Foothill Trabuco Specific Plan returns to court

By Tina Richards

A developer’s appeal of a lower court ruling that blocked a 65-unit housing tract in deference to the Foothill Trabuco Specific Plan (FTSP) was heard by a three-judge panel Dec. 16.

Rutter Development wants to build a gated community near the intersection of Santiago Canyon and Trabuco Canyon Roads, an area that falls within the governance of the FTSP.  Orange County supervisors approved the housing project in 2012, but had to severely amend the specific plan in the process.  

Supervisors declared that native oaks could be bulldozed and replaced with acorns, that 1.9 million cubic yards of earth could be mass graded, and that open space did not have to be “natural,” but could include essentially any disturbed land that does not have a building on it. Supervisors also determined that they could summarily change any specific plan within the county’s jurisdiction at their discretion. 

Not so fast

The project approval and untenable specific plan amendments were challenged in court by the Saddleback Canyons Conservancy.  The Rural Canyons Conservation Fund, Friends of Harbors, Beaches and Parks, National Audubon Society and California Native Plant Society joined the suit as co-litigants.

The lower court found in favor of the conservancy, ruling that county amendments to the FTSP violated its intent, as well as California’s environmental laws, and that the proposed housing tract could not proceed.

Rutter Development appealed the decision, but the county board of supervisors declined to join the appeal.  Third District Supervisor Todd Spitzer was not on the board when the project was approved; once he took office in January 2013, he was asked by canyon constituents to support the FTSP as written, and convince his board colleagues to drop out of the appeal process.  Because the planned development is in his district, the board of supervisors agreed to let the lower court decision stand.

Rutter stands alone

The fact that the county was not party to the appeal was emphasized by the conservancy’s lawyer, Ellison Folk, who reminded the justices that “the county isn’t here to defend itself.”

Although the county chose not to defend itself in this case, Rutter’s attorney Steven Kostka rose to the challenge in its stead.  He argued that supervisors did not abuse their legislative discretion, that they amended the FTSP because it was out of date, and that the board was well within its authority to make the changes it did.

Kostka told the panel that the amendments, in fact, advanced the goals of the specific plan.  He suggested that it was better to replace mature oak trees with acorns, rather than attempt to move them; that the adopted alternate grading standards protected resources; and that it is up to the county to define “open space.”  “The county can decide whether open space is untouched or altered,” he said.

The lower court had also accepted Saddleback’s challenge to the project’s Environmental Impact Report, noting that it was incomplete and failed to address all the consequences of the proposed development.  Traffic impacts along Santiago Canyon Road, for example, were minimized by changing the method of analysis. Using a modified baseline for what was deemed “acceptable” vs. “nonacceptable” for motorists, the EIR found that an additional 780 road trips per day would have little impact. 

Build it or bust

In defending the county’s analysis, Kostka noted that the EIR accurately reflected conditions on the canyon road, and that in terms of safety “the Santiago Canyon Road accident rate is low, anyway.”

Attorney Ellison Folk countered Kostka’s arguments by noting that, in this case, the county simply wanted more development and altered the specific plan to favor the developer.  “Rutter says it can put in 65 units, the specific plan says it couldn’t have.  Rutter says the land should change to conform to development, the specific plan says just the opposite.”  She reiterated the lower court’s finding that the board of supervisors did violate the law by amending the FTSP without analyzing the impacts of those changes.  “Agencies are required to identify and evaluate consequences,” she said. “We know there will be biological and ecological impacts, but the county did no analysis.”

While the developer says that the amendments further the goals of the FTSP, Ford noted that the huge grading exemptions, no limits on lot size, and no limits on cut and fill, all counter what the stated goals are.  “They left the stated goal intact,” she said. “But the amendments counter what the policy says.”

Justices Richard Aronson, Richard Fybel and Raymond Ikola are expected to rule within 90 days.