A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy.

A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment.

Inyo County adopted a new general plan in 2001. The plan contained a new definition of the term "net acreage": "The remainder of land left after land devoted to streets, roads, and utilities are deducted from the parcel." Later that year, county planners said the definition was confusing and would result in some properties being rendered too small for development. The concern was that land that was subject to utility easements should not be deducted from the net acreage total because the land would still be usable.

Planners prepared a general plan amendment to redefine "net acreage," as well as a negative declaration stating that the amendment could not impact the environment. Residents of McLaren Ranch Estates outside of Bishop opposed the new definition because they said it could permit property owners to go forward with land divisions that would not be permitted under the 2001 definition. The area is zoned for half-acre minimum parcels, and three properties in question were barely larger than 1 gross acre. 

County officials maintained they were only clarifying a policy that had been in effect since 1984 and that the new definition would have no impact on growth. The Board of Supervisors in early 2005 adopted the negative declaration and approved the general plan amendment. It defined "net acreage" as "the remainder of a parcel or piece of property after land dedicated or otherwise encumbered by an easement and/or right-of-way for a public street or road, including a county road, is deducted from the gross acreage or gross parcel size."

A group called Inyo Citizens for Better Planning sued, arguing the county should have prepared an EIR for the general plan amendment (GPA) and for three parcel maps in McLaren Ranch Estates. Retired Los Angeles County Superior Court Judge Phillip Argento, sitting by assignment in Inyo County, rejected the citizens group's contentions.

On appeal, the group argued it had passed the California Environmental Quality Act's fair argument test. Under this test, an agency must prepare an EIR if substantial evidence supports a fair argument that a project may have a significant effect on the environment.

The appellate panel found that such evidence existed. The court cited:

• A letter from the Bishop Creek Water Association saying the amendment could increase subdivisions in an area with low water flows during the dry season.

• A letter from a property owner who testified groundwater levels were falling.

• A resident's letter questioning whether wells and septic tanks could be sited on small parcels without impacting groundwater

• National Park Service testimony regarding potential impacts to birds from decreased open space and degraded surface waters

• A statement from then-Planning Director Chuck Thistlethwaite to the Board of Supervisors that the 2001 definition of net acreage "could have countywide implications and virtually place a moratorium on development in every area of the county."

"Reasonable assumptions from these facts were (1) allowing greater residential density might have an adverse impact on water resources; (2) strained water resources might adversely affect plant life and bird life; and (3) subdivisions and residential building that would not be authorized under the 2001 general plan might be permitted under the GPA," Justice Douglas Miller wrote for the court. "[T]he county should have prepared an EIR, rather than a negative declaration."

The court pointed out that Thistlethwaite's statement ran counter to the county's legal argument that the county was simply clarifying a long-held policy that would not induce more development than was anticipated by the 2001 general plan. In addition, the court noted, a 2004 staff report to the Board of Supervisors provided options for defining net acreage, such as whether or not to count private driveway easements. Wrote Miller, "[I]t does not appear from the record that the change in the definition of net acreage was merely a clarification of existing policies, because the definition was debated and different options were discussed."

The court directed the county to set aside the general plan amendment. However, the court upheld three parcel maps approved by the county, concluding that the opponents did not prove the county had incorrectly figured the net acreage of the existing or new parcels.

The Case:
Inyo Citizens for Better Planning v. Inyo County Board of Supervisors, No. E046646, 2009 DJDAR 17417. Filed November 20, 2009. Ordered published December 14, 2009.
The Lawyers:
For Inyo Citizens: Charles Kroilikowski, Newmeyer & Dillion, (949) 854-7000.
For the Board of Supervisors: Randy Keller, county counsel's office (760) 878-0229.