Watchdogs Win Suit to Stop ‘Frazier Park Estates’ in Lebec

By Patric Hedlund and Gary Meyer

A Kern County Superior Court judge agreed with the TriCounty Watchdogs and the Center for Environmental Diversity (CBD) on Friday, Feb. 10 that Kern County had failed to properly assess the impacts of a housing development planned for the hills surrounding Frazier Mountain High School and a strip mall along Frazier Mountain Park Road in Lebec.

Judge Kenneth Twisselman found Kern County’s certification of the Environmental Impact Report (EIR) for Fallingstar Homes’ proposed Frazier Park Estates inadequate in its analysis of the available water supply. He noted that the project description was inconsistent— saying that the number of proposed dwellings referred to in the document ranged from 188 to 557. He also said the county had improperly justified deferred mitigation of the project’s impacts on the plants and animals that would be affected.

Twisselman’s ruling voided the environmental impact report (EIR), which was reviewed and edited by the Kern County Planning Department.

Six years earlier, the same planning department had rejected a draft EIR for the project submitted by Cornerstone Engineering, the firm hired by developer Frank Arciero to shepherd the project to approval.

Lorelei Oviatt, lead planner at the time and now department head, said questions raised during a strong showing of public concern over the project’s impacts caused her to rule that the first EIR—equal in size to six volumes of the New York City phone book—must be sent back for a rewrite. It took Arciero until 2009 to release it again.

After two votes, and lengthy hearings with passionate testimony from members of the surrounding community, the Kern County Planning Commission turned the project down on October 8, 2009. The developer appealed to the board of supervisors, and another round of public comments and another hearing was held.

Mobilized Community

The El Tejon Unified School District Trustees sent a representative to tell Kern County Supervisors of their concern that the development (which would have surrounded Frazier Mountain High School) would draw down the water table and jeopardize the high school’s water well.

The Lebec County Water District (LCWD), that has roughly 300 customers, opposed the project in 2008 and refused to annex the development, saying that the wells of the district were already in trouble, with contaminants (such as fluoride, and others) already above the state-mandated maximum.

Then-President Darren Hager said LCWD did not have the capacity to service 500 more homes and an extended commercial district. The developer had also asked the district to run a sewage processing plant, which the district refused to consider. Consultants for the water district explained in detail why the development could put existing residents of the Mountain Communities at risk.

Frazier Park Public Utilities District, in 2007, also rejected a request by the developer to annex the project into its water district.

Planning vs. Politics

Kern County Planning Department’s Oviatt spent nearly an hour on April 20, 2010 explaining to the board of supervisors the reasons why they should not approve the development as proposed with 557 homes. Oviatt and her department recommended, at the time, a radically scaled-down version with only 188 homes plus commercial development adjacent to the Flying J on Frazier Mountain Park Road.

She also required the developer and consultant to comply with the county’s slope ordinance, and to reduce the massive amount of grading planned by Arciero.

But on April 20 the board instead followed the wishes of Fourth District Supervisor Ray Watson. They directed Oviatt to return three weeks later, on May 11, with findings to support a full development of 557 homes plus commercial facilities.

She did. At that May 11 meeting, the supervisors voted unanimously to certify the project’s EIR and approve the full-sized proposal for 557 homes and 25 acres of commercial development.

To the Courts

TriCounty Watchdogs and The Center for Biological Diversity filed their suit on June 22, 2010, claiming that Kern County improperly certified the Frazier Park Estates EIR.

“CEQA [California Environmental Quality Act] does not permit the lead agency to approve a large residential project before the full extent of the project’s impact on the environment is fully understood,” said Babak Naficy, the attorney representing the two groups. “The judge found that this EIR failed on three grounds: (1) the description of the size of the project was inconsistent in the EIR and county resolutions, (2) the County had illegally deferred analysis of the project’s impact on water supply and (3) the mitigation of biological impacts was improper.”

Adam Keats, urban wildlands director at the Center for Biological Diversity said, “This is an extremely important habitat area for scores of threatened, endangered, and rare species, including the California condor, so it’s important that any development be carefully thought out. This is a huge victory for smart planning, especially considering the tremendous pressure from developers this area has been under.”

In an interview on Wednesday, Feb. 15 Kern County Supervisor Ray Watson said the county would not appeal the case, “that would be up to the developer,” he said.

Frank Arciero did not return phone calls asking for his comment by press time, but told others he has made no decision yet about appealing. Now a third EIR will be necessary if the project is to proceed.

Watson said the method used to create the EIR has now been changed: “The county, rather than the developer, will now hire the consultant to prepare an EIR. They [Cornerstone and Arciero] kept coming to the hearings without giving us what we were asking for. We were approving a zone change but they kept referring to lots and so they confused the record. The applicant said ‘we can’t drill wells if we can’t get the project approved.’ It was a chicken and the egg thing. We were wanting to just give them a zoning change and then they would have to prove there was enough water for the number of homes they could build.”

Overriding economic concerns led him to urge his fellow-supervisors to approve the development, despite objections from neighboring communities, Watson said.

The ruling indicates the judge found that reasoning inconsistent with CEQA.

This is part of the February 17, 2012 online edition of The Mountain Enterprise.

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