Court finds flaws in Fannita Ranch EIR for failure to specify mitigation guidelines or explain questions about water supply.

Preserve Wild Santee v. City of Santee

No. B231411 (2012 DJDAR 14541) (4th Dist., Div. 1) (October 19, 2012)

Various groups challenged the EIR for the proposed Fannita Ranch project in Santee. They successfully argued to the trial court that the EIR failed to show that the fire safety impacts were less than significant. The court found them prevailing plaintiffs and awarded fees. The trial court disagreed with all other arguments of Petitioners. While the appeal was pending, the trial court ordered the EIR be decertified.

The Court of Appeal affirmed and reversed in part. The Court found the following to be the key winning arguments by Petitioners.

First, the EIR failed to specify guidelines in a draft habitat plan mitigation measure that would be implemented by the developer to protect the habitat of the Quino, an endangered butterfly. The EIR improperly left such management to the discretion of the preserve manager based upon prevailing environmental conditions. The Court held the formulation of mitigation measure could not be left to a future time.

Second, the EIR included a water supply assessment, which differed substantially from the assessment prepared by the local water district. The court concluded such discrepancy could not be explained by counsel but had to be presented to the public and decision-makers to comply with CEQA’s informational requirements. While such assessment requires a discussion of existing and planned future supplies, the Court noted the “ultimate question” is “whether the EIR adequately addresses the reasonably foreseeable impacts of supplying water to the project, not whether the EIR establishes a likely source of water.” Moreover, the EIR failed to discuss the uncertainty of future supplies created by a 2007 court ruling which might affect the amount of water from the State Water Project obtained by a wholesale water district supplying water to southern California. Finally, the EIR failed to explain the source of potable water to fill a 10-acre lake at the project. If stormwater were insufficient, then there was an unresolved issue as to how much groundwater could be used, given the potential to adversely impact riparian habitat.

As for attorney fees, the Court agreed Petitioners were the prevailing party. Defendant’s challenge to the mode of calculation by the trial court lacked merit insofar as defendant had failed to ask for a Statement of Decision.

Prepared by John Reaves

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