A stunning court decision perils Route 56 completion

By Lisa Ross

December 24, 1999

Another Roadblock to State Route 56

Of all the reasons why San Diego freeways are increasingly clogged, we can now add another, perhaps the most pernicious of all: A grove of dying eucalyptus trees in Orange County.

This obscure stand of trees far from San Diego is the subject of a legal ruling that could delay -- if not stop altogether -- the completion of the most important congestion-relieving link in our county, state Route 56. And, if not cured by the state Legislature, it could also stop the efforts of an unusual coalition of environmentalists and builders who have been cooperating over the past several years to restore the state's most critical habitat while allowing improvements to roads, schools, and communities.

This latest roadblock began earlier this year, when a state appeals court threw out 25 years of practice, precedent and common sense in ruling that a landowner could not replace a diseased group of trees with a larger, healthier group of native trees nearby.

That's because these near-dead trees were part of what is known as an Environmentally Sensitive Habitat Area (ESHA) in the state's coastal zone. The court said state law did not permit the tradeoffs -- or mitigation -- that local government and the Coastal Commission had allowed when it approved this project.

The ruling stunned people who have been forging coalitions to save open space habitat while building important public infrastructure improvements throughout the state. California landowners and local governments have been reaching these kinds of win-win agreements in the 25 years since the state's Coastal Act was first approved. Homes, roads, schools and the like could be built as long as impacted sensitive habitat was preserved, replaced or enhanced.

This practice was part of the Coastal Act's intent to balance the different uses of our coast. It has restored more lagoons, preserved more habitat and enlarged more nature parks than any other single program in California -- at no expense to the taxpayers.

But all that ground to a halt this summer when a judge ruled that this coastal ESHA of dying trees in Bolsa Chica -- and others like it throughout the state -- could not be touched for roads or housing or dozens of other public uses, no matter how badly damaged they were and no matter what the landowner was willing to do to restore them.

Which brings us back to State Route 56.

San Diego commuters have been waiting for the completion of this critical highway connecting Rancho Peñasquitos to the coast for almost 20 years. Today, SR 56 is a key to freeing up some of the worst congestion in the region, because 20 percent of the commuters on I-5 and I-15 are seeking a way to travel east and west.

But the completion of Route 56, including its critical northbound connector on the west, involves work in the coastal zone, areas that have been designated an ESHA. The city, Caltrans and the county were quite willing to mitigate any disturbances to sensitive habitat that are impacted by the road, but that willingness really doesn't matter any more.

They are not alone. From Chula Vista to North County, commercial and residential development is being delayed even though the landowners' plans, forged in agreements with environmentalists, include improving water quality in wetlands -- plans that now appear to be in violation of this new ruling.

SR 56 is not the only critical transportation element affected.

Along Interstate 5, traffic planners are dreading the day they begin work to improve this freeway, because all of it is in the coastal zone. In North County, this ruling could prevent a commuter rail service that so many people are counting on to relieve congestion.

And in what could be the biggest blow of all, advocates of San Diego's Multiple Species Conservation Program are scrambling to figure out how to keep their nationally recognized program together, because this ruling seemingly cut the heart out of it.

That's because the essence of the MSCP is mitigation -- landowners get development rights in one part of the region in exchange for setting aside land in a more biologically appropriate area -- precisely the kind of arrangement that a state court says is now illegal.

In a recent hearing about the damages caused by this ruling, staffers at the state Coastal Commission downplayed its significance and said the Coastal Commission would continue to be fair when balancing the competing interests of coastal users. That sounded nice, but the reality is this: Lawyers who would like to stop cooperative habitat plans like MSCP or any improvements in the coastal zone -- no matter what the mitigation -- now can use this decision to grind everything to a halt.

It's already happening in legal challenges being filed throughout the state. So without some fairly quick action from the state Legislature, the real planning and land-use decisions will not be made here but in faraway courts.

And our hopes for a completed Route 56 and a viable MSCP will rest not in the willingness of people in San Diego to balance the interests of all involved, but with judges in faraway places who will never enjoy an MSCP-created open space park or have to sit in a San Diego rush hour waiting for the completion of Route 56.

Ross is co-chair of the SR 56 Task Force, a citizen advocacy group supporting the completion of the highway and its northbound connectors.

Copyright 1999 Union-Tribune Publishing Co.