Judge’s Ruling Deals Setback to Wetlands Project

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 allowing residential development on the Bolsa Chica wetlands and in permitting 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 wetland restoration.

If it stands, McConnell’s ruling could affect proposed residential development along the California coastline because she effectively overturned a January 1996 ruling by the Coastal Commission that allowed such projects to proceed.

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 that the final ruling would be significantly different from Tuesday’s tentative one.

At the time the commission approved the Bolsa Chica development, 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 Since then, Pringle’s appointees have been replaced by four new members selected by current Speaker Cruz Bustamante (D-Fresno). Those members are generally considered less favorable to developers.

“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,” said Connie Boardman, immediate past president of the Bolsa Chica Land Trust, which had sued the Coastal Commission. The trust was joined in the suit by the Shoshone-Gabrielino Nation (a Native American group), the Sierra Club and the Surfrider Foundation.

The commission’s previous ruling would have permitted residential development on wetlands throughout the state, which would have been a tragedy from which “California might never recover,” Boardman said.

Now, she said, the new appointees to the Coastal Commission would endorse McConnell’s ruling. That “could affect all wetlands in California in a way that ensures their survival,” she said.

“I think they’re right,” said Deputy Atty. Gen. Jamee Jordan Patterson, who represented the Coastal Commission. “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.”

If the judge stays with her tentative ruling, the case could be returned to the commission for reconsideration, appealed to the state Court of Appeal, or renegotiated as part of a settlement, Patterson said.

The Bolsa Chica development was originally conceived to have more than 3,000 homes. The development company still hopes to build 2,400 homes on a mesa just north of the wetlands and east of Pacific Coast Highway.

On Valentine’s Day, the Koll Real Estate Group of Newport Beach deeded over 880 acres of the Bolsa Chica wetlands for $25 million to the State Lands Commission, which will convert the property into a public wildlife preserve.

Boardman said the state’s purchase of the 880 acres should not be affected by McConnell’s ruling, nor would it alter 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.

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 build about 200 homes on a 42-acre parcel it owns on the lower wetlands, which encompasses an area of more than 2,000 acres. Of those 42 acres, five are in the wetlands that 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 Huntington Beach. The filling of the pond was 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.