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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.”
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.”
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.
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.