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Save Atascadero lawsuit against city of Atascadero

Save Atascadero lawsuit against city of Atascadero

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INTRODUCTION With this lawsuit, Petitioner SAVE ATASCADERO (“Petitioner”), an unincorporated association, challenges the actions of Respondent CITY OF ATASCADERO (“City”) made on or about June 26, 2012 certifying an environmental impact report (“EIR”) under the California Environmental Quality Act (“CEQA”), Public Resources Code section 21000 et seq., and approving various land use and development permits and entitlements for the Del Rio Road Commercial Area Specific Plan in the City of Atascadero (“Project”). The Project applicants, proponents, and/or owners are Real Parties In Interest ENGINEERING DEVELOPMENT ASSOCIATES, INC., MONTECITO BANK & TRUST, OMNI DESIGN GROUP, INC., THE ROTTMAN GROUP, and WAL-MART STORES, INC. Petitioner contends the City’s actions violated governing provisions of the California Environmental Quality Act (“CEQA”), Public Resource Code Section 21000 et seq. and the State Planning and Zoning Law, Government Code Section 65000 et seq. As certified by the City, the Project’s EIR violated the information disclosure requirements of CEQA by failing to adequately identify, evaluate, and/or require mitigation for all direct, indirect, and cumulative environmental impacts the Project will foreseeably cause. As a result, there is no substantial evidence in the administrative record of the City’s actions to support the City’s findings that nearly all the Project’s environmental impacts will be less than significant after mitigation. Instead, substantial evidence in the record shows the Project will have several significant unmitigated environmental effects that the EIR either failed to identify, failed to evaluate adequately, or failed to mitigate where feasible. Petitioner further contends that the City’s approval actions violated the State Planning and Zoning Law, Government Code section 65000 et seq., on grounds the City’s actions are plainly inconsistent with governing land use goals and policies contained in the Atascadero General Plan and its implementing Zoning Ordinance. Petitioner therefore seeks a peremptory writ of mandate under Code of Civil Procedure sections 1094.5, and Public Resources Code section 21168 and/or 21168.5, commanding the City to set aside its certification of the EIR and approval of the Project. Petitioner further seeks a stay of the effect of the approvals during the pendency of these proceedings. Finally, Petitioner seeks an award of costs and

-1PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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attorneys fees under Code of Civil Procedure section 1021.5, together with any other relief the Court deems necessary and proper. In support whereof, Petitioner alleges: PARTIES Save Atascadero 1. Petitioner SAVE ATASCADERO is a California unincorporated association based in

Atascadero, San Luis Obispo County. SAVE ATASCADERO is comprised of organizations and individuals who share common concerns regarding poorly planned, environmentally unsustainable, and economically damaging land use and urban development practices in Atascadero. 2. SAVE ATASCADERO’s individual members include. but are not limited to. Tom

Comar, Gloria Boyd, Madeline Rothman, and Ron Rothman, all of whom are residents, electors, taxpayers, and/or property owners in the City of Atascadero. 3. SAVE ATASCADERO and its members maintain a direct and regular geographic nexus

with the City of Atascadero, and will suffer direct harm as a result of any adverse environmental and/or public health impacts caused by the Project. These members have a clear and present right to, and beneficial interest in, the City’s performance of its duties to comply with CEQA and the State Planning and Zoning Law. As Atascadero citizens, homeowners, taxpayers, workers, and/or electors, these members are within the class of persons to whom the City owes such duties. 4. By this action, SAVE ATASCADERO seeks to protect the interests of its members and

to enforce a public duty owed those members by the City. Because the claims asserted and the relief sought in this petition are broad-based and of a public as opposed to a purely private or pecuniary nature, direct participation in this litigation by individual SAVE ATASCADERO members is not necessary. 5. SAVE ATASCADERO and various of its individual members presented oral and/or

written comments in opposition to the Project prior to and/or during the public hearings culminating in the City’s June 26, 2012 approvals.

-2PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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City of Atascadero Respondent CITY OF ATASCADERO is a California General Law city situated in San

Luis Obispo County. On or around June 26, 2012, the City took action to certify the EIR an approve the Project as described herein. At all times relevant herein, the City served as the “lead agency” under CEQA responsible for evaluating the environmental impacts of the Project. Engineering Development Associates, Inc. Petitioner is informed and believes that Real Party In Interest ENGINEERING

DEVELOPMENT ASSOCIATES, INC. (“EDA, Inc.”) is a California corporation maintaining its principal place of business in San Luis Obispo, California. 8. Petitioner is informed and believes that EDA, Inc. is a proponent of the Project, and is an

applicant for and recipient of the land use approvals and entitlements challenged herein. Montecito Bank & Trust Petitioner is informed and believes that Real Party In Interest MONTECITO BANK &

TRUST (“Montecito”) is a California corporation maintaining its principal place of business in Santa Barbara, California. 10. Petitioner is informed and believes that Montecito is a proponent and co-owner of the

Project, and is a recipient and beneficiary of the land use approvals and entitlements challenged herein. Omni Design Group, Inc. Petitioner is informed and believes that Real Party In Interest OMNI DESIGN GROUP,

INC. (“Omni”) is a California corporation maintaining its principal place of business in San Luis Obispo, California. 12. Petitioner is informed and believes that Omni is a proponent of the Project, and is an

applicant for and recipient of the land use approvals and entitlements challenged herein. The Rottman Group Petitioner is informed and believes that Real Party In Interest THE ROTTMAN GROUP

(“Rottman”) is a California corporation maintaining its principal place of business in Santa Barbara, California. 14. Petitioner is informed and believes that Rottman is a proponent and co-owner of the

-3PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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Project, and is a recipient and beneficiary of the land use approvals and entitlements challenged herein. Wal-Mart Stores, Inc. 15. Petitioner is informed and believes that Real Party In Interest WAL-MART STORES,

INC. (“Walmart”) is a corporation established and operating under the laws of the State of Delaware and maintaining its principal place of business in Bentonville, Arkansas. 16. Petitioner is informed and believes that WAL-MART STORES, INC. is a co-owner and

proponent of the Project, and is an applicant for and recipient of the land use approvals and entitlements challenged herein. Does 17. Petitioner currently does not know the true names of DOES 1 through 25 inclusive, and

therefore names them by such fictitious names. Petitioner will seek leave from the court to amend this petition to reflect the true names and capacities of DOES 1 through 25 inclusive once ascertained. JURISDICTION & VENUE 18. This action is brought pursuant to Public Resources Code sections 21167, 21168, and

21168.5, and Code of Civil Procedure section 1094.5. Venue is proper in San Luis Obispo County under Code of Civil Procedure section 395. FACTUAL BACKGROUND Project Description 19. The Project is called the “Del Rio Road Commercial Area Specific Plan.” It envisions

development of two non-contiguous areas totaling approximately 39.3 acres located at the intersection of El Camino Real and Del Rio Road in the City of Atascadero. 20. The Project has two components. The first consists of a Walmart Supercenter of 129,560

square feet, together with two 5,000 square foot commercial outlots and up to 44 multi-family residential units, to be developed on approximately 26.2 acres at the southeast quadrant of the site (“Walmart component”). The second consists of approximately 120,900 square feet of various commercial and retail uses and up to 6 new dwelling units to be developed on approximately 13.1 acres at the northeast quadrant of the site (“Annex component”).

-4PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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21.

Approvals and entitlements necessary for the Project include certification of an EIR,

General Plan Amendment, Zoning Ordinance Text and Map Amendment, Specific Plan adoption, Specific Plan Master Plan of Development, Tree Removal Permits, and Subdivision via Vesting Tentative Parcel Maps. Relevant Procedural History 22. In January, 2007, Walmart applied to the City for land use entitlements for a Walmart

supercenter, but withdrew the application the following month. 23. In September, 2007, Walmart and Rottman each submitted applications for earlier

versions of the Walmart and Annex components respectively. In October, 2007, the City Council declined to process General Plan Amendments necessary for the Project. 24. In January, 2008, Walmart submitted a revised application. Processing of the application

was suspended, however, pending the outcome of a ballot measure that would, if passed, prohibit certain large scale retail uses in the City. The measure did not pass. 25. In April, 2010, after submitting and later withdrawing several revised entitlement

applications, Walmart submits a final revised application for the Walmart component of the Project. Rottman submits a final application for the Annex component that same month. 26. On or around May 13, 2010, the City released a Notice of Preparation of a single EIR that

would examine both Project components, in accordance with Public Resources Code section 21080.4. 27. On February 2, 2011 the City released a Draft EIR for the Project for a 45-day public

review and comment period. Various agencies, organizations, and individuals, including members of Petitioner, submitted oral and written comments on the Draft EIR prior to the close of the public comment period. 28. In June, 2011, City staff announced that Walmart and Rottman had been unable to reach

agreement on funding responsibilities for certain interchange improvements identified as mitigation for significant Project-related traffic impacts. The City Council thereafter directed staff to investigate alternative funding options for these mitigation measures. 29. On March 15, 2012, the City released a Partially Recirculated Draft EIR (“PRDEIR”) for

the Project, which identified new funding arrangements for the interchange improvements in question,

-5PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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as well as new alternatives to the Project. Again, various agencies, organizations, and individuals, including Petitioner and/or its individual members, submitted oral and written comments on the PRDEIR prior to the close of the public comment period. Some of the comments stated, inter alia, that the PRDEIR had failed to adequately identify, evaluate, and mitigate all potentially significant impacts on the environment. 30. On May 25, 2012, the City released a Final EIR that purported to respond to public and

agency comments on the PRDEIR. 31. On June 5, 2012, the City’s Planning Commission conducted a public hearing on the

Final EIR and the Project. Various individuals and organizations, including Petitioner and certain of its individual members, submitted written and/or oral objections to the proposed certification of the Final EIR and approval of the Project. After closing the public hearing, a majority of the Planning Commission voted to recommend that the City Council certify the EIR and approve the Project. 32. On June 26, 2012, the City Council conducted a public hearing on the Final EIR and

Project. Again, various individuals and organizations, including Petitioner and certain of its individual members, submitted written and/or oral objections to the proposed certification of the Final EIR and approval of the Project. After closing the public hearing, the City Council voted to certify the EIR and approve the Project. 33. The Project approvals adopted by the City Council consisted of: certification of the Final

EIR, including Findings of Fact, Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program under CEQA; approval of General Plan Amendment Nos. GPA 2007-0020 and GPA 2007-0021; zoning text amendment Nos. ZCH 2007-0141 and ZCH 2007-0142; Specific Plan Approval Nos. SP 2009-0003; Tree Removal Permit Nos. TRP 2009-0128 and TRP 2009-0127; Vesting Tentative Parcel Map AT 09-0073 (TPM 2009-0095); Vesting Tentative Parcel Map AT 07-0059 (TPM 2011-0098); and an amendment to the City’s the Five-Year Capital Improvement Plan (collectively referred to herein as “Project approvals”). 34. As certified, the Final EIR concluded, inter alia, that the Project would have significant

and unavoidable impacts in the areas of air quality and traffic, thereby necessitating adoption of a statement of overriding considerations under CEQA. The Final EIR concluded, and the City Council

-6PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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found, that all other potentially significant impacts would be reduced to less than significant levels with recommended mitigation measures. 35. The City timely filed and posted a “Notice of Determination” in accordance with Public

Resources Code section 21152 on July 11, 2012. FIRST CLAIM FOR RELIEF (Violations of CEQA) 36. 37. Petitioner here incorporates by reference all preceding paragraphs in their entirety. At all times relevant to this action the City was the “Lead Agency” responsible for the

review and approval of the Project under Public Resources Code section 21067. 38. CEQA requires public agencies to first identify the environmental effects of its project or

program, and then to mitigate those adverse environmental effects through the imposition of feasible mitigation measures or the analysis and selection of feasible alternatives. Public Resources Code, § 21002. CEQA requires a lead agency to establish that either: (1) impacts will not have a significant effect on the environment or (2) the agency has adopted findings that all significant environmental effects have been avoided or mitigated to the extent feasible, and any remaining effects found to be unavoidable are acceptable due to specific overriding economic, social, technological, or other benefits. 39. An EIR must include a finite, stable, accurate and meaningful project description. 14

C.C.R., § 15124. An EIR must include a description of the physical environmental conditions in the vicinity of the project as they existed at the time the notice of preparation is published, with particular focus on the regional setting. 14 C.C.R., § 15125. An EIR must identify and evaluate the direct, indirect, and cumulative environmental impacts of all phases of a project. 14 C.C.R., § 15126. The discussion must include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use of the land (including commercial and residential development), health and safety problems caused by the physical changes, and other aspects of the resource base such as water, historical resources, scenic quality, and public services. 14 C.C.R., § 15126.2. 40. A lead agency must describe and evaluate feasible measures for minimizing or avoiding a

project’s direct, indirect, and cumulative impacts on the environment. Public Resources Code, §

-7PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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21100(b)(3); 14 C.C.R., § 15126.4. A lead agency may not improperly defer the formulation of mitigation measures until a future time. 14 C.C.R., § 15126.4. 41. A lead agency must identify all significant effects on the environment caused by a

proposed project that cannot be avoided. Public Resources Code, § 21100(b)(2)(A). A lead agency must also provide information in the record to justify rejecting mitigation measures as infeasible based on economic, social, or housing reasons. 14 C.C.R., § 15131(c). 42. An EIR must describe a range of reasonable alternatives to the project, or to the location

of the project, that would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and must evaluate the comparative merits of the alternatives. 14 C.C.R., § 15126.6. An EIR must also include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. Id. 43. An EIR is required to contain a statement briefly indicating the reasons for determining

that various effects on the environment were not significant and consequently were not discussed in detail in the EIR. Public Resources Code, § 21100(c). 44. A lead agency must provide good faith, reasoned analysis in response to comments on a

draft EIR. 14 C.C.R., § 15088(c). The Final EIR must address recommendations and objections raised in comments in detail, giving reasons why they were not accepted. Id. Specific responses are required to comments raising specific questions about significant issues. 45. A lead agency may not approve a project for which an EIR identifies a significant

environmental impact unless the impact has been mitigated or avoided by changes in the project, or unless the agency specifically finds that overriding benefits outweigh the significant effects on the environment. Public Resources Code, § 21081. Inadequate Analysis and Mitigation of Significant Impacts 46. The EIR for this Project fails to adequately disclose and/or evaluate all of the Project’s

significant direct, indirect, and cumulative impacts, including impacts on: aesthetics, agricultural resources, air quality, human health, global climate change, biological resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources,

-8PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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noise, population and housing, public services, recreation, transportation and traffic, utilities, and urban decay, in violation of the information disclosure provisions of CEQA. 47. The City therefore prejudicially abused its discretion in certifying the EIR by failing to

proceed in the manner required by CEQA, and by adopting findings that are not supported by substantial evidence in the record. Failure To Require All Feasible Mitigation Measures 48. An EIR must describe, evaluate, and require feasible measures for minimizing or

avoiding a project’s direct, indirect, and cumulative impacts on the environment. 14 C.C.R. § 15126.4. 49. The EIR for this Project fails to describe, evaluate, and require all reasonable, feasible

mitigation measures for the Project’s direct, indirect, and cumulative impacts, including impacts on air quality, human health, global climate change, noise, transportation and traffic, and urban decay. 50. The City therefore prejudicially abused its discretion in certifying the EIR by failing to

proceed in the manner required by CEQA, and by adopting findings that are not supported by substantial evidence in the record. Failure To Respond Adequately To Comments On Draft EIR 51. A lead agency must evaluate comments on environmental issues received from persons

who reviewed a Draft EIR during the public comment period, and must prepare a written response. 14 C.C.R. § 15088(a). The written response must describe the disposition of significant environmental issues raised. Id. at subd. (c). In particular, the major environmental issues raised when the lead agency’s position is at variance with recommendations and objections raised in the comments must be addressed in detail, giving reasons why specific comments and suggestions were not accepted. Id. There must be good faith, reasoned analysis in response; conclusory statements unsupported by factual information will not suffice. Id.; see Berkeley Keep Jets Over The Bay Committee v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344. 52. The City here failed to provide a detailed, written, good faith, reasoned analysis in

response to comments received on the Draft EIR during the public comment period from individuals and responsible agencies, and failed to give adequate reasons why specific comments and suggestions were not accepted. Instead, the City merely gave conclusory statements unsupported by factual information.

-9PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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53.

The City therefore prejudicially abused its discretion in certifying the EIR by failing to

proceed in the manner required by CEQA. Unsupported Findings And Statement Of Overriding Considerations 54. Under Public Resources Code section 21081(b), an agency may not approve a project

with significant unavoidable impacts unless it finds, based on substantial evidence, that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment. 55. The EIR for this Project identifies impacts as unavoidably significant, but the City found

these impacts acceptable and adopted a statement of overriding considerations. 56. There is no substantial evidence in the record to support the statement of overriding

considerations, and the statement itself is inadequately supported by findings. There is substantial evidence in the record that disproves the statement. 57. The City therefore prejudicially abused its discretion in certifying the EIR by failing to

proceed in the manner required by CEQA, and by adopting findings that are not supported by substantial evidence in the record. SECOND CLAIM FOR RELIEF (Violations of State Planning And Zoning Law) 58. 59. Petitioner here incorporates by reference all preceding paragraphs in their entirety. Under the State Planning and Zoning Law, Government Code section 65000 et seq., a

local public agency may entitle a proposed land use only if the land use is consistent with the goals, policies, and objectives contained in a valid, current, internally consistent General Plan, and with all applicable duly adopted zoning ordinances. 60. The Project is inconsistent and incompatible with applicable goals, policies and

objectives of the Atascadero General Plan and its implementing Zoning Ordinance. 61. The City therefore abused its discretion by failing to proceed in the manner required by

the State Planning and Zoning Law by adopting findings of General Plan and Zoning Ordinance consistency that are not supported by the evidence.

- 10 PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66. 65. 64. 62.

EXHAUSTION OF ADMINISTRATIVE REMEDIES This action is brought consistent with the requirements of Public Resources Code section

21177 and Code of Civil Procedure section 1094.5. Petitioner objected to the City’s approval of the Project orally or in writing during the public comment period provided by CEQA, and/or prior to the close of the public hearing on the Project before the issuance of the Notice of Determination. Petitioner, its members, and/or other agencies, organizations and individuals raised or affirmed each of the legal deficiencies asserted in this petition orally or in writing during the public comment provided by CEQA, or prior to the close of the public hearing on the project before the issuance of the Notice of Determination. 63. Petitioner has performed all conditions precedent to filing this action by complying with

the requirements of Public Resources Code section 21167.5 in serving notice of the commencement of this action on August 9, 2012. INADEQUATE REMEDY AT LAW Petitioner declares that it has no plain, speedy, and adequate remedy in the ordinary

course of law for the improper action of the City. NEWLY PRODUCED EVIDENCE In accord with Code of Civil Procedure section 1094.5(e), Petitioner may, prior to or

during the hearing on this petition, offer additional relevant evidence that could not, in the exercise of reasonable diligence, have been produced at the administrative hearing. ATTORNEYS FEES Petitioner is entitled to recover attorneys’ fees as provided under Code of Civil Procedure

section 1021.5 if they prevail in this action and the Court finds that a significant benefit has been conferred on the general public or a large class of persons, and that the necessity and burden of private enforcement is such as to make an award of fees appropriate. PRAYER WHEREFORE, Petitioner prays for entry of judgment as follows: 1. For a peremptory writ of mandate directing the City:

- 11 PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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(a)

to set aside its actions taken on or about June 26, 2012 certifying an EIR for the Project

under CEQA; and (b) to set aside its actions taken on or about June 26, 2012 adopting the Project approvals

identified herein; and (c) 2. proceeding. 3. For a preliminary and permanent injunction directing the City to cease and refrain from to comply fully with in any subsequent action or actions taken to approve the Project. For an order staying the effect of the City’s actions pending the outcome of this

engaging in any action or issuing any land use approvals in reliance upon the entitlements challenged herein until the City takes any necessary action to bring its actions into compliance with CEQA. 4. 5. 6. For costs of suit. For an award of attorneys’ fees. For other legal or equitable relief that the court deems just and proper. Respectfully submitted, M. R. WOLFE AND ASSOCIATES, P.C.

Dated: August 9, 2012

By:____________________________ Mark R. Wolfe John H. Farrow Attorneys for Petitioner

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- 12 PETITION FOR WRIT OF MANDATE Save Atascadero v. City of Atascadero

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