An appellate court has ruled against environmentalists in a California Environmental Quality Act lawsuit because the project in question was not approved and because environmentalists did not exhaust their administrative remedies. In a peculiar case from Rancho Cucamonga, the Fourth District Court of Appeal, Division Two, ruled that the lawsuit brought by opponents of a 40-home subdivision was moot because the city denied the developer's design review application for a previously approved subdivision. However, recognizing that the controversy could continue, the court still addressed the merits of the case. That is when the court nailed environmentalists for raising issues on appeal that had not been fully aired before the City Council or trial court. The controversy involved 25 acres in Haven View Estates, a gated community in the western San Bernardino County city of Rancho Cucamonga. In 1990, the city approved a negative declaration and a tentative map with extensive flood control conditions. No one challenged the negative declaration or the map. Seven years later, a new developer, Lauren Development, Inc., submitted a design review application for 40 homes on the site. The Planning Commission approved the application in July 1997. But Cucamongans United for Reasonable Expansion (CURE) appealed to the City Council. The group argued that the city should prepare a supplemental environmental impact report because there was new information regarding on-site habitat for the coastal California gnatcatcher, which was listed as "threatened" under the federal Endangered Species Act in 1993. In September 1997, the City Council denied the developer's design review application and declared that no further environmental review was required. The following month, CURE filed a petition for writ of mandate seeking injunctive and declaratory relief. San Bernardino County Superior Court Judge Frederick Mandabach ruled for the city. On appeal, CURE argued that "new information of substantial importance" arose after the city adopted the negative declaration, warranting further environmental review. But the court sided with the city, which argued that because it did not grant the discretionary approval sought by the developer, further environmental review was unnecessary. "Because the city denied Lauren's design review application which prompted CURE's request for an SEIR, the City was not required to prepare an EIR," Justice James Ward wrote for the unanimous three-judge panel. Thus, the lawsuit should be dismissed as moot, the court ruled. Recognizing that development pressures would remain, the court addressed CURE's lawsuit anyway. Environmentalists had argued before the City Council and the trial court that additional review was needed of impacts on Riversidean alluvial fan sage scrub, which provides habitat for the gnatcatcher. But on appeal, CURE focused on impacts to coastal sage scrub (CSS), which also provides habitat for the rare bird. The city contended that CURE had never previously mentioned coastal sage scrub, so it could not raise that issue now. Environmentalists argued they had raised habitat issues sufficiently. The court sided with the city. "Contrary to CURE's contention that the CSS habitat was sufficiently argued below, the general references to the laws pertaining to conservation of endangered species' habitats were far too general and vague to call specific attention to the alleged loss of CSS habitat. General comments made at public hearings cannot satisfy the exhaustion doctrine," Ward wrote. In an unpublished portion of the opinion, the court held that substantial evidence supported the city's decision against CURE's request for supplemental environmental review regarding seismic stability, potential flooding and slope stability. The Case: Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga, No. E024244, 00 C.D.O.S. 6102, 2000 Daily Journal 8059, filed July 20, 2000. The Lawyers: For CURE: Craig Sherman, (619) 702-7892. For the city: James Markman, Richards, Watson & Gershon, (714) 990-0901.