Apple Valley, Liberty Utilities settle CEQA suit with agreement (May 24, 2018)

SAN BERNARDINO — An agreement reached this month between Apple Valley and Liberty Utilities put to bed the water company’s years-long California Environmental Quality Act (CEQA) lawsuit, but came with sacrifices on both sides.

In April, following San Bernardino County Superior Court Judge Donald Alvarez’s final ruling on the matter, the town — as the prevailing party — began looking toward the recovery of more than $23,400 in legal and administrative costs, court documents show.

But a letter memorializing settlement terms shows the town instead opted to waive its right to recoup that money in exchange for Liberty foregoing its ability to appeal the CEQA judgement. The agreement could uncomplicate, to a degree, the town’s eminent domain suit against Liberty, which remains in the trial-setting phase more than two years after it was filed.

Town Manager Doug Robertson said avoiding an appeal in order to progress that attempt to take the Apple Valley water system factored into Apple Valley’s side of the agreement.

Liberty, early on, had talked about fighting this with every possible option, so this limits the exposure on a go-forward basis, he said. The other piece that is not as obvious is there was a CEQA portion to the right-to-take (trial) that was also dropped. So that should speed up (that) case because that’s another argument that won’t be addressed in court.

A statute in the California Code of Civil Procedure allows for recovery of attorney fees in most civil cases; however, that convenience is not afforded to public agencies who prevail against private petitioners. Therefore, the town was limited in what it could attempt to recoup from the onset.

The $23,452.91, as a result, represents less than 5 percent of the town’s known CEQA costs, which stood at more than $474,000 in March. The smaller amount includes money Apple Valley paid Best Best & Krieger (BBK), town staff and Rincon Consultants Inc. for work related to the suit.

BBK paralegal Tammy Ingram received $15,775.80 for 96 hours of work; former Deputy Town Clerk Debra Thomas and Executive Secretary Maribel Hernandez were paid a combined $749.34 for 14 hours; and three Rincon staffers earned a collective $1,102.50 for fewer than eight hours, according to court documents.

The town also paid $5,069.55 for the production of four Council meeting transcripts, $715.72 in court fees and $40 for the reproduction of thumb drives on two DVDs.

Liberty filed its CEQA suit in December 2015, one month after the Town Council voted to take the company’s water system by eminent domain. In court documents, the company alleged an incomplete and misleading environmental impact report (EIR) prepared for acquisition, which they argued resulted in CEQA violations.

The company sought to have the town commanded to vacate certification of the EIR, as well as a restraining order that would have prohibited further action until the town complied with CEQA, according to a previous Daily Press report.

In the wake of Alvarez’s ruling, which cited substantial evidence to support the town’s argument that its acquisition was exempt from CEQA, Greg Sorensen — president of Liberty’s western region — said the agreement reflects the company’s acknowledgement of the court’s decision.

The settlement does not protect the town from the enormous costs of its eminent domain lawsuit, Sorensen said. Assuming that the town continues with its lawsuit, millions more will be spent. Should the town lose, as was the case in Claremont, taxpayers could have to pay all legal expenses, which are likely to exceed $10 million.

Sorensen said he remains hopeful the town will accept our offer to find a solution that allows Liberty Utilities to continue owning and operating the local water system and prevents the costly and divisive conflict of an eminent domain trial in the San Bernardino Superior Court.

The parties are due back in court Aug. 24 for a trial-setting conference in the eminent domain case.

Source: Matthew Cabe, Daily Press