save atascadero lawsuit against city of atascadero

7/31/2019 Save Atascadero lawsuit against city of Atascadero

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- 1 -PETITION FOR WRIT OF MANDATE

Save Atascadero v. City of Atascadero

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INTRODUCTION

With this lawsuit, Petitioner SAVE ATASCADERO (Petitioner), an unincorporated

association, challenges the actions of Respondent CITY OF ATASCADERO (City) made on or about

June 26, 2012 certifying an environmental impact report (EIR) under the California EnvironmentalQuality Act (CEQA), Public Resources Code section 21000 et seq., and approving various land use

and development permits and entitlements for the Del Rio Road Commercial Area Specific Plan in the

City of Atascadero (Project). The Project applicants, proponents, and/or owners are Real Parties In

Interest ENGINEERING DEVELOPMENT ASSOCIATES, INC., MONTECITO BANK & TRUST,

OMNI DESIGN GROUP, INC., THE ROTTMAN GROUP, and WAL-MART STORES, INC.

Petitioner contends the Citys actions violated governing provisions of the California

Environmental Quality Act (CEQA), Public Resource Code Section 21000 et seq. and the State

Planning and Zoning Law, Government Code Section 65000 et seq. As certified by the City, the

Projects EIR violated the information disclosure requirements of CEQA by failing to adequately

identify, evaluate, and/or require mitigation for all direct, indirect, and cumulative environmental

impacts the Project will foreseeably cause. As a result, there is no substantial evidence in the

administrative record of the Citys actions to support the Citys findings that nearly all the Projects

environmental impacts will be less than significant after mitigation. Instead, substantial evidence in the

record shows the Project will have several significant unmitigated environmental effects that the EIR

either failed to identify, failed to evaluate adequately, or failed to mitigate where feasible. Petitioner

further contends that the Citys approval actions violated the State Planning and Zoning Law,

Government Code section 65000 et seq., on grounds the Citys actions are plainly inconsistent with

governing land use goals and policies contained in the Atascadero General Plan and its implementing

Zoning Ordinance.

Petitioner therefore seeks a peremptory writ of mandate under Code of Civil Procedure sections

1094.5, and Public Resources Code section 21168 and/or 21168.5, commanding the City to set aside its

certification of the EIR and approval of the Project. Petitioner further seeks a stay of the effect of the

approvals during the pendency of these proceedings. Finally, Petitioner seeks an award of costs and


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attorneys fees under Code of Civil Procedure section 1021.5, together with any other relief the Court

deems necessary and proper.

In support whereof, Petitioner alleges:

PARTIESSave Atascadero

1. Petitioner SAVE ATASCADERO is a California unincorporated association based inAtascadero, San Luis Obispo County. SAVE ATASCADERO is comprised of organizations and

individuals who share common concerns regarding poorly planned, environmentally unsustainable, and

economically damaging land use and urban development practices in Atascadero.

2. SAVE ATASCADEROs individual members include. but are not limited to. TomComar, Gloria Boyd, Madeline Rothman, and Ron Rothman, all of whom are residents, electors,

taxpayers, and/or property owners in the City of Atascadero.

3. SAVE ATASCADERO and its members maintain a direct and regular geographic nexuswith the City of Atascadero, and will suffer direct harm as a result of any adverse environmental and/or

public health impacts caused by the Project. These members have a clear and present right to, and

beneficial interest in, the Citys performance of its duties to comply with CEQA and the State Planning

and Zoning Law. As Atascadero citizens, homeowners, taxpayers, workers, and/or electors, these

members are within the class of persons to whom the City owes such duties.

4. By this action, SAVE ATASCADERO seeks to protect the interests of its members andto enforce a public duty owed those members by the City. Because the claims asserted and the relief

sought in this petition are broad-based and of a public as opposed to a purely private or pecuniary

nature, direct participation in this litigation by individual SAVE ATASCADERO members is not

necessary.

5. SAVE ATASCADERO and various of its individual members presented oral and/orwritten comments in opposition to the Project prior to and/or during the public hearings culminating in

the Citys June 26, 2012 approvals.


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City of Atascadero

6. Respondent CITY OF ATASCADERO is a California General Law city situated in SanLuis Obispo County. On or around June 26, 2012, the City took action to certify the EIR an approve the

Project as described herein. At all times relevant herein, the City served as the lead agency underCEQA responsible for evaluating the environmental impacts of the Project.

Engineering Development Associates, Inc.

7. Petitioner is informed and believes that Real Party In Interest ENGINEERINGDEVELOPMENT ASSOCIATES, INC. (EDA, Inc.) is a California corporation maintaining its

principal place of business in San Luis Obispo, California.

8. Petitioner is informed and believes that EDA, Inc. is a proponent of the Project, and is anapplicant for and recipient of the land use approvals and entitlements challenged herein.

Montecito Bank & Trust

9. Petitioner is informed and believes that Real Party In Interest MONTECITO BANK &TRUST (Montecito) is a California corporation maintaining its principal place of business in Santa

Barbara, California.

10. Petitioner is informed and believes that Montecito is a proponent and co-owner of theProject, and is a recipient and beneficiary of the land use approvals and entitlements challenged herein.

Omni Design Group, Inc.

11. Petitioner is informed and believes that Real Party In Interest OMNI DESIGN GROUP,INC. (Omni) is a California corporation maintaining its principal place of business in San Luis

Obispo, California.

12. Petitioner is informed and believes that Omni is a proponent of the Project, and is anapplicant for and recipient of the land use approvals and entitlements challenged herein.

The Rottman Group

13. Petitioner is informed and believes that Real Party In Interest THE ROTTMAN GROUP(Rottman) is a California corporation maintaining its principal place of business in Santa Barbara,

California.

14. Petitioner is informed and believes that Rottman is a proponent and co-owner of the


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Project, and is a recipient and beneficiary of the land use approvals and entitlements challenged herein.

Wal-Mart Stores, Inc.

15. Petitioner is informed and believes that Real Party In Interest WAL-MART STORES,INC. (Walmart) is a corporation established and operating under the laws of the State of Delaware andmaintaining its principal place of business in Bentonville, Arkansas.

16. Petitioner is informed and believes that WAL-MART STORES, INC. is a co-owner andproponent of the Project, and is an applicant for and recipient of the land use approvals and entitlements

challenged herein.

Does

17. Petitioner currently does not know the true names of DOES 1 through 25 inclusive, andtherefore names them by such fictitious names. Petitioner will seek leave from the court to amend this

petition to reflect the true names and capacities of DOES 1 through 25 inclusive once ascertained.

JURISDICTION & VENUE

18. This action is brought pursuant to Public Resources Code sections 21167, 21168, and21168.5, and Code of Civil Procedure section 1094.5. Venue is proper in San Luis Obispo County

under Code of Civil Procedure section 395.

FACTUAL BACKGROUND

Project Description

19. The Project is called the Del Rio Road Commercial Area Specific Plan. It envisionsdevelopment of two non-contiguous areas totaling approximately 39.3 acres located at the intersection of

El Camino Real and Del Rio Road in the City of Atascadero.

20. The Project has two components. The first consists of a Walmart Supercenter of 129,560square feet, together with two 5,000 square foot commercial outlots and up to 44 multi-family

residential units, to be developed on approximately 26.2 acres at the southeast quadrant of the site

(Walmart component). The second consists of approximately 120,900 square feet of various

commercial and retail uses and up to 6 new dwelling units to be developed on approximately 13.1 acres

at the northeast quadrant of the site (Annex component).


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21. Approvals and entitlements necessary for the Project include certification of an EIR,General Plan Amendment, Zoning Ordinance Text and Map Amendment, Specific Plan adoption,

Specific Plan Master Plan of Development, Tree Removal Permits, and Subdivision via Vesting

Tentative Parcel Maps.Relevant Procedural History

22. In January, 2007, Walmart applied to the City for land use entitlements for a Walmartsupercenter, but withdrew the application the following month.

23. In September, 2007, Walmart and Rottman each submitted applications for earlierversions of the Walmart and Annex components respectively. In October, 2007, the City Council

declined to process General Plan Amendments necessary for the Project.

24. In January, 2008, Walmart submitted a revised application. Processing of the applicationwas suspended, however, pending the outcome of a ballot measure that would, if passed, prohibit certain

large scale retail uses in the City. The measure did not pass.

25. In April, 2010, after submitting and later withdrawing several revised entitlementapplications, Walmart submits a final revised application for the Walmart component of the Project.

Rottman submits a final application for the Annex component that same month.

26. On or around May 13, 2010, the City released a Notice of Preparation of a single EIR thatwould examine both Project components, in accordance with Public Resources Code section 21080.4.

27. On February 2, 2011 the City released a Draft EIR for the Project for a 45-day publicreview and comment period. Various agencies, organizations, and individuals, including members of

Petitioner, submitted oral and written comments on the Draft EIR prior to the close of the public

comment period.

28. In June, 2011, City staff announced that Walmart and Rottman had been unable to reachagreement on funding responsibilities for certain interchange improvements identified as mitigation for

significant Project-related traffic impacts. The City Council thereafter directed staff to investigate

alternative funding options for these mitigation measures.

29. On March 15, 2012, the City released a Partially Recirculated Draft EIR (PRDEIR) forthe Project, which identified new funding arrangements for the interchange improvements in question,


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as well as new alternatives to the Project. Again, various agencies, organizations, and individuals,

including Petitioner and/or its individual members, submitted oral and written comments on the

PRDEIR prior to the close of the public comment period. Some of the comments stated, inter alia, that

the PRDEIR had failed to adequately identify, evaluate, and mitigate all potentially significant impactson the environment.

30. On May 25, 2012, the City released a Final EIR that purported to respond to public andagency comments on the PRDEIR.

31. On June 5, 2012, the Citys Planning Commission conducted a public hearing on theFinal EIR and the Project. Various individuals and organizations, including Petitioner and certain of its

individual members, submitted written and/or oral objections to the proposed certification of the Final

EIR and approval of the Project. After closing the public hearing, a majority of the Planning

Commission voted to recommend that the City Council certify the EIR and approve the Project.

32. On June 26, 2012, the City Council conducted a public hearing on the Final EIR andProject. Again, various individuals and organizations, including Petitioner and certain of its individual

members, submitted written and/or oral objections to the proposed certification of the Final EIR and

approval of the Project. After closing the public hearing, the City Council voted to certify the EIR and

approve the Project.

33. The Project approvals adopted by the City Council consisted of: certification of the FinalEIR, including Findings of Fact, Statement of Overriding Considerations and Mitigation Monitoring

and Reporting Program under CEQA; approval of General Plan Amendment Nos. GPA 2007-0020 and

GPA 2007-0021; zoning text amendment Nos. ZCH 2007-0141 and ZCH 2007-0142; Specific Plan

Approval Nos. SP 2009-0003; Tree Removal Permit Nos. TRP 2009-0128 and TRP 2009-0127; Vesting

Tentative Parcel Map AT 09-0073 (TPM 2009-0095); Vesting Tentative Parcel Map AT 07-0059 (TPM

2011-0098); and an amendment to the Citys the Five-Year Capital Improvement Plan (collectively

referred to herein as Project approvals).

34. As certified, the Final EIR concluded, inter alia, that the Project would have significantand unavoidable impacts in the areas of air quality and traffic, thereby necessitating adoption of a

statement of overriding considerations under CEQA. The Final EIR concluded, and the City Council


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found, that all other potentially significant impacts would be reduced to less than significant levels with

recommended mitigation measures.

35. The City timely filed and posted a Notice of Determination in accordance with PublicResources Code section 21152 on July 11, 2012.

FIRST CLAIM FOR RELIEF

(Violations of CEQA)

36. Petitioner here incorporates by reference all preceding paragraphs in their entirety.37. At all times relevant to this action the City was the Lead Agency responsible for the

review and approval of the Project under Public Resources Code section 21067.

38. CEQA requires public agencies to first identify the environmental effects of its project orprogram, and then to mitigate those adverse environmental effects through the imposition of feasible

mitigation measures or the analysis and selection of feasible alternatives. Public Resources Code,

21002. CEQA requires a lead agency to establish that either: (1) impacts will not have a significant

effect on the environment or (2) the agency has adopted findings that all significant environmental

effects have been avoided or mitigated to the extent feasible, and any remaining effects found to be

unavoidable are acceptable due to specific overriding economic, social, technological, or other benefits.

39. An EIR must include a finite, stable, accurate and meaningful project description. 14C.C.R., 15124. An EIR must include a description of the physical environmental conditions in the

vicinity of the project as they existed at the time the notice of preparation is published, with particular

focus on the regional setting. 14 C.C.R., 15125. An EIR must identify and evaluate the direct,

indirect, and cumulative environmental impacts of all phases of a project. 14 C.C.R., 15126. The

discussion must include relevant specifics of the area, the resources involved, physical changes,

alterations to ecological systems, and changes induced in population distribution, population

concentration, the human use of the land (including commercial and residential development), health

and safety problems caused by the physical changes, and other aspects of the resource base such as

water, historical resources, scenic quality, and public services. 14 C.C.R., 15126.2.

40. A lead agency must describe and evaluate feasible measures for minimizing or avoiding aprojects direct, indirect, and cumulative impacts on the environment. Public Resources Code,


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21100(b)(3); 14 C.C.R., 15126.4. A lead agency may not improperly defer the formulation of

mitigation measures until a future time. 14 C.C.R., 15126.4.

41. A lead agency must identify all significant effects on the environment caused by aproposed project that cannot be avoided. Public Resources Code, 21100(b)(2)(A). A lead agencymust also provide information in the record to justify rejecting mitigation measures as infeasible based

on economic, social, or housing reasons. 14 C.C.R., 15131(c).

42. An EIR must describe a range of reasonable alternatives to the project, or to the locationof the project, that would feasibly attain most of the basic objectives of the project but would avoid or

substantially lessen any of the significant effects of the project, and must evaluate the comparative

merits of the alternatives. 14 C.C.R., 15126.6. An EIR must also include sufficient information about

each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. Id.

43. An EIR is required to contain a statement briefly indicating the reasons for determiningthat various effects on the environment were not significant and consequently were not discussed in

detail in the EIR. Public Resources Code, 21100(c).

44. A lead agency must provide good faith, reasoned analysis in response to comments on adraft EIR. 14 C.C.R., 15088(c). The Final EIR must address recommendations and objections raised

in comments in detail, giving reasons why they were not accepted. Id. Specific responses are required

to comments raising specific questions about significant issues.

45. A lead agency may not approve a project for which an EIR identifies a significantenvironmental impact unless the impact has been mitigated or avoided by changes in the project, or

unless the agency specifically finds that overriding benefits outweigh the significant effects on the

environment. Public Resources Code, 21081.

Inadequate Analysis and Mitigation of Significant Impacts

46. The EIR for this Project fails to adequately disclose and/or evaluate all of the Projectssignificant direct, indirect, and cumulative impacts, including impacts on: aesthetics, agricultural

resources, air quality, human health, global climate change, biological resources, geology and soils,

hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources,


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noise, population and housing, public services, recreation, transportation and traffic, utilities, and urban

decay, in violation of the information disclosure provisions of CEQA.

47. The City therefore prejudicially abused its discretion in certifying the EIR by failing toproceed in the manner required by CEQA, and by adopting findings that are not supported by substantialevidence in the record.

Failure To Require All Feasible Mitigation Measures

48. An EIR must describe, evaluate, and require feasible measures for minimizing oravoiding a projects direct, indirect, and cumulative impacts on the environment. 14 C.C.R. 15126.4.

49. The EIR for this Project fails to describe, evaluate, and require all reasonable, feasiblemitigation measures for the Projects direct, indirect, and cumulative impacts, including impacts on air

quality, human health, global climate change, noise, transportation and traffic, and urban decay.

50. The City therefore prejudicially abused its discretion in certifying the EIR by failing toproceed in the manner required by CEQA, and by adopting findings that are not supported by substantial

evidence in the record.

Failure To Respond Adequately To Comments On Draft EIR

51. A lead agency must evaluate comments on environmental issues received from personswho reviewed a Draft EIR during the public comment period, and must prepare a written response. 14

C.C.R. 15088(a). The written response must describe the disposition of significant environmental

issues raised. Id. at subd. (c). In particular, the major environmental issues raised when the lead

agencys position is at variance with recommendations and objections raised in the comments must be

addressed in detail, giving reasons why specific comments and suggestions were not accepted. Id.

There must be good faith, reasoned analysis in response; conclusory statements unsupported by factual

information will not suffice. Id.; see Berkeley Keep Jets Over The Bay Committee v. Board of Port

Commissioners (2001) 91 Cal.App.4th

1344.

52. The City here failed to provide a detailed, written, good faith, reasoned analysis inresponse to comments received on the Draft EIR during the public comment period from individuals and

responsible agencies, and failed to give adequate reasons why specific comments and suggestions were

not accepted. Instead, the City merely gave conclusory statements unsupported by factual information.


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53. The City therefore prejudicially abused its discretion in certifying the EIR by failing toproceed in the manner required by CEQA.

Unsupported Findings And Statement Of Overriding Considerations

54.

Under Public Resources Code section 21081(b), an agency may not approve a projectwith significant unavoidable impacts unless it finds, based on substantial evidence, that specific

overriding economic, legal, social, technological, or other benefits of the project outweigh the

significant effects on the environment.

55. The EIR for this Project identifies impacts as unavoidably significant, but the City foundthese impacts acceptable and adopted a statement of overriding considerations.

56. There is no substantial evidence in the record to support the statement of overridingconsiderations, and the statement itself is inadequately supported by findings. There is substantial

evidence in the record that disproves the statement.

57. The City therefore prejudicially abused its discretion in certifying the EIR by failing toproceed in the manner required by CEQA, and by adopting findings that are not supported by substantial

evidence in the record.

SECOND CLAIM FOR RELIEF

(Violations of State Planning And Zoning Law)

58. Petitioner here incorporates by reference all preceding paragraphs in their entirety.59. Under the State Planning and Zoning Law, Government Code section 65000 et seq., a

local public agency may entitle a proposed land use only if the land use is consistent with the goals,

policies, and objectives contained in a valid, current, internally consistent General Plan, and with all

applicable duly adopted zoning ordinances.

60. The Project is inconsistent and incompatible with applicable goals, policies andobjectives of the Atascadero General Plan and its implementing Zoning Ordinance.

61. The City therefore abused its discretion by failing to proceed in the manner required bythe State Planning and Zoning Law by adopting findings of General Plan and Zoning Ordinance

consistency that are not supported by the evidence.


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EXHAUSTION OF ADMINISTRATIVE REMEDIES

62. This action is brought consistent with the requirements of Public Resources Code section21177 and Code of Civil Procedure section 1094.5. Petitioner objected to the Citys approval of the

Project orally or in writing during the public comment period provided by CEQA, and/or prior to theclose of the public hearing on the Project before the issuance of the Notice of Determination. Petitioner,

its members, and/or other agencies, organizations and individuals raised or affirmed each of the legal

deficiencies asserted in this petition orally or in writing during the public comment provided by CEQA,

or prior to the close of the public hearing on the project before the issuance of the Notice of

Determination.

63. Petitioner has performed all conditions precedent to filing this action by complying withthe requirements of Public Resources Code section 21167.5 in serving notice of the commencement of

this action on August 9, 2012.

INADEQUATE REMEDY AT LAW

64. Petitioner declares that it has no plain, speedy, and adequate remedy in the ordinarycourse of law for the improper action of the City.

NEWLY PRODUCED EVIDENCE

65. In accord with Code of Civil Procedure section 1094.5(e), Petitioner may, prior to orduring the hearing on this petition, offer additional relevant evidence that could not, in the exercise of

reasonable diligence, have been produced at the administrative hearing.

ATTORNEYS FEES

66. Petitioner is entitled to recover attorneys fees as provided under Code of Civil Proceduresection 1021.5 if they prevail in this action and the Court finds that a significant benefit has been

conferred on the general public or a large class of persons, and that the necessity and burden of private

enforcement is such as to make an award of fees appropriate.

PRAYER

WHEREFORE, Petitioner prays for entry of judgment as follows:

1. For a peremptory writ of mandate directing the City:


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

under CEQA; and

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

identified herein; and(c) to comply fully with in any subsequent action or actions taken to approve the Project.

2. For an order staying the effect of the Citys actions pending the outcome of this

proceeding.

3. For a preliminary and permanent injunction directing the City to cease and refrain from

engaging in any action or issuing any land use approvals in reliance upon the entitlements challenged

herein until the City takes any necessary action to bring its actions into compliance with CEQA.

4. For costs of suit.

5. For an award of attorneys fees.

6. For other legal or equitable relief that the court deems just and proper.

Dated: August 9, 2012 Respectfully submitted,

M. R. WOLFE AND ASSOCIATES, P.C.

By:____________________________Mark R. Wolfe

John H. Farrow

Attorneys for Petitioner


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save atascadero lawsuit against city of atascadero

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