A complaint has been filed in Sonoma County Superior Court against the city of Healdsburg with Comstock Properties as a real party in interest alleging the North Area Entry Plan (NEAP) does not meet environmental standards.
The complaint was filed in its amended version on June 25 by California River Watch and alleges the NEAP does not conform to California Environmental Quality Act (CEQA) standards. It seeks the amendment and public recirculation of the NEAP as well at court and lawyer costs.
“Absent the timely enforcement action by petitioner (California River Watch), the NEAP might otherwise be deemed lawfully approved, despite the city’s failure to comply with CEQA,” the complaint states.
The NEAP is a plan to build housing and possibly a senior living building and hotel at the north end of town near the Dry Creek and Highway 101 interchange.
The NEAP was approved in a 4-1 vote by the Healdsburg City Council on May 20 with the possibility of a 130-room hotel. Vice Mayor Leah Gold was the nay vote for the NEAP and its Environmental Impact Report (EIR).
Comstock is the majority owner of the land.
City Manager David Mickaelian declined to comment on behalf of the city as the city does not comment on pending or ongoing litigation.
California River Watch is an environmental group associated with the Law Offices of Jack Silver. Silver and other lawyers have filed suit against many municipalities throughout the state over water quality and other concerns through California River Watch.
A judge has yet to be determined for the case. The case is scheduled for a July 25 case management conference. This is when both parties can meet to try and settle some or possibly all the issues in the complaint.
The hotel is the main part of the plan the complaint focuses on. The hotel is only a possibility at this point at the site and no project has been approved.
In a separate interview, attorney for the case Jerry Bernhaut said the city did not do enough to address the environmental impacts of bringing a hotel to town in its final EIR.
He specifically noted that air travel was not addressed by the city, though he claims there are formulas accepted by the state to calculate these impacts in order to see what prevention and mitigation would be needed. The complaint claims the burden is on the city to come up with these measurements.
Potential air travel is focused on due to its large contribution to green house gas (GHG) emissions, Bernhaut said.
“The EIR completely disregards the thousands of metric tons of GHG emissions which would be generated by hotel guests traveling by air from global points of origin. The GHG emissions from global air travel to the hotel are a reasonably foreseeable, intended consequence of the operation of the proposed hotel,” the complaint states.
One piece of data the complaint points to for estimation purposes is the request for a grant for terminal expansion at Sonoma County Airport to the Federal Aviation Administration. The complaint states the final EIR could “calculate the proportional contribution of the increased capacity from the proposed 130-room hotel to those reasonably foreseeable VMT (vehicle miles traveled) induced emissions.”
The complaint also claims that California River Watch and Tom Conlon — whom the complaint names as a data expert — created a methodology for calculating aviation GHG emissions and submitted it to the city.
Bernhaut wrote the city during the EIR process with a similar criticism. A response listed in the EIR states, “the commenter did not provide any evidence showing that a certain number/percent of local hotel guests have traditionally been tourists and where those tourists originated from and how they traveled to the local hotel in question.”
The response also defends the city’s work to calculate added travel.
“Moreover, the EIR does reasonably assume hotel-related travel. The CalEEMod model used to estimate GHG emissions is based, in part, on trip generation estimates provided in the Traffic Impact Analysis for all land uses,” the final EIR reads.
The response in the EIR goes on to state, “CEQA does not require a lead agency to engage in speculation with regard to plan impacts. It is not possible for a proposed project or plan to estimate or collect data on anticipated future tourist or air travel plans for a specific hotel project that has yet to be proposed, constructed and operated.”
Bernhaut also claims the city’s use of the Sonoma County Regional Climate Action Plan (CAP) is legally invalid, according to a judgment in California River Watch v. County of Sonoma.
In the CAP suit in 2017, the court found that the CAP is invalid as “there is insufficient information in the administrative record to support the factual conclusion that the CAP will achieve its fundamental purpose.”
The complaint cites the EIR’s statement that “ideas in the Climate Action Plan to advance smart land use and resource efficiency are still valid and aligned with the climate action strategies stated in the scoping plan to reach the state’s overall GHG reduction goals.”
The city also cited in the EIR that analyses of impacts rely on state standards as well, not just the CAP.
The complaint also alleges that the city was too vague in its mitigation recommendations when creating the final EIR and were not enforceable.
As council reviewed the NEAP just prior to passing it, the responsibility of addressing travel impacts was also said to rest in a more regional level, such as the county or a combined Bay Area effort. As such, it was not up to the city to address impacts to the environment that added tourism brings.
“It’s really not fair to lay all that burden on the destination,” Councilmember Joe Naujokas said before the council passed the NEAP. “I think there’s all kinds of movement at the regional level.”
This was also stated in the EIR, “it is more appropriate that such emissions be addressed on a regional level through a Climate Action Plan or similar document.”
Bernhaut disagrees. He claims that because the city is the authority that passed the NEAP, it is the sole entity responsible for the impact it brings. Furthermore, the complaint alleges there was not a good faith effort on the part of the city to try to determine its burden Bernhaut said there is language in CEQA which requires this effort be made.
Finally, the complaint takes issue with the statement of overriding concern in the EIR. The statement was to include the unavoidable impacts listed in the EIR with the understanding that efforts had been made and that the overall good of the plan outweighed the potential risks.
“However, the city failed to specifically find the project benefits override its GHG impacts to local air quality and global climate,” the complaint states.
Bernhaut said he didn’t feel the council or the Planning Commission had listened to his comments throughout the process. The complaint claims that all other recourse prior to filing had been pursued by River Watch and its representatives. His last oral comment at city hall was that should the city pass the NEAP, it “looks like we’re going to court.”
Bernhaut said he expects much the same arguments as in the EIR if he should face the city at a trial.
“Unless we can systemically change our patterns of pro-consumption and travel, we are not going to be able to avoid catastrophic global warming,” Bernhaut said in relation to his motivation throughout the process.