Failure To Address Land Swap Dooms Mt. Whitney Subdivision EIR

An appellate court has blocked a controversial subdivision at the eastern base of Mt. Whitney because the project's environmental impact report did not adequately consider a potential land swap between the developer and the Bureau of Land Management.

The court agreed with project opponents that the EIR lacked details necessary to determine that the land swap was an infeasible project alternative. "[T]his EIR includes only the barest of facts regarding the BLM parcel, vague and unsupported conclusions about aesthetics, views and economic objectives, and no independent analysis whatsoever of relevant considerations," the court ruled.

The court rejected opponents' arguments that the EIR's project description was inadequate, and that the study failed to analyze potential impacts on rare species and aesthetics.

The project has been a lightening rod since landowner Jim Walker proposed it. In 2004, Walker, a Loma Linda University professor and Sierra Club member, purchased a 125-acre ranch on either side of Whitney Portal Road, roughly four miles west of the Inyo County town of Lone Pine. The ranch is bordered on three sides by public land, and there is no significant development within three miles. Environmentalists called the project "leapfrog development" that would mar a landscape visited by tens of thousands of people every summer. Still, the property is zoned rural residential with 2.5-acre minimum lot sizes.

Walker proposed a 27-lot subdivision on 74 acres on the south side of Whitney Portal Road. The Planning Commission certified an EIR for the project and approved the subdivision in May 2005. Two months later, the Board of Supervisors denied an appeal from a group called Save Round Valley Alliance (SVRA) and approved the project.

The SVRA sued, arguing that Inyo County failed to comply with the California Environmental Quality Act. Shortly thereafter, Walker and his opponents faced off when Walker began grading the site, apparently without proper permits. Walker halted construction pending a court decision.

In May 2006, retired appellate court Justice Harry Brauer, sitting by assignment to Inyo County Superior Court, ruled against SVRA. On appeal, a unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, overturned Brauer on the issue of project alternatives.

During the environmental review process, BLM Field Manager Bill Dunkelberger said the agency might be willing to swap a 100-acre parcel adjacent to the Alabama Hills subdivision, about three miles away from Walker's land, for the 74-acre development site. But Dunkelberger worried that it was late in the entitlement process and that Walker was not interested. The final EIR concluded this project alternative was environmentally superior but infeasible.

The Fourth District, citing Laurel Heights Improvement Assn. v. Regents of the University of California, (1988) 47 Cal.3d, 376, 404, found that the EIR did not disclose "‘the analytic route the agency traveled from evidence to action.'" The EIR said the land swap alternative was infeasible because the BLM parcel was not designated for residential development, the quality of the BLM parcel was inferior "due to aesthetic/view reasons," and the developer could not achieve the same economic objectives with the BLM parcel as with his own land.

The court said the BLM parcel could be rezoned, the conclusion regarding aesthetics was based solely on the developer's input, and the fact that the developer may not make the same amount of money with the BLM parcel was not determinative.

"The agency preparing the EIR may not simply accept the project proponent's assertions about an alternative; rather, the agency ‘must independently participate, review, analyze and discuss the alternatives in good faith,'" the court ruled, citing Kings County Farm Bureau v. City of Hanford, (1990) 221 Cal.App.3d, 692, 736. The court added, "[T]here is no evidence or analysis whatsoever of the comparative costs or profitability of developing the two parcels."

The county argued that a 1931 federal law blocked BLM from disposing of the parcel in question in order to protect the watershed from which the City of Los Angeles exports water. But the court rejected the argument, noting that the BLM representative said a land exchange was possible and the EIR did not indicate the BLM parcel was unavailable for trade.

Project opponents lost three other arguments, the most important of which concerned the EIR's project description. Opponents contended the project description should have treated the subdivision as a 54-unit project because future homeowners could build second units on their lots. All those second units would increase impacts related to runoff, traffic, air quality and public services, environmentalists argued.

The court concluded the second units were too speculative to be considered at this stage. "[T]he possibility that future lot owners will or will not build a second unit is extremely uncertain, and any impacts of such second units is highly speculative," the court ruled.

The court also determined that the EIR's handling of species and aesthetic impacts was acceptable.

The ruling cheered environmentalists, who said they would continue to press for a land swap or even for outright purchase of Walker's land for preservation. Walker, however, said a supplemental EIR would document the infeasibility of the land swap.

The Case:
Save Round Valley Alliance v. County of Inyo, No. E041364, 07 C.D.O.S. 14412, 2007 DJDAR 18555. Filed December 17, 2007.
The Lawyers:
For SRVA: Tamara Galanter, Shute, Mihaly & Weinberger, (415) 552-7272.
For the county: James S. Reed, Liebersbach, Mohun, Carney & Reed, (760) 934-4558.
For the developer: E. Nathan Schilt, Schilt & Heinrich, (909) 558-3355.