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ROBERT 1. MCMURRY (SB# 106078) A. CATHERINE NORIAN (SB# 078303) GILCHRIST & RUTTER, PC 1299 Ocean Avenue, Suite 900 Santa Monica, California 90401-1000 Telephone: (310) 393-4000 Facsimile: (310) 394-4700 ROBERT S. PERLMUTTER (SB# 183333) MATHEW D. ZINN (SB# 214587) SARA A. CLARK (SB# 273600) SHUTE, MIHALY & WEINBURGER, LLP 396 Hayes Street San Francisco, CA 94102 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 Attorneys for Petitioner/Plaintiff THE CITY OF BEVERLY HILLS, a municipal corporation

Exempt from Filing Fees Pursuant to Gov't Code § 6103

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, UNLIMITED JURISDICTION

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THE CITY OF BEVERLY HILLS, a municipal corporation; Petitioner/Plaintiff,

CASE NO.: BS 137607 RELATED CASE NO.: BS137606 Assigned for All Purposes to: Hon. John A. Torribio Dept. SE "G"

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[312676_5.DOC/5107.001]

v.
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, a public entity; RespondentlDefendant.

FIRST AMENDED PETITION FOR WRIT OF MANDATE FOR VIOLATIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (pUBLIC RESOURCES CODE §§ 21000 et seq.) AND FOR INJUNCTIVE RELIEF [C.C.P. §§ 1094.5, 1085, 526]
Action Filed: May 30,2012 Trial Date: None

FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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Petitioner and Plaintiff, THE CITY OF BEVERLY HILLS, a municipal corporation e'Petitioner"), respectfully petitions this Court requesting relief afforded pursuant to California Code of Civil Procedure sections 1094.5, 1085, and 526, alleging as follows.
NATURE OF THE ACTION

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Petitioner seeks a writ of mandate to set aside the April 26, 2012 and May 24,2012

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decisions of Respondent and Defendant Los Angeles County Metropolitan Transportation Authority ("Metro") certifying the Final Environmental Impact Statement/Environmental Impact Report ("Final EISIEIR") for and approving the Westside Subway Extension Project in Los Angeles ("Westside Subway Extension" or "Project"). The certification of the Final EISIEIR must be set aside due to Metro's failure to comply with certain requirements of the California Environmental Quality Act ("CEQA"), Public Resources Code section 21000, et seq. Petitioner also seeks injunctive relief to prevent Metro from taking actions in furtherance of the Project unless and until there is compliance with the mandates of CEQA and to prevent irreparable harm to Petitioner, the public, and the welfare of metropolitan Los Angeles, California.
PARTIES

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2.

Petitioner is, and at all times herein mentioned was, a municipal corporation,

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formed under and pursuant to the laws of the State of California, with its principal place of business located in the County of Los Angeles, State of California. The alignment of the Proj ect will extend through Petitioner's municipal boundaries, including, without limitation, under residences and Beverly Hills High School (the "High School"), the only public high school serving the city of Beverly Hills. The High School property is owned by the Beverly Hills Unified School District's ("School District"). Petitioner supports a Westside Subway Extension that passes through Beverly Hills, and recognizes the benefits that the Project will provide for the entire Los Angeles region, including, without limitation, Petitioner's residents. However, those benefits must not be obtained as a result of decisions that are not supported by substantial evidence, but that are the result of insufficient, incorrect and conflicting information and a rush to judgment that risks,

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inter alia, the heaJ-th, safety and welfare of Petitioner's residents. 3. Metro was established pursuant to California Public Utilities Code sections

[312676 5.DOCI5107.00l]

1 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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130050.2, 130051.13 and 130051.14 as a political subdivision of and serves as the transportation agency for the City and County of Los Angeles, California. It is responsible for the planning, coordination, design, building and operation of the public transportation system for Los Angeles County, including but not limited to its bus, subway and light rail system, and specifically the Project.

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JURISDICTION AND VENUE
4. This Court has jurisdiction over this action pursuant to Code of Civil Procedure

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sections 1094.5, 1085, and 526, and Public Resources Code sections 21000 et seq. Venue is proper in Los Angeles County, in which the Project is located.

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EXHAUSTION OF PROCEDURAL REQUIREMENTS
5. Petitioner has exhausted all available non-judicial remedies. A true and correct

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copy of the letter served on Metro giving written notice of the filing of this action as required by Public Resources Code section 21167.5 is attached hereto as Exhibit A. True and correct copies of the letters (without attachments) providing copies of the Petition and Complaint and of this First Amended Petition and Complaint to the California Attorney General as required by Code of Civil Procedure section 388 are attached hereto as Exhibit B.

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IRREPARABLE HARM
6. Unless this Court issues injunctive relief, Petitioner will suffer irreparable harm and

prejudice by the actions of Metro in that the Project was approved without full disclosure and analysis of the Project's environmental impacts and, if the Project proceeds, there will be severe unmitigated adverse impacts on Petitioner, on its residents, and on the public welfare. 7. No legal remedy, including, without limitation, damages is adequate to compensate

Petitioner or the public for violations of CEQA and the Project's adverse impacts on human health and safety and on the environment alleged in this Petition and Complaint.

GENERAL FACTUAL ALLEGATIONS: THE PROJECT AND ITS mSTORY

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Petitioner is infonned and believes, and upon such infonnation and belief alleges, that for

nearly thirty years, Metro in conjunction with the United States Department of Transportation
[312676 S.DOC/S107.00lJ

2 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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Federal Transit Administration ("FTA") have engaged in the planning of the Project. As approved, the Project consists of a nine-mile extension of the heavy rail Purple Line subway from its existing tenninus at the existing Wilshire/Western station to the Veterans Affairs Hospital property in Westwood ("VA Hospital"). The Project also includes the development of seven new stations along this extension, including stations at WilshirelLa Brea, WilshirelFairfax, Wilshire/La Cienega, WilshirelRodeo, Century City, WestwoodlUCLA, and WestwoodNA Hospital. Petitioner is informed and believes, and upon such information and belief alleges, that in addition to local funding, federal grant funds will be used for the Project, which necessitated Project analysis under National Environmental Policy Act, as well as under CEQA.

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AD. EIS is currently

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under consideration by the FTA. Petitioner has submitted comments objecting to the EIS. 9. As ultimately approved, this new rail corridor has been designed to cross

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underneath the dense urban core of the Wilshire District and the commercial and residential properties along Wilshire Boulevard in Beverly Hills, then from the WilshirelRodeo station underneath residences and the High School in Beverly Hills to arrive at the Constellation Boulevard station in Century City, then to the WestwoodlUCLA station and ultimately to the WestwoodNA Hospital station. 10. In Beverly Hills, the Wilshire Boulevard corridor extends through a primarily

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commercial district containing office, retail and hotel and some multi-family residential uses. The areas immediately south of Wilshire Boulevard contain single and multi-family residences. The High School is the only high school located in Beverly Hills, and serves all of its high-school age children who attend public school. The High School's environmental setting is unique in that its grounds contain an actively producing oil well, with extraction facilities located at the southwestern portion of the High School campus and contains a number of former oil well sites. In addition, the High School is over 80 years old, and is considered to be an historic property (Final EISIEIR at 5-12,5-13). The School District has developed a Master Plan for the renovation of the High School, and a bond measure was passed by the voters in 2008 to pay for construction of those renovations.

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The Draft Environmental Impact StatementlEnvironmental Impact Report ("Draft

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EISIEIR") for the Proj ect was released in September 2010. 12. The Draft EIS/EIR analyzed a station in Century City on Santa Monica Boulevard

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at Avenue of the Stars (the "Santa MonicaiAve. Stars Station") as the preferred (base) station. In addition, it analyzed an alternative station on Constellation Boulevard (one block south of Santa Monica Boulevard) between Avenue of the Stars and Century Park East (the "Constellation Station"); however, as an alternative, this station location was analyzed to a lesser degree than was the preferred station location on Santa Monica Boulevard. The tunneling alignment for the Santa MonicalAve. Stars Station extended under Wilshire Boulevard and then turned west along Santa Monica Boulevard without tunneling under residential properties. By the tunneling

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alignment for the Constellation Station turned south from Wilshire Boulevard after the Wilshire/Rodeo station and extended underneath residential properties and the High School, and then underneath Constellation Boulevard. The route associated with the Constellation Station was detennined in the Draft EISIEIR (at 7-12), and later in the Final EIS/EIR (at 7-13), to be slightly longer and therefore more expensive than the route associated with the Santa MonicalAve. Stars Station. 13. Petitioner, the School District and many concerned Beverly Hills citizens and

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parents commented on the Draft EISIEIR and the Project's many adverse environmental impacts on Beverly Hills, its citizens, businesses, homes, schools and students, and voiced their particular concerns that the potential impacts of tunneling under homes and the High School between the WilshirelRodeo station and the Constellation Station had not been adequately identified or analyzed. 14. On October 28, 2010, Metro designated Alternative 2 from the Draft EIS/EIR, the

WestwoodNA Hospital Extension, to be the Locally Preferred Alternative ("LP A") for further evaluation in the Final EISIEIR. Under the LP A, the Project would extend from the WilshirelWestern station to the WilshirelRodeo station, then south to the Century City station, then north to the Westwood/UCLA station, and finally west to the WestwoodN A Hospital station. During that same meeting, however, Metro publicly committed to analyze the impacts of the preferred and alternative Century City stations and the alignments associated with them, and, in
[312676 5.DOC/5107.001]

4 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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particular, to analyze in depth the potential impacts of tunneling under the High School and consider alternatives that would avoid tunneling under the High School altogether. 15. The Final EIS/EIR was prepared and released in March 2012. (The Draft EISIEIR

and Final EIS/EIR are referred to collectively as the "EIS/EIR.")

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The Final EIS/EIR disclosed that substantial changes had been made to the design

of the Project after the release ofthe Draft EIS/EIR on which the public, including, without limitation, Petitioner, has not had an adequate opportunity to comment as required by CEQA, including, inter alia, in the following material respects: 1. The preferred Century City station was changed from the Santa Monica/Ave. Stars Station identified in the Draft EIS/EIR to a station located at Santa Monica Boulevard and Century Park East (the "Santa Monica/CPE Station"). This change was based, in part, on four new studies prepared for Metro after the Board's October 28,2010 meeting ("Metro Subsequent Studies"). Although the Metro Subsequent Studies did not include data based on sufficient geotechnical testing, Metro used them to conclude that the preferred Santa Monica/Ave. Stars Station was exposed to great seismic risk from the Santa Monica Fault, and should be removed

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from the Project and replaced with the Santa Monica/CPE Station. 2. Although the Final EIS/EIR identified the Santa Monica/CPE Station, rather than the Santa Monica/Ave. Stars Station, as the preferred station to avoid this seismic risk, the Final EIS/EIR then concluded that this preferred Santa Monica/CPE Station was also infeasible because it was also exposed to great seismic risk from the Western Beverly Hills Lineament, purported to be associated with the active Newport-Inglewood Fault located south of Century City. (Final EIS/EIR at 4-179.) Incredibly, this conclusion was purportedly based on the same Metro Subsequent Studies. Thus, Metro used the Metro Subsequent Studies to identify and then to reject an alternative station location as infeasible without proposing any feasible
[312676 5.DOC/S107.001l

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FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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alternative. Further, based on the Metro Subsequent Studies, but without having sufficiently analyzed the risks associated with the Constellation Station and the route of the alignment associated with that station in those Studies, the Final EIS/EIR concluded that the Project should include the Constellation Station, that the associated alignment under the High School was safe, and that there was no reasonable alternative tunnel alignment that does not pass under homes or structures within the High School campus. 3. The Final EISIEIR also changed the Project's tunnel depths from approximately 50 to 100 feet underground to 35 to 100 feet underground, without disclosing where the shallower tunnel depths would occur, and what the impacts of the shallower tunnel depths would be, including, without limitation, on affected properties, and on noise, vibration and public safety. 4. The Final EISIEIR changed the terminus of Phase 1 of the Project from the WilshirelFairfax station to the WilshirelLa Cienega station. This change resulted in an increase in the number and level of operational impacts at the WilshirelLa Cienega station, including, inter alia, an increase in boardings from 6,500 to 10,000 per day and resulting traffic/circulation, parking and pedestrian impacts and, in tum, resulting increased demand for police and fire services and emergency and safety concerns. It also resulted in an increase in construction impacts due to the expansion of the staging areas with a corresponding increase in previously undisclosed construction impacts. In addition, the WilshirelLa Cienega station will now be a crossover station, requiring 1,000 linear feet of open-cut construction, which is a 66 percent increase over the amount of construction contemplated in the Draft EISIEIR. This expanded construction will require substantially longer closures of Wilshire Boulevard that will, in tum, lead to exceedances of Petitioner's standards of significance for traffic impacts, as well as impacts
[312676 5.DOCI5107.0011

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on noise, public safety and emergency response times. 5. The Final EISIEIR changed the mitigation for paleontological resources impacts to include the possibility of using cut and cover construction more extensively, including raised decking with a grade separation, without disclosing the potential severity of the grade separation and failed to analyze the impacts of the grade separation (Final EISIEIR at 4-323, Appendix E at E-14). 6. The Final EISIEIR changed the Project to include the potential to build the entire Project in one phase over a ten-year period, rather than in three phases over a period of ten to fifteen years as the Draft EISIEIR assumed. 7. The Final EIS/EIR contained other changes in construction techniques and changes in station configuration as compared to the Project defined in the Draft EISIEIR that will result in new and greater significant impacts than those disclosed in the Draft EISIEIR, which have not been properly identified, disclosed, analyzed or mitigated in the Final EIS/EIR or subjected to public comment, as required by CEQA. 17.

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In addition, the Final EISIEIR contained substantial new information and analyses

not included in the Draft EIS/EIR on which the public, including, without limitation, Petitioner, has not had an adequate opportunity to comment, as required by CEQA. Metro relied the substantial new information in the Final EISIEIR, including, without limitation, the Metro Subsequent Studies, that had not been included in the Draft EIS/EIR in making the changes to the Project alleged above, and other changes and purported "refmements" to the Project (Final EISIEIR, §2.6.) 18. After the release of the Final EIS/EIR, Petitioner, as well as the School District and

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numerous concerned Beverly Hills residents and parents, commented that, as proposed in the Final EIS/EIR, the Project will create severe construction impacts and impose great risk to human health and safety, which impacts were not adequately disclosed, analyzed, or mitigated in the Final EISIEIR. Petitioner and these commenters also commented that the Final EIS/EIR's many
[312676 S.DOC/S107.00IJ

7 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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substantial changes to the Project and the substantial new infonnation added after the Draft ElSIEIR was circulated, including, without limitation, regarding the Project's components and its construction impacts and their level of their significance, required Metro to revise and recirculate the Final EIS/EIR for public comment prior to certifying the Final EISIEIR and approving the Project. 19. Despite repeated requests from Petitioner and others, and in violation of CEQA,

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Metro refused to revise the Final EIS/EIR to analyze the new and increased impacts resulting from these changes and the new infonnation in the Final EISIEIR, and include mitigation measures to address these impacts, and recirculate the Final EISIEIR to provide the public an opportunity to comment. 20. Moreover, substantial new and critically important technical and scientific

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information regarding the Project's impacts, the conclusions in the Draft EISIEIR and Final EIS/EIR and concerns raised in public comments on those documents was never even included in the Final EIS/EIR. Petitioner and the School District responded to the substantial new information that was included in the Final EIS/EIR by submitting to Metro scientific investigations and expert technical reports, all of which demonstrated, inter alia, that (1) the Metro Subsequent Studies were not based on sufficient technical or scientific investigation to enable them to conclude that the Santa Monica Fault Zone and the West Beverly Hills Lineament were active fault zones, (2) Metro had failed to study the potential methane gas hazard associated with the Constellation Station, and

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(3) the potential methane gas hazard associated with the Constellation Station posed at least as
great a hazard to the public as the faulting hazard posed by locating a station under Santa Monica Boulevard. Metro submitted expert technical reports in reply to those submitted by Petitioner and the School District. However, none of the reports submitted by Petitioner or the School District to

Metro, and none ofMetro IS reports prepared in reply were included in the Final EISIEIR or otherwise made available to the public for review and comment.
21. In addition, as alleged in detail below, both the Draft EISIEIR and the Final

EIS/EIR further violate CEQA by failing to describe the existing setting for the Project, and to disclose and identify the Project's impacts and feasible and enforceable mitigation measures to
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avoid or reduce the Project's potentially significant impacts, to analyze a reasonable range of feasible alternatives, and acknowledge the Project's significant and unavoidable impacts. 22. Rather than comply with its obligations under CEQA to revise and recirculate the

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Final EIR to include the missing analyses, revised analyses, and new and revised mitigation measures and alternatives that CEQA requires, Metro rushed to certify the Final EISIEIR and approve the Project. 23. Instead of revising and recirculating the Final EISIEIR as required by CEQA,

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Metro scheduled a public hearing for April 26, 2012, announcing that it would at that time take public testimony on the Project and consider certification of the Final EIS/EIR and approval of the Project. 24. On April 23, 2012, Petitioner submitted a written request to Metro for a hearing

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pursuant to Public Utilities Code section 30639 regarding Metro's proposal, as part of the Project, to locate a subway station facility at Constellation Boulevard in Century City, and the proposal to fix the location of the related subway tunnel alignment underneath the High School. 25. On April 26, 2012, despite Petitioner's request for a hearing pursuant to Public

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Utilities Code section 30639, Metro held its previously noticed public hearing. At that hearing, Metro took extensive public testimony, including, without limitation, testimony from representatives of Petitioner and residents of Beverly Hills opposed to the alignment of the Project underneath the High School. At the conclusion of the hearing, Metro certified the Final EIS/EIR for the Project, but approved only Phase 1 of the Project, which extends the Purple Line heavy rail subway 3.8 miles from its current terminus at the Wilshire/Western station to the planned Wilshire/La Cienega station. In addition, Metro authorized its Chief Executive Officer to file a Notice of Determination with the Los Angeles County Clerk and State of California Clearinghouse. Finally, Metro adopted Findings of Fact and Statement of Overriding Considerations, and a Mitigation Monitoring and Reporting Plan. 26. After its April 26, 2012, public hearing, Metro filed a Notice of Determination with

the County Clerk's office for its certification of the Final EIS/EIR and approval of Phase 1 of the Project. The County Clerk's office posted the Notice of Determination on April 30, 2012.
[312676 S.DOC/SI07.00l]

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FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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On or about May 3, 2012, Petitioner received notice that Metro had granted its

request for a hearing under Public Utilities Code section 30639, and had set the hearing for May 17,2012, without having consulted Petitioner and without a meeting or action by Metro's governing board, as required by statute. On May 10, 2012, Petitioner delivered a written request to Metro to continue the hearing to May 21, as Petitioner's two primary experts, Drs. Roy Shlemon and Piotr Moncarz, were both unavailable to testify on May 17 due to previously scheduled and unalterable professional commitments. On May 11,2012, Metro's counsel denied Petitioner's request, stating that any later hearing date would prevent Metro from holding its May 24,2012 hearing fixing the Century City station on Constellation Boulevard and the related subway alignment beneath the High School. 28. Metro purported to hold the hearing required pursuant to Public Utilities Code

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section 30639 for approximately three hours on May 17,2012 ("May 17 Hearing"). However, the May 17 Hearing was a sham as a result of the procedural defects in the hearing, as follows: 1. As alleged above, Metro improperly set the May 17 Hearing and then provided improper notice of the May 17 Hearing to Petitioner and had improperly refused to grant Petitioner's request for a brief continuance, specifically because Metro would then not have enough time after the hearing to approve Phases 2 and 3 of the Project at its May 24,2012 meeting, irrespective of the evidence presented at the May 17 Hearing. 2. Because Metro had improperly denied Petitioner's request for a continuance, Petitioner was deprived of its right to present the testimony of Drs. Shlemon and Moncarz in person, and the testimony of Dr. Moncarz at all. 3. Metro improperly noticed the May 17 Hearing on the internet, rather than by publication in an adjudicated newspaper of general circulation as required by statute. 4. A quorum of the Metro Board was not present at all times during the May 17 Hearing. 29. Despite these procedural defects, at the May 17 Hearing, Petitioner presented

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[312676 5.DOC/5107.0011

10 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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testimony from six experts, as more specifically alleged below, and offered evidence demonstrating that at least three alternative alignments between the WilshirelRodeo station and the Constellation Station were feasible that did not extend under residential homes or 'the High School (collectively, "Petitioner's Excluded Evidence"). Metro presented no witnesses, and simply offered into evidence the expert reports it had previously submitted. 30. On May 24,2012, after closing the May 17 Hearing, the Metro Board held a

special meeting, continued from May 17, to take public testimony in connection with the May 17 Hearing. In addition, and without notice, on that date Metro presented testimony from several experts concerning the subject of the May 17 Hearing and rebutting testimony provided by Petitioner at the May 17 Hearing. By presenting its experts in this way, Metro avoided the requirement of the Public Utilities Code that its experts be subject to cross examination and violated Petitioner's due process right to a fair hearing by introducing evidence outside the record which Petitioner did not have an opportunity to address. On that same date, at its regularly scheduled hearing, Metro's Board adopted its Decision with Findings of Fact regarding the reasonableness of the Constellation Station and the related subway tunnel alignment beneath the High School, pursuant to Public Utilities Code section 30645 (collectively, "May 17 Decision and Findings"). Petitioner is informed and believes, and based upon such information and belief alleges, that Board members who had not heard the testimony presented at the May 17 Hearing voted at the May 24, 2012 meeting to adopt the May 17 Decision and Findings. 31. On that same date, at its regularly scheduled hearing, the Metro Board approved the

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Project Definition for Phases 2 and 3 of the Project from the Wilshire/La Cienega station to the W estwoodIVA station, based on the LP A but incorporating several station, alignment and phasing refinements, including, inter alia: 1. Locating the Ceritury City station under Constellation Boulevard at Avenue of the Stars with corresponding subway alignments between Beverly Hills and Westwood; 2. Locating the WilshirelRodeo station entrance on the southwest comer of Wilshire Boulevard and Reeves Drive (requiring demolition of the historic Ace Gallery site)
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FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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with two construction staging sites on the southwest comer of Wilshire/Reeves and on the northeast comer of Wilshire/Canon Drive; 3. Locating the Century City station primary entrance on the northeast comer of Constellation!A venue of the Stars with two construction staging sites on the northeast comer ofConstellation!Avenue of the Stars and on the east comer of Constellation!Century Park East.

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In addition, the Board adopted an Addendum to the Final EISIEIR, publicly

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distributed for the first time at the May 24 meeting, which purported to address the construction air quality impacts of Phases 2 and 3 of the Project. Without any supporting explanation, the Addendum changed the projected construction emissions to reduce to a less than significant level for Phases 2 and 3 the significant and unavoidable PM 10 and PM2.5 impacts Project construction would create, as concluded in the Final EISIEIR as well as in the adopted findings and the Statement of Overriding Considerations for Phase 1 of the Project and the proposed findings and Statement of Overriding Considerations for the approval of Phases 2 and 3 of the Project posted on Metro's website with the Agenda for the May 24,2012 meeting. The Board also authorized Metro's Chief Executive Officer to file a Notice of Determination with the Los Angeles County Clerk and the State of California Clearinghouse for Phases 2 and 3, and it adopted the Findings of Fact and Statement of Overriding Considerations and Mitigation Monitoring and Reporting Plan. 33. After its May 24, 2012, meeting, Metro filed the Notice of Determination with the

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County Clerk's office for its approval of Phases 2 and 3 of the Project. The County Clerk's office posted the Notice of Determination on May 25,2012.

FIRST CAUSE OF ACTION (Violations of CEQA, Pub. Res. Code §§ 21000 et seq.)
34. Petitioner incorporates by reference each of the allegations of Paragraphs 1 through

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33, inclusive, ofthis Petition and Complaint as though set forth in full. Failure to Recirculate
35. CEQA requires that an EIR be recirculated, in whole or in part, if "significant new

information" is added to the EIR after the commencement of public review and interagency
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consultation but before certification of the EIR, so that the public has an opportunity to review and comment on the new information, the true scope of the project, its impacts and its mitigation measures before the lead agency makes a final decision to certify the EIR and approve the project. 36. Noncompliance with CEQA's disclosure requirements which precludes relevant

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information from being presented to the public agency, or noncompliance with CEQA's substantive requirements may constitute an abuse of discretion regardless of whether a different outcome would have resulted if the public agency had complied with these provisions. 37. As alleged above, the Draft EISIEIR analyzed the Constellation Station, and the

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two alignments associated with it from the WilshirelRodeo station, both of which extended under the High School, as an alternative to the preferred (base) Santa MonicalAve. Stars Station. 38. As alleged above, the alternative Constellation Station and the two alignments

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associated with it drew strong adverse comment from the City of Beverly Hills, the School District, and multiple concerned citizens. In response to those comments, at its October 28,2010 meeting, the Metro Board directed staffto "fully explore the risks associated with tunneling under the [Beverly Hills] High School," "analyze the possibility of moving the subway tunnel in order to avoid all school buildings and avoid any future plans to remodel" the High School, and to conduct additional analysis of the seismic hazards associated with the location of the Century City station at Santa Monica Boulevard. 39. As directed by its Board, after the publication of the Draft EISIEIR, Metro

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conducted substantial additional study and analysis of potential Project impacts, including additional seismic investigations and studies, additional study of potential impacts to the High School, additional geotechnical investigations, and revised noise and vibration assessments. Specifically in response to comments on the Draft EISIEIR relating to the safety of the Project in the Century City area, Metro obtained the four Metro Subsequent Studies: the Century City Area

Tunneling Safety Report, the Tunnel Advisory Panel Final Report, the Century City Area Fault Investigation Report, and the Preliminary Geotechnical and Environmental Report.
40. According to the Final EISIEIR, the Metro Subsequent Studies support the decision

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disclosed for the first time in the Final EISIEIR to change the Project's preferred Century City
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station on Santa Monica Boulevard from Avenue of the Stars to Century Park East. The Final EISIEIR also states that these studies support the conclusion that placing the Century City station at either of the studied locations on Santa Monica Boulevard (at Avenue of the Stars, as studied in the Draft EIS/EIR, or at Century Park East, as studied for the first time in the Final EISIEIR) will result in significant and unavoidable impacts due to the active Santa Monica Fault and the active West Beverly Hills Lineament, and that changing the Project altogether to adopt the Constellation Station and the associated alignment under the High School will avoid these impacts.

41.

This new infoimation, along with the other new information, as alleged below, and

the changes in the Project that were made in response to it, were not disclosed in the Draft EIS/EIR or in any document on which the public had a proper opportunity to comment. Such an action violates CEQA. 42. Moreover, the Metro Subsequent Studies are not the only technical studies

produced by Metro or commenters after to the pUblication of the Draft EISIEIR that address the serious seismic and other concerns raised by commenters in response to the Draft EISIEIR. Both Petitioner and the School District submitted expert consultant reports to the Metro in response to the Metro Subsequent Studies, to which Metro's experts responded. All of these studies, too, should have been included in a revised Final EISIEIR and recirculated for :further public comment.

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These additional studies (collectively, the "Excluded Subsequent Studies") include: 1. A report prepared by Exponent, entitled Hazard Assessment Study, Westside

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Subway Extension Project, Century City Area, California, submitted by
Petitioner to Metro on February 7, 2012. 2. A report prepared by Shannon & Wilson, entitled Preliminary Review

Comments on Century City Area - Fault Investigation Report - Westside Subway Extension Project, submitted by Petitioner to Metro on March 8, 2012.
This study followed an earlier study by Shannon & Wilson dated in 2011. 3. A report prepared by Parsons Brinckerhoff on behalf of the Metro, entitled

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Comments on Exponent's Report, dated April 4, 2012, responding to Exponent's
report.
[3126765.DOC/5107.001J

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14 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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4. A report prepared by Exponent responding to Metro's Comments on Exponent's

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Report, dated April 25, 2012.
5. Reports authored by seismic experts Miles Kenney and Loring Wyllie submitted by the School District to Metro on May 5, 2011. 6. A report prepared by Leighton Consulting submitted by the School District to both Metro and the FTA on May 8, 2012. 7. Metro's response to the Leighton Consulting Report, dated May 14,2012. 8. Metro's reply to Exponent's response to Metro's Comments on Exponent's

5

6 7
8
9 43.

Report, dated May 15,2012.
Petitioner presented additional technical and scientific information, Petitioner's

Excluded Evidence, at the May 17 Hearing: 1. Testimony from Dr. Phillip Buchiarelli, of Leighton Consulting, Inc., a member of the team of multidisciplinary experts who spent almost four months trenching and conducting borings and cone penetrometer tests at the High School, who called into question the report by Metro's expert, Parsons Brinckerhoff, regarding the location of faults in areas not covered by the trenching data, when there was no new data to justify their locations. 18 19 20 21 22 2. Testimony from Dr. Eldon Gath, a geologist and engineer with Earth Consultants International, who criticized the Parsons Brinckerhoff study for ignoring obvious data found by digging trenches on the High School campus, presenting inexplicable findings about the location of faults underneath the High School campus, and listing as active many faults that do not, in his professional opinion, actually exist. 3. Testimony from Miles Kenney, of Kenney GeoScience, who agreed with the research done by Leighton Consulting, and opined that any faults along Santa Monica Boulevard are likely inactive. 4. Testimony from Dr. Subodh Medhekar, of Exponent, who stated that, in his opinion, the Metro fault hazard study for the Constellation Station site was incomplete, the gas and oil well surveys were incomplete, and the considerations
[312676 5.DOC/5107.001]

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15 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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for potential sources of ground settlement were incomplete. Moreover, he testified, Metro failed to perform either a qualitative or a quantitative risk assessment of either the Santa Monica alignment or the Constellation alignment, as required to determine the seismic risks. In addition, Dr. Medhekar stated his opinion that there was insufficient soil gas data obtained for approval of the Constellation Station site, and that known hazards of pockets of gas exist that could migrate and spread to other areas.

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5. Testimony presented via videotape from Dr. Roy Shlemon that, in his scientific
opinion, not enough geological work - in fact, almost no site-specific work - had been performed to support the Constellation Station site for use as a subway station, and that a site-specific investigation must be done to determine if active faults exist at the Constellation site, since the Constellation Station will be a habitable structure under California law. According to Dr. Shlemon, that work must include trenching at the site, or if trenching cannot occur, then cone penetrometer tests and coring must be done. Dr. Shlemon further testified that there is evidence suggesting that there may be a fault running through the Constellation site, known as the N ewportiInglewood fault branch, and that, in the absence of a proper evaluation of the Constellation site, there could be a potential violation of the 1972 Alquist-Priolo Act, which would prevent any habitable structure from being placed on a defmed active fault.

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44.

6. Testimony from Tim Buresh, the lead engineer studying the subway alignments for
High School and the former regional director for the High Speed Rail Authority in Southern California, who challenged the Metro ridership models that contributed to Metro's determination of the preferred station. He testified that Metro's study was faulty and that, in the end, both Century City stations would attract approximately the same ridership. Mr. Buresh also testified that the Constellation Station would cost approximately $100 million more than the Santa Monica Boulevard stations. As alleged above, because Metro had unreasonably refused to grant Petitioner's

[312676 5.DOC/5107.0011

16 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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request for a short continuance of the May 17 Hearing, Petitioner was unable to present Dr. Piotr Moncarz's testimony, even by videotape. 45. In addition, as alleged in part above, substantial changes were made to the Project

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definition that resulted in new significant impacts, which also constituted new information requiring recirculation of the Final EISIEIR. 46. As alleged above, these changes will result in increases in the construction and

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7

operational impacts of the Projects, only some of which were analyzed in the Final EISIEIR. For example:

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1. The Final EISIEIR fails to analyze the traffic/circulation, parking and pedestrian
impacts and, in turn, resulting increased demand for police and fire services and emergency and safety concerns that the changes to the WilshirelLa Cienega station will create during construction and operation. 2. Because the Final EISIEIR does not disclose where the shallower tunnels will occur along the Project's alignments, it does not analyze what impacts those shallower tunnels will have and what mitigation would reduce those impacts and by how much. 3. As alleged above, because the Final EISIEIR omits critical analyses of the conditions and impacts associated with the Constellation Station and related alignment between it and the Wilshire/Rodeo station, the Final EISIEIR fails to analyze the impacts of incorporating that station and that alignment into the Project. 4. As alleged above, because the Final EISIEIR does not analyze the impacts that the grade separation would potentially create, it does not acknowledge that it could potentially create new significant impacts to, inter alia, traffic, transit, pedestrian and bicycle circulation, access, emergency access, and American with Disability Act ("ADA") access, as well as increases in the severity of previously identified impacts, and does not analyze or recommend any mitigation or alternatives, although feasible mitigation measures and alternatives are available, for these new and increased impacts. 5. Regardless of construction phasing, the Final EIS/EIR discloses for the first time that
[312676 5.DOC/5107.0011

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17 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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construction noise impacts will be significant and unavoidable (Final EIS/EIR at S-66). In comments submitted to Metro in connection with the Excluded Subsequent

Studies and on the Final EIS/EIR, Petitioner repeatedly requested that Metro comply with CEQA

4· and revise the Final EIS/EIR to analyze this new information, including, without limitation, the 5 6 7 Excluded Subsequent Studies and Petitioner's Excluded Evidence, and provide the public an opportunity to review and comment on the new information and the changes to the Project prior to the certification ofthe Final EIS/EIR and approval of the Project. 48. In direct violation of CEQA's mandates, however, Metro instead brushed aside the

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serious questions raised by this substantial new information, ignored the public's right under CEQA to review and comment on this information, and rushed to certify the Final EIS/EIR and approve Phase 1 of the Project on April 26, 2012. Subsequently, on May 24,2012, barely one week after the May 17 Hearing, Metro approved Phases 2 and 3 of the Project. 49. For these reasons, the public was not provided an opportunity to comment on

10

significant new information added to the Final EIS/EIR, on previously undisclosed components of the Project, or on new significant impacts ofthe Project, or on Project impacts that are more severe than acknowledged. For the reasons alleged above, the EIS/EIR should have been revised to include the additional analyses and proper mitigation measures CEQA requires, and then

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recirculated to afford the public the right to review and comment upon this new information. 50. The many defects in the Draft EIR and the Final EIR, all as alleged above, required

Metro to revise the EIS/EIR and recirculate it before it prepared and certified the Final EIS/EIR approved the Project. Metro's actions certifying the Final EIS/EIR and approving the Project without having revised and recirculated the EIS/EIR constitute a prejudicial abuse of discretion under CEQA.

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Failure to Include a Clear and Stable Project Description
51. CEQA requires that an EIR include a clear and accurate project description, and

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that the nature and objective of a project be fully disclosed and fairly evaluated in the EIR. A clearly written project description is critical to the EIR's evaluation ofthe project's impacts and its consideration of mitigation measures and a reasonable range of alternatives.
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18 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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52.

As alleged above, the Final EIS/EIR disclosed that Metro had made substantial

changes to the design of the Project after the release of the Draft EISIEIR on which the public, including, without limitation, Petitioner, has not had an adequate opportunity to comment as required by CEQ A. 53. As alleged above, after the release of the Final EIS/EIR, Petitioner, as well as the

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School District and numerous concerned Beverly Hills residents and others, commented that, as proposed in the Final EISIEIR, the revised Project would create severe construction impacts and impose great risk to human health and safety, which impacts were not adequately disclosed, analyzed, or mitigated in the Final EISIEIR. 54. The Final EIS/EIR's failure to include a clear and stable description ofthe Project

8
9

prevented it from accurately analyzing the Project's impacts, recommending appropriate mitigation measures and a reasonable range of alternatives to the Project. 55. Metro's actions certifying the Final EIS/EIR without a clear and stable Project

description constitutes a prejudicial abuse of discretion under CEQA, since Metro failed to proceed in a manner required by law, and its findings are not supported by substantial evidence in light of the whole record.

Failure to Analyze the Potential Impacts Associated with the Constellation Station 18 19 20 21
56. In written comments on the Draft EIS/EIR, Petitioner, as well as its residents, the

School District, and other commenters, repeatedly requested that Metro revise the Project to avoid tunneling under homes and the High School campus to avoid or reduce the Project's significant construction impacts in Beverly Hills. However, Metro denied these requests for four primary reasons: 1. First, Metro claimed without supporting substantial evidence that "[t]here is no reasonable tunnel alignment that does not pass under homes or structures within the Beverly Hills High School campus." (Final EIS/EIR, Appendix Hat H-2.3-55.) 2. Second, Metro claimed without supporting substantial evidence that the Metro Subsequent Studies demonstrated that tunneling could safely be conducted under the High School. (Jd.; see also Final EIS/EIR at 7-12, 7-14.)
[312676 5.DOC/5107.00l]

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19 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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3. Third, Metro claimed without supporting substantial evidence that the Metro Subsequent Studies demonstrated that locating the Century City station on Santa Monica Boulevard was not a viable option or feasible due the active Santa Monica Fault and the active West Beverly Hills Lineament. (Id.) 4. Fourth, Metro claimed without supporting substantial evidence that the Metro Subsequent Studies demonstrated that the Constellation Station is safe. (Id.) 57. However, as alleged above, the Metro Subsequent Studies were not based on

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8 9

investigations and other data sufficient to enable those studies or Metro to conclude that tunneling could safely be conducted under the High School, that locating a Century City station on Santa Monica Boulevard was not safe, or that the Constellation Station would be safe. 58. Further, Metro did not even attempt to support its bald assertion that "[t]here is no

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reasonable tunnel alignment that does not pass under homes or structures within the Beverly Hills High School campus." CEQA requires Metro to consider and adopt all feasible mitigation and feasible alternatives to address the Project's significant environmental impacts. Metro cannot simply refuse to consider alternative alignments when it has acknowledged that the alignments it has considered could result in significant impacts; nor can it refuse to disclose what alternative alignments it considered that it ultimately concluded were not "reasonable." 59. Metro's failure to assess the seismic risks and the methane risks and other hazards

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associated with the construction and operation of the Constellation Station and the related alignment between Century City and the WilshirelRodeo station constitutes a material and prejudicial omission from the Final EISIEIR. 60. Metro's determinations and findings that the Santa Monica/Ave. Stars and the Santa

Monica/CPE Stations are "not viable" and that the Constellation Station and the associated alignment between that station and the Wilshire/Rodeo station are safe are not supported by substantial evidence, and therefore violate CEQA. 61. The Final EISIEIR fails as an information document by its failure to disclose and

analyze all of the Project's impacts. As such, the Final EISIEIR fails to comply with CEQA's most basic mandates.
[312676 5.DOC/5107.00l]

20 FIRST AMENDED PETITION. FOR WRIT OF MANDATE AND COMPLAINT

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62.

Metro's actions certifying the Final EISIEIR and approving the Project without

having supported its conclusions with substantial evidence constitute a prejudicial abuse of discretion under CEQA.
Failure to Analyze a Reasonable Range of Alternatives

63.

CEQA contains a substantive mandate prohibiting a lead agency from approving a

6
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project that would have significant environmental effects on the environment if feasible alternatives or feasible mitigation measures are available that would substantially lessen the significant environmental effects. An EIR must describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project, and avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. 64. As alleged above, despite comments from Petitioner and others, and despite the

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direction of Metro's Board on October 28,2010, the Final EIS/EIR fails to analyze feasible alternative routes between the WilshirelRodeo station and the Constellation Station that do not require tunneling under the High School. In fact, as alleged above, the Final EISIEIR asserts, without any supporting evidence, that no "reasonable" tunnel alignment exists between those two stations "that does not pass under homes or structures within the Beverly Hills High School campus." 65. To the contrary, however, at the May 17 Hearing, Petitioner demonstrated that

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there are at least three alternative alignments that are feasible and that would not extend under the High School. Attached hereto as Exhibit C, and incorporated herein by this reference are true and correct copies of the depictions of those three alignments submitted into evidence by Petitioner at the May 17 Hearing. As that evidence demonstrated, all three of these alignments avoid tunneling under the High School campus and residential properties. Specifically: 1. One alignment avoids all structures in Century City except for a parking structure; extends only under vacant land, open space, landscaping, or major roadways, thereby reducing acquisition costs; complies with all Metro requirements for tunnels, including curved radius restrictions; avoids the potential Santa Monica
[312676 S.DOC/SI07.00lJ

21 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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Fault Zone completely; and only crosses the Beverly Hills Lineament in a perpendicular direction (as does the current proposed Metro alignment); 2. One alignment crosses under two underground parking structures with a maximum of three subterranean floors, and crosses under a medium level office structure not likely to have a deep subterranean foundation; and 3. One alignment crosses under a low-level office building, two parking structures with a maximum of three underground stories, and a mid-level office building with similar underground parking. 66. Metro's refusal to consider feasible alternative alignments between the

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WilshirelRodeo station and the Constellation Station violated CEQA. Metro's conclusion that no "reasonable" tunnel alignment exists between those two stations "that does not pass under homes or structures within the Beverly Hills High School campus" is not supported by substantial evidence. 67. The Final EISIEIR fails as an information document by its failure to consider a

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reasonable range of feasible alternatives, including, without limitation, feasible alternative alignments between the Wilshire/Rodeo station and the Constellation Station. 68. Metro's actions certifying the Final EIS/EIR and approving the Project without

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having considered a reasonable range of feasible alternatives constitute a prejudicial abuse of discretion under CEQA.
Failure to Properly Describe the Baseline, to Analyze Significant Impacts, Adopt Feasible Mitigation Measures or Alternatives and Support Conclusions with Substantial Evidence

69.

CEQA requires that an EIR include a description of the physical environmental

conditions in the vicinity of the project as they exist at the time the notice of preparation is published, or, ifno notice of preparation is published, at the time that environmental analysis is commenced, from both a local and a regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. The EIR must demonstrate that the significant environmental impacts of a project were adequately investigated and discussed and it must permit the significant effects of
[312676 S.DOC/SI07.00lJ

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22 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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the project to be considered in the full environmental context. 70. CEQA requires that all of the significant environmental impacts of a project be

addressed by either changes to the project or by the adoption of specific, feasible mitigation measures designed to "mitigate or avoid the significant effects on the environment" to the maximum extent feasible. If mitigation measures would cause one or more significant effects in addition to those that would be caused by the project as proposed, the effects of the mitigation measures shall be discussed but in less detail than the significant effect as the project as proposed. 71. Mitigation measures are legally inadequate when they are so undefmed that their

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effectiveness cannot be judged. Impermissible deferral of mitigation measures occurs when an EIR puts off analysis or orders a report without either setting standards or demonstrating how the impact can be mitigated in the manner described in the EIR. Reliance on tentative plans for future mitigation after completion of the CEQA process significantly undermines CEQA's goals of full disclosure and informed decision making." If the success or failure of mitigation efforts may largely depend upon management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR, the EIR is inadequate. 72. Where impacts are not mitigated to a less than significant level, CEQA imposes a

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duty to adopt findings, including a statement of overriding considerations, supported by substantial evidence in light of the whole record, that there are specific, identifiable and real economic, social or other considerations that justify approval of the project notwithstanding its unavoidable environmental impacts. 73. Geotechnical! Seismic Impacts. In addition to Final EISIEIR's failure to properly

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address the substantial seismic and geotechnical issues relating to the Century City stations and the alignments through Beverly Hills to reach them, as alleged above, the Final EIS/EIR also fails to determine the existing geotechnical conditions along all of the Project's alignments, and then to analyze how those existing conditions would be affected by the construction and operation of the Project. Without providing details as to where the Project's construction and operational geotechnical impacts will be and their estimated severity given the existing conditions in the Project areas, the Final EISIEIR merely acknowledges the potential for tunneling-induced
[312676 5.DOC/5107.0011

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FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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2

settlement and settlement induced by other excavation activities, such as dewatering and shallow tunneling underneath sensitive structures or at cross-passages. Rather than analyzing the impacts the Project will create given the existing conditions, however, the Final EISIEIR improperly defers the determination of the existing conditions, the assessment of impacts and the determination of appropriate mitigation measures to the mitigation measures themselves, including OEO 4, CON48, and CON-49, which require, e.g., pre-construction surveys of the geotechnical conditions and determination of the structural conditions within the anticipated zone of construction influence, the determination of the Project's construction impacts by, e.g., a ground surface and building monitoring program to be developedfollowing the pre-construction surveys, and the determination of mitigation measures to address any construction-related movement (also following the preconstruction surveys). 74. Similarly, the Final EIS/EIR defers determining the actual location of oil wells and

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their associated hazards to Mitigation Measure CON-53, which requires that "more detailed research on oil well locations" be conducted after the Final EISIEIR has been certified and the Project has been approved . 75. Similarly, the Final EISIEIR defers to Mitigation Measure HR-4 the geotechnical

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investigations needed to evaluate the soil, groundwater, seismic and environmental conditions along the Project's alignment needed to (1) identify areas that could cause differential settlement as result of the use of the tunnel boring machine, (2) determine mitigation measures needed to ensure that appropriate support mechanisms and measures are provided for the cut and fill construction areas, and (3) ensure that historic structures, including, without limitation, the High School, are protected from damage during construction. 76. Therefore, the Final EIS/EIR contains no information regarding the baseline from

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which the Project's geotechnical construction impacts can be determined, and, as a result, it contains no valid or useful analysis of the Project's geotechnical construction impacts, even though

26

it concludes that these impacts are potentially significant. Moreover, it contains no valid
mitigation measures, and no substantial evidence that the potentially significant geotechnical impacts will in fact be reduced to a less than significant level, even though the Final EISIEIR
[312676 S.DOC/S107.00Il

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concludes that they will be (see, e.g., Final EISIEIR at S-48, S-68, S-69).

77.

Noise and Vibration Impacts. The Final EISIEIR failed to include sufficient

3

infonnation to assess the noise impacts of Project construction on a local level. While the Final EISIEIR concludes that construction noise levels will be significant, it includes no infonnation about existing noise limits, the noise levels that actually will occur with construction, where and when construction noise levels will exceed levels set by local ordinances, and how to mitigate such significant noise impacts. It is not enough that the Final EISIEIR concludes that construction related noise impacts will be significant; it must assess those impacts, the feasible mitigation measures and alternatives that avoid or reduce them, and the residual impacts. 78. As a direct and foreseeable consequence of failing to detail these significant

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5

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7

8

9

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impacts, the Final EIS/EIR cannot detennine appropriate mitigation measures to reduce those impacts or determine the extent to which they will reduce the impacts. Moreover, the mitigation measures included in the Final EISIEIR are legally insufficient, as they either fail to reduce the noise levels generated by construction activities or improperly defer mitigation by postponing the creation of noise mitigation control plans and abatement measures to the future. 79. The Final BIS /EIR also fails to adequately analyze vibration impacts. Although

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sensitive uses are located within 150 feet of Wilshire Boulevard, and in some instances are immediately adjacent to the proposed subway tunnel route, and tunneling is proposed underneath the High School campus, the Final EISIEIR contains no quantified analysis of the construction vibration impacts that will be experienced by any residential or other sensitive uses in Beverly Hills. Petitioner's comments on the Final EIS/EIR suggested additional feasible mitigation measures that would reduce these impacts, at least in part, including, without limitation, a prohibition against pile driving, but Metro failed to include these mitigation measures in the Project, in violation of CEQA. 80. Traffic/Access Impacts. The Final EIS/EIR also failed to adequately analyze

18 19 20 21 22 23 24 25 26 27 28

transportation-related impacts from Project construction, even though the Final EIS/EIR concludes that these impacts will be significant and unavoidable. For example, the Project includes the "cut and cover" construction method for construction of the stations. In Beverly Hills, this
[312676 5.DOC/5107.001]

25 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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construction will result in full street and lane closures on Wilshire Boulevard in and near the intersections of Wilshire Boulevard and Beverly Drive, Rodeo Drive, Canon Drive, EI Camino and La Cienega Boulevard, as well as congestion on other streets, and blockages of driveways, garage entrances and sidewalks that together will result in significant and unavoidable impacts to intersections, roadways, pedestrians, bicyclists, and transit and shuttle stops. (Final EIS/EIR at S37, S-39, S-40.) The Final EIS/EIR discloses that the time period for street closures will be 85 to 140 days for installation of the cover and another 85 to 140 days for removal ofthe cover at the end of construction (Table 3-19), over a period of 2 to 3 months (at 3-94). At a briefing for elected officials, Metro informed Petitioner's representatives that street closures would only occur on weekends and that, as such, cover installation and removal would require 56 weekends if the 140-day estimate were correct. 81. Moreover, the severe impacts that Project construction will create will be

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substantially compounded should a grade separation between the cover and the street grade be created, as the mitigation for paleontological resource impacts might require (Final EIS/EIR at 4323); not only would such a grade separation exacerbate these traffic and circulation impacts, but it would also create new impacts not analyzed in the EISIEIR to access and human safety and emergency access. 82. Despite the fact that these impacts are deemed to be significant, the Final EIS/EIR

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contains no specific discussion of how road closures will impact levels of service at any of the Beverly Hills streets to be affected: it fails to include traffic counts before and after construction begins, does not identify Beverly Hills streets that will be impacted by diverted traffic, and does not identify how such impacts will be avoided or mitigated. Instead, the Final EIS/EIR indicates that any analysis of potential traffic impacts and mitigation will be deferred to afuture date. Specifically, the Final EIS/EIR defers to Mitigation Measures such as TCON-1 and TCON-4 the development of such critical information as traffic projections, the number of haul trucks, street closures, and levels of service at specific intersections, all of which will be developed in the future. However, all of this information is essential to determining the extent of the Project's impacts and the appropriate mitigation measures to reduce those impacts to the extent feasible.
[312676 5.DOC/5107.001]

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26 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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83.

The Final EISIEIR's failure to fully analyze and mitigate the Project's substantial

construction impacts on traffic and circulation in turn defeats its ability to fully analyze and mitigate impacts on vehicular and pedestrian access to buildings; emergency access, evacuation and human safety in the event of an emergency; and ADA access issues. Mitigation Measure TCON- 3 promises that emergency access will be maintained at all times to the construction work, adjacent businesses and residential neighborhoods, but provides no specific plan or standards that ensure this result will in fact occur. Similarly, Mitigation Measure TCON-lO promises, without any specific implementation measures, to provide safe pedestrian routes and access for pedestrians during construction, and Mitigation Measure TCON-ll promises, also without any specific implementation measures, to provide safe bicycle paths and access for bicyclists during construction. To the contrary, however, the Final EISIEIR's acknowledgment of the lane and street closures and sidewalk closures required by Project construction, and the need to block driveways, and the potential for the cover to create grade separations provides substantial evidence that, in fact, these vacant promises cannot be fulfilled. 84. In addition, the Final EISIEIR fails to adequately address the impacts of Project

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operations on traffic and circulation in areas where stations will be located. Most significantly, the Project does not provide for parking for the WilshirelLa Cienega station. The Final EISIEIR (at 367) simply assumes, without supporting evidence, that parking impacts will not be significant if there is no restricted parking in the vicinity of the station. However, as Petitioner's comments on the Final EISIEIR stated, in Petitioner's experience, the lack of dedicated parking will result in traffic impacts. Specifically, cars slowing to pick up and drop off passengers along La Cienega Boulevard in front of the station will interfere with the flow of traffic and result in an adverse impact on traffic and circulation; in turn, these traffic impacts will result in an increased demand on police, fire and other emergency services. However, the Final EISIEIR fails to analyze these potential impacts and fails to recommend mitigation measures to address them. 85. Air Quality Impacts. The Final EIS/EIR acknowledged that the Project's change

from phased to concurrent construction will result in new significant and unavoidable PMlO and PM2.5 impacts that were not disclosed in the Draft EISIEIR. As alleged above, at the May 24,
[312676 S.DOC/S107.00lJ

27 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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2012 meeting of its Board, Metro released to the public for the first time an Addendum to the Final EIS/EIR that purported to reduce those impacts to a less than significant level for Phases 2 and 3 of the Project. However, the Addendum was not supported by substantial evidence and contained no explanation for the changes in projected construction emissions that supported those reductions, and, in fact, those reductions were contrary to the analysis and the substantial evidence supporting that analysis contained in the Final EISIEIR and summarized in the findings and Statement of Overriding Considerations adopted by Metro on April 26, 2012 and in the proposed fmdings and Statement of Overriding Considerations released by Metro with its Agenda for its May 24,2012 meeting. 86. Construction of the Project will also result in significant, local air quality impacts

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that have not been disclosed, analyzed, or mitigated in the Final EISIEIR. It is not enough that the Final EIS/EIR discloses that air pollution emissions from the Project as a whole will be significant under the concurrent construction scenario (and will be significant for emissions of nitrogen oxides under the phased construction scenario); since some air pollutants have particularly localized impacts, the Final EISIEIR must also evaluate the impacts of air pollutants related to construction on locally affected populations. For example, the Final EIS/EIR fails to assess the following:

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The local air pollution emissions associated with intense, street-level construction,

such as that associated with the Wilshire/La Cienega station. This failure is particularly serious with respect to the emission of toxic air contaminants, diesel particulates, and carbon monoxide all of which are pollutants that will impact the health of nearby residents and other sensitive receptors, such as students. 2. fuel. The health impacts of PM2.5, a particulate pollutant associated with the use of diesel

3.

The toxic air contaminants emissions from construction equipment and vehicles,

even though Project construction will occur within 1,000 feet of sensitive receptors, including schools, residences, and several hotels.

4.

The additional air quality impacts associated with the change to the Rodeo Station

[312676 5.DOC/5107.0011

28 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

1

configuration by adding a double crossover to the east end of that station to "optimize operations," which change will bring the station construction to within 1,000 feet of the Beverly Vista elementary schooL 87. As a result of these material and prejudicial omissions, the Final EISIEIR failed to

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analyze a potentially significant project-level, as well as cumulative, air quality and health impacts of the Project that would result when the emissions from such a long-term and substantial construction project are added to already significant sources of pollutants, such as traffic along Wilshire Boulevard. 88. Aesthetic Impacts. As alleged above, Project construction within Beverly Hills will

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continue for approximately a decade. The Final EISIEIR (at 4-346 to 4-348) acknowledges that construction of the Project, including, without limitation, the presence of heavy machinery, trucks, open streets, traffic detours, and noise barriers will have significant aesthetic impacts, but that these impacts will be reduced to a less than significant level through the implementation of Mitigation Measures CON-2 through CON-4 (at S-62). However, these measures require only timely removal of erosion-control devices; locating stockpile areas in less visibly sensitive areas and, "whenever possible," in areas not visible from roads or to residents and businesses; shielding and directing construction lighting toward interior construction areas; and screening staging areas "where possible" (Appendix I, at 1-35). 89. Since the Project locates construction and staging areas in aesthetically sensitive

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areas of Beverly Hills, and in areas adjacent to sensitive uses such as residential uses, luxury hotels and retail uses, these identified mitigation measures are too vague and afford too little protection against a decade of significant aesthetic impacts to an area that relies on its highly aesthetic characteristics in order to attract business. Petitioner's comments suggested feasible additional mitigation measures to help reduce the level of these significant aesthetic impacts, but Metro did not adopt these mitigation measures. Metro's failure to adopt feasible mitigation measures to reduce the level of acknowledged significant aesthetic impacts, and its adoption of vague mitigation measures lacking sufficient standards to ensure that the significant aesthetic impacts would in fact be reduced to a less than significant level, violated CEQA.
[312676 5.DOC/5107.0011

29 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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90.

Paleontological Impacts. The Final EISIEIR acknowledges (at 4-303) that there are

numerous areas along the Project's alignment, including, without limitation, between La Brea Boulevard and La Cienega Boulevard, and along Wilshire Boulevard both east and west of Beverly Drive, where paleontological resources have been found and where more such sources are likely to be found. The Final EIS/EIR concludes that Project construction will result in a significant impact on paleontological resources where the tunnel boring machine will be used, since mitigation for impacts in tunnel interiors is infeasible (id. at 4-316). Incongruously, however, the Final EIS/EIR also concludes that this significant impact, for which mitigation is infeasible, can be reduced to a less than significant level by the implementation of Mitigation Measures PA-2 through PA-7 (at S-54), which merely call for requesting early approval to begin fossil recovery "if feasible," development of a paleontological resources mitigation and monitoring plan in the future according to undisclosed criteria, and requiring specific activities with respect to any resources that might actually be recovered (Appendix I at 1-32 and 1-33). Given Metro's admission that there is no feasible mitigation for the significant impact in the tunnel interiors, it cannot then conclude that this impact will be reduced to a less than significant level. 91. Impacts of Specific Construction Technigues. The Final EIS/EIR also fails to

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analyze the impacts that will be created by the specific construction techniques incorporated into the Project, many of which will clearly have significant impacts that have not been adequately addressed by proper mitigation measures. For example: 1. Appendix E discloses (at E-21) that the tunnel boring machine will be dismantled and retrieved twice at the WilshirelLa Cienega station: once upon arrival from WilshirelLa Brea and once upon arrival from Century City. However, the Final EIS/EIR contains no discussion of how such dismantling will occur and no analysis of its environmental impacts. 2. Appendix E also states (at E-26) that iftie-backs are encountered during Project construction, the construction method may have to change to the cut-and-cover method in the tie-back zone. This change in construction method will result in substantially increased environmental impacts that are not analyzed or mitigated in
[312676 5.DOCI5107.0011

FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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1
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the Final EIS/EIR for roadway segments, as opposed to station locations. 3. Finally, with respect underground station construction, Final EISIEIR discloses (at E-14) that at some unidentified locations along Wilshire Boulevard, the groundwater is near the surface and potentially under artesian pressure; however the Final EISIEIR fails to analyze the environmental impacts associated with groundwater under those conditions, and how and whether these impacts must be addressed during construction (see, e.g., at 4-369). 92. Impacts Created by Mitigation Measures. The Final EISIEIR fails to evaluate the

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impacts associated with mitigation measures to address potential paleontological resource impacts proposed for the first time in the Final EISIEIR. Specifically, as alleged above, the Final EISIEIR states (at 4-323; Appendix Eat E-9) that it may be necessary to employ raised decking to allow for investigation and protection of paleontological resources. This decking system would be elevated above street level and would require ramps to allow traffic to transition to and from the decking, and "may temporarily increase visual impacts to adjacent properties, as well as present some access restrictions (id. at 4-323, 4-324). However, the Final EIS/EIR contains no analysis ofthe traffic, circulation, access, public safety or aesthetic impacts that such a grade separation would create, nor does it contain any analysis of the impacts that the processes of cultural resource protection andlor recovery would create. Moreover, these adverse impacts would be in addition to and would compound the adverse impacts the Final EISIEIR acknowledges would already occur during construction as a result of the reduced traffic lanes and temporary street closures required by Project construction. (Final EISIEIR at S-38.) As a result of the omission ofthis information and analysis, there was no opportunity for public comment on these impacts, potential mitigation measures and alternatives. 93. Economic and Social Impacts. The Project's substantial construction impacts on

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Beverly Hills alleged above will, in turn, result in significant economic and social impacts on Beverly Hills residents, workers and businesses that, in turn, will result in physical impacts, most particularly on retailers and hotels in the La Cienega Boulevard and Rodeo Drive areas, that the Final EIS/EIR has grossly underestimated and has failed to mitigate. The Final EIS/EIR severely
[312676 5.DOC/5107.0011

31 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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underestimates the Project's negative economic impacts by, inter alia, (1) improperly inflating the baseline area, thereby artificially decreasing the impacts felt nearest to the station locations; (2) improperly including in its analysis adverse impacts only on those parcels that Metro will acquire, which account for only a small portion of the land that will be impacted by construction; and (3) entirely ignoring the clear adverse impacts on business tax revenue, sales tax revenue, and transient occupancy tax - all of which are crucial contributors to Petitioner's General Fund. While the Final EISIEIR estimates that only 35 jobs will be lost in Beverly Hills and that Petitioner will lose only approximately $426,000 in annual property taxes as a result of the construction of the Project, in fact Petitioner estimates its expected losses to be in the range of$1.9 million to $6.l million, representing between 1.6 and 3.8 percent of its total annual General Fund budget. In tum, this reduction in Petitioner's annual General Fund budget will result in a reduction of Petitioner's ability to provide needed public services to its residents and businesses, and to people who work and visit Beverly Hills. 94. For all of the reasons alleged above, the Final EIS/EIR fails as an informational

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document by its failure to disclose, analyze and mitigate all of the Project's impacts. As such, the Final EIS/EIR fails to comply with CEQA's most basic mandates. 95. Metro's actions certifying the Final EISIEIR and approving the Project without

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having described the baseline, disclosed and analyzed the Project's impacts, recommended specific and enforceable mitigation measures and considered alternatives to address the Project's significant impacts, and reached significance conclusions based on substantial evidence constitute a prejudicial abuse of discretion under CEQA.
Pre-Commitment to Project Approval

96.

CEQA mandates that lead agencies consider the environmental consequences of

their decisions before they make those decisions, in order to avoid the environmental review process becoming nothing more than post hoc rationalizations to support action already taken. 97. As alleged above, the Metro publicly noticed the Apri126, 2012 meeting and

announced that it intended at that meeting to certify the Final EIS/EIR, approve the entire Project including, without limitation, the Constellation Station and related alignment under the High
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FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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School, and adopt the CEQA findings and Statement of Overriding Considerations. At the April 26,2012 meeting, the Metro Board did in fact certify the Final EISIEIR, but announced that, in view of Petitioner's request for a hearing under Public Utilities Code section 30639, it would approve only Phase 1 of the Project and revised findings of fact, Statement of Overriding Considerations and Mitigation Monitoring and Reporting Plan addressing only Phase 1. 98. As alleged above, Metro only purported to hold the May 17 Hearing required by

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Public Utilities Code sections 30639 et seq. In fact, however, due to procedural defects alleged above and Metro's conduct during the hearing, that hearing was a sham. As alleged above, on May 24,2012, the Metro Board approved Phases 2 and 3 of the Project and adopted the findings, Statement of Overriding Considerations and Mitigation Monitoring and Reporting Plan relating to Phases 2 and 3, without acknowledging or having taken into consideration any of the information included in Petitioner's Excluded Evidence or in Petitioner's experts documents among the Excluded Subsequent Studies. 99. As such, Metro prejudged the outcome of its decisions relating to Phases 2 and 3 of

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the Project and relating to the May 17 Hearing, in violation of CEQA. 100. Metro's actions certifying the Final EIS/EIR and approving the Project prior to

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conducting the hearing required by Public Utilities Code section 30639 and without having considered the evidence presented at that hearing constitute a prejudicial abuse of discretion under CEQA.
Failure to Support Findings and Statement of Overriding Considerations with Substantial Evidence

101.

When exercising its governmental powers with respect to the Project, Metro has at

all times been under a mandatory duty to comply with all applicable requirements of CEQA, including, but not limited to, the duties to prepare a complete and adequate environmental report that identifies all significant impacts the Project may have on the environment based on substantial evidence, and to prepare findings, including a statement of overriding considerations, supported by substantial evidence in light of the whole record. 102. As alleged above, the Final EISIEIR fails to analyze the Project's construction and

[312676 5.DOC/5107.0011

33 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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operational impacts properly under CEQA, fails to consider all of the evidence, and, therefore, fails to recommend feasible and effective mitigation measures or alternatives to reduce the Project's significant impacts to the maximum extent feasible. 103.
In addition, as alleged above, because the Final EISIEIR has failed to properly

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analyze and mitigate the Project's impacts, it does not contain the substantial evidence needed to support its significance determinations. 104. In addition, as alleged above, the Final EISIEIR omits material information,

including, without limitation, the Excluded Subsequent Studies and Petitioner's Excluded Evidence, which demonstrates that many of the Final EISIEIR's purported conclusions are clearly incorrect. 105. As a result, Metro's conclusions, decisions and fmdings, including its Statements of

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Overriding Considerations, are not supported by substantial evidence in light of the whole record. Metro's actions in adopting findings and Statements of Overriding Considerations not supported by substantial evidence in the record addressing each of the Project's significant impacts constitute a prejudicial abuse of discretion under CEQA.
Approval of a Discretionary Act Without Complying with CEQA

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CEQA defines a "project" as "the whole of an action" that may result in either a

direct or reasonably foreseeable indirect physical change in the environment. A "project" includes an activity directly undertaken by a public agency. (Pub. Res. Code § 21065(a).) 107. The adoption of the May 17 Decision and Findings was a discretionary act on the

part of the Metro related to the Project. However, contrary to CEQA, Metro failed to analyze the direct and indirect environmental impacts of the May 17 Decision and Findings prior to adopting the May 17 Decision and Findings. 108. As alleged above, Petitioner submitted its experts' reports among the Excluded

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Subsequent Studies and Petitioner's Excluded Evidence at the May 17 Hearing, which demonstrate that many of the purported conclusions in the Final EISIEIR and the expert reports on which they are based, including, without limitation, the Metro Subsequent Studies, are clearly incorrect. The May 17 Decision and Findings purport to resolve the issues raised at the May 17 Hearing.
[312676 5.DOCI5107.00l]

34 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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However, no CEQA document has considered or analyzed the Excluded Subsequent Studies or Petitioner's Excluded Evidence. As alleged above, the Final EISIEIR does not contain or even refer to the Excluded Supplemental Studies or Petitioner's Excluded Evidence. Therefore, Metro cannot rely upon the Final EISIEIR as containing the substantial evidence it needs to support the May 17 Decision and Findings. 109. Additionally, as a "project" within the meaning of CEQA, Metro's adoption of the

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May 17 Decision and Findings must be accompanied by CEQA findings as required by Public Resources Code Section 21081. However, Metro adopted no such CEQA fmdings. 110. Metro's actions in adopting the May 17 Decision and Findings without having

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analyzed them under CEQA and without having adopted findings as required by CEQA constitute a prejudicial abuse of discretion under CEQA. 111. For all of the reasons alleged above, Petitioner is entitled to the issuance ofa writ

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of mandate, a temporary restraining order and/or preliminary injunction, and a permanent injunction, each commanding Metro to set aside the certification of the Final EISIEIR, approval of the Project and adopting of the May 17 Decision and Findings; to revise the Final EISIEIR to properly describe the baseline, analyze all of the environmental impacts of the whole of the Project, including, without limitation the May 17 Decision and Findings, recommend specific and enforceable mitigation measures and consider alternatives to address the Project's significant impacts, and reach significance conclusions based on substantial evidence; and to follow all applicable legal requirements for full public participation in Metro's decisionmaking process; and, in addition, forbidding Metro from taking any action to implement the Project, or any portion . thereof, until such time, if ever, as it has certified a proper EIR under CEQA that analyzes all of the potential adverse impacts of the whole of the Project and adopted the Project as analyzed in suchEIR. 112. For all of the reasons alleged above, Petitioner has been forced to incur attorneys'

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fees and other costs and expenses. In pursuing this action, which involves enforcement of important rights affecting the public interest, Petitioner will confer a substantial benefit on the general public and the citizens of Los Angeles County, and therefore is entitled to recover its
[312676 S.DOC/SI07.00lJ

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attorneys' fees and costs in this action pursuant to, inter alia, Code of Civil Procedure section 1021.5 and Government Code section 800. SECOND CAUSE OF ACTION (Injunctive Relief, C.C.P. Sections 526 et seq.) 113. 112, 114. Petitioner incorporates by reference each of the allegations of Paragraphs 1 through of this Petition and Complaint as though set forth in full. Petitioner is infonned and believes, and based upon such infonnation and belief

alleges, that Metro has authorized its Chief Executive Officer to proceed with its application for entry into Final Design and preparation of documents related to the Full Funding Grant Agreement ("FFGA") with the FTA. 115. Proceeding with these actions and all others which would advance the Project, may

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foreseeably preclude modifications to the Project which would result in reducing or eliminating some of the significant Project impacts. These activities could render the judgment of the Court ineffectual. 116. If detenninations are made regarding the final design and allocation of Project

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funding based on the Final EISIEIR without taking into account the issues raised in this Petition and Complaint, it could foreseeably result in irreparable harm to Petitioners and the public at large, necessitating temporary, preliminary and pennanent injunctive relief. 117. Therefore, Petitioner seeks the issuance of a temporary restraining order,

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preliminary injunction and pennanent injunction, respectively, to maintain the status quo and enjoin Metro from proceeding with the Project until there is an opportunity for full judicial review, and until such time as Metro has fully complied with the requirements of CEQA. 118. As a result of Metro's actions as alleged herein, Petitioner has been forced to incur

attorneys' fees and other costs and expenses. In pursuing this action, which involves enforcement of important rights affecting the public interest, Petitioner will confer a substantial benefit on the general public and the citizens of Los Angeles County, and therefore is entitled to recover its attorneys' fees and costs in this action pursuant to, inter alia, Code of Civil. Procedure section 1021.5 and Government Code section 800.
[312676 S.DOC/SI07.00Il

36 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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TIllRD CAUSE OF ACTION
(Violations of Pub. Utile Code Sections 30639 et seq., C.C.P. Sections 1085, 1094.5)
119. Petitioner incorporates by reference each of the allegations of Paragraphs 1 through

112, inclusive, of this Petition and Complaint as though set forth in full. 120. Under Public Utilities Code sections 30639 et seq., Petitioner had the right to a fair

hearing on the proposal to fix the location of a station in Century City and the associated Project alignment, and, at that hearing, Petitioner had the rights, inter alia, to be heard, present evidence, call and examine witnesses, cross-examine opposing witnesses and rebut evidence introduced by Metro, and to rebut oral testimony given by Metro witnesses under oath. 121. Under Code of Civil Procedure section 1094.5, a court may overturn Metro's

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decisions where it has deprived Petitioner of a fair trial, where Metro has prejudicially abused its discretion by not proceeding in the manner required by law, by issuing a decision that is not supported by the findings, and/or adopting findings that are not supported by the evidence. 122. As alleged above, Metro violated its statutory obligations to provide a full and fair

hearing to Petitioner under Public Utilities Code sections 30639 et seq., and Code of Civil Procedure section 1094.5, by setting the May 17 Hearing date without consulting Petitioner and without any action or meeting by Metro's Board, on a date on which Petitioner could not present

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testimony from its primary expert witnesses; by denying Petitioner's reasonable request for a continuance of the May 17 Hearing, and doing so for an improper reason; by improperly noticing the May 17 Hearing; by failing to have a quorum of Board members present at all times during the May 17 Hearing; by failing to present Metro's expert witnesses during the May 17 Hearing and make them available for cross-examination; and by closing the May 17 Hearing and then presenting Metro's expert witness testimony during the purported public comment period during the continued May 17 Hearing held during the special meeting on May 24,2012. In addition, as alleged above, Metro Board members who were not present at the May 17 Hearing voted to adopt the May 17 Decision and Findings at the special meeting held on May 24, 2012. 123. As a result of these procedural violations, Petitioner was deprived of its right to a

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full and fair hearing under Public. Utilities Code sections 30639 et seq., and to have that hearing
[312676 S.DOC/S107.00lJ

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prior to Metro acting to certify the Final EISIEIR and approve any portion of the Project. Petitioner was entitled to have the evidence it presented at the May 17 Hearing duly considered by the Board before it took action on the Project, and not to have the Board pre-determine its decision to certify the Final EISIEIR and approve the Project, including, without limitation, Phase 1 of the Project, without even considering the possibility that Petitioner's evidence might lead the Board to change one or more of components of the Project, or one or more conclusions in the Final EIS/EIR, or to conclude that the Final ElSIEIR should be revised and recirculated to give the public an adequate opportunity under CEQA to review and comment on the substantial new information presented by Petitioner. 124. Furthermore, the Board has prejudicially abused its discretion by issuing the May

17 Decision, which is not supported by the May 17 Findings, and by adopting the May 17 Findings, which are not supported by the evidence presented at the May 17 Hearing. For example, section 30639 of the Public Utilities Code requires that the Board's May 17 Findings explain why the Constellation Station and its associated alignment were chosen over other station locations and alternative alignments, which the May 17 Findings fail to do. Instead, the Board's May 17 Findings address the "reasonableness" of the location of the Constellation Station, which was not the question before the Board. 18
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125.

For all of the reasons alleged above, Petitioner is entitled to the issuance of a writ

of mandate, a temporary restraining order and/or preliminary injunction, and a permanent injunction, each commanding Metro to set aside the certification of the Final ElSlElR, approval of the Project and adoption of the May 17 Decision and Findings; to hold a proper hearing under Public Utilities Code sections 30639 et seq.; to consider all of the evidence presented at that hearing before reaching any determination with respect to that hearing, the certification of the Final ElSIEIR, or the approval of the Project; and, in addition, forbidding Metro from taking any action to implement the Project, or any portion thereof, until such time, if ever, as it has certified a proper EIR under CEQA that analyzes all of the potential adverse impacts of the whole ofthe Project and adopted the Project as analyzed in such ElR. 126. For all of the reasons alleged above, Petitioner has been forced to incur attorneys'

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23

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[312676 S.DOC/S107.0011

38 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

1 2 3 4 5 6

fees and other costs and expenses. In pursuing this action, which involves enforcement of important rights affecting the public interest, Petitioner will confer a substantial benefit on the general public and the citizens of Los Angeles County, and therefore is entitled to recover its attorneys' fees and costs in this action pursuant to, inter alia, Code of Civil Procedure section 1021.5 and Government Code section 800. WHEREFORE, Petitioner prays for relief, as follows: 1. For a peremptory writ of mandate, a temporary restraining order and/or preliminary

injunction, and a permanent injunction, each commanding Metro to set aside the certification of the Final EISIEIR and approval of the Project; to revise the Final EISIEIR to properly describe the baseline, analyze all of the environmental impacts of the whole of the Project, recommend specific and enforceable mitigation measures and feasible alternatives to address the Project's significant impacts, and reach significance conclusions based on substantial evidence; and to follow all applicable legal requirements for full public participation in Metro's decisionmaking process; and, in addition, forbidding Metro from taking any action to implement the Project, or any portion thereof, until such time, if ever, as it has certified a proper EIR under CEQA that analyzes all of the potential adverse impacts of the whole ofthe Project and adopted the Project as analyzed in suchEIR.
18

2.

For a peremptory writ of mandate, a temporary restraining order and/or preliminary

19
20 21 22 23

injunction, and a permanent injunction, each commanding Metro to set aside the certification of the Final EIS/EIR, approval of the Project and adoption of the May 17 Decision and Findings; to hold a proper hearing under Public Utilities Code sections 30639 et seq.; to consider all of the evidence presented at that hearing before reaching any determination with respect to that hearing, the certification of the Final EIS/EIR, or the approval of the Project; and, in addition, forbidding Metro from taking any action to implement the Project, or any portion thereof, until such time, if ever, as it has certified a proper ErR under CEQA that analyzes all of the potential adverse impacts of the whole of the Project and adopted the Project as analyzed in such EIR. 3. For injunctive relief, enjoining Metro from proceeding with any aspect of the

24
25 26

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28

Project unless and until it fully complies with all requirements of CEQA, including, but not
[312676 S.DOC/S107.00lJ

39 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

1
2

limited to, the preparation and recirculation of a legally sufficient Final EIS/EIR, and the adoption of feasible alternatives and/or feasible mitigation measures which will avoid or substantially lessen all significant Project impacts unless excepted by adopted overriding consideration. 4. For a temporary restraining order and/or preliminary injunction to preserve the

3
4

5
6 7

status quo pending the final resolution of this case on its merits.

5.

For a declaration that Metro's actions in approving the Project violated CEQA, as

set forth above. 6. For costs of suit herein incurred, including reasonable attorneys' fees under Code

8 9

of Civil Procedure section 1021.5 and Government Code sections 800 and 6259(d), and other applicable statutes. 7. For such other and further relief as the Court deems just and proper. SHUTE, MIHAL Y & WEINBURGER, LLP ROBERT S. PERLMUTTER MATHEW D. ZINN SARA A. CLARK GILCHRIST & RUTTER Professional Corporation ROBERT 1. MCMURRY A. CATHERINE NORIAN

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Attorneys for Petitioner THE CITY a municipal corporation

or

BEVERLY HILLS.

40 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

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[309746 S.DOC/SI07.00l]

EXHIBIT A

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PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF

SHUTE MIHALY
396 HAtES STREET, SAN FRANCISCO, CA 94102 ROBERT "PERL" PERLMUlTER

T: 415 552-7272 F: 415552-5816
www.smwlaw.com

Attorney perl mutte r@smwlaw.com

May 29, 2012

ViaE-Mail and U.S. Mail
Michele Jackson Board Secretary Los Angeles County Metropolitan Transportation Authority One Gateway Plaza, MS 99/22/5 Los Angeles, CA 90012 E-Mail: boardsecretary@metro.net Re: Notice of Commencement of CEQA Litigation Challenging Approval of Westside Subway Extension Project

Dear Ms. Jackson: Please take notice that the City of Beverly Hills will file suit against the Los Angeles County Metropolitan Transportation Authority ("Metro") challenging Metro's failure to observe the requirements of the California Environmental Quality Act ("CEQA"), Public Resources Code sections 21000 et seq., in the administrative process that culminated in Metro's approval of the Westside Subway Extension Project (''Project''), including Metro's (1) April 26, 2012 approval of Phase 1 of the Project and certification of the associated environmental impact report; and (2) its May 24, 2012 approval of Phases 2 and 3 of the same Project. This notice is given pursuant to Public Resources Code section 21167.5. Please note that, pursuant to Public Resources Code section 21167.6, the record of proceedings for Metro's actions includes, among other items, all "internal agency communications, including staff notes and memoranda related to the project or to compliance with [CEQA." Because all e-mails and other internal communications related to the Proj ect are part of the administrative record for the lawsuit to be filed by the

Michele Jackson May 29, 2012 Page 2

City: Metro may
tec{)rd in this case.

prior to the, prep,aratiOll of the
Very truly yours, SHUTE, :MIHALY & WEINBERGER LLP
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[309746 S.DOC/5107.0011

39 PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF

SHUTE MIHALY
BERGER LLP
396 HAYES STREET, SAN FRANCISCO, CA 94102 T: 415 552-7272 F: 415 552-5816
ROBERT "PERL" PERLMUlTE.R

Attorney
perlmutter@slTlwlaw.com

www.smwlaw.com

May 30,2012

Via U.S. Mail
l{amala D. Harris Attorney General California Department of Justice 13 00 I Street Sacramento, CA 95814-2919 Re:.Notice of Filing CECA Litigatl.of:l:C1ty.ofBeverlyHillsv.Los Angeles County Metropolitan Transportation Authority Dear Attorney General Harris: Enclosed please fmd a copy of the Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief in the above-entitled action. The petition is provided to you in compliance with Public Resources Code section 21167.7 and Code of Civil Procedure section 388. Please acknowledge receipt in the enclosed prepaid, self-adt'lressed envelope. Thank you. Very truly yours,

SHUTE, I\11HALY & WEINBERGER LLP
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Enclosures: Petition for Writ of Mandate
343808.2

WILSHIRE PALISADES BUILDING 1299 OCEAN AVENUE. SUITE 900 SANTA MONICA. CALIFORNIA 90401-1000

LAW OFFICES

GILCHRIST & RUTTER
PROFESSIONAL CORPORATION

TELEPHONE (310) 393-4000 FACSIMILE (310) 394-4700 E-MAIL: rmcmurry@gllchristrutter.com

December 7, 2012
VIA U.S. MAIL

The Honorable Kamala Harris Attorney General of the State of California Office of the Attorney General California Department of Justice 13 00 "I" Street Sacramento, CA 95814-2919 Re: The City of Beverly Hills, etc. v. Los Angeles County Metropolitan Transportation Authority

Dear Madam Attorney General Harris: We represent The City of Beverly Hills, a municipal corporation ("City"), with respect to the above-referenced Regional Connector Transit Corridor Project (the "Project") and certification of the Final Environmental Impact Statement! Environmental Impact Report (the "Final EIS/EIR") for the Project. Notice is hereby given pursuant to Code of Civil Procedure section 388 and Public Resources Code section 21167.7, that the City has filed a First Amended Petition for a Writ of Mandate for Violations of the California Environmental Quality Act and a Complaint for Declaratory and Injunctive Relief ("First Amended Petition") against the Los Angeles County Metropolitan Transportation Authority ("LACMTA") in the Los Angeles County Superior Court. Among other matters, the First Amended Petition alleges that LACMTA's certification of the Final EIS/EIR and approval of the Project as violated the California Environmental Quality Act (Public Resources Code §§ 21000 et seq.). The First Amended Petition seeks the issuance of a writ of mandate, and declaratory and injunctive relief, as well as an award of attorneys' fees and costs. A copy of the First Amended Petition is enclosed with this letter, for your reference. Sincerely, GILCHRIST & RUTTER .onal Corporation

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Enclosure
[330 148_1.DOC/S1 07.001]

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[309746 5.DOC/5107.001]

40 PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF

WESTSIDE SUBWAY EXTENSION REVIEW, BEVERLY HillS, CA HEARING BEFORE METRO BOARD - MAY 17, 2012
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WESTSIDE SUBWAY EXTENSION REVIEW, BEVERLY HILLS, CA HEARING BEFORE METRO BOARD - MAY 17, 2012
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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 1299 Ocean Avenue, Suite 900, Santa Monica, California 90401-1000. On December 7,2012, I served the foregoing documents: FIRST AMENDED PETITION FOR WRIT OF MANDATE FOR VIOLATIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (pUBLIC RESOURCES CODE §§ 21000 et seq.) AND COMPLAINT FOR INJUNCTIVE RELIEF

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by sending a true copy of the foregoing document(s) bye-mail to each interested party at the e-mail addressees) set forth below. No e-mail transmission error was reported. by transmitting the document(s) listed above via facsimile from sending facsimile machine number to the fax number(s) set forth below on this date before 5:00 p.m. and receiving confirmed transmission reports indicating that the document(s) were successfully transmitted. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Santa Monica, California, addressed as set forth below.

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by causing overnight delivery by FedEx of the document(s) listed above to the person(s) at the addressees) set forth below. by causing personal delivery by ---:----:---::--_ _ _ ofthe document(s) listed above to the person(s) at the addressees) set forth below. SEE ATTACHED SERVICE LIST I am readily familiar with the firm's practice for the collection and processing of correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit.

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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 7, 2012, at Santa Monica, California.

Daphne Johnson

[330198 l.DOC/SI07.001]

FIRST AMENDED PETITION FOR WRIT OF MANDATE FOR VIOLATIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

1
2

SERVICE LIST

3
4
5

6
7

8
9

John F. Krattli, County Counsel Charles M. Safer, Assistant County Counsel Ronald W. Stamm, Principal County Counsel One Gateway Plaza Los Angeles, CA 90012 T: (213) 922-2525 F: (213) 922-2530 Email: jkrattli@counsel.1acounty.gov; saferc@metro.net; stammr@metro.net Remy Moose Manley, LLP Whitman F. Manley Tiffany K. Wright Jennifer S. Holman 455 Capitol Mall, Suite 210 Sacramento, CA 95814 T: (916) 443-2745 F: (916) 443-9017 Email: wmanley@rmmenvirolaw.com twright@rmmenvirolaw.com ilee(@.rmmenvirolaw.com Kevin H. Brogan Dean E. Dennis Paul M. Porter Hill, Farrer & Burrill LLP One California Plaza, 37th Floor 300 South Grand Avenue Los Angeles, CA 90071-3147 F: (213) 620-0460 F: (213) 624-4840 Email: kbrogan@hillfarrer.com ddennis@hillfarrer.com pporter(@.hillfarrer.com Laurence S. Wiener, Esq. City Attorney of Beverly Hills City of Beverly Hills 455 N. Rexford Drive Beverlv Hills, CA 90210

Attorneys for RespondentlDefendant Los Angeles County Metropolitan Transportation Authority

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Attorneys for Petitioner Beverly Hills Unified School District (LASC Case No. BS137606) (Courtesy Copy)

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(Courtesy Copy)

[330 198_I.DOC/51 07 .001]