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A California Professional Corporation
2291 West March Lane, Suite B-I00 Stockton, CA 95207 Telephone: (209) 472-7700

Steven A. Herum - SBN: 90462 Brett S. Jolley - SBN: 210072 Seth P. Shapiro - SBN: 253882 HERUM CRABTREE

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Attorneys for Petitioner Milpitas Coalition for a Better Community

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA

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MILPITAS COALITION FOR A BETTER COMMUNITY Petitioner, vs. CITY OF MILPITAS; and DOES I through XXX, __________ R_e_s_p_on_d_e_ill_s,

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) (CCP §§ 1085 and 1094.5; Pub. Res. C. §§ ) 21168 and 21168.5 and Gov. C. §§ 65000 et. ) seq.)

PETITION FOR WRIT OF MANDATE

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DAVID M. JORDAN and DOES XXXIXXXXX, Real Parties in Interest. -----------------------------III III III III III III III III

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PETITION FOR WRIT OF MANDATE

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INTRODUCTION Petitioner Milpitas Coalition for a Better Community ("Petitioner") respectfull

petitions this Court for a writ of mandate pursuant to Code of Civil Procedure section 1085 an 1094.5, ordering respondent City of Milpitas ("City" or "Respondent") to revoke its April 19, 2011 adoption of Ordinance No. 38.799, which ordinance approved the Milpitas Commercia Specific Plan ("Specific Plan"). The City's approval of the Specific Plan violates State and loc land use and environmental laws and amounts to a prejudicial abuse of discretion. A writ mandate and preliminary and permanent injunctions are necessary to invalidate this Specific PI which, among other defects, conflicts with the Milpitas General Plan and State Elections Law and remedy the City's approval of the Specific Plan which expressly conflicts with the Milpita General Plan and conflicts with the requests of State Planning and Zoning Law. By this Verified Petition, Petitioner represents the following: PARTIES Petitioner Milpitas Coalition for a Better Community is an unincorporate
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association of Milpitas and Santa Clara county residents, voters, taxpayers, and property owners. Petitioner's members are vitally and beneficially interested in the land use approvals enacted b by the City. 3. Respondent City, is, and at all times mentioned herein was, a general law cit

existing under the laws of the State of California. City has a duty to comply with state la requirements including CEQA and the State Planning and Zoning Law when considering Ian use approvals. 4. Petitioner is informed and believes and on that basis alleges that Real Party i

Interest David M. Jordan ("Mr. Jordan") is, and at all times mentioned herein was, an individua residing in Santa Clara County. Petitioner is informed and believes that Mr. Jordan is th proponent of the initiative that is the subject of this action. 5. Petitioner does not know the true names or capacities, whether individual, corporate,

or otherwise, of those Respondents and Real Parties in Interest sued herein as Does I throug XXXXX. Petitioner is informed and believes and thereon alleges that said Respondents an

PETITION

FOR WRIT OF MANDATE

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Real Parties in Interest are in some manner responsible for the adoption of, imposition of,

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administration of those laws, ordinances, and regulations of which Petitioner complains herein. Petitioner will amend this Petition to set forth the true names and capacities of the fictitiousl named Respondents and Real Parties in Interest when such information has been ascertained. 6. Petitioner is informed and believes and based upon such information and belie

alleges that each fictitiously named Respondent and Real Party in Interest is responsible in som manner for the occurrences herein alleged.

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THE CITY'S ADOPTION OF THE MILPITAS COMMERICAL SPECIFIC PLAN
7. Petitioner is informed and believes and thereon alleges that in or about January 26,

2009, Walmart applied to the City to expand its existing 131,725 sq. ft. store, located in th McCarthy Ranch Marketplace in the City of Milpitas, by approximately 19,000 square feet t allow the store to sell groceries and operate 24 hours a day, 7 days a week under the Walma "Supercenter" brand ("Walmart Expansion Project" or "Project"). 8. Petitioner is informed and believes and thereon alleges that in or about November 5

2009, the City prepared a draft Environmental Impact Report SCH No. 2009032018 ("Dra EIR") on the Walmart Expansion Project and circulated the Draft EIR for public comment. 9. Petitioner is informed and believes and thereon alleges that in or about February 18

2010, the City prepared a final Environmental Impact Report SCH No. 2009032018 ("Fina EIR") on the Walmart Expansion Project. In the Final EIR, the City provided responses to th comments submitted by the public, including responses to objections raised by Petitioner' members. 10. On or about March 24, 2010, the Milpitas Planning Commission ("Plannin

Commission") held a public hearing to consider the EIR and related land use approvals for th Walmart Expansion Project. Petitioner is informed and believes and thereon alleges the Plannin Commission adopted Resolution No.1 0-017. Resolution No. 10-017 certified the Final EIR an issued a conditional use permit for the Walmart Expansion Project. 11. On or about April 1, 2010, Petitioner appealed the Planning Commission'

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Resolution No. 10-017 to the City CounciL The City Council reviewed the application de novo 2
PETITION FOR WRIT OF MANDATE

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and held a duly noticed public hearing on the matter on June 1, 2010.

At the June 1, 201

hearing, the City Council considered public testimony and reviewed various written submission and materials and the underlying record. 12. After consideration of Petitioner's appeal of Resolution No. 10-017, the Cit 1,

Council granted Petitioner's appeal by a vote of4-1 at the Public Hearing conducted onJune

2010 and adopted Resolution No. 7995 (refusing certification of the EIR on the basis that th EIR did not comply with CEQA) and Resolution No. 7996 (denying Conditional Use Permi UA09-002 and Site Development Permit SA09-003 for the Walmart Expansion Project). 13. The City Council adopted Resolution Nos. 7995 and 7996 after determining th Walmart Expansion Project was inconsistent with the City's General Plan in that: A. The Project does not encourage stable and balanced economic pursuits whic strengthen and promote development, contrary to General Plan Policy 2.a-I-3. B. The Project does not promote a strong economy which provides economi opportunities for all Milpitas residents within the existing environmental

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social fiscal and land use constraints, contrary to General Plan Policy 2.a-I-5. C. The Project does not promote the creation of a balanced economic base tha can resist downturns in anyone Policy 2.a-I-6. D. The Project does not provide opportunities to expand total employment i Milpitas and promote business retention, contrary to General Plan Policy 2.a I-7. E. The Project does not foster community pride and growth through sufficien beautification of existing development, contrary to General Plan Policy 2.a-I10. F. The Project would draw community, economic and business focus away fro Town Center and Midtown, contrary to General Plan. 14. The City Council further found the proposed location of the Project will be injuriou or detrimental to property, improvements, and/or the public health, safety, and general welfar 3
PETInON FOR WRIT OF MANDATE

economic sector, contrary to General PI

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and found the Project would cause urban decay and neighborhood deterioration impacts tha cannot be adequately mitigated through conditions of approval. See Resolution No. 7996. 15. Petitioner is informed and believes and thereon alleges that, Mr. Jordan filed Notice of Intent to Circulate a Petition to qualify the Walmart Initiative pursuant to Election Code§ 9200, et seq. on or about February 15,2011. The Notice ofIntentto indicates the Walmart Initiative was drafted by Mr. Jordan. 16. The Walmart Initiative, if passed, would adopt Ordinance No. 38.799. Ordinanc Circulate a Petitio

No. 38.799 would add Title XI, Chapter 10, Section 11.07 to the City's Municipal Code, adopting a specific plan, known as the "Milpitas Commercial Specific Plan" at the approximatel 14.56 acre site located at the northernmost southeast corner of North McCarthy Boulevard an Ranch Drive. The Specific Plan area is coterminous with the Walmart Expansion Project site. 17. The Walmart Initiative petition was filed with the Santa Clara Registrar of Voters or about March 28, 2011. 18. According to the City Clerk, the Santa Clara Registrar of Voters certified that out the 6,046 signatures collected, 3,745 were found to be valid. Based on the number ofregistere voters at the time of publication of the Notice ofIntent (24,046), the petition was signed by mar than 15 percent of the registered voters in Milpitas. 19. California Elections Code § 9200 et seq. states that provided certain other condition are satisfied, a city presented with a certified initiative petition has three options: (a) Adopt the ordinance, without alteration, at the regular meeting at which the certification of the petition is presented, or within 10 days after it is presented. (b) Immediately order a special election, to be held pursuant to subdivision (a) of Section 1405, at which the ordinance, without alteration, shall be submitted to a vote of the voters of the city. (c) Order a report pursuant to Section 9212 at the regular meeting at which the certification of the petition is presented. When the report is presented to the legislative body, the legislative body shall either adopt the ordinance within 10 days or order an election pursuant to subdivision (b). Elec. Code § 9214. III
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PETITION FOR WRIT OF MANDATE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 oflaw. hearing.

20. On Apri119, 2011 the City Council considered the Walmart Initiative and its optio to either submit the initiative to the voters at a special election or adopt the ordinance withou obtaining a majority vote of the electorate. City Staff reported that the estimated cost conducting a special election pursuant to Elections Code § 9214(b) would be $436,000. 21. The City received arguments for and against adopting the Specific Plan at th The City elected to proceed under Elections Code § 9214(a) and adopted Ordinanc
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No. 38.799, approving the Specific Plan as its own ordinance rather than submit the issue to b approved or denied by a majority of Milpitas voters in a special election at an estimated cost $436,000. 22. Petitioner is informed and believes and on that basis alleges that the City treated th initiative as an alternative method of approving the Walmart Expansion Project. 23. Petitioner is informed and believes and on that basis alleges that the City treated th adoption of the Specific Plan as exempt from the requirements of CEQA. 24. The City did not file a "notice of exemption" or "notice of determination" regardin its decision to adopt the Walmart Initiative. JURISDICTION AND VENUE
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25. This action is brought pursuant to Code of Civil Procedure Section 1085 (traditiona mandamus) and 1094.5 (administrative mandamus). 26. Because both the Specific Plan site and Respondent City are located in Santa Clar County, Venue is proper in Santa Clara County Superior Court pursuant to Code of Civi Procedure Sections 394 and 395. 27. Petitioner does not have a plain, speedy, or adequate remedy in the ordinary cours

STANDING AND EXHAUSTION 28. A petitioner need not exhaust administrative remedies in challenging a publi

agency's determination that a project is exempt from CEQA. Azusa Land Reclamation Co. v.

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Main San Gabriel Basin (1997) 52 Cal.App.4th 1165, 1210. Moreover, a legal challenge to th
initiative's consistency with the Milpitas General Plan is a quasi-legislative act reviewed unde 5
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ordinary mandamus and thus there is no requirement to exhaust administrative remedies. Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782. Petitioner is also informed and believes and on that basis alleges that the City did not conduct public hearing on the Specific Plan and did not provide a warning informing the public of an exhaustion requirement regarding the Specific Plan pursuant toGovernment Code § 65009(b)(2) and therefore the exhaustion doctrine does not apply. Corona-Norco Unified School Dist. v. Ci of Corona (1993) 17 Cal.AppAth 985, 993. Finally, Petitioner is not required to exhaus administrative remedies in a challenge to the initiative's consistency with the General Plan
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State Law because such action would have been futile. Under Elections Code § 9214 the Ci was required to adopt the initiative or place it on the ballot as written. The City could not amen the initiative to cure the inconsistency or refuse to place it on the ballot as invalid. Sav Stanislaus Farm Economy v. Board of Supervisors of County of Stanislaus (1993) 13 Cal.App.4th 141, 148-149. 29. To the extent Petitioner was required to exhaust any administrative remedies, Petitioner has exhausted any and all required administrative remedies prior to commencing thi action by its members and representatives submitting comments to the Milpitas City Counci regarding the proposed initiative and objecting to the adoption of the Specific Plan. 30. Petitioner's members are beneficially interested in the City's planning and land us decisions as they relate to development of the Specific Plan, including the Specific Plan' intended purpose to allow construction of a Walmart "Supercenter" intended to serve a multi county population, which Project Petitioner previously successfully opposed.. 31. Petitioner's members believe that the development of a Walmart "Supercenter" a the Specific Plan area will result in significant economic and direct and secondary environmenta impacts to the City of Milpitas as well as unincorporated Santa Clara County and surroundin areas. Petitioner's members formed the Petitioner association for the purpose of challenging th Walmart Expansion Project in an organized manner, including the possibility of filing a lawsui to set aside the approval of the Walmart Expansion Project and to force the City to comply wit the planning and environmental laws. Petitioner's members further object to the Specific Plan i

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PETITION

FOR WRIT OF MANDATE

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that it attempts to entirely remove the City's discretion in determining how to carry ou commercial development in the Specific Plan area and attempts to facilitate quasi

judicial/administrative

approvals under a quasi-legislative label.

32. A clear and significant benefit will be conferred upon the general public an Petitioner by Respondent fully satisfyingthe prior to approving this Specific Plan. requirements of state and local environrnentalIa

A clear and significant benefit will be independent!

conferred upon the general public by the Respondent fully satisfying the requirements of th State Planning and Zoning Law. In instituting this action, Petitioner seeks to pro cur

enforcement of a mandatory duty. The public of which Petitioner's members are members i vitally and beneficially interested in assuring that the mandate of law is fully satisfied an fulfilled. Granting the relief requested by Petitioner would confer a significant benefit on a larg class of persons, in that fundamental rules of law would be affected. FIRST CAUSE OF ACTION (Violation of the California Environmental Quality Act and California

Constitution)

33. Petitioner realleges and incorporates herein by reference the allegations set forth i paragraphs 1 through 32 above. 34. CEQA provides that a.II non-exempt projects are subject to environmental review. The City's adoption of the Specific Plan is a "project" under CEQA. Pub. Res. Code § 21065; Napa Citizens/or Honest Government v. Napa County Ed. a/Supervisors 342,353. 35. Title 14 of the California Code of Regulations, Chapter 3 (the "CEQA Guidelines"), section 15378(b)(3) exempts the "submittal (2001) 91 Cal.App.4t

0/ proposals

to a vote

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of the state or

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a particular community that does not involve a public agency sponsored initiative" from th definition of "project." (emphasis added). However, because the City chose to adopt th

initiative as its own ordinance rather than submit it to a vote of the people, Ordinance No. 38.799 is not exempt from CEQA review. 36. The City treated its decision to adopt the Walmart Initiative as its own Ordinance a exempt from CEQA. 7
PETITION FOR WRIT OF MANDATE

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37. As the Lead Agency under CEQA, Milpitas had a duty to comply with th requirements of CEQA. Following preliminary review of a project application, a lead agenc

must prepare either an initial study or an EIR. Milpitas did not prepare either of these document prior to adopting the Specific Plan. 38. According to the EIR prepared for theWalmartExpansion Project by the City (bu

not certified pursuant to CEQA Guidelines § 15090 et seq.) the Walmart Expansion Project wil cause significant environmental effects on aesthetics, light and glare; air pollution an

greenhouse gasses; biological resources; geology, soils, and seismicity; hazards and hazardou materials; hydrology and water quality; land use; solid waste; transportation;

significant environmental effects that have not been mitigated as required by CEQA. 39. The City's decision to forego a vote of the electorate and adopt the Specific Plan its own, effectively approving the Walmart Expansion Project without completing environment review, undermines California. CEQA and violates the fundamental nature of the initiative power i
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The Constitution reserves the right of a majority of the people to enact laws, fre and well-connected special interest groups.

from the influence of well-funded

Constitution, Art. 4, § 1. A local legislative body's decision to adopt an initiative is primarily cost saving measure. Thompson v. Board of Supervisors (1986) 180 Cal.App.3d 555, 561. Th

minutes of the April 19, 2011 City Council meeting indicate the estimated $436,000 cost of election was a motivating factor in the City's decision to forego an election. 40. To the extent the Elections Code authorizes a City Council to forego submitting site specific land use decision to a vote of the people, and instead to treat that decision as exemp from CEQA and approve that initiative as its own legislation based on the desire of a minority registered voters, such authority conflicts with the California Constitution,
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which reserve

legislative decision making to the people regardless of cost.

Cal. Const. Art. 4, § I ("'Th

legislative power of this State is vested in the California Legislature ... but the people reserve t themselves the powers of initiative and referendum"). 41. Vedanta Society of Southern California v. California Quartet, Cal.App.4th 517, 530 holds, "there is a sort of grand design in CEQA:
8 PETITION FOR WRIT OF MANDATE

Projects whic

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significantly affect the environment can go forward, but only after the elected decision maker have their noses rubbed in those environmental effects, and vote to go forward anyway." (italic in original). Allowing a project proponent to circumvent this process by simply presenting body with signatures from as little as ten percent of

supportive elected decision-making jurisdiction's

registered voters endorsing that project eviscerates the environmental protection

provided by CEQA and creates a situation in which the wealthiest developers will be allowed t circumvent CEQA compliance and a public election by simply gathering supporting signature from a minority of registered voters and presenting those signatures to a panel of electe decision-makers who do not want to spend municipal funds on a special election and/or who

support the project but do not want to "have their noses rubbed in [the project's] environmenta effects." 42. Consequently, the City committed a prejudicial abuse of discretion by adopting th Specific Plan as its own without addressing the Specific Plan's potential environmental impact pursuant to the requirements of CEQA rather than referring the Walmart Initiative to a vote the people. (Ordinance SECOND CAUSE OF ACTION Conflicts with the Milpitas General Plan)
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43. Petitioner realleges and incorporates herein by reference the allegations set forth i paragraphs 1 through 42 above. 44. State law requires that general plans and specific plans be internally consistent an that land use decisions, including approval of discretionary projects, be consistent wit

applicable general plans, specific plans, and zoning ordinances. 45. According to State Law, "The General Plan is atop the hierarchy of loca

government law regulating land use. It has been aptly analogized to 'a constitution for all futur development' ... Subordinate to the general plan are zoning laws, which regulate the geographi allocation and allowed uses of land ... A permit action taken without compliance with th

hierarchy of land use laws is ultra vires as to any defect implicated by the use sought by th

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permit." Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1183-1184. 46. Moreover, an ordinance that conflicts with a general plan is "invalid at the time it i passed," regardless of whether it is adopted by the legislative body or approved by the electorate.
Lesher Communications Inc. v. City of Walnut Creek (1990) 52 Ca1.3d531, 544.

47. The Land Use Element of the Milpitas General Plan addresses zoning district an General Plan Land Use Designation consistency at Table 2-3 called "Milpitas General Plan Lan Use/Zoning Consistency" ("Consistency Table"). See General Plan at p. 2-8 (Table 2-3). A tru and correct copy of the Consistency Table is attached hereto as Exhibit A. The Consistenc Table dictates which zoning districts are consistent with the various General Plan Land Us Designations. 48. As seen above, Table 2-3 establishes each General Plan Land Use Designation' consistent zoning district or districts. The property affected by the Initiative Measure, carries designation of "General Commercial." Thus, according to the table, both the C2 and A zonin districts are compatible with the property's General Plan designation. But the Walmart Initiativ converts the property from consistent "C2" zoning into "Milpitas Commercial Specific Plan' zoning. As the text of Walmart Initiative explains. "The Milpitas Commercial Specific Plan ha been prepared in accordance with Government Code Sections 65450 et seq ... and will constitut the zoning for the Specific Plan area. Land use standards and regulations contained within thi document shall govern future development within the boundaries of this Specific Plan.' (emphasis added). 49. Because the General Plan's exclusive consistency table does not recognize th proposed Milpitas Commercial Retail Specific Plan as consistent with any the Genera Commercial General Plan Land Use Designation, and the initiative does not amend the genera plan to recognize this new zoning district as consistent with the controlling General Commercia land use designation, the zoning district created by the Walmart Initiative is inconsistent with th General Plan as matter of law and fact. Therefore, the Walmart Initiative's amendments to th City's zoning ordinance are facially invalid and void. 10
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50. Furthermore, according to the City Council's Resolution No. 7996 the Walma Expansion Project is inconsistent with the City's General Plan in that: A. The Project does not encourage stable and balanced economic pursuits whic strengthen and promote development, contrary to General Plan Policy 2.a-I-3. B. The Project does not promote a strong economy which provides economi opportunities for all Milpitas residents within the existing environmental social fiscal and land use constraints, contrary to General Plan Policy 2.a-I-5.
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The Project does not promote the creation of a balanced economic base tha can resist downturns in anyone economic sector, contrary to General PI Policy 2.a-I-6.

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The Project does not provide opportunities to expand total employment i Milpitas and promote business retention, contrary to General Plan Policy 2.a 1-7.

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E.

The Project does not foster community pride and growth through sufficien beautification of existing development, contrary to General Plan Policy 2.a-I10.

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The Project would draw community, economic and business focus away fro Town Center and Midtown, contrary to General Plan.

51. The City Council further found the proposed location of the Project will be injuriou or detrimental to property, improvements, and/or the public health, safety, and general welfar and found the Project would cause urban decay and neighborhood deterioration impacts tha cannot be adequately mitigated through conditions of approval. See Resolution No. 7996. 52. Nothing in the Walmart Initiative, which simply amends the Zoning Ordinance (bu not the General Plan) to create a new Milpitas Commercial Specific Plan zoning district, in an way acts to remove or resolve these expressly identified General Plan inconsistencies. Nor ha the General Plan been otherwise amended to resolve these inconsistencies. While the Walm Initiative creates a less-stringent permitting process for the Walmart property, the end result i the same: expanding the existing Walmart store and modifying its use into "superstore," a resul 11
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which this City Council has already declared conflicts with the General Plan's policies in at leas
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53. The inconsistency cannot be remedied by subsequently amending the General PI to conform to the Specific Plan. Lesher Communications, v. City of Walnut Creek teaches tha the "tail does not wag the dog...the generalplan is the charter to which the ordinance mus conform." 52 Cal.3d 531 at 541. 54. Consequently the Specific Plan is inconsistent with the General Plan and the Cit committed a prejudicial abuse of discretion in adopting the Specific Plan: THIRD CAUSE OF ACTION
(Violation of Gov. C. §§ 65864 et seq. and California Constitution: Ordinance Impermissibly Restricts the Police Power of the Legislature)

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55. Petitioner realleges and incorporates herein by reference the allegations set forth i paragraphs 1 through 54 above. 56. Under California law, a legislature cannot adopt an ordinance restricting the polic power of future legislative bodies. Citizens for Jobs and the Economy v. Orange (2002) 9 Cal.App.4th 1311 holds that this principle applies even where the ordinance is the result of voter-sponsored initiative. 57. The Specific Plan places an impermissible restriction on future legislatures b absolutely prohibiting the City Council from initiating any action to amend the zoning or gener plan designations or otherwise amending the Specific Plan. See Title XI, Chapter 10, Sectio 11.07.E.6 of the Milpitas Municipal Code as adopted by Ordinance No. 38.799. The Specifi Plan also "requires future projects to be compliant with environmental standards established a the time of Initiative adoption... rather than those in existence at the time of an application for new use." See Title XI, Chapter 10, Section 11.07.F. of the Milpitas Municipal Code as adopte by Ordinance No. 38.799. 58. Land use regulations such as those identified in the Specific Plan involve th exercise of the City's police power. Accordingly, a broad surrender of the City'S police power, such as the one provided for in the Specific Plan is invalid. Such action, if at all possible, migh 12
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be accomplished through strict compliance with the Development Agreement Statutes (Gov. Code § 65864 et. seq.). Cal.App.4th 172, 182. 59. To the extent the City's Ordinance adopting the Walmart Initiative attempts t establish perpetual vested rights for development Of the property through Trancas Property Owners Ass 'n v. City of Malibu (2006) 138

a de facto

developmen Governmen

agreement the Initiative violates the governing Development Agreement Statutes. Code §§ 65864 et seq.

60. The Initiative cannot act as a development agreement because it fails to satis several express requirements under the Government Code. For example: • The City can only enter into a development agreement with a person having a legal or equitable interest in the real property subject to the agreement. Government Code § 65865(a). Walmart is not a "party" to the Initiative and there is no arms-length negotiation between the City and Walmart regarding the City'S surrender of its police power in violation of § 65865(a). A development agreement must specify the duration of the agreement. Government Code § 65865.2. The Initiative establishes a surrender of police power in perpetuity in violation of § 65865.2. A development agreement shall not prevent a City from applying new rules, regulations, and policies applicable to the subject property which do not conflict with the rules, regulations and policies set forth in the development agreement. Government Code § 65866. The Initiative prevents the City from applying any new rules, regulations, and policies to the Specific Plan Area in violation of § 65866. Consideration and adoption of development agreements require public hearings. Government Code § 65867. The City did not hold any public hearings on the Walmart Initiative in violation of § 65867. The City must make findings of consistency with the General Plan before it can approve a development agreement. Government Code § 65867.5(b). The City failed to make these findings in violation of § 65867.5(b) and, as alleged in the Second Cause of Action, the Walmart Initiative is inconsistent with the General Plan. A development agreement may be amended or cancelled by either party to the agreement. Government Code § 65868. The Initiative by its terms cannot be amended or cancelled by the City in violation of § 65868. A development agreement must be recorded with the County recorder. Government Code § 65868.5. The Initiative has not been recorded in violation of § 65868.5.

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61. The City's approval of the Specific Plan was not performed in accordance with the Development Agreement Statutes. Therefore, the City's adoption of the Walmart Initiative was invalid, constituted a prejudicial abuse of discretion, and must be set aside. FOURTH CAUSE OF ACTION (The Ordinance is not a Legislative Act that can be Enacted by Initiative) 62. Petitioner realleges and incorporates herein by reference the allegations set forth ir paragraphs 1 through 61 above. 63. State law limits the initiative power to "legislative acts" and may not be used te implement "administrative" CaL4th 763, 776. or "quasi-judicial" matters. De Vita v. County of Napa (1995) 9 and specific plans are generally

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While zoning ordinance amendments

considered to be "legislative acts", a legislative act label alone is insufficient and an initiative will be overturned where the measure really amounts to an administrative approvaL Marbleheaa v. City a/San Clemente (1991) 226 Ca1.App.3d 1504. 64. The Walmart Initiative constitutes such an invalid administrative action. The

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Walmart Initiative applies to a single piece of property. Petitioner is informed and believes ane on that basis alleges that the property owner assisted in drafting the Walmart Initiative.

The

Walmart Initiative, exempts that property from land use controls that apply to other property within the City. 65. Moreover, the stated objectives of the specific plan are very similar (and in some cases identical) to those contained the in the Walmart Expansion Project EIR's list of Projec Objectives. For example: Milpitas Commercial Specific Plan Objectives (p. 4) • Expand and upgrade an existing retail facility to provide the City of Milpitas and surrounding communities with a modern and energy efficient facility that provides daytime and nighttime shopping opportunities in a safe and secure environment. Corresponding Walmart Expansion Project Objectives (Draft ErR p. 3-27) • Expand the existing Walmart store to provide the market area with an affordable shopping alternative that offers a wide variety of products to the City of Milpitas as well as the surrounding communities. Provide a retail establishment that serves local residents and visitors

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1 2 3 4 5 6 • Promote economic growth and development that is consistent with the policies of the City of Milpitas General Plan. •

with essential goods and services, in a safe and secure, 24-hour shopping environment.

Promote economic growth and development that is consistent with the policies of the City of Milpitas General Plan

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8 9 10 11 12 13 14 15 16 17 18 .. Create additional employment opportunities for local area residents.
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• Minimize travel lengths and utilize existing infrastructure to the maximum extent possible by expanding and revitalizing an existing retail store.

Minimize travel lengths and utilize existing infrastructure to the maximum extent possible by expanding an existing Walmart store.

• Generate sales tax and property tax revenues to accrue to the various agencies within the Specific Plan area.

Generate tax revenues to accrue to the various agencies within the project area.

• Enhance the commercial retail opportunities in the City of Milpitas and surrounding communities.

Enhance commercial retail opportunities available in the City of Milpitas.

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Create new job opportunities for local residents.

66. The Initiative mandates that the Walmart Expansion Project described

in the

previously rejected EIR to be approved by the City as a ministerial application that eliminates environmental review, discretionary conditions, and any administrative appeal process. In short, the initiative is crafted exclusively for Walmart's benefit in an effort to circumvent the City's police power, public input, and the environmental review process. Eroding the distinction

26
27

between legislative and administrative acts to allow a property owner to obtain approval of a specific development project while eliminating compliance with local planning and zoning laws and eliminating public input does not further the intent and purpose of Cal. Const. art. II, §11 and

28
HERUI'1\CRABTREE
\

15
PETITION FOR WRIT OF MANDATE

1 2 3 4 5 6 7 8 9

the implementing provisions of the Elections Code and is not within the scope of the initiativ process and the Initiative is an unlawful use of the initiative process. 67. Eroding the distinction between legislative and administrative acts to allow politica subterfuge does not further the intent and purpose of Cal. Const. art. II, §11 and th

implementing process.

provisions of the Elections Code and is not within the scope of theinitiativ the Walmart Initiative is fatally flawed and the City's subsequen

Accordingly,

adoption of Ordinance 38.799 is invalid. PRAYER WHEREFORE, Petitioner prays: 1. That this Court issue a peremptory writ of mandate: A Commanding Respondent City of Milpitas to immediately rescind it

10
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

adoption of Ordinance No. 38.799, approving the Milpitas Commercial Specific Plan; B. Commanding Respondent City of Milpitas to immediately suspend al

activities in furtherance of Ordinance No. 38.799, including but not limited to issuing gradin permits, building permits, certificates of occupancy and/or engaging in any construction furtherance ofthe Walmart Expansion Project at the Specific Plan site; C. Commanding Respondent to comply with State Law and the Milpita i

General Plan as in any subsequent action taken by the City to adopt the Specific Plan; and D. Commanding Respondent to prepare an environmental analysis for th

Specific Plan and otherwise to comply with CEQA in any subsequent action taken to approve th Specific Plan;

2.

For a temporary

restraining

order

and preliminary

injunction

and/or

sta

restraining, Respondent City of Milpitas from taking any action under the Specific Plan pendin entry of judgment. 3. That Petitioner be awarded the cost incurred in bringing this action, includin

reasonable attorney fees pursuant to Code of Civil Procedure 1021.5, the "common benefit" theory, Government Code Section 800, or as otherwise provided by law or equity. 4. That the Court grant such other and further relief as may be equitable and just. 16
PETITION FOR WRIT OF MANDATE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
HERUM\CRABTREE ,
\

Respectfully submitted, DATED: July 15,2011 HERUM CRABTREE A California Professional Corporation

By: SETH P. SHAPIRO Attorneys for Petitioners Milpitas Coalition for a Better Community

17
PETITION FOR WRIT OF MANDATE

1 2 3 4 5 6 7 8 9 10
11

VERIFICATION I am one of the Attorneys of Record on whose behalf the foregoing First Amended Petition for Writ of Mandate is verified. I have read it and know the content thereof. I am informed and believe the matters therein to be true and on that ground allege the matters stated therein are true. I make this Verification because the party I represent is absent from the County of San Joaquin where I have my office. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed at Stockton, California on July 15,2011.

12
13

SETH P. SHAPIRO

'd/~~

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HERUM \CRABTREE
;. i\:'

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18
PETITION FOR WRIT OF MANDATE

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H ERUM\ CRABTREE.
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19 PETITION FOR WRIT OF MANDATE

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