Judge: Peter Wilson, Case: 2021-01194238, Date: 2022-08-04 Tentative Ruling
Petitioner Bayside Village Marina, LLC seeks a writ of mandate compelling Respondents Orange County Sanitation District (“OCSD”) and Orange County Sanitation District Board of Directors to set aside the approval of the Bay Bridge Pump Station and Force Mains Replacement Project and the certification of the 2021 Final EIR.
No tentative ruling will be issued in this matter.
At the hearing, the parties should be prepared to further addresses the following issues:
1. Petitioner points to the lack of accurate description and plans showing how OCSD will access and occupy the BVM Property to construct the Project, the time frame for regulatory approvals, the specific location of construction staging areas, the length of time for construction staging on the BVM Property (or elsewhere) and when these construction operations occur. OCSD essentially responds that these issues will be determined, in compliance with all rules and regulations, permits, etc. Given the potential environmental impacts of these issues, including but not limited to construction staging at yet-to-be-determined location(s) over a three-year period, why is “to be determined” sufficient? See, for example, Cal. Code Regs. tit. 14, § 15146(a): “The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR. [¶] (a) An EIR on a construction project will necessarily be more detailed in the specific effects of the project than will be an EIR on the adoption of a local general plan or comprehensive zoning ordinance because the effects of the construction can be predicted with greater accuracy.”
2. The EIR describes the existing setting as principally an RV storage yard. Petitioner points to a lack of analysis regarding the impact on the marina and associated businesses. While the conclusion in the EIR and Opposition is that these businesses will not be impacted by the Project, on what substantial evidence is this based? Examining this issue not as an impact on recreational opportunities, but as a potential adverse physical impact on physical conditions within the marina and related businesses due to the Project, what analysis was done?
3. Is the consistency analysis in the EIR adequate? Section 30222 of the Coastal Act provides: “The use of private lands suitable for visitor-serving commercial recreation facilities designed to enhance public opportunities for coastal recreation shall have priority over private residential, general industrial, or general commercial development, but not over agricultural or coast-dependent industry.” Because there is only passing reference to the existing marina and the commercial recreation facilities located adjacent the project, is there adequate review of the impact of the project on these facilities? Is there adequate review of the impact of the project on existing facilities as replaced and/or enhanced pursuant to the approved Back Bay Landing development plan?
4. On the record before the Court, how does the Court determine whether the expand-in-place alternative is (or is not) a feasible alternative sufficiently superior to the alternatives considered that it should have been studied/explained in the EIR? Who has the burden on this issue?