El Dorado County Counsel Lou Green announces that the County has prevailed in the Lawsuit brought against the County by The California Native Plant Society and the Center for Sierra Nevada Conservation.  Building an assisted living for up to 345 seniors, including 50 to 60 with Alzheimer's disease will now resume. See related stories below.

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Divisive Development
Two rare plants have sparked a battle between El Dorado County and conservation groups over a proposed senior care center
Sacramento Business Journal - April 13, 2007
by Barbara Marquand Correspondent

Although the legal battle isn't over yet, the developer of a senior residential care center in Cameron Park cleared a major hurdle last week.

Crews began grading the site for the project after opponents failed to post a $500,000 bond to halt the work.

It's a unique twist in a case over development versus preservation in El Dorado County, long a battleground over growth.

Developer Erik Pilegaard plans to build Cameron Park Congregate Care, a $47 million project that would provide assisted living for up to 345 seniors, including 50 to 60 with Alzheimer's disease.

The California Native Plant Society and the Center for Sierra Nevada Conservation filed a lawsuit in January, saying the project violated the county's general plan and would wipe out 28 acres of rare plant habitat. The groups are suing the county, Pilegaard and his two companies, Pacific Oak Development Inc. and Cameron Park Ventures LLC, which will develop and own the project.

Opponents won a court order earlier this year to halt the project temporarily. But in a hearing last month, El Dorado County Superior Court Judge Daniel Proud ruled the environmental groups would have to post a $500,000 bond to halt the project further.

Last week a Third District Court of Appeals judge denied the environmental groups' petition to eliminate the bond requirement for the injunction.

"There's potential we won't be able to have a court hearing on the case before the plants are destroyed," said Sue Britting, conservation chair of the plant society's El Dorado chapter.

A hearing on whether the development should be permitted is set for June 8. 

Pilegaard said he was excited to start building. "It's a great win for El Dorado County."

The large bond requirement is unusual for nonprofit plaintiffs. No more than nominal bonds are required in federal environmental cases. But there is no published state case law regarding the matter.

The bond requirement was equivalent to a denial of the injunction, said El Cerrito attorney Michael Graf, who's representing the environmental groups.

Although the California Native Plant Society has assets of $2 million, that money is needed for programming in its 33 chapters. If the society posted the bond and lost the case, "that would have been the end of the organization," Graf said. "They have plant sales to raise money...They don't have any economic stake in this case. They're just trying to get the county of El Dorado to take them seriously."

Said Britting: "The question becomes, who else is going to stand up and speak for public trust values?"

But Sacramento attorney Andrea Leisy, who's representing Pilegaard, said it comes down to a determination of the merits of a case, whether a project can withstand delays and whether plaintiffs have the assets to post a bond. "In some environmental cases such as this, maybe more than a nominal bond is needed."

All sides agree on one thing -- Pilegaard's project got caught in the middle of a fight between the environmental groups and the county. It's a costly position for the developer. Pilegaard estimates every month of delay costs him $150,000.

Pilegaard agreed to negotiate with the environmental groups before they filed the lawsuit, but the county never came to the table, Britting said.

The project site is home to rare and endangered plants that thrive in unusual soil called gabbro, which evolved during the formation of the Sierra Nevada. The Pine Hills ceanothus, a low-growing shrub with clusters of small flowers, grows nowhere else in the world but western El Dorado County. The California Native Plant Society estimates the development would wipe out one-third of all known Pine Hill ceanothus plants. The endangered Stebbin's morning glory, a perennial vine with showy flowers, grows only in gabbro soils in El Dorado and Nevada counties. Other rare plants, such as the Red Hills soaproot and El Dorado mules-ears, also grow in the area.

A U.S. Fish and Wildlife Service recovery plan for gabbro soil plants identified the project site area as essential "to prevent extinction or prevent the species from declining irreversibly in the foreseeable future." 

Britting said the county violated its general plan's direction to follow the recovery plan. The county adopted a rare plant preserve system in 2004 but did not include the planned care center area within the preserve boundary.

But the recovery plan is advisory, said Sacramento attorney Michael V. Brady, who's representing the county in the case. The county works with the state Department of Fish and Game and the U.S. Department of Fish and Wildlife, but their recommendations are not binding. The general plan gives the county discretion in designing development projects outside the preserve, he said.

The environmental groups also fault the county for failing to update rare plant mitigation fees since 1998. With land prices going up, the county has lost buying power for preservation, Britting said.

But the county has purchased 3,100 acres for preservation with mitigation fees since 1998, Brady said, and will consider raising fees if necessary as it designs an integrated natural resources plan, an effort already under way.

The groups also allege the county board of supervisors violated the California Environmental Quality Act when it approved the development with significant changes without giving the required public notice and comment period. The changes were additional mitigation measures Pilegaard offered to do, including setting aside about 6 acres of his property for preservation and taking plant cuttings, propagating them in a nursery and replanting.

Brady said the county called the Department of Fish and Game and the U.S. Department of Wildlife Services about the additional mitigation measures and never heard back before the meeting.

Britting said her group isn't against the senior care center -- it just wants more protection for the native plants than what the county is requiring, such as preservation of adjacent land.

Pilegaard paid his mitigation fees and went above and beyond the county's requirements, Leisy said. Meanwhile, the county is short on senior care facilities. Leisy spoke of her grandfather, ill from cancer, who moved from El Dorado County, where he had lived for 30 years, to Sacramento to get full-time care because nothing was available closer to home.

"The county has to evaluate and balance the interests of providing for senior citizens versus preserving plants," she said. "You have to look at the totality of the circumstances." 

Related Stories:

http://www.sacvalleycnps.org/Conservation/ElDoradoLawsuit.pdf

http://www.co.el-dorado.ca.us/bos/wwwroot/attachments/82f3424d-66e9-4b28-b0cc-23588b8817b5.pdf

http://www.co.el-dorado.ca.us/bos/wwwroot/Attachments/eadf4302-3c24-473a-bee4-9cc2f2673a84.doc