Court Says Baykeeper Lawsuits over City EIRs Don’t Hold Water

• Superior Court Judge Says Documents Pass Muster

BY BILL KOENEKER

A Los Angeles Superior Court judge has dismissed two lawsuits filed by the activist environmental group Santa Monica Baykeeper challenging the City of Malibu’s approval of Legacy Park and La Paz, a retail office complex.

“Both lawsuits were denied and the judge ruled in favor of the city,” said Malibu City Manager Jim Thorsen.

The Malibu Surfside News obtained copies of the rulings. In both suits, the Baykeeper unsuccessfully argued the Environmental Impact Reports were flawed and did not follow the procedures required by the California Environmental Quality Act.

On the Baykeeper challenge of the Legacy Park EIR, the court ruled that Baykeeper attorneys were not really challenging procedure and the city’s failure to follow procedure, “but rather it attacks the EIR as lacking required information.”

Legacy Park, currently under construction is a 15-acre park that will contain an eight-acre detention basin for a stormwater cleansing project, and also consists of habitat restoration and environmental education.

The ruling cited several specific instances where the Baykeeper failed to convince the court.

The court indicated the EIR focuses on mitigation, including during construction phases, of any potential impacts and noted “it does not forego analysis completely as petitioner suggests.”

The court noted the grading has been completed and Baykeeper did not seek a temporary restraining order or a preliminary injunction to prevent “any perceived threats or adverse impact from grading activities.”

The court also found that the net effect of the park project “will be to reduce the amount of discharge to groundwater [and] the project will not discharge anything to the groundwater. Therefore there is no requirement or reason to analyze cumulative effects.”

The court also spoke to what was described as Baykeeper’s failure to demonstrate its allegations that there were errors and omissions of such magnitude as to preclude informed decision-making and informed public participation, thereby thwarting the statutory goals of the EIR process.

“Petitioner has not established that there was any prejudicial abuse of discretion. Accordingly, the respondent’s decision should be upheld. The petition is denied,” the court ruling states.

In the matter of the La Paz ruling, the court said that the Baykeeper bears the burden of presenting credible evidence that an agency’s findings and conclusions are not supported by substantial evidence. “As discussed below, petitioners have not met that burden,” the court stated.

Baykeeper argued the city committed error when it did not recirculate the EIR after the wastewater treatment element changed.

“While materially different than the septic system previously proposed, it does not represent a significant change that would necessitate recirculation. If petitioner’s interpretation of recirculation requirements were the law, every improvement to a project in response to comments would require another round of environmental review subjecting a project to endless review. The city’s decision not to recirculate is presumed to be correct and petitioners has failed to meet its burden on this issue,” the court stated.

The court also talked about what was seen as Baykeeper’s failure to prove its claim that there was inadequate environmental analysis.

Specifically on groundwater flow, the court said the matter was not brought up at the hearings and therefore could not be raised now.

“Petitioner has not shown that the issue of flooding impacts on people was raised at the administrative level. Nevertheless the court finds that this human impact analysis is implicit in the analysis of the impacts of flooding on structures,” the court opined.

The court cited other allegations that Baykeeper made about the EIR specifically on cumulative impacts, deferred mitigation and other deficiencies, but said the Baykeeper had failed to prove such assertions.