An environmental organization has sued the city of Morgan Hill
in hopes of forcing it to replace habitat for a threatened owl lost
during industrial development and other redevelopment projects.
An environmental organization has sued the city of Morgan Hill in hopes of forcing it to replace habitat for a threatened owl lost during industrial development and other redevelopment projects.
The Santa Clara Valley Audubon Society alleges the city has constantly dragged its feet in devising a long-term plan to mitigate the loss of western burrowing owl habitat caused by the city’s $147 million Ojo de Agua Community Redevelopment Plan, and has not adequately followed interim environmental measures put in place until the long-range document can be completed.
The lawsuit, filed March 19 in Santa Clara County Superior Court, asks the court to force the city and its Redevelopment Agency to either finish performing the mitigation measures or else explain why it has not done so – and cannot do so now.
“The city has done absolutely nothing unless threatened with a lawsuit …” despite several attempts to work cooperatively, said Craig Breon, the nonprofit Audubon society’s executive director. “To me, you have to wonder whether what the city has been hoping is that the (bird) will go extinct locally, and they won’t have to deal with it.”
But City Manager Ed Tewes said Monday that the city has followed the interim rules.
“We’ve been faithfully following the interim rules and providing the proper assessments in consultation with state regulatory agencies …,” he said.
Once widely distributed throughout California, the western burrowing owl is currently listed as a “species of special concern” by both the state and federal governments – a status that can be a precursor to listing as threatened or endangered under the federal Endangered Species Act.
While they were once common on the valley floor, approximately 100 breeding pairs remain today in the South Bay, Breon said. Five nesting pairs of the owls were counted in Morgan Hill in a 1997 survey, Breon said, but none was found last year. The most recent count showed just one, although Breon said more possibly could be in the area.
There is a family of the owls living on the El Toro School site. Attempts to move them to a safer and more private spot have failed; the owls return to El Toro.
The owl favors open, dry and sparsely vegetated land with available burrows from creatures such as ground squirrels and forages on rodents and insects. It is a favorite of bird lovers because it comes out in the day and is not totally frazzled by noise or human activity, often allowing observers to approach within 20 yards.
Breon said the Audubon Society initially stepped in over environmental studies when the city was amending the redevelopment plan back in 1999, complaining that mitigation measures for the bird proposed by the city weren’t adequate.
The city subsequently outlined plans to develop a long-term draft mitigation plan in one year’s time and a final plan within two years. In May 2001, the city had hired a consultant but had not outlined a work plan, Breon said.
Upon threat of litigation from Audubon – and with the state’s Department of Fish and Game also on its case – the city issued a work schedule for the mitigation work and formed a special stakeholders committee to have a plan drafted by the end of 2001.
But that work stopped abruptly in February 2002, Breon said. After the consultant’s contract expired last December, Audubon progressed toward the legal action.
“Basically they just sat it on a shelf,” he said of the plan.
Meanwhile, the suit alleges the city has not properly followed interim mitigation measures for several individual developments within the redevelopment area.
The lawsuit alleges the city’s initial environmental study for the Mission Ranch business park at U.S. 101 and Cochrane Road initially permitted the applicant to protect only 3.3. acres, despite 140 acres of burrowing owl habitat.
The state Department of Fish and Game advised the city its plans did not meet interim mitigation requirements and noted 140 acres of mitigation were required, according to the lawsuit. City environmental studies did not require the 21-acre Central Park Phase IV project or 25-acre Delco Housing project to provide any habitat mitigation despite interim requirements, the suit alleges.
Tewes said Monday that the city will have the long-range plan completed soon, and expects to bring it to the City Council for adoption within the next 30 to 60 days. He also said the city has corresponded with the state on interim projects.
“As individual projects have come up, we’ve been in contact with the Department of Fish and Game, and they’ve given us guidance on how to proceed on those individual cases pending final rules,” he said.
Morgan Hill City Attorney Helene Leichter said the city has to hire a biologist to survey land slated for development and tell the city how much to mitigate. The developer then enters into an agreement with Fish and Game and is given a choice of setting aside land for potential owl habitat or contributing to a fund.
While Fish and Game has approved of the fund alternative, Audubon contends the mitigation must include habitat, Leichter said.
Morgan Hill Mayor Dennis Kennedy, who has long been part of the environmental community, said he was surprised that Audubon had filed the lawsuit.
“We thought we were complying with what fish and game had requested,” Kennedy said.
Planning Commissioner Charles Weston said he was puzzled that the Audubon Society had not approached the commission about the problem.
“This is the first we heard of it,” he said. “Why aren’t they coming to planning meetings?”
According to City Clerk Irma Torrez, Breonappeared at a council meeting in March 1999 to support the EIR policy.
“They did not write us letters that I’m aware of except one in 2001,” Tewes added, noting that an Audubon member was appointed to the task force formed to outline the final plan.
Mitigation measures could include efforts such as refraining from poisoning ground squirrels.
“It’s not designed to stop development,” Breon said of the suit. “It’s designed to use public and some private land in Morgan Hill to mitigate for the loss of existing (habitat).”
