially adversely affected by that construction, the California Department of Fish and Wildlife shall notify the governmental agency … of the existence of the fish or wildlife resource together with a description thereof and shall propose reasonable modification in the proposed construction that will allow for the protection and continuance of the fish or wildlife resource ….’”
Judge Cohn noted that California law “require[s] a governmental agency proposing a project that would divert, obstruct, or change the natural flow, or result in the disposal of debris, in a river, stream, or lake designated by the California Department of Fish and Wildlife, to submit prescribed plans and other information to the California Department of Fish and Wildlife and to follow prescribed procedures” and state law further requires “a holder of an agreement to alter a streambed to remain responsible for implementing any mitigation or other measures necessary to protect fish and wildlife resources after the agreement had expired,” such that the California Department of Fish and Wildlife is authorized “to suspend or revoke an agreement if the holder is not in compliance with its terms.”
In his ruling, Judge Cohn held that “The 1999 streambed alteration agreement is important, notwithstanding expiration, because it provides substantial evidence that both Upland and the California Department of Fish and Wildlife previously considered the 15th Street Basin to be a ‘bed, channel, or bank of’ a streambed that was under the jurisdiction of the California Department of Fish and Wildlife. At that time, the California Department of Fish and Wildlife had determined that Upland’s intent to fill in the westerly 11.2 acres of the original basin could ‘substantially adversely affect existing fish and wildlife resources, including: red-tailed hawk, red-winged blackbird … other birds, mammals, reptiles, amphibians, plants, and other aquatic-related resources and wildlife’ in the basin. Among other conditions, the agreement stated, ‘There shall be no loss of wetland habitat and function. Impacts to wetland habitat shall be mitigated at a 1.5 to 1 ratio by management of the basin to allow for retention of wetland habitat at the eastern sector, which grows as a result of flow and [percolation] in the basin.’ In accordance with the permit issued under the agreement, the ‘lost’ 1.2 acres of wetland area required a 1.8-acre replacement to be established in the remaining unfilled area of the basin, and Upland was required to submit an annual report to the California Department of Fish and Wildlife for five years.”
Judge Cohn stated, “Upland and Frontier Homes have not pointed to any evidence in the record indicating that the ‘wetlands’ designation underlying the 1999 streambed alteration agreement was later rescinded or otherwise modified. The initial study-mitigated negative declaration relies on the ‘Phase I Environmental Site Assessment’ of the project site. The environmental site assessment was conducted concurrently with the biological assessment in June 2018. The environmental site assessment contains maps that identify the site as ‘National Wetland Inventory’ – part of a national wetlands database purportedly maintained by the U.S. Fish & Wildlife Service. The environmental site assessment also advises that ‘the existence of wetlands information data in a specific report does not mean that all wetlands in the area covered by the report are included … [and] the absence of any reported wetlands information does not necessarily mean that wetlands do not exist in the area covered by the report.’ Yet the executive summary of the environmental site assessment, after stating that the ‘Site is listed with State Water Resources Control Board California Integrated Water Quality System … database as Inland Empire Utilities Authority groundwater recharge basin operations and maintenance,’ inexplicably states that the ‘listing does not represent a recognized environmental condition.’ No explanation is given in the initial study-mitigated negative declaration or by Upland and Frontier Homes for the discrepancy between this conclusion in the executive summary portion of the environmental site assessment and the data displayed on the maps that show the site listed in the National Wetland Inventory – a listing which presumes the recognized environmental condition of a ‘wetlands’ area.”
That constituted a substantial flaw in the mitigated negative declaration, Judge Cohn opined.
“Therefore, there is substantial evidence supporting a fair argument that the site is a designated wetlands area, such that a significant environmental impact may occur as a result of the project,” Cohn wrote. “Accordingly, Upland’s decision to adopt the initial study-mitigated negative declaration in approving the project was an abuse of discretion. The failure to consider that the project may impact wetlands renders the description of the project inaccurate. This failure also forms part of the reason there is substantial evidence supporting a fair argument of biological impacts.”
Cohn wrote, “The failure to recognize that the project site may be a designated wetlands area also resulted in Upland’s failure to submit the initial study–mitigated negative declaration to any responsible or trustee agencies—a per se violation of the California Environmental Quality Act. California regulations state that all waterways of the state, including intermittent streams, are subject to the jurisdiction of the California Department of Fish and Wildlife. Under Fish and Game Code section 1602, it is illegal for an entity to ‘substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank or, any river, stream, or lake’ without first notifying and obtaining the approval of the California Department of Fish and Wildlife.”
In addressing Friends of Upland Wetlands’ contention that the project may result in significant biological impacts, Judge Cohn made a finding that a prima facie showing that such was the case had been made. He said the city council during the April 13, 2020 hearing on the project had ignored evidence to that effect.
“During the public comment period, several wildlife biologists and amateur birdwatchers noted personal observations of various wildlife species and habitats on the site,” Judge Cohn wrote. “Friends of Upland Wetlands argues that these comments by local ‘experts’ ‘completely debunked’ the conclusions in the initial study-mitigated negative declaration, and therefore, pursuant to California Environmental Quality Act Guidelines Section 15064, subdivision (g), Upland should have required an environmental impact report. Upland and Frontier Homes, however, argue that these commenters are not ‘experts,’ and therefore their unsubstantiated opinions and comments cannot constitute substantial evidence of a fair argument because they lack credibility. Notwithstanding these comments, Upland and Frontier Homes contend Friends of Upland Wetlands’ claim fails because none of the commenters addressed or objected to Mitigation Measure BIO-1 [contained in the mitigated negative declaration], which purports to reduce the biological impacts of the project to a less than significant level. The argument ignores oral comments by one person addressing the inadequacy of the biological assessment, and thus alluding to the inadequacy of the recommended mitigation measure. Natasha Walton, a wildlife biologist and sixteen-year Upland resident, opined that the field survey conducted for the biological resources assessment was performed at the wrong time of year and failed to follow proper survey protocols. Walton stated that burrowing owls had historically been present in the basin and that suitable burrowing owl habitat had been noted in the report, but an adequate survey was not conducted. In addition, she opined that the delineation of jurisdictional waters was done at the wrong time of year because ‘everything’s dead or dormant’ in July. Walton also asserted that the California Department of Fish and Wildlife should have been consulted regarding the proper protocol for conducting an accurate survey according to the California Department of Fish and Wildlife report on burrowing owl mitigation, and that the California Department of Fish and Wildlife should have been consulted to obtain its comments on the evaluation and mitigation measures in the initial study-mitigated negative declaration.”
Judge Cohn went on. “Such technical interpretation requires an expert evaluation, but Walton stated she had expertise as a wildlife biologist, the type of expertise that would allow her to evaluate the adequacy of the biological assessment,” Judge Cohn noted. “Upland and Frontier Homes contend that Walton’s comments were properly disregarded because she did not provide any information about her credentials or education. The statutes, guidelines, and case law impose no such requirement. Walton’s expertise as a wildlife biologist is sufficient to qualify her to opine on the sufficiency of the biological assessment.”
The Friends of Upland Wetlands further contended in the petition for mandate that the initial study-mitigated negative declaration failed to adequately address the project’s adverse impacts on groundwater recharge. In his size up of the issue, Judge Cohn said the mitigated negative declaration outlined mitigation measures that took into consideration most of impacts of the project upon groundwater recharge. In one respect touching on groundwater recharge, however, he found that the mitigated negative declaration fell short.
“The initial study–mitigated negative declaration… does not explain how Mitigation Measure HYD-3 will allow the project to convert fifty-five percent of the site to impervious surfaces and substantially reduce the current containment capacity of the basin without impacting the basin’s current groundwater recharge function,” Judge Cohn wrote.
Judge Cohn rejected Friends of Upland Wetland’s contention that the project would impose traffic circulation burdens within the Foothill Knolls District.
“Friends of Upland Wetland’s traffic impact argument is moot,” he wrote.
Judge Cohn took up the plaintiffs’ contention that “the project may result in significant aesthetics impacts.” Without rendering a judgment on that contention, Judge Cohn noted, “Several residents commented that the elevations of the new homes would block mountain views of several nearby residences in the adjacent neighborhood” and that “During the planning commission meeting on January 22, 2020, the vice chair of the commission noted that comments regarding the loss of views were ‘the most thing that was repeated.’ Judge Cohn then made citation to several landmark decisions relating to the aesthetic impact of development on existing properties, including Ocean View Estates Homeowner’s Assn., Inc. v. Montecito Water District. “In this case, the residents’ comments were based on their personal observations regarding the aesthetics in the area near the site,” Cohn wrote. “Their comments expressing ‘height, view and privacy concerns’ constitute substantial evidence supporting a fair argument that the project may have a significant aesthetic impact on the environment.”
Quoting from a decision in the case of Georgetown Preservation Society, Judge Cohn wrote, “Despite the subjective nature of aesthetic concerns, it is clear that the project may have a significant adverse environmental impact. Whether it likely will or will not have such an impact is a question that an environmental impact report is designed to answer.”
In his conclusion, Judge Cohn wrote, “for the reasons explained above, the petition for a writ of mandate is granted. A full environmental impact report is required because there is substantial evidence supporting a fair argument that the project site contains wetlands, and that the project may result in significant biological, noise, aesthetic, and groundwater recharge impacts. The remaining grounds for the petition are denied.”
On July 14, Judge Cohn in his courtroom heard arguments from John McClendon who was present to represent Friends of Upland Wetlands, from Ginetta Giovinco who was heard telephonically representing the city and from Stephen Larson, Jennifer Cooper and Scott Summer, also telephonically, representing Frontier Homes. Judge Cohn issued his tentative ruling, while taking the arguments under submission. He is to notify the parties of his final decision by mail.
Five days later, on July 19, Frontier Homes submitted a request for judicial notice and a motion to augment the administrative record. That document was not filed and was returned to Frontier Homes’ legal representatives by the court with the notation that such motions have to be reserved for a hearing prior to their filing. It is not clear whether or not Judge Cohn is delaying his final ruling pending a hearing date on that motion being set and the documentation being considered and the motion heard.
-Mark Gutglueck