Tuesday, September 17, 2019
Court of Appeal:
Opinion Says California Environmental Quality Act Does Not Require EIR Where State Makes Decision Not to Keep Historic Structure in Repair; Such a Decision, Pollak Writes, Is Not a ‘Project’
By a MetNews Staff Writer
The Lake Norconian Club is seen in its heyday as a resort. Div. Four of the First District Court of Appeal has affirmed the denial of a writ petition challenging the decision by the state to leave the structure in a rotting condition.
A historic preservation group has failed in its attempt to persuade the First District Court of Appeal to assist it in thwarting “demolition by neglect” of the Lake Norconian Club in Riverside County—once a lavish resort marked by hand painted ceilings and opulence, a haunt of Hollywood stars, athletes and millionaires—now owned by the state, which has opted not to maintain its facility in a state of repair.
In a decision that was not certified for publication, Div. Four on Friday affirmed a judgment of the Alameda Superior Court denying a petition for a writ of mandate to compel the Department of Corrections and Rehabilitation to undertake an environmental impact report (“EIR”) in connection with its decision to allow the main structure to rot.
The California Environmental Quality Act (“CEQA”), Justice Stuart R. Pollak wrote, requires studies and reports in connection with contemplated “projects.” The plaintiff and appellant, Lake Norconian Club Foundation, argued that the department’s “decision not to repair the historic hotel roof in the face of imminent El Niño rains in 2014” constituted a “project”—a proposition which Pollak and his colleagues rejected.
The grand opening of the resort, in the City of Norco, took place on Feb. 2, 1929 though some facilities there became available earlier—such as the Olympic quality outdoor swimming and diving pools, where splashing started on May 20, 1928.
Among those who came to use the pools for practice were Buster Crabbe, the two-time Olympic swimmer best known for his roles in movie serials both as Flash Gordon and Buck Rogers, and Esther Williams, a future movie star who intended to compete in the 1940 Olympics, which were cancelled in light of the War in Europe, to become World War II.
Movies were shot there. Will Rogers used its airfield, as did Amelia Earhart where she practiced take-offs and landings.
The likes of Buster Keaton and Babe Ruth used the golf course.
Popularity of the facility dipped as personal financers withered during the Great Depression, but celebrities continued to frequent it and hold parties there. The 200,000 square foot main building was listed on the National Register of Historic Places.
In anticipation of World War II, the Navy purchased it in late 1941, and the day after the attack on Pearl Harbor, it became the “United States Naval Hospital in Corona.” (It is now in the City of Norco, established in 1964.)
Major stars—including Clark Gable, Jack Benny, Harry James, James Cagney, Marlene Dietrich, and Gary Cooper—visited patients there.
It became a naval base. In 1962, 94 acres were given to the state of California, and were used for a drug rehabilitation center.
A prison was opened next to the former hotel, and came to be used as administrative offices for the penal institution. The prison was shut down and the once glamorous 1929 structure is now abandoned.
On Nov. 17, 2014, the foundation instituted its writ action, alleging:
“The department and its director have and continue to abuse their discretion and fail to act in the manner required by law in ongoing demolition by neglect of the Lake Norconian Club. Years of neglect and lack of security have left gaping holes in the club roof and extensive damage from wildlife and water intrusion. The willful, ongoing failure to maintain and protect the historic club is a continuous discretionary action with significant environmental impacts....The department’s de facto issuance of ongoing demolition permits is a precommitment to a CEQA project that cannot lawfully be considered for approval or implementation without first preparing and certifying an EIR to consider impacts and alternatives.”
The most pressing need pinpointed by the plaintiff is repair of the roof—but it also calls for removing and safeguarding priceless chandeliers, tapestries and paintings.
Pollak said in Friday’s opinion:
“CEQA requires a governmental agency to “prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project which they propose to carry out or approve that may have a significant effect on the environment.”
He expressed agreement with the Department of Corrections and Rehabilitation “that the failure to act is not itself an activity, even if, as may commonly be true, there are consequences, possibly including environmental consequences, resulting from the inactivity.”
When the decision was made in 2013 to close the prison adjacent to the former hotel, Pollak noted, an EIR was prepared because the closure “unquestionably was an activity and therefore a project subject to CEQA.” By contrast, he said, “the continuing failure to make repairs is no such activity.”
Alameda Superior Court Judge Brad S. Seligman denied the petition based on a statute of limitation. Pollak commented that “the issues presented by application of the statute of limitations” to a failure to make repairs “well illustrates the unworkability of deeming the inactivity a project,” asking:
“When would the limitations period commence?”
He went on to say:
“The foundation has not cited, and we have not identified, any statute that requires the department to maintain or repair the former hotel at issue in this case….Were there a statute directing the department to maintain or repair the former hotel, the failure to do so would be correctible by a writ of mandate. But absent any such statutory duty, the department’s failure to act cannot be deemed a project or challenged for noncompliance with CEQA.”
The case is Lake Norconian Club Foundation v. Department of Corrections and Rehabilitation, 2019 S.O.S. 2546.
Copyright 2019, Metropolitan News Company