REIR NOA-2

Comment Letter #1 (Shute, Mihaly & Weinberger LLP)

Comment 1-A: Commenter states that using the Horseshoe Meadows road site as an alternative project site would decrease the proposed project’s visual impacts.

Response 1-A: While the Whitney Portal road may have higher traffic counts and lead to the more significant tourist site, both the Whitney Portal road and the Horseshoe Meadows road lead west out of Lone Pine and provide access across the valley floor and up into the Sierra to trailheads that allow access to the back country. In this sense, both roadways and both development sites (the proposed project site and the Horseshoe Meadows road site) present visual impacts to the larger Sierra backdrop.

Contrary to statements in the comment letter, the project site is not located on undeveloped land far from any settled community. Rather, it is located within the community of Lone Pine Creek and is directly across Whitney Portal Road from several residences. The visual impact from the proposed project does not arise from the fact it is isolated from other residences, but from the fact that it will impact views toward the Sierra of traffic as it passes by on Whitney Portal Road. The Horseshoe Meadow Road site is not within, and is at least a half mile from, any established community (i.e., the Alabama Hills community) – it will stand alone. For this reason, it presents an impact. Even were the Horseshoe Meadow Road site available for trade, developing it would only serve to shift the same type of visual impact from one population to another. The visual impact would not be significantly decreased.

The EIR does not state that exchanging the project site for the Horseshoe Meadows Road site would decrease the visual impact of the project. The EIR states that the land trade alternative, in general, could decrease the impacts of the project. This conclusion pre-supposes that there are parcels available for exchange that do not have the same or similar impacts as the proposed project. That supposition, of course, is addressed by the EIR and this REIR, which conclude that there is no feasible land exchange alternative. The Horseshoe Meadow Road site, in particular, besides being an infeasible option, also would not significantly decrease the visual impacts of the project.

Comment 1-B: Commenter states that the infeasibility of the Horseshoe Meadows site as an alternative is not adequately justified.

Response 1-B: The feasibility of an alternative must be evaluated in light of economic, legal, social and other factors and whether it may be accomplished in a reasonable period of time. The REIR analyzes the Horseshoe Meadows Road site on all these criteria, which both individually and collectively demonstrate that the site is not a feasible alternative to the project site.

One legal issue is of paramount importance and is not addressed in the comment. The Horseshoe Meadows road site has been withdrawn from entry and disposal under a 1931 federal law. This is a Congressional determination that the site should not be used for development purposes. As a result, the site is not listed among the parcels BLM has available for exchange, as confirmed in letters from BLM (Appendix K of REIR, Appendix L of REIR, and Comment Letter #4 attached to this staff report). The fact that the BLM lacks the authority to trade the Horseshoe Meadows site for the project site weighs heavily against its feasibility, since it means that any developer would have to change Congress’ mind on the matter to effect a trade. It would quite literally take an act of Congress to make the site available.

This fact obviously affects whether the trade could be accomplished in a reasonable period of time. The time estimates to complete a trade with BLM were provided and verified by BLM staff, as noted in the final paragraph of the BLM letter in Appendix O of the REIR, and again in Comment Letter #4 attached to this staff report. While it is possible to work through the BLM and petition Congress to change the status of a site, the process to do so extends the ordinary BLM processing time from a minimum of two years to four years, which does not include the project processing time of the County. Four years to determine if a parcel is available for development does not appear to be a workable period of time. The County has determined that two years is the approximate time it takes to perfect and approve a new project application with the County.

The amount of time required from the point of proposing a trade with the BLM, to gaining development approval of such a trade site, necessarily affects the economic feasibility of an alternative. The commenter argues that the economic feasibility of a parcel should only be evaluated assuming, up front, that a trade is possible, will occur, and that approvals for the trade site will be assumed to be granted. In other words, the property should be viewed as available and profitable to a theoretical developer. However, the REIR cannot be so limited. It must analyze the feasibility of the land trade alternative, which necessarily includes the process, timeliness and cost of pursuing the trade. Certainly, the typical developer’s ability to continue to finance a project is one component of the issue of project feasibility.

Despite the commenter’s economic analysis of sunk costs, the amount of money a developer must invest in achieving the alternative and the ability to finance the process are relevant and fundamental to determining whether an alternative is economically feasible. The cost to a developer of engaging in a (minimally) four to six year project delay to implement an alternative is a relevant and appropriate factor in the economic feasibility of that alternative. These costs are not sunk, they are the cost of pursuing the alternative. They may make it financially infeasible to pursue the land trade alternative. Clearly, the County is not required to assume that a developer has unlimited time and funds to accomplish his project when determining whether an alternative is feasible.

Comment 1-C: Commenter states that the County misunderstands the alternatives analyses that is required in that it is under the impression that it can compel the developer to accept a land exchange.

Response 1-C: The County understands that it cannot compel the developer to accept a land exchange. The County must, however, determine whether the developer will be allowed to develop the parcel he owns. If the County determines that the developer may not develop his parcel, then the developer will only be able to build a project on another parcel, if he should choose to do so. Whether, in that event, an observer would decide that the County compelled the developer to accept the alternative or whether the developer did so of his own choosing is a distinction without a difference as far as the feasibility analysis.

Comment 1-D: Commenter states that it is not proper to consider that disallowing project approval would create an environment in which property owners are unable to ascertain the permitted uses of their property.

Response 1-D: The REIR analyzes the issue of alternative project sites in terms of the issue of feasibility. Feasibility is in part analyzed by considering social factors. Social factors are in part incorporated in the County General Plan, in which the Board of Supervisors determined the areas of the County that are appropriate for development. The Board determined decades ago that the project site is appropriate for development and designated it as such in the General Plan and in County zoning maps. Developing the Horseshoe Meadow Road site would shift development from a parcel that is designated by the community for development to one that is not so designated. This implicates both social factors – the ability of a community to determine its character – as well as legal ones – the fact that developing the Horseshoe Meadows Road site would violate policies of the General Plan. These are both appropriate factors to consider in determining if an alternative is feasible.

Comment 1-E: Commenter states that the Horseshoe Meadows site is similar to the proposed project site in terms of its consistency with County General Plan goals and policies.

Response 1-E: The proposed project site is, unlike the Horseshoe Meadows road site, included in an existing General Plan-designated community (Lone Pine Creek). The project site is immediately adjacent to residential development. The project site has been designated and zoned since the 1970s for exactly the type of rural residential development proposed by the project. The Horseshoe Meadow Road site is neither located in a designated community, adjacent to residential development nor designated for development in the General Plan or zoning map.

In terms of the similarity of both the project site and the Horseshoe Meadows site to impact visual resources, see Response #1-A.

Comment 1-F: Commenter states that there are insufficient reasons to reject the central Wilkerson parcel as infeasible because it is error to look at the developer’s sunk costs, the time to process the trade is not sufficiently substantiated, and the County should not consider that disallowing project approval would create an environment in which property owners are unable to ascertain the permitted uses of their property.

Response 1-F: See the responses to 1-B, C, & D.

Comment 1-G: Commenter states that the central Wilkerson parcel is not adequately or correctly analyzed in terms of its economic feasibility to develop.

Response 1-G: The REIR is an environmental document and an economic cost-benefit analysis of the development potential of the central Wilkerson piece was deemed beyond the scope of such a document. However, in the interest of fully exploring and responding to the contention that the central Wilkerson parcel is a viable alternative site for the project, a development feasibility study (Triad/Holmes Associates) has been prepared for the site, as well as a market analysis (Nancy Lowthorp, Coldwell Banker). These studies do not raise new issues or affect proposed mitigation such that additional public comment on them is required. These studies are attached to, and follow, the responses to this comment letter.

These documents, taken together, indicate that the central Wilkerson site could be subdivided to yield 43 one-acre lots (the minimum lot size, as designated by the General Plan land use designation of Residential Rural High Density (RRH)), each of which could likely be sold for an average of $125,000, yielding a profit of $5,375,000 for all 43 lots. However, development costs for the site are estimated by the Triad study to run $4,338,500, which averages out to $101,00 per lot, leaving little profit margin. Added to these costs to develop the central Wilkerson parcel are the:

Costs and expenses already put into the proposed project site off Whitney Portal Road, which come to $1,757,360. This can be thought of as the “purchase price” of the Wilkerson parcel.
Costs and expenses that would be required to hold the proposed project site parcel until a trade could be affected with the BLM for the central Wilkerson site, which are estimated to be $471,793.

These figures, added together, show the total costs to the developer to develop the central Wilkerson parcel:

$4,338,500 (cost to develop the central Wilkerson site, per the Triad study)

$1,757,360 (costs already expended on the proposed project site, per page 10 of

the REIR; if trading for the Wilkerson parcel, this could be thought of as the Wilkerson “purchase price”)

$471,793 (costs to hold the project site until a BLM trade is completed, per pages

11 and 16 of the REIR: $707,689 (p. 11) - $235,896 (p. 16) =

$471,793)

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$6,567,653 = total expenditures to develop the central Wilkerson site

When compared with the estimated profit from developing the central Wilkerson site, these figures show a net loss to the developer in developing the central Wilkerson parcel as an alternative site:

$6,567,653 (total expenditures to develop the central Wilkerson site)

$5,375,000 (estimated income of 43 central Wilkerson lots, at $125,000 per lot)

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$1,192,653 = net loss to developer in developing the central Wilkerson site

In addition, the location, size, land designation, and zoning of the central Wilkerson piece is not in line with the proposed project, which consists of large-lot, rural residential development in an exceptional location commanding Sierra range views.

Comment 1-H: Commenter states that the central Wilkerson parcel is not properly analyzed with respect to General Plan goals and policies in that it concludes that developing the Wilkerson parcel would transfer development from the area of the proposed project to the Wilkerson area.

Response 1-H: The General Plan is considered the constitution for development policies in the County. In it, the Board of Supervisors determined what areas of the County may be developed, the density to which they may be developed and the type of development that should be allowed. Decades ago, the Board of Supervisors determined that the proposed project site should be developed as a large-lot residential community. Although no specific development was approved for the site, development was planned for the site.

If development is not allowed on the project site, that would eliminate a development that was planned for by the County in its General Plan. There is a very limited amount of land available in the County for development. The elimination of this development opportunity in the Lone Pine area is unlikely to be replaced and will be a loss for that community. It is a goal of the General Plan to provide for growth in all of the County’s communities. By eliminating growth in one community while encouraging it in another community, the alternative would negatively affect two General Plan goals: first, the goal to encourage the development of the Pine Creek community; and second, to remove a growth opportunity from the Lone Pine area. Although these considerations may not be determinative of the alternative’s feasibility, they are factors that may and should be considered in the feasibility analysis.

Comment 1-I: Commenter states that other off-site alternatives, other than just those owned by BLM, must also be analyzed.

Response 1-I: The FEIR examined a full range of alternatives to the project, including a no project alternative, different site configurations and the use of other sites. The FEIR examined the possibility of land exchanges with both LADWP and BLM, the two agencies with land that would potentially be suitable for exchange. It concluded that a trade for an alternative site was not feasible. The commenter challenged the adequacy of the alternatives analysis in the FEIR in the superior court, which upheld the analysis, and in the appellate court, which faulted a narrow portion of the analysis. The appellate court found only that the County had failed to sufficiently independently evaluate the possibility of a land exchange with the BLM.

The REIR, therefore, does not seek to re-analyze every and all alternative site possibilities. The Court limited the area covered by the REIR when it ordered that BLM land trade alternatives should be more fully explored. As a result, that has been the focus of the REIR document.

The County knows of no other organizations that control land that is available for trade for the project site. This includes the Conservation Fund proposal. The Conservation Fund does not own or control the Lubken Canyon Ranch property and that property is not on the market. Furthermore, the Lubken Canyon Ranch is far larger than the proposed project site and would need to be subdivided by the owners before a trade could be considered. A trade for the Lubken Ranch Property would convert agricultural property to residential property. But even were the Lubken Ranch property of appropriate size and for sale, the Conservation Fund could not trade it for the Walters parcel as the Conservation Fund does not own or control it.

Comment 1-J: Commenter states that the REIR is a subsequent EIR, not a recirculated EIR, and that the entire EIR must be completely revised because of changed conditions since the certification of the EIR. The changed conditions are a large fire that occurred in the eastern Sierra, the governor’s declaration of a drought in California, and the adoption of AB 32, the California Climate Solutions Act.

Response 1-J: The original EIR was certified, but that certification was set aside by the Inyo County Board of Supervisors pursuant to order from the superior court. The subject document is appropriately classified as a recirculated EIR.

The Inyo Complex fire of 2007 did not affect either the project site, the Horseshoe Meadows road site, or any of the other BLM-owned alternative sites that were analyzed. Wildland fires will always exist as one of the threats to rural residential development, as the project recognizes and addresses with its mitigation measures for fire hazards. The fact that there is danger from fire in the eastern Sierra is not a new or changed condition arising subsequent to the preparation of the EIR. The fact that there was a large fire does not make a fire at the project site any more likely.

Water availability varies from year to year, and varying degrees of drought can be said to be a cyclical environmental phenomena that exists as a backdrop to all development in Inyo County. The hydrological analysis in the original EIR demonstrates adequate water supplies for the project, considering this inherent backdrop of water variability. Further, the project will obtain its water from an aquifer that is directly fed by Sierra runoff, with no appropriation of water between it and the source. There is no likelihood that the general drought in the state will affect this project.

Global climate change is a phenomena that was well recognized when this project was proposed and the EIR prepared. The EIR evaluated the effects of air pollution from the project. No comments were received concerning climate change at that time and the comment period is long closed. Climate change is not a new or changed condition affecting this project. While AB 32 passed recently, there are no regulations governing preparation of CEQA documents that have resulted from its passage.

Nevertheless, the County has received and evaluated an analysis of this project’s effect on global climate change, which is attached to, and follows, these responses to this comment letter. The analysis concludes that this 27-lot subdivision does not constitute a size of development which could result in any significant, or cumulatively significant, impact to global warming. This conclusion is not surprising given that the County received no comments concerning the project’s contribution to global climate change when it circulated the air impacts portion of the EIR. The global climate report does not introduce evidence of any impact or affect mitigation such that further public comment on it is warranted.

Comment Letter #2 (Save Round Valley Alliance (SRVA))

Comment 2-A: Commenter states that the SRVA-produced White/Working Paper was not mentioned in the REIR, and argues that other agencies and organizations beyond BLM exist that can assist in a land exchange and/or an alternate site.

Response 2-A: See response #1-I. Concerning the LADWP information, please see attached correspondence between planning staff and LADWP staff.

Comment 2-B: Commenter states that an affordable housing component to the project is never addressed/proposed, although the Eastern Sierra Housing Needs Assessment says it needs to be addressed for the area.

Response 2-B: The need for affordable housing in Inyo County is not a new or changed circumstance subsequent to the circulation of the EIR. Inyo County addresses its affordable housing needs through its general plan, in compliance with state law. The General Plan does not designate the project site as an affordable housing site and there is no requirement for the developer to include affordable housing in his project or for the County to consider an affordable housing alternative to the project. Developing the property as affordable housing would not serve to mitigate the visual impact of concern, nor would it serve to mitigate other environmental impacts of the project.

Comment 2-C: Commenter states that the Lubken Ranch property could be an alternative site for the proposed project.

Response 2-C: See response #1-I.

Comment 2-D: Commenter states that the central Wilkerson site is not infeasible due to small lots, and not less valuable economically.

Response 2-D: See response #1-G.

Comment 2-E: Commenter states that the Rossi Hill #1 site is not infeasible, and that traffic and population impacts are overstated.

Response 2-E: The REIR did not identify traffic and population impacts as major negative impacts from the Rossi Hill site. Location, topography, size, and power lines make the site infeasible as an alternative to the proposed project site.

(NOTE: the original comment letter contained, as an attachment, a copy of the Eastern Sierra Housing Needs Assessment, a 163-page document. This document has not been attached here, but is available for review by interested parties at the Inyo County Planning Department offices at 168 N. Edwards Street in Independence or on the Department’s website at www.inyoplanning.org)

Comment Letter #3 (Environmental Analysts, E.M. Brown)

Comment 3-A: Commenter states that the project’s visual impacts cannot be mitigated.

Response 3-A: The EIR and Inyo County recognize that a significant visual impact will result from the project, even after a variety of mitigation measures are imposed.

Comment 3-B: Commenter argues that the stated project objectives are simply descriptions of the project not project objectives, and that the REIR should not rely heavily on economic factors resulting from the proposed land trades.

Response 3-B: The proposed project description and objectives have never been simply to provide housing on vacant available land. It has been an objective of the project from its initiation to take advantage of the amenities of the project site to create a unique subdivision. While there are other areas in the County that offer similar amenities, none appear feasible or available for trade. See response #1-I.

Comment 3-C: Commenter states that other alternative sites, other than just those owned by BLM, must also be analyzed

Response 3-C: See response #1-I.

Comment Letter #4 (Bureau of Land Management (BLM), Bill Dunkelberger)

Comment: Commenter states that the REIR analysis of BLM-owned alternative sites is accurate.

Response: Comments noted.

Comment Letter #5 (California Regional Water Quality Control Board)

Comment: Commenter states that drainage impacts must be mitigated, that permits must be obtained, and the low impact development (LID) principles should be incorporated into the project.

Response: Comments are noted, but are not directly relevant to the REIR. These comments are similar to those received in response to the original EIR, and mitigation measures were proposed and adopted for the project which address such comments/issues.

Comment Letter #6 (Kent Richards)

Comment: Commenter is against the project due to its visual impacts, and supports a land trade alternative.

Response: Comments noted.

Comment Letter #7 (Hans-Dieter Simon)

Comment: Commenter is against the project due to its visual impacts and supports finding an alternative site. Commenter also states that the use of running water (Lone Pine Creek) on the proposed project site should be more fully analyzed/examined.

Response: Comment noted. The proposed project site does not contain running water, although it is across Whitney Portal Road from, and is thus near to, Lone Pine Creek. There is no proposal to use Lone Pine Creek as part of this project. (NOTE: an initial proposal for a park/access way to Lone Pine Creek was proposed by the applicant at one time, but was subsequently withdrawn and is not now part of the project).

Comment Letter #8 (Ore Carmi)

Comment: Commenter states alternative land trade sites have not been adequately considered; that area housing needs should be addressed; that an independent economic assessment of the proposed project should be made; and that approval of the proposed project would set a dangerous precedent to area views and ecosystems.

Response: See responses #1-I and #2-B.

Comment Letters #9 – 25 (form letter from SRVA website, sent by various commentators)

Comment: Commenter states that alternative sites, other than those owned by BLM, must also be examined; that the project does not address the issue of affordable housing; and that a fully adequate and independent economic analysis of the alternative sites has not yet been made.

Response: See responses #1-I, #2-B, and #1-G.

The analysis of economics in the REIR is an independent analysis conducted by Inyo County. There is no requirement that such an analysis be conducted by a third party.