North Shore Development/Oxnard vs. the Ventura Marsh Milkvetch

March 1999

The Final Environmental Impact Report (FEIR) on the North Shore at Mandalay Bay (near Oxnard Shores) went out for public review and the Oxnard Planning Commission will hear public comments on 1 April 1999.  The project would surround the only existing population of the Ventura Marsh Milkvetch (Astragalus pycnostachyus ssp. lanosissimus), and endangered plant species (see related story about rediscover of this plant) with expensive houses.  CNPS is working with the California Department of Fish and Game (CDFG) and the developer to see if there are ways to better protect this endangered plant onsite, as well as establish additional populations at other nearby locations.  Unfortunately, CNPS believes the EIR prepared for this development is seriously flawed in that it did not properly identify and evaluate sensitive botanical resources present onsite, including coastal dune habitats, wetlands, and impacts to the Ventura Marsh Milkvetch.  CNPS comments on the Draft EIR can be downloaded here. CNPS comments on the FEIR can be downloaded here. An aerial photograph of the project site and surrounding area is shown below. 

    

 

June 1999

The FEIR on the North Shore development was certified as adequate under the California Environmental Quality Act (CEQA) by the Oxnard Planning Commission public hearing on 1 April 1999.  The project would surround the only existing population of the Ventura Marsh Milkvetch, an endangered plant species, with expensive houses.  The Planning Commissioners gave CNPS or other commenters only three minutes to present their cases to protect the Ventura Marsh Milkvetch, not anywhere enough time to even really begin to describe all the ways the EIR (prepared by Impact Sciences) failed to adequately address impacts the project would have on sensitive botanical resources.  CNPS believes the EIR prepared for this development is seriously flawed in that it did not properly identify and evaluate sensitive botanical resources present onsite, including coastal dune habitats, wetlands, and impacts to the Ventura Marsh Milkvetch.  Therefore, the Environmental Defense Center (EDC) has (on behalf of CNPS) appealed the certification to the Oxnard City Council.  CNPS will also appeal the project before the California Coastal Commission.  If all that fails, CNPS will likely file suit against the City of Oxnard on the EIR.  CNPS will not stand by and watch the Ventura Marsh Milkvetch go extinct at the hands of the City of Oxnard and Orange County developers just to build a gated community.

 

August 1999

Things don’t look good for the continued existence for the Ventura Marsh Milkvetch.  In July the Oxnard City Council ignored CNPS’ concerns about the impacts the proposed North Shore development would have on this endangered species, which only occurs in a small area of the 91-acre property.  The developer brought in at the very last minute an agreement with CDFG to provide some mitigation for the plant and the loss of coastal dune scrub and willow wetland habitats.  However, CNPS believes this mitigation is seriously inadequate to protect against the Ventura Marsh Milkvetch from extinction, nor does it replace the dune scrub and wetland habitats.  Since this project was approved under CEQA, and it is only enforced by the public (no state agencies oversees or regulates this state law), CNPS has filed suit against the City of Oxnard for not properly identifying project-related impacts and not requiring feasible impact avoidance and/or mitigation.  In fact, the entire process implemented by the City is a joke.

The City has effectively given all decisionmaking over to the developer, and “does not care one way or the other” if the EIR is challenged in the courts (the developer must pay ALL of the City’s legal and administrative expenses related to this project).  CNPS will aggressively seek to secure adequate impact avoidance and mitigation to ensure (to the greatest extent feasible) that the Ventura Marsh Milkvetch does not go extinct as a result of an exclusive house development.  Besides the CEQA lawsuit, CNPS will argue its case with the Local Area Formation Commission (LAFCO) to prevent annexation of this property into the City of Oxnard.  CNPS will also testify before the California Coastal Commission against the City’s amendment to its Local Coastal Plan to annex this project into the City.

All these actions do cost CNPS money.  Fortunately, a generous donation has been offered to CNPS to help defray our legal costs, which are estimated to be around $5,000 (it is that low only because the Environmental Defense Center of Ventura County is representing CNPS, for which we only pay for their expenses).  Regardless, your donations would be greatly appreciated and well spent to protect our precious and rare plants and habitats.  If you are able, please send your check to CNPS at PO Box 5626, Ventura, CA 93005.  Contact David Magney at 805/646-6045 or president@cnpsci.org to receive up-to-the-minute information on how you can help.

August 2000

CNPS finally settled its lawsuit against the City of Oxnard and North Shore at Mandalay Bay on 17 August 2000, after a very long and tedious negotiating process.  While CNPS did not get everything we wanted, we did accomplish a lot, and got over twice as much habitat set aside onsite for the Ventura Marsh Milkvetch.  The judge on the case still needs to approve the settlement, but it is unlikely he would not accept the settlement agreement.  CNPS was able to increase the size of the onsite preserve for the Ventura Marsh Milkvetch from near 5 acres to just over 10 acres, something that the CDFG (headquarters) decided they could not get from the developer when they negotiated their agreement with the developer before the EIR was even certified.  CNPS will have guaranteed access to the preserve.  CNPS will review all mitigation plans as they are developed to ensure they are appropriate and detailed enough to reasonably get the job done.  CNPS’ legal fees will be paid by the developer (way in the future).  The City will place a conservation easement over city-owned property (about 6 acres) to the south of 5th Street, which is currently in high quality dune habitat.  We believe this is a good settlement; however, the project will still eliminate about 80 acres of restorable dune scrub and back dune swale habitat, both of which are extremely rare in Ventura County.  Some of the impacts will be mitigated; however, the mitigation plans have not yet been written, so how, when, and where is still in question.  CNPS will follow the mitigation plan development and implementation very closely.

CNPS’ arguments before LAFCO to prevent annexation of this property into the City of Oxnard fell on deaf ears, whose ears included members of the Ventura County Board of Supervisors and county City representatives, and a few others.  CNPS will also testify before the California Coastal Commission against the City’s amendment to its Local Coastal Plan to annex this project into the City, which will probably be heard in October, to ensure the botanical resources onsite are protected to the greatest extent possible.

June 2001

The North Shore development project has been somewhat idle for the last few months, waiting for Oxnard to submit their amended LCP to the Coastal Commission.  Recently, the developer has filed for bankruptcy, to keep his creditors off his back, which puts the entire project in question.  However, Ron Smith, partner and developer representative, assures everyone that it is just a simple financial maneuver he had to do to move forward with the project.  The bankruptcy raises concerns about North Shore’s ability to meet it’s mitigation obligations financially.  CNPS does have significant concerns with the city’s LCP adequacy and out-datedness, which does not provide adequate protection for sensitive resources either as it is now or would be in the future, as it leaves many sensitive habitats unprotected, or inadequately protected, from future development.  There are still some great sand dunes and their plant communities left in Oxnard, but are extremely vulnerable to the whims of Oxnard’s development ideas.  In that light, CNPS desires the LCP update to properly correct these shortcomings, and CNPS is working with EDC on that issue.  The Coastal Commission has granted a one-year extension for reviewing the City’s LCP amendment (requested by the City), which is needed before the North Shore development can move forward.

January 2002

The City of Oxnard had hoped that the Coastal Commission would hear (and approve) their request for a major amendment to the LCP to accommodate the North Shore at Mandalay upscale housing development.  However, the Coastal Commission postponed the hearing to a future date until the City and the developer provide additional data on the project.  CNPS contends that the site has several Environmentally Sensitive Habitat Areas (ESHAs) on the development site, regardless of the fact that the site had largely been significantly disturbed before the 1980s.  In fact, a small part of the disturbed area of the site is the only naturally occurring population of the endangered Ventura Marsh Milkvetch.  There are also remnants of Coastal Dune Scrub onsite adjacent to Fifth Street just east of Harbor Boulevard.  Also occurring onsite are some backdune swales dominated by Arroyo Willow, an extremely rare habitat type on the West Coast (not to mention the dune scrub).  Dr. Lawrence Hunt mentioned that he had collected the Silvery Legless Lizard in the willow scrub from the site.  This lizard is very rare, as most of its habitat has been destroyed by coastal development.  CNPS’ letter to the Coastal Commission can be downloaded from here.

May 2002

On April 12, 2002, the California Coastal Commission approved an amendment to the City of Oxnard’s LCP for the North Shore project.  The LCP amendment was adopted by Oxnard on May 14, 2002.  The amendment allows the destruction of habitat that is normally considered environmentally sensitive habitat by the Coastal Commission, including dune scrub and willow scrub, and the fill of areas considered by the Commission to be wetlands.

Under the Coastal Act, development within environmentally sensitive habitat areas (ESHAs) is generally prohibited.  In addition, coastal wetlands may be filled only for certain enumerated purposes.  Here, the Commission justified the development, modification, and destruction of ESHAs by concluding that they are not really ESHAs after all, based on the unique circumstances of the North Shore site.  The site is a former oilfield waste disposal site.  The soil is contaminated and some contaminants have migrated to shallow groundwater on the site.  The Commission thus contends that remediation of the site is necessary.  The unique circumstances cited in the determination that the sensitive habitat is not ESHA are “the degraded and dispersed nature of these plant communities on the site in conjunction with the highly contaminated soil and groundwater environment.”

In the case of wetlands, the Commission acknowledged that the areas of the site met the Commission’s wetlands criteria.  The Commission further acknowledged that the proposed wetland fill did not meet any of the allowed uses of fill enumerated in the Coastal Act.  Nonetheless, the Commission approved the fill based on a purported conflict between resource protection policies of the Coastal Act.  The conflict is based on the notion that fill of the wetlands is required to remediate the site, and remediation is necessary to prevent threats to human health and coastal resources. CNPS_Comments_on_the_North_Shore-CCC_Item

Based on CNPS’ concerns for coastal environmental resources, specifically wetlands, rare plants, and rare coastal plant communities, CNPS has filed suit against the Coastal Commission, City of Oxnard, and North Shore at Mandalay Bay to request the courts to require the Coastal Commission properly follow the policies and rules of the California Coastal Act, which prohibits destruction of ESHAs for housing developments.  See related item CNPS vs Coastal Commission on the Conservation Issues page.

December 2003

CNPS, along with the Sierra Club and Wetlands Action Network, petitioners against the City of Oxnard, North Shore developer, and the Coastal Commission, settled the lawsuit.  We had lost in Superior Court but had filed an appeal to the Appellate Court, hoping for a win.  However, we were able to agree on a significantly modified development project that doubled the size of the onsite preserve for the only natural population of the Ventura Marsh Milkvetch, and obtain an agreement to receive significant funds to conduct a feasibility study and implement restoration.  The settlement puts CNPS in charge of managing the settlement funds, other than what goes to the Environmental Defense Center and the other litigant’s legal representatives, to use for the benefit of the Ventura Marsh Milkvetch. 

Basically, the settlement provides CNPS with funds to conduct a survey of historic and other sites that the Ventura Marsh Milkvetch might be planted, so that we can have more than just one population of the endangered plant species.  Experimental populations have been planted at McGrath State Beach, Mandalay State Beach, Carpinteria Salt Marsh Preserve, and Coal Oil Point Preserve, the later two owned and operated by the University of California Reserve system.

May 2007

After receiving the first installment of the settlement funds from North Shore (the developer), CNPS looked for a suitable consultant to conduct the site assessment study mentioned above.  Finding none suitable, for the funding available, CNPS went in-house and “contracted” with the Vegetation Program to do the study.  That study was completed in April 2007.  A copy of the Habitat Assessment Study (a 1.7 MB PDF) is available here.

Now, once North Shore provides CNPS with the rest of the settlement funds, we can work to establish additional populations within the historic range of the very rare plant.

July 2011

Some time between 2007 and 2008, Ron Smith, the original developer, sells the property to Trimark-Pacific Mandalay Bay LLC.  Trimark then fires Impact Sciences from the project and hires LFR to take over, who has CNPS member, Mary Carroll on staff to work on the mitigation plan and protecting the Ventura Marsh Milkvetch.  This is very good news.  LFR is then sold to ARCADIS, a very large environmental consulting firm; who keeps Mary on staff, thank goodness.

In late 2009, the successor to North Shore at Mandalay, Trimark-Pacific Mandalay Bay LLC, defaulted on their $63.8 MILLION loan to California National Bank, and the bank foreclosed on the developer.  Then, California National Bank (CNB) went belly up as a result of the housing bubble and all the bad loans banks made related to home mortgages, and the property transferred to the FDIC.  The FDIC dispersed CNB’s assets to other banks, and U.S. Bank became the new owner of the North Shore development. 

U.S. Bank formed a subsidiary to handle all financial aspects of the North Shore property and the project, Mandalay Bay Development LLC.  Mandalay Bay Development LLC’s primary job is to get everything nice a tidy and package the project to sell to a developer/builder.  In the meantime, they kept ARCADIS onboard to keep managing the Ventura Marsh Milkvetch mitigation onsite and offsite, which is a good thing. 

In the meantime, the contamination remediation activities have moved forward, and I believe basically completed.  This means that that part of the property to be developed for houses is ready to be built on.

Mandalay Bay Development LLC is currently trying to have the first-phase final map pursuant to the approved tentative tract map approved by the City of Oxnard, which will make the property/project much more saleable.  To get CNPS paid the final amount due from the settlement agreement, Mandalay Bay Development LLC has agreed to require the balance due to be transferred to CNPS through escrow when the property sells, expected hopefully before the end of 2011.  This is great news!