SAN FRANCISCO – On October 23 the First District Court of Appeals dealt another setback to the progress of Lotusland Development’s 16,000-acre Guenoc Valley ultra luxury project. The court’s Disposition states, “…we reverse the trial court’s decision that the FEIR (Final Environmental Impact Report) adequately disclosed the project’s impact on increasing the area’s existing wildfire risks. …. In all other respects, the judgment is affirmed.”
The court ruled that the plaintiffs’, Petitioners Center for Biological Diversity and California Native Plant Society, arguments concerning the generation of greenhouse gases, offsite water use and alternatives to the project did not merit overturning the trial court.
In the decision, the judges specified, “… we agree that its conclusory discussion of the project’s potential impact of exacerbating wildfire ignitions fails to provide meaningful information for the environmental assessment required by CEQA (California Environmental Quality Act). Because the FEIR is invalid in part, a new environmental impact report (EIR) must be prepared, …”
The judges held the public had not been properly informed of the changes in wildfire risk posed by the development. The Plaintiffs had maintained that there was no evidence of analysis of the change in wildfire ignition risk although people are the overwhelming cause of wildfires and putting 4000 people into a wilderness area must necessarily raise that risk. Although the FEIR document does contain information about fire hazard mitigation efforts, there was no clear analysis of the change in hazard level those efforts could produce as there was no baseline of ignition danger due to the introduction of people into the wilderness area.
Under the heading, “FEIR Insufficiently Disclosed Project’s Potential Adverse Effects of Increased Wildfire Risks” the decision cited Lake County staff reports indicating “potentially significant” changes in the danger of wildfire risk under the errata attached to the FEIR. There was an additional letter from Lotusland’s attorney, Katherine Philippakis, presented to the public the day before the Board of Supervisors hearing and her oral testimony at the hearing. But none of these were included in the FEIR itself which is the primary means, under CEQA, of conveying information to the public. “And an agency cannot ‘make up for the lack of analysis in the EIR’ through post-EIR analysis.”
The ruling further states, “While the Wildfire Plan comprehensively analyzes the project site’s current wildfire risk, it does not expound on the anthropogenic risks that the errata admits development at the project site will ‘introduce.’ No component of the FEIR, therefore, discusses this aspect of the project in detail sufficient to enable the public to discern the ‘analytic route the …agency traveled from evidence to action.’”
“An agency’s inadequate or conclusory discussion of a potentially substantial adverse change in the environment deprives the public of information necessary for informed self-government and constitutes a prejudicial abuse of discretion,” the court said.
As reported in Courthouse News Service, Lotusland’s Kevin Case stated, “We remain committed to setting the benchmark for best-in-class fire-safe development under the oversight of Lake County and in collaboration with leading fire-safety experts and members of the local community.”
