A long-planned housing development in east Orange faces a new legal hurdle. The legal buzz is all about a bumble bee.
In December, the Irvine Company began site work on Orange Heights, a planned housing tract of nearly 1,200 homes on 396 acres between Jamboree Road and Highway 241 adjacent to Irvine Park.
Plans for Orange Heights have been in the works for decades, but site work — the clearing and grading of land — barely got started in December.
Now, development is paused again, at least through mid-January, as an activist group opposed to the project takes a state agency to court.
The Irvine Company agreed to pause site work until Jan. 15 after No Orange Heights, a not-for-profit group opposed to the development, sued the California Department of Fish and Wildlife over a permit the agency recently granted to the company that allowed site work to begin in the first place.
Their court date is set for Jan. 17. Judge Lon F. Hurwitz is set to hear the case.
The legal challenge pertains to the Crotch’s bumble bee, a species protected by the California Endangered Species Act.
Because the bees are known to live on the Orange Heights property, the Irvine Company had to apply to the state agency for what’s called an “incidental take permit.” Their application explains the company’s plans to mitigate harm to the bumble bee throughout construction while recognizing that the incidental killing of at least some bees is likely inevitable.
The California Department of Fish and Wildlife used its discretion to approve the Irvine Company’s plans on Dec. 12, clearing the way for the company to immediately get started on-site work. The company did exactly that — sending machinery to bulldoze native shrubbery on the hills near Irvine Regional Park on the first Monday after the permit was granted.
Joel Robinson, an Orange resident and director of No Orange Heights, stands in front of machinery clearing land for the Orange Heights development on Dec. 16, 2024. Later that day, police removed Robinson and several other protestors from the property, telling them they would be arrested if they stayed.Two days later, No Orange Heights sued the Fish and Wildlife department, arguing the agency’s permit violated the California Environmental Quality Act.
According to state law, the department has the discretion to approve incidental take permits for developments across California that might affect species protected by the California Endangered Species Act.
More than a month before rendering the permit, Shute, Mihaly & Weinberger LLP — the law firm representing No Orange Heights — sent a letter to CDFW expressing the group’s argument against the permit, but the permit was awarded.
No Orange Heights is arguing in its lawsuit that CDFW misused its discretion with this decision.
“CDFW can not comment on pending litigation,” said agency spokesperson Tim Daly on Thursday, Dec. 26.
The Irvine Company is not a defendant in the case, but is listed as a party of interest.
“We continue to master plan the much-needed new community of Orange Heights, which preserves 90% of the land as natural open space,” Irvine Company spokesperson Ryan Lilyengren said after the suit was filed on Dec. 18 in Orange County Superior Court.
Lilyengren is referring to the Irvine Company’s significant downsizing over the years of its plans for Orange Heights.
In the early 2000s, the Irvine Company planned for Orange Heights to include as many as 12,300 homes on 7,000 acres of land from Jamboree Road to Irvine Lake and beyond.
In 2005, an environmental impact report was completed for that larger project, but construction never got started due to economic headwinds around the time of the Great Recession. The project overcame a legal challenge from the Sierra Club at the time.
By 2014, the company committed to preserving more than 90% of the land it owned in Santiago Canyon and has since donated it to OC Parks. It held onto plans for nearly 1,200 homes on the westernmost 400 acres between Irvine and Peters Canyon Regional Parks where Highways 241 and 261 intersect.
Joel Robinson, founder of the nonprofit Naturalist For You, with a group of area residents who are protesting Irvine Company’s plans to build nearly 1180 homes as part of the Orange Height project in Orange, CA, on Friday, Jan. 5, 2024. The homes are slated for the undeveloped land between Irvine and Peters Canyon regional parks that is bordered by Jamboree Road on the west, Irvine Regional Park on the north and the 241 and 261 Tollroads on the east. (Photo by Jeff Gritchen, Orange County Register/SCNG)In 2016, an addendum to the original environmental impact report was completed for the updated project.
The Irvine Company also has approval from the city of Orange for the development. So, at that time, it had ostensibly jumped through all the regulatory hoops to begin work on the site.
But work on the project did not begin. Then, in 2019, a new regulatory hurdle developed.
The Crotch’s bumble bee, which burrows underground in the winter, became a candidate species for the California Endangered Species Act, entitling it to the same legal protections an endangered species would have under state law.
No Orange Heights argues in its lawsuit that CDFW granted the permit based on a 19-year-old environmental impact report and an eight-year-old addendum, neither of which purported to address the impacts of such development on species recently granted “heightened protection under state and federal law.”
Therefore, the group argues, the Orange Heights project has “new significant impacts that were not previously identified, but CDFW did not prepare a subsequent or supplemental ” environmental impact report.
“The mitigation measures adopted by CDFW are insufficient to mitigate impacts to a less significant level,” the complaint adds.
No Orange Heights is asking the court to compel CDFW to complete a new baseline study to accurately assess the impacts of the development on the land, and, particularly, the bumble bees.
“In addition to thinking about additional mitigation, which we do think is important, they need to have an updated analysis of what exists on the site and whether there would be any new or significantly increased impacts to protected or sensitive species before even taking action,” Winter King, a lawyer for No Orange Heights said about CDFW.
If a judge agrees with No Orange Heights, then CDFW might have to vacate its permit and there would need to be new environmental studies before the agency could render another decision on the Irvine Company’s take permit.
That could take a number of months or longer, King said.
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