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Orange County supervisors, after losing in court for a third time, on Tuesday narrowly re-approved a proposed 340-home project in fire-prone hills north of Yorba Linda.
The most recent ruling on Esperanza Hills, by an appeals court in May, warned that if the county doesn’t act in “good faith” to provide evidence for considering solar panels as not feasible, the entire development would be canceled until it complies with state environmental law.
The court ordered the county to re-do the environmental report’s section on solar panels and provide a “good faith, reasoned explanation, supported by substantial evidence” for whether or not solar panels are feasible.
“Should the County fail to proceed diligently and in subjective good faith,” a judge will order it to cancel “all Project-related approvals and suspend all Project-related activity” until the county follows state environmental law, the court wrote.
The same appeals court previously found the county’s environmental documents for the project failed to set standards for an evacuation plan; under-calculated water needs; and had an inaccurate map that showed protected state park land did not border the eastern side of the project, when in fact it did.
The activist group that won the three court rulings since 2015, Hills for Everyone, told supervisors Tuesday the county’s new fix relied on faulty math and asked them to re-evaluate the data.
“The [developer] and its chosen consultants have basically been running the show,” said Kevin Johnson, the attorney who won the court rulings against the county. He alleged a “pattern and practice of the county delegating things to the developer, not only on the interpretation of the law, but also on the facts and the choice of the experts and how the experts approach the issue.”
County officials and the developer’s representative, Doug Wymore, did not dispute his allegation, but said the activists didn’t present their own technical experts to dispute the new findings, which were from an electrical engineer.
The activists presented findings from Diane Kanne, a chemist who lives in Yorba Linda and said she worked on air pollution regulations with the South Coast Air Quality Management District. “The math is wrong,” Kanne said of the county’s new findings, adding the wrong software and calculations were used for the estimates.
Three supervisors – Lisa Bartlett, Michelle Steel, and Andrew Do – voted to re-approve the project, emphasizing it was discussed many times before and the most recent court ruling was limited.
“This is us following the law and approving a project based on what a court has indicated to us,” Do said. “We have to limit our discussion to what is here, which is only for the solar panels.”
The other two supervisors – Don Wagner and Doug Chaffee – said they had concerns and wanted to pause until they’re addressed.
“What concerns me is that we do not have the community’s buy-[in]. And the issues that they’ve raised…are issues that are substantive and I think really do deserve more attention than they seem to have gotten so far,” said Wagner, whose district includes the proposed project and nearby neighborhoods.
Specifically, he cited “the issue of public safety and indeed wildfires. The entrance and exits to the project are limited. And there is legitimate community concern about access for fire personnel and more importantly maybe even exit for residents in a worst-case scenario.”
A prior appeals court ruling found the project is in a “very high fire hazard zone.” The 2008 Freeway Complex Fire “burned the entire site in approximately 40 minutes, along with roughly 30,000 additional acres adjacent to the site,” the ruling states.
Supervisors at one point wanted the development to have two main access roads, which the county Planning Commission recommended. But the supervisors’ May 2017 approval of the project had one main road to and from the development, which would run on a bridge. The supervisors’ project approval also called for an emergency access road.
In its most recent ruling, in May, the appeals court found the county failed to follow the law yet again with its environmental impact report. The report failed to provide “any evidence” to support its conclusion that it’s not feasible to require each home to have rooftop solar panels as a way of offsetting greenhouse gas emissions, the court found.
The court found several problems with the county’s arguments, including relying on a draft Board of Supervisors resolution that never was approved.
“The [policy] explanation to which the County directs us [for why rooftop solar is undesirable] is not included in the actual County board of supervisors resolution certifying the revised [environmental report],” the court found.
“In other words, the board of supervisors never made the policy based findings on which the County attempts to rely.”
Under California’s environmental disclosure laws, the county did not have to find that solar panels were feasible, but it did have to provide “substantial evidence” to justify its finding that they’re not feasible, the court found.
“To be clear, we are not holding or implying the County was obligated to find solar [photovoltaic] roof panels feasible,” the court found.
“The purpose of [the California Environmental Quality Act] is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind,” the court wrote, quoting to a 1993 appeals court ruling.
“Consistent with that foundational principle, we are charged with assessing whether the revised [environmental report] met [the law’s] information disclosure requirements. In this case, it did not because the revised [report’s] feasibility conclusion concerning solar roof panels was not supported by substantial evidence.”
Wagner, the county supervisor who represents the area, said the court was questioning whether the county was acting in “good faith,” which is defined as honesty about one’s intentions.
“The appellate court has repeatedly said, ‘No, do it better, do it differently and come back.’ ‘No, do it better, do it differently and come back.’ ‘No, you need to try again.’ ” said Wagner.
“I’ve practiced law 30-plus years as a litigator, and I’ve been in front of many appellate courts,” he added, saying it’s “somewhat unusual to have an appellate court say not only ‘No,’ but ‘Do it in good faith,’ ” he added.
“There are questions here that caused an appellate court to stick that language in.”
Esperanza Hills’ developer is represented by influential county lobbyist Roger Faubel, and as of last year all five supervisors at the time had received maximum-allowed campaign contributions from the developer or its executive, Doug Wymore.
Three of those supervisors – Bartlett, Steel, and Do – are currently on the board, and were the three votes Tuesday to re-approve the project.
Do, who also is an attorney, said the supervisors were acting based on the law and evidence.
“I submit to you that we are guided by the law, by the process and by technical knowledge and evidence that we have,” he said.
This article has been updated to include the expert activists presented to dispute the county’s findings.
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at firstname.lastname@example.org.