Ruling Cheers Foes of Wetlands Development

SAN DIEGO — In a decision that could have statewide repercussions, a Superior Court judge issued a tentative ruling Tuesday that says the California Coastal Commission erred in having once approved residential development on the Bolsa Chica wetlands and in agreeing to the filling of Warner Pond near Huntington Beach.

Attorneys for both sides called the ruling by Judge Judith McConnell significant. Based on her interpretation, the California Coastal Act prohibits residential development in wetland areas, even if developers help to facilitate wetland restoration.

That was precisely the case involving the Koll Real Estate Group of Newport Beach, which in 1995 obtained commission approval to proceed with a residential development on the wetlands and a surrounding mesa, despite a wave of public protests against building on one of the largest undisturbed coastal wetlands in the state.

In a widely publicized Feb. 14 transaction, however, the company agreed to abandon plans to build on the wetlands, which were deeded to the State Lands Commission in exchange for $25 million. The wetlands area is now slated to become a public wildlife preserve, and the development firm plans to proceed with construction on the mesa.

Koll’s sale affected only its plans for 900 homes in a development that was originally conceived to have more than 3,000. The development company still hopes to build 2,400 homes on a mesa just north of the wetlands and east of Pacific Coast Highway.

In a concession to the developers, McConnell ruled in their favor on three minor points of the five she considered--and part of her ruling gave the go-ahead to construction on the mesa. But developers conceded defeat on the two crucial issues the judge tentatively decided Tuesday.

If allowed to stand, McConnell’s ruling could affect proposed residential development up and down the California coastline, since she effectively overturned a January 1996 ruling by the then-Republican-dominated Coastal Commission that allowed such projects to proceed.

“This is a big, big victory for us,” said Connie Boardman, immediate past president of the Bolsa Chica Land Trust, which had filed suit along with the Shoshone-Gabrieleno Nation (a Native American group), the Sierra Club and the Surfrider Foundation against the Coastal Commission. “Even if we had won on only one point, it would have been a victory, because it sends it back to the Coastal Commission.”

That’s one possible scenario. Deputy Atty. Gen. Jamee Jordan Patterson, who represented the Coastal Commission, said the case could be returned to a newly appointed Coastal Commission for reconsideration, appealed to the state Court of Appeal or renegotiated as part of a settlement.

“There won’t be any settlement conference involving our party,” Boardman said flatly.

At the time the commission made its decision in January of last year, four swing votes were cast by appointees of then-Assembly Speaker Curt Pringle (R-Garden Grove), who had publicly supported the developers.

Since then, Pringle’s appointees have been replaced by four new members selected by current Speaker Cruz Bustamante (D-Fresno). Boardman predicted the new appointees would merely endorse McConnell’s ruling.

If endorsed by a new Coastal Commission, McConnell’s ruling “could affect all wetlands in California in a way that ensures their survival,” Boardman said. “The previous Coastal Commission said it’s OK to build houses on wetlands if you use some of the money for wetland preservation. But it doesn’t say that in the Coastal Act, so we regarded it as a dangerous precedent. This judge apparently sees it our way.”

The lawsuit, which was originally filed in San Francisco where the commission has its headquarters, was later transferred to San Diego.

McConnell, considered an environmentally friendly jurist in San Diego, expects to render her final ruling by Thursday. Based on her reaction to Tuesday’s oral arguments in court, neither side predicted any changes in the final ruling.

As soon as Tuesday’s hearing was over, the environmentalists and their attorneys held hands outside the courtroom and then applauded wildly.

“I think they’re right,” sighed Patterson, the Coastal Commission’s counsel. “If the judge stays with her tentative ruling, they’ve accomplished most of what they’ve set out to do, which was to set aside [the Coastal Commission’s previous vote] and avoid an adverse precedent.”

That adverse precedent would have permitted residential development on wetlands throughout the state, which Boardman said would have been a tragedy from which “California might never recover.”

Boardman said the state’s purchase of 880 acres of the Bolsa Chica land Koll once owned should not be affected, nor would a $91-million effort by an army of state and federal agencies to preserve the Bolsa Chica wetlands.

As part of an agreement with the U.S. Fish and Wildlife Service to expand their ports by building over marine habitat, the Port of Long Beach and the Port of Los Angeles had agreed to pay a combined $79 million to help finance the Bolsa Chica restoration.

In making her ruling, McConnell said: “The court finds residential development is not a permitted use for degraded wetlands. . . . The commission did not identify this conflict or balance the competing interests in its findings as required by law. Consequently, the commission failed to proceed in the manner required by law, and . . . the commission’s decision is not supported by its findings.”

The judge’s ruling has direct bearing on another developer, the Fieldstone Co., which, despite the wetland preservation project, had hoped to build homes on the lower area of the Bolsa Chica property, which is its most sensitive environmentally.

Fieldstone representatives said they hope to construct about 200 homes on a 42-acre parcel it currently owns on the lower wetlands, which encompasses an area of more than 2,000 acres. Of those 42 acres, five are in the wetlands which Judge McConnell said would be strictly off-limits to residential development.

McConnell also ruled in favor of environmentalists in prohibiting the filling of Warner Pond, an environmentally sensitive waterway near Warner Avenue. The filling of the pond would be necessary for the widening of Warner Avenue, which environmentalists maintain is essential to Koll’s plans to build homes on the upper mesa of Bolsa Chica.

In that respect, the judge’s tentative ruling was a mixed blessing for developers, since she ruled in their favor on three minor points out of the five considered in the package:

* She permitted the development of a 7.5-acre eucalyptus grove on Bolsa Chica Mesa, disputing the environmentalists’ contention that it’s a sensitive area because it offers nesting grounds to peregrine falcon and other endangered birds. Thus, Koll’s construction of 2,400 units on the mesa may continue, pending the final decision.

* McConnell also agreed with developers in saying that a 50-foot buffer zone designed to protect the mesa’s wildlife was large enough. Environmentalists had argued that at least a 100-foot buffer zone was necessary for protecting wildlife.

* She also ruled that Bolsa Chica’s archeological resources are not necessarily protected by the Coastal Act--a decision opposed by Native American groups that have bitterly protested the excavation of Indian remains and artifacts in sites slated for development.