Three groups sue to stop Dyer Mountain
They also seek an order directing the county to comply with the California Environmental Quality Act, a temporary stay and restraining order and preliminary and permanent injunctions stopping the county and its agents from taking any action to implement the project until full compliance with CEQA.
The suit claims the county failed to provide sufficiently detailed analysis of the resort’s impacts. It “failed to fully account for the resort’s cumulative and growth-inducing impacts” improperly deferred mitigation measures, failed to analyze an adequate range of alternatives and its analyses of cultural, traffic and air quality impacts were legally flawed.
The suit, which also seeks court costs and attorney’s fees, claims the discussion of the effect on climate change was inadequate and necessitated recirculation of the EIR
The three groups filed the lawsuit on Thursday, Oct. 25, the legal deadline for lawsuits based on CEQA. The act’s statute of limitations sets a deadline for filing a court action challenging approval of the project under CEQA 30-days after the county files a notice of determination. The county filed the notice on Sept. 25.
“I was sort of expecting it,” said Grant Sedgewick, one of developer Dyer Mountain Associates’ three managers and the acting company president. “But I guess I had my fingers crossed. We’ll have a response once we’ve had a chance to look at it.”
The Bay Area law firm Shute, Mihaly and Weinberger filed the unlimited civil lawsuit against the county of Lassen, the Lassen County Board of Supervisors and several as-yet-unnamed respondents.
Alleged CEQA violations
This suit claims the county violated CEQA in approving the EIR and tentative parcel map on Sept. 25 and the development agreement ordinance on Oct. 9. Calling the four-season resort southwest of Westwood a huge new development, the suit said the 6,741-acre ski area and golf resort on undeveloped land on the flanks of Dyer Mountain “would house at least 17,382 people, making it in essence a brand-new city, just miles from Westwood, a small community of about 2,000 people.”
The large new population and unprecedented degree of construction in an undeveloped and sparsely populated area will lead to “a wide array of significant environmental impacts,” it said.
The EIR analyzes the impacts “only in the most general terms, leaving the public and decision makers in the dark about the details of the real impacts,” the lawsuit claims.
The petition for writ of mandate claims the EIR failed to identify mitigation measures sufficient to avoid the impacts it does identify. By approving the project, the county “made a decision without all of the information needed to properly weigh the consequences of the development.” It approved the project based on a series of findings lacking “the support of substantial evidence.”
“Based solely on the self-interested assertions” of the developer, the county found alternatives infeasible, though any alternative “could have been less environmentally damaging than the project itself,” it said.
In finding the project’s benefits would outweigh its environmental consequences, the county simply assumed the resort would be successful, “completely ignoring the threat that global warming poses to this low-altitude ski area, as well as other factors,” it said.
A November 2000 voter initiative rezoned the land from timber production to mountain resort, paving the way for a ski area that would “serve 10,450 skiers at one time and include the capacity to house at least 17,382 people in 4,104 dwelling units.”
The lawsuit claims, “The project site stands at the confluence of two of California’s major ecological regions, the Sierra Nevada and the Cascades.
“This geography brings to the site a unique array of wildlife and plants, including federally-protected bald eagles and a variety of rare plants,” it said. “The project area also includes several sites sacred to the Honey Lake Maidu people.”
The petitioners submitted comments on the draft EIR, circulated in November 2004, noting it failed to provide sufficiently detailed analysis of the resort’s impacts. As a general review of the resort’s overall impact, the EIR “failed to fully account for the resort’s cumulative and growth-inducing impacts” and “improperly deferred mitigation measures” until project-specific plans are submitted for individual phases of development.
The lawsuit claims the EIR also failed to analyze an adequate range of alternatives.
Numerous area residents and government agencies also commented on the inadequacy of the environmental review in the DEIR, it said.
The county circulated a revised DEIR in July 2006, which included the same inadequacies as the original DEIR and “the revised analysis of the cultural, traffic and air quality were legally flawed,” the lawsuit claimed.
When the county released final EIR in June, the three groups submitted comments objecting to the project and pointing out the final EIR did not adequately respond to the public comments, and newly added discussion of effect on climate change, or global warming, was inadequate and necessitated recirculation of the EIR.
Failure to recirculate the report deprived the public of “an opportunity to review its flawed analysis,” the lawsuit said.
In saying benefits outweigh impacts on the environment, the county never acknowledged the “potentially devastating effect of global warming on the resort, nor its other serious problems.”
“If, as many experts believe, the coming decades bring less snow to the northern Sierra,” it said, “the resort’s prospects will be dim, at best.”
The lawsuit claims CEQA requires the county to analyze significant environmental impacts, and consider environmental consequences, mitigation measures and alternatives. The act also requires the county to adopt feasible mitigation measures to reduce or avoid significant environmental impacts.
“If any of the project’s significant impacts cannot be mitigated to a less than significant level,” CEQA bars the lead agency from approving the project if feasible alternatives would meet the objectives while avoiding or reducing the significant environmental impacts.
The county violated CEQA, according to the lawsuit, by not adequately disclosing, analyzing or mitigating the project’s significant impacts on air quality, cultural resources, visual resources, biological resources, emergency access, climate change, housing and population growth.
The EIR also allegedly failed to analyze or mitigate significant growth-inducing impacts especially that the project, if successful, would “stimulate further economic activity in the area thus spurring population growth,” the lawsuit claims.
It failed to analyze feasible mitigation measures, specifically, a ban on wood-burning devices to mitigate air quality impacts. It also failed to create clear and binding requirements to mitigate traffic impacts outside Lassen County.
The county also improperly deferred analysis of impacts on biological resources and impacts from resort employees’ housing demands. The lawsuit said the EIR explicitly defers both until after project approval.
The lawsuit also claims the county violated CEQA by stating alternatives are infeasible or nonexistent based on unsupported and inaccurate assertions by DMA. For example, DMA “implausibly asserted that removing the ‘estate-style” housing from the project would render the resort so uncompetitive that it would not be economically viable.” The county had no facts to support the DMA claim, it said.
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