1 2 3

4

Rachei Mansfi eld-Howlett/ SBN 248 8 09

PROVENCHER & FLATT, LLP 823 Sonoma Avenue
Santa Rosa, CA 95404 7 A7 .284.2380, fax 7 07 .284.2387

RECEIVED
AUG 2

2 20ll

CITY OF PLACERVILLE ADMINISTRA|ION DEPT.

5
6
1 8 9

Attorney for Petitioner

SIIPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF EL DORADO

10 11

FRIENDS OF HISTOzuC TIANGTO-WN,
Petitioner;
V.

Case

No. PC-20Ii0i45

I2
13 L4

PETITIONER'S REPLY BRIEF IN
SLIPPORT OF WRTT OF MANDAMUS
et. a/,

CITY OF PLACFI.YILLE
Respondents;

15 16

California Environmental Quality Act

tcEQAl CITY OF PLACFI.YT-LE
et al.,

tl
18 19 20

Real Party in Interest,

Date: August 26,2071 Time. 9:00 a.m. Department:9 Honorable Nelson K. Brooks

2L
22 23 24

25 zo
21
LO

Petitianer's Reply Brief in Support of l4trit of Mandamus

1
2

Table of Contents
Petitioner's Reply Brief in Support of Writ of Mandamus

3

5
6
'1

Contents......... Table of Authorities ......... Standard of Review
Table of Evidence Needed to Support a Fair

........i

.......ii
....,..

I

B

9

10 11 12 13 L4 15 L6 L1 18 19
2A

Argument 1. Traffic Impacts 2. Construction Related Traffic Impacts 3. Safery Impacts 4.ParktngRelated Impacts.... 5. Biological Impacts Impacts to Trees ..... Impacts to Sensitive Habitats 6. Toxic Impacts 7. Aesthetic and View Impacts 8. Historic Resources Impacts 9. Growth Inducing Impacts 10. Urban Decay Impacts

.....,............2 .........7
.......8

...................9
...............
10

..................l2
.........12 .............13

..............

13 15 16 18 19

.............
..... ......-...... .....

11. Inconsistenry with Area Plans and Policies Impacts ......... 20

Conclusion

.............

............20

2I
22

23
a/ 25

26
21

zd

El Dorado Superior Court Case No. PC-2C\II0I45 Page i
Table of Contents and Table of Authorities

1

Table of Authorities

2

3
4

State Cases
Architectural Heritage Assn. v. County of Monterey (2004)

Page

5
6

122 Cal.App.4*

1095........ ...... .......

................5

Arviv Enterprises v. South Valley Planning Commission (2440)
101 Cal.App.4* 1333
1

.................2

Bakersfield Citizensfor Local Control v. City of Bakersfeld (2004)
B

1,24

Cal.App. n' 1184

................ 4, 19

9

Bowman v. City of Petaluma (1986) 185 Cal.App.3d

10 11

1065.

.........5

Bozung v. Local Agenry Formation Com. (1975) 13 Ca1.3d 263

I2
13

..

......14

Citizens Associationfor Sensible Development of Bishop Area y. County of Inyo (1985)

I4
15 L6

Il2 Cal.App.3d 151.....
Citizens Committee to Save Our Village v. City of Claremont (1995)

........2,3,4,19
...........6

37

CaI.App.4thll57..... 433... 1323.........

\1
1B

Cirizensfor Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d

........,....20

Citizensfor Responsible and Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th

19 20

.................2

Citizensfor Responsible Development v. City of West Hollywood (1995)

2I
22 23 24 25

39 Cal.App.4h

490 .....

..............6

City of Carmel By-the-Sea v. Board of Supervisors (7986)
183 Cal.App.3d 229

.......,..........2

County Sanitation Distria No. 2 v. County of Kern (2005)

127 Cd'.App. n

1544....

................5,7
..............14

Enyironmental Defense Fund, Inc. v. Coastside County Water Dist. (1972)
26

27

Cal.App.3d695...

2l
2B

El Dorado Superior Court Case No. PC-20i 10145 Page ii
Table of Contents and Table of Authorities

1

Friends of the OId Trees y. Depafiment of Foregry and Fire Protection (1991)

2 3
4

52 Cal.App.4ft

1383 t

................2
Regents of the University of California (7988) (Laurel Heights

Laurel Heights Improvement Assn.

I)

47 CaI.3d 316
5
6 1

..

'.-..14

Laurel Heights Improvement Assn. v. Regents of University of Caffirnia (1993) (Laurel Heights

II)

6 CaL4h 1712 ..
Lucas Valley Homeowners Assn. v. County of Marin (1991)

......

11

233 Cal.App.3d

130.......

'.."".'..'..5
'..'......'.'.
15

B

Mount Sutro Defense Committee 77

v. Regents of University of California (1978)

9

Cat.App.3d2} 68............ 396.......... 872.....
t. County
of San Diego (1998)

10 11

No Oil, Inc. v. City of Los Angeles (1914)
13 Ca1.3d

....'.-."-.-.14

I2
13

Ocean View Estates Homeowners Assn., Inc. y. Montecito Water Dist, Q0A4) (Ocean View Estates)

116 Cal.App. ^
Oro Fino Gold

..2,4,76
"---'...2-4
........5

I4
15 L6

Mining Corporation v. County of El Dorado (1990) (Oro Fino)

225 Cal.App.3d

Pala Band of Mission Indians 58 Cal.App.4b

556

LI
1B

Perky v. Board of Superuisors, (1.982) 137 CaI.App.3d 424........ Quail Botanical Gardens Foundation v. City of Encinitas, (1994) (Quail Botanica[)

19 20

29 Cal.App.4b

7597

...........2,4,5
....-- 5

2I
22 23

Siena Club v. County of Sonoma (1992) 6 Cal.App.4h

7307
^
370

Siera CIub v. California Department of Forestry and Fire Protection (2007)
150 Cal.App.
24 25

......
(i995)

............-.-..2,

6

Stanislaus Audubon Society, fnc., v. County of Stanislau.s

33 Cal.App.4th 744 ............

5, rJ,78

26
21
2B

Stevens v.

City of Glendale (1981)
El Dorado Superior Court Case No. PC-20I10145 Page iii
Tabie of Contents and Table of Authorities

1

125 Cal.App.3d 986...... Sundstrom v. County of Mendocino (1988)

11

2

3
4

202 Cal.App.3d

296.......... 903....... 94.......
$$

14,15

The Pocket Protectors u. City of Sacvamento (2004) (Pocket Protectors)

724 CaLApp.
5 6
1

t'

2, 5,7, 16

Valley Advocates v. City of Fresno (2008)

160 Cal.App.A*

.....'.."

16

B

Califoneia Public Resources Code

9

21080(e)
California Code of Regulations, Title 14 (CEQA Guidelines)
15000

.'---- 6

10 11 72 13

I4
15

etseq. r5D6.a@)(1XD) 15384 1538a(a)

.......'

5

.................11 .-.-....-.2
'- 4, 5

L6

I1
1B

L9
2A

2I
ll

23
24
a= LJ

26
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28

El Dorado Superior Court Case No. PC-20110145 Page iv
Table of Contents and Table of Authorities

Respondents' chief avenue of argument is that Petitioner, Friends of Historic Hangtown,
has not met the burden of providing "substantial evidence" to support the "fair argument"

standard. The City does not really offer much in the way of defense to Friends' substantive claims,
instead the City tries to mischaracterize the evidence. In standard boilerplate fashion, the City

improperly dismisses relevant first hand evidence made by longlime residents and experienced downtown local business owners as speculation. The City's assertion runs afoul of a long line of
cases that recogntzelay testimony

-

including testimony by planning staffand City Council

members

- as substantial

evidence sufficient to support the

fat argument standard.

The City asserts the proposed Project has spent years in the planning process. (CitV

Opposition Brief at page 72 ("Opp. atpage" hereafter.) Yet, this is the first time environmental
10
11

review has been conducted for the Roundabout Project. In the face of overwhelming substantial
evidence, the City should have sirnply prepared an EIR rather than sffuggling to support an inadequate negative declaration. Though the City touts the years of planning for the Project, much

72 13
L4 L5

of the information relied upon by the City was withheld from public review until after the mitigat
negative declaration was published, as detailed in the Opening Brief. (Opening Brief at 5-6.)

Friends continue to rely on their Opening Brief in support of the Writ. Standard of Review The City correctly notes that preparation of a negative declaration constitutes an appropr level of environmental review only when there is "no substantial evidence" in the record that a

L6
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project "may" have an effect on the environment. (Opp. at 4.) The City reviewed a mountain of
evidence and testimony submitted by area residents, experts, and City Council members and contends there is "no substantial evidence." This bald asserrion plaidy belies the record.

T9
2A

2I
22 23
24

The agenry of course, must review the whole record to determine whether the evidence is substantial. (Opp. at 6.) Once there is substantiai evidence in the record to support a fa]f argument, the agency shall prepate anEIR even though it may also be presented with other substantial
evidence that the Project will not have a significant impact. The agenry, nor the Court may weigh

the evidence for and against. The only inquiry is whether the evidence is credible and substantial' The City falsely claims Friends did not cite to the whoie record. Friends cited to the environmental report, the MND, the scant 3-page mitigation monitoringptogram, the City's

25

26
21
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historic reports, ftaffic report, toxics analysis, staff reports, Planningand Council testimony,
responses to comments, and the brief findings in support of the agency decision.

El Dorado Superior Court Case No. PC-Z0110145

Petitioner's Reply Brief in Support of Writ of Mandamus

-

Page I

Evidence Needed to SupBor-t e KE air,4.rgument" As the City relies on a misch aracterizatton of the evidence submitted in support of a fait argument, Friends reiterate this special evidential standard.

To raise a fatr argument it is not necessary to bring forth credentialed experts to offer scientifically irrefutable, site-specific information foretelling certain environmental harm. (Friends
the Old Trees y. Dep't of Forestry and Fire Protection (1997) 52 Cal.App.4ft 1383, 1402.) The evidence

supporting afatr argument need not be overwhelming, overpowering, or even unconfradicted' (Ibid.) Substantial evidence to support a farr argument means "enough relevant information and
reasonable jnferences from this information that a fatr argument can be made to support a

conclusion, even though other conclusions might also be reached." (Cal. Code Regs., tit. 14 $
10
11

15384; The Pocket Protectors v. City of Sauamento Q004) 124 Cal.App.4h 903, 927 , 928 (Pocket
Protectors.)

L2
13

Testimony of arearesidents who are not qualified environmental experts qualifi.es as substantial evidence when based on relevant personal observations. (E.g., City of Carmel By-the-Sea
v. Board of Superuisors (7986) 183

Cal.App.3d

229

I4
15 16
T1
LB

, 246 n.8;

Oro Fino Gold

Mining Corporation

v.

County of El Dorado (1990) 225 CaLApp.Sd 872,882; Citizens Associationfor Sensible Detelopment

of

BishopAreav. Countyoflnyo (1985) L72Cal.App.3d751,773(Bishop)

["...an

adjacentproperty

owner may testi,fli to ffaffic conditions based upon personal knowledge. . . ."]; Quail Botanical
Gardens Foundation, rnc. v.

city of Encinitas (1994) 29 Cal.App.Ab 7597,1604-1605; Aruiv

Enterpr{ses v.

South Valley planning Commission (2000) 101 Cal.App. ^ 1333 [Relevant personal observations

of

19 20
27

neighbors regardtngslope, dust, erosion, and access problems supported EIR.]; Ocean View Estates
Homeowner's Association v. Montecito Water District (2004) 116 Cal.App.4b 396 (Ocean View Estates) based on subjecti',re views of residents regarding potential aesthetic irnpacts

BIR required

of

22 23
24

reservoir project affecting private views and public hiking trail.]; Pocket Protectors, supra 124 Cal.App.4* 903 BIR triggered by fair argument of aesthetic impacts of housing project and its
argvable inconsistency with adopted plans.]; Citizensfor Responsible and Open Government v. City

of

Grand Tewace (2003) 160 Cal.App.4h 1323 [EIR required based on opinions of residents regarding, aesthetics, noise, and character of the surrounding residential neighborhood, even though City adopted various mitigation measures to address concerns.].) Under these cases, input from nonexperts can be substantial evidence where such input is credible and does not purport to embody analysis requiring special training.

25 26
21

to

El Dorado Superior Court Case No. PC-20110145

Petitioner's Reply Brief in Support olWrit of Mandamus

-

Page2

lylembers of Friends consist of longtime atearesidents and business owners with relevant
personal knowledge, experience, and observations, whose timely submissions to the City became a

part of the official record of proceedings. Courts have long held that such lay testimony often constitutes substantial evidence.

In

Oro

Fino Gold Mining Cotporation v. County of El Dorado (1990) 225 CaLApp.3d8l2,884

(Oro Fino) the court found lay testimony of area residents to be substantial evidence as to matters

within their personal knowledge, constituting substantial evidence.
Cal.App.3'd at882 citing Bishop, supra, I72 CaLApp.3d at 173.)

(Oro Fino, supra,225

A person need not be an "expert" in the legai context but may have expertise that allows
them to make a personal observation.In Oro Fino, aBoard Supervisor with knowledge about the relationship between drilling and groundwater contamination noted that drilling qeates pathways

10
11

I2
13

for contaminants to travel to aquifers. Another Board member with drilling experience found it irrcredulous that there were no boring logs from the previous drilling project. (&o Fino, supra,225 Cai.App.3d at 883.) Here, Vice Mayor Machado recalled the traffi.c impacts of the Main Street renovation and stated he was "... sti1l concerned about the lcurrent Project's] bridge phasing and ffaffac." (AR3:753.) Vice Mayor David Machado stated, "The one thing that we have not mitigat
is Pacific Street atCedar Ravine. It's a nightnare now, whether you're making

I4
15
r-6

artghttum or a left

rurn; but to have a roundabout, especially at peak p,m., that's just feedingtrafftc onto Cedar Ravine. At least now, you have the yield and you have the stops that buys every so often those intermittent gaps that allows the Pacific Street to work. I think once the roundabout is just sending

11 L8

19
2A

trafficup Cedar Ravine, Pacific Street becomes arcal nightmare." (AR3:754-755.) It's true that mere concem does not constilute admissible evidence. (Perky
Supervisors, (1982) 137
v. Board

of

2L 22

Cal.App3d a24.) ln

Oro

Fino, therewas much pubiic opposition to the Oro
a

mining project based upon their experience with

prior mining project. The court found the

public's concem about Oro's project therefore was not merely subjective speculation. It was based
on their previous personal experience .(Oro Fino, supra,225 CaI.App.3d at 884.) So too here, Friends have direct personal experience with local traffic conditions, previous personal experience

23
24

25 26
21
2B

with simii ar traffic impacts to downtown Ilom the Highway 50 roadway project, personal
knowledge of the need for downtown parking, and personal lcrowledge and experience of the
aesthetic vantage points of the overiook.

El Dorado Superior Court Case No. PC-20110145

Petitioner's Reply Brief in Support of Writ of Mandamus

-

Page

3

Similarly, in Bakersfield Citizens v. Bakersfeld (2004) I24 CaI.App. ^ 1184, 1217, the court found evidence regarding potential to cause urban decay was substantial because of relevant
personal observations about area businesses. The court stated: W6i1e these individuals are not experts in any sense of the word, their fusthand observatior should not casually be dismissed ai immaterial because "relevant personal observations are evidence." (quoting Bishop, supra,172 CaLApp.3d at173; see also Ocean View Estates, sl'tpra' 116 Ca1.App.4* at402.)

Here, longtime business owners related their own experience with the effect of past sffeet closures on dovmtown businesses and correlated it to similar impacts of the proposed Roundabout Project.

In Bishopthe County approved a shopping center project, split into two approvals and with two negativ e deelarutions. The County claimed that all of the public testimony merely represented
LO

L1

fearsunsupportedbyanyevidence. (Bishop,supraI72Ca1.App.3datp.l73.)Butthecourtheldthat relevant persona-l observations are evidence. For exampl.e, an adjacent-propertv owner ma'y testif,i
Viceto traffic conditions based upon personal knowledge . (Ibid.) Hete, numerous individuals and Mayor Machado spoke to their personal knowledge of existing traffic problems on adjacent streets
559; and the Project's potentiai to worsen this unstudied effea. (Opening Brief at 12; AR2:549, 3:66I, 663, 666, 677, 683,70g,754-158,827.) These observations were based upon facts and reasonable
as

I2
13

I4

l5
I6 I1
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sumptions predicated upon facts.

In

Ocean View Estates, supla, alarge

aluminum cover was proposed to be put over a resewoll'

The homeowners argtedthat the reservoir cover would be seen not only from private residences from also from public trails. (Id. at 402.) As here, the Disn"ict argted that expressions of concem'
questions or objections do not constitute substantial evidence of an adverse environmental impact. (Ciring CEQA Guidelines, $ 15384, subd. (a).) The District points out that tn Quail Botanical, supra, 29 Cal.App.4n at 1605, substantial evidence of view obstnrction was based on photographs with story poles and the testimony of an expert surveyor'
Ocean View Estates, the

19 20
21

22 23 24 25

Although there was no such evidence rn

court determined the matter

not be tn euail Botanicalwas an objective determination of obstruction. Opinions that the cover will aesthetically pleasing is not the special puwiew of experts. Personal observations on these nontechnical issues can constifute substantial evidence, like tn Oro Fino, supra,225 CalApp'3d at gg2 where residents' complaints about noise can constitute substantial evidence. Here, Friends and
and others showed photogaphs of the existing established trees and habitat proposed for removal does compared it with the little trees proposed as mitigation planttngto show that the mitigation

26
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2B

not reduce the aesthetic impacts of removal to insignificance' (AR2:319')
El Dorado Superior Court Case No' PC-20110145

Petitioner's Reply Brief in Support of Writ of Mandamus

-

Page 4

In Stanislaus Audubon
stated:

Society v. County of Stanislaus (1995) 33

Cal'App'4'h I44' the court

lespondents appeal to Much of the instant dispute stems from the unreasonable definition or overpowering give to the term substantial evidence, equating it withoverwhelming Rather' appellant' on evidence. CEQA does not impose such a moiumental burden 'ponderablelegal significance ' ' ' substantial evidence is simply evidence which is of " (Lucas valley Hwvpv,wr;-&;zt'v-C-q4t reasonable in nature, credibl;, and of solid value .' " ( Ca1' Code Regs'' tit' 14' $ qf Main {1997} TJ tal.hpp.id 130,142.\ CEQA Guidelines iSubstantiuGuid.tt..' "is "enough relevant-information and 15000 et seq.) ,tut. thut " canb^e-m2de to support a reasonable inferences from this information that afau algument (C.al . cocle itegs' tit. atcn horeer-hed Code Rggs., " (-Cal' -.:^-. -;-1"r also be reached." conciusion, even though other conclusions might "raw (a).) Th-us, respondents' attempt to persuade us to consider only S iS:Sa, subd. ., establishing th ^-+^klic i;i;,;,'iirit require quantitativ..nuirorr,nental studies definitively
"Y*nalyt1c

10
11

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T4

exisience of the claimed environmentai impacts is unpersuasive. of providing Willms and the County seem to believe appefantbears the burden proposed country clttb will extensive studies oI expelt t"rii,,'ony definitively iroving the plesent evidence demonstratmg have a growth-inducin! effect on the surroundin garca or to appellant is required it had already spurred growth in the surroundin { ut"u' To the contlary' to support afair sufficient only to demonsffat. thut the record contains suistantial evidence effect' argLmentthat the project mayhave a significant growth-inducing

15

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insists that expert testrmony or raw (stanislaus, sLtpra,33 car.App.4n at 152.) so too here, the City a fa:r- afgument' Not so' data is required to establish substantial evidence supporting 556' In Pala Band of Mission Indians v. County of San Diego (1998) 58 Cal'App'4n

,,[T]he question is one of law, i.e., "the sufficiency of the evidence to support afart argument'" Under this standa rd,
an
deference to the agency's determination is not appropriate

and its decision not to requxre
v-,

19 20
?,1

EIR can be upheld only when there

is no credible evidence to the contrary.

(Sjefl* CIub

C^auryt|!

tf

see also Bowman v' City of Petaluma Sola-afiq{1992) h f,alApp:4ol 13-0J,1-31f-:1318-, emphasis added; of review involves a question of (19s6) 1g5 Cal. App.3d 1065, 1073.) Thus, the applicable standard

22 23
24

rathel than the typical law requiring a certain degree of independent review of the tecord, being given to the factuai substantial evidence standard which usually results in great deference at 160I-l'602' fir' omitted') determinations of an agency. (Quail Botanical, supra, 29 Cal'App '4n city councilmembers, and othe Opinions based on the expertise of planning commissioners,
substantial evidence public offi.cials with expertise in land use and planning also qualify as Pocket Protectors' supra' I24 supporfing afagalggment. (stanislaus, supra,33 Cal.App.4h atL44; Monterey (2005) 122 Cal'App'4* Cal.App.4* 903, 934; Architectural Heritage Association v. County of Kem (2005) I2l Cal'App'4s. 1544' an 1095, 1115.) In County Sanitation Distrfct No. 2 v. Counry of proposed project would resuit in EIR was required based on declarations of agency staff that a
El Dorado Superior Court Case No' PC-20110145

25 26
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2B

-

Page 5

F"tltlot't".'t Reply Brief in Support of Writ of Mandamus

emissions exceeding air pollution thresholds. Here, Vice Mayor Machado expressed that the Cedat

Ravine and Pacific intersection had not been adequately studied or mitigated and he also confirmed the potential for unexamined construction related traffic impacts. (AR3:753-755') Planning Director Randy Pesses stated that a warrant analysis shouid be conducted for the Cedar Ravine and Pacific intersection. (AR3
:

75

6-7 58.)

A conflict in expert opinion over the signifi.cance of an environmental impact normally
requires preparation of an EIR. (Guideline $ 1506a(g); Sierra Club v. CDF (2007) 150 Cal.App'4ft 370.) In Sierra Club v. California Department of Forestry and Fire Protection (2007) 150 Cal.App.4h 3J0,

the Court required prepantjon of an EIR based upon evidence that consisted primarily of one le submitted by an expert rcgardingpotentiai environmental effects of increased sediment due to
10 11 1? 13
L4

erosion and impacts to downstream fish habitat. Here there was no issue about a conflict in expert opinion regarding: unstudied ffaffic impacts atnearby intersections, construction related impacts, utban decay, or potential impacts of the replacement parking, as these areas were not analyzed in the MND and the City did not put

forward any experts on these issues.
Regarding the lack of analysis of potentially affected history resources on the local level,
expert opinion was offered by Milford Wayne Donaldson, State Preservation Offi,cer for the
15

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1B

California Office of Historic Preservation, stating there is no indication in the MND that the possible significance of the bridge had been addressed. (AR74:4I24.) ,Iennifer M. Gates, Field
Services Director, California Preservation Foundation in partnership with the National Trust for

I9
20

Historic Preservation, concurred. (AR1

6 :47

27 ; 47 28.)

2I
22 23
24

Further expert testimony was received from Sue Tayor and Ron Clark who expressed safety concerns about the Roundabout Project at the proposed location due to site constraints which may
result in ingress and egress problems and limited sight lines of the yet to be designed pedestrian

walk ways, none of which had been analyzed in the MND. (Opening Brief at2A-21.) Planning Director Pesses concurred that there were sight line issues with the Project. (AR3:535.)

If afacfiial dispute arises based on the credibility of evidence,

the lead agenry has discretion

25 26
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LO

to determine whether the information has adequate foundation, involves an issue within the
expertise of the witness, or entails speculation. (Pub. Res. Code $ 21080(e); Citizens Committee to
Saye Our Village v. City of Claremont (1995)

37 Cal.App.4* 1751,1L70-7I; Citizensfor Responsible

Developmenr v. City of Wesr Hollywood (7995) 39

Cal.App.4^ 490.) The credibility problem must be

fact-based and must have been specificaliy addressed by the lead agenry during the administrative
El Dorado Superior Court Case No. PC-20110145

Petitioner's Reply Brief in Support of Writ ol Mandamus

-

Page 6

e.g', "never process, with an example being an expert shown to have misrepresented credentials:
at 935') Here, attendedcollege and his Ph.D. is phony." (Pocket Protectors, supra,124 CaI'App'An

no such credibility issues arose during the administrative process'

l. Traffic

ImPacts

The City confirms that the Fehr & Peers ffaffic report only considered two intersections; at Main Street/Clay those that were actualiy located within the Project boundary, the intersections this is insufficient' Street and Main Street/Cedar Ravine. (Opp. at 8; AR10:2976.) As pointed out, provides thata (Opening Brief at 11-13.) In County Sanitation, supra,I27 CaI.App.4tu 1544, the court "CEQA defines the negative declaration may be defective if it artificially limits the impact area. affectedby the relevant geographical environment as the area where physical conditions will be for proposed project. Consequently, the project area does not define the relevant environment

10 11 T2
r-3

project atea'" purposes of CEeA when a project's environmental effects will be felt outside of the
(Id. at 1582; Pub. Resources Code
$

21060.5.)

L4

The City claims it may rely on the expertise of planning staffto determine whether there study will be a signfficant impact. Here however, staff did not have the benefit of a comprehensive analysis and that took into account ranything more than two intersections. The Cify may not avoid
then fall back on planning staffs credibility.

15
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TB

study of Friends and nurnerous cornmunity members requested *re City conduct afiaffic traffi-c. (opening nearby intersections to determine the impact of the roundabout project ofi atea citizens, bu Brief at 12; AR2.549; 3i:661, 154-155 .) Ample evidence was put forward from, not only with the local the Vice Mayor, and p.lanning staff, all of whom have intimate personal experience roundabout would traffi.c pafferns. Abundant evidence was submitted to the City that stated the (Opening Brief at 11-13') lead to ffaffi.c congestion at nearby, akeady congested, intersections. (Ibid') Citizens and others requested the study areabeexpanded to include the nearby intersections' Friends met their burden. The City againopines that Friends only ci.te to lay opinion; no experts, no "substantial of evidence" within the nneaning of CEQA. As explained, lay testimony and testimony

19 20
21

22 23
.A

25 26 21
?B

their direct commissioners and planning staff constitute substantial evidence if it is based on Planning Director experience and knowl edge ofarea conditions. The City claims Friends misstate
Cedar Ravine Randy pesses testimony regardingthe need for a " detaLled warrant analysis" at the This intersection was and pacific street intersection in connection with the Roundabout Project.

(Opp. at 12:25-27', one of the intersecrions in the adjacent area not included in the traffi.c analysis.
El Dorado Superior Court Case No' PC-20110145

Pelitioner's Reply Brief in Support of Writ of Mandamus

-

PageT

9:20-2L) But pesses confirmed the need for av,rarcant analysis at this intersection in relation to the

traffic generated by the Roundabout Project.
The ultimate solution is a three-way stop sign... [o]ut of a roundabout...you're going to havr people flowing through the roundatout and then they'll have to come to a stop here. '. ' One iuggestion wai we'lljust have a stop going northbound on Cedar Ravine and leave that one 1rriiop controlled, but then you have the siruation, as somebody indicated, where somebody is expecting it to be an all-way stop, but it isn't, and then they wind up getting t-boned at an interiection. So, you have to be careful with that and it would need a detailed warant only long-term solution there. analysis to determine if the all-way stop is the only (AR3:758.)

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Vice Mayor David Machado confirmed that the Roundabout Project would cause a worsening of traffic. "The one thing that we have not mitigated is Pacific Street atCedar Ravine.
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It's a nightmare now, whether you're making a right turn or a left turn; but to have a roundabout, especially at peak p.ffi., that's just feedin gftafftc onto Cedar Ravine. At least now, you have the yield and you have the stops that buys every so often those intermittent gaps that ailows the Pacific
Street to work.

I think once the roundabout

is

just sending traffic up Cedar Ravine, Pacific Street

becomes arealnightmare."(AR3:754-755.)TheevidencesetforthintheOpeningandRepiybriefs prepared to supports a fav argument that unanalyzedtraffic impacts remain and an EIR must be adequately analyze and propose altematives and appropriate mitigation.

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2. Constmction Related Traffic Impacts
The City argues that Friends have not provided any substantial evidence to support a fatr argument that the project will potentially cause ffaffic impacts related to construction other than
the impact past projects have had on t}re arca. Howevet, the City conceded in testimony at the planning Commission level and atthe Council that the construction Project will shut down and

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limit uaffi.c in the area during the several months the Project will demolish the brtdge, overlook,
sffeets and parking lots and during consffuction of the new bridge, roundabout, and sffeet (Opening at 13; ,\R3:126-728.) Friends and others cited to their recent direct experience

alignment.

with the Highway 50 roadway project that would similarly consffain access to downtovm to merchants. (Opening Brief at13-14; AR3:650, 653,674,678,684,124-730.) The MND failed
consider this a potentially significant impact.

The City contends that all consffuction projects are required to allow a least one-way ffaffic during the construction period. (AR3:654.) However the MND did not consider construction up impacts as potentialiy signific ant and it is clear from testimony that the City has yet to come

with

a plan to handle trafftc during the construction

period. Randy

Pesses
Page
8

confirmed in his City

EI Dorado Superior Court Case No' PC-201101'45

Petitioner's Reply Brief in Support of Writof Mandamus

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Council testimony that Clay Street wi1l be closed during a period of time durrng brrdge
consffuction.
get further One of the questions that tr think the City Council will be facedwith when we into design is the potential of should Clay Street be closed offto allow the bridge to be to keep th consffucted all at one time or will we try to do it a half of brid ge at a time and try period roadway open. When you do it in that fashion, it extends the consffuction considerablY. (AR3 :65 3.)

the construction

open during So even though the city typicallywould require at least one-way ffaffic be kept period, the impact was not identified or studied in the MND and the record does

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not show how the constrained traffic will be handled. The last staffreport states: to shorten the ov fS]taffwould recommend the use of the of a precast concrete structure the time required for bridge construction. In addition, the City Council should consider time completi closure ofClaf Street during bridge construction to further shorten the ,r..-.rrury for bridge construction. If Clay Sneet cannot be closed, the bridge would have to be constructed one haiiwidth at a ttme, which su'ostantiaily extenris overall constr-riction duration. " (AR2 : 399- 400 lEmphasis addedl') of Clay Street to shorten construction time. (AR2:399-400') This directly contradicts the contention that the City policy to keep one lane open during ffaffic consffuction wil1be implemented. The IS/MND failed to consider construction related impacts. A fair argument has been established requiring prepalafion of an EIR'
pesses recommen ds complete closure

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3. Safety ImPacts
evidence The City claims Friends have not met the burden of showing suffi.cient substantial relied on under the fair argument standard regardingsafety impacts. (Opp. at 1i.) The MND in general than statistical information compiled about roundabouts that showed they were safer roundabout in the standard intersections. But the City has neglected to analyze the safety of this
issues and the locatiorr beng proposed. Given the amour-rt oi,iriveways invoLved, ihe f-ine of sight in the MND' close proximately of the buildings, there are specific issues that remain unaddressed

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City Councilmember, Patti Borelli, asked at one of the last public hearings on the Roundabout project what the actual roundabout would iook like. (AR3:730-731.) How can one garrlge the safety of the roundabout in this location when the design has yet to be completed or studied?
safety of As noted, numerous area residents expressed their very serious concerns about the general' this particular roundabout project with the existing site constraints, not roundabouts in and egress Their concems were based upon their intimate knowledge of the workings of the ingress

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paffems of the downrown area. (Opening brief at 1 i-13.) Citizens noted that because the
El Dorado Superior Court Case No. PC-20110145

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Petitioner's Reply Brief in Support of Writ of Mandamus

a fuIl roundabout moves cars more quickiy through the intersection, rather than having to make position of stop at stop signs, there are concerns about driveway access onto the sffeet and the

crosswalks work crosswalks. (AR3:g60.) Building designer, Sue Taylor stated she had studied how the in a roundabout. Taylor explained that crosswalks need to be locat ed far enough away from roundabou

t, andgiven the small space for the roundabout in this location,

there was concern that

generai drivers would not be able to see pedestrians in the cross walk. (AR3:705.) Further, potential engineering contractor Ron Clark met with staffmember Randy Pesses to discuss

thing is a pedesffian safety issues. Clark stated Pesses refused to discuss safety concerns. ".. - [T]his
done deal." (AR3:701.)

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that The City states that Friends imply that the City staffconceded safery concems' stating (Opp. at the pesses admitted the current design for the crosswalk was unsafe due to poor visibility' in this 2I:27-2g.) pesses stated that roundabouts in general do not have pedesffian safety issues but, and ilstance, there was a problem with visibiliry due to a building on the corner of Cedar Ravine

13

Main Street. The issue would be analyzed during the design

stage.

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They're finding that pedestrian safety is not a problem with a roundabout. There is one area here' however, that I think there was a very valid concern raised and I'11try to identify it right building the of Because The exhibit shows a crosswalk occuriing right in this location. going is here on the corner, there is a concern about lack of site distance when a vehicle northbound on Cedar Ravine and then continuing eastbound on Main Street' That site tf, distance issue is something that we'll analyze very closely in the design stage and, adequate necessary, the crosswalk can be moved further up the sffeet, to make sure there's sffeet'" the site distance for both motorists and the pedestrian when they're crossing (AR3:635.
there is " Thus, petitioner did not need to imply staffhad safety concerns, Pesses specifically stated just pointed out to the very vaiid concern raised" in spite of all the statisti caI data that he had

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Brief, post council about roundabouts in general. (AR3:634-635.) As pointed out in the Openi;:g project approval sfudy of the issue, is not an adequate remedy, the study and analysis of impacts (Opening Brief at 13') must be conducted during ihe time environmental review is conducted' The City also takes issue with the designation of "expert" for Mr. Clark and Ms' Taylor' (Opp. at 12-13.) In CEQA an "expert" is one who has the requisite degree of experience and a speciai technical expertise in the relevant area to render an opinion. It is not necessary to have and license to offer an expert opinion- A general engineering contractor has the backgtound
designer has knowledge of sffeet design sufficient to be determined an exper[; similarly, a building it is not necessary the requisite knowledge and experience to render an expert option- Regardless,
El Dorado Superior Court Case No' PC-20110145

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Petitioner's Reply Brief in Support of Writ of Mandamus

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Page 10

MND for commenters to be deemed expert to consider their testimony as substantial evidence. The failed to adequately consider the safety issues of the Roundabout Project, sufficient substantial
evidence was submitted to trigger gteater review of this issue.

4. Parking Related knPacts The City claims that admitted parkin grelatedenvironmental impacts have been fully

mitigated. (Opp. at t4.)
to The Typarking spaces now available at the Ivy House parking lot will be reduced by up
34 spaces, some say 47 spaces, depending on the precise desigp of the Project.

(ARl:I58;2:529l,

3:609-610,792.)The numbers seem to vary throughout the record. The City claims that the Stancil Lot has been definitively selected. (Opp. at 15) However,
LO

the locations discussed in the

MND

are described as "replacement parktngoptions under

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consideration." (AR1:I2.)Mitigation measure #6.1 identifies options for consideration, it does not identiry which relocation sites will be chosen or whether the land in private ownership may be
the loss acquired. Further, mitigation may admittedly depend upon a combination of sites to fulfiii

of street parking. (ARl: II-L?, 25.)

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Nor has the City proceeded in acquiring the lot owned by a privat e paffy - (ARl :II-12; 25 ') The City claims that Friends' comments about the Stancil Lot's unavailability does not to the acknowledge that the City may condemn the property. The City does not offer any citation
be able record to support this contention and the record is silent on whether the City may acfrrally to pursue ownership of the properfy by eminent domain or condemnation.
170.)

18

(ARl: II-12,25,169-

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More importantly, the environmental impacts of developing each site have not been of any considered or discussed in the MND. (AR1 :11.-12,25,169-170.) Environmental impacts (a)(1)(D), proposed mitigation must be subjected to environmental review. (Guideline 515t26-4
City of Glendale (1981) 125 Cal.App.3d 986; Lauret Heights Improvement Assn' v' has skirted its duties Regents of (Jniversity of California(l993) 6 Cal.Afr IIl2, 1132.) Here, the City

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citing

Stevens v.

under CEQA. The City claims that environmental impacts of the proposed parking locations were a citatron considered, citing to ARl :7-38;9:2436-2442,2554-2556. (Opp atl4.) AR1-78 is merely neither of to the whoie of the MND. The MND addresses replacement parking in two instances, The citation to discussed the potential impacts of development of the sites. (ARl:7I-12;25')

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which

discuss the ,\R9:2436-2442 discuss culrural resources contained in APE but does not identiff or
El Dorado Superior Court Case No. PC-20110145

Pelitioner's Reply Brief in Support ol Writ of Mandamus

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Page

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cultural resources located on parking relocation sites nor was this information used in the MND's no analysis. AR9:2554 -2556 is merely a reference to the 5 locations considered for relocation; of the analysis of potentially signiflcant environmental impacts stemming from the development
sites was conducted.

for As there was no analysis of the potential impacts of the development of alternative sites Project replacement parking in the IVIND, the City canxot affirmatively state, as it must, that the

will not result in any imPacts.
The Ciry claims that lay opinions offered by Friends do not show the requisite fat problems argument. (Opp. at 15.) Friends provided a comprehensive analysis of the environmental
associated with developing the chosen sites. (Opening Brief
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atIT-20')

5. tsiological

ImPacts

planned for Impacts to Trees. The City's primary argument is that there aren't that many ffees removal and in any event, replacement planting is suffi.cient mitigation. (Opp- at 7.) The City confirms however, that up to 2J matrre ffees will be removed, of those 2I are native, which compofts with the uees identified in the MND for removal. (ARl:30;1I:3722-3123') Residents provided a comparison of a photograph of existing trees andhabrtat proposed for removal with
a

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picture of proposed mitigation planting. (AR2:319.) Resident Rawyers noted that the mature trees to 63 are in excess of forty feet in height. (AR2:318.) The trunk diameters range from 5 inches
of the site inches, many with multiple trunks. (AR2:318.) The purpose of,providing the photograph that was not to quibble with the size of the ffees proposed for repianting, as asserted, but to show the proposed planting cannot reasonably be expected to replace groves of oid trees in their established environs and the City should have aclcrowledgedthatpotentiaily long term significant

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plants to grow impacts remain during the time it takes for the many years it will take for the young to a commensurate size. Environmental impacts are adjudgedwithin the context of the existing environment' Thus, circumstance' even rernoval of one tree could be considered environmentally significant in the right llere, the City proposes removal of the entire gtove of ffees within the Creekside environs. Further,

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historic Clay Street andHangtown Creek are mentioned in the Redevelopment Plan Draft EIR as of the resources. (Motion to Augment Exb. A.) The removal must also be considered in light potential to impact the historic landscape. An analysis that is based upon the full context of the environmental attributes of the resources at stake must be conducted and was not.

EI Dorado Superior Court Case No. PC-20110145

Petitioner's Reply Brief in Support of Writ of Mandamus

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Page 12

for removal The City argues the six valley oaks and one coast redwood (ttee #29-35) slated

willonlyberemovediftheElDoradoTrailparkingaltemativeischosen.(Opp'at2l;AR1:12,29Final mitigation 30;2:317.)The MND does not include this caveat. (AR1 :29-30 L7:32718-3223.)
The compensatory measure #7 .2 adopted for the Project does not include this caveat. (ARl:30.) As does not mention this caveat. (ARl1 : 3219,3223 lAppendix I of NES')

mitigation monitoring

parking' It is not noted, the City may choose one or more parking relocation sites to replace lost the City known what combination of parking relocation sites the City will choos e, and as such,
must count the total trees potentially proposed for removal in its analysis' in "permanent Impacts to Sensitive Habitats. The MND concedes that the Project will result Forest, and loss,, of acknowledged sensitive habitats to the Riparian Forest, Montane-Hardwood loss Hangtown Creek. (ARl L:3724,31.26,3127.) Proposed mitigation for permanent habitat
grasses, legumes and consists of ffee planting and hydroseeding the area along the creek with

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wildflowers. (Opp. at IT .) Friends assert that the mitigation is not commensurate compensation that an EIR needs the loss and the MND should have admitted that potential impacts remain such
to be prepared to adequately study them. (AR2:311, 318-319;71:32L6-32L9')

6. Toxic ImPacts
found no The City erroneously states the facts. The City claims the initial site assessment parking likely toxins in the project area, only potential contaminants in the area of the Ivy House of lot. (Opp. at 18.) The City states "The initial site assessment consisted of a thorough review

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known hazardsin the area andfound that
the possible exceptions

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likely to have any effect in the Project area with ofpotentially contaminated soilsfrom aformer gas station. -.. and a heating otl
none are

underground storage tank...

" (Emphasis added.)

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To the contrary, the MND states in the affirmative that "Taber found evidence of hazatd that substances and/ or petrotreurn prodr.rcts 'rithin the project area during the ISA investigation likely qualrfy as recognized environmental conditions (RECs)" and arc "anticipated to be a source (UST) for the to affect the project area." (AR1:32.) The location of underground storage tanks previous gas station are unknown and some hydrocarbon odors were observed duringprtor
trenching in the area. (Ibid.)
states, As much as the City downplays the possibility of contamination, the MND clearly ,,Taber concluded that the potential for the proposed consffuction to encounter existingltazatdous

is potential materials within the project area is generally moderate." (ARi :32.) Thercficre, there "moderate" existing hazardous materials that has yet to be identified or quantified. Taber's
EI Dorado Superior Court Case No. PC-20110145

of

Petitioner's Reply Brief in Support of Writ of Mandamus

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Page 13

calculation cannot be substantiated without the further sfudies that have been improperly deferred to a future time. (ARI:32; 10:2749.)
The City quotes Public Works Director, Randy Pesses, about "changing gears" if contaminates are accidentally found during consffuction. But the incident he speaks about was srumbling across contaminates once construction has started. Here the ISA has aheady identified potentiai hazards;the consultants have aheady recommended ageophysical survey and soil bori to help identifu and help avoid an"accidental" discovery that could cause significant environmental impacts. These are the steps that CEQA requires before the approval of the project,
before

construction begins. (Laurel Heights Improvement Association v. Regents of the University of California(19S8) 47 Cal.3d 31 6 , 3g4 " a ftndamentai pu{pose of an EIR is to provide decision

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not to makers with information they can use in deciding whether to approve a proposed project, inform them of the environmental effects of projects that they have aheady approved.")
The City emphasizes the extraordinary circumstances in CBE are not analogous to the case tnthat: at hand. However, CBE cites Sundstrom v. County of Mendocino (1983) 202 Cal.App'3d 296 ,,[a] study conducted after approval of a project will inevitably have a diminished influence on decision making. Even ilitre study is subject to administrative approval, it is analogous to the sort of post ioc rationalization of agenry actions that has been repeatedly condemned in decisions cbnstruing CEQA." (Id. atp.307; No Oil, Inc. v. City of Los Angeks (I974) 13 Cal.3d 68, 81; Environmental Defense Fund, Inc. v. Coastside County Water Dist' (1972) 27 Cal.App.3 d 695, 706.)

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In Sundstrom,

the county approved

a ptrvate sewage ffeaffnent plant via negaive declaration'

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The MND checklist indicated no significant environmental problems would occur if mitigation The measure were adop ted. Later problems indicated the project would disrurb existing conditions-

in a court found that the requirement that the applicant adopt mitigation measures recolrunended future sruciy was in ciirect conflict wirh CEQA guicieiines; the use permit improperiy contempiated
that the project pians could be revised to incorporate needed mitigation measures after the final adoption of the negative declaration . (Sundstrom, supra, 202 Cal.App'3d at 305-306.) The City claims avoidance measures incorporated into the Project would lessen impacts to a insigni.ficance. (ARl :32-33,10:2749.) Ilowever, by postponing environmental assessment to

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future date, the mitigation runs counter to CEQA poliry which requires environmental review at the earliest feasible stage in the pianning process to determine the degree of the impact' CPRC
Agency 21003; Sundstrom, supra at307 citing No Oil, Inc., supra,13 Ca1.3d at 84.) In Bozung v. Local the Formation Com., (1g75) 13 Ca1.3d 263,282, the Supreme Court approved "the principle that
EI Dorado Superior Court Case No' PC-Z0110145

Petitioner's Reply Brief in Support of Writ of Mandamus

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Page 14

planning'" environmental impact should be assessed as eariy as possible in government "where genuine Environmental problems should be considered at a point in the planning process

flexibility remains." (Sundstrom, sLtpra,202 Cal.App.3d at307 citing Mount v, Regents of University of Caffirnia (L978) 77 CaLApp'3d20,34')

Sutro Defense Committee

have been

further studies This case is analogo vs to Sundstrom; itis a negative declaration case in which Sundstrom, deferred and incorp orctedinto proposed mitigation measures' (AR1.32;

the project area that supra,202 Cal.App.3dat 303.) Here, the Taber study found two RECs within ,,anticipated to be a source likely to affect the project atea" with possible environmental are a future time runs impacts. (ARl:32.) To defer the study and mitigation of this critical issue to supports afoul of the purpose of CEeA. As fully laid out in the Opening Brief, substantial evidence
LO

impact' afau argument such that an EIR needs to be prepared to study the potentially significant
(Opening Brief at 22-23
.)

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7. A,esthetic and Yiew ImPacts argument The City claims Friends have not met the burden of proof relative to the fair a specially designed standard. (Opp. at 20.) The City has conceded that the project is eliminating

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Hangtown and landsc aped,handicapped-accessible public viewing area overlooking Historic visual resource Creek. The MND admits the handicapped accessible overlook is an important
(AR1:35.) The City suggests maintained by the City of piacerville Community Pride organrzatron. of the that ,,the El Dorado Trail ...would provide handicapped-accessible viewing opportunities

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City failed to consider creek corridor to offset the loss of the existing viewing area..." (Ibid.) As the the removal of the the areaof the brrdgeand creek as historic resources, the City did not analyze
bridge, the creek landscaping, and the overlook in this contextnew The Americans with Disabilities Act (ADA) requires the Crty to make sure that (AR5:1476') facilities used by the public meet certain criteria to provide access to disabled citizens,,access" does not make up for the impact of the loss of an important visual resource' But providing with abndge and The specifically designed handicapped compatible viewing area will bereplaced viewing area, trail that has constant foot and bike traffic. The design ated "ltandicapped-accessible"
and visitors, which was designed for special needs, is a welcome respite for handicapped residents

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not simply afi afea that is "accessible," but a speciatr aesthetic resoulce. This The existing sidewaik system in Placerville is rapidly deteriorating. (AR5:1465) Hangtown disabled residents and visitors from freely exploring the Ciry. The Historic
precludes

individuals can safely and Creek over-look provides atateviewing opportunity where handicapped
El Dorado Superior CourtCase No. PC-20110145

Petitioner's Reply Brief in Support of Writ of Mandamus

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area. The easily visit and eryoy the incr^edible serenity and history of the in its place other than a busy foot and bike tr"ail. (AR1:35.)

city offers no alternative

Druid Monument'" (opp' The City states that the roundabout will "showcase the historical the Druid Monument m at20;AR1:205, 2I7.)However, the design of the roundabout relocates visitors from even geffing near it' center of the roundabout where it is not accessible and precludes
adjacent to a sidewalk for (AR1:217.) There wi1lbe an "interpretive sign" outside the roundabout spoke to the original religious pedestrians to read within view of the monume nt. (Ibid.) A resident

to provide a contemplative place to sit and academic origins of the Druids and encouragedthe city current design, pedestrians when a pilgrimage is made to the monument. (AR3:643.) with the The City says it is not would risk life and limb to try to get close to the monument for viewing. convenient nor desired for them to do so' (AR3:644') this basis, in contrast to The City claims that only a few citizens objected to the Project on
Protectors. (ocean View Estates, sLtpra, the large number of resident s rn ocean View Estates and Pocket On the conffary, over 66 116 Cal.App.4to 396, Pocket Protectors, supra, 124 Cal.App.4d' 903') bttdge' (AR3:713objecred to the roundabour Project and the removal of the historic

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individuals

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fully attests. Further, public 71g.) The comments were not made by a few citizens as the record premised on protecting private comments regardtngthe aesthetic impacts of the Project were not pulpose of protecting public views' views of individual nearby property ownels, but were for the Placerville and Old including tourists who travel to Placerville. The 1849 Gold Rush, with the largest human migration Hangtown at its epicenter, was where the Gold Rush began; it started second only to the Civil War' In in history, and was the most important event in American history,
districts, the replacement of this context and at this location adjacent to locally designated historic out of place and an intrusion to the the Clay Street bridge with a modern roundabout and brtdgeis aesthefic and historic landscape'

8. Historic ImPacts
of Fresno (2008) 160 Friends correctly cited to the holdin gtn Valtey Advocates v. City apply to the question of Cal.App.4* 1039 for the premise that the far argvment standard does not Valley Advocates also held that an whether a property is an historic resource for purposes of CEQA' historic register to determine that i agency cannot rely on the fact that a,property is not listed on an

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this narrow interpretation' however, is not historic. Qd. at105g.) The City claims they did reiy on just that- (opening Brief at citations to the record show that Caltrans and the City did

numerous

28; AR2:3 J 2, 37 6, 379, 585-586; 4: 1052-1053,

1

i07 ; 14'.40L6, 447 3, 4480')

EI Dorado Superior Court Case No' PC-20110145

p"titio.t..'t

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Reply Brief in Support of Writ of Mandamus

to be The public Resources Code states that a resource that is not listed in or determined included in a local register eligible for listing rn the California Register of Historic Resources, is not

in a historical resource survey of historic resources (pursuant to 5020.1(k), nor deemed significant 27084'I; see (pursuant to 5024.I(g), may nonetheless be historically significant (Pub. Res. Code $
also Guidelines 1506a'5 (a) (a).)

Office of Experts Milford Wayne Donaldson, State Preservation Officer for the California that the possible Historic preservation, wrote to the City stating there is no indication in the MND
Gates, Field Services significance of the bridge had been addressed. (ARl4:4r24.) Jennifer M' Trust for Historic Director, Califomia preservation Foundation in partnership with the National

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preservation, concurred. (AR16 4721; 4725.) Gates recommended that a study be undertaken to qualified provide facfrialevidence determining the eligibility of the brrdge at a locallevelby a properly evaluate the historian. (,\R76:4729.) Donaldson stated, "We sffongly advise the City to or reduce potentiai significance of the bridge and adoptfeasible mitigation measures which avoid

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all adverse impact to the potential historical lesoulce." (AR14:4125') expeft testimony Where there is an omission of analysis, as here, the City may not ignore point of environmental recofirmending the analysis be undertaken. Afterall, this is the whole ..fc]omments from responsible experts or sister agencies that disclose new or conflicting data

review.

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the project" may not be or opinions that cause concem that the agency may not have fully evaluated (2001) 91 Cal'App'4ft ignored. (Berketey Keep Jets over the Bay Commiltee v. Board of Port cmr's'

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1344,1367 quotingClearyv. Counly of Stanislaus, (1981) 118 Cal'App'3d 348,357') Project Further, as pointed out in the Opening Brief the Draft-EIR for the Redevelopment
resources. (Opening Brief mentions Clay street, Hangtown Creek and the retaining wall as historic Exb' A') The at 30; Request for Judicial Notice Exb. A; Motion to Augment the Record the same physical area Redevelopment plan EIR preparedfor the City of Placerville, encompasses referenced numerous times as the proposed project site. (tbid) The Roundabout Project was

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24

throughout the Draft

ETR..

(Ibid.) The

city may not aclcrowiedge historic resources in one

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the very environmental study and disregard them in another concufient srudy that encompasses project proposes demolition of a historic resoutce and potential same physical area. Because the alternatives that retarn impacts to the historic creek, an EIR must be prepared to consider retention Leaguefor Protection of the overlook, bridge and historic landscape seffing. (Opening Brief at28; n (Igg7) 52 Cal.App. 896') The MND oakland,s Architectural and Historic Resources t. city of oakland

neither considers nor analyzes the resoulces as locally historic'
EI Dorado Superior Court Case No' PC-Z0110145

Petitioner's Reply Brlef in Support of Writ of Mandamus

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A

fafu argument of historic impacts has been established and the

Cify must consider the

that fairly looks at removal of Clay Sffeet, the Clay Street bridge and the retaining wall in an EIR adaptive reuse alternatives' were The City asserts mitigation measures proposed by California Preservation Foundation (Opp. at29-30.) The scant 3-pa abeady incorporated into the mitigation measures for the Project'

will follow the mitigation monitorin gprogrammerely says that relocation of the Druid monument mitigation in February secretary of interior guidelines. (AR14:3957.) CPF reviewed the proposed into the 211l,said it was insufficient, and recommended the incorporation of further mitigation project. (ARI6.4729.) CpF further noted that the National Register historic resource, Pearson
be Works, abuts proposed improvements of the Project and addttronal mitigation should monitoring incorporated into the Project to protect this resource. (AR16 :4729.) The mitigation

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Druid program fails to add this mitigation. (AR14:3957.) A fair argument that impacts to the consider the monument and the Pearson Soda Works remain, and an EIR shoul dbe prepared to
Project's impacts on historic resources.

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9. Growth Inducing ImPacts inducing The Cify agues that Friends do not understand the difference between "growth impacts" and "cumulative impacts." (opp. at 30.) Friends' statement that "gtowth inducing from the CEQA impacts are routinely analyzed as part of a cumulative impacts analysis" is taken
guidelines themselves, which state: ,,Growth-Inducing Impact of the ProposedProject...[d]iscuss the characteristic of some affect projects which may encour age andfacilitate other activities that could significantly Guidelines, the environment, .ith.t individually or cumulatively." (Emphasis added' CEQA section I51'26.2(d), also see Guide to CEQA, 11'h Ed', page 460')
foster The review should discuss ways in which the project could directly or indirectly economic or population growth or the construction of new housing in the sulrounding

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to growth' environment including "growth accommod ating" impacts that may remove obstacles h (Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App' I44,158')

In City of Antioch v. City Council of the City of Pixsburg (1986) i87 Cla'App'3d 1325, t}:re
rejected. There, argument that growth-inducing impacts are too "remote" and "speculative" was road and sewer the appellate court found the adoption of a negative declaration for a proposed

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no consffuction project violated CEQA. Respondents argued thatbecatse their project involved preparation of building construction and it was not known what type of development would occur, because "proposals for an EIR was not necessary. They also asserted an EIR need not be prepared
Ej Dorado Superior Court Case No' PC-20110145 - Page 18 Petitioner's Repiy Brief in Support of Writ of Mandamus

of future development will be subject to further environmental review at the time of development the surrounding land." Qd. atp. 1333.) The appetlate court rejected this argument, writing:
,,[C]onstruction of the roadway and utilities cannot be considered il isolation frorn the alvetopment it presages. Although the environmental impacts of future development canno p' 1336') be presently predicteJ, it is very It.ty these impacts will be substantial." Qd' at The City required the developer of the Coffonwood Deveiopment to pay aS65,8Ll mitigation fee for the Clay Street bridge replacement to compensate for the project's increased Flanned traffic. (AR2:613-614.) As Friends pointed out in the Opening Brief, the Cottonwood Park issue will Development Phases 4 & 6 are akeady in progress and the completion of the project at

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838;4:961' certainly generate additional traffic in the area. (opening Brief at32; see also AR3:696, It is reason able andforeseeable that the current project would be a catalyst for future development
by increasing capacity for traffic in the arca andthe growth inducing impacts of the roadway Project must be anaiYzed in an EiR.

l0.UrbanDecay:AnalysisofEconomiclmpactsvs.Environrnentallmpacts
The City claims that Friends' concems regarding economic and social impacts are outside impacts the purview of CEeA. (Opp. at 10-11.) The City aiso claims that many of the economic that the reference the unrelated Highway 50 roadway project. (opp at 11.) The City further claims
evidence of economic impacts does not ielate to significant environmental impacts.

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In Bakersfeld, suprz, 1,24 CaI'App'4tn , the court clarified: ,,[I]f the forecasted economic or social effects of a proposed project directly or indirectly will and lead to adverse physical changes in the environment, then CEQA requires disclosure analysis of these resulting physical impacts." (Id' at p' 1205')
The Bakersfeld court further states that case law has established that

in approprtate circumstances
o

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CEeA requires urban ciecay or cieterioraiion to be consiciereci as an indirect environj:nerrtai effec-i at I7I [The agenry a proposed projecr. Qd. atp. 1205-1206 citing Bishop, supra, 172 Cal.App.3d

have violated CEeA because it did not consider the impact alargeregional shopping center would on downtown shoppin g area and thereby cause business closures and eventual physical

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deterioration of the downtown]-)

In this

case, numerous business owners, and Vice

Mayor Machado testified to the

project' devastating traffic impacts businesses suffered during the recent Highway 50 construction (AR3:650, 653, 655, 614,678,684, 683, 124-130.)Another construction project thatwould

similarly limit traffic to downtown could literally put downtown businesses out of business'
El Dorado Superior Court Case No. PC-Z0110145

["tition".;r n"plv eii.f

i"l"pp""

of

writ

-

Page 19

of Mandamus

iimitation of traffic (AR3:6g3- 6g4; g36;8a4;852.)The economic effects stem from the closure and Bridge, and the in the downtown area due to the demolition of existing roadways and Clay Sffeet
are directly related to the consffuction of the new bridge and realignment. The economic effects

environmental impacts of traffic.

out the

poin In Citizensfor Quality Growth v. City of Mt. Shasta(lg8S) 198 Ca1'App'3d 433, the EIR but proposed project may pose a significant economic problem for existing businesses,

justifi-cation that "no analysis offered little analysis of the issue. The court rejected respondent's affec-' on central economic effects was requir ed. (Id. atp.445-446 [proposed shopping center's
business areal.)

of

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observation that Here, downtown merchants gave relevant testimony of their own personal Highway 50 downtown businesses had barely recovered from the physical impacts of the recent consffuction project

- resulting in severe physical

impacts

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when the Cify embarked on yet

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The current Project another construction project that will similarly impact the business community' resulting in potentially is located even closer to downtown businesses than the Highway 50 Project, to Town of Folsom's greater impacts to downtown merchants. Further testimony about physical impacts the potential for urban decay by businesses, due to a similar roadway project, was offered in support of are not knowledgeable resident Lisa collins, (AR3:g52.) The city's claim that local business owners

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EIR must be prepared to about potential impacts of the roundabout Project are non persuasive' An to urban decay' consider whether the project "may" result in a sigpificant impact related
11. Inconsistency with Area Flans and Policies

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argtment has not been made relative to the Project's to rely on the potential to affect arealanduse plans and policies. On this issue, Petitioner continues land use plans on the Opening Brief, that fully sets forth the potential inconsistencies with area Planning') basis of the substantial evidence offered in support. (Appendix G, X' LandUse of mandate For the reasons set forth, Petitioner requests the Court issue a peremptory writ The City againasserts that a

far

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to refrain from ordering the City to vacate and set aside the MND and Project approvals and certification of an further consideration of approval pending its compliance with CEQA including

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EIR that fully analyzes project impacts, mitigations, and alternatives'
Respectfully submitted, August 18,2017
Provencher & F1att, LLP

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Rachel Mansfield-Howlett Attorney for Petitioner, Friends of Historic Hangtovm
El Dorado Superior Court Case No. PC-201101'45 - Page20 p"tiiio.r.t't Reply Brief in Support of Writ of Mandamus

Friends of Histot'ic Hangtown u' City of Placeruill!'^'-t-fl: Ei D;;;;otounty Supeiior Court Case No. PC-20110145

PROOF OF SERVICE
the County of sonoma' I am a citizen of the united states and a resident of within entitled action' the age of eighteen years and not a party to the

I am over

CA' My business address is 823 Sonoma Ave' Santa Rosa'
documents: on August 18, 207!,I served one true coPy of the foliowing

PETITIONER'S REPLY BRIEF IN SUPPORT OF WRTT OF MANDAMUS

X

in a sealed by emailing and placing a true copy thereof enclosed mail at Santa Rosa, States and postag? th"rion fuity pr"pui,i,'il al_iY*ted Californiu'udd..tted to ih6 persons listed below'

envelope

sabrinaTeller/JenniferHolman Attorney\forRespondent Placeroille

O;t,

rf't""'t"t, Moose & Manley City of

455 CaPitol Mall, Suite 210 Sacramento, CA 9581'4

STeller@rtmmlaw'com JHolman@rtmmlaw'com

Joht Driscoll City of Placerviiie
310 Center Street P1acerville, CA 95667
j

City AttorneY

driscoll@cityofplacervill

e'

org

is true and correct' I declare under penalty of perjury that the foregoing Executed on August 18, 2011, at Santa Rosa' California'

-

Rachel MansField-Howl ett

W

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