A Placer County judge's decision to throw out a mitigated negative declaration for an employee housing project in the high Sierra has been upheld by the Third District Court of Appeal.

The appellate panel found that the environmental document did not address the growth-inducing impacts of two new roads that would serve the housing project. However, the court published only the portion of its ruling addressing the procedural issue of whether the project opponents met California Environmental Quality Act requirements for expediting the litigation. The court found that the opponents had satisfied the requirement.

In September 2000, developer East West Partners and its Northstar ski resort submitted an application to Placer County for a housing development. The proposal ultimately was for 96 apartments, with a total of 380 beds, for Northstar and other service employees. Also proposed were 120 parking spaces, two access roads and a 500,000-gallon water storage tank. The project needed a general plan amendment, rezoning, two conditional use permits, a building height variance and a parcel map. One year later, the Placer County Planning Commission adopted a mitigated negative declaration and approved the project.

A citizens group called Association for Sensible Development at Northstar (ASDAN) and others appealed to the Board of Supervisors, which upheld the Planning Commission decision. The opponents then sued the county. Placer County Superior Court Judge James Garbolino ruled for the opponents, finding that the mitigated negative declaration was inadequate because of the potential growth-inducing impacts of the new roads, and because of potential impacts to land, water and traffic. The county appealed, but a three-judge panel of the Third District affirmed the lower court's ruling.

The published part of the Third District's opinion addresses a procedural issue. Northstar argued that ASDAN failed to take appropriate steps to request a trial court hearing within 90 days, as required by CEQA in Public Resources Code § 21167.4. Both Judge Garbolino and the Third District rejected Northstar's argument.

The “seminal case” on this issue has been McCormick v. Board of Supervisors, (1988) 198 Cal.App.3d 352, according to Third District Justice Ronald Robie. In McCormick, Robie wrote, the court ruled that CEQA policy “is to ensure that mandate proceedings challenging environmental approvals are conducted expeditiously and squarely places the burden on the challenger to tender their claim for resolution at any early point in the proceedings or lose it altogether.” However, the Third District held that McCormick“is no longer good law.”

In 1994, the Legislature amended the statute, adding subdivision (c) to § 21167.4. The new language said that any party may ask to establish a briefing schedule and hearing date.

“Under the current version of the statute, after the petitioner files a request for a hearing, 'any party' my file an 'application' for a hearing date, at which point in time the courtmust set the hearing,” Robie wrote.

In this case, the project opponents did submit a hearing request within 90 days of filing the lawsuit. At that point, any party could have “move[d] the petition to a hearing on the merits, swiftly satisfying the legislative intent that these proceedings be conducted expeditiously,” the court ruled.

In the unpublished part of the opinion, the court found that the county should have addressed the potential growth-inducing impacts of the two new roads from Highway 267 to the project site. The roads could serve the 1,650-unit Highlands residential development. Northstar argued that the Highlands project was speculative and, thus, did not have to be considered, while the county contended the impacts need not be studied because fire officials had required one of the roads.

The court ruled that the Highlands project was “reasonably foreseeable” within the meaning of CEQA. The court pointed out that Northstar's own traffic consultant described the project in some detail, East West Partners has marketed the Highlands project in a newsletter, and the road configuration “appears to have the future Highlands project precisely in mind.” As for the county's argument, the court said it was “simply irrelevant who suggested the road.”

The court did uphold the project description as adequate. The court did not address Garbolino's rulings regarding land, water, traffic and cumulative impacts.

The Case:
Association for Sensible Development at Northstar Inc v. Placer County, No. C044364, 04 C.D.O.S. 8977, 2004 DJDAR 12281. Filed October 4, 2004.
The Lawyers:
For ASDAN: Donald Mooney, (530) 758-2377.
For the county: Valerie Flood, county counsel's office, (530) 889-4044.
For Northstar Mountain Properties: Whitman Manley, Remy, Thomas, Moose & Manley, (916) 443-2745.