Notes on the arguments made by the Squaw developer and Sierra Watch to the Superior Court

This document is from notes taken during the May 24th arguments made in Placer County Superior Court by lawyers for the Village at Squaw Valley developer and by lawyers for Sierra Watch. These arguments were in regards to the lawsuit brought by Sierra Watch relating to the Environmental Impact Report for the development.

The judge in this hearing was Michael Jones. Sierra Watch (SW) was represented by lawyers from Shute Mihaly & Weinberger (SMW). Placer County and the Squaw Developer were represented by lawyers from Remy Moose Manley (RMM).

The hearing went on from 8:30 until about 4:00 with a 2 hr break in the middle. There was a lot of material covered, much more than will be contained here.

DISCLAIMER: the note taker is not a lawyer and was unfamiliar with the complex legal language being used. It is highly likely that not everything in these notes is 100% accurate.  Be that as it may, we felt it was worthwhile to give our members the sense of what happened.

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The judge started things off by listing the topics where he felt he needed to get some additional information, especially the legal basis for the various side’s positions. The sequence was that SMW went first, RMM responded, and then SMW rebutted. However, it will be easier to follow these notes if each topic is addressed in that sequence, even though that is not how it actually occurred.

Introductions:

SMW: The project is out of scale with the setting and environment. They cited the Municipal Advisory Council vote as evidence that there is substantial opposition.

RMM: The project has been substantially reduced in size from its first incantation. It is not the Court’s job to decide whether the analysis is correct or not, rather the Court must only decide if the subject were adequately covered, and that the “Substantial Evidence Rule *” must be applied in making this determination.

Note: The “Substantial Evidence Rule” gives wide latitude to the deciding administrative body to allow them to evaluate the quality of the evidence.  So even if the court thinks it was the wrong decision they won’t reverse it so long as there is “substantial evidence” to support it.  If the decision is arbitrary or capricious it will be reversed.

Effect on Lake Tahoe basin

SMW: The environmental effects must be analyzed with an area, which in this case would extend beyond the Lake Tahoe Basin. There is no question that there will be traffic from the project coming into the Basin and this impact must be analyzed. The EIR was obligated to set some “threshold of significance” which was not done. Paying a fee (which SVRE did in response to the Attorney General’s letter) does not constitute a mitigation.

RMM: EIR does evaluate level of service impact on air quality along 89South, comparing to the TRPA standard.  The project does not cause the Basin traffic to exceed VMT limits. They need not apply basin standards to the air quality since project is not in the Tahoe Basin. Fees to be paid to TRPA and they would use their judgement in use.

SMW Rebuttal: Some standard should have been used to assess impact

Emergency evacuation

SMW:  The project is in a “high fire danger” zone. There is only one exit road. EIR failed to consider the evacuation situation adequately, either in time to evacuate or in time to get first responders into the Valley. The large propane farm enhances the danger. The evacuation plan submitted after the EIR  had no evaluation of the fire danger itself. “Shelter in place” is not a plan, but rather a last alternative. (Both side used emails from Pete Bansen to support their side. It was not clear which emails came first).

RMM: The evacuation situation does not rise to the level set by the State: (i) poses risk and (ii) impedes evacuation. They acknowledged that there is high fire risk, but that alone does not mean that evacuation is impossible. And if and when an evacuation was required, it would be in the hands of professionals, who would be managing the scene. And common sense could not be the basis of an adequacy decision.

SMW Rebuttal: Never once did the EIR cite supporting evidence in the emergency evacuation claim. The EIR never did an analysis of the fire danger. “Common Sense” can be used in making an assessment of adequacy.

Traffic/Transit:

SMW: SVRE has promised for years to handle the traffic situation and to date they have not, so why should they be trusted to do that in the future. The County had failed to consider reasonable mitigation measures that SW had submitted to them.  While SVRE will be paying fees to support local transit, there is no way given to assess impact/mitigation effect.

RMM: SVRE has made great strides in managing traffic/parking. Bad traffic does not occur too often, and not in summer. Getting into a parking structure will be easier and faster than getting into the current parking lots. Providing housing for most employees will reduce traffic. SVRE’s plan encourages use of transit, they will make more effort to manage traffic (assigning a traffic coordinator), and that the payments they are being assessed will assist TART in achieving their transit goals.

SMW Rebuttal: reference was to mitigation 9.7 which does not define what really will be done and has no performance metrics

Climate Change/Greenhouse Gas:

SMW: The recent “Newhall Ranch Case” invalidated the climate change analysis, and it needed to be redone. That would require the EIR to be recirculated. It does not matter if the changes were not significant or substantial. The analysis must be done and presented.

RMM: Due to the Newhall case, the estimate of the project’s emission went down, so there was no need to recirculate the EIR. The ultimate conclusions did not change . When the State issues new efficiency metrics, they will be used to re-establish compliance.

SMW Rebuttal: The EIR should use real life mitigation rather than say they will wait for future standards

Noise Impacts:

SMW: The only real noise analysis was done for the Squaw Valley Academy (one of several cited “sensitive receptors”) which included interior noise limits and detailed specific mitigation steps. No similar analysis was done for Squaw Valley Rd homes, or residences around the construction site. Objected to the analysis being done only at 50 feet.

RMM: A detailed analysis was not needed since this is a programmatic EIR.  A noise analysis for anywhere but Squaw Valley Academy was impossible since the phasing of the buildout is not known. In the worst case only 20% of the project would be built in any one year. The use of 50 ft has been used before.

SMW Rebuttal: A detailed analysis is required even though it is a programmatic EIR. The Specific Plan provides a layout, so some buildout sequence should have been assumed and analyzed

Water Supply:

SMW: The existence of a “subterranean channel” has not been settled, and therefore it must be analyzed and impacts determined.

RMM: The report on the subterranean channel was not convincing, and the County was not obligated to investigate.

SMW Rebuttal: The EIR did not address the report.

Alternatives:

SMW: “Cannot approve a project if the alternatives can mitigate the multiple impacts”. “Profitability” cannot be the driving decision maker. The Reduced Density Alternative (RDA) is the environmentally superior alternative and could meet most of the 14 objectives. The RDA infrastructure costs were driven by the parking structure costs which are not needed. One cannot take the developers’ word that the RDA was not feasible since financial analysis was released very late. Lodging Room/Skiable Area ratio in determining competitive positioning should not include Alpine Meadows.  The Board of Supervisors was obligated to consider the two alternatives presented just prior to and at the Board of Supervisors meeting.

RMM: Must be assumed that the County was accurate in dismissing the alternatives. The alternatives are not financially feasible since they do not provide relief from the large up-front infrastructure costs. And financial viability is legitimate reason to dismissing alternatives. Including Alpine is correct since it is connected by a shuttle bus. The two alternatives presented were too late and had significant problems.  The 1983 Squaw Valley General Plan and Land Use Ordinance (GPLUO) states goal of the project is to make a ‘world class resort”.

SMW Rebuttal: CEQA does not allow for use of a General Plan statement

Conclusion:

The judge said at the end that he will take it all under advisement, and everyone will be hearing from him. He has 90 days to issue his decision, but he can grant himself an extension.