| NCCP Challenge as Applied to San Bernardino |
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COUNTY OF SAN BERNARDINO
Plaintiff/Petitioner alleges through this Complaint and Petition as follows: I. INTRODUCTION 1. This action involves a challenge of the County of San Bernardino’s decision to approve a land development project(1) and adopt a negative declaration under the California Environmental Quality Act ("CEQA") that no significant impacts to the environment will result from the project’s development. This is not correct. 2. The project site’s habitat conservation and open space values has been recognized for years by the federal and state trustee wildlife resource agencies, as well as admitted by the neighboring City of Rancho Cucamonga (which intends to annex the unincorporated area and is currently under their sphere of influence) and admitted by the County itself when the local agency created and adopted special Open Space Plans and Open Space Districts to protect the site and surrounding area. 3. Further in denial of the federal and state resource agencies comments and recommendations, the County of San Bernardino has ignored its own staff and department comments that the project site is a critical piece to the puzzle in developing an ecologically viable region-wide habitat conservation plan which the County and 13 other signatory localities are obligated to prepare, as a matter of contractual agreements, as well as state and federal law. The approved project stands to compromise this planning effort and results in an unmitigated significant impact under CEQA. 4. The approved project is an obvious chipping away of contiguous habitat that brings and encourages leap-frog development into a sensitive and significant habitat in the area adjacent to the San Bernardino National Forest which has no development to the west, east or north. The Project acts as the first "leap" into an area north of the high wire electric transmission lines and corridor of towers of the Los Angeles Department Water and Power which have, until this project, acted as a buffer for open space conservation. An area that is without paved roads, water supply or other sewer and power infrastructure. The effects of this project are unmitigated direct and cumulative impacts of the loss of open space lands and conservation opportunities. 5. Last but not least to this introduction, the County Board of Supervisors by approving this development project have failed to follow its own self-imposed legal obligation to follow the guidelines and process requirements of the California Natural Community Conservation Planning Act of 1991, thereby denying its own department’s (Community and Cultural Resources) ability to configure a contiguous habitat conservation plan with viable interconnected habitat reserves in compliance with the intent and requirements of the law. II. GENERAL ALLEGATIONS 6. Plaintiff/Petitioner SPIRIT OF THE SAGE COUNCIL ("Petitioner" or "Sage Council") is an unincorporated non-profit association based in Pasadena, in Los Angeles County that receives a 501(c)(3) non-profit fiscal sponsorship from Social and Environmental Entrepreneurs, Inc., Malibu, California. Sage Council, including its members and supporters, some of whom reside in the County of San Bernardino, have a strong interest in the conservation of San Bernardino’s flora and fauna (including threatened and endangered species), natural resources, ecosystems, open spaces, and quality of life through wise planning and stewardship. Sage Council and its members and supporters enjoy and have a strong interest in preserving the integrity of, among other things, the preservation of natural and contiguous coastal sage habitat and the species which it supports. The Sage Council is also active in this region of San Bernardino County in the enforcement of laws and programs which are designed to protect said habitat and species which are to be adversely affected by the environmental impacts of this Project. The decision of Respondent will have detrimental impacts on the Sage Council, its members, and agents, who reside in the County of San Bernardino and/or visit the area of the Project. The Sage Council includes its members, agents and individuals who protested Defendants’/Respondents’ action preceding the filing of this Petition. 7. Defendant/Respondent COUNTY OF SAN BERNARDINO ("Respondent" or "COUNTY") is a local government agency and subdivision of the State of California charged with complying with applicable provisions of state law, including the California Environmental Quality Act ("CEQA") and the California Natural Community Conservation Planning Act of 1991 ("NCCP"). The COUNTY, as the duly constituted legislative body and administrative body in the County of San Bernardino, is charged with the final duty of ensuring, among other things, that all applicable federal, state and county laws are fully and faithfully obeyed and implemented. Respondent, through the final action of through its board of supervisors, has adopted the resolution and made findings which are the subject of this litigation. 8. Real parties in interest, LING YEN TEMPLE, INC., d.b.a. as LING YEN MOUNTAIN TEMPLE and GARY DOU (collectively referred to as "Real Parties" or "Real Parties in Interest") are unknown business and persons alleged and believed to be the current proponents, applicants and/or owners of the Ling Yen Mountain Temple project, described below, and have received or will receive benefits which may be adversely affected by the herein challenged action(s). 9. The subject of this lawsuit is the development of a sanctuary, lecture hall, kitchen, dining hall, offices, dormitories and ancillary facilities associated with a Buddhist temple and retreat on approximately 40 acres in the West Valley Foothills, in unincorporated area of San Bernardino County, north of and within the sphere of influence of the City of Rancho Cucamonga, located just northeast of the north termination of Wardman Bullock Drive ("Temple Project" or "Project"). 10. This lawsuit has been commenced within the time limits imposed for actions under the California Code of Civil Procedure and California Public Resources Code, and as made applicable to the COUNTY OF SAN BERNARDINO by its Codes or Ordinances or by the general laws of this State. 11. Venue and jurisdiction in this Court are proper pursuant to the California Code of Civil Procedure for a matter relating to subject property located within, and administrative action taken within, the Court’s jurisdiction. 12. Petitioner, by and through itself and other members and citizens of the greater Rancho Cucamonga and San Bernardino County area, have made oral and written comments, submitted neighborhood petitions in opposition to the "controversial" Project, and have been present and participated in the public hearings and meetings and raised each of the legal deficiencies asserted in this Complaint for Declaratory and Injunctive Relief and Petition for Writ of Mandate. 13. Plaintiff has performed all conditions precedent to filing this action by complying with all requirements of the California Public Resources Code, and has no other remedy other than to bring this action. All other requests of Defendant, having been previously made, would be futile. III. THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND 14. In 1970, the California Legislature enacted the California Environmental Quality Act ("CEQA"), Public Resources Code §21000, et seq., as a means of requiring public agency decision-makers such as Respondent to document and consider the environmental implications of their actions. CEQA's fundamental goal is to fully inform the public and the decision makers as to the environmental consequences of its actions and to assure members of the public that their elected officials are making informed decisions. CEQA requires governmental authorities, such as Respondent, to seek feasible means to reduce or avoid significant environmental damage that otherwise could result from their actions. It forbids agencies from approving projects with significant adverse impacts when feasible alternatives can reduce or minimize lessen such impacts. 15. The cornerstone of the CEQA process is the preparation of an environmental impact report or negative declaration which discloses the adverse environmental impacts which may result from the proposal or approval by a public agency. The primary function of the environmental impact report or negative declaration is to discuss the important environmental consequences and to provide decision-makers, responsible agencies and the general public with mitigations and alternatives to the project that would have less serious environmental consequences. 16. Under the federal Endangered Species Act, 16 U.S.C. 1531 et seq., ("ESA"), recognizing that all of the country's "species of fish, wildlife and plants are of esthetic, ecological, educational, historical, recreational and scientific value to the Nation and its people," Congress enacted the ESA with the express purpose of providing both "a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species . . . ." 16 U.S.C. 1531. 17. The ESA provides protection for threatened or endangered "species," including "any subspecies of fish or wildlife or plants." 16 U.S.C. 1532(16). A species is "endangered" if it is in danger of extinction throughout all or a significant portion of its range and a species is "threatened" if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Id. at 1532 (6), (20). 18. Once listed as threatened or endangered, a species is entitled to a number of federal protections under the ESA, including that all persons are prohibited from harming, harassing or "taking" a federally listed species. The term "taking" not only means directly killing or disturbing, but also means the disturbance or destruction of habitat of the species, including but not limited to grading, mowing, disking, trenching and other construction activities. 16 U.S.C. 1538. 19. Under the ESA, the "take" of the federally listed California Gnatcatcher and its habitat is exempted from the "take" prohibitions of Section 9 of the ESA subject to the special federal regulation made under ESA Section 4(d). 50 C.F.R. 17.41. The COUNTY and Project area have become participants of the California Natural Community Conservation Planning Act of 1991, Cal. Public Resources Code §§ 2800-2840 ("NCCP"), and are subject to the special federal rule due to the COUNTY’s active engagement in the preparation of such a NCCP plan or program, and therefore are legally bound to ensure that its activities impacting coastal sage scrub habitat are conducted in accordance with the NCCP Conservation Guidelines and Process Guidelines. Otherwise, the "take" of the California Gnatcatcher or associated coastal sage scrub habitats is prohibited during the "interim" NCCP plan or program under strict accordance with Section 10 of the ESA. 20. The COUNTY and Project area are within the State delineated boundaries of the NCCP Program and referred to as NCCP Subregional Planning Area 13.0 as defined in the federal and stated adopted the NCCP Conservation Guidelines and Process Guidelines. 50 C.F.R § 17.41 and Cal. Public Resources Code §§ 2800-2840. 21. The COUNTY, as a signatory and participating entity in the development of a NCCP plan or program known as a Multiple Species Habitat Conservation Plan for the western area of San Bernardino County ("MSHCP") pursuant to the ESA and contracts with local, state and federal agencies, has "actively engaged" in making a legal commitment in "good faith" to prepare a NCCP plan, and has accepted and is utilizing federal and/or state money for the development of such a MSHCP. 22. The COUNTY Department of Community and Cultural Resources, through the San Bernardino County Museum, is the technical lead agency for the MSHCP (also known as the "Valley Multi-species Plan" or Valley Plan") on behalf of the COUNTY itself and for the approximate 13 other signatories to the MSHCP. IV. FACTUAL AND PROCEDURAL BACKGROUND GIVING RISE TO THIS ACTION A. Project Description and Setting 23. The Temple Project, in its approved form, consists of 10 buildings including, but limited to a sanctuary, dormitories, lecture hall, offices, kitchen, dining hall, kitchen, and approximate 300-space parking lot for buses and cars. 24. There is no development to the north, east, and west of the Project. 25. The Project is located within the 7,360 acres of the West Valley Foothills Area and is primarily designated as a land use under the COUNTY general plan as "RL-10" - Rural Living - 1 dwelling unit per 10 acres, and is further designated by the COUNTY as a special open space district, Open Space District 1 ("OS-1"). "Open Space" is defined in County Code section 812.15020 as:
26. The Project is located and mapped within the North Etiwanda Open Space and Habitat Preservation Program (NEOSHPP, Map A-5) the purpose of which is to identify existing open lands having special resources value and to design a program that encourages the preservation of these lands. The NEOSHPP recognizes that pressures exist to expand development into the foothill areas of North Etiwanda, which could result in a significant loss of natural open space and proactive planning and carefully directed mitigation are needed to preserve significant open space areas. The NEOSHPP incorporates the San Bernardino County General Plan goals and policies regarding the preservation of open space. 27. The Project is located in a conservation planning area designated by the California Department of Fish and Game in compliance with the NCCP which thereby includes this Property in an area known as Subregion Focus Area 13.0, also known as the Etiwanda Fan, as recognized by the scientists and scientific evidence which created the NCCP Conservation Guidelines thereby delineating an area with functioning biological units of high conservation value that should be planned as a contiguous NCCP planning unit along the West Valley Foothills. 28. The Project is also located within the sphere of influence of the City of Rancho Cucamonga and has been designated as a Resource Management Plan Area for conservation in the City of Rancho Cucamonga Etiwanda North Specific Plan, which encompasses the area north of the L.A. Department of Water and Power easement as incorporated by the recommendations of the U.S. Fish and Wildlife Service which stated that:
29. The Respondent COUNTY has legally committed to participate and prepare a regional plan - Multiple Species Habitat Conservation Plan (MSHCP) - in accordance with the state NCCP planning process for the purpose of identifying and providing for the regional or area-wide protection and perpetuation of natural wildlife diversity through comprehensive management and conservation of multiple wildlife and plant species. This MSHCP is also known as the Valley-Multi-species Plan, for which the San Bernardino County Department of Community and Cultural Resources is the technical lead agency. 30. Although the MSHCP is not a "final" approved and adopted regional plan, there are legal implications which obligate Respondent to follow NCCP Conservation Guidelines for the consideration and review of whether its actions will result in environmental impacts, including but not limited to, precluding regional and area-wide planning and conservation efforts. B. Procedural History, Approval and Findings 31. After a May 7, 1998 Initial Study/Proposed Mitigated Negative Declaration (State Clearinghouse No. 98051050) was first circulated for comments in accordance with CEQA, on September 24, 1998 the COUNTY Planning Manager ultimately approved a revised Initial Study/Proposed Mitigated Negative Declaration dated September 23, 1998 ("Negative Declaration"). 32. The Ling Yen Mountain Temple Project and the Negative Declaration was heard and considered by the COUNTY at a regular meeting of its Planning Commission on October 8, 1998, November 5, 1998 and November 19, 1998. At the conclusion of the November 19, 1998 Planning Commission hearing, the Commission was unable to attain a majority vote regarding a motion to require that an Environmental Impact Report ("EIR") be prepared pursuant to CEQA and was unable to attain a majority vote to otherwise approve the Project with a Negative Declaration, therefore the Project was deemed denied without prejudice. 33. The Real Parties then appealed the denial decision of the Planning Commission to the COUNTY Board of Supervisors, whereby on December 15, 1998 the Respondent, through its Board of Supervisors at a regular scheduled public meeting, granted the appeal, adopted a Conditional Use Permit, adopted a Negative Declaration , Adopted a Mitigation Monitoring and Compliance Program, and made findings. 34. Findings made and adopted by Respondent, many of which are contained in the Negative Declaration include, but are not limited to, in pertinent part, the following:
V. FIRST CAUSE OF ACTION The Project’s Conflict with Regional Planning Efforts under the NCCP Plan or Program is A Significant Environmental Impact Not Adequately Addressed or Mitigated (Cal. Public Resources Code §§ 21000 et seq.) 35. Petitioner hereby realleges and incorporates by reference ¶¶ 1-34, above, and ¶¶ 40-71, below, as though fully set forth herein. 36. The law under CEQA requires that a Project which conflicts with regional plans is an issue and significant which must be addressed, disclosed and described in an environmental impact report or negative declaration. 37. Respondent, through its approval and adoption of the herein challenged Project approvals, failed to recognize and address the impacts to the Valley Multi-species Plan (MSHCP) being conducted in compliance with the NCCP, as brought to Respondent’s attention by the County Department of Community and Cultural Resources;
38. Respondent’s failure to adequately disclose, analyze and offer mitigation measures to minimize the conflict and impacts of the Project with regional planning and conservation efforts is a failure to proceed in a manner required by law and a prejudicial abuse of discretion, and the findings adopted by Respondent intended to overcome said failures are not supported by the substantial evidence. VI. SECOND CAUSE OF ACTION The Project’s Impacts to Open Space Land Uses are Not Adequately Addressed or Mitigated (Cal. Public Resources Code §§ 21000 et seq.) 39. Petitioner hereby realleges and incorporates by reference ¶¶ 1-38, above, and ¶¶ 47-71, below, as though fully set forth herein. 40. The law under CEQA requires that a Project which conflicts with a general plan or land use designation must be addressed, disclosed and described in an environmental impact report or negative declaration. 41. Respondent, through its approval and adoption of the herein challenged Project approvals and Negative Declaration, failed to recognize and address the direct and cumulative impacts resulting from the Project’s leap-frog development in a designated open space land use and conservation area, including but not limited to the NCCP planning area, NEOSHPP, Etiwanda North Specific Plan, San Bernardino County General Plan, and County of San Bernardino Open Space District 1. 42. Respondent’s findings that the Project actually contributes to the preservation of open space is not supported by the substantial evidence in the record and is inconsistent with Respondent’s codified definition of "open space" and is inconsistent with the applicable above open space plans. 43. Respondent’s findings that the Project serves a opens space purpose similar to a golf course is not supported by the substantial evidence in the record and is inconsistent with Respondent’s codified definition of "open space" and inconsistent with the applicable above open space and habitat conservation plans. 44. Respondent, through its approval and adoption of the herein challenged Project approvals and Negative Declaration, failed to recognize and address the direct and cumulative impacts resulting from the Project’s leap-frog development in a designated open space land use and conservation area, notwithstanding the responsible state and federal trustee agency statements that:
45. Respondent’s failure to adequately disclose, analyze and offer mitigation measures to minimize the conflict and impacts of the Project with open space land uses and districts associated with the Project site is a failure to proceed in a manner required by law and a prejudicial abuse of discretion, and the findings adopted by Respondent intended to overcome said failures are not supported by the substantial evidence. VII. THIRD CAUSE OF ACTION Significant Unmitigated Impacts to Biological Resources Requires the Preparation of an Environmental Impact Report (Cal. Public Resources Code §§ 21000 et seq.) 46. Petitioner hereby realleges and incorporates by reference ¶¶ 1-45, above, and ¶¶ 56-71, below, as though fully set forth herein. 47. The law under the California Environmental Quality Act requires that where a fair argument can be made that significant unmitigated impacts will result from the development of a proposed project, the preparation of an Environmental Impact Report ("EIR") is required. 48. Respondent has relied on the self-serving findings of Real Parties’ hired biologists (including, LSA Associates, Inc.) that there were no significant environmental qualities in the "disturbed" areas of the Project site and thereby adopted a finding in the Negative Declaration that "development is proposed to occur on the site in an area of heavy previous disturbance and little to no quality habitat." 49. Respondent’s characterization and adopted findings and CEQA determinations that "disturbed" habitat has no biological value is not supported by the substantial evidence based upon reasons including, but not limited to; (1) state and federal trustee agencies responsible for the protection of wildlife and plant species recognized the significant values of the Project’s so-called "disturbed" habitat, (2) such disturbed habitat which has reverted to non-native grasslands serves a significant biological resource for raptors and other wildlife, (3) coastal sage scrub and associated habitats is very resilient, and if left alone it can return to normal healthy growth, (4) Real Parties, or their successors interest, intentionally, maliciously or willingly destroyed and removed coastal sage and Riversidean Alluvial fan sage scrub, and (5) allowing habitat types and areas to be characterized and written-off as "disturbed" encourages piecemeal destruction and the permanent loss of the natural environment and other habitats with no mitigation requirements and no possibility of rehabilitating. 50. The state and federal trustee agencies responsible for the conservation and protection of plants and wildlife provided evidence and testimony to Respondent relative to the biological values at the Project site by stating that:
51. This same state trustee agency responsible for the conservation and protection of plants and wildlife later made comments and provided testimony relating to Respondent’s adoption of the Project Negative Declaration by stating that:
52. Respondent adopted the Project Negative Declaration and did not require the preparation of an EIR. 53. The state and federal trustee agencies responsible for the conservation and protection of plants and wildlife are the authorities when it comes to the determination of impacts on biological resources and the self-serving statements of the applicant’s consultants does not amount to substantial evidence to overcome the standard that a "fair argument" can be made that significant impacts will result from the Project, after the implementation of mitigation measures, such that the preparation of an EIR is necessary. 54. Respondent’s failure to require the preparation of an EIR is a failure to proceed in a manner required by law and a prejudicial abuse of discretion, and the findings adopted by Respondent intended to overcome said failures are not supported by the substantial evidence. VIII. FOURTH CAUSE OF ACTION Failure to Follow the NCCP Conservation and Process Guidelines (Cal. Public Resources Code §§ 2800-2840 et seq.) 55. Petitioner hereby realleges and incorporates by reference ¶¶ 1-54, above, and ¶¶ 62-71, below, as though fully set forth herein. 56. California law, in association with a special federal regulation, requires that agencies such as Respondent participating in the development of a NCCP plan or program must follow the NCCP Conservation and Process Guidelines, if there are to be any impacts to coastal sage scrub - a protected and dependent habitat for the ESA threatened California Gnatcatcher. 57. Because the Project implementation will impact coastal sage scrub and because the Project site is in a critical and specially designated location in both the state and regional NCCP plan or program, it is necessary and required that Respondent shall approve this Project in accordance with the NCCP Conservation and Process Guidelines. 58. Being that the primary purposes of the NCCP is to preserve habitats in large contiguous blocks of land, and because Project site consists of habitat for the federally threatened California Gnatcatcher and endangered San Bernardino Kangaroo Rat, the NCCP procedures and guidelines must be followed before destroying such habitat applicable to the NCCP. 59. The responsible state and federal trustee agencies for the conservation and protection of plants and wildlife commented to Respondent relating to the approval of the Project that:
60. Respondent’s failure, through its approval and adoption of the herein challenged Project approvals, to apply the NCCP Conservation and Process Guidelines is a failure to proceed in a manner required by law and a prejudicial abuse of discretion, and whereby the findings adopted by Respondent intended to overcome said failures are not supported by the substantial evidence. IX. FIFTH CAUSE OF ACTION Failure to Address and Analyze Impacts Before or During the CEQA Environmental Review Process 61. Petitioner hereby realleges and incorporates by reference ¶¶ 1-60, above, and ¶¶ 66-50, below, as though fully set forth herein. 62. As an essential part of the law and process required under CEQA, the disclosure and analysis of a project’s potential significant impacts to the environment must be disclosed at the earliest possible time. 63. The disclosure of impacts may not be put off until a time after the approval and adoption of an EIR or negative declaration. including but not limited to such determinations of the presence and absence of endangered and threatened species and their habitat, plans for the alteration of blue-line streams, and/or the future undisclosed environmental impacts arising from the location of buildings, structures or other physical improvements and construction that will affect the physical environment. 64. Respondent, in its approval and adoption of the Negative Declaration and findings in support thereof, are deficient for failing to address, disclose and analyze the significant environmental impacts which will result from:
65. Respondent’s failure to adequately disclose, analyze and adopt mitigation measures relating to undisclosed and not-yet-determined significant environmental impacts is a failure to proceed in a manner required by law and a prejudicial abuse of discretion, and the findings adopted by Respondent intended to overcome said failures are not supported by the substantial evidence. X. PRAYER FOR RELIEF 66. By reason of the foregoing, Respondent has violated the California Environmental Quality Act by approving the Project and by certifying the Negative Declaration for the Project, notwithstanding the legal defects described above. 67. Respondent’s approval of the Project and the Negative Declaration constitutes legislative action resulting in judicial review pursuant to the standards of Public Resources Code §21168.5 and a traditional mandamus proceeding under California Code of Civil Procedure §1085. The standard of review set forth in Public Resources Code §21168.5 authorizes a writ to issue when there has been a prejudicial abuse of discretion. Abuse of discretion is established if Respondent has not proceeded in the manner required by law, or if the determination or decision is not supported by substantial evidence. 68. Petitioner has a clear, present and beneficial right to the proper performance by Respondent of its duties under CEQA. Petitioner is beneficially interested in the issuance of a Writ of Mandate by virtue of the facts set forth previously, and in that the general public will otherwise be adversely affected by the actions of Respondent herein challenged. 69. Petitioner has no plain, speedy or adequate remedy in the ordinary course of the law other than the relief herein sought. 70. The Declaratory relief requested herein is proper to delineate and clarify the parties’ rights and liabilities and resolve, quiet, or stabilize an uncertain or disputed jural relation. Without the grant of declaratory relief and a writ of mandate, a substantial and illegal windfall of development rights will accrue in favor of the Project’s owners and the Real Parties, to the detriment of Plaintiff and citizens of the County and State for whom this public interest litigation had been commenced. 71. Without the grant of declaratory relief and a writ of mandate, the City will continue to proceed in a manner not allowed by law and will continue to take action outside of its authority resulting in harm to Plaintiff and citizens of the City and State for whom this public interest litigation had been commenced. WHEREFORE, Petitioner respectfully prays for judgment as follows: 1. That this Court find that, by approving the Project and by certifying and/or adopting the Negative Declaration, Respondent has violated the California Environmental Quality Act and the Guidelines promulgated thereto; 2. That this Court issue its Peremptory Writ of Mandate declaring that the decision rendered by Respondent on or about December 15, 1998, and any resolution of Respondent with respect thereto, are null and void and of no force and effect; 3. That this Court order Respondent to vacate and set aside the purported decision made on or about December 15, 1998, and any resolutions of Respondent with respect thereto; 4. That there be issued a Writ of Mandate ordering Respondent to prepare an Environmental Impact Report or a legally adequate Negative Declaration, within a reasonable date from the issuance of the Writ of Mandate, in the event Real Party wishes to pursue the Project; 5. That until such time as Respondent and Real Party comply with CEQA with respect to this Project, such parties be enjoined and restrained from taking any physical actions toward development or completion of this Project, including any grading, clearing, digging, or similar actions; 6. That Petitioner be awarded its reasonable costs incurred in this action, including attorneys’ fees; and 7. For such other and further relief as the Court deems just and proper.
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