Notice of Motion And Motion For Case Management Order

Motion

Cal. Super. - 4th Dist.October 26, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LATHAM & WATKINS LLP Christopher Garrett (Bar No. 100764) christopher.garrett@lw.com Taiga Takahashi (Bar. No. 281335) taiga.takahashi@lw.com Samantha K. Seikkula (Bar. No. 307827) samantha.seikkula@lw.com 12670 High Bluff Drive San Diego, California 92130 Telephone: (858) 523-5400 Facsimile: (858) 523-5450 Attorneys for Petitioners and Plaintiffs CALIFORNIA NATIVE PLANT SOCIETY et al. Case No. 37-2018-00054559-CU-TT-CTL ELECTRONICALLY FILED Superior Court of California, County of San Diego 0115/2019 at 02:37:00 Pi Clerk of the Superior Court By Richard Day, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION CALIFORNIA NATIVE PLANT SOCIETY, HIDDEN VALLEY ZEN CENTER, FRIENDS OF HIDDEN VALLEY ZEN CENTER, BUENA CREEK ACTION GROUP, DEER SPRING OAKS ACTION GROUP, TWIN OAKS VALLEY ROAD ACTION GROUP, GOLDEN DOOR PROPERTIES, LLC, LISA AMANTEA, MICHAEL AMANTEA, DARRYL C. BENTLEY, CAROL BRYSON, PAMELA J. DINIZ, STANLEY DINIZ, FRANCIS J. EASON, REBECCA ENGEL, THOMAS ENGEL, DONALD J. FOLSE, ELSIE E. GREGORY, GEORGEANN HIGGINS, CLAUDIA HUNSAKER, MICHAEL HUNSAKER, KAREN MAY, BJ MCINTIRE, MICHAEL MCINTIRE, CINDI PETERSON, ANA C. ROSVALL, JAMES T. ROSVALL, KATHERINE B. ROSVALL, LEIGH RAYNER, JOANNE RIZZA, DARLA KENNEDY, and WILLIAM R. YOUNG, Petitioners and Plaintiffs, Vv. COUNTY OF SAN DIEGO, and DOES 1-50, inclusive, Respondents and Defendants, NEWLAND SIERRA, LLC, RITA BRANDIN, and DOES 51-100, inclusive, Real Parties in Interest. CASE NO. 37-2018-00054559-CU-TT-CTL Related Cases: No. 37-2012-00101054-CU-TT-CTL No. 37-2016-00037402-CU-TT-CTL No. 37-2018-00014081-CU-TT-CTL No. 37-2018-00013324-CU-TT-CTL No. 37-2018-00030460-CU-TT-CTL No. 37-2018-00054312-CU-TT-CTL No. 37-2018-00056442-CU-TT-CTL Honorable Richard S. Whitney, Dept. C68 PETITIONERS AND PLAINTIFFS CALIFORNIA NATIVE PLANT SOCIETY ET AL.’S NOTICE OF MOTION AND MOTION FOR CASE MANAGEMENT ORDER; MEMORANDUM OF POINTS AND AUTHORITIES [IMAGED FILE] Hearing Date: April 26, 2019 Hearing Time: 10:30 a.m. Action filed: October 26, 2018 ASE NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on April 26, 2019 at 10:30 a.m., or as soon thereafter as this matter may be heard by the Honorable Richard S. Whitney in Department C-68 of the above entitled Court, 333 West Broadway, San Diego, California 92101, Petitioners and Plaintiffs California Native Plant Society, Hidden Valley Zen Center, Friends of Hidden Valley Zen Center, Buena Creek Action Group, Deer Spring Oaks Action Group, Twin Oaks Valley Road Action Group, Golden Door Properties, LLC, Lisa Amantea, Michael Amantea, Darryl C. Bentley, Carol Bryson, Pamela J. Diniz, Stanley Diniz, Francis J. Eason, Rebecca Engel, Thomas Engel, Donald J. Folse, Elsie E. Gregory, Georgeann Higgins, Claudia Hunsaker, Michael Hunsaker, Karen May, Bj McIntire, Michael McIntire, Cindi Peterson, Ana C. Rosvall, James T. Rosvall, Katherine B. Rosvall, Leigh Rayner, Joanne Rizza, Darla Kennedy, and William R. Young (collectively, “CNPS Petitioners”) will hereby and does move for the entry of a scheduling and case management order pursuant to the Court’s inherent case management power. The CNPS Petitioners’ motion is based upon this Notice of Motion and Motion; the concurrently filed Memorandum of Points and Authorities; and all other pleadings, papers, records, documentary evidence on file in this action, or other such written or oral arguments as may be presented before or at the hearing on this motion. Dated: January 15,2019 Respectfully submitted, LATHAM & WATKINS LLP /s Samantha Seikkula By Samantha K. Seikkula Attorneys for Petitioners and Plaintiffs CALIFORNIA NATIVE PLANT SOCIETY ET AL. E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Petitioners and Plaintiffs California Native Plant Society, Hidden Valley Zen Center, Friends of Hidden Valley Zen Center, Buena Creek Action Group, Deer Spring Oaks Action Group, Twin Oaks Valley Road Action Group, Golden Door Properties, LLC, Lisa Amantea, Michael Amantea, Darryl C. Bentley, Carol Bryson, Pamela J. Diniz, Stanley Diniz, Francis J. Eason, Rebecca Engel, Thomas Engel, Donald J. Folse, Elsie E. Gregory, Georgeann Higgins, Claudia Hunsaker, Michael Hunsaker, Karen May, Bj McIntire, Michael McIntire, Cindi Peterson, Ana C. Rosvall, James T. Rosvall, Katherine B. Rosvall, Leigh Rayner, Joanne Rizza, Darla Kennedy, and William R. Young (collectively, “CNPS Petitioners”) brought this action to challenge the Respondent and Defendant County of San Diego’s (“County”) September 26, 2018 approvals of the Real Party in Interest Newland Sierra, LLC’s (“Real Party” or “Newland”) Newland Sierra Project (the “Project”). The Project proposes new construction of over 2,100 residential units (for over 6,000 new residents), new roads and widening of existing roads, and 81,000 ft> of other development in a currently undeveloped, approximately 1,985-acre rural residential and agricultural area just west of Interstate 15 and north of Deer Springs Road and the City of San Marcos. Despite the broad public opposition to backcountry development, Newland proposed a more than 20-fold increase over what the 2011 General Plan allowed for the site, which is located in the rural Twin Oaks Valley and in an area designated by the State of California as a Very High Severity Fire Hazard Zone. This shift engendered nearly unanimous opposition. In the interest of judicial economy, the CNPS Petitioners therefore move this Court for the entry of the concurrently filed proposed Case Management Order (“CMO”). The CNPS Petitioners request that the Court enter an order that will govern the completion and certification of the administrative record pending a stay in the remainder of the matter until the March 3, 2020 election and a final judgment in Sierra Club et al. v. County of San Diego, Case No. 37-2018- 00014081-CU-TT-CTL (Department C72) and Golden Door Properties v. County of San Diego, Case No. 37-2018-00013324-CU-TT-CTL (Department C72), as both have implications on this casc. E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L STATEMENT OF FACTS A. The County’s Record Deletion Policy In January 2015, Real Party filed its development application for the Project with the County, and the County soon thereafter issued a Notice of Preparation of an EIR. On June 15, 2017, nearly two-and-a-half years after the filing of the project application, the County released a voluminous draft EIR (nearly 22,000 pages, including appendices) under CEQA for the Newland Sierra project. On July 14, 2017, in the midst of this public review and comment period, Petitioner Golden Door requested documents from the County related to the technical analyses in the EIR under the California Public Records Act (“CPRA”). On July 27, the County initially denied the request, asserting the documents were exempt from disclosure because they were not truly public records. (See Case No. 37-2018-00030460-CU-TT-CTL, Register of Actions No. 10-12 [Exhibits to Verified Petition for Peremptory Writ of Mandate and Complaint for Declaratory and Injunctive Relief], Exh. O, at p. 619: July 27, 2017 Letter from County to Golden Door in response to July 14 CPRA request.) Among the reasons the County cited for the exemption was that the requested documents were not in the County’s actual possession but in the possession of and constituted “proprietary information” of consultants who had completed the technical analysis. (Id. at pp. 619-620.) The Golden Door subsequently requested the same contracts that the County had earlier appeared to rely on to deny the July 2017 request, and thereafter clarified at the County’s behest that its request was for “all documents and communications in the County’s possession provided by such third party to the County, provided by the County to that third party, or otherwise shared between the County and that third party pertaining to the Newland Sierra Project’s environmental review,” and that the request was to be “construed broadly.” (Id., Exh. Q, at p. 627: Golden Door Counsel November 16, 2017 CPRA Correspondence with County of San Diego.) The County disclosed only 13 PDF files and 42 emails dated from a period of sixty days in September and October 2017, despite the research and analysis of the Project’s EIR having been in progress for more than two years. The Golden Door followed up on this request, and the County responded noting that it has a “a “60-day auto- 4 E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deletion program for emails that do not meet the criteria for an official record,” but that nonetheless the County had conducted a complete search of all “potentially responsive records.” (Id., Exh. U, at p. 651: May 15, 2018 County of San Diego Email Correspondence.) The County’s disclosure did not identify any emails older than 60 days that were responsive to the October request. (Id. at p. 653.) Accordingly, the Golden Door was informed and believes that the County deleted and/or destroyed responsive documents that should be included in the Project’s administrative record, and filed a complaint on June 19, 2018 alleging this CEQA violation among other causes of action. (See Case No. 37-2018-00030460-CU-TT-CTL, Register of Actions No. 1 [Verified Petition for Peremptory Writ of Mandate and Complaint for Declaratory and Injunctive Relief].) Case No. 37-2018-00030460-CU-TT-CTL is still pending before the Honorable Joel R. Wohlfeil, who issued a preliminary injunction suspending the County’s auto-deletion policy for any and all County employees assigned to or communicating regarding the Project on July 24, 2018. (Case No. 37-2018-00030460-CU-TT-CTL, Register of Actions No. 116.) B. The County’s Climate Action Plan Is Invalid for Reliance on Out-of-County Offsets On February 14, 2018, the County adopted a Climate Action Plan and CEQA significance thresholds pursuant to the Superior Court’s Supplemental Writ of Mandate (see Exhibit 1, County Minute Order No. 1 for the February 14, 2018 meeting of the Board of Supervisors, Items 1.2.1 through 1.2.6 - collectively, the “CAP Project”), but also included significant amendments to the County’s General Plan and authorizations related to grant funding and further study. The County amended General Plan Goal COS-20 and General Policy COS- 20.1 as part of the CAP Project approvals. These amendments similarly incorporated a requirement for “the reduction of community-wide (i.e., unincorporated County)” GHG emissions. Pursuant to CEQA, the County prepared and certified a SEIR for the CAP Project. In certifying the final SEIR for the CAP Project, the County found that the CAP Project’s potential impact regarding GHG emissions was potentially significant, because in-process and future applications for General Plan amendments could alter emissions forecasts that were based 5 E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on the underlying General Plan. In recognition of this potentially significant impact, the County devised “CAP Mitigation Measure M-GHG-1,” in an attempt to “ensure that CAP emissions forecasts are not substantially altered such that attainment of GHG reduction targets could not be achieved.” CAP Mitigation Measure M-GHG-1 offered two pathways to mitigating this potentially significant environmental impact for pending and future General Plan amendments: the “no net increase” option; and the “net zero” option. In general, the “no net increase” option required applicants to demonstrate that the increase in GHG emissions for the project would be no greater than GHG emissions forecasted for the project area in the 2011 General Plan Update; the “net zero” option similarly required applicants to demonstrate that the increase in GHG emissions for the project would be no greater than GHG emissions over existing baseline conditions (which is likely a slightly more environmentally protective requirement). For either option, CAP Mitigation Measure M-GHG-1 permitted applicants to demonstrate “no net increase” or “net zero” through on-site and off-site project design features and mitigation measures. In particular, CAP Mitigation Measure M-GHG-1 incorporated an approach to achieve the “no net increase” and “net zero” requirements-an applicant could purchase carbon offset credits to be used in the accounting for a project’s net GHG emissions: “Offsite mitigation, including purchase of carbon offset credits, would be allowed after all feasible on-site design features and mitigation measures have been incorporated.” In short, this means that a project applicant could purchase a commitment from another third party that such third party would reduce GHG emissions somewhere else (i.e., not at the project site), so that the project applicant could count this as a reduction in the project’s accounting of GHG emissions from the project itself. Despite the fact that the County adopted, concurrently with the 2018 CAP, amendments to the General Plan that required “the reduction of community-wide (i.e., unincorporated County)” GHG emissions, CAP Mitigation Measure M-GHG-1 departed from this clear directive. One of the key features of CAP Mitigation Measure M-GHG-1 was the “geographic priorities” provision for GHG mitigation, which allowed “credit” for GHG reductions that took place outside of the area of the unincorporated County, including within the County but inside 6 E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 incorporated cities not under the land use jurisdiction of the County, and throughout the state, nation, and world. On December 24, 2018, Judge Taylor recognized this error, overturning the County’s CAP due in part to Mitigation Measure M-GHG-1’s out-of-County offset program violation of the County’s General Plan’s mandate for reductions in the unincorporated County. A true and complete copy of Judge Taylor’s decision is attached hereto as Attachment A. The Newland Project includes a similar allowance for out-of-county offsets, seeking to mitigate its greenhouse gas impacts through a substantially similar program to the program in Mitigation Measure M-GHG-1. The CNPS Petitioners challenge the inclusion of this measure for violation of the General Plan’s mandate that reductions occur within the unincorporated County. (See Register of Actions [“ROA”] No. 1.) C. Project Approval and Referendum Effort Placing General Plan Amendment Approval Before the Electorate in March 2020 On September 26, 2018, despite overwhelming community opposition, the County Board of Supervisors approved the Project’s General Plan Amendment necessary to allow for the proposed 2,100 homes on land previously permitted for fewer than 100 homes. In response to the Board’s General Plan Amendment approval, the Committee Against Newland Sierra and Bad Development, a coalition of County residents and public interest groups, gathered over 117,000 signatures on a petition to refer the General Plan Amendment to a vote. Following the signatures’ submittal to the Registrar of Voters, Newland, through its project manager, challenged the referendum petition’s validity. While the Registrar of Voters counted signatures on the referendum effort, the CNPS Petitioners filed this Petition for Writ of Mandate and Injunctive Relief on October 26, 2018 (ROA No. 1.) On November 27, 2018, the Registrar of Voters confirmed that the referendum gathered the required number of valid signatures. On December 3, 2018, the Honorable Kenneth J. Medel conducted a hearing regarding Newland’s challenge to the petition and took the matter under submission. On January 10, 2019, Judge Medel issued a final decision, denying Newland’s challenge and keeping the referendum petition on the ballot. A true and correct copy of Judge Medel’s decision is attached hereto as Attachment B. E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 4, 2018, the Board of Supervisors voted to place the referendum on the ballot in March 2020, effectively staying the Project’s General Plan Amendment approval until after the election. II. DISCUSSION A. Legal Standard “[ T]he rationale of the [CEQA] statutory scheme is to avoid delay and achieve prompt resolution of CEQA claims.” (San Franciscans for Reasonable Growth v. City & County of San Francisco (1987) 189 Cal. App.3d 498, 504.) The prompt resolution of CEQA claims is a feature of the statutory scheme that insures to the benefit of petitioners, public agencies, and real parties in interest. (See Miller v. City of Hermosa Beach (1993)13 Cal. App.4th 1118, 1135.) However, CEQA is at its core an “informational statute.” “The purpose of an environmental impact report is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.” (Pub. Res. Code, § 21061 [emphasis added]; 14 CCR, § 15003.) Accordingly, the Legislature set up a detailed and comprehensive scheme for the preparation of CEQA administrative records. CEQA records are intended to be extensive and comprehensive. As required by Public Resources Code, section 21167.6(¢e) (emphasis added below): “The record of proceedings shall include, but is not limited to, all of the following items: (1) All project application materials. (2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project. (3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division. (4) Any transcript or minutes of the proceedings at which the decisionmaking body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any 8 E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 advisory body to the respondent public agency that were presented to the decisionmaking body prior to action on the environmental documents or on the project. (5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project. (6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation. (7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project. (8) Any proposed decisions or findings submitted to the decisionmaking body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons. (9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division. (10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division. (11) The full written record before any inferior administrative decisionmaking body whose decision was appealed to a superior administrative decisionmaking body prior to the filing of litigation.” Though Section 21167.6 does not expressly state that documents that comprise the CEQA record shall not be “destroyed” by a public agency, it clearly contemplates that a public agency must, at a minimum, retain the files specifically enumerated in Subdivision (e) in the event a member of the public seeks judicial review of the agency’s compliance with CEQA: “all internal agency communications” and “All ... correspondence submitted to, or transferred Jrom, the respondent public agency with respect to compliance with this division or with 9 ASE NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 respect to the project.” (See also Pub. Resources Code, § 21168 [on judicial review, “the court .. shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record.”].) The Courts have interpreted this provision expansively: “[T]he administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.” (County of Orange v. Superior Court (2003) 113 Cal. App.4th 1, 8.) Additionally, in a landmark CEQA case, the Court of Appeal approved of the initial preparation of an EIR by the applicant’s consultant, and also held that members are the public are entitled to conduct discovery and present evidence regarding whether or not documents submitted by the applicant’s consultants were appropriately reviewed by county staff. (Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446, 1456-1457 [“proper resolution of the case demands that plaintiffs . . . be allowed to elicit and introduce such further evidence as will inform the decision whether the County complied with the EIR preparation requirement.”].) The automatic destruction/deletion of such records or evidence frustrates these key requirements of CEQA. B. The Proposed Case Management Order Will Promote Judicial Economy As discussed above, CEQA is an informational statue and contemplates that a public agency must, at a minimum, retain the files specifically enumerated in Subdivision (e) in the event a member of the public seeks judicial review of the agency’s compliance with CEQA. In light of the requirements to ensure a complete record, the CNPS Petitioners request an extension of time for completion of the administrative record until: (1) 120 days after the completion of production of Record documents by the County, Real Party Newland Sierra, LLC, or any other third party from which documents have been requested under the California Public Records Act or the Civil Discovery Act, as applicable, including the time necessary for the Parties to meet and confer on the same and the resolution of any applicable motions or disputes regarding compliance with the California Public Records Act or the Civil Discovery Act or after the County has provided written notice that it has provided all documents under the California Public Records Act requests, whichever is later, in order to complete necessary discovery in order to 10 E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ensure deleted documents and communications are obtained and included within the Project’s administrative record. Further, given that the Project’s General Plan Amendment approval is stayed until March 2020, there is ample time for the parties to resolve disputes regarding the contents of the administrative record. However, given the County’s history of record deletion, it is essential that the administrative record be prepared at this stage to ensure all the necessary documents are captured and included. Once a complete administrative record has been prepared, including all necessary discovery to recover deleted documents and communications, the Court can determine if a stay is necessary in the interest of judicial economy until either the March 2020 election or until a final decision is issued in the CAP litigation. The March 2020 election may render the matter moot if voters decide to overturn the Project’s General Plan Amendment approval. Similarly, because the Project relies on out-of-County offsets to mitigate its greenhouse gas emissions impacts, which Judge Taylor recently determined such offsets are in violation of the County’s General Plan, it is in the Court’s interest to avoid relitigating issues. Dated: January 15, 2018 Respectfully submitted, LATHAM & WATKINS LLP /s Samantha Seikkula By Samantha K. Seikkula Attorneys for Petitioners and Plaintiffs CALIFORNIA NATIVE PLANT SOCIETY ET AL. 11 E NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENT INDEX Attachment | Description Page Range A Minute Order re Supplemental Write of Mandate 013-029 B Minute Order regarding Statement of Decision 030-038 12 ASE NO. 37-2018-00054559-CU-TT-CTL PETITIONERS AND PLAINTIFFS’ MOTION FOR CASE MANAGEMENT ORDER ATTACHMENT A SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO MINUTE ORDER DATE: 12/24/2018 TIME: 01:51:00 PM DEPT: JUDICIAL OFFICER PRESIDING: Timothy Taylor CLERK: Kelly Breckenridge REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: CASE NO: 37-2018-00013324-CU-TT-CTL CASE INIT.DATE: 03/15/2018 CASE TITLE: Golden Door Properties LLC vs County of San Diego [E-FILE] CASE CATEGORY: Civil - Unlimited CASE TYPE: Toxic Tort/E nvironmental APPEARANCES The Court, having taken the above-entitted matter under submission on 12/21/18 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: Rulings on Petitions for Writs of Mandate (CEQA) Sierra Club v. County of San Diego, Case No. 2012-101054 Sierra Club v. County of San Diego, Case No. 2018-14081 Golden Door Properties v. County of San Diego, Case No. 2018-13324 Argued and submitted: December 21, 2018, Dept. 72 1. Overview and Procedural Posture. In late 2012 and early 2013, the court was required to address, in two CEQA cases, the controversial topics of greenhouse gases and global climate change. The first was Cleveland National Forest Foundation v. SANDAG, SDSC Case No. 2011-00101593; that case was the ultimately the subject of ps: appellate opinions: 180 Cal.Rptr.3d 548 (2014); 3 Cal.5th 497 (2017); and 17 Cal.App.5th 413 17). The second was (and still is) Sierra Club v. County of San Diego, Case No. 2012-101054. The Sierra Club contended that the County of San Diego's June 20, 2012 "Climate Action Plan" (CAP), was insufficient and violated CEQA in several respects: it did not comply with mitigation measures spelled out in the County's 2011 Program EIR (PEIR), adopted in connection with the 2011 General Plan Update (GPU); it failed to satisfy the requirements for adopting thresholds of significance for greenhouse gas emissions (GHG); and it should have been set forth in a stand-alone environmental document rather than in an addendum to the PEIR. The County denied these claims, and asserted that the CEQA challenge was time-barred, the CAP complied with all legal requirements, the use of an addendum was DATE: 12/24/2018 MINUTE ORDER Pagel DEPT: Calendar No. ATTACHMENT A 013 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] appropriate, and that all relief was barred by the Sierra Club's failure to notify the AG as required by Pub. Res. Code section 21167.7. More than five and a half years ago, the court ruled in favor of the Sierra Club on the original petition. ROA 33. The County appealed. ROA 44. The parties thereafter stipulated to stay the case while it was on appeal. ROA 60. But before they did, the Sierra Club had filed a supplemental petition. ROA 54. The stipulated stay prevented consideration of that document. Subsequently, the parties filed a stipulation regarding the disposition of the supplemental petition, depending on the disposition of the appeal. : In October of 2014, the 4th DCA, Div. 1 issued its learned opinion affirming this court, ultimately published at 231 Cal.App.4th 1152 (2014). On March 11, 2015, the Supreme Court denied review. A remittitur thereafter issued. ROA 105. The parties were before the court on April 15, 2015. Petitioner asked that the agreed-upon stay be lifted, and that the case be restored to the civil active list. These requests were granted without objection. The Sierra Club also wanted the court to sign an order, while the County wanted the court to sign a different order. There were two problems: first, the court had not received petitioner's version of the proposed order, nor had a chance to review the County's proposed order; and second, the parties were before the court while it was in the middle of a lengthy trial with jurors arriving shortly. The court continued the matter to the regular law and motion calendar of May 1, 2015. ROA 73. The court thereafter reviewed the parties’ competing submissions. The central problem was that a dispute had arisen regarding the intent, import and meaning of the December 11, 2014 stipulation (ROA ane court, following several submissions and argument, resolved the dispute in May of 2015. ROA The Sierra Club's counsel thereafter sought an award of attorneys' fees. ROA 95-104. The amended moving papers (ROA 116, 117) made clear that the County agreed petitioner was entitled to fees; the only question was how much. Petitioner sought a lodestar of over $661,000.00 with a multiplier of two, for a total of over $1.3 million, plus fees necessary for the fee motion. The County filed opposition. ROA 122-125. After presenting very focused argument, the County ended by making several specific "suggestions" for reducing the fee award: a combination of cutting hours, reducing rates, and denial of any multiplier. Petitioner filed reply. ROA 126-130. The court, after it had reviewed all the briefing and heard argument, granted a fee award in the amount of over $961,000.00. ROA 133. Judgment was thereafter entered in this amount, plus additional costs not challenged by the County. ROA 135. This occurred in September of 2015; at this point, the court (perhaps naively) considered the case to have been essentially concluded. Neither side sought further appellate review of the attorneys’ fee ruling or the May 2015 ruling. In early 2016 and again the following summer, the County filed returns on the supplemental writ. ROA 137, 138. Both sides changed counsel. ROA 136, 147. The Sierra Club filed its second amended petition on September 26, 2016. ROA 140. The County demurred to it on two grounds, including non-justiciability (ripeness). ROA 142. Following briefing and argument, the court overruled the demurrer on January 6, 2017. ROA 160. The County thereafter answered. ROA 161-162. Also at the January 6, 2017 hearing, the court allowed the parties’ stipulation whereby a more recently DATE: 12/24/2018 MINUTE ORDER Page 2 DEPT: Calendar No. ATTACHMENT A 014 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] filed case, Golden Door Properties LLC v. County of San Diego, Case No. 2016-0037402, would be transferred to Dept. 72 and heard with the Sierra Club 2012 case. ROA 160. Both the then-current iteration of the Sierra Club 2012 case and the Golden Door 2016 case challenged the County's 2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Documents (2016 Guidance Document or 2016 Significance Document) prepared by the County's Department of Planning & Development Services. Following extensive briefing (ROA 169-190) and the publication of a tentative ruling (ROA 191), the court rendered its decision on April 28, 2017. ROA 193. A judgment on the second supplemental petition was thereafter entered. ROA 194. The County appealed (ROA 198-199). On September 28, 2018, the Fourth District Court of Appeal, Div. 1, handed down its learned decision in Consolidated Case Nos. D072406 and D072433, affirming this court in full (27 Cal. App.5th 892). Of this more below; the cases were set for a status conference on December 21, 2018 to spread the mandate of the Court of Appeal. In early 2018, with the County's appeal pending, the County filed a sixth and seventh return on the supplemental writ. ROA 220, 221. The latter came as the result of the Board of Supervisors certifying the EIR for the 2018 CAP, and was the subject of objections by the Sierra Club. ROA 224. Sierra Club filed a new petition (Case No. 2018-14081) challenging the 2018 CAP. In addition, the Sierra Club filed its third supplemental petition for writ of mandate in the 2012 case. ROA 226, 231. In a nutshell, the County contends that certification of the EIR for the 2018 CAP, and the related actions, comply with the requirements of the second paragraph of the supplemental writ in the 2012 case, and demonstrate compliance with CEQA as required by the third paragraph of the supplemental writ. The County wanted the court to discharge the supplemental writ and deny the new petition. The Sierra Club contends that the County's 2018 actions violate "CEQA as an informational document, as a substantive document of environmental protection, and as a document of public accountability." Golden Door, which filed its own case challenging the 2018 CAP (No. 2018-13324), also sought leave to intervene in the 2012 case pursuant to Code of Civil Procedure section 387, subdivisions (a) (permissive intervention) or (b) (mandatory intervention). Following full briefing, the court granted the motion (ROA 276, 285), and the complaint in intervention was filed. ROA 277. The County filed a motion to discharge the May 4, 2015 Supplemental Writ of Mandate. ROA 271-274. The Sierra Club and Golden Door filed separate opposition. ROA 282-284, 286. The court reviewed the papers, and on July 20, 2018, granted the County's motion in part and denied it in part in light of the then-pending appeal and Code of Civil Procedure section 916. ROA 297. At the continued CMC, the court ordered the administrative record for the ongoing challenges to the 2018 CAP filed by August 3, 2018, and set a merits hearing for November 30, 2018. ROA 25. Golden Door lodged the proposed administrative record on August 3, 2018. ROA 48. The County challenged the adequacy of the proposed record and sought a substantial delay in the merits hearing (in a motion misleadingly phrased as one merely seeking "clarification"). ROA 50-54. The County contended the proposed record does not "comply with Rule of Court 3.2205 or Public Resources Code § 21167.6." Golden Door filed opposition. ROA 59-63. The County filed reply. ROA 64-66. The court reviewed the papers, published a tentative ruling (ROA 67), and on August 31, 2018, made its ruling. ROA 75. The merits hearing was continued to December 21, 2018 at the County's insistence and over petitioners’ objections. ROA 69. Golden Door lodged an electronic copy of the administrative record on a 500 GB portable drive on September 7, 2018. ROA 51. Golden Door also lodged an electronic copy of the administrative record on a flash drive on October 17, 2018. ROA 49. The administrative record is DATE: 12/24/2018 MINUTE ORDER Page 3 DEPT: Calendar No. ATTACHMENT A 015 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] approximately 70,000 pages. Petitioners sought a stay or preliminary injunction whereby the County will be precluded, during the pendency of these proceedings, from utilizing Mitigation Measure M-GHG-1 in connection with any pending project approvals requiring a General Plan amendment. ROA 84-91. Golden Door's motion submits the M-GHG-1's utilization violates the General Plan's requirements to reduce GHG emissions within the County and violates CEQA because M-GHG-1 would allow in-process and future General Plan amendment projects to increase GHG emissions within the County, in exchange for the purchase of carbon offset credits applicable to another location in California, the United States, or the world, without considering the requirements of the General Plan, even as amended, or undertaking the appropriate analysis to understand the effect of this program. Sierra Club filed its own, similar motion, also requesting that the County's 2018 Threshold of Significance be stayed or enjoined. ROA 303-304. On September 14, 2018, the court granted a limited version of the stay/preliminary injunction. ROA 107. A little more than a week later, petitioners appeared ex parte asking the court to setan OSC re contempt against the County for its actions in the wake of the September 14 order. ROA 112-115. The court declined to do so, finding that a contempt hearing would delay resolution of the merits of the petitions, * and that the allegedly contemptuous behavior had not even occurred yet. ROA 120. The following day, the County Board of Supervisors voted 4-0 to approve the project (a decision which petitioners claim was premised on a violation of the September 14, 2018 stay/injunction). Several other cases have since been filed challenging individual development approvals. The parties have disputed whether these cases are "related" to the current cases. See ROA 73. So far as this court is aware, no party has teed these disputes up for resolution (for example, by making a motion to transfer or a motion to consolidate) Petitioners filed their merits briefing on October 19, 2018. ROA 44, 53. The County filed its answering briefing on December 7, 2018. ROA 81. Petitioners jointly replied on December 14, 2018. ROA 84. The court reviewed the briefing and the certified administrative record. The court published a detailed tentative ruling on December 20 in which it thanked the parties for their thorough and comprehensive presentations. The answering brief "incorporates by reference" substantial material from the County's answers to the petitions for writ of mandate (ROA 81, opposition brief, p. 7:24-26), evidently in an attempt to evade the agreed-upon and court-ordered page limitations (ROA 47). Petitioners point this out but do not request that the court strike or disregard the unauthorized extra pages (ROA 84, reply brief, p. 8:25-27). The court considered the unauthorized extra pages. Petitioners both contend the 2018 CAP is inconsistent with the County's General Plan. ROA 44, Sierra Club's opening brief at p. 21ff, ROA 53, Golden Door's opening brief at pp. 8-10. And both petitioners contend, with somewhat different analysis, that the County violated CEQA by allowing out of county GHGs offsets without legally sufficient analysis. ROA 44, Sierra Club's opening brief at pp. 8-20; ROA 53, Golden Door's opening brief at pp. 10-18. In view of the importance of the issues presented, the court set aside the entire afternoon calendar on December 21 for this matter. The parties presented lengthy and thoughtful argument. PowerPoint or similar presentations were encouraged by the court and were used at the oral argument by both sides; paper copies of these outlines were appended to the minutes of the court. The case was then submitted or decision. DATE: 12/24/2018 MINUTE ORDER Page 4 DEPT: Calendar No. ATTACHMENT A 016 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] 2. Applicable Standards. A. "Under the law-of-the-case doctrine, the determination by an appellate court of an issue of law is conclusive in subsequent proceedings in the same case. [Citation.] The doctrine applies only if the issue was actually presented to and determined by the appellate court. [Citation.] The doctrine is one of procedure that prevents parties from seeking reconsideration of an issue already decided absent some significant change in circumstances." People v. Yokely (2010) 183 Cal.App.4th 1264, 1273 (Yokely), italics added. Furthermore, "the law-of-the-case doctrine governs only the principles of law laid down by an appellate court, as applicable to a retrial of fact... ." People v. Boyer (2006) 38 Cal.4th 412, 442. "[T]he doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact." People v. Barragan (2004) 32 Cal.4th 236, 246, italics added. The doctrine applies only to rulings by appellate courts and not trial courts. Yokely, at p. 1273; Boyer, at p. 442; Barragan, at p. . The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491. "Generally, the doctrine of law of the case does not extend to points of law which might have been but were not presented and determined in the prior appeal. [Citation.] As an exception to the general rule, the doctrine is . . . held applicable to questions not expressly decided but implicitly decided because they were essential to the decision on the prior appeal." Estate of Horman (1971) 5 Cal.3d 62, 73. B. The Court's Role in CEQA Cases. In Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 486 (Mira Mar Mobile Community), the court explained that "[iln a mandate proceeding to review an agency's decision for compliance with CEQA, [courts] review the administrative record de novo [citation], focusing on the adequacy and completeness of the EIR and whether it reflects a good faith effort at full disclosure. [Citation.] [The court's] role is to determine whether the challenged EIR is sufficient as an information document, not whether its ultimate conclusions are correct. [Citation.]" An EIR is presumed adequate. Pub. Resources Code § 21167.3(a). Courts review an agency's action under CEQA for a prejudicial abuse of discretion. Pub. Res. Code § 21168.5. "Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." Id.; see Mira Mar Mobile Community, supra, 119 Cal.App.4th at 486; County of San Diego v. Grossmont-Cuyamaca Community College Dist. (Grossmont) (2006) 141 Cal.App.4th 86, 96 (same). In defining the term "substantial evidence," the CEQA Guidelines state: " ‘Substantial evidence’... means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made ... is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion[,] narrative [or] evidence which is clearly erroneous or inaccurate ... does not constitute substantial evidence." CEQA Guidelines, § 15384(a). "In applying the substantial evidence standard, [courts] resolve all reasonable doubts in favor of the administrative finding and decision. [Citation.]" Mira Mar Mobile Community, supra, 119 Cal.App.4th at 486; Grossmont, supra, 141 Cal.App.4th at 96. Although the lead agency's factual determinations are subject to the foregoing deferential rules of review, questions of interpretation or application of the requirements of CEQA are matters of law. While DATE: 12/24/2018 MINUTE ORDER Page 5 DEPT: Calendar No. ATTACHMENT A 017 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] judges may not substitute their judgment for that of the decision makers, they must ensure strict compliance with the procedures and mandates of the statute. Grossmont, supra, 141 Cal.App.4th at 96. C. The Three Steps of CEQA. CEQA establishes "a three-tiered process to ensure that public agencies inform their decisions with environmental considerations." Banker's Hill, et al v. City of San Diego (2006) 139 Cal.App.4th 249, 257 (Banker's Hill); see also CEQA Guidelines, § 15002(k) (describing three-step process). First Step in the CEQA Process. The first step "is jurisdictional, requiring that an agency conduct a preliminary review in order to determine whether CEQA applies to a proposed activity." Banker's Hill, supra, 139 Cal.App.4th at 257; see also CEQA Guidelines, § 15060. The Guidelines give the agency 30 days to conduct this preliminary review. CEQA Guidelines, § 15060. The agency must first determine if the activity in question amounts to a "project." Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380. "A CEQA ...project falls into one of three categories of activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment (§ 21065.)" SunsetSky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902, 907. As part of the preliminary review, the public agency must also determine the application of any statutory exemptions or categorical exemptions that would exempt the proposed project from further review under CEQA. See CEQA Guidelines, § 15282 (listing statutory exemptions); CEQA Guidelines, §§ 15300-15333 (listing 33 classes of categorical exemptions). The categorical exemptions are contained in the CEQA Guidelines and are formulated by the Secretary under authority conferred by CEQA section 21084(a). If, as a result of preliminary review, "the agency finds the project is exempt from CEQA under any of the stated exemptions, no further environmental review is necessary. The agency may prepare and file a notice of exemption, citing the relevant section of the Guidelines and including a brief ‘statement of reasons to support the finding." Banker's Hill, supra, 139 Cal.App.4th at 258, citing CEQA Guidelines, §§ 15061(d), 15062(a)(3). Second Step in the CEQA Process. If the project does not fall within an exemption, the agency proceeds to the second step of the process and conducts an initial study to determine if the project may have a significant effect on the environment. CEQA Guidelines, § 15063. If, based on the initial study, the public agency determines that "there is substantial evidence, in light of the whole record ... that the project may have a significant effect on the environment, an environmental impact report [(EIR)] shall be prepared." Pub. Resources Code § 21080(d). On the other hand, if the initial study demonstrates that the project "would not have a significant effect on the environment," either because "[t]here is no substantial evidence, in light of whole record" to that effect or the revisions to the project would avoid such an effect, the agency makes a "negative declaration," briefly describing the basis for its conclusion. Pub. Resources Code§ 21080(c)(1); see CEQA Guidelines, § 15063(b)(2); Banker's Hill, supra, 139 Cal.App.4th at 259. The Guidelines and case law further define the standard that an agency uses to determine whether to issue a negative declaration. "[IIf a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect." CEQA Guidelines, § 15064(f)(1), italics added. This formulation of the standard for determining whether DATE: 12/24/2018 MINUTE ORDER Page 6 DEPT: Calendar No. ATTACHMENT A 018 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] to issue a negative declaration is often referred to as the "fair argument" standard. See Laurel Heights Improvement Assn. v. Regents of University of California, (1993) 6 Cal.4th 1112, 1134-1135. Under the fair argument standard, a project "may" have a significant effect whenever there is a "reasonable possibility" that a significant effect will occur. No Oil v. City of Los Angeles (1974) 13 Cal.3d 68, 83-84. Substantial evidence, for purposes of the fair argument standard, includes "fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact" § 21080(e)(1). Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts unrelated to physical impacts on the environment. Pub. Resources Code § 21080(e)(2). If the initial study reveals no substantial evidence that the project may have a significant environmental effect, the agency may adopt a negative declaration. Pub. Resources Code § 21080(c)(2); CEQA Guidelines, § 15070(b); Grand Terrace for Responsible and Open Government v. City of Grant Terrace (2008) 160 Cal.App.4th 1323, 1331 (Grand Terrace); Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175 (holding common sense is part of the substantial evidence analysis). "Alternatively, if there is no substantial evidence of any net significant environmental effect in light of revisions in the project that would mitigate any potentially significant effects, the agency may adopt [an MND]. [Citation.] [An MND] is one in which (1) the proposed conditions "avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." (§ 21064.5 ....)' [Citations.]" Grand Terrace, supra, at 1331-1332. The MND allows the project to go forward subject to the mitigating measures. Pub. Resources Code §§ 21064.5, 21080(c); see Grand Terrace, supra, 160 Cal.App.4th at 1331. Third Step in the CEQA Process. If no negative declaration is issued (or if, as here, it was held to be unlawful), the preparation of an EIR is the third and final step in the CEQA process. Banker's Hill, supra, 139 Cal.App.4th at 259; Guidelines, §§ 15063(b)(1), 15080; CEQA, §§ 21100, 21151. D. The Environmental Impact Report. Central to CEQA is the EIR, which has as its purpose informing the public and government officials of the environmental consequences of decisions before they are made. [Citation.] "An EIR must be prepared on any ‘project’ a local agency intends to approve or carry out which 'may have a significant effect on the environment." Pub. Res. Code §§ 21100, 21151; Guidelines, § 15002(f)(1). The term ‘project’ is broadly defined and includes any activities which have a potential for resulting in a physical change in the environment, directly or ultimately. Pub Res. Code § 21065; Guidelines, §§ 15002(d), 15378(a); [Citation].) The definition encompasses a wide spectrum, ranging from the adoption of a general plan, which is by its nature tentative and subject to change, to activities with a more immediate Impact, such as the issuance of a conditional use permit for a site-specific development proposal.” CREED v. City of San Diego (2005) 134 Cal.App.4th 598, 604 (CREED). "To accommodate this diversity, the Guidelines describe several types of EIR's, which may be tailored to different situations. The most common is the project EIR, which examines the environmental impacts of a specific development project. (Guidelines, § 15161.) A quite different type is the program EIR, which 'may be prepared on a series of actions that can be characterized as one large project and are related either: (1) Geographically, (2) As logical parts in the chain of contemplated actions, (3) In connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program, or (4) As individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways." CEQA Guidelines, § 15168(a); CREED, supra, 134 Cal.App.4th at 605. As the court held in CREED, a program EIR may serve as the EIR for a subsequently proposed project only to the extent it DATE: 12/24/2018 MINUTE ORDER Page 7 DEPT: Calendar No. ATTACHMENT A 019 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] contemplates and adequately analyzes the potential environmental impacts of the project. CREED, supra, 134 Cal.App.4th at 615. The EIR atissue in this case is of the latter variety, a program EIR. E. Standards of Review. Under CEQA, an EIR is presumed adequate (Pub. Resources Code, § 21167.3), and the plaintiff in a CEQA action has the burden of proving otherwise. Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 275, internal quotation marks omitted, quoting Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 836. Courts review an agency's determinations and decisions for abuse of discretion. An agency abuses its discretion when it fails to proceed in a manner required by law or there is not substantial evidence to support its determination or decision. Pub. Resources Code §§ 21168, 21168.5; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 (2007) (Vineyard). "J udicial review of these two types of error differs significantly: While [courts] determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], [courts] accord greater deference to the agency's substantive factual conclusions." Vineyard, supra, 40 Cal.4th at 435. Consequently, in reviewing an EIR for CEQA compliance, courts adjust "scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts." Vineyard, supra, 40 Cal.4th at 435. For example, where a petitioner claims an agency failed to include required information in its environmental analysis, the court's task is to determine whether the agency failed to proceed in the manner prescribed by CEQA. Conversely, where a petitioner challenges an agency's conclusion that a project's adverse environmental effects are adequately gated. courts review the agency's conclusion for substantial evidence. Vineyard, supra, 40 Cal.4th at Here, the parties dispute even the proper analytical framework guiding this court's review of the SEIR. The County claims all of petitioners’ claims are subject to deferential "abuse of discretion" review. ROA 81, page 11. Petitioners note that the County "conflates three separate standards of review that are applicable in this case," and go on to discuss all three. ROA 84, page 11. The court concludes that petitioners’ formulation is the correct one, and in resolving this matter, has attempted to utilize the scrutiny appropriate to several questions presented. So, with respect to general plan consistency, the court has required petitioners "to show why, based on all of the evidence in the record, ihe determination was unreasonable." San Diego Citizenry Group v. County of San Diego, 219 Cal. App. 4th 1, 26 (2013). With regard to analysis of the SEIR, the court has adjusted its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts. Vineyard, supra, 40 Cal.4th at 435. F. Further Requirements of CEQA. In addition to the foregoing public process/decision maker information steps, the Legislature in enacting CEQA also intended to "provide certain substantive measures for protection of the environment. [Citations.] In particular, one court noted [Public Resources Code] section 21002 requires public agencies 'to deny approval of a project with significant adverse effects when feasible alternatives or feasible mitigation measures can substantially lessen such effects." [Citation.]" Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1601-1602, and Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123. The Legislature declared its intention in enacting CEQA "that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. [Citations.] CEQA is to be interpreted 'to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ * Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112. G. Exhaustion. The exhaustion of administrative remedies is a jurisdictional prerequisite to seeking judicial relief. DATE: 12/24/2018 MINUTE ORDER Page 8 DEPT: Calendar No. ATTACHMENT A 020 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] (Abelleira v. Dist. of Ct. of Appeal (1941) 17 Cal.2d 280, 292.) The failure to exhaust is a jurisdictional defect. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197.) It is based upon the notion that a public agency must be given an opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review. (Id. at p. 1198.) Even claims of constitutional infirmities (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 276) and challenges to the validity of any governing regulation (Woods v. Super. Ct. (1981) 28 Cal.3d 668, 680) must be presented in the first instance to the administrative agency. This requirement permits the agency to apply its expertise, resolve factual issues, apply statutorily delegated remedies, and mitigate damages. (Rojo v. Kliger (1990) 52 Cal.3d 65, 86.) Petitioner has the burden to prove that an issue was exhausted and timely and properly raised in the administrative process. CREED v. City of San Diego (2011) 196 Cal.App.4th 515, 527. Proper exhaustion of administrative remedies is a jurisdictional prerequisite to maintain a CEQA challenge. CREED, supra, 196 Cal. App.4th at 527. Under the CREED case, a generalized, vague reference to environmental concerns will not preserve a challenge against a failure to exhaust claim. Id. at 527. 3. Requests for] udicial Notice. The Sierra Club seeks (ROA 45-46) judicial notice of five items not included in the administrative record: (1) regulations issued by the California Air Resources Board (CARB) to regulate "Cap-and-Trade" (Exhibit 1); (2) a declaration filed on August 22, 2018 (ROA 89) in Case No. 2018-37-13324 (Exhibit 2); and (3) portions of draft EIRs on projects that have not been approved by the County Board of Supervisors (Exhibits 3-5). In response, the County filed evidentiary objections (ROA 79) to Exhibits 2-5 in the Sierra Club's request for judicial notice. The County seeks (ROA 82) seeks judicial notice of six items not included in the administrative record: (1) regulations issued by CARB in 2012 to regulate "Cap-and-Trade" (Exhibit 1): (2) a 2015 San Diego Superior Court ruling in Case No. 2015-07420 (Exhibit 2); (3) County Code of Administrative Ordinance section 375.19 (Exhibit 3); (4) Board Policy 1-63; and (5) the County's answers to Sierra Club's and Golden Door's writ of mandate petitions (Exhibits 5-6). In response, the Sierra Club and Golden Door filed evidentiary objections (ROA 85) to Exhibits 2, 5, and 6 in the County's request for judicial notice. Courts of appeal review a trial court's ruling on a request for judicial notice pursuant to the abuse of discretion standard of review. In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271. Evidence Code section 453 provides that a trial court must take judicial notice of any matter specified in Evidence Code section 452, upon a party's proper request. In People v. Harbolt (1997) 61 Cal.App.4th 123, 126-127, the court discussed the limited purposes for which a court may take judicial notice of a court record: "Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments- but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact." [Citations.]" Turning to the other materials: the administrative record may only be augmented where the proponent makes the showing under Code of Civil Procedure section 1094.5(e): (1) that the proposed evidence could not have been produced at the administrative hearing through the exercise of reasonable diligence; or (2) that the proposed evidence was improperly excluded at the administrative hearing. Situations in which such "extra-record" evidence should be admitted by a court are relatively rare. Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 578; City of Fairfield v. Superior DATE: 12/24/2018 MINUTE ORDER Page 9 DEPT: Calendar No. ATTACHMENT A 021 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] Court (1976) 14 Cal.3d 768, 776; Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. Determination of the question of whether one of the exceptions (to the general rule of non-admissibility) applies is within the discretion of the trial court, and "will not be disturbed unless it is manifestly abused." Pomona Valley Med. Ctr. v. Superior Court (1997) 55 Cal.App.4th 93, 102. Generally speaking, the rule in CEQA cases is: "take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two." Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364. Said another way: "If itis notin the administrative record, it does not exist." See Sierra Club v. California Coastal Com. (2005) 35 Cal.4th 839, 863; Code of Civil Procedure § 1094.5; Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at 565. Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable." " Unruh-Hazton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364-365; accord, StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 ("When judicial polke 5 taken of a document . . . the truthfulness and proper interpretation of the document are isputable"). Trial court rulings are not binding precedent. E.g., Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738. Rulings in other cases are irrelevant absent some additional showing like the elements of claim or issue preclusion. Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 448. Judicial notice is granted as to the Sierra Club's Exhibit 1 and the County's Exhibits 1, 3, and 4. No objection was received to these Exhibits. J udicial notice is denied as to the Sierra Club's Exhibits 2-5; the County's evidentiary objections are sustained to Exhibits 2-5. The Sierra Club's Exhibits 2-5 are extra record evidence. Judicial notice is denied as to the County's Exhibit 2; the evidentiary objections are sustained to Exhibit 2. Exhibit 2 is irrelevant. It pertains to a solar project and a case that underwent judicial review in 2015, before the County's approval of the 2018 CAP. Judicial notice is granted as to the County's Exhibits 5-6 subject to the limitations on the doctrine stated above; the evidentiary objections to Exhibits 5-6 are overruled. In other words, the court takes judicial notice of the fact that the answers were filed, but does not accept the truth of any of the contentions expressed therein. Needless to say, the court takes judicial notice of its own previous decisions and those of the Court of Appeal in Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152 (Sierra Club), and Golden Door v. County of San Diego (2018) 27 Cal.App.5th 892 (Golden Door). 4. Discussion and Rulings. The petitions are granted, and the County is ordered to set aside its February 14, 2018 approval of the 2018 CAP and the Supplemental EIR (SEIR) on which the 2018 CAP is based. A. The County Persists in Failing to Carry Out its Legal Obligations With Regard to Greenhouse Gas Reduction. The court knows full well that, when it decides to do so, the County knows how to prepare a lawful and valid EIR. See San Diego Citizenry Group v. County of San Diego, supra, 219 Cal.App.4th 1 (boutique winery case; this court's judgment finding the County's EIR valid affirmed on appeal); see also Backcountry Against Dumps v. County of San Diego (2015) 2015 WL 5451508 (wind turbine case; this court's judgment finding the County's EIR valid affirmed on appeal). In finding that the County did not do so when it approved the 2018 CAP, the court does not write on a clean slate. The County's efforts to comply with the statewide GHG/global warming requirements summarized in part IIA of the Court of DATE: 12/24/2018 MINUTE ORDER Page 10 DEPT: Calendar No. ATTACHMENT A 022 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] Appeal's September 28, 2018 opinion in Consolidated Case Nos. D072406 and D072433 have given rise to several decisions by the court, and two by the Court of Appeal. Virtually every decision has found the County's efforts wanting; this is particularly true in connection with the County's penchant for proceeding in the absence of substantial evidence and without adequate analysis. Although it does some things well, the 2018 SEIR fails as an informational document and as a document of public accountability in material ways, and the court finds the County has once again failed to proceed according to CEQA. In Sierra Club, the Court of Appeal affirmed this court and held the 2012 CAP failed to comply with the County's general plan update mitigation measure CC-1.2 requiring detailed GHG emissions reduction targets; that the County's adoption of the 2012 CAP was a separate project requiring a separate determination of environmental impact; and that the CAP required a supplemental EIR. 231 Cal.App.4th 1152, 1167-69, 1174-76 (2014). The Court noted the County had failed to consider the use of the CAP and the Thresholds "as a plan-level program," Ibid. at 1172, that the Sierra Club had proposed "feasible mitigation measures, that the County "rejected these mitigation measures without substantial evidence for doing so," and that the CAP did "not fulfill the County's commitment under CEQA and Mitigation Measure CC-1.2, to provide detailed deadlines and enforceable measures to ensure GHG emissions will be reduced." Ibid. at 1176. More recently, in Golden Door, the Court of Appeal affirmed this court and held the 2016 Guidance Document violated CEQA and that the threshold of significance was not supported by substantial evidence. 27 Cal.App.5th 892, 894-95; 238 Cal.Rptr.3d 559, 561-562 (2018). Justice Huffman, who notably concurred only in the result of J ustice Nares' opinion in Sierra Club, held that the County had failed "to address adequately the core concern raised by plaintiffs in the court below, which is reliance on statewide data without evidence supporting its relationship to countywide reductions," and that this "fails to meet the substantial evidence standard." 27 Cal.App.5th at 904; 238 Cal.Rptr.3d at 569. B. Petitioners Complied with the Exhaustion Requirements. In its opposition brief, the County contends that petitioners failed to exhaust the administrative exhaustion requirements for several claims. ROA 81, opposition brief, p. 12:19-28. The County fails to set forth any law, facts, or analysis in support of its failure to exhaust contentions, other than referencing the County's answers to the Sierra Club's and Golden Door's writ of mandate petitions. In this context, "exhaustion" requires that prior to the close of the public hearing, some member of the public "fairly apprised" the County of the issue. See Pub. Resources Code § 21177(a); see also Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (2011) 197 Cal.App.4th 1042, 1052. Here, public testimony did not close until about mid-day February 14, 2018. See AR 79:28681. The issue of whether in-process GPAs would affect meeting 2020 GHG reduction targets (ROA 81, opposition brief, p. 15:2-6) was exhausted. See, e.g., AR 22:18416, AR 22:28418, and AR 22:18422 (lack of vehicle miles travelled (VMT) analysis creates uncertainty regarding emissions targets), AR 22:18424 (the County may lack ability to meet SB 375 goals), AR 22:18429 (the County must demonstrate it will comply with reductions previously agreed to in the 2011 GPU), AR 22:18433 (the County not on track to meet emissions targets), AR 22:18449 ("no open lands should be annexed or rezoned for greater development until there is an adequate CAP that actually achieves the 2020 emission reduction goals the County agreed to in its 2011 General Plan update"), AR 22:18628 (must better evaluate amendments to meet goals). The issue of inconsistent geographic areas for analysis (ROA 81, opposition brief, p. 23:27-28) was exhausted. See, e.g., AR 16-15349 ("concerned about the CAP's mitigation measure for cumulative GHG impacts caused by General Plan Amendment projects"); AR 22:18424, AR 22: 19604-05; AR 38:24174. The issue of M-GHG-1 as a separate CEQA project (ROA 81, opposition brief, p. 26:11-14) was exhausted. See, e.g., AR 22:19592-93. The case relied upon by the County, CREED v. City of San DATE: 12/24/2018 MINUTE ORDER Page 11 DEPT: Calendar No. ATTACHMENT A 023 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] Diego (2011) 196 Cal.App.4th 515, 527-28, is inapposite. The issues presented by petitioners and other interested persons to the County were not "general, unelaborated objections." The issues raised by petitioners and other interested persons were fairly presented to the County in comment letters with clearly organized headings. Therefore, the County's exhaustion contentions fail. It is noteworthy that the December 21 argument consumed several hours, yet exhaustion was not raised. C. The 2018 CAP is Inconsistent with the County's General Plan. The California Planning and Zoning Law, commencing with Gov. Code section 65000, requires that cities and counties have a General Plan (Gov. Code § 65300), consisting of specified required elements (Gov. Code § 65302), which is intended to be "a constitution for all future developments." See Concerned Citizens of Calaveras County v. Calaveras Board of Supervisors (1985) 166 Cal.App.3d 90, 94, 97. The Planning and Zoning Law provides that any land use approval to be consistent with the General Plan. See Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570-71. A project fails for general plan inconsistency if it conflicts with a general plan policy hat is fundamental, mandatory and clear. Spring Valley Lake Assn. v. City of Victorville, 248 Cal. App. 4th 91,100 (2016). Here, the County incorporated a fundamental, mandatory and clear policy into both the 2011 and the 2018 iterations of the General Plan: that GHG emission reductions be local. In 2011, the County explicitly used the words "local GHG emissions." in COS-20. See AR25:21559; see also AR 33843 (Excerpts tab 34 at 5-38). This did not change in the 2018 amendment. The County's 2018 reiteration stated, again in COS-20, that the CAP should achieve GHG emissions from the "unincorporated County" and from "County operations." See AR 16:13165 (italics added; strikeouts and additions omitted): "GPU Goal COS 20 (Governance and Administration) Reduction of community-wide (i.e., unincorporated County) and County operations greenhouse gas emissions contributing to climate change that meet or exceed requirements of the Global Warming Solutions Act of 2006, as amended by Senate Bill 32 (as amended, Pavley. Global Warming Solutions Act of 2006: emissions limit.) GPU Policy COS 20.1 (Climate Action Plan) Prepare, maintain, and implement a Climate Action Plan for the reduction of community-wide (i.e., unincorporated County) and County operations greenhouse gas emissions consistent with the California Environmental Quality Act (CEQA) Guidelines Section 15183.5." Thus, the County's General Plan has consistently, for 7 years, stated that it required in-County GHG reductions. However, M-GHG-1, which is expressly incorporated into the 2018 CAP (see e.g., AR 1340:58761 that states the 2018 CAP expressly incorporates M-GHG-1) allows essentially unlimited increases in GHG within the County. In this respect, applicants proposing projects in the County can meet their GHG mitigation requirements by purchasing offsets from anywhere in the world, in the discretion of the Director of a County department. See AR 38:22771, AR 38-23054 ("The County will consider to the satisfaction of the Director of Planning & Development Services (PDS) the following geographic priorities for GHG reduction features and GHG reduction projects and programs: 1) project design features onsite reduction measures; 2) off-site within the unincorporated areas of the County of San Diego; 3) off-site within the County of San Diego; 4 off-site within the State of California; 5) off-site within the United States; and 6) off-site internationally".) The fact that a single Supervisor opined rather ambiguously at a single hearing that COS-20 was not intended to restrict GHG reductions to local operations or actions does not change the court's view. If this had been the intention of all the Supervisors, it would have been a simple matter to include a sentence in COS-20 making this crystal clear. In essence, the County would freely allow the use of offsets purchased anywhere on the planet, with no limit on geographic scope or duration (and no temporal or cumulative limit), in order for project applicants within the County to meet their GHG mitigation requirements. All that is required is the "satisfaction" of the Planning Director. No standards or criteria are stated for achieving the "satisfaction" DATE: 12/24/2018 MINUTE ORDER Page 12 DEPT: Calendar No. ATTACHMENT A 024 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] of the Planning Director. As such, the County violated its General Plan and the Planning and Zoning Law by allowing the free use of out-of-county GHG offsets for projects within the County. This standard-free granting of unfettered discretion to an unelected official is antithetical to the public participation foundation of CEQA - particularly when it concerns the signal environmental issue of our times. To the extent the County contends that M-GHG-1's "geographic priorities for GHG reduction features" requires offsets to result in GHG reductions within the County, this requirement is illusory. The County even conceded this point in the SEIR, explaining that only one project (a reforestation project) within the County is included on the approved registries for offset projects, but offsets from this project are not available. AR 38:23111. The court has no trouble concluding that future project applicants are unlikely to regard the "geographic priorities" as binding on them in any sense. Certainly the County was unable to articulate, during the December 21 hearing, anything binding or enforceable about the "geographic priorities," other than the order of their listing. The County committed in 2011 and again in 2018 to achieving GHG reductions within the County. The Administrative Record does not support a major deviation from that commitment, particularly when essentially all seven of the intervening years have been marked by the litigation summarized above. The 2018 CAP appears to the court to be an attempt to address GHG reduction with a window-dressing pronouncement of policy suggesting aggressive action, but the devil is in the details. And here, the details allow the bold policy pronouncement to be emasculated by the unfettered access to out of region credit purchases. The people of the County have a right to expect more from their elected officials, and the Planning and Zoning Law, the General Plan, and CEQA all require that they provide more. D. The County Violated CEQA by Allowing the Purchase of Qut-of-County GHG Offsets Without Legally Sufficient Analysis. Initially, the County fails to show in the Administrative Record that out-of-county offsets will be enforceable, verifiable, and of sufficient duration. The County contends that the SEIR's references to a requirement that carbon credits be purchased from "CARB-approved registries" (see, e.g., AR 16:13892; 16 AR: 15418) suggests that the M-GHG-1 program has CARB approval. However, the M-GHG-1 program is not remotely similar to the CARB program. Under California's Cap-and-Trade program, a registry offset credit must "[rlepresent a GHG emission reduction ... that is real, additional, quantifiable, permanent, verifiable, and enforceable." 17 CCR § 95970. The Cap-and-Trade program has strict monitoring, reporting, and record retention requirements for offset projects. 17 CCR § 95976. The offsets are generally limited to the geographic boundaries of the United States and United States territories. 17 CCR § 95972(c). Offset credits can only be used to meet up to 8% of participants’ annual compliance obligations. 17 CCR § 95854. By contrast, the County's proposed program has no limitation on a participant's annual compliance obligations. Also, it does not set time limits on the offsets it authorizes, nor does it limit the geographic scope. Further, the offsets require the "satisfaction" of the Planning Director, but no standards are provided for obtaining this "satisfaction." The County fails to show that out-of-county offsets will be enforceable, verifiable, and of sufficient duration. The County also failed to adequately analyze the infeasibility of requiring offset credits to be limited to within the County, or at least to the Southern California region. Second, the SEIR failed to adequately analyze the impact of the 2018 CAP on the Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) prepared by SANDAG to carry out the mandate of SB 375 that transportation planning and funding should be used to reduce GHG emissions, in part by changing land use patterns to require less driving. Cleveland National Forest Foundation v. SANDAG (2017) 3 Cal.5th 497, 506. CEQA Guidelines, section 15125(d) requires that an "EIR shall discuss any inconsistencies between the proposed project and applicable . . . regional plans. Such regional plans include, but are not limited to . . . regional transportation plans." In this matter, the SEIR does not directly address such inconsistencies with SANDAG's plan. The SEIR replied to comments "express[ing] concern that the proposed GHG DATE: 12/24/2018 MINUTE ORDER Page 13 DEPT: Calendar No. ATTACHMENT A 025 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] reduction measures within the CAP would not meet the VMT [vehicle miles traveled, i.e., driving] reduction targets established" in the SANDAG RTP/SCS (AR 16:13853) by asserting "it is the responsibility of SANDAG to ensure that the region is demonstrating consistency with SB 375." AR 16:13854. Nonetheless, stating SANDAG's responsibilities under SB 375 does not satisfy the County's duty under CEQA Guidelines section 15125(d), which requires an EIR to examine and discuss any inconsistencies between the 2018 CAP and the SANDAG plan. Also, the SEIR states the County provided accurate land use planning data to SANDAG for use in preparing the regional plan. AR 16:13854. Nevertheless, while that land use information was accurate at the time it was provided, and while the 2018 CAP itself does not change any land use, the SEIR admits the GHG emissions data used in the 2018 CAP are different from the data the County provided to SANDAG. AR 16:13855. In this respect, the SEIR indicates the 2018 CAP's inventory includes emissions from General Plan Amendments (GPAs) approved after the County provided its land use information to SANDAG, data whose impact on the SANDAG plan has not been evaluated by the County. Ibid. However, there is no discussion in the SEIR of the impact that the GHG emissions from the GPAs approved after the County submitted its data to SANDAG, or from reasonably foreseeable future GPAs, may have on the regional plan's VMT or GHG reduction goals. As such, the County's approach does not properly address VMT impacts. In essence, the County failed to adequately analyze the VMT impacts and resulting implications for the San Diego's area SB 375 Planning and Goals. Third, the SEIR failed to adequate analyze M-GHG-1 impacts. The M-GHG-1 allows applicants to meet their GHG mitigation requirements by purchasing offsets from anywhere in the world. AR 38:22771, AR 38-23054. The M-GHG-1 allows practically unlimited increases in GHG emissions within the County, subject only to the discretion of a single Director. Ibid. However, the SEIR failed to adequately analyze M-GHG-1 impacts. It failed to analyze the potential VMT impacts from the known and/or in process GPAs that would necessarily rely on it. And by failing to include information about the potential VMT impacts of known and/or in progress GPAs, the County deprived the public of adequate information pL among other things, SANDAG's ability to meet State mandated VMT reduction requirements (SB 375). Fourth, the SEIR failed to analyze cumulative GHG impacts. In this respect, the County failed to define a geographic scope for analyzing cumulative GHGs, as required by CEQA Guidelines, section 15130(b), which requires agencies to define a consistent geographic scope for their cumulative impacts analyses. Instead, the County used a geographic scope that was inconsistent and alternated between a "Countywide" geographic scope of cumulative GHGs and a "global" geographic scope. See, e.g., AR 38-22749 ("cumulative impact analysis . . . was identified as the entire unincorporated County"]; see also, e.g., AR 38: 22769 ("global climate change is inherently a cumulative issue").) This inconsistency violates CEQA Guidelines section 15130(b). Fifth, the County improperly delegated and deferred feasibility findings. M-GHG-1 delegates to the Planning Director deferred findings of feasibility for mitigation measures for in-process and future GPAs. See AR 38-23054-55. In particular, it delegates to the Planning Directory the determination of "geographic priorities" for the offset program and when an applicant may be exempted from obtaining "local" offsets due to "financial feasibility." Ibid. It also delegates to the Planning Director the determination of when non-standard offsets may be used, ie., whether a registry is sufficiently "reputable" to substitute for the expressly defined offset registries. Ibid. Additionally, there is no requirement that any offset contract be made directly enforceable by the County of San Diego. Moreover, the language of M-GHG-1 indicates such feasibility determinations would occur after project approval and outside of public review and hearing. Ibid. Essentially, M-GHG-1, a deferred mitigation measure, violates CEQA. It lacks adequate performance standards. It relies on standardless delegation to County staff. See, e.g., Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 94 (list of potential methods of mitigation for later selection without "specific and mandatory performance standards" is improper deferral]; see DATE: 12/24/2018 MINUTE ORDER Page 14 DEPT: Calendar No. ATTACHMENT A 026 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] also, e.qg., California Clean Energy Commission v. City of San J ose (2013) 220 Cal.App.4th 1325, 1340 ("delegation to a nonelected nondecisionmaking body, the planning commission," improper under CEQA.) As such, the County improperly delegated and deferred feasibility findings under M-GHG-1. Sixth, the SEIR failed to address impacts to energy and environmental justice. It failed to analyze potential energy impacts that may result from GPAs and strategies to reduce energy impacts on such project sites. Also, itis undisputed that the County failed to evaluate the reasonably foreseeable impacts on energy usage in allowing increased VMTs in exchange for GHG reduction through offsets. Moreover, the SEIR made no attempt to disclose the increased health damage that could occur to the more vulnerable County residents (children, the ill, and disadvantaged communities), from the project "increasing nonattainment criteria pollutants" (AR 16: 13401), or from not requiring GHG offsets to be obtained in-County. See CEQA Guidelines, § 15126.2 (EIR shall identify and analyze all foreseeable significant harm of the project. Seventh, the SEIR failed to evaluate smart growth mitigation or alternatives for GPAs. "The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR." In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162. Case law emphasizes the importance of analyzing a "smart growth" mitigation measure or alternative. Cleveland National Forest Foundation v. SANDAG (2017) 3 Cal.5th 497, 506 ("The reductions mandated by Senate Bill 375 may be achieved through a variety of means, including ‘smart growth' planning ...."); Cleveland National Forest Foundation v. SpA od 17 Cal.App.5th 413, 433-34 (error to fail to address smart growth in mitigation and alternatives). In essence, the petitioners asked for an alternative land use plan to reduce VMT. None of the alternatives in the SEIR addressed VMT or transportation-related emissions. Instead, the SEIR alternative analysis looked at waste and renewable energy. See, e.g., AR 38:22392-95. Without an alternative aimed at reducing land-use-derived VMT, the analysis in the SEIR lacked "those alternatives necessary to permit a reasoned choice." CEQA Guidelines, § 15126.6(f) Eighth, the County failed to adequately respond to comments, thereby violating CEQA. "Comments are an integral part of the EIR and should be relied upon by the decisionmakers." Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 735. Responses to comments must be in good faith and rely on factual information; ™[cJonclusory statements unsupported by factual information™ do not satisfy CEQA. Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475. For example, Sempra commented that only 13% of CAP GHG reductions would come from a transportation sector that emits 45% of County GHGs and advocated decreasing VMT through the County's comprehensive planning powers. AR 16:15041-42. The County's "response" was that it will explore increasing the use of electric vehicles, which was nonresponsive. AR 16:15040-42. Master Response 9 admits that transportation sector reductions are proportionally low, but does not explain why transportation reductions were not included in the alternatives analysis. AR 38:23098-100. Master Responses 2 and 5 are likewise nonresponsive and rely on data that does not include VMT generated by GPAs under consideration and the ones that are likely to be submitted for County review. AR 38: 23072-75, AR 38: 23084-87. These are not adequate responses under CEQA. As a second example, the Sierra Club suggested that the County "install a car parking system that gives its employees more choice over how they spend their wage" by unbundling free or subsidized parking from employee benefits. AR 16:15048-49. In response, the County stated the suggestion "would be infeasible" and set forth conclusions and argument. Ibid. CEQA requires the County to set forth substantial evidence to support its conclusions and argument that mitigation measures are infeasible. The County has failed to do so. By way of further example, SANDAG commented on the draft CAP to encourage the CAP to embrace smart growth policies. AR 38-23133. SANDAG asked the County to take into account smart growth policies. Ibid. However, the County's responses in the SEIR do not say anything about the impact of M-GHG-1's contribution to increased VMT. AR 38:24144-46, AR 38:24578-79. The SEIR's failure to DATE: 12/24/2018 MINUTE ORDER Page 15 DEPT: Calendar No. ATTACHMENT A 027 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] address M-GHG-1's contribution to increased VMT is a CEQA impact that was required to be addressed prior to CAP approval. The responses to comments are inadequate. In light of the foregoing, the petitions for writ of mandate are granted. The court believes it has resolved the petitions on all material grounds. To the extent any party disagrees, the court declines to address the other contentions of the parties. See PDK Labs. Inc. v. DEA (D.C. Cir. 2004) 362 F.3d 786, 799 (Roberts, J., concurring in part and concurring in the judgment) (noting "the cardinal principle of judicial restraint" that "if it is not necessary to decide more, it is necessary not to decide more"); Compare Natter v. Palm Desert Rent Review Comm'n. (1987) 190 Cal.App.3d 994, 1001 (reversal on stated grounds made it unnecessary to resolve other contentions challenging constitutionality); Young v. Three for One Oil Royalties (1934) 1 Cal.2d 639, 647-648 (court declined to rule on matters unnecessary to resolving the case before the court, as to do so would be to provide "dictum pure and simple"). E. Remedy. Let a writ of mandate issue forthwith, directing respondent the County of San Diego to set aside its February 14, 2018 approvals of the CAP and the SEIR [specifically items 1-8 in the County's February 14, 2018 Minute Order (AR 80-28788-89)]. During the December 21 hearing, the County offered a severance argument based on the highlighted portions of Public Resources Code section 21168.9: (a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following: (1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part. (2) If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division. (3) A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division. (b) Any order pursuant to subdivision (a) shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. However, the order shall be limited to that portion of a determination, finding, or decision or the specific project activity or activities found to be in noncompliance only if a court finds that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with this division, and (3) the court has not found the remainder of the project to be in noncompliance with this division. The trial court shall retain jurisdiction over the public agency's proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division. (c) Nothing in this section authorizes a court to direct any public agency to exercise its discretion in any particular way. Except as expressly provided in this section, nothing in this section is intended to limit the equitable powers of the court. The court finds that M-GHG-1, which allows essentially unlimited increases in GHG within the County by allowing developers to purchase offsets from anywhere in the world, is an essential element (if not the DATE: 12/24/2018 MINUTE ORDER Page 16 DEPT: Calendar No. ATTACHMENT A 028 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] centerpiece) of the 2018 CAP (see e.g., AR 1340:58761 that states the 2018 CAP expressly incorporates M-GHG-1). The court therefore finds that the offset purchase element to be not severable from other project activities, and declines to adopt the County's severance proposal. A permanent injunction is also issued essentially in accordance with the preliminary injunction granted on September 14, 2018 (ROA 323 in 2012 case). The injunction does not prohibit all development projects in the County; it affects only those projects reliant on the use of the legally inadequate program set forth in M-GHG-1. While the injunction is in place, the County may consider any project that does not depend on the use of the legally insufficient M-GHG-1 program. The bonds previously imposed to support the preliminary injunction are exonerated. As they did last September, petitioners asked the court to extend the injunctive relief to reach projects in which the development approvals used mitigation measures they perceive to be "substantially similar" to M-GHG-1. This the court declined (and declines) to do. The first reason is philosophical: the power to grant injunctions is an important and significant one, and if it is to remain so, it is important that injunctions be granted judiciously and carefully. Second, the court has been and remains concerned that any injunction not violate the due process rights of project applicants not before the court. Petitioners expressed frustration that other tribunals will now have to adjudicate whether the County has, in adopting mitigation measures in individual development projects, essentially used the legally insufficient M-GHG-1 program but called it something else. The court understands this frustration. Certainly it would be more efficient to simply bar the any out of county carbon credit mechanism, regardless of moniker. But efficiency must yield to due process, and the court has complete confidence in the judges to whom the individual cases have been assigned to sort out, with the participation of the affected project proponent, whether the GHG mitigation measure in any individual instance was a wolf in sheep's clothing. The court has signed peremptory writs of mandate and permanent injunction orders consistent with the oregoing. To the extent it is not obvious from the foregoing, the County's request to discharge the remaining elements of the May 4, 2015 Supplemental Writ of Mandate in the 2012 Sierra Club case is now denied, inasmuch as the court has now determined that the 2018 CAP does not comply with CEQA. Finally, the County must file a return to comply with the mandate of the Court of Appeal in Case No. 2016-00037402 not later than January 10, 2019. A status conference is hereby set in that case for February 1, 2019 so that the court may monitor the timeliness and adequacy of that return. IT IS SO ORDERED this 24th day of December, 2018. ------- -_-----------------_-- decision to deny the AG's tardy application for leave to file amicus briefing. ROA 62. As the court has observed, itis particularly true in CEQA cases that because the trial courts are not final, it is important that they be prompt. Tod Jal Judge Timothy Taylor DATE: 12/24/2018 MINUTE ORDER Page 17 DEPT: Calendar No. ATTACHMENT A 029 ATTACHMENT B SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL MINUTE ORDER DATE: 01/09/2019 TIME: 03:17:00 PM DEPT: C-66 JUDICIAL OFFICER PRESIDING: Kenneth J Medel CLERK: Grachelle Mendoza REPORTER/ERM: BAILIFF/COURT ATTENDANT: CASE NO: 37-2018-00056442-CU-WM-CTL CASE INIT.DATE: 11/06/2018 CASE TITLE: Molloy vs Vu [IMAGED] CASE CATEGORY: Civil - Unlimited CASE TYPE: Writ of Mandate APPEARANCES The Court, having taken the above-entitled matter under submission on 12/10/2018 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: SEE ATTACHED STATEMENT OF DECISION Unset q Woe) Judge Kenneth J Medel DATE: 01/09/2019 MINUTE ORDER Page 1 Calendar No. DEPT: C-66 ATTACHMENT B 030 WOW 00 3 ON wn hs W N BR O N R O N N N R O N N N m e e e e d p d e k p d p d p t c o ~~ A A wn Ss W N = O W e N N hs W N =e Oo SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION SCOTT MOLLOY, Plaintiff(s), Vv. MICHAEL VU, in his capacity as County’s Registrar of Voters; SAN DIEGO COUNTY BOARD OF SUPERVISORS; and DOES 1 to 25, Inclusive, Defendant(s). Case No.37-2018-00056442-CU-WM-CTL STATEMENT OF DECISION Judge: Hon. Kenneth J. Medel Dept: 66 San Diego Petitioner Scott Molloy’s Petition for Writ of Mandate came before this Court on December 10, 2018 at 9:00 a.m. Counsel Brandley W. Hertz, Mark Dillon, Christopher W. Garrett and David P. Hubbard appeared on behalf of the Petitioner. Counsel Timothy M. Barry appeared on behalf of the Respondent. Counsel Taiga Takahashi and Francis Eason appeared on behalf of the Real Parties In Interest. Prior to the hearing, the Court issued a Tentative Statement of Decision. After argument on the petition, the Court took the matter under submission and issues this Final Statement of Decision. 111 111 111 STATEMENT OF DECISION ATTACHMENT B 031 10 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Preliminary Matters The Court has read and considered the Evidentiary Objections to the Declaration of Scott Malloy and Supplemental Evidentiary Objections filed by Real Parties in Interest. The Court OVERRULES the objections. The Court GRANTS Real Parties’ Request for Judicial Notice as Requested. Background On September 26, 2018, the County Board of Supervisors held a public hearing to consider a project known as Newland Sierra, a mixed-use community on a 1985 -acre site located in unincorporated San Diego County, west of Interstate 15. Once completed, the project would consist of 2135 homes, retail uses, a new school site, and public parks, among other features. At the hearing, the Board unanimously approved all aspects of the project. Approving the project involved multiple pen strokes - specific legislative actions necessary for approval of the project, including General Plan Amendment (GPA Resolution no. 18-141), a Specific Plan Resolution, and a Rezone Ordinance. The agenda for the Board’s September meeting described the actions to be taken: “Newland Sierra General Plan Amendment, Specific Plan, Zone Reclassification, Resource Protective Ordinance Amendment, and Tentative Map, Located in the North County Metropolitan Subregional Plan Area and the Bonsall Community Plan Area.” The GPA Resolution No. 18-141 was an “amendment to the Land Use Element, Mobility Element, North County Metropolitan Subregional Plan, Bonsall Land Use Map, and 1-15 Corridor Subregional Plan. The Board specifically made a finding that the GPA is consistent with the San Diego County General Plan, the 1-15 Corridor Subregional Plan, the North County Metropolitan Subregional Plan and the Bonsall Community Plan. The Board also adopted the Newland Sierra Specific Plan (Resolution 18-142), which contained the specific goals, policies, land use planning, development standards and design guidelines for the proposed development. The Board also adopted a Rezone Ordinance (No. 10565). In response to the Board’s GPA approval, the Committee Against Newland Sierra and Bad Development, a coalition of County residents and public interest groups, gathered over 117,000 2- STATEMENT OF DECISION ATTACHMENT B 032 Oo 0 N N Un BR W N DN ) DN ) N N N N N N O N e m e m mm m e m e m p d pe d p d pe d ee 0 N N R A W ND = O W O e N N R W ND = o signatures on a petition to refer the GPA Resolution No. 141 to a vote. They submitted their petition to the Registrar on October 17, 2018. Subsequent to the hearing on this petition for writ of mandamus, on December 11, 2108, the Board was presented with the referendum petition and voted 4-0 to place the referendum on the ballot at the next regular election to be held on March 3, 2020.! At issue in this writ is the validity of the referendum petition. Petitioner Scott Molloy seeks to invalidate the referendum petition. Petitioner makes four specific arguments, seeking a judicial determination that the referendum petition is insufficient as a matter of law. Alleged Violation of Elections Code 9147(b) and the “full text requirement” Petitioner argues that the referendum petition violates the requirement in Elections Code section 9147(b) that the petition contain the “full text” of the ordinance being challenged. Elections Code Section 9147 establishes the required contents of a referendum petition challenging a county ordinance or resolution. It provides: “Each section of the referendum petition shall contain the text of the ordinance or the portion of the ordinance which is the subject of the referendum.” Land Use Element Descriptions Petitioner first argues that the referendum petition omits the Land Use Element descriptions of the General Plan Land Use Designations that the General Plan Amendment changed and that were explicitly adopted by reference in the North County Metropolitan Subregional Plan. The North County Metropolitan Subregional Plan (Subregional Plan) - which the GPA amended and which refers explicitly to the Newland Specific Plan - adopted these new Land Use Designation descriptions “by reference.” For this reason, petitioner argues the “full text” of the new Land Use Designation descriptions should have been set forth in the referendum petition and prospective voters were not informed as to the GPA’s land use changes to the Newland Sierra Specific Plan area. 1 The Petition seeks to enjoin the Registrar of Votes from verifying signatures on the referendum petition and order that the Board of Supervisors not act on the petition. Given the action taken by the Board, this aspect of the petition is moot. However, the petition also seeks to have the Court declare the referendum insufficient as a matter of law. The Court deems the request to include a request to invalidate the Board’s approval of the referendum petition on December 11,2018. -3- STATEMENT OF DECISION ATTACHMENT B 033 OW 0 NN & nn A w NN N O N N O N O N N N O N O N RN = e m em e m em p m em t e s e m LW 3 O N Wn B A W N = O Y O e N Y i BR W N = Oo Exhibit D to the GPA Resolution at page 349 indicates that “Land use Designations contained in the Land Use Element are hereby adopted by reference.” This adoption occurred in 2011. The “full text” of a Resolution would include documents incorporated by reference in certain circumstances. Cases indicate that referenced documents would be necessary, for example, where the purpose of the measure was to enact that specific extrinsic document into law (Wilson v. County of Napa (2017) 9 Cal. App.5™ 178, 186. Where the “central purpose of the ordinance is to adopt and enact into law the contents of an incorporated or attached document, a referendum petition on the ordinance does not satisfy the Elections Code unless it includes a copy of that document. “ Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal. App.4™ 846, 856. The question is whether voters were being asked to sign a petition that did not include the substance of the law that would go into effect if the initiative were passed. Lin v. City of Pleasanton, 175 Cal. App. 4th 1143, 418 citing Mervyn's v. Reyes (1998) 69 Cal.App.4th 93. Here, the Land Use Designation descriptions are in an extrinsic document to the General Plan’s land use Element. The General Plan Amendment Resolution does not adopt or change the Land Use Descriptions referenced. Therefore, the land use designations do not need to be included in referendum petition. Specific Plan Petitioner also argues that the referendum petition violates the “full text” requirement because it failed to include or attach the Newland Sierra Specific Plan. The GPA Resolution amends the Subregional Plan to add the Newland Sierra Specific Plan. The GPA Resolution also references the Specific Plan, its project objectives, and the documents needed to implement the Specific Plan. The referendum petition, however, omits the Specific Plan text. Where the document is neither expressly incorporated by reference nor being enacted into law, the document is not required to be attached to the petition. The petition did not need to include the development plan because that document was only referenced in the ordinance materials - it was not attached or “expressly incorporated by reference” into what was being adopted by the -4- STATEMENT OF DECISION ATTACHMENT B 034 OO 0 N N BR W N ) B O N RN RN O N N N N me e m a e e e d p d p e d pe d ed ee s 0 NN S N Wn BR W N O W O m N Y Y B R A W N = O legislative body. Lin v. City of Pleasanton (2009) 176 Cal. App.4th 408, 414. The Failure to Include Challenge to the Rezone Ordinance and Specific Plan Resolution As set forth above, when the Respondent and Defendant County Board of Supervisors (Board) adopted the GPA, it also approved the Newland Sierra Rezone Ordinance and Specific Plan Resolution. The Rezone Ordinance amends the zoning for the Newland Sierra Specific Plan area to be consistent with the GPA. According to Petitioner, the Referendum Petition did not include the Rezone Ordinance or Specific Plan Resolution, and thus they prevented prospective voters from understanding the important relationship among the three connected legislative actions. Petitioner argues that because all of these enactments were “associated” applications, they must be included in any challenge. Elections Code section 9147 provides that “[e]ach section of the referendum petition shall contain the title and text of the ordinance or portion of the ordinance which is the subject of the referendum.” Thus, the petition in this case states what is being challenged: “the County Board of Supervisors’ adoption of the provisions of General Plan Amendment PDS2015- GPA-15-001 amending the San Diego County General Plan, the text of which Resolution appears herein.” There is no requirement that the petition contain all “associated” approvals. The Heading of Petition According to Petitioner, the heading of the referendum petition is inaccurate and confusing. The heading states that the referendum challenges the County Board of Supervisor’s approval of the GPA “to allow for [the] Newland Sierra Development Project.” However, Petitioner argues that the GPA alone does not “allow” for the “Newland Sierra Development Project.” The GPA must be implemented through the associated and concurrently approved Rezone and Specific Plan. Only when implemented together will the three legislative actions “allow for [the] Newland Sierra Development Project.” Elections Code § 9011 provides: “Across the top of each page after the first page of every referendum petition or section of a referendum petition, which is prepared and circulated, there shall be printed in 18-point gothic type a short title, in 20 words or less, showing the nature of the petition and the subject to which it relates™].) Under state referendum law, petitions are required to -5- STATEMENT OF DECISION ATTACHMENT B 035 OW 00 3 a Ln bs WwW N e DN N N N DN N N N N r m r m p e p e mm fe m fe m fe m fe m RR 3 A hn BA W N = D YW N Y BR W N = D include a “short title” to better ensure that people signing the petition are informed as to the general subject matter of the referendum. Here, the heading states that the referendum challenges the County Board of Supervisor’s approval of the GPA “to allow for [the] Newland Sierra Development Project.” The point in evaluating the title is whether it is accurate and informs the voter. The purpose of the “short title” is to ensure people signing the petition are informed as to the general subject matter of the referendum. Itis hard to see how the title in this referendum is “misleading” as petitioner alleges. That the GPA Resolution would “allow” for the project appears to be entirely ar Without the GPA, there would be no Specific Plan and no re-zoning. Alleged Inconsistencies Petitioner argues that the referendum petition is invalid because the referendum, if successful, would create inconsistencies between the County’s General Plan and the Newland Sierra Rezone and the Specific Plan. The Board concurrently approved the Newland Sierra project’s GPA and associated Rezone and Specific Plan legislative actions, consistent with state law. (Gov. Code, § 65862.) Real Parties, however, have sought to repeal the GPA only, leaving the Rezone and Specific Plan in place as adopted. According to Petitioner, this triggers a violation of the state’s Planning and Zoning Law. (Gov. Code, §§ 65860, 65862.) The General Plan Amendment never became effective because of the timely submission on October 17, 2018 of the Referendum Petition, which suspends the Resolution until it is either rescinded by the Board or approved by the voters at election. (Further, the Board has acted since the filing of this petition to place the referendum on the ballot.) The Board’s Specific Plan and Rezone approvals were expressly conditioned on the GPA being effective. (C5:52-53, 5-9:352-53, 5-10:644 [Garrett Dec. §14-15, Ex. 5-9 and 5- 10] [RIN #8].) Thus, there is no inconsistency. But even if there was an inconsistency, it would not invalidate the referendum. “[A] referendum is not impermissible-and its result is not null-simply because, if approved by the voters, it forces some change to a local government action taken to align zoning with the general plan currently in force.” (City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, 1080.) 111 5- STATEMENT OF DECISION ATTACHMENT B 036 oO 0 3 O N Wn pA W N ) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -26 27 28 Misleading Tactics by Signature Gatherers Petitioner argues that signature gatherers used false, misleading, and fraudulent tactics to deceive potential voters into signing the referendum petition, in violation of Elections Code section 18600. In this case, at best, the evidence is that out of 117,000 signatures, the declaration of Scott Molloy summarizes five instances of misrepresentations by signature gatherers. (See pages 8-10) He also attaches audio of various misrepresentations. Misrepresentations included statements such as building on native burial grounds, opinions that the homes would be “million dollar homes” and that the approval would “tear down affordable housing.” Even assuming all of these events occurred, they are opinions rendered by signature collectors. The number is small - five out of 117,000. Even if the Court accepts the evidence as true, the Court lacks sufficient evidence to conclude a pattern of misconduct warranting voiding the referendum process. The challenge is alsa legally tenuous. The case relied upon petitioner involves misleading information on the face of the actual petition. San Francisco Forty-Niners v. Nishioka (1999) 75 Cal. App.4th 637. The Court is not aware of any case overturning a petition based upon conduct of signature gatherers alone. The Court agrees that this would raise a significant free speech question. 2 Conclusion The Court finds that the Referendum Petition Election meets the Code’s “full text requirement” for the reasons stated above. The Court also does not find that the Referendum Petition created inconsistences between the General Plan Amendment and other simultaneous approvals before the Board. Nor can the Court find that the petition is invalid because of material STE Eesetiofs by signature gatherers. Even if there was some “technical” violation, one is hard pressed to see how this would mislead any voter. The Referendum Petition referred to the GPA for the Newland Sierra project. It provided specific information about the project, including the specific location, acreages, permitted land uses and designations, density, environmental measures, and the touted benefits of the development if the GPA was approved. (See C5-13:798, 825-26 [Referendum petition clearly shows redline changes to the General Plan], 830 & 860 [current vs. amended land use map for 7- STATEMENT OF DECISION ATTACHMENT B 037 w o area).) This information was sufficient given the general purposes of the Election Code requirements to “reduce confusion as to the contents of referendum petitions in the minds of electors” and to provide accurate information for the voters to make an informed decision. See Billig v. Voges (1990) 223 Cal. App.3d 962, 966. Accordingly, the Petition for Writ of Mandate is DENIED. Dated: | A dq ; 1 7 KENNETH J. MEDEL Judge of the Superior Court © °° 9 a N un Bb 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- STATEMENT OF DECISION ATTACHMENT B 038 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LATHAM & WATKINS LLP Christopher Garrett (Bar No. 100764) christopher.garrett@lw.com Taiga Takahashi (Bar. No. 281335) taiga.takahashi@lw.com Samantha K. Seikkula (Bar. No. 307827) samantha.seikkula@lw.com 12670 High Bluff Drive San Diego, California 92130 Telephone: (858) 523-5400 Facsimile: (858) 523-5450 Attorneys for Petitioners and Plaintiffs CALIFORNIA NATIVE PLANT SOCIETY et al. Case No. 37-2018-00054559-CU-TT-CTL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION CALIFORNIA NATIVE PLANT SOCIETY, CASE NO. 37-2018-00054559-CU-TT-CTL HIDDEN VALLEY ZEN CENTER, FRIENDS OF HIDDEN VALLEY ZEN CENTER, Notices of Related Cases Filed For: BUENA CREEK ACTION GROUP, DEER No. 37-2012-00101054-CU-TT-CTL SPRING OAKS ACTION GROUP, TWIN No. 37-2016-00037402-CU-TT-CTL OAKS VALLEY ROAD ACTION GROUP, No. 37-2018-00014081-CU-TT-CTL GOLDEN DOOR PROPERTIES, LLC, LISA No. 37-2018-00013324-CU-TT-CTL AMANTEA, MICHAEL AMANTEA, No. 37-2018-00030460-CU-TT-CTL DARRYL C. BENTLEY, CAROL BRYSON, No. 37-2018-00054312-CU-TT-CTL PAMELA J. DINIZ, STANLEY DINIZ, No. 37-2018-00056442-CU-TT-CTL FRANCIS J. EASON, REBECCA ENGEL, THOMAS ENGEL, DONALD J. FOLSE, Honorable Richard S. Whitney, Dept. C68 ELSIE E. GREGORY, GEORGEANN HIGGINS, CLAUDIA HUNSAKER, MICHAEL HUNSAKER, KAREN MAY, BJ ORDER MCINTIRE, MICHAEL MCINTIRE, CINDI PETERSON, ANA C. ROSVALL, JAMES T. [CALIFORNIA ENVIRONMENTAL ROSVALL, KATHERINE B. ROSVALL, QUALITY ACT] LEIGH RAYNER, JOANNE RIZZA, DARLA KENNEDY, and WILLIAM R. YOUNG, [IMAGED FILE] Petitioners and Plaintiffs, Action filed: October 26, 2018 V. COUNTY OF SAN DIEGO, and DOES 1-50, inclusive, Respondents and Defendants, NEWLAND SIERRA, LLC, RITA BRANDIN, and DOES 51-100, inclusive, Real Parties in Interest. [PROPOSED] CASE MANAGEMENT CASE NO. 37-2018-00054559-CU- CASE MANAGEMENT I oO I-CI RDE L R 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Having considered the papers before the Court, the arguments of counsel, and the applicable law; and good cause appearing, the Court hereby makes the following order. ORDER The schedule for proceeding in the Action is set as follows: I. Administrative record (“Record”) a. CNPS Petitioners’ deadline to provide a proposed Record to Real Parties and the County for certification shall be 120 days after the completion of production of Record documents by the County, Real Party Newland Sierra, LLC, or any other third party from which documents have been requested under the California Public Records Act or the Civil Discovery Act, as applicable, including the time necessary for the Parties to meet and confer on the same and the resolution of any applicable motions or disputes regarding compliance with the California Public Records Act or the Civil Discovery Act or after the County has provided written notice that it has provided all documents under the California Public Records Act requests, whichever is later. b. CNPS Petitioners shall lodge the proposed Record with the Court within 15 days after providing the County with the proposed Record. c. The County shall certify the Record within 120 days after being provided the proposed Record from CNPS Petitioners. d. Until the Record is certified and complete, the County, the County’s consultants and employees, Real Party (and related entities), and Real Party’s consultants and representatives, shall retain all documents and communications relating to the Project to ensure they will not be destroyed, until the Court determines that the Record is complete. & The time limits set forth in this Paragraph 1 may be extended by stipulation of the parties or further court order. E The Court shall set a further status conference hearing for August 2019 to review the status of the administrative record’s preparation. 2 CASE NO. 37-2018-00054559-CU-TT-CT CASE MANAGEMENT ORDE L R 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Upon receipt of the proposed Record, the Action will be stayed, with the exception of resolving any disputes involving the Record, until either (i) the certification of the March 3, 2020 elections results or (ii) the final decision on the merits in Case No. 37-2018- 00014081-CU-TT-CTL, whichever event occurs later. 3. The Parties shall notify the Court upon the certification of election results or the final decision on the merits and should be prepared to participate in a status conference regarding either event. IT IS SO ORDERED. Dated: ,2019 By Honorable Richard S. Whitney JUDGE OF THE SUPERIOR COURT CASE NO. 37-2018-00054559-CU-TT-CT CASE MANAGEMENT ORDE L R