A local environmental group has filed a second lawsuit against the City of Ontario relating to its lease of property to the east of Ontario Airport where last month the city council gave approval of a plan to construct nine industrial buildings.
On December 23, 2021, the Ontario International Airport Authority unanimously approved a 55-year lease with CanAm Ontario LLC, a joint venture between the McDonald Property Group of Newport Beach and USAA Real Estate Co. of San Antonio, Texas for 197.85 of 216 acres the Ontario International Airport Authority owns east of Haven Avenue south of Airport Drive and north of Jurupa Avenue and west of Carnegie Avenue.
CanAm Ontario was chosen from among what the authority said were more than 4,800 potential bidders on the property.
In securing the exclusive ground lease right, CanAm agreed to make a non-refundable $10 million deposit, and is to pay the airport authority roughly $625 million between 2021 and 2086, with $275 million being paid over the first decade of the lease, through December 2031. Airport officials celebrated that aspect of the lease, indicating that not only will the currently fallow acreage between Airport Drive and Jurupa Avenue be transformed into industrial concerns including factories, warehousing, distribution facilities and other logistics elements, but the airport through the authority will directly receive millions of dollars to defray the cost of further airport improvements and underwrite the cost of operations.
No sooner had the lease been signed, however, than a collection of environmentalists, including those in the Pomona Valley Audubon Society, took note that the lease site, east of the runway, is habitat to rare small nesting burrowing owls.As the birds are thriving on the property and their habitat elsewhere is dwindling, the activists resolved to undertake an effort to protect the owls.
That action came in the form of a lawsuit filed by the group, which calls itself Inland Valley Advocates for the Environment. That suit, naming Ontario International Airport Authority as a defendant and respondent CanAm Ontario LLC as a defendant and real party in interest, aimed at nixing the lease.
According to the petition’s cause of action, the development of the property as envisioned with the lease violates the California Environmental Quality Act, and the airport authority’s effort to apply a categorical California Environmental Quality Act exemption to the leasing and development of the property was improperly made. In particular, the suit alleged, the lease and development of the property would result in significant direct, indirect, or cumulative adverse impacts on the environment and biological/wildlife resources on and around the property. The suit asserted the failure to carry out an environmental review of the lease’s implication constituted a violation of the California Environmental Quality Act.
The Ontario International Airport Authority filed a demurrer to the action, seeking to have the lawsuit dismissed on the grounds that despite any validity of the environmental issues raised in the suit, it is the City of Ontario, not the Airport Authority, that is the lead agency responsible for the California Environmental Quality Act review pertaining to any future development and the city had not yet approved any development projects and Inland Valley Advocates For the Environment had failed to exhaust its administrative remedies. The demurrer further sought to establish that redress through a lawsuit is not a valid method of challenging an administrative decision.
Judge Donald Alvarez, who was hearing the matter, ruled that the Ontario International Airport Authority was, in essence, the lead agency in that it had leased the property to CanAm Ontario/McDonald Property Group/USAA Real Estate Company. Hence, the lawsuit continued.
With that litigation yet proceeding, on January 24 of this year, the Ontario Planning Commission held a public hearing to consider a proposal by the McDonald Property Group to construct nine industrial buildings totaling 4,263,454 square feet and make associated site improvements on 216.39 gross acres, or what was alternately listed as 196.83 net acres, involving 24 separate parcels, generally located east of Haven Avenue, west of Doubleday and Dupont Avenues, north of Jurupa Street and south of Airport Drive. The proposal was done under the dual aegises of the California Commerce Center Specific Plan, within its IL (Light Industrial) land use district, and the Ontario Plan 2050 Supplemental Environmental Impact Report and a development plan that bore the file number designation  PDEV21-047.
Despite the property having been leased to CanAm Ontario LLC, McDonald Property Group and USAA Real Estate Company, the landowner was listed as the Ontario International Airport Authority.
The planning commission gave go-ahead to the project, action which was immediately appealed to the Ontario City Council. On March 21, 2023, the city council denied the appeal and upheld the planning commission’s approval of the nine industrial building project.
As Inland Valley Advocates for the Environment remains opposed to the development of the property and the original 55-year lease between the Ontario International Airport Authority with CanAm Ontario LLC is different from the development agreement granted by the Ontario Planning Commission and the Ontario City Council, Inland Valley Advocates for the Environment filed a second lawsuit.
In that suit, dated April 18, the group is represented, as it was in the 2021 suit against the Ontario International Airport Authority, by Upland-based attorneys Cory Briggs and Janna Ferraro.
Briggs and Ferraro contend in the suit that the Ontario Plan 2050 Supplemental Environmental Impact Report was inadequate for providing the environmental certification for the 4,263,454-square foot, nine industrial building project, as several substantial changes are proposed in the project which will require major revisions to the previous environmental assessments due to the involvement of new significant environmental effects and a substantial increase in the severity of previously identified significant effects. Moreover, Briggs and Ferraro maintain that substantial changes occurred with respect to the circumstances under which the project is now being undertaken, requiring major revisions of the previous environmental impact report and that identified specificity with regard to what is to be constructed on the property, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous environmental impact report was certified, now necessitates that the environmental impact report be reconsidered and recertified.
Whereas significant effects previously examined will be substantially more severe than shown in the previous environmental impact report and mitigation measures and alternatives previously found not to be feasible would now in fact be feasible and would substantially reduce one or more significant effects of the project, Briggs and Ferraro assert that the project proponents’ unwillingness to activate those mitigation measures needs to be reexamined and that mitigation measures or alternatives which are considerably different from those analyzed in the previous environmental impact report which would substantially reduce one or more of the significant impacts of the project as now proposed need to be taken into consideration before the project is allowed to proceed.
The suit seeks a ruling from the court declaring that the city, as a defendant, and McDonald Property Group, which is named as a defendant and real party in interest, failed to fully comply with the California Environmental Quality Act and other applicable laws as they relate to the project and that there must be full compliance before final approval and implementation of the project is given. The lawsuit further calls for a declaration by the court that the approval and implementation of the project was illegal in at least some respect, rendering the approval and implementation of the project null and void. The suit requests an injunction prohibiting the city and McDonald Property Group or anyone acting at their request, in concert with or for the benefit of them from taking any action on any aspect of, in furtherance of, or otherwise based on the project unless and until the California Environmental Quality Act is complied with, together with an warding of the Inland Valley Advocates for the Environment’s costs incurred in pursuing the lawsuit.
-Mark Gutglueck