The effort to save the 400-acre Banning Ranch, located in Newport Beach, pitted a small, local citizens' group, the
Banning Ranch Conservancy, against development interests that could not be wealthier (Aera Energy,
Cherokee in North Carolina, and BrooksStreet
in Newport Beach), better-connected politically (locally and in Sacramento), or more motivated to achieve their development objectives.
The project proponents formed a land conservancy, dependent upon project approval, that included on its board the former Executive Director of California Audubon and a sitting member of the Executive Committee of the local branch of the Surfrider Foundation. The conservancy's educational programsused school kids as props in the project's marketing campaign.
While this project was under consideration, an unusually pro-developmentCoastal Commission
fired
their
Executive Director, Charles Lester. During the project's initial hearing, on October 7, 2015, Dr. Lester reviewed several intractable problems with the applicant's approach to obtaining a Coastal Development Permit (time-stamp 2:51:18 in the video archive). Four months later, and three months before the second scheduled hearing of the Banning Ranch project, the Commission voted 7-5
to remove Dr. Lester
in what many observers regarded as a sort of coup.
Against these headwinds, the Banning Ranch Conservancy and other members of the public helped to uncovernumerousseriousviolations
of land-use regulations associated with the existing oil operations, including hundreds of unpermitted wells and repeated mowing of dozens of acres of sensitive native habitats. Interestingly, the applicant and City repeatedly cited these same violations as an important rationale for approving the project, implying that rejection of the project would jeopardize cleanup of the oilfield, estimated at $30 million. The remarkably dedicated members of the Banning Ranch Conservancy remained engaged in the CEQA and Coastal Act review processes for up to 20 years, building up awareness of the project among regulators and the general public, hiring consultants, and filing effective legal challenges. Ultimately, the project was denied by the Coastal Commission (staff report datedAugust 25, 2016; heard and decidedSeptember 7, 2016) followed by decertification of the City's EIR by the California Supreme Court (argued January 4, 2017; decided March 30, 2017).
Key CEQA/Coastal Act Issues
General Plan Issues
Despite long use as an oilfield, the 400-acre Banning Ranch property retains important natural resources. It is one of very few places in southern California with a mosaic of coastal marsh, coastal bluff, riparian woodland, and grassland/vernal pool ecological communities. These habitats support numerous rare and endangered wildlife species, including Belding's Savannah Sparrows, Least Bell's Vireos, San Diego Fairy Shrimp, Burrowing Owls, and California Gnatcatchers. Banning Ranch lies within the coastal zone, so any project there requires a Coastal Development Permit from the
Coastal Commission.
Per a 2006 ballot initiative approved by the voters, the
City of Newport Beach General Plan "prioritizes the acquisition of Banning Ranch as an open space amenity for the
community and region." Undercutting this stated goal, however, page 3-68 of the General Plan mysteriously identifies 118 acres of Banning Ranch as being "not likely to require resource permitting for development." On the basis of this unfounded figure and the applicant's maximum development concept, a
City-approved land appraiser in 2008 valued 115.1 acres
of the property at $1.4-1.6 million each ($163-187.5 million total). The rest of Banning Ranch appraised at only $73,000 to $82,000 per acre ($20.9-23.5 million total), for a combined total of $184-211 million.
How valid is the General Plan's claim that 118 acres are "not likely to require resource permitting for development"? In 2016, after completing detailed field analyses, the Coastal Commission staff ecologist
mapped Environmentally Sensitive Habitat Areas (ESHA) across most of Banning Ranch.
Section 30240 of the Coastal Act mandates protection of ESHA "against any significant disruption of habitat values" and limits the types of land uses allowable adjacent to ESHA. The landmark 1999 BolsaChica decision affirmed that Section 30240 does not allow for "transfer of ESHA habitat values to more economically convenient locations" (in contrast to the routine practice of mitigating impacts deemed significant under CEQA). By the time of the final hearing in
September 2016, staff had identified a "buildable footprint" of 19.7 acres -- 83 percent smaller than the City suggests in its General Plan.
But these facts would not emerge for years. From 2008 to 2016, the sky-high appraisal rendered infeasible any possible acquisition of Banning Ranch. This gave the City and applicant ample opportunity to pursue
the General Plan's "alternative goal" of developing up to 1,375 residential units, 75,000 square feet of retail facilities, and 75 hotel rooms on Banning Ranch.
CEQA to Suppress Information
To maintain the false narrative of 100+ acres being worth $1.4-1.6 million each, instead of 95% less, the City and the applicant had no choice but to proceed through the CEQA process as if unaware
that Banning Ranch contained large expanses of ESHA. ________________ 2002 ESHA mapping per the petition to the Supreme Court.
The City's 2012 Draft EIR did not identify potential ESHA or discuss the subject in any substantive detail. Numerous comments on the DEIR from the public, and from the staff of the Coastal Commission, requested evaluation of potential or probable ESHA as part of the project's CEQA review, but the City refused. The City's position was that no such evaluation was required until after certification of the EIR, when the applicant would obtain a Coastal Development Permit. It would take five years and three legal challenges before the California Supreme Court ultimately ruled that, per CEQA § 21003(a), local agencies “integrate the requirements of this division with planning and
environmental review procedures otherwise required by law or by local practice so that all those procedures, to the maximum feasible extent, run concurrently, rather than consecutively.”
The City also ignored mapping they had previously commissioned, and briefly published online, showing potential/apparent Environmentally Sensitive Habitat Areas (ESHA, which are strictly protected under the Coastal Act), and approved impacts to many such areas.