The Newport Beach Banning Ranch area. Photo: California Coastal Commission

The proposed developer of Banning Ranch blasted the California Coastal Commission Thursday for upholding a preliminary decision in September to reject the developer’s plan.

“Today, the commission adopted findings for the September 2016 Newport Beach Banning Ranch hearing that do not accurately reflect the basis for the commission’s decision,” said Sam Singer, a spokesman for Banning Ranch, one of the largest open private parcels of coastal land in Southern California.

“The commission’s action threatens to condemn Newport Beach Banning Ranch to remain a fenced-off, industrial brownfield for future generations,” Singer added.

“The commission has passed up a vital opportunity to obtain additional information about the Newport Banning Ranch site — something the commissioners specifically requested at the September 2016 hearing,” Singer said. “Their action today attempts to cement the incomplete view of the evidence, questionable analysis, and unfortunate conclusions contained within the September 2016 staff report.”

The developer “will continue our legal challenge to their decision to demonstrate the extraordinary and unprecedented amount of procedural errors, misinformation and errors that in fact failed to provide the opportunity for a balanced decision that considered all of the facts,” Singer said.

The commission’s moves “have led to the illegal taking of our property rights and is a violation of the 5th and 14th Amendments to the Constitution,” Singer said.

The California Supreme Court last month heard oral arguments on the Banning Ranch issues.

Attorneys spent much of the hearing before the high court zeroing on how much the city did to identify Environmentally Sensitive Habitat Areas, or ESHAs, at Banning Ranch.

The Banning Ranch Conservancy is seeking to preserve the coastal property in West Newport as open space and accuses the city of having breached its own plan in 2012, when it approved a large residential and commercial development for the area.

The group argues that the general plan places a priority on open space in West Newport and that city officials failed to work with the Coastal Commission to make provisions regarding sensitive habitat areas. The group also contends that the project’s environmental impact report was inadequate.

The California Coastal Commission in September rejected the Banning Ranch project, which envisions the construction of homes, businesses and park land on 401 acres in Newport Beach and the surrounding areas.

Attorney John McClendon, representing the conservancy, was asked if the crux of the legal problem was that the commission requested — and the city failed — to address issues with the ESHA.

“Yes, and they offered under the coastal act to work with them and review it and they were rebuffed,” he said.

Attorney Benjamin G. Shatz, representing the developer, argued that the commission was the “high priest of ESHA,” so that was the commission’s responsibility, not the city’s.

“The commission is the high priest of ESHA, the commission has the final word what that is and that’s why the city’s report didn’t take that last step to say, `here is all the data,”‘ Shatz said.

Shatz noted the biological report from the city on the property was more than 500 pages long, “and there are maps identifying what’s happening and where.”

Shatz argued city officials met a legal threshold for working with the commission, and then waited for the agency to offer suggestions on revisions regarding the environmentally sensitive areas of the property.

“That seems to be a piecemeal approach, and (the California Environmental Quality Act) was intended to be an integrated approach,” Associate Justice Ming Chin said. “What would prevent the city from exceeding what the coastal commission wanted?”

Shatz acknowledged the city could have gone to greater lengths to collaborate with the commission, but that it was not legally required to do so.

“But all that’s left is raw information,” Chin replied, referring to the initial environmental review of the project from the city. “In a sense, there’s no policy overlay that would alert people to why this information is important and what legal rubrics does it fit into.”

Shatz replied, “The (Environmental Impact Report) is meant to be an informational document… Instead, the city did its best efforts to do everything upfront, short of walking into a room with the commission to reach agreement on these points, because it knew that was probably going to have to happen later.”

McClendon argued, “The whole purpose behind an EIR is the give you the good, the bad and the ugly behind the potential impacts.” He also said the report was full of gobbledygook.

“They said there’s a large terrestrial quadruped in an area enclosed by four walls instead of just saying what a common person would understand — there’s an elephant in the room,” McClendon said.

Attorney Whitman Manley, who was representing the city, rejected McClendon’s argument that it was “too late” to analyze potential environmental impacts after the EIR was approved.

“We regarded the work as not ending with the city’s certification of the EIR,” Manley said.

Manley also argued the city did enough to work with the commission on the project.

“There was at least one meeting, and there may have been more,” Manley said. “The city did receive an extensive letter from the Coastal Commission and prepared an extensive response to that letter… There was some effort. Could there have been more effort, more phone calls? Of course. We could say that on any record, but the point is there was some effort… We do think we complied with CEQA.”

Manley acknowledged that the EIR did not predict the commission’s stance on what areas on the property were environmentally protected habitat.

“The only thing the EIR did not do, and we concede this, was to make a prediction… what we thought the coastal commission would do in designating ESHA under the coastal act,” Manley said.

The commission’s staff had recommended approval of the project in September, but with conditions that the developer said would represent “de facto denial.”

Opinion from scores of residents and environmentalists was split on the project.

Banning Ranch, which is in the 5100 block of Pacific Coast Highway and represents the largest privately owned parcel of its kind in Southern California, has been a site for oil drilling since the mid-1940s.

The commission’s staff estimate about 470 oil and natural gas production and steam and water injection wells have been drilled on the property with peak oil and gas production in the early 1980s.

Despite the drilling, which has left some of the site “severely degraded,” Banning Ranch “as a whole continues to support a remarkable and unique array of sensitive coastal species and habitats, including nesting and foraging habitat for the threatened California gnatcatcher, a very rare vernal pool watershed that supports the endangered San Diego fairy shrimp, coastal wetlands, habitat for burrowing owls, and rare purple needlegrass grassland, as well as riparian habitat and coastal marsh lands,” according to the staff report.

The commission’s staff estimated that 219 acres “rise to the level of environmentally sensitive habitat areas.”

The site also carries archeological significance as it was once home to the Juaneno and the Gabrielino tribes.

The site “contains eight known archeological sites from these tribes and likely more yet to be discovered sites,” the commission’s staff said in a report.

Banning Ranch has won the support of two tribes, but seven others oppose it or have concerns, according to the commission staff.

Some tribal leaders have concerns about developing burial grounds while others think the entire site is sacred.

The project would feature 12 acres of roads, 37 acres of residential development with 895 residential units, 45,100 square feet of commercial development, and eight acres of retail and resort development that would include a 75-room hotel and 20-bed hostel.

The project would also include five acres of parks and seven miles of public trails and 329 acres of open space. Oil operations would be cut down to 15 acres.

One of the “biggest stumbling blocks” between the developer and the commission’s staff has been a proposed Bluff Road as a main artery through the property that would connect 17th Street to Coast Highway.

The staff believe it would disrupt the ecology too much while developers have argued it would conform with the Coastal Act because it would provide more access for visitors to the coast.

–City News Service

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