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Preserve Wild Santee v. City of Santee et al

October 19, 2012


APPEALS from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. (Super. Ct. No. 37-2008-00075168- CU-TT-CTL)

The opinion of the court was delivered by: Mcconnell, P. J.


(Super. Ct. No. 37-2008-00075168- CU-TT-CTL)


Affirmed in part, reversed in part, and remanded.


Preserve Wild Santee, Center for Biological Diversity, and Endangered Habitats League, Inc. (collectively, plaintiffs) challenged the certification by the City of Santee (City) of a final environmental impact report (EIR) for a development project in the City's Fanita Ranch area (project), claiming the project failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) in several respects.*fn1 The trial court found merit to one claim--that there was insufficient evidence to support the EIR's conclusion the project's fire safety impacts were less than significant. The trial court issued a limited writ of mandate (limited writ) directing the City to bring this aspect of the EIR into compliance with CEQA and stayed further activities on the project until the City did so. The trial court subsequently determined plaintiffs were the prevailing parties in the litigation and awarded them costs under Code of Civil Procedure section 1032, subdivision (b), as well as attorney fees under Code of Civil Procedure section 1021.5.

On appeal, plaintiffs reassert several claims raised below, including that the EIR improperly deferred mitigation of the project's impacts on the Quino checkerspot butterfly (Quino) and inadequately analyzed the project's water supply impacts. They also contend the trial court was not permitted to issue the limited writ and, instead, was required to vacate the City's certification of the EIR and all related project approvals.*fn2

The City and real party in interest HomeFed Fanita Rancho, LLC (HomeFed or developer)*fn3 contend the trial court erred in determining plaintiffs were the prevailing parties and awarding them costs and attorney fees.*fn4 They alternatively contend we must reverse the attorney fee award because the trial court failed to explain how it reached the award amount.*fn5

We conclude the EIR improperly deferred some of the mitigation for the project's Quino impacts and inadequately analyzed the project's water supply impacts. Although we conclude the trial court may, in appropriate cases, remedy CEQA violations by issuing a limited writ, we question whether this was an appropriate case since the flaw in the EIR's fire safety impacts analysis affected the entire project and the project's fire safety impacts interrelate with its impacts on biological resources, such as the Quino and grasshopper sparrow, requiring careful vegetation management for their preservation. We need not decide the matter, however, since the trial court has recently ordered the City to decertify the EIR and set aside the project approvals as part of subsequent trial court proceedings (see fn. 5, ante). Finally, we conclude the trial court correctly found the plaintiffs were the prevailing parties in this litigation and did not err in awarding them attorney fees and costs below. We similarly award them attorney fees and costs on appeal and remand the matter to the trial court for a determination of the amount of such fees and costs.


Environmental Setting

The project covers 2,600 acres of undeveloped land in Santee, north of State Route 52 and west of State Route 67. The land contains several different biological communities "including wetland (e.g., seasonal basins and freshwater marsh), riparian (e.g., southern willow scrub, coast live oak riparian woodland, sycamore woodland, mule fat scrub), southern mixed chaparral, coastal sage scrub, disturbed coastal sage scrub, grasslands, disturbed or graded areas, and rock outcroppings."

The project would develop approximately 970 acres of the land into 1,380 single-family dwelling units and approximately 230 acres into a pedestrian-oriented village center with 15 live/work units as well as community-serving recreational resources, including a 10-acre lake. The remaining approximately 1,400 acres of land would become an open space preserve (preserve).

In certifying the EIR, the City found the project would result in significant unavoidable air quality, traffic circulation, and cumulative climate change impacts. It adopted a statement of overriding considerations concluding the project's benefits outweighed these adverse impacts. The City found the project's other environmental impacts to be either less than significant or mitigated to a level of less than significant.

This appeal involves the project's impacts to fire safety, certain biological resources, and water supply. We, therefore, confine our summary to these areas.

Fire Safety Impacts*fn6

The project is located in a declared high fire hazard zone due to the vegetation type, fire history, and rough topography in the area. The project site has burned many times in the past and it is expected to burn again in the future. Under established thresholds of significance, the project would have significant adverse fire safety impacts if it exposed people or structures to a significant risk of loss, injury, or death from wildfires.

To address the project's fire safety risks, the developer prepared a fire protection plan (fire plan) for the project. The fire plan's objective was to ensure the project's structures could survive wildfires without structure loss, without loss of life, and without intervention from firefighting personnel, who may be unavailable during a wildfire due to a high demand for their services.

To achieve its objective, the fire plan relied on multiple strategies, including: (1) building structures with fire resistant materials and sprinklers; (2) creating and maintaining "firewise" landscaping zones around structures; and (3) managing the amount of potential fuel in open space areas with prescribed burns or goat grazing. The EIR concluded the project's fire safety impacts were less than significant chiefly because of the fire plan.

However, when the City approved the project, it did not adopt the open space fuel management portion of the fire plan. Because the EIR's fire safety analysis depended entirely on the City's implementation of the fire plan and the fire plan depended in key part on periodic open space fuel modification with either prescribed burns or goat grazing, the trial court concluded there was insufficient evidence to support the EIR's conclusion the project did not have significant fire safety impacts.

Biological Resources Impacts

Analysis of Cumulative Impacts

The Multiple Species Conservation Program (MSCP) covers 900 square miles in San Diego County, including the project site and surrounding property. Participants in the MSCP include the City, the City of San Diego, the County of San Diego, and nine other local jurisdictions. Each jurisdiction implements its portion of the MSCP by developing a subarea plan describing the jurisdiction's specific implementing mechanisms, preserve boundaries, and species and habitats protections consistent with the MSCP framework plan.

Once adopted by the jurisdiction and approved by the U.S. Department of Fish and Wildlife and the California Department of Fish and Game (wildlife agencies), the subarea plan in conjunction with the MSCP operates as a habitat conservation plan consistent with the federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.) and a natural community program consistent with the California Natural Community Conservation Planning Act (Fish & G. Code, § 2800 et seq.). The purpose of the plans is to protect natural communities and species while allowing a reasonable amount of economic development.

At the time the City certified the EIR, the City of San Diego and the County of San Diego had approved subarea plans. The City had drafted, but had not adopted, its subarea plan. The draft subarea plan covers 15 plants and 33 wildlife species. Relying on a combination of hard-line protection areas and soft-line criteria-based protection zones, it estimates the location of future development and habitat preservation, and summarizes the mitigation and management requirements necessary for consistency with the MSCP.

The draft subarea plan is divided into five subunits: the San Diego River subunit, the Rattlesnake Mountain subunit, the Mission Trails subunit, the Magnolia Summit subunit, and the Fanita Ranch subunit. The project site is located in the Fanita Ranch subunit.

In assessing the project's cumulative impacts to biological resources, the EIR noted most of the surrounding property south of the project site is completely developed. There were no projects proposed for the surrounding property south and east of the project site, which had limited development potential as it was included in the City's draft subarea plan conservation planning. As to surrounding property within the County of San Diego's jurisdiction, there was no anticipated development on property north of the project, but property northeast of the project could be developed. Finally, as to surrounding property within the City of San Diego's jurisdiction, there were proposals to develop property southwest of the project and expand a landfill west of the project.

Because both the City of San Diego and the County of San Diego have approved subarea plans, the EIR assumed any projects approved within these jurisdictions would be consistent with their subarea plans and, by implication, the MSCP. Although the City did not have an approved subarea plan, it had committed through its general plan to applying the MSCP conservation standards and the draft subarea plan to projects within its jurisdiction. Consequently, the EIR assumed any projects approved within the City's jurisdiction would be consistent with either the City's draft subarea plan, if adopted, or the MSCP's guiding principles, which are uniform throughout the MSCP area. Based on these assumptions, the EIR concluded the project's impacts to biological resources were not cumulatively considerable, except as to the grasshopper sparrow, which the EIR stated was not covered by the draft subarea plan.*fn7

Mitigation of Quino Impacts by Active Management of Species Within Preserve

The Quino is classified as an endangered species. It requires large, unfragmented areas of habitat generally consisting of "open scrub vegetation with larval host plants, nectar sites, and small to large topographic rises in close proximity." Among its significant impacts to biological resources, the project is expected to directly impact approximately 991.1 acres of potential Quino habitat. To mitigate this impact, the EIR specifies the developer must preserve 1,235.2 acres of onsite habitat suitable for the Quino and must install fencing along certain trails, which will deter access to an area in the preserve where a Quino was once sighted. In addition, the developer must acquire approximately 110 acres of offsite mitigation property that either supports the Quino or is proven to have a high potential to support the Quino.

The preserve will be protected by a conservation easement and managed in perpetuity by a habitat management plan (habitat plan) approved by the City and the wildlife agencies. At a minimum, the habitat plan must be a long-term plan for management of the preserve property "that accomplishes the goal of maintaining appropriate, high-value, native plant communities." It must include: the location of offsite mitigation property, the language of the conservation easement, the plan for long-term preserve management, the responsibilities of the preserve manager, and the funding mechanism for the preserve. In addition, it must "address management and monitoring of vegetation communities through specific minimum survey and management requirements." It must also "discuss appropriate fencing or other barriers to protect certain sensitive resources," "designate and describe all permitted land uses and activities" within the preserve and "how impacts to preserve vegetation communities will be avoided," "include management measures for five [specified] sensitive plant species . . . to maximize the likelihood of their long-term viability," and include a Quino management section providing for active management of the Quino within the preserve.

To show the intended management program for the preserve, the City circulated a draft habitat plan. The draft habitat plan incorporated the draft EIR's requirements for it, and described the responsibilities of the preserve manager, which were generally to execute the approved habitat plan. The draft habitat plan also described the basic approach for managing biological resources within the preserve, which was to allow ecological processes to occur naturally while managing the effects of human recreational uses of the preserve property. Generally, the anticipated management activities included maintenance of trails and fences, control or removal of non-native species, and restoration of disturbances caused by humans or natural events (e.g., fires and floods).

Related to the Quino, the anticipated management activities included nonspecific actions to promote Quino habitat on slopes within the preserve where host and nectar plants are present at significant densities. The anticipated management activities for the Quino additionally included using host and nectar plants along with the creation of thermoregulation sites at a proposed seasonal basin mitigation site. Although the developer agreed to fund the Quino-related management activities, the draft habitat plan indicated the timing and other specifics for undertaking the activities would be subject to the discretion of the preserve manager based on prevailing environmental conditions.

The draft habitat plan also lists the special status species known to occur or that have the potential to occur within the preserve and relevant information about each species, including special management considerations. For the Quino, whose primary habitat is sparsely vegetated hilltops, ridgelines, and rocky outcrops, the draft habitat plan states the key consideration is proper vegetation management. According to the draft habitat plan, periodic fire or other vegetation management, such as grazing, is needed to keep the habitat open, but cannot occur too frequently or it will impact larvae and/or promote exotic, invasive species. The draft habitat plan does not discuss how the vegetation will be managed given the City's decision not to permit prescribed burns or grazing in the open space area.

Subsequent to the release of the draft habitat plan, the developer prepared a report "discussing monitoring and management actions to actively conserve Quino on-site." After an initial review of this report, the wildlife agencies were not convinced the proposed actions were sufficient and indicated the developer needed to revisit them. The wildlife agencies' concerns prompted the ...

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