Judge Rakes UC Officials Over Tollway Deal

A judge on Friday sharply criticized University of California officials for selling part of a UC Irvine ecological preserve for the San Joaquin Hills tollway without preparing an environmental impact report.

Superior Court Judge James L. Smith said he was inclined to agree with campus faculty, students and environmental groups who sued the school, and to require such an environmental review. Previous documents, he said, failed to analyze the effect of taking 1.7 acres of the ecological preserve for right-of-way needed to build the $1.1-billion tollway.

But after listening to last-minute pleas from attorneys for the Transportation Corridor Agencies, the authority overseeing the 17.5-mile tollway project, Smith said he would take a few days to consider their arguments.

Already partly under construction, the toll road would extend California 73 from the Corona del Mar Freeway near John Wayne Airport to Interstate 5 near San Juan Capistrano.

Preparation of a new environmental review by the Board of Regents of the university would take several months, tollway officials said, and may not delay construction much.

The dispute affects rock outcroppings that hang over 55 feet of the tollway’s northernmost edge.

Attorneys for the Natural Resources Defense Council, representing faculty, students and groups opposed to the land sale, barely spoke during Friday’s court hearing because the judge said it wasn’t necessary and he engaged in a spirited sparring match with defense lawyers.

The defense argued strenuously that although the university is committed to having an ecological preserve, it never specified the exact location and is free to move it around.

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But Judge Smith said: “The integrity of the preserve should be, pardon the expression, preserved. . . . It’s like a trust account. You can’t use this (land) as a revolving fund.”

Attorneys for the corridor agency stressed that the university regents were entitled to rely on the agency’s much broader environmental impact report and didn’t have to prepare one themselves dealing only with the land sale.

A tollway lawyer read to Smith a letter included in the tollway environmental impact report from UCI Prof. Emeritus Richard MacMillen, one of the plaintiffs in the case, in which he complained about the proposed incursion of the tollway into the preserve. Clearly, tollway attorneys argued, this showed that the public was aware of the problem before the land sale, and that the corridor agency responded in writing that there was no significant environmental impact.

But Judge Smith said that a different standard should be used--one that takes into account that the preserve itself was set up as specific mitigation for environmental damage elsewhere. “The sale changes that, and it’s significant,” he said. “They can’t sell part of it off for a highway” without conducting a separate environmental review.

A preliminary injunction issued earlier in the case still stands, pending the judge’s final decision.

Despite campus protests, the regents approved the $10.5-million sale of 25 acres to the corridor agency last year. About 18 of the 25 acres sold are expected to be restored as a coastal sage scrub habitat. The 1.7-acre portion to be taken from the ecological preserve is the most critical biologically, environmentalists argue, and is home to the California gnatcatcher.

A week ago the same judge indicated he might require additional environmental reviews for another tollway in eastern Orange County, but later reversed himself in his written opinion and ruled on Tuesday against project opponents.