With judge’s ruling, Apple Valley clears hurdle that prolonged acquisition effort (February 22, 2018)

SAN BERNARDINO — Town officials on Wednesday celebrated a court ruling expected to allow their eminent domain action to progress unencumbered by a Liberty Utilities lawsuit that sought to suspend acquisition efforts.

Filed in December 2015 — one month after the Town Council approved resolutions of necessity to take the water system by eminent domain — the suit alleged an incomplete and misleading environmental impact report (EIR) prepared for that undertaking, which Liberty argued resulted in failure to comply with the California Environmental Quality Act (CEQA).

As a result, the suit requested the court command the town to vacate its certification of the EIR and the resolutions, court documents show. Additionally, it sought a restraining order meant to prohibit further action until the town complied with CEQA, the statute passed in 1970 that requires state and local agencies to identify the environmental impacts of their actions.

The litigation temporarily halted Apple Valley’s push toward a right-to-take trial and, if successful, would have sent the town back to the EIR drawing board. But San Bernardino County Superior Court Judge Donald Alvarez denied Liberty’s request for a writ of mandate, citing substantial evidence to support the town’s argument that its acquisition is exempt from CEQA.

Notwithstanding its preparation of an EIR, no such environmental review was mandated by CEQA, Alvarez said in his ruling. The court will not consider Petitioner’s arguments directed to whether the EIR complied with CEQA.

Mayor Art Bishop said Alvarez’s ruling was no surprise in a statement provided by the town.

I had complete confidence that the town staff and attorney had properly prepared the documents back in 2015, Bishop said. The only thing Liberty Utilities did by filing this frivolous lawsuit was to place more burden on our citizens, on top of the exorbitant rates they are already paying to this privately held company.

Greg Sorensen, president of Liberty’s western region, told the Daily Press the company respects the ruling, and he acknowledged that the town’s pursuit of the water system will likely continue as an underlying effect of the ruling.

If the town moves forward with the condemnation, Sorensen said, millions of taxpayer dollars will be spent to litigate the case, and we are confident the outcome would be similar to what transpired in Claremont, where taxpayers ultimately were on the hook for more than $13 million.

It should be noted that the town has long denied similarities between Claremont’s unsuccessful eminent domain action against Golden State Water Company and its own against Liberty.

Meanwhile, whether the town’s EIR contained what the suit called inadequate project descriptions related to operation of the water system was at the core of the CEQA case, court documents show.

Initially, the town argued acquisition would constitute a mere transfer of ownership. So, because no changes have been approved to the system, the town’s stance was that despite having completed an EIR, the acquisition was not subject to CEQA.

Alvarez, however, looked at potential impacts — depleted groundwater supplies and the possibility of new facilities among them — identified in the town’s own study to conclude the acquisition was in fact a CEQA project.

Following that determination, the town shifted its argument to an existing facilities exemption inherent in CEQA guidelines, which Alvarez said applied.

It may seem inconsistent for this court to conclude that the Class 1 categorical exemption applies and at the same time conclude the acquisition and operation of … the system is a project because it may have significant environmental impacts, he said. However by statute, CEQA does not apply to the classes of projects designated as exempt under the categorical exemptions.

Because the exemption applied, Alvarez stated there was no reason to expend time and resources reviewing whether the EIR complied with CEQA.

With the CEQA issue put to rest, Sorensen said Liberty is hopeful the town will recognize that collaboration is better for the community than continued conflict.

Liberty Utilities remains willing to work with town officials to find a cooperative solution instead of a costly and contentious legal fight, he said.

But if Town Manager Doug Robertson’s comments are any indication, Town Hall’s focus has shifted back to that legal fight.

We owe it to the taxpayers who have borne the burden of these costly water rates to see these eminent domain proceedings to the end, Robertson said. The town is ready to begin the next phase of the trial and we are looking forward to a successful conclusion.

In court, the town must prove municipal ownership of the water system is a more necessary use to the public compared to private ownership, a task its Best Best & Krieger legal team failed to prove in the Claremont case.

From Robertson’s perspective, however, public ownership is not only a more necessary use, it’s critical to our future, as well.

Both parties are due back in court March 6 for a trial-setting hearing in the eminent domain case, according to court records.

Source: Matthew Cabe, Daily Press