A group of environmental groups has prevailed in its effort to have the county board of supervisors’ approval of the Church of the Woods’ plan to build a campus on an undeveloped property in the San Bernardino Mountains community of Rimforest rescinded.
As proposed and approved, the undertaking was to involve a 27,364-square foot, two-story youth center/gymatorium, recreational facilities, a 41,037-square foot, two-story assembly building with a maximum seating capacity of 600, and a 1,500-square foot, two-story maintenance/caretaker unit in two phases on a 13.6-acre portion of the church’s 27.12-acre site.
On January 23, 2020, the San Bernardino County Planning Commission considered the project. At the hearing, 37 members of the public expressed their concerns about the project and asked that it be denied, while 26 members of the public expressed support for the project and asked that it be approved. County planning staff made a recommendation for approval of the project. After the planning commission concurred with the staff recommendation and memorialized that in a vote to allow the project to proceed, the Audubon Society, the Sierra Club, and the Save Our Forest Association appealed the approval to the county board of supervisors. The board voted on October 20, 2020, to deny the appeal and grant final approval for the project.
The following month, the San Bernardino Valley Audubon Society, the San Bernardino Mountains Group of the Sierra Club and the Save Our Forest Association, Inc. filed a legal action against the County of San Bernardino’s approval of the Church of the Woods’ project.
The lawsuit cited numerous violations of the California Environmental Quality Act and what those groups assert is the project’s inconsistency with the county’s general plan and Lake Arrowhead Community Plan.
The lawsuit was assigned to Superior Court Judge David Cohn. In his introduction to his final decision, Cohn identified Save Our Forest Association, lnc., the Sierra Club, and the San Bernardino Audubon Society, as the petitioners, the County of San Bernardino and the County Board of Supervisors as the respondents and the Church of the Woods as the real party in interest. “Respondents violated the California Environmental Quality Act in several respects as specified below. The petition for a writ of mandate is therefore granted and respondents are ordered to comply with the California Environmental Quality Act in the manner described herein,” the introduction concludes.
Judge Cohn described the setting for the proposed project.
“The project site,” according to Judge Cohn, “is a steep and hilly 27.12 acre parcel of undeveloped land surrounded on three sides by the San Bernardino National Forest. A residential neighborhood lies to the west, undeveloped mountainous terrain to the north, Daley Canyon Road to the east, and State Route Highway 18 to the south. The site consists of mature conifer forest, bisected by a stream feeding the headwaters of Little Bear Creek, which drains into Lake Arrowhead. The stream contains ‘jurisdictional waters’ regulated by the U.S. Army Corps of Engineers, the Lahontan Regional Water Quality Control Board, and the California Department of Fish and Wildlife. The site contains riparian and forest habitat supporting several sensitive wildlife species, and serves as a wildlife corridor linking the Mojave River basin habitat with the San Bernardino National Forest and the City of San Bernardino.”
The Church of the Woods in 2003 proposed a prior version of the project, which was approved by the county planning commission in 2004 without an environmental impact report. Subsequently, draft and final environmental impact reports were circulated in 2010 and 2011, but after receiving comments in opposition, the Church of the Woods withdrew the proposal, and the county took no final action.
In its most recent iteration, the project included a two-story youth center, a combined gymnasium and auditorium, a two-story assembly building and children’s ministry building on the southeastern portion of the site, as well as a small maintenance building and caretaker residence, a large sports field, and sports courts on the central and southwestern portion of the site where Little Bear Creek originates. The facility was to cover 13.6 acres of the 27.12-acre site. The project also called for on-site drainage facilities, utility connections, landscaped areas, pedestrian pathways, internal roadways, parking areas, the widening of a 600 foot stretch of Highway 18, and the addition of new turn lanes, driveways, and a traffic signal at the entrance. The county released a revised draft environmental impact report for the project in January 2019. The petitioners in the lawsuit and others submitted extensive comments claiming deficiencies in the environmental impact report. In January 2020 the county released a final environmental impact report, which also provoked comment citing claimed deficiencies.
San Bernardino County has a yet-unbuilt storm drain project proposed next to the Church of the Woods project site.
The petitioners contended the environmental impact report for the church project misleadingly attributes the project’s impacts to the county storm drain project. The petitioners alleged the final environmental impact report inadequately analyzes impacts on sensitive wildlife species and habitats, water quality, wildfire evacuation risks, and scenic views. The petitioners also alleged the environmental impact report impermissibly defers mitigation analysis and adoption of mitigation measures for geotechnical impacts. The petitioners maintained the project conflicts with the county’s general plan, development code, and the Lake Arrowhead Community Plan, in violation of California planning and zoning law.
In his final ruling, Judge Cohn wrote “Petitioners contend the relationship between the project and the storm drain project is not consistently or accurately described” and that the environmental impact report “does not clearly state which project will be built first.” Nevertheless, Judge Cohn ruled, the environmental impact report “accurately and consistently disclosed the project’s relationship with the storm drain project, including potential impacts to jurisdictional waters and riparian habitat within the site.” He ruled the unsupported allegation that the environmental impact report provided an inadequate or incomplete project description failed as a basis upon which to grant the petitioners a writ of mandate.
There were, nonetheless, other defects in the environmental impact report, the judge determined.
Judge Cohn wrote, the petitioners “argue that the final environmental impact report incorrectly claims that the storm drain project will permanently eliminate the jurisdictional waters and riparian areas in the Little Bear Creek headwaters valley before the project is built and the Church of the Woods project will subsequently destroy the jurisdictional waters and riparian habitat of the Little Bear Creek headwaters valley by burying them under thirty-eight feet of rock and dirt, causing any temporary impact of the storm drain project on the habitats to become permanent.”
After some analysis, Judge Cohn wrote, “Petitioners are correct in their assertions that the environmental impact report for this project and the storm drain project environmental impact report demonstrate that the project will permanently impact jurisdictional waters and riparian habitat that are not otherwise impacted by the storm drain project. Generally, construction of the storm drain project is anticipated to result in temporary disturbance of approximately 10.03 acres and permanent disturbance of approximately 5.27 acres of native vegetation and land cover, including sensitive natural communities. ln addition, within the storm drain project footprint, there are jurisdictional waters consisting of portions of Strawberry Creek and Little Bear Creek, and temporary and permanent impacts to these jurisdictional waters are expected to occur due to construction activities.”
Judge Cohn continued, “Originally, the storm drain project’s September 2015 draft environmental impact report and September 2016 recirculated draft environmental impact report stated that the temporary impacts of the storm drain project to jurisdictional waters would occur on portions of the site, ‘but would be restored at the end of the project.’ Church of the Woods contends that the storm drain project’s impacts to jurisdictional waters and riparian habitat within the project site have always been identified as ‘permanent,’ and the county has not contemplated on-site restoration of these habitats for several years. However, the Jurisdictional Waters Wetlands Delineation Report and the mitigation measures set forth in the storm drain project environmental impact report belie that assertion. Under the storm drain project, impacts to this portion of the jurisdictional waters must be avoided. Yet the Church of The Woods project contemplates building on top of these jurisdictional waters, resulting in a permanent impact without mitigation.”
According to Judge Cohn, “the revised draft environmental impact report, the final environmental impact report and the revised conditions of approval demonstrate that impacts to the jurisdictional waters and riparian habitat will go unmitigated.” He wrote, “the environmental impact report omitted information about the project’s impact on certain jurisdictional waters and riparian habitat, the temporary impacts of the storm drain project on these areas within the project site, and the mitigation measures for any temporary impacts. The county’s conclusion that cumulative impacts of the project on jurisdictional waters and riparian habitat will be less than significant is not supported by substantial evidence. The petition is granted on this ground.”
Judge Cohn wrote, “[The] petitioners contend the environmental impact report fails adequately to disclose, analyze, and mitigate the project’s impacts to the wildlife in the area – specifically, impacts to the southern rubber boa, the California spotted owl, the San Bernardino flying squirrel, and six other special status wildlife species identified in the storm drain project environmental impact report. Petitioners also contend the environmental impact report does not adequately discuss features of the project that would affect wildlife corridors in the area.”
With regard to surveys undertaken to detect the presence of the southern rubber boa on the property, Judge Cohn thereafter devoted considerable text to an analysis of the survey of the grounds to search for the snake, a threatened species, and the method used by the consultants to the Church of the Woods in carrying out its survey of its presence on the property in question. Judge Cohn noted the secretive nature of the reptile and that no evidence of its presence was found. He ultimately referenced a condition of approval that calls for work on the project to be halted and the California Department of Fish and Wildlife to be contacted if the snake is encountered during grading. “Petitioners have not met their burden of demonstrating that the environmental impact report’s conclusions regarding the species are not supported by substantial evidence. This ground for the petition is denied,” he wrote.
Judge Cohn’s conclusion, however, was different with regard to the actual impact of the project on the southern rubber boa’s habitat.
“The environmental impact report acknowledges that the project will result in significant impacts to the southern rubber boa before mitigation and that impacts will ‘remain cumulatively significant and unavoidable’ even after mitigation due to the loss of habitat,” Judge Cohn wrote. “But the environmental impact report nevertheless concludes that impacts will be ‘mitigated to a level below significance’ by a conservation easement on an undeveloped portion of the site. [The] petitioners contend that that this conclusion is unsupported by substantial evidence because the environmental impact report erroneously assumes that the project will impact only low-quality or unsuitable habitat and that the species is absent from the site.” He found that the environmental assessment assumed the presence of the snake on the property, though none had been detected during the survey of the land and the project proponents had devised mitigation measures to protect the species that would eventually be put in place. “The revised draft environmental impact report states that project-level impacts will be mitigated to a level below significance, but impacts will be considered unavoidable and cumulatively significant at the regional level due to the loss of habitat,” Judge Cohn wrote. “As a result, Mitigation Measure MM-3.C1(a) requires a pre-construction clearance survey for the southern rubber boa before issuance of a grading permit, and monitoring by a biologist during the clearing of vegetation.
“Nevertheless, Judge Cohn continued, “the environmental impact report improperly defers formulating mitigation measures. Generally, it is improper to defer the formulation of mitigation measures until after project approval; instead, the determination of whether a project will have significant environmental impacts, and the formulation of measures to mitigate those impacts, must occur before the project is approved.”
According to Judge Cohn, the details have been left to be determined in a future “long-term management plan” that is to be submitted to the California Department of Fish & Wildlife after project approval. “The environmental impact report fails to impose any performance standards for this mitigation measure, to describe any actions for actively managing the habitat, or provide any other guidelines for the long-term management plan,” Judge Cohn wrote. “The environmental impact report does not explain why it was ‘impractical or infeasible’ to describe or formulate a detailed long-term management plan at this time. ln this case, neither the revised draft environmental impact report nor the final environmental impact report provides any specific requirements for the long-term management plan. lnstead, the environmental impact reports merely state that the conservation easement must support ‘a total of 1.65 available onsite acres of high-quality southern rubber boa habitat, 218 acres of moderate quality southern rubber boa habitat, and 9.57 acres of low-quality southern rubber boa habitat.’ But the environmental impact reports do not provide any requirements for the easement’s location, or any guidelines for how the conservation management entity must preserve and manage the easement and the southern rubber boa population. The absence of standards or guidelines in the environmental impact reports is problematic because it does not allow for any analysis or review of the long-term mitigation efforts. Therefore, the county violated the California Environmental Quality Act by improperly deferring formulation of this mitigation measure. The petition is granted on this ground.”
The lawsuit also challenged the project on the basis that the environmental impact report does not require the Church of the Woods to obtain an incidental take permit from the California Department of Fish & Wildlife to cover accidental harm to protected species by the presence of people on the church grounds. Judge Cohn rejected that argument, calling it “unavailing.”
With regard to potential harm the project might have on the California Spotted Owl and San Bernardino Flying Squirrel, Judge Cohn ruled that the environmental impact report, as in the case of the southern rubber boa, improperly deferred mitigation measures for these species. Judge Cohn wrote, “the long-term management plan does not contain any performance standards or detailed guidelines, and therefore improperly defers mitigation of the project’s impacts. The petition is granted on this ground.”
The lawsuit raised concerns about the impact to other special status species the petitioners contend the environmental impact report failed to evaluate properly. Those species were the Andrew’s marble butterfly, the peregrine falcon, the bald eagle, the yellow warbler, the American badger and ringtail that the storm drain project environmental impact report found could occur on the site. Church of the Woods contends that the petitioners did not exhaust their administrative remedies regarding three of these six special status species, and therefore were barred from raising their objections at this point.
“The Church of the Woods’ argument is misplaced,” Judge Cohn wrote with regard to that. “The storm drain project environmental impact report found the Andrew’s marble butterfly has a ‘high’ potential to occur on-site, while the peregrine falcon, bald eagle, yellow warbler, American badger, and ringtail each have a ‘moderate’ potential to occur. The storm drain project environmental impact report assessed not only the county-owned parcel, but also the area of this project site where construction of the culvert would temporarily affect the habitat. The habitat assessment for the revised draft environmental impact report addresses the bald eagle, yellow warbler, and American badger. Regarding the bald eagle, the habitat assessment concluded that ‘suitable nesting habitat can be found throughout the project site,’ and that although no bald eagles were observed on-site at the time of the survey, they had ‘been observed nesting and foraging within the vicinity of Lake Arrowhead.’ As for the yellow warbler and American badger, the habitat assessment stated that neither were observed during the survey and that no suitable habitat was present for either species. However, the project environmental impact report entirely fails to address the Andrew’s marble butterfly, the peregrine falcon, or the ringtail.”
Noting the possibility or even probability of the presence of the Andrew’s marble butterfly, the peregrine falcon, and the ringtail within the boundaries of the project site, Judge Cohn wrote “the project environmental impact report does not discuss whether these species were included in the habitat assessment. Absent this information, it is not known if these species are present, and thus it is not known if the project will have any impacts on these species. The petition is granted on this ground.”
According to Judge Cohn, “[The] petitioners contend that the environmental impact report does not adequately describe existing conditions or address the project’s impacts on wildlife corridors in the area, and that its conclusion that the project’s impacts would be less than significant ‘is baseless and internally contradictory.’ After noting that the Strawberry Creek corridor ‘is constrained in areas by private ownership and wildlife movement would be impeded by project-related disturbance,’ the revised draft environmental impact report concludes that wildlife movement could continue on the undisturbed northern and western portions of the project site. Because the areas in and around the site ‘will continue to provide opportunities for local wildlife movement and will remain as a corridor for highly mobile wildlife species,’ the environmental impact report concludes that the ‘implementation of the project would result in less-than-significant impacts to wildlife movement and wildlife corridors,’ and ‘no mitigation is warranted.’ Petitioners cite to several comment letters submitted by retired Forest Service wildlife biologist Steve Loe as part of petitioners’ appeal of the planning commission’s recommendation to approve the project. Loe worked in the San Bernardino Mountains and national forest lands adjacent to the project site for more than thirty years, and worked as a consultant for the county regarding southern rubber boa habitat and protection. Loe asserts that the draft environmental impact report ‘underestimates the regional importance of the project area for wildlife movement’ because the project site is located just outside wildlife corridors that were mapped by the county decades ago. According to Loe, the project site ‘is in the most viable landscape linkage remaining that connects the north-side habitats from the Mojave River watersheds of Grass Valley Creek, and Deep Creek to the south side watersheds of City Creek and Strawberry Creek.’ Loe contends the project has ‘the potential to completely cut off [wildlife] movement across the highway to City Creek and Strawberry Creek.’”
Judge Cohn continued, “The San Bernardino Valley Audubon Society stated that the revised draft environmental impact report did not adequately disclose or analyze the project’s impact on the wildlife corridor because of its assertion that the project site ‘is only on the edge’ of the wildlife corridor. The Audubon Society took issue with a conclusion that wildlife could go around the church complex. According to the Audubon Society, however, there are ‘no studies or evidence… to substantiate this claim,’ and the environmental impact report should address issues such as ‘where is the optimal point for large mammals… to summit the steep ridge directly south of the project and then cross over State Highway 18.’ The Church of the Woods asserts that wildlife movement will be unobstructed. Regarding six-foot-high tubular steel fencing to be erected along the southern perimeter of the proposed recreational field, the Church of the Woods similarly contends that it also ‘would not otherwise impede wildlife movement given the lack of other barriers on the project site and the open space that would continue to exist surrounding the athletic field .,..’ The Church of the Woods’s references to the administrative record do not support these assertions. The referenced discussion in the revised draft environmental impact report regarding lighting is found in the section entitled “Project Description,” and the discussion regarding fencing is contained in the section analyzing the project’s aesthetic impacts. ln the portion of the environmental impact report discussing thresholds of significance and the project’s impacts on biological resources, there is no mention of the lighting, fencing, or other proposed structures and their potential impact on wildlife corridors. Similarly, the habitat assessment does not provide any substantive analysis of the project’s impacts on the movement of wildlife through the area. Accordingly, the environmental impact report fails as an informational document because it does not adequately account for the project’s potential to eliminate a critical wildlife corridor. The petition is granted on this ground.”
Judge Cohn also sustained the plaintiff’s objection to inadequacies in the environmental impact report’s evaluation of geotechnical data, including pollutants making their way into Little Bear Creek.
Judge Cohn rejected the petitioners’ contention that the environmental impact report’s analysis of the project’s impacts on aesthetics is inadequate because it does not provide an accurate description of the appearance of the project upon completion.
“Although the project will introduce a high level of change to the undeveloped forest, petitioners do not demonstrate that substantial evidence does not support county’s determination that project-related aesthetic impacts will be less than significant,” Judge Cohn wrote. “This ground for the petition is denied.”
The lawsuit contended that the environmental impact report is deficient because the project proponents’ emergency evacuation plan regarding wildfire evacuations omits information regarding roadway capacity in accommodating traffic during a mass evacuation.
Judge Cohn made a finding that “Petitioners have produced evidence, other than unsubstantiated opinions, that the project will exacerbate the wildfire hazards associated with evacuation of the area. The county and the Church of the Woods have not pointed to substantial evidence in the record supporting a finding that the identified evacuation routes are adequate to safely and efficiently evacuate the approximately 900 attendees that could congregate at the project. The environmental impact report’s discussion of wildfire hazards ignores the conclusions set forth in the analysis of traffic and transportation impacts, and fails to address whether the contemplated mitigation measures addressing transportation impacts will also accommodate vehicle traffic in the event of evacuations. Nor is there any discussion regarding the actual capacity of the identified highways or connecting roads to accommodate evacuation of 900 people from that specific area. The environmental impact report therefore fails as [an] informational document. The petition is granted on this ground.”
The lawsuit took issue with the statement of overriding considerations that the county board of supervisors cited in approving the project.
Judge Cohn concurred with the plaintiffs on that score.
“[T]he adoption of a statement of overriding considerations cannot cure fundamental defects in the environmental impact report’s discussion of mitigation measures that preclude an understanding of the effectiveness of mitigation,” Judge Cohn wrote. “Significant uncertainty regarding the effectiveness of mitigation measures can undermine the foundation of a statement of overriding considerations. ln this instance, due to the deficiencies in the environmental impact report, the document did not contain enough detail to enable the county to understand and meaningfully consider the issues raised by the project, determine the impacts of the project, or evaluate the effectiveness of mitigation measures. The petition is granted on this ground.”
Judge Cohn rejected the petitioners’ claim the project violates the Planning and Zoning Law because it conflicts with various provisions of the County General Plan and the Lake Arrowhead Community Plan.
Hugh Bialecki, President of Save Our Forest Association, said, “I’m grateful the court recognized the highly detrimental impacts this development would have on our mountain traffic, making it more hazardous for residents to escape from fire, while also needing to add six new traffic signals.”
Steven Farrell, chairman of the Sierra Club’s San Bernardino Mountains Group, called upon the leadership of the Church of the Woods to “take a serious look at an alternative” to the development plan for the site it submitted to the county.
“We’re relieved the county’s approval has been overturned. Now the many species that use this special site of century-old conifers and oaks — the owls, foxes, deer, and bear — and especially the boa and flying squirrels, two species found only in this forest, will not be evicted,” said Drew Feldmann, conservation chairman of the local Audubon Society.
A group of environmental groups has prevailed in its effort to have the county board of supervisors’ approval of the Church of the Woods’ plan to build a campus on an undeveloped property in the San Bernardino Mountains community of Rimforest rescinded.