Plant Impact Fees Are Not Mitigation, Court Rules

     (CN) – A program in El Dorado County requiring developers to help fund rare-plant protection does not allow the developers to duck other environmental requirements, a California appeals court ruled, particularly because the “rare plant impact fee” was never formally reviewed.




     The California Native Plant Society challenged development of an old age home at Pine Hill, an area with unique soils hosting some plants that do not exist anywhere else in the world. The group claimed that the Congregate Care Project will eliminate one-third of all known Pine Hill ceonathus plants, and will affect the endemic Stebbins’ morning-glory. Both plants are federally endangered species, threatened largely by habitat fragmentation and the lack of natural fires.
     The society claimed that approval of the development violated the county’s general plan, the plants’ recovery plan and the California Environmental Quality Act. It also alleged inadequate funding of a plant impact fee program, established by El Dorado County in 1998 to create a system of ecological preserves, into which Congregate Care developers paid $135,000 for mitigation.
     Although the county court granted a temporary restraining order preventing the developers from spreading herbicide at the site, it denied the group’s petition.
     The 3rd Appellate District Court of Appeal said the fee program should have been subject to a full review under the California Environmental Quality Act instead of being rolled into a general plan that passed muster under the law.
     “[T]he impact fee allows approval of projects within the relevant environmentally fragile area, but does not eliminate the need to evaluate and address the impacts on plants of a particular project within that area,” Justice Morrison wrote.
     Because the society showed that the project could harm endangered plants, the court stayed development pending an environmental impact report.
     The court also called the fee structure “unsound,” noting that fee amounts had not been reviewed since the program was established more than 10 years ago.
     The 3rd Appellate District reversed the trial court’s ruling with instructions to withdraw a mitigation declaration and prepare the environmental impact report.

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