Item 17 - Conference w Legal Counsel – Anticipated Litigation Govt. Code §54956.9(d)(2) – Two (2) casesAGENDA REPORT CityofPoway
DATE:
TO:
FROM:
CONTACT:
CITY COUNCIL
SUBJECT:
June 6, 2023
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
afenstermacher@poway.org
Alan Fenstermacher, City Attorney
afenstermacher@poway.org
Closed Session - Anticipated Litigation Based on Written Threat
The Brown Act allows the City Council to discuss matters in closed session if, "based on existing facts
and circumstances, there is a significant exposure to litigation against the [City]." (Gov. Code §
54956. 9(d)(2).) If the basis for the potential exposure to litigation is a statement threatening litigation,
the Brown Act requires the threatening statement to be disclosed as part of the City Council agenda.
(Id., subdiv. (e)(5).)
For one of the two closed session items, such a statement exists, and has been attached hereto as
Exhibit A.
Attachments:
A.April 26, 2023 Letter from William J. White
Reviewed/Approved By:
We�ta;;;;--
Assistant City Manager
1 of 6
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Ch�
City Manager
June 6, 2023, Item #17
S1-IUT ~ MIHALY
L ']'---J w E I N B E R C E R LLP
396 HAYES STREET, SAN FRANCISCO, CA 94102
T: (415) 552-7272 F: (415) 552-5816
www.smwlaw.com
Via Electronic Mail
Robert Manis
Director of Development Services
City of Poway
13325 Civic Center Drive
Poway, CA 92064
BManis@poway.org
April 26, 2023
WILLIAM J. WHITE
Attorney
White@smwlaw.com
Re: Conservation Easements over the Scripps Poway Parkway Extension
Mitigation Parcels
Dear Mr. Manis:
On behalf of the Endangered Habitats League (EHL), we write to express
our concerns with the City of Poway's (City) ongoing failure to record conservation
easements over the 650 acres of mitigation parcels associated with the Scripps Poway
Parkway Extension (SPPE). For your reference, EHL is a conservation group dedicated to
ecosystem protection and sustainable land use for the benefit of all the region's
inhabitants. EHL served on the original stakeholder advisory committee for the San
Diego Multiple Species Conservation Program (MSCP) and supported Poway's
development of its subarea plan.
The focus of this letter is a subset of the mitigation acreage obligation for
the SPPE, specifically the 179 acres of mitigation parcels surrounding the wildlife tunnel
within unincorporated County of San Diego. Due to the City's inaction, the mitigation
parcels and the wildlife tunnel that connects them are experiencing a proliferation of
unauthorized uses. These illicit uses pose a grave threat to the plant and animal species
that the parcels and tunnel were meant to protect. As you are aware, our concerns are
shared by the intended co-beneficiaries of the conservation easements, the U.S. Fish and
2 of6 Attachment A June 6, 2023, Item #17
Robert Manis
April 26, 2023
Page2
Wildlife Service (USFWS) and California Department of Fish and Wildlife (CDFW).1
We join these agencies in urging the City to promptly comply with its legal obligations to
record and enforce the conservation easements.2
For nearly thirty years, the City has known that the development of the
SPPE Project would have a significant adverse impact on the region's sensitive habitats
and species. In particular, it understood that the parkway extension would severely
impede the north-south movement of wildlife across a five-mile-long stretch of highly
valuable habitat. See, e.g., SPPE Project Environmental EIR Biological Resources
Technical Report (1994) pp. 87-88, 99-100; City Res. No. 94-013 (Feb. 8, 1994) pp. 16-
17, 19. The City has also recognized that mitigation of such impacts requires ( 1)
developing a wildlife tunnel to allow species to safely and freely cross under the SPPE
corridor and (2) recording conservation easements over the City-owned mitigation
parcels that adjoin the SPPE and are linked by the wildlife tunnel. See id.
Unfortunately, while a wildlife tunnel was built as part of the SPPE Project
and the City acquired fee title to the mitigation parcels surrounding the SPPE corridor,
the City did not record conservation easements over those parcels and has made no effort
to restrict unauthorized use of the tunnel. The consequences of these failings have been
disastrous. Recent monitoring shows that prohibited uses of the tunnel--especially
mountain biking-are steadily increasing, and are occurring at all hours of the day and
night. CDFW Letter p. 2; Letter from Libby Lucas, Wildlife and Habitat Conservation
Coalition, to Bob Manis, Director of Development Services, City of Poway (May 13,
2019) pp. 7-8. The parcels adjoining the tunnel have experienced a proliferation of
unsanctioned recreational trails. Id. As more people use the tunnel and surrounding areas,
the wildlife species for which the tunnel was built are using it less and less. CDFW Letter
p. 2. Consequently, sensitive species are being deprived of their only protected route
across the SPPE corridor, and the conservation value of the mitigation parcels has been
greatly diminished.
In short, unauthorized access to the mitigation parcels and the wildlife
tunnel is actively jeopardizing the existence of the sensitive species that rely on these
1 See Letter from Jonathan Snyder, Assistant Field Supervisor, USFWS, to David De
Vries, City Planner, City of Poway (Dec. 16, 2022) ("USFWS Letter"); Letter from
David Mayer, Environmental Program Manager, South Coast Region, CDFW, to David
De Vries, City Planner, City of Poway (June 28, 2022) ("CDFW Letter").
2 Though the focus of this letter is the mitigation parcels adjoining the SPPE corridor
itself, EHL urges the City to fulfill its legal obligation to record conservation easements
over all 650 acres of mitigation parcels associated with the SPPE Project.
S 1-1 UT E1 i\11 I 1-1 ;\ LY
(:'---w E I NB ERGE R UY
3 of6 June 6, 2023, Item #17
Robert Manis
April 26, 2023
Page 3
areas. The City's failure to record the required conservation easements violates its legal
obligations under federal Endangered Species Act (ESA), the California Endangered
Species Act (CESA), the California Natural Community Conservation Planning Act
(NCCP Act), and the California Environmental Quality Act (CEQA).
Both the Incidental Take Permit and the Management Authorization that
USFWS and CDFW, respectively, issued to the City in connection with the SPPE Project
and the Poway Subarea Habitat Conservation Plan (PSHCP) are conditioned on the City
recording conservation easements over the 650 acres of mitigation parcels. These
authorizations are required for the City to comply with the ESA, the CESA, and the
NCCP Act because implementation of the SPPE Project would result in the take of
certain endangered, sensitive and other NCCP-covered species, including the coastal
California gnatcatcher. See PSCHP IA§§ 2.6, 2.7, 3.0(A).
Condition F of the USFWS Incidental Take Permit for the PSHCP (ITP No.
PRT-803743) expressly conditions the permit's validity on the City's compliance with all
terms of the PSHCP's Implementing Agreement. See USFWS Letter p. 2; see also
PSHCP IA§ 17.3 (same, as to the CDFW-issued Management Authorization). The
Implementing Agreement, in tum, requires the City to "initiate the establishment of a
permanent biological open space easement over 650 acres of land acquired as habitat
mitigation in connection with the" SPPE Project, with "[CDFW] and USFWS as co-
beneficiaries of the easement with authority to enforce each of its provisions." PSHCP IA
§ 6. l(A)(2); see also id. § 5.1 ("USFWS agrees that ... [i]mplementation of the PSHCP,
and dedication of conservation easements on lands specified for mitigation, fulfills the
regional biological resource impact mitigation identified for the approved [SPPE] Project,
and that additional mitigation is not required for impacts to Covered Species.") ( emphasis
added); id. § 5.2 (same, as to CDFW).3
Thus, in failing to record the conservation easements, the City is violating a
mandatory duty under the Implementing Agreement, the take authorizations themselves,
and the state and federal laws under which they were issued. Failure to comply with a
3 See also PSHCP IA§ 5.l(B) (USFWS's agreement that "[c]ompliance with the terms of
this Agreement and the PSHCP constitutes compliance with the provisions of the ESA");
id. § 5.2(B) (CDFW's agreement that "[c]ompliance with the terms of this Agreement
and the PSCHP constitutes compliance with the provisions of the CESA, the Natural
Community Conservation Planning (NCCP) Act, and the California Native Plant
Protection Act").
SH UT E1 M IHA LY
(:'---\'<l EI N BE R CE R uy
4 of6 June 6, 2023, Item #17
Robert Manis
April 26, 2023
Page4
mandatory duty is grounds for a writ of mandate action to compel performance of the
unlawfully withheld action. See Cal. Civ. Proc. Code§ 1085.
In addition, the City has an independent obligation to record the
conservation easements under CEQA. The Final EIR (FEIR) prepared for the SPPE
Project acknowledged that the Project's impacts on biological resources-and
specifically wildlife corridors-would be significant absent mitigation. See SPPE Project
EIR Biological Resources Technical Report pp. 99-100; SPPE Project Mitigation
Monitoring Program Checklist p. 47. To comply with CEQA's mandate to implement
feasible mitigation measures to reduce these impacts,4 the FEIR and the City's resolution
certifying it stated that the City would prepare and abide by the PS HCP. See id.; City
Res. No. 94-013 pp. 16-17, 19. The PSHCP itself makes clear it was prepared for the
express purpose of "satisfy[ing] the regional biological resource impact mitigation
measures required for the approved" SPPE Project, "as identified in the [FEIR] ... for
the Project." PSHCP IA§ 2.8, p. 11; see also id. §§ 5.l(A), 5.2(A).
Accordingly, the City's refusal to record the conservation easements as
required under section 6.1 (A)(2) of the Implementing Agreement constitutes a failure to
implement a required mitigation measure adopted in the SPPE Project's FEIR. This is a
plain violation of CEQA. See Sierra Club v. County of San Diego (2014) 231
Cal.App.4th 1152, 1167 ("Once incorporated, mitigation measures cannot be defeated by
ignoring them or by attempting to render them meaningless by moving ahead with the
project in spite of them"). A public agency "may not authorize destruction or cancellation
of' a mitigation measure "without reviewing the continuing need for the mitigation,
stating a reason for its actions, and supporting it with substantial evidence." Katzeff v.
Cal. Dep 't of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 614. The City has
never made findings that the easements are no longer necessary, and such findings could
not be supported in light of the ongoing impacts of unauthorized uses on the mitigation
parcels and wildlife tunnel. Nor does the passage oftime excuse the City's obligation to
implement required mitigation measures; CEQA permits an action to enforce mitigation
conditions against an agency's ongoing failure to comply with those conditions. Lincoln
Place Tenants Ass 'n v. City of Los Angeles (2007) 155 Cal.App.4th 425,453 n.23.
It is critical that the City take immediate action to prevent the serious and
worsening harm to sensitive species and their habitats caused by unauthorized access to
the mitigation parcels and wildlife tunnel. EHL strongly prefers to resolve this issue
without resort to litigation and believes there is a clear path for doing so. Recording the
conservation easements required by USFWS's ITP, CDFW's Management Authorization,
4 See Public Resources Code§§ 21002.l(b), 21081, 21100(b)(3).
SH UT E1 M IH f\LY
("-WE I N B ER GE R 11.P
5 of6 June 6, 2023, Item #17