No decision following hearing on Sage Ranch
Sacramento County Superior Court Judge Stephen Acquisto questioned attorneys for nearly three hours Friday morning but did not render a decision on a legal dispute between two local public agencies.
The long-awaited hearing on the first through third causes of action of the case, Tehachapi-Cummings County Water District vs. City of Tehachapi, began just after 9 a.m. and concluded around noon.
The issue is whether the city of Tehachapi violated state law when it approved a 995-unit residential project on 138 acres near Tehachapi High School in September 2021.
In a petition for writ of mandate filed shortly after the city approved the proposed Sage Ranch project, the water district alleged that the city’s environmental analysis was inadequate. Specifically, the district cited California Environmental Quality Act violations and state water code violations.
A fourth cause of action — that the city has a “pattern and practice” of violating the California Environmental Quality Act — was set aside at the water district’s request in March 2023 and is expected to be resolved sometime after the judge rules on the first three.
Attorneys for the water district, the city and the developer were present and engaged in the hearing. Sage Ranch is being developed by a company currently known as Greenbriar Sustainable Living, Inc. Jeff Ciachurski, the company’s chief executive officer, and three related Greenbriar companies have been identified as “real parties in interest.” Under CEQA, they have standing in the case, and documents commonly refer to the developer as Greenbriar.
WATER AND CASE LAW
Although there was no decision, the judge’s questions
were focused on water and case law.
In a tentative ruling issued the day before the hearing, Acquisto directed attorneys to be prepared to address certain issues. The issues addressed by the judge included:
How the EIR met requirements for a 2007 case, Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova. The California Supreme Court spelled out requirements for adequate water supply analysis in its decision on that case.
Whether the EIR adequately evaluated the developer’s purported agreement to purchase groundwater rights from a third party and the purported commitment of those rights for the project, along with the significance that the fact of those documents materialized the month after the EIR was issued.
How might an appeals court’s 2010 decision in another case, Cherry Valley Pass Acres & Neighbors v. City of Beaumont, apply?
Whether the EIR properly identified and analyzed reasonable mitigation measures — and project alternatives.
Whether the EIR failed to comply with the state water code and government code — and, if so, which particular sections?
DRILL DOWN ON WATER
In a brief filed earlier this year, the water district said Sage Ranch’s approval required the city to prepare a water supply assessment showing sufficient water exists to meet a 20-year projection, in addition to the city’s existing and planned future uses.
The water district doesn’t believe the city met this state requirement.
The district’s attorneys included Andrea Matarazzo, Daniel King and Kathryn Patterson of Pioneer Law Group, LLP, which is based in Sacramento. In response to the judge’s questions, they provided what amounted to a tutorial on the Tehachapi Basin water supply, emphasizing the increasing unreliability of the allocations from the State Water Project and limitations on pumping capacity that can further restrict the district’s ability to make water available to its customers.
The judge asked several questions, one of which was whether the district could have more water but has chosen not to. Attorneys for the district said that historically, there may have been times when the district did not accept as much water as SWP made available, but that hasn’t been the case in many years.
CITY BRIEF AND WATER RIGHTS
In a brief filed earlier this year, the city said environmental documents show that the project will require 350 acre-feet of water per year and that Greenbriar has committed — through an enforceable condition of approval — to provide 175 acre-feet of pumpable water per year, leaving a “demand of only 175 acre-feet for the project.”
To meet the remaining demand, the city said it will rely on an existing contract between the city and the water district to purchase water imported from the SWP.
Counsel for the city included Ginetta Giovinco of Richards, Watson & Gershon, a Los Angeles firm. Carissa Beecham of Buchalter, APC, a Sacramento firm, represented the real parties in interest.
The judge questioned reliance on the city’s Term M&I agreement with the water district “when there are readily available undisputed facts that would show that the contractual entitlement is not feasible.”
But Giovinco said the city does not agree that there are undisputed facts.
“The city does not agree with the assessment that the district has put forward as to what water is available,” she said, adding that the city believes it has demonstrated that there is a reasonable likelihood of water.
The city and Greenbriar also submitted five water rights transfer agreements for a total of 305 acre-feet of Tehachapi Basin groundwater made between August 2020 and July 2022 from water rights previously held by H-Star Investments LLC. Public documents also show that on or about Sept. 1, 2022, Ciachurski transferred 76 acre-feet of water rights to Greenbriar Capital (U.S.).
The judge noted that the water rights in question were not in possession of Greenbriar prior to completion of the EIR and put forth the question, what if the developer decides not to move forward with a pledge of 175 acre-feet of water rights?
“From a CEQA standpoint, whether Mr. Ciachurski is genuinely committed to follow through and bring this water and it is a firm commitment from a CEQA standpoint, it wasn’t evaluated,” the judge said. “And so whether it is or isn’t, we don’t really know. And the whole point of CEQA is to have some sort of genuine, real evaluation of how firm of a commitment this is or isn’t, so that it’s a transparent process.”
Attorneys for the city and developer argued that the city won’t issue the first building permit for the project unless the water is transferred. The judge asked how that stance met the standard set by the Vineyard case. Attorneys for the city and Greenbriar countered with their belief that another case, Cherry Valley, puts emphasis on analysis under CEQA to demonstrate that there is a likely source of water and that the EIR met that standard.
DECISION
The judge did not indicate when he may make a decision on the case but mentioned spending time in his office reviewing answers to the questions he posed and the cases cited.
The water district has asked the court to set aside the project’s approval.
The city denied any wrongdoing and has continued to move forward with the development, approving the precise development plan for the first phase last November.
Ciachurski, representing Greenbriar in a webinar on April 26, said the company was waiting for city approval of engineering plans it has submitted and closure of financing with an expectation that work on off-site improvements, including widening Valley Boulevard, would begin sometime this month.