03 November 2015

A Thunderous Decision: Madrona Is Struck Down!

It seems entirely appropriate that, as these words are being typed, dark clouds are descending on Carbon Canyon, a refreshing rain is falling, and lightning and thunder have been seen and heard in the area.

Is this a sign from above?  Or, is it just a sign from Santa Ana?  Either way, a lot of people are thunderstruck over what has been a lightning rod of controversy for decades.

This morning, Orange County Superior Court Judge Robert J. Moss issued a ruling in the lawsuit of Hills for Everyone vs. City of Brea over the latter's approval last year for the 162-unit Madrona project on the north side of Carbon Canyon between Olinda Village and the county line in the Brea portion of the canyon.

The order from the bench just after 9:30 this morning is clear, concise and utterly damning of the way that the City of Brea ignored its own ordinances to get approval for this project, which was first proposed a-way back in the 1980s.

Here are the highlights in Judge Moss' findings:
  • Brea's Hillside Management Ordinance is applicable to the project "and therefore precludes project approval"
  • Madrona is not consistent with the city's own general plan and the Carbon Canyon Specific Plan "as admitted by the City"
  • The project does not comply with woodland preservation policies "as admitted by the City"
  • Madrona is not exempt from review under the California Environmental Quality Act (CEQA) under a specific section, 65457, which is excerpted here:
Any residential development project, including any subdivision, or any zoning change that is undertaken to implement and is consistent with a specific plan for which an environmental impact report has been certified after January 1, 1980, is exempt from the requirements of Division 13 (commencing with Section 21000) of the Public Resources Code. 

However, if after adoption of the specific plan, an event as specified in Section 21166 of the Public Resources Code occurs, the exemption provided by this subdivision does not apply unless and until a supplemental environmental impact report for the specific plan is prepared and certified in accordance with the provisions of Division 13 (commencing with Section 21000) of the Public Resources Code. After a supplemental environmental impact report is certified, the exemption specified in this subdivision applies to projects undertaken pursuant to the specific plan.

An action or proceeding alleging that a public agency has approved a project pursuant to a specific plan without having previously certified a supplemental environmental impact report for the specific plan, where required by subdivision (a), shall be commenced within 30 days of the public agency's decision to carry out or approve the project.

  • That the Environmental Impact Report (EIR) "is otherwise inadequate, as it fails to analyze the consistency with the specific plan's" guidelines on grading, climate change impacts, and impacts on recreation.
  • Otherwise, the judge did rule that "the petition is denied on all other issues raised."
For those who got the point and don't feel inclined to read details on the ruling, they can stop here and celebrate (or, if there are any of you out there, mourn) the ruling of Judge Moss.  

Otherwise, feel free to read on.

It was a dark day for the City of Brea and the State of Idaho and a bright, shining moment for Hills for Everyone and its partners as Judge Robert J. Moss issued a writ of mandate this morning concerning the Madrona project proposed for the Brea portion of Carbon Canyon.  The photo was taken this afternoon a little before 4 p.m.
In further explaining, his ruling, Judge Moss offerred some highly pointed criticism of the city.  For example he states that, relating to the applicability of the Hillside Management Ordinance, he noted that "the statute could not be any clearer, so the issue is not one of ambiguity."  Moreover, he continued, "the City's shifting approach with respect to the ordinance does not allow this court the option to defer to the City on the issue."

Going on, the judge added that "the City's historical position has been anything but clear and consistent" and went on that "the City actually took the exact opposite position, from that which it is taking now, in 2001 and 2004."

Notably, there was an argument made that inconsistencies between this ordinance and the city's specific plan invalidated the HMO and there could have been plausbility, the judge observed, "had the City made that finding," but it did not do so.

Conversely, as to the petitioner's claim that the HMO is consistent with the specific plan, the court agreed, noting, "the ordinance advances several of the goals of the specific plan and does not obstruct the obtainment of those goals."

Critically, Judge Moss stated that
The developer can comply with both [the Hillside Management Ordinance and the specific plan] without violating either.
He concluded that
This brings us to the end result that as the ordinance applies to the project, the project is barred, and neither the City nor the real party in interest has argued otherwise.  The petition must be granted for this reason alone.   
As admitted by the City, Madrona is inconsistent with the Brea General Plan and the Carbon Canyon Specific Plan, further reason for the Petition to be granted.   
Moss did rule that the petitioner's claim that the project was anathema to the open space policy of the specific plan was not valid and he did side with the city on the issue.

Concerning the applicabililty to CEQA under the aforementioned section, 65457, of the government code, the judge stated that the project is not exempt because of Brea's admission that the project did not comply with the city's general plan and the Carbon Canyon Specific Plan "and the exemption cannot apply when such inconsistencies exist."

On grading standard inconsistency, Judge Moss wrote that, of the three documents submitted for Madrona, "two of the documents do not analyze the current project, but a former project, and the third . . . [is a] self-serving analysis submitted after the approval of the final EIR, and therefore not within the EIR itself.  That is insufficient."

With respect to climate change impacts, the court ruled that the city's use of South Coast Air Quality Management District thresholds for emissions "has not been consistent and no substantial evidence shows otherwise."  In addition, there was nothing offered "which supports applying different standards to each individual project."

Judge Moss did strike down one of the petitioner's claims about greenhouse gas reduction plans "based on case law that is not any longer citable and the argument therefore fails."  But, on the matter of conflicts with a regional transportation plan, "the City incorrectly finds the strategies promulgated there do not apply to the project."  Noting that "Madrona is plainly inconsistent with the Plan's key strategies," the jurist observed that "there is no citation to support this bald assertion, and the argument therefore fails."

A sustainability plan from 2012 was also a core component of this line of argument and the court ruled that the petitioner's claim that the EIR did not take this into account "is correct."  He went on to note that, "the plan was well on its way to coming to fruition, and certainly within the City's purview.  It was the City's own Plan, and it should have been considered."

On assessing trip rates for traffic in the area, "the City offers no effective explanation for its failure" to properly apply calculations for Madrona than it did for those used for hillside residences.

Judge Moss did reject the petitioner's claims about property analysis in the EIR for fire impacts, ruling that the document "was sufficient and supported by substantial evidence" and that "mitigation measures are also adequate."

Concluding his ruling, the judge stated that the recreation impacts were not properly identified in the EIR baseline, specifically that there are existing trails as a "significant physical environmental feature."

Allowing that there were a few rejections of arguments made by the petitioners, this sum total of this decision was a clear and resounding defeat handed to the city and to the State of Idaho, identified as a "real party in interest" in the document.  The judge obviously was dismissive of the city's gross inconsistencies in applying its own ordinances and in failing to have an adequate Environmental Impact Report.

However . . . there is always the possibility (probability) of an appeal by the City of Brea and the State of Idaho.  So, stay tuned for any further developments along those lines, should they arise.

Meantime, this is a resounding victory for a model of grass-roots community organiztion and activism of the highest order.  Hills for Everyone, its co-petitoners, the citizens of Brea's portion of Carbon Canyon, the law firms which ably represented its clients and everyone else involved!

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