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Banning Ranch Conservancy v. City of Newport Beach

California Court of Appeals, Fourth District, Third Division

May 20, 2015

BANNING RANCH CONSERVANCY, Plaintiff and Appellant,
v.
CITY OF NEWPORT BEACH et al., Defendants and Appellants NEWPORT BANNING RANCH LLC et al., Real Parties in Interest and Appellants.

[REVIEW GRANTED BY CAL. SUPREME COURT]

Appeal from a judgment of the Superior Court of Orange County, No. 30-2012-00593557 Robert Louis Becking, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

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COUNSEL

Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant.

Aaron Harp, City Attorney, Leonie Mulvihill, Assistant City Attorney; Remy Moose Manley, Whitman F. Manley and Jennifer S. Holman for Defendants and Appellants.

Manatt, Phelps & Phillips, Susan K. Hori and Benjamin G. Shatz for Real Parties in Interest and Appellants.

Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, and Jamee Jordan Patterson, Deputy Attorney General, for California Coastal Commission as Amicus Curiae.

OPINION

IKOLA, J.

Banning Ranch consists of approximately 400 acres of largely undeveloped coastal property, with active oilfield facilities and operations dispersed thereon. Project proponents[1] seek to develop one-fourth of Banning Ranch for residential and commercial purposes, and to preserve the remaining acreage as open space and parks, removing and remediating much of the oil production equipment and facilities (the Project). The City of Newport Beach and its City Council (collectively the City) approved the Project. Banning Ranch Conservancy (the Conservancy), “a community-based organization dedicated to the preservation, acquisition, conservation and management of the entire Banning Ranch as a permanent public open space, park, and coastal nature preserve, ” filed a mandamus action against the City.

The trial court agreed with the Conservancy’s claim that the City violated the Planning and Zoning Law (Gov. Code, § 65000 et seq.) and its own general plan by its alleged failure to adequately coordinate with the California Coastal Commission (Coastal Commission) before its approval of the Project. On the other hand, the court rejected the Conservancy’s claim that the City violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) by failing to identify in the environmental impact report (EIR) the “environmentally sensitive habitat areas” (ESHAs) - a defined term in the California Coastal Act of 1976 (Coastal Act; Pub. Resources Code, § 30000 et seq.). All interested parties appealed. We agree with the court’s CEQA ruling

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but conclude the court erred by finding the City violated its general plan. We therefore reverse the judgment to the extent it provides for mandamus relief to the Conservancy.

FACTS[2]

We describe in this part (1) the City’s general plan, as it pertained to Banning Ranch; (2) the City’s coastal land use plan, which, by its own terms, did not apply to Banning Ranch; (3) the proposed Project; (4) the draft EIR; (5) The City’s response to comments and final EIR; (6) the City’s approval of the Project; and (7) the procedural history of this action. Keep in mind the primary legal disputes: (a) What actions were required of the City vis-à-vis the Coastal Commission, prior to Project approval, regarding the decision whether to develop, preserve, or restore particular portions of Banning Ranch; and (b) Was the City required to designate ESHAs in the EIR?

The City’s General Plan, as it Pertains to Banning Ranch

“Each planning agency shall prepare and the legislative body of each county and city shall adopt a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries which in the planning agency’s judgment bears relation to its planning.” (Gov. Code, § 65300.) The general plan adopted by a legislative body is “a ‘“constitution” for future development’ [citation] located at the top of ‘the hierarchy of local government law regulating land use’ [citation].” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 773 [38 Cal.Rptr.2d 699, 889 P.2d 1019].) "The planning law... compels cities and counties to undergo the discipline of drafting a master plan to guide future local land use decisions.” (Ibid.)

The City’s 2006 general plan recognizes Banning Ranch as a distinct “[d]istrict” within its “sphere of influence.”[3] The general plan acknowledges both the damage done by longstanding (“at least 75 years”) use of Banning

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Ranch for oil extraction activities and the value of Banning Ranch as a wildlife habitat and open space resource for citizens. The environmental value of the “diverse habitats” contained within Banning Ranch varies. Some of Banning Ranch (particularly the northwestern portion) has a “high biological resource value”; other segments are of lesser environmental importance.

The general plan notes resident support for the preservation of all of Banning Ranch as open space or, alternatively, the limited development of Banning Ranch if necessary “to help fund preservation of the majority of the property as open space.” A highlighted “Policy Overview" (boldface & italics omitted) section states as follows: “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 interpretive 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.... While the Plan indicates the maximum intensity of development that would be allowed on the property, this will ultimately be determined through permitting processes that are required to satisfy state and federal environmental regulatory requirements.”

Building on its stated policy preferences, the general plan identifies two alternative land use “Goal[s].”[4] (Boldface omitted.) The first goal, "LU 6.3" (boldface omitted), is "[pjreferably a protected open space amenity, with restored wetlands and habitat areas, as well as active community parklands to serve adjoining neighborhoods.” The second goal, "LU 6.4" (boldface omitted), is a backup option: “If acquisition for open space is not successful, a high-quality residential community with supporting uses that provides revenue to restore and protect wetlands and important habitats.”

Each alternative goal features a “Policies”[5] section beneath the goal. (Boldface omitted.) The policies in support of Goal LU 6.3 are simple. The first, described as a “LAND USES" (boldface & italics omitted) policy and entitled “Primary Use" (boldface omitted), ” declares the intended use of Banning Ranch to be open space. A “STRATEGY" (boldface & italics omitted) listed underneath is entitled “Acquisition for Open Space" (boldface omitted), and announces support for the acquisition of Banning Ranch by the

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City through a variety of possible funding mechanisms. Both the land uses and strategy sections cross-reference several implementation actions, [6] described elsewhere in the general plan.

The Policies listed beneath Goal LU 6.4 are more detailed. The “LAND USES" (boldface & italics omitted) section entitled, “Alternative Use" (boldface omitted), ” describes the limited development of a residential village, “with a majority of the property preserved as open space.” Next follows nine separate policies setting forth requirements pertaining to development density, capacity, design, and methods.[7] A “STRATEGY" (boldface & italics omitted) also requires “the preparation of a master development or specific plan for any development on the Banning Ranch specifying lands to be developed, preserved, and restored, land uses to be permitted, parcelization, roadway and infrastructure improvements, landscape and streetscape improvements, development regulations, architectural design and landscape guidelines, exterior lighting guidelines, processes for oil operations consolidation, habitat preservation and restoration plan, sustainability practices plan, financial implementation, and other appropriate elements.” Various implementation actions were also referenced throughout this section.[8]

The general plan then announces “Policies Pertaining to Both Land Use Options (Goals 6.3 and 6.4)." (Boldface omitted.) The first three policies pertain to “PERMITTED USES” and discuss oil operations, an active community park, and the restoration of wetlands and wildlife habitat. (Boldface & italics omitted.) The fourth and fifth policies pertain to “DESIGN AND DEVELOPMENT" (boldface & italics omitted.) in connection with the preservation of environmental resources and the public’s views.

The focus of this appeal as it relates to the general plan is the final section of the land use discussion of Banning Ranch, listed under the “Policies Pertaining to Both Land Use Options" (boldface omitted), ” but designated

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specifically as a “STRATEGY" (boldface & italics omitted), ” a term not defined in the general plan. We quote this section in its entirety. “LU 6.5.6 [¶] Work with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which development will be permitted.” The citations at the end of the quote refer to Implementation Actions 14.7 and 14.11, which are listed elsewhere in the general plan. Implementation Action 14.7 is entitled “Coordinate with the California Resources Agency, Department of Fish and Game, ” and describes various issues on which the City should either “consult[], ” “support, ” or “cooperate with” this agency. Implementation Action 14.11 is entitled, “California Public Utilities Commission” (PUC) and states that the City “shall work with the PUC in obtaining funding and implementing the undergrounding of remaining overhead utilities.”

Implementation Action 14.6 is conspicuous by its absence from LU 6.5.6 and the rest of the section of the general plan pertaining specifically to Banning Ranch. Implementation Action 14.6 is entitled “Coordinate with California Coastal Commission.” Its text reads: “The California Coastal Commission is responsible for the implementation of the California Coastal Act of 1976. As described [elsewhere in the general plan], the City’s Local Coastal Program’s (LCP) Land Use Plan (CLUP) had been certified at the time of the adoption of the updated General Plan. The City shall work with the Coastal Commission to amend the CLUP to be consistent with the General Plan and pursue certification of the Implementation Plan. The City shall ensure that on certification, applications for development shall be reviewed by the City for consistency with the certified LCP and California Coastal Act of 1976.”

The City’s Coastal Land Use Plan, Which Specifically Excludes Banning Ranch

Pursuant to the Coastal Act, the Coastal “Commission is required to protect the coastal zone’s delicately balanced ecosystem.” (Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 506 [83 Cal.Rptr.2d 850] (Bolsa Chica).) Banning Ranch is within the “‘[c]oastal zone’” (Pub. Resources Code, § 30103) and is therefore subject to the Coastal Commission’s jurisdiction.

Among other things, the Coastal Act “provides heightened protection to” ESHAs within the coastal zone. (Bolsa Chica, supra, 71 Cal.App.4th at p. 506.) “‘Environmentally sensitive area’ means any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ...


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