Elfin Forest Harmony Grove Town Council v. Cnty. of San Diego

Decision Date14 October 2021
Docket NumberD078101,D077611
PartiesELFIN FOREST HARMONY GROVE TOWN COUNCIL et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO, Defendant and Appellant, RCS-HARMONY PARTNERS, LLC, Real Party in Interest and Appellant.
CourtCalifornia Court of Appeals Court of Appeals


CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, No. 37-2018-00042927-CU-TT-CTL Katherine Bacal, Judge. Affirmed in part, reversed in part and remanded with directions.

Hecht Solberg Robinson Goldberg & Bagley and Beth Abramson Sadaf Behdin; Richard A. Schulman, for Real Party in Interest and Appellant.

Shute Mihaly & Weinberger and Winter King, Tori Gibbons for Plaintiffs and Respondents.


In these consolidated appeals, [1] appellant and real party in interest RCS-Harmony Partners, LLC challenges an order granting the writ of mandate of respondents Elfin Forest Harmony Grove Town Council, Endangered Habitats League, and Cleveland National Forest Foundation, which challenged the County of San Diego's (County) approval of the Harmony Grove Village South project (the Project) and certification of a final Environmental Impact Report (EIR) for the Project under the California Environmental Quality Act (CEQA; Pub Resources Code, § 21000 et seq.).[2] The superior court ordered County to set aside its approval of the Project, finding the EIR relied on unsupported greenhouse gas mitigation measures and failed to address certain fire safety issues or relied on unsupported fire evacuation measures. It found County failed to proceed in the manner required by CEQA by not including certain forecasts or analyses relevant to air quality impacts and failed to show the Project was consistent with a San Diego Association of Governments (SANDAG) regional plan for growth and development. The court finally found the Project inconsistent with County's General Plan's requirement that developers provide an affordable housing component when requesting a General Plan amendment, and also conflicted with a policy of the Elfin Forest and Harmony Grove San Dieguito Community Plan (Community Plan) that Elfin Forest development be served only by septic systems for sewage management.

Appellant contends the court erred by its ruling. It contends: (1) the Project's greenhouse gas emission mitigation measures are supported by substantial evidence and also satisfy the performance standards set forth by this court in Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467 (Golden Door), making them materially different from the non-CEQA-compliant mitigation measure M-GHG-1 invalidated in Golden Door; (2) the EIR adequately addressed fire safety and evacuation; (3) the EIR properly evaluated the Project's impact on air quality and land use plans; (4) the Project's approval was consistent with County's General Plan policy regarding affordable housing; and (5) the trial court incorrectly applied a septic policy to the Project.

We conclude the Project's greenhouse gas mitigation measures M-GHG-1 and M-GHG-2 suffer from many of the same flaws as M-GHG-1 in Golden Door, supra, 50 Cal.App.5th 467 in that they lack objective performance criteria to ensure the effective and actual mitigation of greenhouse gas emissions, and also improperly defer mitigation. However, we agree with appellant that the EIR adequately addressed fire safety and evacuation, as well as the Project's consistency with County's regional air quality and transportation/development plans. We hold the Project does not conflict with the Community Plan, but that County erred by finding it is consistent with its General Plan, which requires developers to provide an affordable housing component when seeking a General Plan amendment, as the appellant is here. Accordingly, we affirm in part, reverse in part and remand with directions set out below.


Appellant proposed the Project in 2015, several years after County updated its General Plan and adopted the Community Plan. County's General Plan, which we overviewed in Golden Door (supra, 50 Cal.App.5th at p. 488), was updated in 2011 to guide growth within “villages” in “compact land development patterns to minimize intrusion into agricultural lands and open spaces, ” prohibit leapfrog development, preserve the character of rural and semi-rural communities, and use an environmentally sustainable approach to planning, including development techniques to reduce greenhouse gas (or GHG, as used in the EIR) emissions. Both Elfin Forest and Harmony Grove are rural communities in very high wildland fire threat areas. Both communities seek to preserve and maintain their rural character by their Community Plan. In part, Elfin Forest does this by requiring all development to be served only by septic systems for sewage management. For Harmony Grove Village, the plan “strongly discourage[s] development outside the village of commercial or industrial uses inconsistent with the community character.

The Project is situated on 111 acres of presently undeveloped land south of and contiguous to the existing Harmony Grove Village. It is within the Elfin Forest and Harmony Grove Planning Area of the San Dieguito Community Planning Area whose existing land use designations are semi-rural residential and rural lands. Public access for existing and future residents is solely via Country Club Drive (a north-south connector abutting the Project's western boundary). The Project proposes development of 453 residences, 5, 000 square feet of retail/commercial space, approximately 35 acres of biological open space, about 9 acres of public and private parks, and 36 acres for common area open space, manufactured slopes and landscaping. The Project includes a range of lot sizes from 1, 462 square feet to 4.85 acres, with single family homes ranging from 1, 500 to 3, 000 square feet and multi-family units ranging from 800 to 2, 000 square feet. To allow such development, appellant proposed that County approve rezoning to change certain land use designations, a General Plan amendment, and a Community Plan amendment to add the Project as a component of the existing Harmony Grove Village plan area, and extend the boundary line of the village.[3]

A draft EIR, prepared for County as the lead agency, circulated for public review in mid-2017. It stated the Project would have a significant and unmitigated impact on air quality, explaining it proposed an increase in housing beyond what the County's Regional Air Quality Strategy (RAQS) included for the site, which would be “cured upon [County's] transmittal... of revised housing forecasts and action by the San Diego Air Pollution Control District.” It identified other significant impacts that would be mitigated to a less-than-significant level. Among other things, the draft EIR included a section on greenhouse gas emissions and a Greenhouse Gas Analyses Report. It stated the Project would be consistent with local and State plans and policies to reduce GHG emissions, and thus impacts from such emissions would not be significant. As for wildland fire hazards, the draft EIR explained that after the 2003 wildfires, County had included fire prevention strategies into its CEQA review process, including requiring a Fire Protection Plan (fire plan) for wildland urban interface areas. It outlined numerous fire protective features of the Project (discussed more fully below), which included incorporating philosophies and physical attributes of “shelter in place” communities such as ignition-resistant structures built to latest codes, defensible landscape, available water supply throughout, and last-resort temporary refuge if early and safe evacuation was not possible. The draft EIR concluded that impacts associated with wildland fire hazards would be less than significant; the Project would not expose people or structures to a significant risk of loss, injury or death from wildland fire given the numerous design features, the presence of a planned nearby fire station 1.3 miles from any structure on the Project site, and its compliance with fire codes and the fire plan, which had been accepted by the San Diego County fire authority.

Public comments on the draft EIR complained about its analysis of the Project's air quality impacts and contribution to climate change, and treatment of greenhouse gas emissions. Other comments focused on the Project's consistency with County's General Plan as well as its compliance with County standards for protection against wildfire threats including secondary egress requirements and the draft EIR's analysis of fire hazards, mitigation measures, and evacuation risk. Respondent Elfin Forest Harmony Grove Town Council (Town Council) specifically challenged the draft EIR's fire hazard conclusions as in conflict with General Plan policies and Fire Code provisions guarding against fire hazards, including secondary egress requirements, stating the Project would be both unlawful and also “would likely put lives and property in jeopardy.” Town Council submitted a Wildfire Risk & Mitigation Analysis Report by Dr. Matthew Rahn (the Rahn report). Dr. Rahn asserted the draft EIR failed to adequately describe the modern risk of wildfires in the area or assess all known ignitions; that [m]odern catastrophic wildfires are significantly different from the historic fire regime” in that [c]urrently, only a fraction of the wildfires... in California are caused by natural events, with nearly ninety-five percent started by human activities.” Dr. Rahn asserted the Project did not comply with standards related to emergency access, and the draft EIR provided no evidence that during an emergency the measures would provide the same...

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