Judge David Cohn has invalidated the Upland City Council’s 2020 approval of Jim Previti’s proposal to construct 65 homes on a dormant flood basin on the east side of the city.
Previti, the principal in Frontier Homes, had obtained on April 13, 2020, go-ahead from the Upland City Council as it was then composed to complete the Villa Serena project within a 9.2-acre 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 often referred to as Foothill Knolls.
An incorporated non-profit citizens group formed specifically for the purpose of challenging the project approval, calling itself Friends of Upland Wetlands, filed suit, taking issue with aspects of the project and challenging the city’s approval. Spelled out in the suit was the contention that the means of environmental certification the project underwent, a mitigated negative declaration, was inadequate, and that the city and the project proponent should have been required to compile a comprehensive environmental impact report for the project before the city council considered it.
Earlier this summer, Judge Cohn made a tentative finding that the project approval should be rescinded and that the city would need to complete a full-blown environmental report before the project could proceed. In delivering his final ruling, Judge Cohn backed away from requiring an environmental impact report, but he nevertheless determined that the project approval based on the mitigated negative declaration could not stand, such that impacts of the project that were given short shrift in the previous consideration would need to be reexamined in more exacting detail if Previti and Frontier Homes are to carry on with the project.
The Villa Serena project is complicated by the consideration 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 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 amount of acreage that can be built upon as well as a lessening in the number of units to be constructed.
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. The basin allowed water to settle into the water table, while simultaneously intercepting stormwater runoff from 583 acres of surrounding land. That basin was capable of holding more than 50.4 million gallons of water.
In January 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 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.
Between the 1940s and the early 1980s, what had once been a gravel pit east of Campus Avenue and above 14th Street, west and south of the basin was utilized as a landfill. After the landfill was shuttered in the early 1980s, 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. When water seeping through the landfill began migrating into the water in the basin, the Santa Ana Regional Water Quality Control Board, because the basin was a source of water into the aquifer below Upland, 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 June 2017, the engineering firm Madole & Associates completed a drainage study for the city that was delivered to Rosemary Hoerning, then Upland’s city engineer, that concluded 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 and 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, Hoerning was promoted to 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 and had confirmed by 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, Friends of Upland Wetlands, a group of Upland residents living both within and outside the Foothill Knolls District, led by Lois Sicking Dieter and Jo Beanz, formed. Friends of Upland Wetlands 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. In October 2020, attorney John McClendon substituted in and Briggs substituted out as the representative of Friends of Upland Wetlands.
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 challenged 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.”
In his tentative decision, Judge Cohn held that 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. 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 had found in his tentative decision, “The initial study-mitigated negative declaration failed to recognize that the project may impact wetlands, requiring consultation with the responsible agencies.”
Cohn’s initial decision did not directly state but implied that the project site for the Villa Serena project includes property that cannot be built upon.
In his final decision, Judge Cohn wrote that “the project site may be ‘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 impacts, groundwater recharge impacts, noise impacts, and aesthetic impacts.”
Judge Cohn in his tentative decision had found that a comprehensive environmental impact report would have to be done. He altered that conclusion in his final decision.
“Friends of Upland Wetlands has failed to demonstrate that [a]full environmental impact report is necessarily required,” Cohn wrote in his final decision. “Further environmental analysis and [a] revised mitigated negative declaration may be appropriate. Upland’s approval of the current initial study/mitigated negative declaration, however, is set aside. The court defers ruling at this time whether [a] revised mitigated negative declaration will be sufficient or whether [a] full environmental impact report will be necessary.” Furthermore, Judge Cohn set aside all other approvals by Upland, to include the specific plan, general plan amendment, zoning change, tentative tract map, site plan, design review, and an environmental assessment review.
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.
According to Judge Cohn, the mitigated negative declaration did not explore issues critical to the environmental impact of the project, and was therefore inadequate.
“The initial study/mitigated negative declaration failed to recognize that the project may impact wetlands, requiring consultation with the responsible agencies,” Judge Cohn wrote in his final decision. “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. Upland and Frontier Homes, however, write: ‘This case is premised on the misconception that decades-old operating flood control channel is wetland. It is not, and California and Federal law make clear that operating and licensed stormwater facilities are “artificial” or “nonwetland.”’ It is not so simple. 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. Although they may be proper subjects of judicial notice, not all statements within them are shown to be necessarily true. Second, 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 or that the responsible agencies must at least be consulted.”
According to Judge Cohn, “Upland and Frontier Homes have ignored substantial evidence cited by Friends of Upland Wetlands supporting [a] fair argument that the project site is 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. At oral argument, Frontier Homes argued that the court’s tentative ruling contained significant error in the description of the project site. Frontier Homes indicated that the original 5.3 wetland acres referenced in the 1999 streambed alteration agreement were located in the portion of the basin that was filled as part of that 1999 project, and that the 1.8 acres of ‘new’ wetlands to replace the ‘lost’ 1.2 wetland acres are located in the 11 acres of the basin that are to the east of the current project. The ‘Streambed Alteration Agreement 6-108- 99 /Annual Report CY 2006’ that is contained in the administrative record states in relevant part: ‘LSA delineated 6.5 acres spread over the entire 32 acres of the basin, mainly on the basin floor at areas immediately downstream of storm drain outlets to the basin, as wetlands. Within the westerly 11.2 acres that was filled, only about 1.2 acres were delineated as such. This 1.2 acres was what was essentially lost due to the filling, with 5.3 acres remaining intact on the eastern unfilled portions of the basin. As discussed above, of the 6.5 acres delineated as wetlands, only 1.2 was lost as result of the filling of the western 11.2 acres of the basin. In accordance with the permit, this ‘lost’ wetland area require 1.8 acre replacement to be established within the remaining unfilled area of the flood basin, in addition to the 5.3 acres for total of 7.1 acres of wetlands over the remaining 20-acres of flood basin. There is nothing in the record stating that the 1.2 acres of replacement wetland area are located exclusively in the easternmost 11 acres of the 20-acre basin that remains. Therefore, contrary to Frontier Homes’ assertion, the 1.2 acres of replacement wetland area may be located anywhere within the remaining twenty acres of the basin, including the portion where the project is to be built. Upland and Frontier Homes also contend that Friends of Upland Wetlands mischaracterizes the 1999 streambed alteration agreement, noting that it expired in 2001 and was issued under 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.”
Judge Cohn noted that in October 2003, there were changes and clarifications in the Fish and Game Code relating to streambed alteration agreements, including that the “holder of an agreement to alter streambed remain responsible for implementing any mitigation or other measures necessary to protect fish and wildlife resources after the agreement had expired” and “authorizing the California Department of Fish and Wildlife to suspend or revoke an agreement if the holder is not in compliance with its terms.” Judge Cohn then went on to state, “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 [the] ‘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. Impacts to wetland habitat shall be mitigated at 1.5 to 1.0 ratio by management of the basin to allow for retention of wetland habitat at the eastern sector, which grows as 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.”
Judge Cohn found that “The project may result in significant biological impacts.”
The City of Upland and Frontier Homes staked the adequacy of the mitigated negative declaration as an environmental certification of the Villa Serena project on measures taken to offset the impact of the project identified in the initial study for the mitigated negative declaration, most particularly one known as “Mitigation Measure BlO-1.” Ultimately, however, Judge Cohn would include in his final decision language a statement that “evidence supports [a] fair argument that the biological survey is inadequate to formulate mitigation measures that would mitigate the project’s biological impacts.”
Essentially, Judge Cohn held, the biological resource damage mitigation measures the city and Frontier Homes put forth in the mitigated negative declaration were based on studies of the biological resources that were at best questionable and in some respects out right disingenuous. When Upland residents caught wind of what was going on, Judge Cohn said, the city and Frontier Homes, instead of examining the inadequacies in the surveys they were relying upon to complete the mitigated negative declaration and redressing them, sought to discredit the citizens who were monitoring and remarking upon the development company’s and city’s action.
Judge Cohn noted that “The biological resources assessment in the initial study/mitigated negative declaration… were conducted for the burrowing owl, and general field surveys ‘focused on general site conditions, vegetation, potential jurisdictional waters, and suitability of habitat for various special-status species….’ The assessment found that ‘[n]o sensitive biological resources (e.g., sensitive species and critical habitats) had been documented in the immediate area according to the California Department of Forestry California Natural Diversity Database,” and “[n]o special-status plant or wildlife species were observed. The assessment also states that ‘no sensitive habitats (e.g., wetlands, vernal pools, or critical habitats for sensitive species) were observed,’ and therefore the project was ‘not expected to result in loss of suitable habitat for any special-status species with potential to occur’ [and] ‘The project-specific biological resources assessment did not identify any wetland habitat on-site or in adjoining areas.’”
Judge Cohn continued, “During the public comment period, however, several wildlife biologists and amateur birdwatchers noted personal observations of various wildlife species and habitats on the site. 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 fair argument because they lack credibility. Contrary to this argument, comments by members of the public who are not environmental experts may constitute substantial evidence supporting [a] fair argument that [the] project may have a significant effect on the environment if the statements “are based on relevant personal observations or involve ‘nontechnical’ issues.”
Judge Cohn cited the statements of several Upland residents or individuals with specific knowledge relating to the project site and its natural or biological resources.
He wrote, “Bill Rodstrom, ‘former U.S. Fish Wildlife Services biologist’, commented that he had seen or heard the Coastal California Gnatcatcher ‘virtually every time’ he visited the basin area, and he opined that since the sage scrub habitat in the area is ‘critical habitat for this species, the removal of this habitat will only exacerbate the shrinking habitat for this threatened species.’ Upland and Frontier Homes contend Rodstrom’s comments are not substantial evidence because he is not an expert.”
Judge Cohn wrote “Tina Stoner, an Upland resident and regular participant in the Audubon Society’s Christmas bird count, observed ‘more than [a] dozen additional species’ of birds in the area, contrary to the initial study/mitigated negative declaration’s finding of only seven bird species.”
Continuing, Judge Cohn wrote, “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, which purports to reduce the biological impacts of the project to less than [a] 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, 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. 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. 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. Moreover, her expertise is also important in evaluating her assertion that the California Department of Fish & Wildlife’s comments should have been obtained regarding mitigation measures. This assertion by Walton implies that the suggested Mitigation Measure BIO-1 may not have comported with California Department of Fish & Wildlife mitigation measures for the burrowing owl and other avian species.”
Mitigation Measure BlO-1 required that burrowing owl and nesting bird pre-construction clearance surveys be conducted three days prior to any ground-disturbing activities and if special-status or sensitive species were found during the pre-construction survey, then “authorization from the United States Forest Service and the California Department of Fish and Wildlife must be obtained.”
Judge Cohn stated, “Walton’s expertise as wildlife biologist is sufficient to qualify her to opine on the sufficiency of the biological assessment. Walton’s comments are substantial evidence supporting fair argument that the failure to perform proper wildlife and habitat surveys reflects fundamental deficiency in the initial study/mitigated negative declaration.”
Furthermore, Judge Cohn wrote in his final decision, that lawyers for the city and Frontier homes had made an “assertion that comments [regarding impacts to habitat within the project site] were made only about ‘ordinary species’ is directly contradicted by counsel’s discussion regarding the comments made by Shari Wasson. Counsel specifically referenced Wasson’s assertion that she had observed blue heron, among several other bird species, in the basin. During oral arguments, counsel seemed to concede that the blue heron is a ‘concerned’ species. “
He had taken into consideration the complete body of testimony and evidence regarding the efforts to survey the biological resources present at the project site, Judge Cohn wrote. “As result, the evidence supports [a] fair argument that the biological survey is inadequate to formulate mitigation measure that would mitigate the project’s biological impacts,” he concluded.
Judge Cohn further found that “there is substantial evidence in the record supporting fair argument that Upland and Frontier Homes failed to qualitatively analyze the noise impacts of the project. “
“There is substantial evidence supporting [a] fair argument of significant aesthetics impacts” from the project, Judge Cohn found.
Judge Cohn wrote, “Friends of Upland Wetlands contends the initial study/mitigated negative declaration failed to adequately address the project’s adverse impacts on groundwater recharge. The initial study/mitigated negative declaration found that absent mitigation, the project could result in potentially significant impact that would ‘substantially decrease groundwater supplies or interfere substantially with groundwater recharge such that [the] project may impede sustainable groundwater management of the basin.’ The initial study/mitigated negative declaration states that the project site, which is classified in Upland’s general plan as ‘public utilities-flood control/recharge’ and ‘serves as [a] flood-control and groundwater recharge basin,’ is currently ‘100 percent pervious, and storm water drains through an on-site flood control basin from east to west where runoff enters [a] culvert that conveys storm water off-site through the municipal sewer system underneath 15th Street.’ The project proposes to ‘convert approximately 55 percent of the project site into impervious surfaces,’ but still maintain the current drainage pattern. As result, the project involves reconfiguring the 15th Street Basin ‘adjacent to the east in order to maintain adequate local flood control and recharge potential.’ Friends of Upland Wetlands contends, however, that the proposed mitigation, Mitigation Measure HYD-3, will not address the groundwater recharge issue, but only addresses water treatment and detention volumes. “
After an analysis of the situation, Judge Cohn concluded, “The absence of information regarding pre-development and post-development groundwater recharge leaves [a] gap in the record which enlarges the scope of the fair argument of significant impact by lending plausibility to [a] wider range of inferences regarding possible adverse impacts. Since it appears Upland did not carefully investigate the impacts of the project on groundwater recharge, but simply found that the project ‘does not propose direct additions to or withdrawals of groundwater,’ then there is no substantial evidence in the record to support Upland’s decision to adopt the |mitigated negative declaration.”
Judge Cohn did reject some elements of the Friends of Upland Wetlands’ contentions.
He said that Friends of Upland Wetlands’ contention that the alteration of the project after the planning commission considered it and rejected the project and the time the city council considered it rendered the project description inadequate did not hold up.
Friends of Upland Wetlands’ assertion that the importation of 41,000 cubic yards of fill dirt for the project represented an unacceptable environmental impact was invalid, Judge Cohn ruled.
Friends of Upland Wetlands’ contention there is substantial evidence supporting a fair argument that the project may result in traffic safety issues, Judge Cohn ruled “is moot, because traffic congestion based on level of service is no longer considered a significant impact on the environment under the California Environmental Quality Act.”
In the conclusion to his final decision, Judge Cohn wrote that “the petition for writ of mandate is granted in part. There is substantial evidence supporting [a] fair argument that the project site contains wetlands, and that the project may result in significant biological impacts, groundwater recharge impacts, noise impacts, and aesthetic impacts. The initial study/mitigated negative declaration and related approvals are set aside. A full environmental impact report may or may not be required. Consultation with the responsible agencies must be undertaken to determine whether the project impacts wetlands. Further analysis of the potential environmental impacts addressed [in the body of the final decision] is ordered. The remaining grounds for the petition are denied. Counsel for Friends of Upland is ordered to prepare proposed writ of mandate and submit it to the court within ten days after consultation with Upland and Frontier Homes.”
The final decision was released on September 13, and the text of the proposed writ of mandate that McClendon is to prepare was not available at press time.
The Sentinel today sent an email to Previti, asking him for his reaction to Judge Cohn’s ruling and whether he intended to make an appeal. The Sentinel inquired as to whether Previti would resubmit the proposal to the city and abide by whatever conclusion city officials come to with regard to whether the project will need to undergo a revised mitigated negative declaration or a full blown environmental report. The Sentinel also asked Previti if he was prepared to proceed with the project if it is ultimately determined that a portion of the basin will need to remain as a wetland. The Sentinel sought from Previti whether he would abandon the project entirely if the project needed to be downscaled from 65 homes.
Previti, perhaps understandably given the abbreviated window during which he had an opportunity to do so, had not responded by press time.
Judge Rules Upland Council Ignored Wetlands Preservation Status In Approving Subdivision
Judge David Cohn has invalidated the Upland City Council’s 2020 approval of Jim Previti’s proposal to construct 65 homes on a dormant flood basin on the east side of the city.