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Wednesday, April 06, 2011

State Appellate Court Rules in Favor of City on Legacy Park EIR Lawsuit

• Judges State Project’s Net Effect Improves Environment

BY BILL KOENEKER

A three judge panel of the state Court of Appeal issued a unanimous decision this week in favor of the City of Malibu in the lawsuit filed by the Santa Monica Baykeeper challenging the city's Environmental Impact Report prepared for the Legacy Park project.
The Baykeeper had unsuccessfully argued at the trial court that the EIR failed to adequately analyze the construction-related water quality impacts, the impacts of using treated effluent from the adjoining Malibu Lumber Yard and the cumulative groundwater impacts of the project.
The city argued that the appeal is moot and should be dismissed on that ground.
The appellate court agreed with the city than it is moot as to Baykeepers's challenge regarding construction-related impacts because the project was completed during the pending appeal and “no recognized exception to the mootness doctrine applies to warrant discretionary review of that issue.”
The justices ruled that the other issues in the appeal were not moot, but had this to say in the written opinion certified for publication.
“But the conclusions in the final EIR regarding the impact of using treated effluent from the adjoining Lumber Yard project are supported by substantial evidence and as these Baykeeper has failed to demonstrate a prejudicial abuse of the discretion warranting reversal.”
What that means is that such an abuse is established by the court if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.
The justices went on to state “We also find substantial evidence supporting city's conclusion that the Legacy Park project reduces rather than creates groundwater impacts and therefore no cumulative groundwater impacts analysis was required.”
In conclusion, the court stated, “the record before us demonstrates that the net effect of the Legacy Park project will be to improve, rather than harm the environment.”

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