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Friday, January 4, 2008

Final Appeals Court ruling blocks housing project near California's Mount Whitney; strengthen's legal requirement to analyze alternatives to developer's projects


A SUMMARY OF WHAT THE COURT'S RULING MEANS: What the Court ruled was that anytime a development will result in significant unmitigated environmental impacts, a list of alternative projects that would attain most of the basic objectives of the developer must also be studied in the project's environmental impact report. In order for the government to approve the developer's proposal, it must prove that all the alternatives are "infeasible" either legally or economically. Just because the developer refuses to accept any different project does not actually make it "infeasible". The claim of "infeasiblity" must be supported by facts and studies, not just conclusory statements that are not backed up by facts. If the government cannot declare the alternatives infeasible, it cannot approve the developer's proposal.

-Rex Frankel


Conservationists throughout California look to the proposed project as a dangerous precedent for leapfrog development in the fragile Eastern Sierra landscape. “This is an important victory for the entire Sierra Nevada,” said Tom Mooers, executive director of Sierra Watch. “It’s another great example of how people are standing up to defend the Sierra landscape – from Mount Whitney in the south to Dyer Mountain in Lassen County.”

Now conservationists will seek to work with the landowner to reach a collaborative resolution to the contentious issue. “Our goal was never simply to win a lawsuit,” said Fenton. “Our goal is to reach a win-win agreement that protects the land and encourages responsible development. We look forward to taking that next step.”


San Francisco Chronicle, 12/20/07

A state appeals court in Riverside has blocked a plan to create a 27-parcel housing development near the base of Mount Whitney, the highest peak in the contiguous 48 states.

A three-judge panel of the 4th District Court of Appeal ruled this week that the project's environmental impact report failed to adequately evaluate a possible trade of the developer's 74 acres for approximately 100 acres owned by the U.S. Bureau of Land Management.

Both sites are near Lone Pine on the eastern side of the Sierra Nevada.

"There may be physical, hydrological or other features of the BLM parcel, as well as environmental and economic considerations, that would render development on that land infeasible," Associate Justice Jeffrey King wrote in a unanimous opinion.

"However, this 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."

Through the environmental review process, government officials are required to consider potentially less-damaging alternatives to a proposed project.

Environmentalists supported the land trade, saying the BLM property was closer to existing developments and would have less of a visual impact on the area. But the owner of the 74 acres, Jim Walters, rejected it. He said it would take years and an act of Congress to complete the swap.

The appellate justices ordered the Inyo County Board of Supervisors to reverse its approval of the project. They also required supervisors to avoid taking any steps to reauthorize it before they prepare a "legally adequate" environmental evaluation of the land exchange.

Environmentalists also challenged the project on the grounds that the environmental report failed to adequately address the impact on threatened species and the area's majestic views. They further objected by saying the owners of the project's 2.5-acre parcels could build up to two residences on their property.

The court rejected those arguments.

The proposed development is "clearly an unacceptable threat to the Mount Whitney area and the Owens Valley," said Jennifer Fenton, a spokeswoman for the environmental group that filed a lawsuit challenging the project, SRVA Advocates for Smart Growth.

Walters, a professor of medical ethics at Loma Linda University, said Thursday that he was "disappointed but not surprised" by the decision. He said a revised environmental report was being drafted to address the court's objections.

"I don't see myself despoiling the beautiful area," he said. "In order for small towns like Lone Pine to survive, it needs to have an adequate tax base. And only 1.8 percent of the property in Inyo County is private (and taxable)."


The case is Save Round Valley Alliance v. County of Inyo et al, E041364.

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