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Roundabout Lawsuit (file 1) - Petitioner's Opening Brief

Roundabout Lawsuit (file 1) - Petitioner's Opening Brief

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Friends of Historic Hangtown v. City of Placerville
Friends of Historic Hangtown v. City of Placerville

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Rachel Mansfi eld-Howlett/SBN 24 8 8 09 PR.OVENCHE,R & FLATT, LLP 823 Sonoma Avenue Santa Rosa, CA 95404 7 07 .284.23 80, fax 7 01'284'2381

il U EIil DE OE

ll, JUL I i 2011 lU
L/-4"/ A4"*--

5 6 1

Attorney for Petitioner
SUPERTOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF EL DORADO
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FPJE}.TD S OF

IIiSTORIC iiA}'iGTO-WN,

Case

No. PC-20i i0145

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V.
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Petitioner;

PETITIOI\ER'S OPENING BRTEF IN SUPPORT OF WRIT OF MANDAMUS
alifornia Environmental Quality Act

CITY OF PLACERVILLE et' al,
ResPondents;
C

[cEQA]
Hearing Date: August 26,2017 Time: 9:00 a'm. Deparlment:9 Honorable Nelson K. Brooks

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1B

CITY OF PLACERVILLE et al',
Real PartY in Interest'

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--*--F.itloner's Op**S

El Dorado Superior Court Case No' PC-20110145

Brief in Support of Writ of Mandamus

1 2

TABLE OF CONTENITS
Table of Authorities

3

Introduction.'.......' Statement of Facts

:lt
el
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I

Project Description and Locaie Environmental Review Process

Project Approval """"""' Scope und Stundard of Review Writ of Mandamus """"

"""""""'iii """""""""' 1 """"""""""2 """""""""'2 """"""""" 3 """"""'6

I. Violations of CEQA A. CEQA and the EIR PROCESS to
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'l ,l Discussion......'..'-..
I

California Environmentai Quality

""""""" 5 """""""' 6 Act (CEQA)..'..""" " """""" 7 """""""""'7

"""""""'7
E

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i.

The '"FartArgument" Standard of Review""""""""""'

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2.EvidenceNeededtoSupporta,,FaIrArgument,,....,......9 """""' 10 3. Mitigation Monitoring and Reporting B. A Fair irgument Requirls preparation of an Environmental
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""""""" Impact RJport (EIR)"""""""" """""""" 11 1. Traffic Impacts'. a. The MND failed to consider the Project's potentiaito ,to.,-.n traffic conditions and the irehr & Peers traffic study failed to study a """ 11 comprehensive area """" b. The MND failed to consider traffic impacts resulting from road and lane closures during """' 13 constru&ion and demolition""""' 15 Alternatives to the Four-Legged Roundabout """""""
2. Parking

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"""""""'17 In'.pacts """"""""' 18 Indirect Impacts 20 3. Safety Impacts of Roundabouts"" """"""""" """"22 4. Toxic ImPacts """"""""23 5. Biological Impacts.'.-".."" """"""""'23 a. Impacts to Trees

b. Impacts to Sensitive Habitat """"" """""""""23 """"'24 5. Visual and Aesthetic Impacts """"""""25 7. Impacts to Historic Resources""""' a. Identification of Historic Resources """""' ""'26 """""""27 b. Clay Street Bridge

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of Contents and Table of Authorities

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"""""""" Lincoln Highway ""' 30 d. Hangtown C.eet Retaining Wall RetentionandAdaptiveReuseAlternatives........'.....'..31. """""""""' 3L e. Druid Monument """""" """""""' 32 B. Growth Inducing Impacts g.Inconsistenry*in,q.,"uPlansandPolicies...............,..33
c.

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Conclusion

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ftblt "f C"ntents andTable of Authorities

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TABLE OF AUTHORITIES
Page

State Cases
lt/Lonterey (200a) Architectural Heritage Assn' u' County of

4

722Cal.App.4*
5 6
1

1095.'.."" """"

"8',25',28

Comrnission (2000) Araia Enterprises a. south valley Planning 101 Cai.App'4'n 1333

"""""24

8

BakersfieldCitizensforLocalControla,CityofBakers.fteld(200a) """9' 78' 19 124 Cal.APP. 4th 1184
Bowman a. CitY of BerkeleY (2004)

9

l0
11

(1985) of Bishop Area a' County of Inyo Citizens Assn. for Sensible Deaelopment

722 Cal.ApP'4'h 572"""""

""""""'
"""

9

I2
13
L4

lTzCaI.APP'3d1S1
(1988) Citizens of Goletn Valley a' Board of Superaisors

10

15

197 Cal.APP.3d 1167 """" (1'990) Citizens of Goteta Valtey u' Boqrd of Superaisors
52 Cal.APP.3d

31

I6
I1
1B

553'

""""7
""""""'16

state llniaersity (2006) City of Marina a. Board of Trustees of the California 39 Cat.4th
Communities for
Resources Agency (2002) a Better Enaironment a. California 32

341

19 20 2L 22 23
24
atr ZJ

103 Cai'App'4'h

98""""""

"""'8'

City of Richmond (2010) Communities for a Better Enaironment a'
184 Cat.

App.

4th70"""
I'Jo'

"'1'0'22'23

County Sanitation District

2 a' County of Kern (2005)

127 Cal.ApP'4'h 1544""""
F

"""""'26
a

ederation of Hillside and Canyon Associations

(2000) ' City of Los Angeles

83 Cal.App.4th Friends of

t252"""" 988"""""

""""""

10

26
21
2B

'8"

(1980) Street a' City of Hayward

105 Cal.App'3d

"""""'"'

8

frbk "rcoilents and Table of Authorities

111

(7972) Friends of Mammoth a' Board of Superaisors
B

(1997) Forestry and Fire Protection Friends of the Old Trees a. Dryartment of 52 Cal.APP'+e

Cal'3d

247

.--.""'

""""'7
""24

tsss

Mndre (2001) Eriends of Sierra Madre a' City of Sierra
25 Cal.4tr

165......... 1359""""
(1990)

"""25

Gentry a, CitY of Murrieta (7995)

"t 'l
-LU
I

36 Cal'App.4th

"""""'
"""""'

15

:t Laurel Heights Improaement Association
I

Kngs County Eqrm Bureau a City of Llanford 221 Cal.App.3d 692"""""
rs'

32

1r.

(1958) Regents of the l.)niaersity of Catifornia
6 Cal.4n 1112

721
1J
14 15 76
L"l
10

.".... """"' s96
""""

""""22

Laurel Heights Improaement Association a' (1993) Regents of the l)niaersity of California

47
League

Ca1.3d,376

"""17
Resoutces

Architectural and Historicnl for Protection of Oakland's
a. CitY of Oaktand (1997)
52 Cal.Ap p.+n

B' 9', 28

(1990) Leonoff a. Monterey County Bd' of Superaisors

79 20
21-

222 CaI.APP.3d 1337

15

Santa Cruz (2005) LightLtouse Field Beach Rescue a' City of

131 Cal'App.4il' 1170 """"

"""""'

16

22 ZJ
24

City of Los Angeles (1997) Los Angeles l.)nified school District a.
58 Cal.App.4th

1019""""

""""""32

Commission (1997) Mountain Lion Foundation a. Fish and Gnme 16 Cal.4ft 105

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2'7

.........
Regents of UC (1978)

""""7
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Mount Sutro Defense Committee a' 77 CaI.APP.3d 20...

28

of Contents andTable of Authorities

lv

L

and Game Commission (7994) I,{nturql Resources Defense Council a. Fish

2

28 Cal.APP.+m

11-0+

"""'

9

3

l{o Oil,lnc. a' City of Los Angeles (7974)
13 Cal'3d 68

.'."""" 3g5""""" 872""""" 556"""""

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a' Montectio water Dist' (200+) ocean viezu Estates Homeowners Assn',Inc.
116

Cai.App. th

""'10' 24

1\l

oroEinoGoldMiningCorporationa.CountyofElDorado(L990)
225 CaI.ApP.3d 58 Cal'App.4th
Diego (1998) Band of Mission Indians a. County of san

""""'

8'

9

BI pala

,l
I

""""""'

8

(2000) 10 planning and Conseraation League a. Depnrtment of Water Resources
I

11

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water Agency (2004) 12l protect the Historic Amador waterways a' Amador
L3
I

83 Cai.AP P.+&

8OZ """"

""""'7 """"" 33

116 Cal. APP'4* 1099

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a' City of Encinitas (1994) Quail Botanical Gardens Foundation 29 CaI.APP. h 1.597 a' County of stanislaus (1996) san loaquin Raptorl wildlife Rescue Center """"""" 8 42 Cal.App.4th 608""""" (1992) Sierrn Club a' County of Sonoma
6 Cal.APP .46

tg07 144""""" 182"""""
986"""""

""""'

B

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of Stanislaus (7995) Stanislaus Audubon Society,Inc', a' County
-33

Cal=App.4th

""'B' 9' 32

2I
22 23
24

of stanislaus (1996) stanislaus I'Jaturnl Heritage Project a. county

48 Cal.App'4th
Steaens o.

""""""72
17

City of Glendale (1981')

125 Cal.APP.3d

25 26
21
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(1988) Sundstrom a' County of Mendocino
2A7 Cal-APP.3d 296 """""

(2004) The Pocket Protectors a. City of Sacramento 124 Cal.APp'4'n

903.""""'

"B' 24' 33

f"bk

"f

Contents and Table of Authorities

Valley Adaocates a. City of Eresno (2008)
160 Cai.App.ath

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$$

California Code of Civil Procedure

1094.5
California Public Resources Code
$$

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california Code of Regulations, Title
15000 et

14 (CEQA Guidelines) ss

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seq. 1s003(a) 1s003(f) 15064(e)
Taru of Contents andTable
of Authorities

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10 11 72 13 74 15

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Appendix G, section

IV(a-f) Appendix G, section IX(b) Appendix G, section XV
Evidence Code
720
$

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of Contents and Table of Authorities

vii

Introduction
Friends of Historic Hangtown, consisting of longtime community members and bring business owners who deeply appreciate and enjoy the historic character of Placerville, this mandamus action in the public interest to enforce mandatory environmental laws its protecting the Piacerville environs and El Dorado County. The City prejudicially abused discretion and failed to act in the manner required by law when it approved the Ciay Replacement Street/ Ced.ar Ravine Realignment and Clay Street Bridge at Hangtown Creek
Project ("Project", hereafter) on the basis of an inadequate and incomplete Initial Study i Miti gate d Ne gative Declaration (IS / MND)'1 The project entails the demolition of the Clay Street Bridge at Hangtown Creek,
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a relocation of the national register eligrble historic Druid Monument, the elimination of critical handicapped-accessible viewing area overlooking Hangtown Creek, removal of a downtown parking lot, and removal of numerous mature native trees and shrubs in

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acknowledged sensitive habitats.
The Catifornia Environmental Quality Act protects ali aspects of the environment, including residential d.evelopment in urban areas. (E.g., Public Resources Code $ 21000') The the Town has violated CEeA's substantive mandate to analyze the environmental impacts of project without complying with CEeA because the adminjstrative record contains substantial evidence to support a fair argument that the project may result in significant environmental and impacts relating to aesthetics, biology, hazardous substances, historic and cultural, traffic, inconsistencies with area policies and plans. The legal test for preparation of an EIR rather than a MND is whether the record contains any subslantial evidence-defined by CEQA as any facts or reasonable assumptions/expert opinions based on facts-supporting a"fanr argument" that the project and mayhavea significant environmental impact. The "fair argument" legal test is abundantlv by numerous easily met here. Approval of the Project was opposed on environmental grounds

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community members, local business owners, and the Office of Historic Preservation' At the hearing on the merits of the Petition, this Court's peremptory writ will be set aside of requested to require the Town's full compliance with CEQA ais-a-uis vacation and the MND and the Project approvals, ar,d.preparation of an EiR that considers potentially impacts feasible alternatives and mitigation measures that could avoid or minimize significant
Project on the environment. Petitioners look to the Court for the relief ptayed, otherwise the

t p"tition". cites to the certified administrative record of proceedings iodged with the Court by the Ci of Placerville in the body of this briel as AR [VOLUME]: [PAGE]'
El Dorado Superior Court Case No' PC-20110145

Petitioner's Opening Brief in Support of Writ of Mandamus

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will proceed with significant irreparable and ireversible environmental impacts to the
Placerville environs. The City has the ability to correct its violations of law but has failed and refused to do so.

Staternent of Facts
Project Description and Locale
The Project is d.escribed as a realignment of Clay Skeet to intersect Main Street at a fourlegged intersection with Cedar Ravine, and to construct a roundabout at the intersection of

Main Street/Clay Street/Cedar Ravine; demolition of the Clay Street bridge at Hangtown Creek; conskuction of a wider, two-lane bridge east of the existing bridge; extension of the El Dorado Trail from the existing terminus point at Clay Street to the newly proposed
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construction of the Bedford Avenue pedesh'ian over-crossing at US Highway 50; and relocation of the historic 15-foot tali Druid Monument on a granite foundation to the center of ihe rounciabout interseciion. (AR1:Z 9,7i, i3, i5.) The proposeci bridge wouici be 42 to 45 feei

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wide, the efsting bridge is 19 feet wide. (AR3:849; 1,3:3644;76:4482 [width of the proposed bridge is variously described with conflicting widths.l') The stated. purpose of the Project is to improve vehicle circulation and safety while provid ing an enhanced pedestrian-friendiy downtown environment. (AI2322') Hangtown Creek flows through the Project area and the Cedar Ravine drainage joins Hangtown Creek at the Clay Skeet Bridge. (AR1:12.) Cedar Ravine drainage empties into

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Hangotwn Creek via a cuivert in the south abutrnent of the efsting bridge. The Cedar Ravine drainage culvert outlet has not yet been designed. (AR1:10, 29.) The Project area includes public right-of-way, state-owned land, and privately owned parcels. (AR1:7.) Highway 50 is a state-designated scenic highway. (AR3:885.) Realignment of Clay Street would eliminate a handicapped-accessible viewing area overlooking Hangtown
Creek and result in the removal of numerous mafure native trees and shrubs. (AR1:10, 29.) The realignment would result in the loss of 34-36 off street parking sPaces in the Ivy House

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parking lot. (AR1:10, 7I,169.) The City proposes
replacement
p

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combination of possible new locations for

arking. (AR1

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1- 72, 1,69 -17 0 ; 2:387.)

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The Project entails Federal Highway Administration Highway Bridge Program funding approval, Ar*y Co.p of Engineers Section 404 CWA Nationwide Permi! Deparhnent of Fish

Afteration Agreemen! State Water Resources Control Board Genera1 Construction Activity Storm Water Permit, Regional Water Quality Controi Board National Pollutant Discharge Elimination System permi! and Section 401 CWA Water Quality
and, Game 1602 Streambed
El Dorado Superior Court Case No. PC-20110145

Petitioner's Opening Brief in Support of Writ of Mandamus

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Certification. (AR1 :17') Environmental Review Process under The proposed Project is one of the first Projects to receive environmental review (AR2:328, 502-503') The the City of Placerville Main Street Streetscape Development Plan' development plan was finalized in 2006. (Source of funding explained AR2:503-504') August 2010, The Initial studyi Mitigated Negative Declaration (ISi MND) published in biological found potentiai environmental impacts in the areas of transportation/ circulatioo of potential resources, cultural and historic resources, exposure of people to existing sources
Sensitive health hazards, and aest6etics, but claims all impacts are mitigated to insignificance' natura-l communities in the Project area include riparian forest, montane hardwood-conifer forest and Hangtown Creek. (AR1:7-38.) The cover page of the IS does not list the
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environmental f actors potentially affected' (AR1 17')
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The IS/MND relies on the Fehr & Peers 2009 trafhc sf';d;'for

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parkjng and

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circuiation analysis. (AR2:414- 415;3:617;70:2973-2993ltrafftc studyl') The study analyzed Clay Street existing and future conditions for just two intersections in Placerville, Main Street/ Street and Main Sh-eet/Cedar Ravine. (AR10:2976.) The study noted the Clay street/Main and Los C intersection currently operates at 1evel of service (Los) F during the PM peakhour
to operate at LOS at the AM peak hour. (AR1O:2986.) At year 2025 the intersecflon is projected Cedar Ravine F at the AM and pM peak hour. (AR1:25.) The study noted the Main Street/

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in the PM' intersection currently operates at acceptable levels, LOS A in the AM and Los c (AR10:2988.) At year 2025 the intersection continues to operate at acceptable levels' congestion (AR10:29g6.) Reconfiguration of the intersection is proposed to result in2025 traffic (AR1:25') at the Main Street/Clay Street of LOS C in the PM and LOS B in the AM' impact The loss of off-stueet public parking capacity is determined to be a significant
to be createci by the reaiignment. (AR10:25.) Additional parking places are Proposed (AR1:11-12, constructed at a combination of sites in various locations to replace lost parking2:38I, 508-516; 10:25.) in the The project would result in the perrnanent loss of sensitive natural communities project area including Riparian Forest, Montane Hardwood-Conifer Forest and Hangtown
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Project would resul Creek. (AR1:29.) 27 of58 trees are proposed for removal. (AR11:3216') The 7 in the pefinanent loss of Riparian woodland, and the loss or impairment of native kees: (AR1:29; 2:317; white alder tress, 4 incense cedars, a maple, a coast redwood andZ valley oaks' Hardwood-Conifer T7:3IZS, g276)The Project would result in the permanent loss of Montane
1 coast redwood' Forest in four Project areas, and the loss of native trees: 8 valley oks and
El Dorado Superior Court Case No' PC-20110145 - Page 3 Petitioner's Opening Brief in Support of Writ of Mandamus

creek from the (AR1:29.) The Project would also resuit in permanent impact to Hangtown (AR1:30') The IS/MND states that disturbance associated with construction of the new bridge. losses' (AR1:11') The MND the new El Dorado Trail segment would "help offset" these as mitigation' (AR1:30') No plan proposes tree replacement on another part of the Project site

for review' has been landscape plan has been developed or submitted

comprises public views The handicapped accessible overlook, planned for demolition, as being an important visual of natural habitat, trees, and Hangtown creek and are identified the kees to a new location on the resource. (AR1:35.) The City proposes transplanting some of o project as mitigation for the removal of the overiook as weli as mitigation for the destruction (AR1:35') habitat and the large existing kees contained within the overlook'

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or petroleum products There is evidence of two sources of hazardous substances and/ (AR1:32') "Based on the distance within the project area on the Ivy House Parking lot parcel. shallow depfl:r to ground-wate{' rela-tive to the project area-, th-e r-rp-gradient Locaf,on, and-the storage tanks are the former gasoline service station and the heating oil underground are anticipated to be a considered a "REC" or "recognized. environmental cond-itions" and of the storage tanks is source likely to affect the Project area. (AR1:15.) The disposition within the project area' Taber unknown. (AR1:32.) Based upon the presence of fie two RECs to encounter existing Consultants concluded that the potential for the proposed consh*uction (AR1:32') The IS/MND hazardous materiais with the project area is "generaliy moderate'" potential for underground storage proposes conducting a geophysical survey to identify the borings may be needed to tanks. (AR1:32, 33.) Based uPon this geophysical survey, soil area' (AR1-:32-33') determine the potential for soil and groundwater impacts to this monument potentially The Druid monument proposed for relocation is a historic (AR1:36-37.) A historic report was eligible for listing on the Nationar and Carifornia Registers. of the monument' (Arv:383-396') The conciucteci to evaiuate the potential impacts of relocation area' (AR1:36') IS/MND stated there were no other historical resources in the Project 19' 2070 to consider the The Planning Commission held a public hearing on October

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submitted initiat Study and Mitigated Negative Deciaration (IS/MND) und comments to staff report);2:497regarding its adequacy. (AR1:1 66-17g fstaff report]; 774-325 [attachments
submitted extensive evidence 496 [minu tes];497-s92 [transcript].) Resident sharlene McCaslin City considered four regarding the history of the Clay street Bridge. (AR2:3OO-30a.) The four-legged proposals and. selected one as their proposed Project, the development of a three-iegged roundabout. (AR1:168; 2:506.) The development proposals consisted intersection with roundabout, a four-iegged round.about, and a three- and four-legged'
El Dorado Superior Court Case No' PC-20110145

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P.titi*".',

Opening Brief in Support of Writ of Mandamus

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combination of 5 possible locations for signalization. (AR2:506.) The City reviewed a
replacement Parking' (AR1 :1 69) preservation, Friends of Historic Hangtown, and other concerned The office of Historic of the and in writing regarding the inadequacies hearing the at concerns their voiced citizens impacts in the areas of aesthetics' biology' IS/MND and the Projecf s potential environmental traffic and parking, and inconsistency cuttural and historic resources, hazardous substances, the Project' (AR2:53L-563;74:4A02with area plans, and, requested an EiR be prepared for 40Bg-40g4, 4095-40994704-; 4124-4725') 4OO2A, 4006-4007; 4050, 4052-4056; 4082-4088, the a "huge packet" of responses from Chairperson Dolly Wager stated the City had received hearing. (AM:531-532, see discussion, infra' public and that there was a rarge attendance at the

under specific CEQA violation subject headings' ) the Project and the ISi MND an 10 The city Council met on Novembe t 9,20L0to consider ,,fulr house,, of citizens -,nras in attend,ance. (AR2:32 6-33r fstaff report]; 332-397 [attachments 11 a to City Manager's to staff reportl; 3gl-403[City Manager,s report] 404-449 fattachments 12 bridge was 3:599-765ltranscript);3:642') The City stated the 2:593-598[minutes]; Reportl; 13 stream flows' (AR3:603' 605') Public functionally obsoiete and could not handle 100-year T4 Cedar Ravine/Main street works Director Randy Pesses incorrectly stated that the preservation Foundation 15 (AR3:604.) The California intersection will operate at LOS F by 2025. for local significance and urged 15 (cPF) expressed concerns the bridge had not been evaluated CpF also recommended additional L1 the City to conduct such a study. (ARr6:4724-472g.) d'uring relocation ' (Ibid') mitigation be imposed to protect the Druid monument 1B their concerns on the bases and numerous community members reiterated Friends 1-9 subject :Utnd'er environmental impact stated. (AR3:642- 779; seed.iscussion section, infra, 20 price, stated that insufficient information had been provided to the headings.) Resident, David 2I (eRs:699') Resicient shariene McCasiin public to determine what the Project comprises' the a petition stating their objections to 22 testified representi ng 66citizens who had signed, (AR3:713-778') project includ,ing unstudied impacts to curtural and historic resources' 23 tried to give the agency important )A McCasiin concurred that community members had told this is not the time to speak up'" on the Project but"atevery meeting, we were feedback 25 project was difficurt to obtain and not available until just (AR3:714.) hrformation about the
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before the hearing. (AR3:71 4-715') sometime ago when I asked- staff to Pi"yiq:ttr".'*11:i'-t:Y:19i1# the current Drrcrge/ r wa lftTff ft".it?'yflTJ"1Hf; information ' ' ' How can offsite storage location' was told the information couldn't b" f.";Jat the ,.^11-, conrinuallv #:ili'#J'J,T#ffii,.'*'*!*1", of thi, community when we are

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gri;f in Support of Writ of Mandamus

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EI Dorado Superior Court Case No' PC-201101+5

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P.titi""".k

Opening

blindfotded and one arm tied behind our backs. (AR3:715')
comments of october 19' Resident, sharlene McCaslin, stated the response to written and Reporting Plan, the 2010 was not available, nor was the draft Mitigation Monitoring monument' the design of the replacement parking exhibit, the historic report on the Druid 19th Plarrdng Commission bridge or the roundabout.In addition, the audio from the october of the Planrring Commissioners hearing was missing. (AR3:716.) Ms. McCaslin stated that one comrrrents from the told the audience that the Commission were not a110wed to consider was continued to an indefinite public that could not be verified. (AR3:71S.) The public hearing for construction of the Project date. (AR3 :762.)Resid.ent Gene Altshuler stated the time frame responded to comments had not been disciosed. (AR3:648-652.) In December 2010 the City
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received in October' (AR16:4 464-4498') Project Approval
a scant 3 page-iv4itigahon The City Councii approveci the MND ancl Project anci aciopteci as set forth by Monitoring Plan on Februa ry 8,7017making findings and determinations

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Community resolution. (AR1:4-6 ;3:766-773 [minutes]; 774-8gB [trans*ipt];14:3955-3957 ') the bases stated' (AR3:825-891'' see members, Friends, and others reiterated their concerns on discussion , infra,under specific CEQA violation headings' ) at Pacific st'i Cedar Dedicated right and left-tum lanes were proposed by the Council of the mitigaflon monitoring Ravine intersection orLly, but were not incorporated as part (AR1:25-26;2:380-382; program, nor were they evaluated in the Fehr & Peers traffic report' The City proposed various construction 3:757, BI2; 4:975-976, 927; 70:2973-2993; 77:2994-3082.) monitoring progfam' staging proposals but none were incorporated into the mitigation bridge renovation portion of (AR3:788-791.) The City estimated. the construction period of the and five to six months if the the Project to be three months if a precast bridge were to chosery bridge would still entail cast-incast-in-place bridge were to be chosen. (AR3:S20.) The precast of Determination was filed on place abutrnents and foundations. (AR3:820.) The Notice
February 23, 2011" (AR1 :1-3.)

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ScoPe and Standard of Review

Writ of Mandamus
shall determine In deciding whether to issue a writ for this cause of action, the Court abuse is proven if the whether the Town committed a prejudicial abuse of its discretion. such was not adequately Town did not proceed in the manner required by7aw, if its decision evidence in light of supported by findings, or if its findings were not supported by substantial
El Dorado Superior Court Case No' PC-Z0110145

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Opening Brief in Support of Writ of Mandamus

Code s 21168') substantial the whole record. (code of Civil Procedure s 109a.5; Pub. Res' facts, and expert opinion evidence includes "facts,reasonable assumptions predicated upon

supported by facts." (Pub. Res. Code

2IOBO,

subd.(e), 27082.2, subd'(c).)

California Environrnental Quality Act (CEQA) Resources In deciding whether the writ should issue for violations of CEQA, Public in the Court will determine whether there is any substantial evidence
Code 21000, et. seq.,the

requiring record that the project "rnay have a significant impact on the environment" added' Cal' Code preparation of an EIR. (Pub. Resources Code 521757, subd'(a), emphasis standard, discussed in detail' Regs., tlt.14,S 15064, subd. (fx1), (2).) This is the "fair argttment"
inJra.

Discussion
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I. Violations of CEQA

A. CEQA

ai-rd the EIR PROCESS

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environment CEeA must be interpreted "to afford the fullest possible protection to the
Mammotha' Board of Failure to follow CEQA's Superaisors (1972) 8 Ca1.3d 247,259; Guideline S 15003, subd'(f)') (No Oit,Inc' a' City of Los Angeles requirements "would subvert the very purPose of the Act." but also informed self(1,974) 13 Ca1.3d 68, 81.) An EiR "protects not oniy the environment (7990) 52 Cai'3d 553, 564') The EIR goverrune nt." (Citizens of Goleta Valley a. Board of Superaisors a. Department of water is both the heart ',and.soul,, of CEeA. (planning and ConserastionLeague Regulations (2000) 83 Cal.Ap p.4b Bg2, g11; GEQA Guidelines (14 California Code of

within the reasonable scope of the statutory language." (Friends

of

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18 19 20

Resources

SS 15000 et seq.) S 1s003(a).)

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CEQA When a discretionary project may have significant environmental impacts, and mitigation measures requires that the agency both identify and adopt feasible alternatives of CEQA' (E'g', Pub that accomplish most project objectives. This is the "substantive mandate"
Fish and Game Commission (1997) Resources Code SS 21002, 2r0gr; Mountain Lion Foundation a. of discretionary projects, the EIR 16 Ca1.4,h 105, 123.) To minimize the environmental impacts range of potentially feasible process is structured to provide objective analysis of a reasonable on ,,The purpose of an [EIR] is to identify the significant effects alternatves and mitigations.

indicate the manner in which the environment ... to identify alternatives to the projecf and to Code gzI002'7, subd' those significant effects can be mitigated or avoided." (Pub. Resources be achieved' (a).) Without an EI& the benefits of this essential protection of CEQA cannot

EI Dorado Superior Court Case No. PC-20110145

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Opening Brief in Support of Writ of Mandamus

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Argument" Standard of Review. CEQA requires an agency to prepare an (Pub. Resources EIR whenever a project "moy have a significant impact on the environment." Code 21151, subd.(a), emphasis added.) There is a "low threshold requirement for initial
1. The "Fair
S

preparation of an EIR [which] reflects a preference for resolving doubts in favor of (League fo environmental review when the question is whether any such review is warranted." protection of Oaktand's Architectural Historical Resources a. City of Oaktand (7997) 52 Cal'APP'4*

low threshold requires preparation of an EIR rather than an MND whenever substantial evidence in the record supports a "fatr argument" that significant impacts may
g96, g}E.) The

occur, eaen if adifferent conclusion may also be well-supported or the record contains evidence to the conkary. (Eriends of "8" Street a. CiQ of Hayruard (7980) 106 Cal'App'3d 988,
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11

Mining Corporation o. County of El Dorado (7990) 225 CaJ.App'3d 872, the court S80-SS1.) InThePocketProtectorsa. City of Sacramento (2004)724CaI.App'4* 903,927,
1000-1003 ; Oro Fino Gold

stated rlrat rJre

"fa:r argu:nent" standard differs significantJy fronn the deferenfiz|

lsvisr"^'r

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normally enjoyed by agencies: If there is substantial evidence in the whoie record supportin g a fur argument that a pto;".t may have a significarrt non-mitigab-le e{fect onthe environment, the lead agency it-rji pt"pir" un EIR,Zven though it mJy also,be presented with other substantial evidelnce'that the project will no"t have a significant effect. (S 21151, subd. (a); Cal' Code n"gr., tii. i+, S rsdo 4, subd,. (fX1), (2) nI7;fr0 Oi],lupra,13 Cal.3d 68,75; Architectural HeTitage Assnl a. County of Nio,ntirey (2004 122 Cal.App.4" 1095, 7709 ; Communities,for a Bettur\naironmentr. irtiforriaReiources Agency (20(;2) 10q ga_lA?p.+\?P,I77-II2.) ,,May,, means u."uronudlepossibility. (SSi1OS2.,,1upd,.(a),21700,21751', subd. (a); Leffie for protection etc. a. iity o7 Ootioriltggz) 52 Cal.App.4* 896,904-905.) A MND is lawful only when " clearly no significant effect on the environment would occur, and ... there is no substantial evidence, in light of the whole record" that such impacts may fol1ow
project approval, taking into account adopted mitigation measures. (Pub- Resources Code of 21080 subd.(c) (emphasis added); Guideline S 15054, subd.(f).) In Sierra CIub 't. Cotmty Sonoma (Igg2) 6 Cal.App .4'h 7307, the Court held that under the fair argument standard:
$

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... the question is one of law, i,e.,'ltre sufficiency of the evidence to support a. fai.1 urgrr**.t.' fCitation.] Under this standard, deference to the agency's determination is ,,oI uppropriate and iis decision not to require-an EIR canbe uphgld-only when !h:,,, i: fo credibti ,oidrnrc to the contrary. (Id. at7377-13l8, emphasis added.)' Sierra Club holds

t

T1- h"ld"€ .f S" rra Clubwith respect to the fair argument standard has been reP-eatedly cited with a approval in riajor CEQA cases sinceits publication in1992 . (E:B:Communities for a Better Enuironment of Band Pala n'29; . iipartment oTnrrorirrJ a. California Resolurces Ag:rty (2002) tOa C?_l epp'4th98, \00, of cilyetc'.u' Protectiott Liagulfor (7998) tat.App.4th556,57U 58 Diego of sin Cointy u. Indiins Mission osklsnd (1.997) szcat.ft{.4thBg6,"g0i; San loaquin Raitorl Wildlife_Rescue Center u. County_of _Stsnislaus County 9[ ltyr.tislsus (1995) 33 eg96) 42 Cal.'App.4th 6bB, 617; Stanislaus Audubon Society,Inc., a. C^i.epp.+liuLie"oit Bo,tanic:sl Gardens Foundation u. city of Encinitas f1o2+129 CaI.App -4th7597, 1602El Dorado Superior Court Case No. PC-20110145

Petitioner's Opening Brief in Support of Writ of Mandamus

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(Id' a11316') lhatno d.eferencebe paid to an agency's decision not to require an EIR' numerous cases that have Bowman r. iiry fi-rtr irtry tzoo+\ iiCal.App.4'h s72,joined cited Sierra Ctub'wtthapproval' (1d' at 580')
above, Petitioner's 2. Evidence Needed to Suppor t a "Fair Argument". As outlined

which departs from CEeA cause of action is subject to the favorable "fair argument" standard, evidence supports the decisi the classic burden in mandate cases to prove that no substantial this portion of the brief will of the agency. Because of this favorable "fatt argament" standard, the evidence relied primarily focus on evidence suPporting the fair argument, rather than upon by the Town to support the IS/MND' evidence of In determining whether an administrative record contains the requisite
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assumptions potential environmental impacts, the Court is to consider "facts, reasonabie the fair argument' predicated upon facts, and expert opinion supported' by f acts" to support definition and (Pub. Resources code s21o}2.2,subd.(c).) The CEQA Guid.elines confirm this "enough relevant further define substantial evidence relative to the fair argument standard as argument can be made irLformation and reasonable inferences from this information that a fair reached'" (Guideline S to support a conclusion, even though other conclusions might also be Fact-based opinions of 753l4,subd.(a); League for Protection etc., supra,52 Cal'App.4e 896,905') qualify as appointed officials who have knowledge of relevant environmental matters
of stanislaus (1995) substantial evidence under cEeA. rn stanislaus Audubon society a' County 33 Cal.App. 'h 744, the Court found that it was t_l9tTo not unreasonable to presume the agenc-y relied upon uy thg cou1t1,t3 nas area' rn the evaluate development ptoposals, in light of its prior experience the data presented and to render &-r" ,.rbi""t expertise it q""$".d 1o;19i.sess ".J "t; und'isputed that members of ;pil;r th"r"orr. (See, e.g.,Eviden'ce Code 5720-) - '. Itispfar]urig and development' The the planning commission *" u*p"t 9"..9q ii matiers 9f as well as the commission members reviewed'the initia-l and revised initiat studi"t expressed d.ocument"tb". pr";ria"JUy fp*J Par$r]. Therefore, [a Cor::.missioner's] opinion during i formal hearing " ' is significant'

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(Id. at155.) In Oro Eino Gotd Mining Co:oration a. County of El Dorado (1990) 225 Ca7'App'3d
gT2, thefact-based opinions of a County supervisor were substantial evidence adequately of area residents t supportin g afatrargument . (Id. atBS3.) The Court also found lay testimony

(Id' atSB ') be substantial evidence as to matters within their personal knowledge' court stated: In Bakersfield Citizens u. Bnkersfield (200a) 124 Cal- App' 4lh7l'84, \21'7' the firsthand While these individuals are not experts in any sense of the word' their"relevant personal be dismissed as immaterial because observatio., ,horriJrrot "ur.rully
L60z; Nrt"rrl

lkt*rces

(1gg4) 28 Cal'App'4th 1104' 1116)' Defense Council a. Fish and Game Commission Page 9 EI Dorado Superior Court Case No' PC-20110145 p.titio".t't Opening Brief in Support of Writ of Mandamus

sensible observations are evidence." (quoting Citizens Ass1t for OceanVieut Estates also iee 757,173; ,a arri r. itty of tnyo ilOaSl 772tal.Aip (zoo+) 116 Cal.ApP'4th 396, 402') Homeoutners Assn.,Inc. a. Montecito\firt;; oit't.

Deuelopment of Bishop

reasonable assumptions and Here, abundant record evidence-facts an'd fact-based may have sigmficant expert opinions-supports afatt argument that the project resources, culfural and historic environmental impacts relating to aesthetics, biological with area plans and policies' and resources, traffic and parking, toxics, and inconsistencies environmental impacts and to thus, an EIR is required as a matter of law to analyze potential and project alternatives' A inform the City,s consideration and adoption of feasible mitigations and personal observation fair argument is established on the basis of record. expert evidence

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that rises to the level of substantial evidence' by numefous longtime Extensive substantial evidence in the record was submitted familiar with the environs of residents and business owners of Placerville, intimately of Historic Preservation and the Placerville, and experts from the California State Office Trust for Historic California Preservation Foundation in concert with the National Preservation.

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response to concern

Mitigation Monitoring and f{eporting PublicResourcesCodesection2l0sl"6wasadded'in1988,andamendedin1994'tn Mitigation that agencies were not en{orcing mitigation measures'
3.

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monitoring or reporting programs mustbe imposed when negative declaration or in an EIR' subject to mitigation measufes laid out in a mitigated the decision making Reporting consists of a written compliance review before

an agency approves a project

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of project oversight' Reporting is best body or staff. Monitoring is an ongoing periodic Process measures, while monitoring is best suited to readily measurabre or quantitative mitigation tc be implemented o-'rer a suited to ccrnplex rr.icgascn measures, parfi,cuiarly thcse or reporting program must be period of time. (Guideline s 15097.) Duration of the monitoring ,,designed to ensure compliance." Regarding enforcement mechanisms' GEQA does not monitoring programs' Flowevet' Federation specify methods for the enforcement of mitigation th \252tnade clear Associatinns a. CiQ of Los Angeles (2000) 83 Cal'ApP'
of Hillside and Canyon

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mechanisms must be that mitigation measures must be enforceable and enforcement incorporated into proj ect approvals' a lead agency'to defer the Regard.ing defen'al of mitigatiory case law has permitted agency: (1) undertook a complete formuration of specific mitigation measures after the lead impac! (2) proposed potential mitigation analysis of the significance of the environmental
Page 10 El Dorado Superior Court Case No' PC-20110145 p.tltl*'t Opening Brief in Support of Writ of Mandamus

(3) articulated sPecific performance criteria that measures early in the planning Process, and implemenred' (Communities would ensure that adequate mitigation measures were evenfuaily of Richmond (2010) 184 Cal.App'4th 70, 95') for n Better Enuironntent a. City of phasing/ staging during Here, as discuss ed., infra,proposed mitigation measures for the pacific/ Cedar Ravine Road construction, adding a designated right and reft rurn rane nor included in the mitigation intersection only, wefe neither d,iscussed in the MND of the potential impact for toxics monitoring program. The City failed to d.etermine the extent project approval' The proposed and improperly deferred study and mitigation to post for historic impacts to the mitigation recommended by the Carifornia Preservation Foundation

LO

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12

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Druid monument were not recorded in the mitigation monitoring Program' in the MND, and thus' even if The Project's environmental impacts were not disciosed whether the mitigation is mitigation measures were properly in place, it is not known *'e irnpact in fl:re first place' adequate since t-l',.e lrlNiD failed to adequately analy ze Report (EIR) B. A Fair Argument Requires Preparation of an Environmental Impact "to a point this record, the impacts of the Project have not been minimized
(Guidelines$15074, subd. (b);7507a') Yet, where crearryno significant effects wouid occur." record contains afatt this is the orLly lawful basis for an MND. Since the administrative impacts, a writ must issue to argument that the Project mayhavesignificant environmental statement of Facts, inf'ra,here require an EIR. In addition to the evidence presented in the incorporated by reference, the fair argument includes: Considering

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Traffic ImPacts tratfic conditio a. The MND failed to consider the Project's potential to worsen comprehensive area in its and the Fehr & p""r, i*tii. st"ay ralea t6 study a
analYsis.

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(AR10:2975') The \AID relied on The Fehr & peers kaffic st;died orily t.nro intersecrions. other than the one impact identified this analysis to determine that there are no traffic impacts Lot. (AR1:25-26.) Longtime for ross of parking caused by the demolition of the Ivy House Project could cause community members and business owners noted that the roundabout these were neither studied in the worsening conditi.ons at other surrounding intersections and are located one block away from the IVIND nor mitigated. Citizens explained that stop signs the traffic to backup and become roundabout to the west and eas! the roundabout will cause street intersections' (AR1:224; worsened at pacific street/Cedar Ravine and Bed,ford/Main
2:305.)

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cause a worsening of traffic at Resident Thorne Barrager noted the Project could
Page I I El Dorado Superior Court Case No' PC-20110145 P"titi"*.t Opening Brief in Support of Writ of Mandamus

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(AR3:660') Pacific at what is already a difficult access at Cedar Ravine. stated the City Resident Rob Cary concurred with Thorne Barrager's analysis and just.going to have ;;;;;;"lwi"g ih. pr.rrrrre at one intersectio.,i"brrt thai's " unintended consequdrr.", of ruining the level of service at other intersections" I there' th: " r.elieving of .""J"quence[s] P_t:?,ture vor;rr" got to 1";;i;;;/ tn" 'service "t fo p"iifl"if"vel of negative impact o." ull the other think you're goi"g you'll get intersectior,, *orrild-. 5t"iy tha! come back to ui with thit, and maybe some support-" (AR3:661.) stop as a way of Resident Wilbur Howe stated he was an advocate for the four-way negd to put a stop Ji""i"ii"g the backup at the other intersections' (AR3:663') "You up clear over backs that on Cedar Ravine at Pacific Street, because rfg" ""ttfiUound (AR3:663') the hi11." be a-slingshot Resident David Price stated, "The bottom line is that the project may Down to ;fE";i; g"t th" t'"Xii" thto,'gh a l1ttle- quicker, pui yhe,relt t'q:ii,q l:^-gr"? out' "" Bedford at a stop ;g"t - i J?n't think'this project has been fully thought (AR2:549.) it to the next Resident Chuck Wolf stated, "This is about speeding traffic "p, -g"$tg not even I'm intersection faster, so it can line up there. rhis is noia solution. In fact, r"t" *tl^t the lexisting traffic] probl"m is'" (AR2:559') on Bedford' Resident Robyn Raweis stated the Project would increase the traffic (AR3:666.) that would Resident Cierra Baumunk stated, "I'm also concerned about the traffic has, I think, Street Pacific ;;"k;t "n pacific S;*t. W" -Ar""a/f...*, u.g T":S9""d, ;;;tt't kaffic problem than that intersection'" (AR3:671') the impact that Resident and Business owner PatV Clark stated, 'And I agree.with rdundabout comes around irr;;;;g1; hurr" on the other intersections, because the where u.a-yot".o.ne do-n and stop atBedford and where *" g?itq.tiq::,T"t's light that the kaffic is. I prli o;tth;i ;. th. t""k. I usually have to sit through is it where and up it. And-traffic backs two or three Urr,", ilf-;l """ii*tough int6 the rouidabout' (AR3:683') go*g to go? It's going to go using the Resident Chuck wolf stated the Project would worsen future traffic' proiected level of r"*i." l" the year 2025 for this one intersection without Improwinq Ft 5#;;;rr-;,i;;t". wide tevelb{ service at2025 is misleading' (AR3:709') intersectio., t"ua, io .orlg"rdo. and delays at other intersectiohs. -,rye have not i::Lifigated is, vice }v{ayor David lv{achado stated, 'T!* one th.ing'.h,at a,right Pacific Street at Cedar Ravine. If s a nighbnare rro,i, whether you're quf*rrg just turn or a left turn; but to have a roundibouf especially at Peakp'm', that's y"1r \ave I feeding traffic onto Cedar Ravine. At least t o*, you have ih9 yi-eta q$ ;i;t"tT-'"i buys "";'t;;;ften.those intermittelfs3p:.l"l1l'^y:-'l:.u,i'iftf.t-Ti."' ilil:.],h,i"k';; the roundaboutislust sending"traffic up Cedar Ravine, Pacific Street becomes a real nightmare." (AR3:754-755') caused b Respond.ing to Vice Mulor Machado's concerns about the traffic problems the the roundabout at Cedar Ravine, Public Works Director Randy P-esses.stated -ity *""fd need a detailed. warrant analysis to determine what the soiution was' (AR3:756-758.) there's an Resident Wiliiam Steffen stated that on "sunday afternoons or whenever completely' The event downtown, Main Street lr lu.tea up all th" *uy to Broadway ;J;lh"; thut rtop" that is the Cedar Ravine three way stop sign'" " ' "If you
El Dorado Superior Court Case No. PC-20110145

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I've realign it to a 4-way stop sign every street has the oPportunity to make a turn' seen the traf Fic." (AR3:827.) that a 4Business owner and resident David Price noted that citizens ha{ requested real not was There *uy rtop or rignulir"d ir,t"rr".qglP9*9:q"utely considered' shelved. (AR3:698') was jupt it'iras \Ar\J:ovo'l dislussion, 1t discussron, lupt snelveo. that the roundabout would cause a backup. at stated Resident Robin WlUhut"t intersection." n^)t^-A ^-J -^,^,,1,{ 1,,{o- o.li-oa r11\/ nrnhlprns we have at this intgrsection." problems r,,ve eclipse any dl,,far

.

(AR3:S33-83a.) free money, Resid.ent and business owner Wilbur Howe stated " ..'Clty staff found which there ir.t;l*y and we all know that, and they've abandoned the fgur--w-a.y tt," r"Jigdoent of Clay Streef which I had no objection to'" (AR3:B 3')

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Parking Vice Mayor David Machado noted that the exit from the C & H Motor Parts get the little lot would also be exacerbated by the Project. "It's aproblem now; but again' you just bit of gaps because of the stop sign and the yield. But the roundabout, with its current
or become a circulating traffic and shooting them ofl the timing of the gas kind of goes away iot harcier to time, if you're sitl-ing in that paricing iot." (AIt3:755.) A number of community members suggested the four-legged stop alternative would the four-legged top lessen the backup effect and access impacts on traffic. The City noted that
(AR2:519; 3:636-637 ') alternaflve would also reduce tra{fic impacts but was not fully funded. the MND' A The worsening of traffic at surrounding intersections was not studied in fair argument has been established of potential traffic impacts. A four-legged alternative in reducing or should be considered to study whether this alternative is superior to the Project

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avoiding this impact. in the The City proposed adding a dedicated left and right turn lanes at Pacific late review process, but it was neither studied in the MND nor were mitigation measules As the MND incorporated into the mitigation monitoring program. (AR1:18-38;1'4:3953-3957 ') added turn failed to study this impact or the proposed mitigation it is not known how well the by this method' lanes wili perform or whether the impact can be reduced to insigmficance

b. The MND faited to consider traffic impacts resulting from road and lane
closures during construction and demolition' to the The City acknowiedged the serious potential impacts on area traffic due bidge, construct extended period of time it will take to demolish the existing roadways and MND neither the roundabout, realignment, and the proposed' bridge. (AR3:726-728') The studied not proposed adequate mitigation for this impact. Mayor' Area residents, business owners, City staff, City Councilmembers, the City very severe and the El Dorado Chamber of Commerce all recounted their experience that
El Dorado Superior Court Case No' PC-20110145

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Petitioner's Opening Brief in Support of Writ of Mandamus

h^affic impacts occurred during the last road construction project, the Main Street Overlay

Project and the Highway 50lmprovement Projecf severely impeding downtown business'
(AR3 :650, 653, 655, 67 4, 67 8, 684, 683, 7 24-7 30')

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Gene Altschuler stated the City had not determined the mitigation for decreased traffic flows during the time the Project will take to build. (AR3:650-651.) Staff Randy Pesses stated the comment about staging and traffic handling during what could be an admittedly lengthy construction period, was very good question. (AR3:653.) Pesses hypothesized [affic would move to side streets and contractors would probably leane one lane open to tu'affic during the active construction period. (Arc:663-654.)'Pesses stated the Projectwould not halse the same degree of impact as the Main Street project had caused' (AR3:653; emphasis added') Mike Korbus representing the El Dorado County Chamber of Commerce stated' "Another thing, I know tfre construction issue, that is obviously going to be a problem. Trusi'me, I know. When the Highway 50 project went through, |Y piece o property right there on Placerville Drive,"th"t" *"t^" days,$."t" were weeks when, office. It was hard for my i1"ii" hd.r"r"tly, it was veryt very hard for me to get t9 -r,rls -" (AR-?:678-) "Yes, the a bummer c'-rstomers to [et to m;z ,ifrr..Ii,nras tough. It construction ii going to be tough. I don'iknow how long it's going to take, six months, a year." (AR3:678.) Business owner and resident Patty Clark stated she had been through 9" Street conslruction project and her business had not yet futly recovered. .. ' I don't know that I .ur, ,,rririrre getting through this construition. And I say that, I have 25 employees. (AR3:683-684; tr, ilto comment by business owner Carol Aadensen

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AR3:836.) Vice Mayor Machado recalled the tr#fic impacts of the M-tl Street renovation and stated he was "... still concerned about the [current Projecf s] bridge phasing and traffic." (AR3:753.) Business owner and resident Wilbur Howe said, "we are still trying to recover from the fiasco on Main Street .. '" (AR3:844.) Resident Lisa Collins stated " ...I'm also concerned about the businesses. A project tike this is going to kill the businesses down on this end. ... When there is construcfl"? fifi" this, just like down in Folsom, businesses are-hurting down there' People are going out'of business. There's vacancies. And I really hate to see the^ L-,,oi-ocsss in our to',r*rr,, arrFLoie of 'Jieii:, go out because of th.ii project." (AR3:852.) u uDlr tcDa

The City Council considered measures to lessen this impact, such as leaving one lane open at all times, but the MND did not analyzethe impact and it is not known how well these

potential mitigations will perform. (AR3:724-729.)Fwrther, enforceable mitigation was not
irnposed. (AR1 :24-26.)

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Deferral of the creation of mitigation measures pending future sfudy cannot serve as the basis for finding a significant impact to be mitigated to a less than significant level, because mitigation remains uncertain. (Sundstrlmr. CounQ of Mendocino (1988) 202Cal.App.3d296 any [county required hydrological stud.ies as conditions of a use permi! specifying that mitigation measures suggested by the sludies would become requirements of the permif the
EI Dorado Superior Court Case No. PC-20110145

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Petitioner's Opening Brief in Support of Writ of Mandamus

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on a future study was improper']') Court held that unspecified future mitigation based after initial public review but Mitigation measures added to a negative declaration the project descriptiory must be before approval, and that do not require a change in measures are required to mitigate project recirculated for additional public review if the new of 15073'5(b); S 2106a5' See Gentry a' City impacts to a less than-significant level. (Guideline S a' Monterey County Bd', of superaisors Murrieta(1995) 36 Cal.ApP.4th 1g5g, 7389-93; Leonoff
(1990) 222 Cal-App'3d 1337, 1356-57') been studied' or shown to be mitigated Here, traffic impacts due to construction have not there must be no significant impacf not to insignificance. ln order for a MND to be adequate, of traffic impacts and the writ must very litt1e, or almost none. None. There is a fair argument

issue to require an EIR be prepared'
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11

Alternatives to the Four-Legged Roundabout there r,^/ere alternad"'es to t'he four-Legged Comrn,rity rnerr.bers expressed +J:rat
roundabout that had not been adequately considered' can definiteiy . Resident David Price stated, -I think there is an alternative and there a combination of stop signs' be a far cheaper a-lternative to pui either lights or of itl' (AR2:5a9-550') possibly realigning all of Cfuy Sttl"t-.t;t!t " portion . Resident sharlene McCaslin explained there were adaptive reuse alternatives that were not considered' (AR2:304') street could be solved by adding Robin Rawers noted that the traffic problems on clay many alternatives that couid be considered' speed bumps. (AR3:831.) staff noted there are cray skeet at Highway 50' (AR2:525') Public such as rerouting Cedar Ravine and cutting off to hord off on the roundabout or fourworks Director Randy pesses stated that it was possibre portions of the Project' (AR3:721') way projec! and still go forward with the bridge and trail

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Communitymembersalsonoted.thatthefundingfortheroundaboutcouldbeusedto build a roundabout in another location' to be put' It is , Resident Susan Rodman stated, "This is a projgct looking for a place Placerville; well' not-its' an idea that some;;C had, oh, f"f t Jt uNo, a 'o"''iuboutln ;;;J place' it's not a good place' If s not where should we stick iU ;h;#;i; good p.o1".t.It should be d'ropped'" (AR3:687') looking for a place . Michael Drobesh echoed Rodman's conceffr that this i.q a project out there to make a four-way to be p,rt-*J riut"a, "fh"t"{_pi""ty of property So hopetully' that's still on the intersection without total; kfhnf if't"t i"tfl"jiot'
table." (AR3:700.)
an alternatives analysis when The City may claim that they have alread.y conducted fourlegged intersections' Flowever' they consid.ered the three-legged roundabou! three- and
EI Dorado Superior Court Case No'

PC-2011U'+5

P"titi"*.'t

Opening Brief in Support of Writ of Mandamus

-

Page 15

10
11
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kind or depth of analysis that would be the city's analysis does not approximate the yield rather at what benefit each option would conducted in an EIR. The City primarily looked environmental perspective' (AM:525-526') than first evaluating them from a comprehensive the Cruz (2005) 131 Ca1'App'4* 170' states Lighthouse Eietd Bench Rescue a. City of Santa alternatives to review impacts, it must first consider agency may not use a net benefit analysis and impacts to the greatest extent feasible avoid ot ize minim that measures mitigati.on and the determine whether the benefits of or'y then may a statement of overrid.e be consid.ered to Thus 21031; Guid'eline SS 15091' 15093') Project outweigh the impacts. (AR2:525; PRC $ and the City un-less an EIR has been prepared play into come not do considerations overriding (city of Marina a' Board of rrustees of the California finds there are nofeasible project alternative s. State l.Iniversity (2006) 39 Cal'4th 347, 368') be conducted' at the earliest possible CEQA also notes that environmental review must Ilere' +Jre cG-rL be fairly considered' aliei:natives feasible ail trrai so iirne in the pianning process ,,the groundwork had been substantially laid before we evel took this City admits that forward". (AR2:526')

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as is that if s being presented Resident Chuck woif noted "My main concern ^tonight too far to even conslder an if the decision has alread;;;;"Je and' you've gone alternative." (AM:557-558') and stated that the Project's Commissioner Les Russell echoed Wolf's remark its own' So I'm not sure that it's Dlannine is so far advanced "it almost nu"u life of to stoP." (AR2:568') i.r "ury[htittg Council hepng that "And we had Public Works Director Randy Pesses stated at the ii tnut;qq4tlt word; but yeah, tfiaf s probablv gone forwardJ ;;;4 k "# okay-presummg the roundabout'" (AR3:618') aultltyjo ease traffic *"." ryny?"lby their Pesses confirmed that the alternative, not to (AR3:619)' City't goais and the degree t.;h.h tf;t i+:*^"y-ryt,+"t" u^uTyt im"pacts of the Projett' (AR3:519-621) ,1 -^-^^^ t}.at +L^+ r ic th-at rher r]is rh.is is a i -ar is i get sense, +.he o-.rerall sense to havehappen and self-fulfilling prophecy. This i, ,o*"*.Ltrrg that you.wanted it doesn't y;'kil*,".or,{ott,'i" fit this concept and made ali the phff;';",.i; (AR3:652') feel as if it was prope",iy thought out" '" that she and a few residents met Business owner and resident Patty Clark stated were told **" of their concerns' "We with the City in September of 201b ff,iil; deal' ;ta, tf,tit decision was pretty much a done at that time that been made? And this we here for input o, ttu, the decisio" utt"iay ...you know, are"-J##;;i;;;" about the ongoing meeting that was months ago. We were pro*ir"J1*o.t'.,ution for specs foi thJroundabout' we would be going o.,. w" ast'ed fo, tt'uffi.. w" uttt"a (AR3:680') were told we *orria r"teive those' We never djd'" a ct'i g]::T y::i E xp ert g eneral en gin e erin g c ontr was a wasre of rime to ibring up arry it stated ffJr:',rt$:'##it#';;i"q:ffiJ.?""rr", deal'" (AR3:701') is a done erns.

ffif"iffi"'^;t,h;"r';i;;;';ih"

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"-,h;tiilg

El Dorado Superior Court Case No

PC-Z0:!t0'11.-jug1lt1
of

P"ttd"*tb Op*ing

e-ief in Support

Writ of Mandamus

review is not to stop the Proiect' but to The object of requiring more in-depth environmentar of evidence to the project's approval' In light perform adequate environmental analysis prior analyze the be prepared to study and fu1ly that a fair argument can be made, an EIR should before the mitigation measures and arternatives impacts of the project and to review all feasible
Project is aPProaed.

sl

2. Parking ImPacts

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TheCityhasacknowledgedthattrafficimpactsd.uetothedemolitionofthedowntown considered a significant lot-comprising the loss of.34-S6parking spaces-is TVL IVV IIUUDL House Ivy lother sources say the impact requiring mifigation. (AR2:529 ;3:609-610,7g2.
environmental number of lost parking spaces is 43' see AR1:158') the Ivy locales to replace iost parking at The city proposes a combination of parking considerable and business owners expressed Frouse iot. (AR1:1 69-770.)Community members th'e to ieplace nJie lost parking' nor had concefn that no set locaiiorr had been selected the MND' to other rocations been examined in environmental impacts of moving the parking of mitigation caused' by the implementation (AR2:31 .) The potential environmental impacts report and were not' (Guideline $ 15126'4 measures must be evaluated, in the environmental (ax1xD),citingsteuensa.CityofGtendale(1981)125Cal'App'3d'986;LaurelHeightslmproaement (\993) 6 Cal' th 1172' II32') Assn. a. Regents of I'tniaersity of California

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'ResidentDalePiercesaid"Idon'tthinkthisproject,i:t"11ll:t:ry1::*"1'Ill" *irrit g pieces *19:':rt_* to parking, for example'

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Council. There,s a iot of (AR3:657, ttt uf to Judy Davis te"stimony aL 656-657 ') of Commerce stated "Parking' Mike Kobus representirrg rh" El Dorad'o Chamber the offsite parking have yolr-k.,o*, Some of the parking piu.",-ou.,iously, ih;t provides approximately 25 to difficulties. personalfy f r"uffyiiice tt,JSian.ii;" bit'" do", ir ii ttt"t"n"s'out do*ntown a littie 35 spaces, because what Lhii.k tLt"f
(AR3:676.) "i'oupeople don't 'L'ave +'he parking itesident and Business o-wr^L€-f Roi-, Cla:rk staied uppi6""a to.day when you don't taken care of. . .. And to ask to havethis project (nRg'ZOZ') ludicious't even have tn" p*f.i.g taken care of is have Lou's stated that th-e Project does not Business owner Lou Andersen of Lofty And years' th" street 1.9 secured parking to reptace th" doesn't even have that what really scares me is you're going .t9 pi",1 Ploj"tt parking is "1tist i'ttt going to work' And tt Thleropor"i i&5tlt secure parking V9t, all I Sver h"* a commodity on Main Street ' " ut"d o" t rin d e r s t and th at ;id.h ; ?,ry ;f; I just'don t."-(AR3:859.)l are about those options and if they reaily Resident PatV Clark stated, "I wonder truly optionsJ' (AR3:681')

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1."i;##;1,r'^ F;ott

ilffiff

i;:;r..''itr^1fil*ftfl-;ffi? i'i'a #3;is:l,i ;:ffi ;;#; i;
a

involves building one possible location, the "ThomPson v'{ay Lol"
Page 17 El Dorado Superior Court Case No' PC-20110145 support of writ of Mandamus

parking lot on

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The potential impact on prime corner lot in the Cedar Ravine Residential Historic Diskict. (AR2:315') historic resources has not been examined in the MND. the parking lot at the Another identified option, the "Ei Dorado Trail" is located at This would involve the removal northwest of the Clay Street Bridge along the El Dorado Trail. has not been analyzed' of trees adjacent to a scenic highway and this potential impact to a change of use' from Class (AR2:315.) Staff noted locating the lot there wouid also amount Resident Chuck Wolf stated that 1 bike and pedestrian trail to parking. (AR2:510 ,543.) bike trails due to the safety Carifornia state standards prohibit rocating parking rots through 'I think you guys are creating way more concerns to children and people using the bike trails' to start with'" (AM:561') problems with this thirg than any little problem that existed on the hill behind A third id.entified option, "Main Street Lot" would locate the parking excavation including the loss of C & H Auto parts and would admittedly require extensive im-pacts on the hListoric Main rnontane hard.-'ood-conifer fores! and result in possible hdstoric (AR1:169; 2:315' 511') Stree! and these potential impacts were nol analyzed in the MND' of Highway 50 is owned A fourth optiory Locust Street Lot is located on the north side ,,somewhat removed from the downtown commercial area" . (AR2:512') by the City but is a distance of 700-800 A fifth option, the stancil Lot is located south of Highway 50 at stated the iot was too far and feet from downtown. Business ownels and community members viable option because a portion o may not be available. (AR2:514.) The stancil lot may not be a if the owner is unwilling to it is privatery owned by the stancil Trust and may not be avaiiable

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sell. (AI{2:407;3:858.) Resident chuck

wolf stated that ali of the remote parking options wouid

also increase

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fatt argument of potential policing costs. (AR2:561.) Substantial evidence supportin g a met and an EIR must be prepared' environmentar impacts of the repiacement parking has been

Indirect ImPacts
by the

of urban decay caused Environmental review must consider direct and indirect impacts of Bakersfield (2004) 124 proposed Project. (Bnkersfield Citizens for Locsl Control a. City
7273 -)

Cal.App.4th 1184,
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lot, which, among concern to area residents is the loss of the Ivy House remaining in its present other concerTrs, wouid also prohibit the saturday Farmet's Market and noting: location on Main Street. City staff acknowledged the problem in the downtown I tldnk we all know that parking is a very important issue anywhere in a significant loss of parking area and the fact that realig*r,f Ouy S#eet would result in the Ivy House parking lot' (AR2:507')

of primary

EI Dorado Superior Court Case No' PC-20110145

Pdtn"""t';

Opening Brief in Support of Writ of Mandamus

-

Page 18

would remove Residents and Business owners exPressed concerns that the Project downtown' parking from already struggling businesses and were located too far from
677, 673, 836-837, 852increasing the chance of urban decay. (AM:314, 535-537, 553;556,562,

853,858.)

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and social CEeA is not afair competition statutory scheme. Therefore, the economic purview' (Cal' Code effects of proposed projects are generally considered outside CEQA's of a proposed project Regs. trl.74,S 15131(a).) Yet, if the forecasted economic or social effects then CEQA directly or indirectly will lead to adverse physical changes in the environment, Code Regs' tit' L4, S requires disclosure and analysis of these resulting physical impacts. Cal. cause a physical change, 1506a(e) provides that when the economic or social effects of a project other physical this change is to be regarded as a significant effect in the sanle manner as any social effects result from a change resulting from the project. Conversely, where economic and and social physical ehange that was itself ca-r:seei- bir a proposed projecf tJren tiese economie a significant effect on the effects may be used to d,etermine that the physical change constitutes environm ent. (B aker sfield, sup r a, 724 CaL APP.4th 7784, 7213') the environmentam Flere, economic and social effects result from a physical change in and demolition of the l-) construction activities of the road realignment and new bridge, prime Hangtown bridge that shut down or limit access to the downtown area;z) removing

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downtown;4) parking in the downtown; 3) replacing parking locations further away from interrupting moving kaffic more quickly through the downtown;5) impeding walkabirls;6) andz) moving the historic character of adjacent historic commercial and residential districts;
the farmer's market away from downtown'

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parking lot' Resident Jim Clark stated, " ...youknow, eliminating 43 spots i1 F",Ivy pT.Sig..plT"t lost of That's going to U" Uig.- Cl*k 4so noted that the reJl number "Well, it'srs 43 nJt g+](AR2:ssi.) puutic Works Director Randy Pesses responded (AR2:553') it will be whatever-you know, whatever the final design will iay out." arteryResident Gene Altshuler stated, "What you are talking about is _1 nlatn Drive and Main tflt""[n to*". W" *g.tg1-*4 s.Pen! moneyto connect Placervilie from Street. Now what *""*itlbe doing for months is severilg yuil Street both the in Broadway. Ifls going to make a trJmendous impact on th-e businesses it is'" Main Street locition and in the location of Broadway, which is struggling as (AR3:655, see also testimony by Iudy Davis at 656-657 ') you/le going Business owner and resident Carol Aadnesen stated, " ...if-you do this, he mercnants I town. the of to see half of Main street vacant. And this is the pulse want them don't We are the pulse and we want to keep our local shopping with us' going down to Folsomhad concerns susan Kipping concuffed that the parking was too far away and she thaf s that the City #ur closing down u.r".y *u"irr-u.t!:ty to a very smail town already having hard economic times. (AR3:6a6')
EI Dorado Superior Court Case No. PC-20110145

p.titlon"t't

Opening Brief in Support of Writ of Mandamus

-

Page 19

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of Commerce stated "This Mike Kobus representing the El Dorado 9"ylty Chamber a blighted area'" (AR3:677 ') area down here is kind ol I wouid t;;; fittf. f-it of as well as it does because it Commissioner Russell stated the Farmer's Market works is on Main Street. (AR2:565') Markef away Numerous commenters were concerned that movingtheFarmer's area' (AR2:535' downtown from downtowry would f*tth;;l;"J to th" decay of"the
548, 557-558, 565-56 6;3:695, 835')

downtown at the stancil lot staff represented that locating the parking 800 feet from would be similar to many shopping centers' (AR2:562') center' rhls i1 . EI Dorado resident Chuck wolf stated, "This is not a shopping center' If we start Placerviile, hlrto.i. asset Piacerville. This is not a shopping

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center and start designing parkingand .,, to end up with a ";li;eht;;;tf..ppft as if ifs u Jtiopii"g center, well, you'ie g9-inq transpo?tation of blight and problems shopping center. you're ;;tddilZnd up with'd{e same"kind "ThiJis a historical tiifhl rro*'" (A1u:562') that we have in orr'. ,t"roppi.,g"."rrt"rr-+d *uyU" it [the roundabout] was a good asset that pays for itse1f."'(,Aft2:562-.) re getting out of this' idea 10, 15 vears ago' I *riif.,ft-for what linig q1t;'91'. (AR2:563') you're ;;"'il;; n'*rt of a lot of problems "'"

to the Project's potential to Longtime business owners and community members attest an such that urban decay must be sfudied in cause urban decay, representing a fair argument

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3.

SafetY ImPacts of Roundabouts

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AppendixG,sectionXV'Transportation/Trafficsubd.ivision(d)statesthataproject due to a design feature (e'g'' sharp may have an impact if it "substantially increase[s] hazards uses"' curves or dangerous intersections) or incompatible (AR3:796') Community The City provided evidence on the safety of roundabouts' uts, per se,but are against the members stated that the public is not against roundabo far too smal1 ... The side.walks are going tc roundabo .atin iltis lacation.(ApJ:547.) "The area is
be too close to the street ...

if s just too congested."

(AR2:547-548')

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of the sinkholes that Chuck wolf expressed concern that there had been no study 19194'The effects of another caused the Ivy House retaining wall to fail in November constitute the northeast sinkhole a",r.fopr.glr', thut ,ui"t; l";;;;:*hi.h would not been studi ed' (AR3 :71 1') ;;;il; ;i in" .d,r.,f, about, have "the residents are going to Business owner and resident Carol Aadnesen stated, here' They're not going t9 have trouble. There's lots of older people living arourtd *o:ld with strollers know how to use a roundabout. Tfreris lots oipeople walking part for cars to pass to a middle and then *-r"y;ii hurr" to wait for cars to pass, to go to get to the other side." (AR3:835') the Truckee ordinance stated Business owner and resid,ent Date Pierce noted that phyti.ui possible' This is a very sma]l roundabort, atelJo;;;"J;[;th;t;"
Page20 El Dorado Superior Court Case No' PC-201-10145 P.titi,t..1t Ope ning Brief in Support of Writ of Mandamus

'

the number of driveways' the position of space and there'S Some real concerns about in general' It is a roundabout in this crosswalks. It is not an objection roundabout space '. '" (,4R3:860') resident stated she designer, su.e Taylor and El Dorado County Expert building -buiidings and County' urla ,t',"'pio;;q+9t""ts thought the gity designs roads, q'?%1T*:9,11d k'5;, under stand h";-p;r - i s sr r e "El" v"J .h; ri,,*i"g Commission, the crosswalk issue. i;J about how cr5sswalks work in a roundabout so that you don't there's 't"ai"d -"1a1bout, from and they have to be farelbug! the roundabout pulled.back a certain distance do tt,it. And once vou that' do you and I don,t know if you have th" roo* to ao other issue is to U" uUi";;t"" those Pedesnians' The have the visibiliq, i;th^i fo.ili.y.i".id"tt and people that are ADA'"

'I

ffi:fJA:i,""[IjH;::i

;l;i';;"i;;?;;;;;"ri/ "*"i;;;tf't" ti.;; tii;;th"gt';"Jilbe ;* that roundabouts ;;;;;g;io"t
(AR3:705.)

;i; t*;; {t"'

-T:*:L#\

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with the roundabout design' The City touted the safety features for ped,estrians ,,pedestrian island refuges." (AM:409; 3:634-635,732)Butthe public expressed their including pedestriai:ls -vvdS d recipe for the r-r:Lixtiire of coi:rfi::Luous, lTLoving fu'affic an'J
corrcelTLS'rhai

disaster:
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met with Randy lPesses] and statt Expert general engineering.contractor Ron Clark was a waste of time to bring uP any there is a pedesh'ian safety issue. Staff stated it matter what'" (AR3:701') safely concerns. -... tf,ri, titing is goinglo go no lot alternadves would require Resident Chuck wolf stated that one 6r tr,r" parking trail;nd would be create a safety cars entering the parking lot to .ros ih. btli" n"r"rJ t. Uicyclisis and"pedestrians on the trail. (AR2:561') stated fu"? o1{ottt!^"^"^-P,l+"5-*": Resid,ent and business owner, Wilbur Howe pedestrian crosslngs/ m1x1ng hit in the crosswrilia the roundabout shows four (AR3:663') ;;pi" il u'utfi. on a1l four corners' that she has "seen children hit in Resident and business owner, Patby Ciark stated' site.to see' anfl1o;v.JnoY't" adding the cosswalks, walking to school' It;;i;jT " J't*"j Lp ""a down the road'" (AR3:682') that calif public works Director Randy pesses siated we have to remind pe.opl9 the there's a pedestrian in law requires that you must.o,,.," t" ;;i;t;hen z:r1-rgz') , crosswalk, svLrrrrl iri;;;;;atbout' (AR2: szz; ul(JbSvvdrN, .1 "rr"t, I can't see how these ca.rs afe gomg Councilwoman Patricia Borelli stated, "I guess stop for people and then-so round. and round and you're going to f-t"i" them there's got to be a backuP created'" that "when you're using a Resident Michael Drobesh brought up the fact yo"'t" not focused on the pedestrian roundabout ...you're focused ." ,h;i";td". behind vou is focused on going working lr, *i;;.-;iii.;;;ilJ"u"JJ1"_.8uy you stop for that pedestrian' he's halfway through or three-quar9;t-il;;;h. Wfi"it ti[nt in the baik of you-" (AR3:700') to move one public Works Direcior Randy Pesses pointed out the oossible necessity of visibility at the corrler' of the crosswalks turther up the ]["d d";|ol;tk

ffi:::il.f,fit #.ililr"

(AR3:635.)

of potential safety impacts of the Community members provided substantial evidence pae
EI Dorado Superior CourtCase No'

ec-20ff0f+5

P"ttti"""t't

Opening grief in Support of Writ of Mandamus

-

argumen! and an EIR must be prepared' roundabout project in this locatiory constitutin g afatt

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mitigation. Improaement Association o' Regents The California supreme Court ruled tnLsurer Heights precomrr"jt tc a 11 the lLniaersity of Catifornia (7988) 47 C?J.3d,376, 394, +Jrat an agency rnay nct L0
I
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sources of hazard'ous substance and/or The City has acknowledged the existence of two (AR1:32; see, suprn' at page 4') Public petroleum products on the lvy House Parking lot parcel' that when you encounter works Director Randy Pesses explained for the Council identify the degree of contaminatiory "you just change gears. You identify-you that into the construction'" (AR3:742-743') contamination of the so1 and then you incorporate of environmental review is to determine CEQA prohibits this after-the-fact anaiysis. The point and alternatives can be fatrly considered the extent of the impact so that adequate mitigation an illegal deferral of sfudy and prior to project approval. This constitutes an omission and

4. Toxic ImPacts

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project before CEQA review is completed' because they is to provide decision makers with inJormation [a] fundamental purpose of an EIR the of them a propos"{ etdttt, not toinform can use in decidin gwhetherto approve -th IJ pos i-approval a t thgy have JtJu ay tpproved' envi ronmental eff ects of proj ect-s more thanpost nothing b6come environmental review were "li;;"d, EIRt woul-d likel' :^!s:: *:? Mt!,:t-t:.:i2::!:::er,,n;o, proiect ttoc rattonirlizations to suppori;;L;; rri"^a/1rt51 stanistaus Naturat Heritage 2!:??} s^q E:;T;,:f;"fr:;;;,,'",i?ijr\btiaiii'a;iaen 200 (deferral of analysis of major project a. County oy stan sliu"! rlg:gdi +,8"9^l iiv +tlitgz, "appear to be putting the cart before impacts until after adoption of speafitJPi; ;.11d the horse.

19
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formulation of specific mitigation case law has permitted a lead agency to defer the complete analysis of the significance of the measures after the lead agency: (1) und'ertook a measures early in the planning environmental impac! (2) proposed potential mitigation criteria *'hat -would ensure that aCequate process, and (3) articuiated specific performance (Communities for a Better Enuironment a' mitigation measures were evenfuaily implemenred.
CiQ of Richmond
(201

of the significance of the impact Here, the MND has not undertaken a complete analysis because it has not quantified the extent of the hazard' that the . Resident Chuck Wolf stated at the October Planning Commissi.tl 19T1"g to faiied it MND acknowledges there is a petoleum residue irithe-gr9""q.f.Yt be a little problem' but you quantify it. (A32'B;O.i"II could b;;;i; Problem, it coul"d You shouldn't start that probl"ytl"1lt-9 !o" tt*i aoing anything' -rh;p;;'j;i;; should rea,lly know th; il;ihulp.obr"- #d then fisure out what vou're excavaron f", going to do about it'" (AR2:560')
El Dorado Superior CourtCase No' PC-20110145

0)

1'84 CaJ'

App'

4rh

7

0' 95')

P.titi"*t't

Op.nlng erief in Support of Writ of Mandamus

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Page27

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Council meetingthat these Resident Chuck Wolf stated at the November City iqRscis that must be conditions have the potential 1o .urr*e-tignificant negative CEQ"A. "To cont"inue with this project before adequately uaa1"* [o comply-with and "of hatard.ous and toxic material present is reckless identifying tn"-u.i.r"i""t"tit irresponsibte. (aRg:zrz.) study the impact in Phase II after Resident Sue Taylor stated proposed mitigation is to the Project has been approved' (AR3:850') that the agency or when a mitigation measure embodies nothing more than the hop." to a thorny a solution applican! wlth more effort o, u'utytit,.ur, ,#rr"how find Environmental Quality California environmental problem, an ug"tld;;t "i.]^t" the must timelv be set forth' Act, pub. Resources Code, S 21000 J;"q Mitigation measures environmental'decisions be environmental inJormationbe complete'and rElevant, an4 is not possible' an made in an accountable arena. Wltil f;;t""ittg th"-unforeseeable all that it reasonably can' (Cal' agency must use its best effort, to ?inJ out and?is.toru
C"ode Regs., ti;t.74, S 15144')

Cal'App'ath 70 holds Communities for a Better Enaironment a. City of Richmond,l'84

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the Project prior to adequateiy The City has put the cart before the horse and approved may result in impacts due to toxic quantifying the impact. Substantial evidence that the Project
be prepared' substances has been established, and an EIR must
5. Biological ImPacts

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significant environmental impacts The IS/MND failed to adequately identify potentially and to propose adequate mitigation in of the d.emolition of native trees and sensiti.ve habitat (a-f); AR2:377 ') relation to biology. (See Guidelines Appendix G $ fV, subd' trees to mitigate the a. Impacts to Trees. The City proposes planting replacement will be one ga1lon and seedling size' removal of mature native kees and shrubs, some of which gallon size cannot reasonably (AR2:587; 71.:3220.)Replacement plantings of seedling or one trees. (AM:311, 318,379 [photo expected to compensate for the loss of mature native trees']) Resident David Price stated comparison of the size of existing trees and repiaeement caused by the massive tree remova-l replacement trees do not mitigate the adverse effects Rawer stated repiacement plants of contemplated by the project. (AR2:3L1.) Resid.ent Robyn to compensate for the loss of mafure seedling or one gallon size cannot reasonably expected of the size of existing kees and native trees and habitat. (AR2:318, 3L9 [photo comparison replacement lrees.]) No landscape pian has been developed'

2B

b.Impacts to Sensitive Habitat' of removal of sensitive The IS/MND failed to acknowledge the biological impact project impacts are considered potentially significan habitat and propose adequate mitigation. habitat or other sensitive if the Project may "have a substantial adverse effect on any riparian
EI Dorado Superior CourtCase No' PC-20110145

p"titi*.it

Opening Brief in Support of Writ of Mandamus

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Page23

or the califorma natural community identified in local or regional plans policies, regulation (Guideiines Appendix G $ IV, Department of Fish and Game or US Fish and Wildlife Service." subd. (b).)
sensitive As explained in the statement of facts, the Project proposes removal of mature montane hardwoodnafural habitat communities in the Project area including riparian foresf City proposes tree conifer forest and Hangtown Creek. (AR1:7-38, see, infta, at pg' 3-4') The and habitat, but has planting and hydro seeding to mitigate the removal of 27 outof 58 trees No landscape not proposed adequate mitigation. (AR1 :29-30;2:311';378, 319;1I:321'6-3219')

plan has been develoPed. 5. Visual and Aesthetic ImPacts
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identify The Initial Study and Mitigated Negative Declaration fail to adequately the "built potentially significant environmental impacts of the Project. The aesthetics of along -'nrith nah;ral enviroir.iil,ent" of Ca1iforr.ja's cities have al"r,rays been protected" by CEQA (Pub. Resources Code S 21001 resources, and are a proper subject for environmental review'
subd.(b).)

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CEeA Appendix G Initial Study Checkiist lists aesthetics as the first of its ,,environmental factors potentially affected." (See Appendix G, Environmental Checklist Form' environmental review' at 1.) Courts have found that aesthetic impacts are ploper subjects for
(The Pocket Protectors u' and that subjectivity should not preclude review of aesthetic impacts' of area City of Sacramento (2004) 724 CaI.App.4'n 903.) "Relevant personal observations

16

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for afarr argument' So residents on nontechnical subjects may qualify as substantial evidence as to the rnay expert opinion if supported by facts, even if not based on specific observations impact report shouid site under review. where such expert opinions clash, an environmental
Estates Homeowner's be done. (CEQA Guidelines $1506a(g).)" (Id.at92\, citing oceanview Aruia Enterprises a' south Association a. Montecito water District (2004) 116 Cal.App'4h 396, 402; of the OId Trees a' Valtey Planning Commissior (2000) 101 Cal.App.4* 1333,7347; Friends 1398-1399 & fn 10') Department of Forestry and Fire Protection (1,997) 52 Ca1.App.4ft 1383,

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due to the The IS/MND failed to adequately analyze impacts to visual resources (AR2:317.) The MND failed to removal of the overlook, trees and shrubs, and historic bridge. view from El Dorado Trail' consider impacts to views from scenic Highway 50 as well as the and muffle (AR2:317-318.) The trees to the north of the trail also act to screen the highway trees to be vehicle noise and this also was not considered. (AR2:318.) Many of the mature stated it removed are in excess of forty feet in height. (AR2:318.) The Planning Commission on the would make efforts to avoid root disturbance of the massive 100-year old redwood
El Dorado Superior Court Case No. PC-20110145

p"iitio"..'t

Opening Brief in Support of Writ of Mandamus

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Page24

project site, as the commission saw that the redwood had been seriously affected from for the former Highway previous ground disturbance during the installation of a sewer pipe that the redwood was dying and will 50 project. (AR2:587.) The City Council later purported
be removed. (AR3:811.) (Arborist report)

of native trees The IS/MND failed to acknowledge the visual impact of the demoiition some of which are one and sensitive habitat. (AIu:317.) The City proposes replacement trees, gallon or seedlin g size. (AIu:587.) No landscape plan has been prepared'

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the adverse effects Resid.ent David price stated replacement trees do not mitigate (AR2:311') caused bythe massive tree rerioval contemplated by the Froject' or one gallon size Resid.ent Robyn Rawer stated replacement plants of seedling native trees and carurot reasonably expecteJio .8*p"trsate for the loss of miture and kees of the size of existing habitat. Aiu;ti3] ald 1pr-toio "o*pLiron replacement trees.]) visual aesthetics of Resident David price stated the removal of trees will change the +.he area for years to come. (APJ:311') to look real great' Business owner and resident Ron Clark said " ... this is not going (AR3:703.)

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such that an Community members have established a fair argument of visual impacts environmental impact' EIR should be prepared to f,atly study this potentially significant 7. Impacts to Historic Resources necessary to From CEeA's inception, the Legislature committed to "take all action (Pub' Resources provide the people of this state with . . . historic environmental qualities." Madre (2001) 25 Ca7'4t'765' Code S 21001, subd.(b).) lnFriends of Sierra Madre a. City of Sierra to ecological concerns the Supreme Court reiterated that while CEQA is "directed primariiy

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to'preserve ' ' ' exalnples of and preservation of the environmen!" it is "the policy of the state Code S 21001 the major periods of Ca-lifornia history."' (Id. at783-L84;Pub' Resources of hisioric resources' subd.(c).) CEQA',s proteciions extend to preveniing ihe ciemoiition 1095') (Architectural Heritage Association a. County of Monterey (2004) 122 Cal.ApP'4*
a In1992,CEeA was arnended to ciarify protections to historic resources, including public Resources Code definition of "historical resources" that provides that a project "lhat resource is a project may cause a substantial adverse change in the significance of an historical

24

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21084'1') The that may have a significant effect on the environment'" (Pub' Res' Code S addressing Guidelines were amended in 1998 to include new sections 15064'5 and75726.4 a historic resource historic and archaeological resoufces. Where a project may adversely affect requires the Lead Pub. Res. Code section 21080(d) and GEQA Guidelines section 15064'5(b)
EI Dorado Superior Court Case No' PC-20110145

p"titl*.t;i

Opening Brief in Support of Writ of Mandamus

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Page25

an Environmental Agency to treat that effect as a significant environmental effect and prepare

Impact Review.
a) Identification of Historic ltesources

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historic City, containing historic iandmarks, National and historic California register buildings, and historic districts. The MND faiied to identify the 50 are locally resources within and surrounding the Project site. North and south of Highway Historic designated residential historic districts, the Bedford. Avenue Clay Street Residential west lie Dish.ict and the Cedar Ravine Residential Historic Diskict, and to the south and residential commercial historic properties. (AR2:300 ,376) The Project adjoins two of the City's wouid cause a historic districts and the proposed d.owntown historic district overlay zone, and located at potential impact by bisecting the historic areas of the City. (AR2:301') The buildings burldings, including 'Jre lu{ain Sireei ai:,d Clay Streei intersection aire all housed in }ustoric placerville is considered
a

13

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Cozrnic Caf' sweetie Pies Restauran! Lofty Lou',s Yarn shoppe, Bob Darling PhotograPhy, bed and and Empress Clothing in the Pearson Soda Works Building. (AR2:301') Historic (AR2:305') breakfast establishments are located on Clay Street and Cedar Ravine. the City Once the historic resources within and adjacent to the Project are identified, to impact these must then adequately consider whether the Project"may" have the potential resources, and did not. the historic Sharlene McCaslin and others testified that the MND should have disclosed the MND resources adjacent to the Project area, and did not, and fiese omissions rendered (APE)" must also inadequate. (AR2:300-301.) The project's so-called "Area of Potential Effect that is the Project site' be broadened to include the entire historic area not merely the city block
(rbid.)

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In County Sanitation District
provides that
a negative

No. 2 a. County of Kern (2005) 727

Cal'App'46 15M' the court

25

declaration may be defective if it artificially limits the impact area' -CEeA defines the relevant geographical environment as the area where physical conditions the will be affected by the proposed project. Consequently, the project area does not define effects will be felt relevant environment for purposes of CEQA when a projecfs environmental
the MND outside of the project area:' (Id. at581; Pub. Resources Code S 21060'5') Flere' imperrnissibly iimited the analysis to the bound,aries of the Project site, and did not consider the Project's effects on adjacent historic properties' the It is also important to note that bridges that are within or near historic diskicts have the to gain significance, beyond the significance level id.entified when considering

zo
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potential

El Dorado Superior Court Case No' PC-20110145 - Page26 Petitioner's Opening Brief in Support of Writ of Mandamus

bridge alone,
landscape.

and, to be a

contributing element of the historic district andl or historic

Anewround.aboutandbrid.ge,builtintheproposed'MainStreetStreetscapeDesign also introduce a "ne\^/ intrusion" in this style, which is in no way historic looking, would a sense of the historic environment' historic area of Placerville, and would no longer convey on the historic landscape' (AR2:301.) The new bridge constitutes a potential intrusion effect on the 70-yef old Clay Street The City failed to adequately consider the Project's andthe retaining wall in bridge which overlooks Hangtown Creek, the Lincoln HighwaY,
Hangtown at the location of the proposed new bridge' b) ClaY Street Bridge creek buiit in 1940 is the last The 7O-year old Clay Street Bridge over Hangtown area with the historic properties north 10 remaining old bridge connecting the historic downtown +Jre 50-year age.'r'iherc most str:uctures anc 11 of Highv-ray 50. (AR2:301.) It is v;ell beyond bridges have already been torn t2 properties fa_1into the historic category. (AR2:302.) Numerous spring street and Bedford Avenue down in Placerv rlle. (Ibid.)The old bridges at Canal Street, 1a t -) 50 Operational lmprovement wefe all recently demolished and rebuilt during the Highway 14 (Ibid') The bridge at project. (Ibid.) The bridge at Blairs Lane is also scheduled for demolition' 15 has sustained . (Ibid') Clay Street and Locust Avenue has lost integrity due to the damage it pran EIR as part of the historic landscape 16 Hangtown Creek are incruded in the Redevelopment Plan Draft EIR') r'1 (Request for Judicial Notice, Exhibit A, Placerville Redevelopment California office of Milford wayne Donaldson, state Preservation officer for the 1B that the wrote to the City stating there is no indication in the MND Preservation, Historic 19 (AR14:412a.) Jennifer M' Gates, Field possibre significance of the bridge has been addressed. 2A preservation Foundation in partrership with the Nationa-l Trust Services Director, California 2I Gates recommended that a study be for Flistoric Preservation, concurred. (AR16:4727;4728') eligibility of the bridge at a local level 22 undertaken to provide factual evidence determining the "we strongly advise the City to 23 by a qualified historian. (AR16:4729.)Donaldson stated and adopt feasible mitigation .A properly evaluate the potentiai significance of the bridge historical resource'" which avoid or reduce all adverse impact to the potential
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measures

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(AR14:4125.)

significant in a historical resource Resources listed in a local historic register or deemed unless the preponderance of survey are presumed. historically or culfurally significant is not listed. in or determined to be evidence demonstrates they are not. A resource that Resources, is not included in a local eligible for listi.ng in the California Register of Historic
Page27 El Dorado Superior CourtCase No' PC-20110145 Op"nrng Brief in Support of Writ of Mandamus

P.titi"*/t

nor deemed significant in a historical register of historic resources (pursuant to 5020'1(k), (Pub' Res' nonetheress be historically significant resource survey (pursuant to 5024.1(9), may be (a) (+)') Further' the resource does not need to Code $ 21084.1; see alsoGuidelines L5064'5 a historic resource' located in a historic district to be deemed Cod'e cannot be approved for a An historic resource as defined. by the Public Resources League for an EIR. (pub. Res. Code s 21084'1; discretionary demolition without preparation of Cal'ApP'4th 896') In League for Protection' Protection etc. Resources v. City of oakland, s1tpra,52 on historic under CEQA does not require listing the Court held that treahnent of a resource as the Carifornia Register of Historic Resources; an official inventory of historic resources or could' preclude protection of important otherwise, goverTrlnent inaction or owner resistance for qualifying historic fesources' provides resources. Guideline $ 15064.5(a) defines criteria that 10 effects on such resources' and conJirms stand.ards for assessing the level of adverse materialiy impairs its historic ir-rtegr''ry- causes L1 substantial alteratjon of an historic resource ihat t2 a significant environmental impact' (2005) 122 cil'App'4rk. 1095 and Heritage Association a. County of Monterey Architectural rn 13 supra, 52 Cai'APp'4th 896' the fair argument League for Protection etc. a. City of oakland, to T4 qualifies as an historic resource as well as standard was herd to apply to whether a property 15 adverse impact to the historic resource' whether a proposed project may cause a significant (2008) 160 cal'App'4th 94 held that the fair L6 FIowever, valtey Adaocates a. City of Fresno of whether a ProPerty is an historic resot L1 argument standard does not apply to the question that mad'e a preliminary determination for purposes of CEQA, except when the agency has 1B also held that an agency and then changes its decisio n' Valtey Aduocates historic is property 19 that it is risted on an historic register to determine not is a property that fact the on rely cannot 2A to consider historicity' not historic, but must aPPly its discretionafy authority 2L the property is not listed on a historic Here, the City improperly relied on the fact that (AM:372.) The City opines, "To be a 22 register to determine that the bridge is not historic. to be listed or eligible for listing in the a1 historic resource und,er cEeA, the bridge would need. on (AR2:372.) The2004 caitrans report also relies Resources." Historical of Register California 24 whether the for the National and California registers to determine eligibility bridge,s the 25 of CEQA' (AR2:585-586;4:7!07 ')It bridge is considered a historic resource for the purPoses zo locar significance; the report only was not the mission of the cartrans report to determine
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(AR4:1052-1053') looked at state and Federal significance criteria. for the bridge to be included in or The City used the wrong standard; it is not necessary considered a historic resource' eligible for the National and california registers to be
Page 28 El Dorado Superior Court Case No' PC-20110145 P"ttti"""1t Op*ing Brief in Support of Writ of Mandamus

Foundation's recommendation (AR14:4125.) The City must heed the California Preservation the elipbility of the brid that a study be undertaken to provide factual evid.ence determining
done so. (AR16:4729 ') at a local level by a qualified historian, and has not post dating the Caltrans Resident Sharlene McCaslin submitted extensive evidence,

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(AR3:300-304, 776-777.) Closed (or filled) study and estabrishing the bridge's rocal sigmficance. concrete, generally from the 1890s spandrei bridges date from the eariiest use of reinJorced built in this style because it through the 1920s. This arch bridge, built in1940was probabiy due to the retaining wall required less formwork to construct, and was extremely durable that went into the bridge' The effect of the fill material and the large amount of concrete as a replacement for the previous present single lane bridge was built by the City of Placerville ,,removed at Clay and union streets and 18 feet 20 inch pipe land," as reported bndge that was in a July 76,7936, Mountain Democrat articie' obsolete," siii''ply due to one The Clay Street Bridge is characie rrze,J,as "functi.or-La11y "structurally deficient'" A factor, the narrowness of the strucfure, and is not considered that are not used today' These functiona[y obsolete bridge is one that was built to standards nor are they inherently unsafe' bridges are not automatically rated as structurally deficient, lane widths' shoulder Fulctionally obsolete bridges are those that do not have adequate or those that may be occasionall widths, or vertical clearances to serve current traffic demand, such as restoring the bridge as a floo4ed. This does not render them unfit for adaptive reuse,

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pedeslrian footbridge. (AR3 :300-304') have integrity through the To be considered significant, filled spandrel arches should the arch ring, barrel, spandrel retention of their character-defining features, which incrude wing walls' The Clay Street wall, railing or ParaPet, end posts, piers and / or abutinents and in the 2006 inspection reporf Bridge has all of these features, in good condition as indicated angled wing wails and a smooth includ.ing reinforced concrete railings in a window desigO (AR3:300-304') cap. The wall cap has some spailing that needs to be repaired' nature of Clay street bridge The City,s responses to comments regarding the historic based upon whether the resource were conclusory. (AR1O:+480.) The City's determination was the resource was located in a was listed in a formal register of historical places and whether A full EIR study is historic district. (AR2:4473, M73,4480.)This is tl-re incorrect standard. required to fully analyze the bridge for local significance. members also attested to t Numerous longtime local business owners and community
brid ge' s iocal
si

gnificance'

"

Resident Robyn Rawers stated, "This project p"tition"i't Opening Brief in Support

will
of

d'estroy the last historic bridge

EI Dorado Superior CourtCase No' PC-20110145

Writ of Mandamus

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Page29

LO

be conside over Hangtown Creek.... The bridgg is now 70 years old and it should cfl.led pri*f"rr:? (AnZ'Sg3j;;... t t"utty tXke offense ai seeing a bridgg !e adds to the It kind' a is a historic bridge' It s.onJof ir'r"tio"ully obsolete. This ;An3:665.) R;;.t fioted that Blair House is located right ouainrness of the aitu. thT" in the lh#;';;., r"in" u"ag". AR5;tii lu*"t and ErlaBlair were living C]3y S^T:"^l the h";;;h; built it for fis wife, on Ciiy Street around-shortly.aftel projert is one step ila;; ;"s built.... f ".a *""V otheis know that this roundabout (AR3:672') closer to destroying our town/s urto,r.,ai.tg and remarkable history' Placerville's Resident Sue Taylor stated, "]'ve come before lyon] here about the Placerville The n"ritug" assets. You know, I kgeq saying, this is your goldmine' b".urrse'of thJhisio.iZ'utsets thalyou have and a roundabout ;;;;G;" h"r" ho"i.,'t, in my mind, fit into that heritage asset' (AR2:539') if it has Resident Cierra Baumunk asked, "Why remove a 7}-yeat old bridge and I fashioned old for purpose? t *oUa teii yo..r thut otsolete is another word it because is old 5;5" *t,h th;;'Ir;;i tt;i;1.'t locals and tourists love our towry about. (AR3:669') fashioned? A roundabout will not match what Hangtown is all of Placervill e ' ' '" Resident David Price said ". . .we're going to destroy the character

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(AR3:8a0.) historical Resident Lisa Collins stated "You know Placerville is such a charming (AR3:852') integrity." to see us lose that town

"";T;;Jty;;rleh"te

c) Lincoln HighwaY
Overland Stage/Pony The City has acknowledged that the Lincoln Highway/ Central current project area' (AR2:311') Express routes followed the portion of Main street within the road and portions of the The Lincoln Highway was constructed as a 72-footwide concrete concrete und.erlay Main Sh'eet' (AR2:376') Lincoln Highway due The City again failed to study the Projecfls effects on the historic Registers, was not to the fact the highway was not ineiigible for California and Nati-onal stated, it is not necessary for a located in a historic district, and lacked integrity. (Ar<2:376.) As district to be historic resource to be listed on an official register or located in a historic a hstorlc resol-1lrce' considered hdstoric' Further' "integrity" is on])' one {actor in an-al;rzin'g of recognition and the Projecfs sharrene McCaslin noted the Lincoln Highway was deserving and were not' (AR3:884') irnpacts to the resource should have been sfudied in the MND

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Wall location proposed for There is a 1905 historic retaining wallin Hangtown Creek at the of the retaining wall but the new bridge. (AR3:sg3.) The MND failed to mention the existence pracerville Redevelopment it was recently acknowredged in the DraJt EIR prepared for the

d)

1905 Hangtown Creek Retaining

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Plan EIR') The project. (2:50:30) (Request for Judicial Notice, Exhibit A, Redevelopment in relationship to this iocation of the retaining wall is not known, and it has yet to be evaluated Project.
El Dorado Superior Court Case No' PC-20110145 - Page 30 p.tltion"t't Openlng Brief in Support of Writ of Mandamus

Retention and Adaptive Reuse Alternatives' that could avoid the Community members suggested adaptive reuse alternatives demolition of the Clay Street Bridge' alternatives to the . Resident Sharlene McCaslin laid out adaptive reuse retention project ti-t"i rn."fd have be considered to avoid' historic impacts' such as: or pedestrian/bicycl rehabilitation of brrd,ge,rui"t-,tit" of the bridee as a monument of a trafhc pair' with oneo-f btpJt, ;rmaintarnJd ut one half bridge ur'ra one way' " was done to consider a making Clay Street (Ibid.)No arrjVsis way t#fi c. "ru"tion instead of realignment and or to make the stop M;'Jstr""l"rignt turn only, "t bridge rePlaceme nt' (Ibid') historic' I'q $:,:::::.-^" Commissioner Les Russell stated, "If the bridge is truly

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(AR2:571.) 20 years ago to improve or Resident David price noted that $65,000 was collected see also former Planning rebuild the bridge, not to demolish tt.iangrg 6;-:838;4:967; at AR3:862') ihit testimony Commission member Carol Palton possible w.ay t9 move the Councilmember Wendy Mattson asked if there was any (eng'goz') ;'I don't know if street Bridge to be the pedestri"" utJg" on Locust'

."*it*i"g

Clay if s Lven possible."

20

1- - ^r j^L:.^^ +1-.^ bridge' the L-irroo stated that there were alternatives to demolishing stream not above the 100-year Rawer noted thut other buildings in the a1.ea were to {g o"t underneath the bridge be flow levels. Rawer stated. another option would to accommodate 100 year stream flow years' (AR3:830')

(AR3:807.)

ffi;"*ffif"

o";".

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aa L)

)A 25

26

a.lter'^.ac',res onus of revie-wing a reasonab].e raji.ge of feasible then affirmatively present evidence of fal1s to the City, not citizens. The agency must not be sufficient' (AR16:4481'-44s2') A infeasibility; conclusory statements of infeasibiiity will impractical to proceed is necessary showing that costs or lost profitability renders the project (Citizens of Goleta valley a' Board of before the City discounts arternatives as infeasibre. Alternatives to demolition' such as Superaisors (1988) 197 Cal.ApP.3d 71'67,1181.) in an EIR' adaptive reuse alternatives, must be fuily studied

During

*Jre ai., EIR revie'uv,

implementing

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the City incorporate mitigation The California preservation Foundation recommended the National Register eligible Druid measures into the construction specifications to ensure
El Dorado Superior Court Case No' PC-20110145

e) Druid Monument'

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Opening Brief in Support of Writ of Mandamus

(AR16:4728-4729') The monument retains its historic significance during the relocation' into the Projecf but there is no Council recommended these mitigations be incorporated (AR1:20; 2:380-382; mention of the proposed mitigation in the mitigation monitoring Program'
3:801.)

8. Growth Inducing ImPacts

of a cumulative impacts Growth inducing impacts are routin ely analyzed as part of growth inducing impacts may trigger anaiysis. Evidence amounting to a fair argument project impacts. (stanislaus Audubon preparation of an EIR and support a finding of significant 1'44,158 [growth inducing impact of society, Inc. a. County of stanislaus (7995) 33 Cal'ApP'4th stand-alone golf course could lead to residential development]') inducing impacts' (Pub' It follows then, that an EIR aiso must discuss a projecys growth It must discuss ways in which the Res. Code S 21100(b)(5); Guideline $$ T5126(d),15126'2(d)' gro-'rvth or'Jre construction of project couid directiy or indirectiy foster ecortollrtic or populafion includ'ing " growth accommodating" additional new housing in the surrounding environment, in the bucket" rationale is not allowed' irnpacts that may remove obstacles to growth. A "drop (1990) 221 Cal'App '3d' 692; Los Angeles unified (see Kings County Farm Buresu u City of Hanford 1019 lan EIR cannot find a school District a. City of Los Angeles (7997) 58 Cal'App'4th smali relative contribution to the cumulative impact insignificant based solely on the projecfls a Better Enaironment rs' Californta already significant problem.] .) rn Communities for aBetter for gB, the Court held that de minimus cumurative impacts Resources Agency(2002) L03 Cal.App.4th d'epending on the level of may still be considered significant in some circumstances, environmental probiems already occurring' impacts of the improvement Here, the MND failed to consider the growth ind'ucing Bridge may project. The rearignment of Clay street and the replacement of the clay street by way of Clay Street' (AM:310; 3:674' assist residential development to the north, accessed project will potentially induce additionat growth in the areas north of Clay 667_66g,g3g.) The tra{fic- (AM:310.) The Cottonwood street because the roads will abre to support additional of the park Planned Development Phases 4 &.6 are already in progress and the completion Community Development Departrnent project will certainly generate ad.ditional traffic. The facilitate future connection to Pianning Commission envisions that the Project wili Road/Roddan Court' Citizens undeveloped parcels between Clay Street and Poverty Hili of the Cottonwood devel0pment noted that $65,000 dolrars had been spent by the devel0pers belween the Project and the for the Ciay street bridge rehabilitation showing a connection Commission member Carol Patton development. (AR3: 696;838;4:967; see also former Planning
Page32 El Dorado Superior Court Case No' PC-20110145 P"aiti"*tt Ope ting Brief in Support of Writ of Mandamus

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the environmental Resident Robyn Rawers stated that AR3:862.) at testimony this confirming (AR2:310') inducing aspects of the Project' growth potential the encompass shourd review this impacts; the City should' have conducted ind,ucing growth of argument fair a is There analysis, and did not' Policies 9. Inconsistency with Area P1ans and with a alea plan and policies may Evidence of a projecf s arguable lack of consistency can be made and resolve every fair argument that consider must EIR an and EiR an trigger whether an effects of a projec! irrespective of environmental significant possible the about effect'" been met with respect to any given established threshold of sigmficance has (e), and IX subd' (d'rhe Pocket (Guidelines Appendix G section III subd. (b), IV subd' Protect the Historic Amador protectors u. City of Sncramento (2004) Oa Cal'App' 'h 903' 934; 10 (2004) 116 Cal.App-+& t099, L109') Waterways u. AmadorWater Agency ina"3ilftav use,i to deierr-Line -whe'Jier a project L1 The officiai cEeA initiai study Checkiisi, whether a projec t may "confllct significant environmental impacts, asks in part L2 ltjT: the purPose of avoiding or for adopted' regulation ' or " policy, applicabie land use plan, 13 with any local policies or ordinances rnitigating an environmental effecf' or "conflict (Guidelines L4 tree preservation policy or ordinance"' protecting biologrcal resources, such as a 15 fail to adequately analyze the Projecf s Appendix G S fV subd. (e), subd' (b)') The IS/MND Design t6 inconsistency with the following area plans and policies: Main street streetscape placervi'e General pian, adopted in 2004' The relevant L1 Deveropment, adopted, in 2006,and the plan provisions are as follows: 18 olan focuses on three Design Dewelopmen! January 2006' This . streetscape sheet Main L9 tn"t"-muniby's vision i*pil'i;i";;; J"t*r'rot pro.ri'i", it us -tl objectives primary -oi lmProvemenl5' 1' Preservq 4"1'"*:i]tit3:*t-:l:11.|ffi",:T 20 of the streetscape improvements: pl il1, Develop a the pedestrian shopping exp€rlence ;3. pow.io *niz. Improve ,';^'jll'lliL'lf.-, assets of fiut inut can be impiementeci 27 that is aestheticary cohesive anci ;J;##;;if*"-tili" (anr tht;;gh " *"ld;it; and multi -year effort' '+a') is 22 . The Main street streetscape Design Development plan also provides "Placerville surrounded by significant c^1if""i;t"';;;; ll-"-::ll::*n:Hiiffi'ils"t}1"",,.u' 23 ;i?;;eicerlentopportunitvtobrendthestreetscape :H?ffiX".1JJ.1fl along Main 'concept with the rrrttri. n""", tl-rut *iiicreate a'placlrv're Flistory w4g aA Street." (AR1:70')

;:ii'J;ffi

25

26 21
2B

"t":'t:H;13rH:L

that protects and use, Goar F: ro provide for,a rand use pattern ..'itoiut, and sienic resources' (Genera'l enhances Placerville', ,ruurJ tp"i;p;.", Pian, Pg.25') a strong, Community Design. Community design provides composition of o Section Vii ,,sense - of pluuJ;'und loial ia""tity tr,tlo"gnY-t"*'tonious pleasant
Page 33 Ei Dorado Superior Court Case No' PC-20110145 Support of writ of Mandamus

ffi

small-town rural atmosphere' physical elements such as its foothill environmen! downtowry streetscapes' and vistas, focal points of interertl;;;"rks, historic has a character of its own' many r.ria"tf,ui;;,.ghd;;n"t], "".n of which is to preserve and enhance the existing The overall goal of the policies of this section projects,and.programs that community charact", "i,.Jr"1,r" of p1u." ily developing fi; fiii"iit"r heritige-of the Gold buitd upon positive design t"ut rr.r,'Ji',-fliu;;i;-; git"t meaning to the historical Rush. Hangtown, the his-tori.ul r,*u-oitPi;**1fr", tfe crty. (General Plan, pg'79') the overali character of the Downtown: Main street's historic buildings define its aesthetic values as well as to downtown area and its historic t'rut.tr" .o'itributes Plan' pg' B0') (General providing economic benefit f.om touritfttua". historicil iharacter of downtown' Goai B: To protect ur,a rrpgrJ" ti't" "it""f and quality and neighborhood integrity Goal C: To protect and entranl; i; th; visua-l of residential areas'

il;;";i o o
o

oGoalD:Toupgrad'ethevisua]qualitiesandfunctionalefficiencyofPlacerville,s
LO

11 L2
L3

.

local sh'eets. are designed to minimize impact The Citysiiult .rrr.rre that new street projects on terrain and natural vegetation' o Goat r: +;;;;;;"i1'r1?.t"."r quaily ti'oughout Piacerviiie' reuse oiorder structures, which contribute The City shan encourage the restoration and Pla'' pg' and. cultural identity.(General to pracervile,s character and ,"r,r. or historical
87.)

I4
15
1-6

L1
1B

Project is inconsistent with the Here, the public expressed concerns the roundabout is with the goals of walkable communities' and historic character of placerville, is inconsistent on natural vegetati-on' (AR3:646') The inconsistent with the goal of minimizing the impact project was consistent with the General Pian planrLing Commission,s determination that the (AR2:410.) General Plan Goals A' B' and C' was largely conclusive and only reviewed

L9
2A

2T

22
aa

WhenquestionedaboutwhethertheProjectisoutofcharacterwiththehistorical hearing Public works Director Randy character of Placerville at the Plarrning commission able to answer that'" (AR2:517') pesses said, ,,Thaf s something that as staff, we'Ie rea1ly a.ren't sii::'ilarly to *'h'e question: "The cnJy Durilrg the Ciuy- Council hearing, Pesses responded during the pubric outreach is that the planning response that I can make when we heard those studieshadbeendone"andapprovedbycouncil'(AR3:634') up yorr ItgY' roundabouts are to speed Resident Sue Taylor stated "Iwotry.abou! Well i;JL"Ufe, sustainable community' there the traffic and you're talking abo.rt {J"g when you g.o down you,re going to have a roun?about wherJno one stops. '.. the street' You know' ]ou a1i over lor farmer, *urr."ii',1;";il;6i" th;i';;; *ulttit'g there on Saturday and you go:down *" feel safe to get across th" s#u"i. Volr"l|tro*, *rff.i"f aown to Sweetie Pies and you're see oeople all over the area and they're

'A 25
2-6

21
ZA

;;itig

t6 other businesses'" (AR2:541') is a small town and there is a for Resident Darlene Michener stated, "Placerville to encourage neces sary, fo.t foot traffic' We want traffic to slow ""J;;t.;hen dogs safely downtown' We want people to push th"i; s't oll"rs ur'ta *uft ti-teir
EI Dorado Superior Court Case No' PC-20110145

P.trt

"*.k

Opening

gGf ln Support

-

Page 34

of

Writ of Mandamus

.

" .
10
11

L2
13

" '

it looks like a great place visitors to drive slowly through and decide to stoP because to relax or shoP." (AR2:305') narrower streets slow down Resident David Price stated, "Strrdi"s have shown that and lead to a more walkable h.affic, encourages aiternative forms of transportation communitv'Whatcould.bemoreattractiveandappeatingthanash^ollalonga. natriial tt""k, or resting in a shady pi.to."rq,l";:,H;Hjg" ;""t a beautiful, peopie to use their park to ;;;"tf,; r*".ryi"fhe roundabout projecl:*.:"T?ges iars rather than other forms of fransportation'" (A1{2:3i2') tra{fic flow did not Resident Chuck Wolf stated that the City's goal o{ improving pedestrian friendly add.ress the environmental g"J of .r"utittgi walk-ablb, (AR2:559' see also environment, and the Projelt was inconsis-tent with thiigoat' testimony at City Council hearing at AR3:712') -I.t thlnt this is just going to-r'rzill ruin the Resident Susan Kipping stated pioble"m #th thut intersection the character of the town.... rt ?""rr safe. I hurr" ,ro outside' And the way it is. And I also eat at these eateries u.o.,,,i here and I sit park downtown' I " I like to traffic goes by and if s rin". rnit is a beautiful town' ' (AR3:646-e+Z '1Xryping stated don't want to park out in tt;;f tf,t"t" other ptut"''" hasn't been that the impacts of puttinglfr" ptopot*d pariclng in neighborhoods revieweci. (AIR3:647.) for the Project' (AIl2:557' 559' Several commenters stated they didn't see the need
687,686;3:700.) Ravine F"g where you Resident susan Rodman stated, ". ' ' As far as the Cedar to ihe small town want t.;;iGr;or,rt ority o?u ro,mdfgut, that one goes says' you go' the other *i oo" tl-Lings. A traffic jqn i, two peo.ple at an int"rsectio" at'that intersection." experience I have jams that inri, tr-," t"xri. say, no, ;il;.

I4
15

16

L'l
18
19

20

2I
22
1J

. ^^-^-+ n{ < or one gallon size cannot plants of.seedling ^r--rc Robyn Rawer stated, replacement ro, the loss of riature ttiti"" trees and habitat' reasonably expected to "o*p""rutl (AR2:31&tigiphdo .o*pulito. of the size of existing trees and replacement trees.l) . David price stated the removal of trees will change the visua-l aesthetics of the area for years to come. (AR2:311') an EIR be prepared to substantial evidence supportin g a fatr argument requires aiea plans' consider i,vheo.her the Pioject i:r,ay be inconsistent lvi'Ji

.

(AR3:686')

Conclusion
mandate ordering the City to Petitioners request the Court issue a peremptory writ of project approvals and to refrain from further consideration vacate and set aside the MND and certification of an EIR that fully of approval pending its compliance with CEQA including
analyzes proj ect imp acts, miti gations, and alternatives'

24

25 26
21 ao

Rachel Mansfield-Howlett AttorneY {or Petitioner
Page 35 El Dorado Superior Court Case No' PC-201-10145 P.ttti"*ft bpening Brief in Support of Writ of Mandamus

Friends of HistoricHangtowna'

El

Doradotounty Supeiior Court

City'f !ly"':11:'^:t il: PC-20110145
Case No.

PROOF OF SERVICE

I am a citizen of the United

States and a resident of the County of Sonoma'

I am over the age of eighteen years and not a party to the within entitled action'
My business address is 823 Sonoma Ave. santa Rosa, CA.

on July 8,201.1.,I served one true coPy of the following documents:
PETITIONER'S OPENING BRIEF IN SUPPORT OF WRIT OF MANDAMUS

X -

by emailing and placing, a true cgPI thereof enclosed in a sealed envelope mail at Santa Rosa, uhd postagt therlon fuity prepaid,'in the United States
California-addressed to ihe persons listed below. sabrina Teller/Jennifer Holman Attotneys for Respondent n.*y, Thomas, Moose & Manley City of Placerztille 455 CaPitoi Mali, Suite 210 Sacramento, CA 9581'4 STeller@rtmmlaw.com JHolman@rtmmlaw'com
Joh,n

Driscoll City of Piacerville
310 Center Street Placerville, CA 95667 j dris co11@cityofpiacervill
e.

City AttorneY

org

I declare under PenaltY of Perjury that the foregoing is true and correct' Executed on July 8, 2011', at Santa Rosa, California.

Theresa Stoops

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