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Superior Court of California
County of Orange, Central Justice Center

Minute Order

16-Apr-2004
Judge: C. Robert Jameson

03CC08461  Airport Working Group of Orange, Inc. V City of Irvine

No appearances.  Having taken the Respondent's Motion for Judgement on Petition for Writ of Mandate under submission on February 11, 2004, and after hearing oral arguments and considering the parties briefs and citations to the Administrative Record, the Court rules as follows on the Petitioners' various challenges to the Program EIR Orange County Great Park project:

1. Project Description: The Court finds that the project description is neither misleading nor inadequate.  The Project Description at Section 3.0 of the EIR provides a full and adequate description of the project.  The Base and Overlay Plans are explained and illustrated in the included figures and tables. The description does not obscure the full buildout potential under the Overlay Plan. Tables 3-2, 3-3, 3-4, and 3-5 show and contrast the development allowed under both the Base Plan and Overlay Plan.

Contrary to Petitioners; argument, the Proposed Development Agreement does not permit the City and or developers to increase the limitation on development contained in the Overlay Plan. The Development Agreement provides that developers may proceed with development of the project "in accordance with the terms and conditions of this Agreement, the "Existing Land Use Regulations" and the "Overlay Plan"; See Recital C of the proposed Development Agreement; 95 AR047014, and Sections 3.1, 3.6 and 3.8 of the Development Agreement. "Existing Land Uses Regulations" is defined to include the City's General Plan, Zoning Code and all other ordinances, resolutions, rules and regulations of City governing development and use of the Property in effect as of the effective date of the development agreement.

Further, the project description is not misleading. Section 3.2 of the Development Agreement clearly states that developers have no right to develop the property under the Overlay Plan in the absence of the development agreement and in the event that the agreement is terminated as a result of a default of the developer, the Overlay Plan will cease to apply and the development shall be governed by and subject to the Base Plan.  The tie between developers and implementation of the Overlay Plan is clear. The fact that the City and Developers may, in the future, renegotiate the Development Agreement to allow for increased intensity of the development does not defeat the EIR. If that occurs, the City will be required to act in accordance with the EIR and its own "Land Use Regulations" and conduct further environmental analysis.

Finally, the Petitioners fail to provide any evidence to support their argument that the Project cannot be developed absent developer financing arising out of the Overlay Plan.

2.  Noise Impacts of the Project: Although the Petitioners allege in their Petition that the EIR fails to address the project's noise impacts, they have failed to put forth any argument or evidence in support of this allegation.  Therefore, they have failed to carry the burden of proof that the EIR's analysis of this impact is inadequate or is not supported by substantial evidence in the record.

3.  Cultural/Paleontological Resources: Petitioners allege in their Petition that the EIR fails to disclose or analyze cultural and paleontological resources on the project site. However, Petitioners have failed to put forth any argument or evidence in support of this allegation.  Therefore, they have failed to carry their burden of proof on this issue.

4. Hazardous Materials: The Court requests further briefing on this issue, specifically on the question of whether the Navy's claim that it will clean up all hazardous materials on the base property, both before and after it is sold is a binding agreement and the basis for each parties position on this question.  What will be the City's recourse against the Navy if a dispute arises regarding the extent of cleanup required or quality of cleanup performed?  Is there a mitigation plan in place to protect the public if the Navy leases out portion(s) of the base property prior to full cleanup, as it has indicated it may do?  If so, where in the Administrative Record is the mitigation plan set forth?  What is each party's position on that mitigation plan (if there is one). If there is no such plan, why not?  Generally, what are the parties' positions and arguments on the provision allowing the Navy to lease out portions of the base property before full cleanup is completed?  Was the April 2003 Draft Final EBS made available to the public for review and comment prior to certification of the FEIR, as opposed to merely being referenced in the EIR in responses to comments?  If so, the City should provide evidence of such submission in the Administrative Record.

The reciprocal supplemental briefs on this issue shall not be responsive to each other, shall be no more than 15 pages each, and shall be submitted within 10 days of receipt of this Ruling. Upon consideration of the briefs, the Court may invite argument.

5. Growth Induced Impacts: The Court finds that the Project EIR's discussion of growth inducing impacts and the effect of the removal of the limitation on development of the 14,000 acres surrounding the project area, found at AR 000583-587 and in the Response to Comments M22, is sufficient to comply with CEQA Guidelines 15126.2(d).  Although the discussion of impacts is general, the Court acknowledges that it is impossible for the City to discuss specific impacts or mitigation measures due to the fact that it is currently unknown what development will take place on that 14,000 acres and due to the fact that the City of Irvine has no control over development in areas outside of its jurisdiction.  The Court also notes that although Petitioners have raised this issue in their Petition and Statement of Facts, they fail to address it in any of the Points and Authorities submitted in opposition to the motion.  Therefore, Petitioners have failed to carry their burden of showing that the EIR is inadequate in its discussion of growth induced impacts.

Cumulative Impacts, Air Quality Impacts and Traffic Impacts and Mitigation Measures therefore: The parties have briefed numerous issues and arguments under these categories. The Court has completely and carefully considered the parties' briefs and exhibits thereto, including references to the Administrative Record, and now rules that there is substantial evidence on the record to support the Respondent' determination that the Program EIR complies with CEQA statutes and guidelines.  There has been no prejudicial abuse of discretion by Respondents in certifying the Program EIR at issue.

The Respondents Motion for judgement on the Petition for Writ of Mandate brought by Airport Working Group of Orange County, Inc. is granted in full, with the exception of the challenge to the Respondents' determination on the issue of hazardous materials. The Court has requested additional briefing on this issue. Clerk to give notice. ENTERED 16-APR-2004