The lawsuit brought by the Santa Clara Valley Audubon Society against the City of Morgan Hill’s failure to protect burrowing owl habitat was settled out of court Wednesday.
“We actually put the action on hold,” said City Attorney Helene Leichter Thursday. “We agreed to adopt the burrowing owl mitigation plan and will consider changing the policy of disking and having the property mowed instead.”
The City of San Jose follows the mow-not-disc policy, Leichter said.
As part of the settlement, the city also agreed to pay the society’s legal fees of $10,000.
Leichter said the city settled instead of going to court because of “time and cost”.
“It would have cost between $50,000 and $70,000 to defend the case and we were going to adopt the policy anyway,” she said. “I still firmly believe we would have won at least one cause of action,” she said, “since they waited way too late to file.”
Leichter said she understands society director Craig Breon’s point in pushing the lawsuit. “We did wait too long,” she said.
In the suit, the society alleged that the city had constantly dragged its feet in devising a long-term plan to mitigate the loss of western burrowing owl habitat caused by the city’s $147 million Ojo de Agua Community Redevelopment Plan, and has not adequately followed interim environmental measures put in place until the long-range document can be completed.
The lawsuit, filed March 19 in Santa Clara County Superior Court, asked the court to force the city and its Redevelopment Agency to either finish performing the mitigation measures or else explain why it had not done so.
“The city has done absolutely nothing unless threatened with a lawsuit ...” despite several attempts to work cooperatively, said Breon, the society’s executive director.
Leichter said when the suit was filed that the city’s policy is to hire a biologist to survey land slated for development and advise the city how much to mitigate. The developer then enters into an agreement with the state Fish and Game Department and is given a choice of setting aside land for potential owl habitat or contributing to a fund.
While Fish and Game has approved of the fund alternative, Audubon contends the mitigation must include habitat, Leichter said.
“We are going back to do an audit” to give people assurance that the city has gone through the proper process, she said. As of Thursday the audit - a lengthy procedure, Leichter said - had not been completed.
Staff Writer Jon Jeisel contributed to this story