18 August 2009

The Stonefield Development and a Lesson in Inevitability (Maybe)

Well, after all of my long excursions (rants?) on the Canyon Crest and Stonefield housing project proposals for Carbon Canyon, in which I naively believed that local governments could, in fact, prevent these developments from happening by merely invoking the unavoidable, significant adverse impacts identified, under California Environmental Quality Act standards, through an Environmental Impact Report, I have found that my understanding was, in fact, dead wrong.

Or have I?

As explained to me tonight by a Chino Hills city planner, after hearing the Planning Commission Chair and the Assistant City Attorney say that a developer has a locktight constitutional right to develop his/her property and after the Commission unanimously approved the EIR, tract map and other conditions for this project, CEQA cannot enable a local agency to deny the right to develop a property outright, because this would be an unfair taking of said property. Rather, local governments can only work to make these projects conform to local codes and statute via mitigation and Statements of Overriding Consideration.

Yet, there is an interesting article published in 2006 by the USC Law School from George Lefcoe on CEQA issues. Among the statements in the piece:

CEQA findings can be marshaled to justify rejection of almost any proposed project.

Further, a quote from the Public Policy Institute of Calfornia offers that:

Evidence suggests that while CEQA offers planning benefits at the local level, it does not mesh effectively with wider, more comprehensive planning, a point I actually focused on tonight in my public comment at the Planning Commission meeting.

Just as relevant is Mr. Lefcoe's statement that

the researchers [from the Public Policy Institute] pointed out that local officials often seek to reduce a project's possible environmental impacts by reducing its density. Viewed locally, the reduced density might mitigate traffic congestion or loss of open space. This is exactly, in fact, what has happened with Stonefield, Canyon Crest, and who knows how many other housing projects in and beyond the canyon; namely, reduce the density and you've mitigated the environmental effects. Except that there are experts in the field who question that assumption.

Now, obviously, Mr. Lefcoe's paper offers his interpretation and those of the Assistant City Attorney of Chino Hills are different.

If, however, the institutional culture of the City of Chino Hills, whether through its City Attorney's office, Planning Department, Planning Commission, and/or City Council, is that there is no way to block a project via CEQA because of constitutional protections against taking property by blocking the right to develop, this would appear to fall under the open interpretations made available by the discretionary powers held by local agencies.

Basically, just because city officials (Planning Commission chair, Assistant City Attorney, Senior City Planner, etc.) believe (or are led to do so) that they are unable to deny, only mitigate, projects, does not, AT ALL, mean that this is legally (whether by statute or case law) so.

Indeed, Mr. Lefcoe's paper, which actually addresses displaced development due to CEQA-based rejections (meaning, a rejected project from one site migrates elsewhere and is accepted--PRECISELY because of the discretionary power possessed by local governments), points out that recent case law is at odds, citing California Appellate Court rulings in 2005 and 2006.

Certainly, the City Attorney's office in Chino Hills could go out and find and cite legal articles that hold otherwise. Which would only go to show that there is no one way to interpret CEQA as a grounds to deny projects. Instead, the final decision comes from the wide latitude afforded to local agencies, provided that a Statement of Overriding Considerations is isued to counter the identified adverse impacts and that the benefits accuring therefrom are put into the public record.

That is, if a local government wants a project to happen, it can make it happen (and then say that it was constitutionally obligated to respect the inviolable right to develop property). Correspondingly, if a local agency wishes to deny a project, it can do that, too, and cite the applicable CEQA impacts to back it up. This, at least, is what I take from Mr. Lefcoe's statement above that: "CEQA findings can be marshaled to justify rejection of almost any proposed project."

In the latter case, however, a developer could then choose to sue and see if a court will rule in their favor by arguing that the adverse impacts were, if not totally mitigatable, then significantly reduced and overriden by considering the benefits that would accrue to the local agency by approving the project.

Is this cost/benefit analysis based on uniform and consistent criteria? No, indeed. Fortunately for local agencies and for developers, that discretionary power makes it easy to list benefits without general standards, so long as the SOC is issued and the rationale for it placed on the public record.

I think now would be a good time to quote liberally (!) from Mr. Lefcoe's conclusion, because it is a good summation of CEQA, the role of planning, and the problem with determining how local governments should apply its CEQA-based determinations of local land use.

The California Environmental Quality Act (CEQA) has become an elaborate paper filter for screening proposed development projects that require discretionary local government approvals. CEQA requires local governments to prepare environmental impact reports (EIRs) before voting on land use controls such as zoning, annexations, or general plans that would facilitate individual development projects if those projects could alter the physical environment. . .

Until now, CEQA has tended to focus on the neighborhood impacts of proposed development . . . But CEQA offers scant guidance on where it would be best to locate the 600,000 or so new residents to arrive or to be born in California each year between now and 2015 [this according to the state Department of Housing and Community Development in an August 2005 paper]. Given the state's underfunded roads and schools, and infamously poor air quality, most new development would only seem to worsen the quality of life for those of us already resident in California. Yet, growth in California appears inevitable and needs to be accommodated somewhere. CEQA should be a tool for assisting local officials to direct new development where it will do the least harm to the physical environment or the most good. As researchers at the Public Policy Institute of California concluded: 'Currently, CEQA does not effectively accommodate regional strategies that trade off increases in negative effects in one geographic area or for one environmental impact in exchange for corresponding reductions in another.' By insisting upon EIRs taking into account the possibility of displaced development, the California Supreme Court would be interpreting CEQA to minimize environmental damage while fulfilling the legislative aspiration of 'providing a decent home and satisfying living environment for every Californian.'

The crux? Does this concept of diminishing environmental damage in a sensitive area apply to Carbon Canyon? And, as importantly, does it now matter given previous county planning (so-called), city codes and planing, the city's institutional culture when it comes to development, and the very real possibility that it might just be too late--that with 174 homes already approved on the Chino Hills side of Carbon Canyon, with these 28 units in Stonefield on the cusp of approval, and 110 more near Canyon Hills in pre-application, the damage has already been underway and will soon cumulatively continue the degradation of the Canyon?

Market forces permitting, the day is soon coming when Pine Valley Estates will revive, Canyon Hills emerge, and Stonefield constructed. 202 houses are almost certainly to be built in the not-too-distant future. Regardless of what happens to the 110-unit project in pre-application or to Brea's stalled Canyon Crest, when those 202 houses are built, it will already have been time for some of us to have gotten out.

Because, simply stated, Carbon Canyon will be forever negatively altered.


CanyonNative said...

There should be a lot more feedback on your inciteful comments. It seems that people wait to try to stop environmentally harmful projects until it's too late. They don't pay attention to the information available to them and then complain that they "had no idea" the project would be so bad.

Thanks, Paul, for the many contributions you make to improving the quality of life in Carbon Canyon.

Paul said...

Hi CanyonNative, thanks for your comment. As has been said, Carbon Canyon is a microcosm of a bigger issue of unsustainable development in our region. From the way Stonefield is going, we will have at least 202 approved houses built here on the Chino Hills side in the not-too-distant future. Can anyone argue that this is good public policy or that the Canyon will have an improved quality of life as a result?