Harmony Specific Plan

San Bernardino Superior Court Judge Donald Alvarez has issued two rulings on the proposed Harmony master-planned community in east Highland.

The Center for Biological Diversity sent out a press release last week calling the rulings “an important victory against sprawl.”

Pat Loy of Lewis Homes, potential developer of the 3,600-home project, called them a “mixed bag” as he was reading the decisions on Thursday, July 5.

Highland City Attorney Craig Steele issued a statement saying it will take several weeks to analyze the rulings and to consider the city’s potential responses.

Asked if the center’s press release accurately summarized the rulings, Steele wrote, “We have only begun to analyze them. It is apparent that while Judge Alvarez ruled in favor of the petitioners on some issues, he also denied their petitions on other grounds.”

In the petition for a writ of mandate (a court order to a government) brought by the Sierra Club, the Crafton Hills Open Space Conservancy, the Tri-City Conservation District and Friends of Riverside Hills, the judge issued a 99-page ruling. Alvarez denied eight proposed writs and granted six.

He issued a 14-page ruling in a petition brought by the Greenspot Residents Association and the San Bernardino Audubon Society addressing many of same issues. It refers to the longer ruling for those who want more details.

If voters reject the Harmony project on Nov. 6, the cases will likely become moot.

The Highland City Council approved the Harmony master-planned community in August 2016 to build 3,632 homes on 1,657 acres east of Greenspot Road after it turns south at the Old Iron Bridge in the next 12 to 15 years.

The next month, the Greenspot Residents Association launched its campaign to stop it.

Judge Alvarez has scheduled a hearing at 8:30 a.m. Monday, July 23, in Department 23 in the San Bernardino courthouse to discuss the rulings.

Fish Hatchery Bridge

In both rulings, Judge Alvarez declares that the city must consider “the whole of the project.”

He cites instances in the Draft Environmental Impact Report (DEIR) and the Revised Environmental Impact Report (RDIER) that acknowledge the need for a bridge across Mill Creek at Newport Avenue or Fish Hatchery Road in Mentone to reach Highway 38.

The judge cites the city’s community development director as saying the “contemplated route was selected because it was the shortest route across Mill Creek.” And he quotes the public works director as saying the lack of the bridge would be a problem “from a safety and traffic circulation perspective” because there are only two other points of entry.

But the Final Environmental Impact Report (FEIR) concludes such a bridge “is not required or proposed as part of the Harmony Specific Plan from any perspective.”

The applicants — Lewis Homes and Orange County — say the bridge would cost $30 million to $40 million and could kill the project. In a meeting in May, they told the Highland Community News that their traffic analysis showed 80 percent of vehicle trips would traverse Greenspot Road, which would be vastly improved.

Judge Alvarez noted that construction of the bridge could wipe out Riversidean Alluvial Fan Sage Scrub, critical habitat for the San Bernardino kangaroo rat and the Santa Ana sucker fish.

A smaller project?

The judge also sided with critics of the city’s rejection of Alternative 4, which would reduce the number of homes to 1,400.

The city argued that it would eliminate high-density housing and reduce medium-density housing by two-thirds, converting it to open space. Townhomes and other paired housing units envisioned by the builders and city would be eliminated.

The applicants agreed with the city that “maximizing the potential revenue generation from this asset for regional infrastructure investment is a fiducial obligation of the county,” and Alternative 4 would not meet that goal. It would reduce the project’s footprint by one-third, reducing the revenue needed for regional transportation infrastructure.

The city also argued that reducing the size of the project would not have a significant impact on air quality or traffic.

Judge Alvarez disagreed with the city’s contention that Alternative 4 was unfeasible.

Biological impacts

The judge also agreed with the critics’ concerns about the loss of habitat for endangered species in the area.

The city notes that there are hundreds of pages of analysis of biological resources in the environmental report and proposes mitigation measures to accommodate the loss of Riversidean Alluvial Fan Sage Scrub.

The city argued that the Santa Ana River Wash Habitat Conservation Plan is on the western edge of the Harmony project, which is being finalized by the San Bernardino Valley Water Conservation District to protect the California gnatcatcher, San Bernardino kangaroo rat, the wooly star and the slender-horned spineflower.

Judge Alvarez said it is not anticipated that the U.S. Fish and Wildlife Service will issue permits “any time in the foreseeable future.” He said the “FEIR has improperly deferred the formulation of adequate mitigation measures.”

Riversidean Sage

Petitioners point out that the FEIR says the project will wipe out 485.8 acres of Riversidean Sage Scrub. The city argues that much of the land has already been disturbed by agricultural activity and that 55.5 acres of mature scrub brush would be preserved as open space.

The California Department of Fish and Wildlife said the scrub brush had a “low potential to support the federally threatened coastal California gnatcatcher.”

The judge agreed that the loss of the scrub brush would  not have a significant impact.

Wildlife corridors

Petitioners are concerned that the project will disturb the “Crafton Hills Linkage” used by mule deer, mountain lions, bobcats, badgers and other small mammals. Developers plan a new wildlife corridor on the eastern edge of the project maintain continuity of the corridor.

Critics also contend there is no long-term plan to monitor the corridor.

The city counters that the new corridor will “provide wildlife movement opportunities that are equal to or better than existing conditions by eliminating human interference and providing ample cover for traveling animals.”

It also said the five-year monitoring program would not start until construction commences, which is at least 12 years away. The city would impose strict lighting restrictions, directed downward and away from the corridor, and limit pets, off-road vehicles and recreational activity in the corridor.

“This is sufficient mitigation for the identified impacts,” the judge writes.

Earthquake hazards

The petitioners point out that houses are planned within 1.4 miles of the San Andreas Fault.

The applicants contend that substantial evidence supports city’s finding that “no development will occur on an active fault and the potential adverse impacts related to the same will be less than significant,” and that the substantial adverse impact arising from seismic shaking “will be reduced to a less-than-significant” level.  

Judge Alvarez agreed that the city has been sufficiently cautious.

Flood hazards

About 68 acres of the project are within a Federal Emergency Management Agency Flood Hazard Zone, meaning there’s a 1 percent chance of a flood in a given year, also known as a 100-year flood.

The petitioners express concern that extreme grading could increase the threat. The city concedes that FEMA has not yet conducted and approved detailed hydrological analyses of the zone. The county is conducting certification of the Mill Creek Levees.

The judge agreed that anticipating approval is not sufficient for the FEIR.

Wastewater impacts

The judge also agreed that wastewater treatment plans should be finalized before the project can begin.

The East Valley Water District recently got the county’s approval to move forward with the Sterling Natural Resources Center, a $126 million plan that will treat 10 million gallons of recycled water a day by 2020.

However, it has not been resolved whether the district would build a separate plant for Harmony or treat it at the Sterling plant on the west side of town.

This uncertainty again bothered Judge Alvarez.

Visual impacts

 The ruling quotes the California Environmental Quality Act, which says the city must “consider whether a project would have a substantial adverse effect on a scenic vista, substantially damage scenic resources within a state scenic highway substantially degrade the existing visual character of the site and its surroundings, and/or create a new source of substantial light or glare, which would adversely affect day or nighttime views in the area.”

The petitioners contend that, of course, building houses on vacant property will cause irreversible visual changes.

But the judge agreed that the FEIR discusses the specific visual features of the project  — such as the San Bernardino Mountains, Santa Ana River, Morton Creek and Morton Ridge, and Mill Creek — and contemplates height limitations to limit the impact to scenic resources, the placement of community greenways in the project, permanent open space for recreation and conservation and terraces to allow various scenic views.

Wildland fires

The entire project is a “very high fire severity zone,” the FEIR says. However, a new fire station is planned for the project and the fire marshal has approved the conceptual fire protection plan.

The plan evaluated the vegetation fire risk, the potential structure fire risk and fire department response times. As a result, it requires a 200-foot fire protection zone around portions of the project and a 150-foot fire protection zone around other portions of the project as mitigation to provide a reasonable level of fire protection, the ruling says.

Hazardous materials

The FIER notes that construction of the Seven Oaks Dam “significantly disturbed” the southeastern portion of the project. Therefore, “concentrations of agricultural chemical residues are not anticipated to be above thresholds of concern in these areas.”

Judge Alvarez wrote that “the FEIR has properly stated that any remediation of hazardous material on the project site must comply with all relevant federal, state, and local regulations, and said hazards must be removed from the project site prior to construction.”

Cultural resources

The area was the site of Sunnyside Ditch, built by Redlands founders Judson and Brown in 1881, the Bear Valley Highline Canal/Aqueduct, built between 1882 and 1883, the Redlands Canal, constructed in 1885.

The FEIR also reports that the historic Brown Ranch may be buried in the site, but concludes that an assessment would be conducted during Phase II of the project.

A preliminary assessment found that remnants may have been destroyed by the planting and then removal of orchards, and more significantly disturbed during construction of the Seven Oaks Dam.

The FIER requires that a historic archaeologist be present during “ground-disturbing activities.”

It concludes that there is not enough evidence of the remains of Brown Ranch for it to be considered a historic site.

Judge Alvarez writes, “Under the substantial evidence standard, deference must be given to city’s findings and mitigation measures regarding these cultural and historic resources.”

Energy impacts

The judge agreed that the environmental report did not sufficiently address the impact of a estimated 33,749 vehicle trips per day in and out of the Harmony project — a figure that doesn’t count the number of trips within the project.

Greenhouse gases

The petitioners contend that the project will generate 82,817 metric tons of CO2 equivalent emissions a year.

The FEIR says the project will have less significant impacts and doesn’t require mitigation because it is consistent with Assembly Bill 32, which requires that greenhouse gas emissions be reduced to 1990 levels by 2020.

Both the applicants and the petitioners cite a case known as Newhall Ranch, which reached the California Supreme Court.

Judge Alvarez agreed with the court’s ruling that said it “does not mandate the use of absolute numerical thresholds to measure the significance of greenhouse gas emissions.”

The press release from the Center for Biological Diversity quotes its staff attorney, Aruna Prabhala, who called the ruling “a major victory against an ill-planned, destructive project.

“The ruling affirms concerns raised by the public for many years about this project’s major environmental threats to the community and wildlife,” Prabhala said.

“People don’t want the traffic headaches and air pollution caused by building more sprawl near sensitive habitat and limited open space.”

Wendy Rea with the Greenspot Residents Association and executive director of Alliance for Mill Creek said the need for housing “must be balanced against public safety, and this is a publicly owned property that is absolutely unfit for large-scale leapfrog development.”

Gilda Gularte, leader of Residents for Responsible Development who plans to challenge Councilman John Timmer in the 4th District this fall, sent an email to her supporters declaring, “The fight to stop Harmony is NOT over!”

The court may just ask the city to correct the failings in the environmental report and allow for the entitlement approvals to stay in place, she said.

“The court can’t take the Harmony project off the ballot,” Gularte said. “Very, very seldom does a developer stop seeking to build a project after a ruling like this.”

She said the Lewis Group lost a similar ruling on the 11,000-home Villages at Lakeview project in  Riverside County. The company modestly modified the project, redid the environmental documents and the project was approved again last year.

Gularte’s group is funded by the Western States Council of Sheet Metal Workers, a union based in Oakland.

Writs granted and writs denied

(9) comments

Patriot

The proposed $126M Sterling Natural Resource Center (waste water treatment facility) to generate "recycled water" will not be providing any recycled water to current residents/rate payers living in Highland OR to the proposed 3,600 homes in the "Harmony Project" because the June 2017 Draft engineering Report for "Sterling" finally disclosed that all of the recycled water is being drained back into the Santa Ana River at the City Creek location! 1) the recycled water is being used to "recharge" the "Bunker Hill Groundwater Basin," 2) Unfortunately the three engineering consultants who prepared the June 2017 Draft Engineering Report stated in Section 6.1 City Creek that the recycled water has the "possibility" of reaching the water table but no one is willing to state HOW MUCH OF THE RECYCLED WATER WILL REACH THE WATER TABLE, 3) the local EVWD rate payer was originally told we would be drinking "recycled water" but now no recycled water to drink because it is going directly into the ground AND we must repay the $126M construction loan???? 3) the supporters for the proposed "Harmony Project" keep drinking the "cool-ade" and do not understand that Sterling will not be providing any recycled water to "Harmony!!!"

Patriot

The proposed "Harmony Project" will require $1 BILLION to build out the infrastructure BUT the owners of the property Orange County and their developer Lewis Operating Group from Upland, CA will not be putting up any monies....instead the City Council has agreed to a $1 BILLION "Mello Roos Bond" that makes every property owner in the City of Highland a "GUARANTOR" of the bond. What this means is simple...the foreclosure rate for our 92346 zip code is 14.9% (per Zillow.com) and bankruptcy's will result in some of the new 3,600 homeowners in "Harmony" not paying their estimated annual $50K "Mello Roos" payment...so the City will mail out to all property owners in Highland a "special assessment" so the buck is passed onto us! Nuts!

Patriot

The "proposed rebuttle to argument against the HARMONY project" signed by Jody Scott, Christy Marin, Dennis Johnson, Gina Roqet, and Wayne Brown states in part the following: "Water: The Sterling Natural Resource Center will increase available water to meet the needs of Harmony and all of Highland." This is false. The Draft Engineering Report dated June 2017 by THREE ENGINEERING CONSULTANTS i.e. 1) RMC Water and Engineering, 2) John Robinson Consulting Inc., 3) GEOSCIENCE, that all of the proposed "recycled water" will be drained DIRECTLT from the "Sterling" facility and into the Santa Ana River at City Creek! No rate payer of EVWD or the proposed Harmony Project will receive any "RECYCLED WATER!" These "supporters" of this ballot measure have SIGNED the ballot measure. Once the Grand Jury takes up this issue let's see what they have to say when they get to answer questions! The takeaway is simple...tell the truth!!!!

Patriot

Jody Scott, Christy Marin, Dennis Johnson, Gina Roqet, and Wayne Brown who have signed the "proposed rebuttle to argument against the HARMONY project were silent on the 6-page "Financing Plan" listed as "Exhibit G" in the Development Agreement that requires a $1BILLION dollar "Mello Roos Bond" to buildout "HARMONY," the local Highland property owner becomes the "GUARANTOR" of the "Mello Roos Bond," both Orange County and the Developer Lewis Operating Group REFUSE to invest any of their monies into HARMONG and instead are requiring the "local property owner" to guarantee the $1Billion Bond in the event the 3,600 new home owners in the proposed Harmony Project DEFAULT on their individual and annual $50K Mello Roos payment and $50K payment is in addition to their regular San Bernardino County Tax Bill!

Patriot

Judge Alvarez cited "Hazardous Waste" issues because the 1,600 acres are contaminated dating back to the construction of the Seven Oaks Dam during the 1990's BUT the 24-page Local Cooperation Agreement between US Army Corps of Engineers and the "local co-sponsors" Orange County, San Bernardino County, and Riverside County on page 16 LCA Article X titled: "Hazardous Materials" requires the three co=sponsors responsible for the CLEANUP! Orange County has refused to cleanup the HAZARDOUS WASTE but the Orange County website states the following: "On December 14, 1989, the U.S. Army Corps of Engineers (COE) and the County Flood Control District of Orange, Riverside and San Bernardino as Local Sponsors, entered into a four-party Local Cooperation Agreement (LCA) defining the responsibilities and cost-sharing of each party for each feature.
The Local Sponsors are to acquire all lands, easements, rights-of-way and perform relocations required to make way for construction of the Mainstem Project. The COE will construct the improvements. On completion, the Local Sponsors are responsible for the operation and maintenance of the Project features; except for Prado Dam where Orange County is responsible to pay for incremental operations/maintenance costs and the COE will continue to operate the Dam.
Congress authorized Santa Ana River Mainstem Project for construction in 1986 under new guidelines for cost sharing of water resources projects between Federal and local governments. The local sponsors must pay between 25% and 50% of total cost of the project with the remaining cost provided by the Federal government.
In 2003, a new agreement was entered between the Corps of Engineers and Orange County Flood Control District where Prado Dam feature of the Santa Ana Mainstem Project was separated and Orange County was a sole local sponsor for Prado Dam."

Patriot

The US Army Corps of Engineers 24-page "Local Cooperation Agreement" cited above, Article X, paragraphs A thru G, makes Orange County subject to CERCLA law 42USC9601-9675 (Comprehensive Environmental Response Compensation and Liability Act). The City of Highland has tried to ignore the provisions of the 'Local Cooperation Agreement (LCA)" as it relates to HAZARDOUS WASTE CLEANUP by downplaying "what hazardous materials?" That shoe is about to drop and the US Army Corps of Engineers is now reviewing why Orange County has NOT done the required cleanup required by the LCA!

Patriot

A year 2007 US Supreme Court Ruling in a CERCLA related case allows local government to file a lawsuit against the responsible parties for "Hazardous Waste Cleanup." The local cities of Colton and Rialto recently settled a CERCLA case. The US Supreme Court case summary is: " United States v. Atlantic Research Corp.
551 U.S. 128 (2007)
Annotate this Case
OpinionPDF
• Syllabus |
• Opinion (Clarence Thomas)

SYLLABUS
OCTOBER TERM, 2006
UNITED STATES V. ATLANTIC RESEARCH CORP.


SUPREME COURT OF THE UNITED STATES


UNITED STATES v. ATLANTIC RESEARCH CORP.
certiorari to the united states court of appeals for the eighth circuit
No. 06–562. Argued April 23, 2007—Decided June 11, 2007
Sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 allow private parties to recover expenses associated with cleaning up contaminated sites. Section 107(a) defines four categories of potentially responsible parties (PRPs) and makes them liable for, among other things, “(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan” and “(B) any other necessary costs of response incurred by any other person consistent with [such] plan,” §§107(a)(4)(A)–(B). Originally, some courts interpreted §107(a)(4)(B) as providing a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. However, after the enactment of §113(f), which authorizes one PRP to sue another for contribution, many courts held it to be the exclusive remedy for PRPs. In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, this Court held that a private party could seek contribution under §113(f) only after being sued under §106 or §107(a).
"

Patriot

If the City of Highland KNOWS contamination exists on the 1,600 acres and Orange County is responsible for the cleanup then why doesn't the City of Highland take action to protect the residents living in Highland? Judge Alvarez is the designated CEQA Judge for the Superior Court of California County of San Bernardino and I am sure he is very familiar with the City of Rialto's CERCLA case against BF Goodrich and the case summary in that case is: "Settlement Agreements associated with cleanup of the B.F. Goodrich Superfund Site, Rialto, Calif.
In 2012 and 2013, the EPA and the Department of Justice negotiated numerous settlement agreements associated with cleanup activity at the Rockets, Fireworks, and Flares (RFF) (formerly B.F. Goodrich) Superfund Site in Rialto, Calif. The settlement agreements are all remedial design/remedial action (RD/RA) consent decrees and were files with the U.S. District Court for the Central District of California. The settlement agreements are as follows:
October 10, 2012 settlement agreement with Pyro Spectaculars Inc (PSI) and the other settling defendants, produced an agreement for the parties to pay $4.3 million to the EPA and $1.3 million to the cities of Rialto and Colton and San Bernardino County. Case summary of PSI settlement agreement.
December 4, 2012 settlement agreement with Emhart Industries, the Department of Defense (DOD) and the other settling defendants, produced an agreement for the parties to spend $43 million over the next 30 years to cleanup contaminated groundwater at the site. The cities of Rialto, Colton, and the county of San Bernardino will receive $8 million. Case summary of the Emhart, DOD and other parties settlement agreement.
March 26, 2013 settlement agreements with Goodrich Corporation to investigate and clean up contaminated soil and groundwater at the site and a settlement agreement with KTI, Incorporated regarding cleanup at the site. As part of its settlement with the Goodrich Corporation, the EPA is proposing to rename the B.F. Goodrich Superfund Site to the Locust Avenue Superfund Site. Case summary of the Goodrich Corp. and KTI settlement agreements.
These settlements will result in a comprehensive cleanup of the site totaling as much as $100 million. "

Patriot

The reason why the City of Highland did not want the Mill Creek bridge included as part of the "Harmony Project" was not only for the $30M in costs but it would have caused the required NEPA (National Environmental Policy Act) type environmental study because the project would have been CROSSING A US WATERWAY....the Santa Ana River!!! Now we want Judge Alvarez to order and remand the Harmony Project back to the City, nullify the EIR completely, if a new EIR is undertaken then it must be a NEPA not a CEQA environmental study, get in the US Army Corps of Engineer's Local Cooperation Agreement for the construction of the Seven Oaks Dam, require Orange County to cleanup all contamination in and around the 1,632 acres of land including the GROUNDWATER in compliance with the CERCLA laws, BEFORE anything else is done! Simple???

Welcome to the discussion.

Keep it Clean. Please avoid obscene, vulgar, lewd, racist or sexually-oriented language.
PLEASE TURN OFF YOUR CAPS LOCK.
Don't Threaten. Threats of harming another person will not be tolerated.
Be Truthful. Don't knowingly lie about anyone or anything.
Be Nice. No racism, sexism or any sort of -ism that is degrading to another person.
Be Proactive. Use the 'Report' link on each comment to let us know of abusive posts.
Share with Us. We'd love to hear eyewitness accounts, the history behind an article.