ORANGE COUNTY PERSPECTIVE : Tollway Issue: Concern for Land

Construction already has begun on part of the $1.1-billion San Joaquin Hills tollway, but the road continues to be controversial even when it is a done deal. Now, a Superior Court judge has asked some good questions about the sale of land by UC Irvine to the builders for a right of way.

The issue comes down to whether the use of sensitive land previously set aside by the university must be considered entirely on its own merits or whether it should be considered as part of a larger whole, namely the road planners’ previous assessment of the tollway’s environmental impact on the region.

Call it the case of “the floating ecological preserve,” because the planners insist that the university can, in effect, move an ecological preserve around without specifying exactly where it will be.

In a criticism of that logic last week, Judge James L. Smith argued for the narrower definition of a preserve, raising concern over the university’s failure to conduct a separate environmental review as part of its sale.

The judge has not yet issued his final ruling in the case, which pits environmentalists, students and faculty against the road planners. But Smith may have added something valuable to the lore of habitat preservation in temporarily deciding that environmental mitigation is not a recyclable commodity. That is, once land is set aside to make up for development elsewhere, it cannot then be designated for some subsequent use, in this case a tollway, without due consideration of the new impact.

In fact, habitat preservation in return for development increasingly has gained currency, and properly so. But the judge appears to have advanced state-of-the-art thinking about such practices in suggesting that set-asides, once agreed to, cannot be reopened without new study. That seems fair enough. If the judge does come down on the the side of further review, such a ruling would not improperly penalize planners, since it would require only several months to complete.

Smith showed genuine concern for the land in the coastal hills of Orange County.