The Twentynine Palms City Council’s decision last month to utilize a far less exacting environmental certification process than it could have when it gave approval to the Ofland resort in the community’s Indian Cove District has triggered a lawsuit challenging the project altogether.
Houston, Texas-based Ofland, headed by Charles Tate and Luke Searcy, on July 22 obtained the city council’s approval to build 100 guest cabins and 25 units of employee housing along with two lodges, a swimming pool and spas, recreational areas, playgrounds, restaurants and a bar on 42 acres at the center of a152-acre site. The council’s action came after the planning commission on June 25 made a non-binding recommendation that the city council give go-ahead to the project. At both the planning commission and city council hearings for the undertaking, there were significantly more residents voicing opposition to Ofland’s plan, which required a zone change from residential to tourist commercial, a general plan amendment and a conditional use permit to be allowed to proceed, than there were residents speaking in favor of it.
Under the California Environmental Quality Act, an examination of the environmental impacts of a project must be made. Some discretion is left to the governmental decision-making body that oversees land use issues and possesses approval and/or denial authority regard to a development project as to what type of analysis of the environmental issues is to be carried out and what mitigations of the impacts are to be required.
In evaluating the project application thus far, Twentynine Palms planning staff elected to use a mitigated negative declaration, also referred to as an initial study, as the means of providing the project with its environmental certification.
A simple negative declaration is the least exacting type of development impact assessments and a mitigated negative declaration is the second-least stringent type of development impact assessments. On the other end of the scale, an environmental impact report is the most involved and exhaustive type of environmental analysis and certification there is, followed by an environmental impact study, then an environmental impact assessment, then a mitigated negative declaration and a negative declaration. An environmental impact report consists of an in-depth 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. An environmental impact study is somewhat less exacting and an environmental impact assessment less stringent still. A mitigated negative declaration is a statement by the ultimate land use authority – in the is case the board of supervisors – that any identified impacts from the project will be mitigated or offset by the conditions of approval for the project. A negative declaration, the least exacting type of certification there is, merely states that the initial study done by the agency staff – in this case the county department of land use services – sufficiently identified any environmental issues and that there are no environmental problems of consequence involved in the proposed project. In the case of Ofland, planning staff, the planning commission and the city council required nothing beyond the initial study to approve the project, which many in Twentynine Palms objected to.
Two groups, the Center for Biological Diversity and Indian Cove Neighbors, believing the city cut corners in allowing Ofland to develop the property without undertaking an environmental impact report and making a finding that the conditions of approval ensured that any untoward impacts would be addressed, filed suit on August 20 in San Bernardino County Superior Court.
The plaintiffs asked the court to enjoin Ofland from proceeding with the project until the lawsuit is resolve. This is necessary, according to the legal team representing the Center for Biological Diversity, because the damage to both the habitat and migratory paths of six special-status wildlife species and five special-status plant species will occur during and after the construction phase of the project.
The suit does not petition for the abandonment of the project altogether, but seeks a court determination that a full environmental impact report for the project be completed, including the specification of mitigations, for the project to be allowed to proceed.
City staff’s and Ofland’s contention that there will be no serious or irreparable impacts on the species indigenous to the are if the company complies with the conditions of approval does not comport with reality according to the Center for Biological Diversity. The center’s legal team characterizes those impacts as “significant.” The property to be developed lies within a wildlife corridor that runs into Joshua Tree National Park, according to the plaintiffs. In addition, the vehicles that will transit the area will result in a deleterious effect on air quality, produce greenhouse gasses, result in nighttime light pollution and impacts on the quality of life of the residents of the Indian Cove, the suit propounds.