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Banning Ranch Conservancy v. City of Newport Beach et al

December 12, 2012


Appeal from a judgment of the Superior Court of Orange County, Gail Andrea Andler, Judge. (Super. Ct. No. 30-2010-00365758)

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




Plaintiff Banning Ranch Conservancy appeals from the denial of its petition for a writ of mandate directing the City of Newport Beach (City) to vacate certification of an environmental impact report (EIR) for the development of Sunset Ridge Park.

Plaintiff contends the EIR wrongly defined the project to exclude the pending residential and commercial development on an adjacent property, Banning Ranch. It claims the park and development are one interrelated project to which the City is giving improper "piecemeal" review.

In addition, plaintiff asserts the EIR was substantively inadequate in five ways. It contends the EIR insufficiently analyzed the park's cumulative traffic impact, growth-inducing impact, cumulative biological impact, impact on the California gnatcatcher's habitat, and consistency with the California Coastal Act of 1976 (Coastal Act) (Pub. Resource Code, § 3000 et seq.).

We disagree with plaintiff's contentions, and affirm. First, the EIR's project definition properly excluded the neighboring development, which is not a reasonably foreseeable consequence of the park. The two are separate projects with different proponents, serving different purposes. Second, the EIR adequately analyzes the park's environmental impact. Substantial evidence supports its conclusions, and the City did not prejudicially abuse its discretion by approving it.


The Park, Banning Ranch, and the General Plan

The City bought land at the northwest corner of West Coast Highway and Superior Avenue in 2006. The parcel is roughly anvil-shaped. The anvil's "base" faces roughly southwest, and runs along West Coast Highway. A scenic easement bars pavement or structures over the southern portion. The horn of the anvil (the protruding part) faces roughly southeast, and runs along a curved section of Superior Avenue. The top of the anvil faces roughly northeast and borders a residential neighborhood of the City. The remaining side of the anvil, opposite the horn, faces west.

This western boundary abuts property commonly known as Banning Ranch, which is controlled by Newport Banning Ranch LLC (NBR LLC). Banning Ranch covers over 400 "primarily undeveloped" acres previously used for oil production. The property is roughly California-shaped. Its northern boundary runs contiguous to 19th Street in Costa Mesa, and largely borders a regional park. The northern half of its western boundary runs parallel to the Santa Ana River. The southern half of its western boundary curves south and east, approaching West Coast Highway. The property's southern boundary runs along West Coast Highway. The southernmost section of the property's eastern border abuts the City's parcel.

Also in 2006, the City adopted a general plan to achieve the vision of what "residents want Newport Beach to be now and in 2025." The general plan "focuses on conserving the existing pattern of land uses," and "establishes strategies for [the] enhancement and revitalization" of "areas of the City that are not achieving their full potential." Reaching beyond "lands within the jurisdiction of the City of Newport Beach," the general plan "also specifies policies for the adopted Sphere of Influence (SOI), encompassing Banning Ranch, which represent the City's long-term intentions for conservation and development of the property should it be annexed to Newport Beach. Until that time, uses and improvements of the property are subject to the County of Orange General Plan."

In the introduction, the general plan states the City will "[s]upport[] efforts to acquire Banning Ranch for permanent open space." But failing that, the general plan contemplates developing Banning Ranch. Land Use Policy 3.4 of the Land Use Element provides, "Prioritize the acquisition of Banning Ranch as an open space amenity for the community and region, consolidating oil operations, enhancing wetland and other habitats, and providing parkland amenities to serve nearby neighborhoods. If the property cannot be acquired within a time period and pursuant to terms agreed to by the City and property owner, allow for the development of a compact residential village that preserves the majority of the site as open space and restores critical habitat . . . ." Similarly, a "POLICY OVERVIEW" provides, "The General Plan prioritizes the acquisition of Banning Ranch as an open space amenity for the community and region. Oil operations would be consolidated, wetlands restored, nature education and interpretative facilities provided, and an active park developed containing playfields and other facilities to serve residents of adjoining neighborhoods. [¶] Should the property not be fully acquired as open space, the Plan provides for the development of a concentrated mixed-use residential village that retains the majority of the property as open space."

The general plan states the City intends to "[c]onstruct the circulation system described on the map entitled Newport Beach Circulation Element-Master Plan of Streets and Highways . . . ." The "Master Plan of Streets and Highways" indicates two unbuilt "Primary Roads" on Banning Ranch. One road starts on West Coast Highway and proceeds north before curving east. The other starts on West Coast Highway and winds north all the way to 19th Street. The Orange County Transportation Authority's "Master Plan of Arterial Highways" shows different potential roads crossing Banning Ranch.

The Newport Banning Ranch (NBR) Project

In March 2009, the City announced it was acting as the lead agency to prepare an EIR "for the Newport Banning Ranch Project . . . ." It reported in its notice of preparation: "The Newport Banning Ranch Project (Project) proposes the development of up to 1,375 residential dwelling units, 75,000 square feet of commercial uses, and 75 overnight resort accommodations on a Project site of approximately 401 acres." Because "[a] majority of the Project site is located in the unincorporated Orange County area . . . [a]s a part of the Project, these unincorporated areas would be annexed to the City."

The City reported the NBR "development would be constructed from south to north," "starting in the southern portion of the Project site closest to West Coast Highway." Yet "[p]ublic access to the Project does not currently exist."

Thus, the NBR project needed an access road. The City stated "[t]he primary entrance to the Project site is proposed from West Coast Highway," which "may require the widening of a portion of the northern side of West Coast Highway." It described: "Bluff Road. As a part of the project, Bluff Road would be constructed from a southern terminus at West Coast Highway to a northern terminus at 19th Street. . . . [¶] Bluff Road would serve as the primary roadway through the Project site . . . . The implementation of Bluff Road may be phased." The road would be a "Primary Arterial," which is "usually a four-lane, divided roadway. . . . designed to accommodate . . . a typical daily capacity of 34,000 vehicles per day."

And in the notice of preparation, the City repeatedly referred to its plans to build a park. Its description of Banning Ranch's neighbors included "[t]he City of Newport Beach's proposed Sunset Ridge Park, located contiguous to the Project site's southeastern boundary." "Sunset Ridge Park" is conspicuously labeled on the "Surrounding Land Uses" diagram. The park is identified on the "Conceptual Master Land Use Plan," which also shows the planned location for Bluff Road (labeled "North Bluff Road" and "South Bluff Road"). Finally, the City stated, "Access into the City of Newport Beach's proposed Sunset Ridge Park is proposed from Bluff Road within the Project site."

The Sunset Ridge Park Project

Two months after the City issued the NBR notice of preparation, it issued a notice of preparation for the park project. It "propose[d] to develop the approximate 18.9-acre site with active and passive recreational uses and an access road to the park through Newport Banning Ranch. The access road would be constructed from West Coast Highway to Sunset Ridge Park through the Newport Banning Ranch site (5.2 of the 18.9 acres.)" The City further described the access road it would build: "As a part of the project, a park access road would be constructed from West Coast Highway through Newport Banning Ranch (a private property) to the park. Use of this adjacent property would require an access easement from the Property Owner. . . . [¶] As part of the proposed project, the City proposes the widening of a portion of the northern side of West Coast Highway from Superior Avenue to a point west of the access road . . . . Additionally, the City is proposing a signal on West Coast Highway at the proposed access road."

The site plan shows the planned park, the access road, and what appears to be the property line between the City's parcel and Banning Ranch. Only once in the park notice of preparation does the City disclose that Banning Ranch is "proposed for development by Newport Banning Ranch."

The City issued its draft EIR for the park project in October 2009. It retained BonTerra Consulting to prepare the draft EIR -- the same consultant preparing the EIR for the NBR project.

The draft EIR analyzed the park's access road. It noted: "The road would extend northward from West Coast Highway for about 850 feet, and then would follow a northwest-to-southeast alignment for about 550 feet to connect to the park parking lot." The road for the most part "would be constructed as a 28-foot-wide undivided roadway with 2 travel lanes." It projected the park would generate 173 vehicle trips daily.

The draft EIR also analyzed the proposed signal on West Coast Highway. It noted the general plan already "assumes a roadway extension north through the Newport Banning Ranch property to 19th Street, with additional connections at 15th and

17th Street with or without development of that property. The park access road would also serve as one of the access points from the public street system to any future development on the Newport Banning Ranch property; widening of the park access road would be required." Because the general plan "designates the Newport Banning Ranch property as Open Space/Residential Village," "the signal warrants were conducted for General Plan buildout under both General Plan scenarios for the Newport Banning Ranch property." Whether Banning Ranch is used as open space or developed as a residential village, "[t]he estimated average daily traffic . . . volume on the ...

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