Brief OpeningCal. Super. - 3rd Dist.November 27, 2019O o D H Y N D H Wn B P W w NY N y N Y N O N O N O N O - O w R e e B S N a a R s 8& 8 BP & & GC e d a d B a a r o P S s DONALD B. MOONEY (SBN 153721) Law Offices of Donald B. Mooney 417 Mace Boulevard, Suite J-334 Davis, California 95618 Telephone: 530-758-2377 Facsimile: 530-758-7169 Attorneys for Petitioner Stop Lincoln Twelve Bridges Hotel FILED SUPERIOR COURT OF CALIFORNIA COUNTY OF PLACER APR 27 2020 GP> JAKE CHATTERS EXECUTIVE OFFICER & CLERK By: C. Valian-Brown, Deputy IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER STOP LINCOLN TWELVE BRIDGES HOTEL, an unincorporated association; Petitioner V. CITY OF LINCOLN; CITY COUNCIL OF THE CITY OF LINCOLN; and DOES | to 20, Respondents JG LAND & INVESTMENT, LLC., a Limited Liability Corporation; and DOES 21-40 e e O S OS OS Case No. SCV0044111 PETITIONER’S OPENING BRIEF Date: July 10,2020 Time: 8:30 am Dept.: 42 Judge: The Hon. Charles D. Wachob Action Filed: November 27, 2019 Y N D n N n £f oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS L. INTRODUCTION ssssssssnssssarsusisensarensonsosoneersnvsventonsnrsuenuanssaceusnunnentsustocsewusscoxs IT. BACKGROUND FACTS Wu. ccccccscssessssessesscsessesscsessssrsusacsusasatsusacaressavereaeeees A. The Project and Project Site ......cccccccsesesssesessscseseststsesscsrscstesecaes B. Approval Of the Projet sscvusssacsaessnscsesascscesevernessveaneenenravenenenensususeen HT. LEGAL ARGUMENT... ccccccesesesescssescsscsesesscscscssscesscatsversesacaracansesacaes A. The City’s Approval of the Project Violated the California Environmental Quality Act .....c.c.cccccsessssssssesesesesesesescscscscscsesserereceeees 1. The California Environmental Quality Act... 2. Standard of Review Under the California Environmental Quality Acto.....ccecssssssesssesessessessssssscsescsees 3. The Project is Not Exempt from CEQA Under Public Resources Code Section 21083.3 or CEQA Guidelines section 15183 .......cceccscsesesesesessssesesesessssscsescseees 4. The Project is Inconsistent with the General Plan.............. 3: The City Failed to Make the Required Findings Regarding Mitigation Measures ........cccesssesesessessseseseseeeescseseseseescseseees EB. The Project Violates Lincoln Municipal Code ..........c.ccccseeeeeeeee L. Standard Of REVICW wo... eeeesesesesesesssesseseecseseeeeseseseeseecscsces 2. The Project is Not Substantially Similar in Characteristic To a Use or Uses Within the District ............ccceeseseseeeesees 3. The use will be detrimental to the health, safety, peace and morals, comfort and general welfare of persons residing or working in the neighborhood or injurious to property and improvements in the neighborhood or to the general welfare of the City .....cccccseseseseseseeeeseseseeees Gs Approval of the Project is Inconsistent with the General Plan....... l. State Planning and Zoning Law ...........cccesesseseseeseseeeeseeeees 2 Standard of Review and Planning and Zoning Law............ 3. The Project is Inconsistent with the General Plan Leattd Use RIGO srcssnsxssccccaxarcissuscasesadacesncnaeeeneennnenereonsnesseees TV. CONCLUSION (ici eeesseseesssesesesesesescsenseseseseseseseeseseseseseeecseatseseeees PETITIONER’S OPENING BRIEF 10 16 17 16 17 18 19 21 21 23 O o O o Y D Nn fF 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Page(s) Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal App 4th 1184... cceccccsesessssscsesesesssseeeees 14 Bowman v. City of Berkeley (2004) 122 Cal App 4th 572... ecccccccsesssssscsesesesssssssessseeseeceeees 14 Chaparral Greens v. City of Chula Vista (1996) 50 Cal App 4th 1134... ccccccscseseesssscscerecseeeeceesees 15 Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151... 14 Citizens of Goleta Valley v. Board of Supervisors (1990) 52, Cal Od S52 sxsnssansissiscsissnincovasensarereeneeraesnpaynymrguaseenensesesees 21 City of Redlands v. County of San Bernardino (2002) 96 Cal App-Ath 398 ......cccsssscscssssesesssoroscsssssssssensssesssesesesens 10 City of Santa Ana v. City of Garden Grove (1979) 100 Cal App.3d 521 woeccccecccessssesesesesssssssscscscscsessssecaeevers 6 Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal App 4th 985 oo. ccccccccsesssssssssesesescsesesesesesessescscsens 22 DaVita v. County of Napa (1995) (1995) 9 Cal.3d 763 o.eeeeccesesesesssesssssssessseseesssesesescscscscsesescaesceceees 22 deBottari v. City Council (1985) 171 Cal App.3d 1204... ccccccsssesesesesesesesescsessessscscseeess 22 Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal App 4th 777 .....ccccccsccsescscsessssesescsssscscsscscsesscseees 22,25 Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (1998) 62 Cal App 4th 1332... cecccesesssseseseseseseseseseseescseseseeees 21,22,23,25 Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal App 4th 807 .....cccccccccsssssssescsesesesesescsssssescscsceees 22 Gentry v. City of Murrieta (1995) 36 Cal App 4th 1359 oo cccccescesesesesseseseseesessssescesseseess 10, 16 Joshua Tree Downtown Business Alliance v. County of San Bernardino (2076) 1 Cal Appt 677 scxcsxesconsscxsasasncasuvscacesaxensshshintsisdenaonenneornes 15 Laurel Heights Improvement Ass’n v. Regents of the Univ. of California (1988) 47 Cal.3d 376 ooeeeececceseessseseseeeeseseseeeesesesesecscseeecscseesceeeaees Leavitt v. County of Madera (2004) 123 Cal. App.4th 1502... eceesseeesetesseteesessesesseessenees 11 PETITIONER’S OPENING BRIEF £ C o C O N Y D W WN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lesher Communications, Inc. v. City of Walnut (1950) 52 Cal 3d 531 scsniss..ceccensnceeroenveveseeeyaeseeneyonswnennsneneseseereacings Mejia v. City of Los Angeles (2005) 130 Cal App 4th 322 0... cceccececscsescsssssssssssssscscscssssteesens Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal 4th 105 voce ccc cccccssccsscssscssccsssccsessssseeseseeseees Naraghi Lakes Neighborhood Preservation Association v. City of Modesto (ZOTS) 1 Cal App Sti. 9 escsssnenssvasxssnstsitnaneunneemanenemenrnreronencvensaneseeensns Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal App 4th 342 oo ceccssesesesesessssessssesesescssssseseseaes No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 86 oc cccsessssssssesesessssescseseseescsesesscscscscssescaeees 21,22 14 8,9 24 22 10, 12 Ocean View Estates Homeowners Association v. Montecito Water District (2004) 116 Cal App.396 ...csssssssssssssssssssssssssssssssssssssssssesesessesssssen Orinda Ass’n v. Board of Supervisors (1986) 182 Cal App.3d 1145 oo cccecscssseessesescsescsesessssssesesesees Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal App4th 1552.00. cccccesessesessesesseseescseeseseeseeees Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal App.4 210... ececcccseessesessesessessescsecsceseseeseeeeees Pocket Protectors v. City of Sacramento (2004) 124 Cal App. 4th 903 oo. ceecceessseetsesesesesesesesssseseseseseeees San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal App.3d 61 occ ccceeesssesessesessesesscseeseseeseeseeesees Sequoyah Hills Homeowners Assn v. City of Oakland (1993) 23 Cal App 4th 704 oo. ccecseeceeseeeseeseseesecseseeesseseeseeaes Sundstrom v. County of Mendocino (1982) 202 Cal App.3d 296.0... cescesesesssesessseseeseseeeseseseeseseeaees Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 woo. cccccseeseeseesscsscesecseesseeseesseeseseeeesseses Wal-Mart Stores, Inc. v. City of Turlock (2006) 15% Cal ADD AM 292 ecenccsvasncersenvenecesunsonmmunmemmmroamanscaseneeaes Western States Petroleum v. Superior Court (1995) 9 Cal Ath 559 oe cccecsceseeseeseeeceeceeeseeseeaeeaeeaeeseeeeeeeeeeees PETITIONER’S OPENING BRIEF 14 15 22 14, 15 225 28 17 10,11, 12 17 Y N D n N n ff Co 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 Codes and Statutes Code of Civil Procedure 1094.5 occ ccccccccccssscesssecesscecescecesecesscccsscecssesessecesecesssecesssceseseseses 1094.5(D) uu... cccccccccsscccesseccsssccsscccsececssecessecetseceeseccessseeesssecessueceses Government Code FOO ansesnseeseeusnraseaneaneaseesenssanesnseuenaneuntenUMsRneextoreaksicaReT CROSS SENG EHIAN QLOGL ...eeeeccecesssesccsessssesesescseseseseseseseseseaeseseeeseaseeeeeseseseseseeseeeeaesees ZLOBO(€)(1) oe eeeeecccsesesesssesssesseseeeeeseseseseeeseseseseseseseseseeesesesesseeeees POS OC) (2) scaxeneeswsensnounexnearsanvnssnssas0s sabcisasdasennseoneneenanavacnensearneneeneer ZLOB8O. ee eeeecscscsscseseseseseseesesseeseeensesseeseseeeseseseeeseseaeeeeeeeeseeeeeeeeees 210833 woeeeeccscsccscsscscsscscsescscsesessescsesesesseseseseeeeseseeeeeeaeseeseaeeeeaeeeeaees Title 14 California Code of Regulation (“CEQA Guidelines’) T5063 (f)(2) ..eececesescssesescscscsescseseseseeseseeeseenetseeeeeseseseaseeaeeeeeaeaeeees LSUGS(DS) sxcesancssesenucereroerecmmnamnsemnemntnranccrmsmmnmnansessaees LSOGAVB) sncassassncnossncxscenmmasmnmesnennrvcaniansnsRannin KimNs e SNOIITEATS 15070(a) oo... eeeecesseseesessessesesscseeecscsecsesecscseessseeacseeseseesceasseeaseaeeeeeeees LSO7O(D) oo. eeeeseecseesesesecscsesecscsesesecscsesessescscseseseeecsesesseseeeseseeeeseeaees L525 G) sccstnarcnsnoxsonscersusmmaninsesenmeersncnapnaimanmananienrurnnaneaatss 151 BS cscavnsscavsnsnnesensxoxanussmsenncscuseensxenvesmnnaaannnnaasnn RISE RANRTRRERNT 15 183(a) .oeeeecscccsesscsessescsessescsesesscscscsesecsescssseessecseseseeseseeseseeesseseeas TS 183 (A)L)(C) wees ecccsecssssesessesesecsesecseseessseeecseseeseeaseecseeaeeaseeeseeaee 15183 (©) sseccassscnsacencancanensemensansasannmcemnnasnsaneiann tas ua sesh mane TRI 15384) .ccecececcsscseescsscseescsscsesscscscsesscssseessssescsecseseeseeecseessesesasaeeae Lincoln Municipal Code DS GO nionrininnnnnmannonnnnonandinnnnsnannnsnsiviinainaneniianisinwnnnsinelsuhnnsisndtaSadada sats 15.32.2500 oon. ceesescsccscessecssesesecsssecscescsessescecssseeasesesseesssesseeseaseaeasegs PETITIONER’S OPENING BRIEF V7 22 6, 21 2d 22 10, 14 10 8 10, 15, 16 16 16 16 15 10, 11,12, 15, 16 11 16 16 10 6, 16, 18, 19, 26 17 n y D n WN Co 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Petitioner Stop Lincoln Twelve Bridges Hotel challenges Respondents’ City of Lincoln and City Council of the City of Lincoln’s October 22, 2019 approval of La Quinta Inns & Suites - Conditional Use Permit and Specific Development Plan and Development Permit (“Project”). The Project is the construction and operation of a four story, 104 room 56,914 square foot La Quinta Inn & Suites and associated site improvements on property within the Main Village area of the Twelve Bridges development. Petitioner contends that Respondents’ approvals for the Project violate the California Environmental Quality Act (“CEQA”), Public Resources Code section 21000 er seq., City of Lincoln Municipal Code section 18.56.010 and Government Code §§ 65300 et seq. As discussed below, the City improperly relied on CEQA Guidelines section 15183 as there are peculiar impacts associated with building a four-story hotel at the approved location. The size and mass of the hotel will impact aesthetic views for residential projects that have already been approved and constructed and in the process of being constructed. The City’s required findings to support the approval of the conditional use permit is not supported by substantial evidence. As demonstrated in the record, the hotel will be four stories and significantly taller than other structures in the vicinity and quite visible from nearby neighborhoods. A four story building, as well as a hotel is not similar in characteristic to the uses currently within the district. The Project is inconsistent the General Plan’s mandatory obligations regarding Floor Area Ratio (“FAR”) requirements for buildings at this location. Instead the City relied upon the Development Agreement’s setback requirements for the Twelve Bridges development. The City, however, ignores the General Plan’s mandatory obligations regarding FAR, but makes no effort to reconcile the General Plan’s FAR requirements with the development agreement. ' The CEQA Guidelines (the ““Guidelines”) are found at California Code of Regulations, title 14, section 15000 et seg. Courts have found the Guidelines to be binding on public agencies. (See, e.g., City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 528-29.) The Guidelines must be interpreted “so as to afford the fullest possible protection to the environment within the reasonable scope of their language.” (San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 74.) PETITIONER’S OPENING BRIEF 6 | | | | 10 11 12 13 14 15 16 17 18 19 20 21 ra 23 24 25 26 27 28 II. BACKGROUND FACTS | A. THE PROJECT AND PROJECT SITE | The Project entails the construction of a four story, 104 room, 56,914 square foot La | Quinta Inns & Suites and associated site improvements on vacant property within the Main | Village area of Twelve Bridges. (AR 2,4.) The property is located directly north of the existing! Terra Cotta Village (currently partially constructed with two buildings and site improvements), | on the east side of Colonnade Drive, and south of the future extension of Red Rock Road. | (Assessor’s Parcel Number 329-010-068.) (AR 2263.) | The property is bounded by General Commercial (GC-1) zoned properties to the north, | east, and south (Terra Cotta Village) and Employment Center (EC) zoned property to the west. | (AR 2264-2265.) The site is 3.1 acres in size. (AR 2265.) The La Quinta Inn & Suites and | associated improvements are proposed on 1.73 acres, while the remainder of the property isto | be set aside for review of a building at a later date. (/d.) The La Quinta is proposed be located | in the middle part of the property (on an east-west axis) and approximately 70-feet west of the | eastern property line. (/d.) The building elevations will be visible on all sides. (/d.) | B. APPROVAL OF THE PROJECT | On August 21, 2019 the Planning Commission voted 5-2 to approve Resolution No. 2019- | 40 approving a Conditional Use Permit and Resolution No. 2019-39 approving the Specific | Development Plan and Development Permit for the operation of La Quinta Inns & Suites. (AR | 007-010; 3085-3086; 3303-3307.) As part of the approval, the Planning Commission held that | the Project is categorically exempt from the environmental review requirements of the California’ Environmental Quality Act, Public Resources Code, section 21000 et seq. per CEQA Guidelines | section 15183. (AR 3085-3086; 3303-3307.) | On August 30, 2019, Petitioner timely filed an appeal of the Planning Commission’s | approval of the Project. (AR 4034-4037.) Petitioner’s appeal challenged the Planning | Commission’s determination that the Project is exempt from CEQA under CEQA Guidelines, | section 15183; the Planning Commission’s resolution approving the Specific Development Plan | and Development Permit (Design Review); and the Planning Commission’s resolution approving| PETITIONER’S OPENING BRIEF 7 Y N D n N n £f & oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Conditional Use Permit for the operation of the La Quinta Inn & Suites. Cd.) | On October 22, 2019, the City Council adopted Resolution 2019-242 denying Petitioner’s | appeal (AR 005) and upholding the Planning Commission’s Resolution No. 2019-40 and Resolution No. 2019-39. (AR 007-10; 011-22; 2437-2440; 2955-2956.) The City Council also | upheld the Planning Commission’s determination that the Project is exempt from environmental review under CEQA Guidelines section 15183. (AR 145-146; 2437-2440; 2955-2956.) | On October 25, 2019, Respondents filed a Notice of Exemption with the County Clerk of | Placer County as provided for in Public Resources Code, section 21152. (AR 001.) | Ill. LEGAL ARGUMENT | A. THE CITY’S APPROVAL OF THE PROJECT VIOLATES THE CALIFORNIA ENVIRONMENTAL QUALITY ACT | 1. THE CALIFORNIA ENVIRONMENTAL QUALITY ACT | “CEQA is a comprehensive scheme designed to provide long-term protection to the | environment. [Citation.] In enacting CEQA, the Legislature declared its intention 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.’ [Citation.]” (Mountain Lion Foundation v. Fish & Game | Com. (1997) 16 Cal 4th 105, 112.) | In evaluating proposed projects, a public agency must evaluate whether a possibility exists | that the project may have a significant environmental effect. (Pub. Resources Code, §§ | 21100(a), 21151(a).) If so, then the agency must conduct an initial threshold study. (Pub. | Resources Code, § 21080.1; CEQA Guidelines, § 15063.) If the initial study reveals that the | project will not have any significant effect, then the agency may complete a negative declaration | that describes the reasons supporting the determination. (CEQA Guidelines, §§ 15063; | 15064(f)(3); 15070(a).) If the initial study identifies potentially significant effects but the | applicant agrees to revisions in the project before the initial study and negative declaration are | released for public review and the revisions reduce the impact to less than significant, then a | PETITIONER’S OPENING BRIEF 8 10 11 12 13 14 15 16 17 18 19 20 21 an 23 24 25 26 27 28 mitigated negative declaration may be prepared. (CEQA Guidelines, §§ 15063(f)(2); 15070(b).) | If the initial study determines that any aspect of the project may cause a si gnificant effect on the | environment, regardless of whether the overall effect of the project is adverse or beneficial, the | agency must prepare an EIR. (/d.; see No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d at p. | 86; see also Sundstrom v. County of Mendocino (1982) 202 Cal.App.3d 296, 304-305.) | The EIR, with all its specificity and complexity, is the mechanism prescribed by CEQA to | force informed decision-making and to expose the decision-making process to public scrutiny. | (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th | 892, 910; citing No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 86.) The central | purpose of an EIR is to identify the significant environmental effects of the proposed project, _| and to identify ways of avoiding or minimizing those effects through the imposition of feasible | mitigation measures or the selection of feasible alternatives. (Pub. Resources Code, § 21002, | 21002.1(a), 21061.) “An EIR provides the public and responsible government agencies with _| detailed information on the potential environmental consequences of an agency's proposed | decision.” (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal 4th at p.113.) The | EIR is “the heart of CEQA” and “an environmental alarm bell whose purpose is to alert the | public and its responsible officials to environmental changes before they have reached the | ecological point of no return.” (Laurel Heights Improvement Ass’n v. Regents of the Univ. of | California (“Laurel Heights I’) (1988) 47 Cal.3d 376, 392.) The EIR is the “primary means” of| ensuring that public agencies “take all action necessary to protect, rehabilitate, and enhance the | environmental quality of the state.” (/d., quoting Pub. Resources Code, § 21001(a).) The EIR is| also a “document of accountability,” intended “to demonstrate to an apprehensive citizenry that | the agency has, in fact, analyzed and considered the ecological implications of its actions.” | (Laurel Heights I, supra, 47 Cal.3d at 392 (quoting No Oil, Inc. v. City of Los Angeles, supra, 13! Cal.3d at p. 86.) | 2. THE STANDARD OF REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL | QUALITY ACT | | Under CEQA the court must determine whether the agency has committed a prejudicial PETITIONER’S OPENING BRIEF 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | abuse of discretion. (Pub. Resources Code, § 21168.) An abuse of discretion is established if: 1) the agency’s determination or decision is not supported by substantial evidence; or 2) the agency | has failed to proceed in a manner required by law. (/d.) The court’s role in reviewing an | agency’s reliance on an exemption under CEQA Guidelines section 15183 is under the fair argument standard. (Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 287 | [the court evaluates the application of Guidelines section 15183 under the fair argument | standard]; see Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1373, 1406, fn. 24 | [suggesting that the fair argument standard applies to determination under Public Resources | Code section 21083.3 that activity is covered by prior EIR].) | Substantial evidence does not include argument, speculation or unsubstantiated opinion. | (Pub. Resources Code, § 21080(e)(2); CEQA Guidelines, § 15063(f)(5).) Rather “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.” (CEQA Guidelines, § 15384(a); see also Pub. Resources Code, § 21080(e)(1); | City of Redlands v. County of San Bernardino (2002) 96 Cal.App 4th 398, 410.) | 3. THE PROJECT IS NOT EXEMPT FROM CEQA UNDER PUBLIC RESOURCES | CODE SECTION 21083.3 OR CEQA GUIDELINES SECTION 15183 Public Resources Code section 21083.3 provides that: If a parcel has been zoned to accommodate a particular density of development or has been designated in a community plan to accommodate a particular density of | development and an environmental impact report was certified for that zoning or planning action, the application of this division to the approval of any subdivision | map or other project that is consistent with the zoning or community plan shall be limited to effects upon the environment which are peculiar to the parcel or to the | project and which were not addressed as significant effects in the prior environmental impact report, or which substantial new information shows will be | more significant than described in the prior environmental impact report. (Emphasis added.) | The Notice of Exemption and staff report rely upon CEQA Guidelines section 15183, | which is based upon Public Resources Code section 21083.3. Section 15183 provides for an | exemption from further environmental review for projects that are consistent with the | development density established by existing zoning, community plan or general plan policies for which an EIR was certified. (See Wal-Mart Stores, Inc. v. City of Turlock, supra, 138 | PETITIONER’S OPENING BRIEF 10 O o A Y D n m n F P W W \O 11 i2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.App4th at 287.) Section 15183, however, does not exempt analysis of impacts that are “peculiar to” the parcel or the project if those impacts were not addressed as significant impacts | in the previous EIR. (CEQA Guidelines, § 15183(a).) Section 15183 also does not exempt analysis of significant impacts that are peculiar to the parcel or project if substantial new information shows that the impact will be more severe than was described in the prior EIR. Thus, significant impacts peculiar to the parcel or project that were not evaluated or that were treated as insignificant in the previous EIR are not exempt from further review. In Wal-Mart Stores, Inc., supra, the court discussed the term “peculiar to” based the definition from a dictionary. (/d., at 294; citing Leavitt v. County of Madera (2004) 123 Cal.App4th 1502, 1514 [dictionary definition gives the usual meaning of a word].) In citing | | Webster’s Third New International Dictionary (1986), the term “peculiar” means “la: belonging | exclusively or esp. to a person or group . . . 3: tending to be a characteristic of one only: Distinctive.” As discussed below, substantial evidence supports a fair argument that the Project may have significant impacts that are peculiar to the site and peculiar to a hotel project in such close proximity to schools and residential neighborhoods. With respect to the second part of whether the issues were addressed in the previous environmental review, it is clear that the Final Environmental Impact Report-Twelve Bridges Specific Plan, General Amendment and Annexation (“FEIR”) (see AR 1476-2214); and Final Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan (“FSEIR”) (AR 25 1-1047.)2 did not address or discuss hotels within the General Commercial area. This is consistent with the discussion in Wal-Mart Stores where the court distinguished between a more general EIR for a General Plan to a more specific project that will be subject to further environmental review. (/d. at 295.) As stated by the Court: the construction is consistent with the view that environmental review documents 2 The Final Environmental Impact Report-Twelve Bridges Specific Plan, General Amendment and Annexation. (See AR 1476); and Final Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan (AR 251) also include their respective Draft Environmental Impact Reports. (See AR 418 & 1702.) PETITIONER’S OPENING BRIEF 11 N Y I D n O n H R Ww W should be general when they cover general possibilities and specific when the specifics of a project are reasonably foreseeable. Here, the EIR for City’s general plan adequately covered, and continues to cover, the general possibility that the location will be developed. Also, when a specific project is proposed for that location, its details will be presented to City for approval and City will be required to conduct another preliminary review to determine what additional environmental review, if any, is necessary for CEQA compliance. (See No Oil, Inc. v. City of Los Aneles, supra, 196 Cal.App.3d at 237, 242. [when route for pipeline was selected and the specifics of construction became known, a new EIR containing a detailed analysis would need to be prepared].) Wal-Mart Stores, Inc., supra, 138 Cal.App4th at 295-296.) While in Wal-Mart Stores, Inc. the Court found that the environmental impacts that Wal-Mart contends may occur because of physical changes were not shown to be reasonably foreseeable “project-specific . . . effects which were peculiar to the project or its site for section 15183. (/d. at 296.) With respect to the ordinance in the Wal-Mart Stores case (which limited zoning for big box stores), the Court held that the Ordinance would not be covered by the EIR certified for the City’s General Plan only if the Court was persuaded by a fair argument that there was the “existence of reasonably foreseeable project significant changes in the environment that are specific to the 14 15 16 17 18 19 20 21 22 23 24 25 26 a 28 Ordinance or its site.” (138 Cal.App4th at 288.) The conclusion in Wal-Mart Stores is distinguishable from the present case as Wal-Mart Stores involved a change in a zoning ordinance as compared to the present project-specific construction and operation of a was neither discussed nor evaluated in the Final Environmental Impact Report-Twelve Bridges hotel that Specific Plan, General Amendment and Annexation (“FEIR”) (AR 1476-2214); and Final Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan (“Final SEIR”) (AR 251-1047.)3 The public provided substantial new information that placing a hotel in this location will impact residential uses and have an impact to the students that will attend the new schools under construction - the John Adams Academy and the new Lincoln High School. (See AR 3180, 3182, 3183, 3186-87, 3189, 3202, 3210-3212, 3218-3220, 3226, 3232, 3235, 3238, 3 The Final Environmental Impact Report-Twelve Bridges Specific Plan, General Amendment and Annexation. (See AR 1476); and Final Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan (AR 251) also include their respective Draft Environmental Impact Reports. (See AR 418 & 1702.) PETITIONER’S OPENING BRIEF 12 N I D n Mm 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 26 ZT 28 3240, 4085, 4102, 4104, 4106, 4110, 4187, 4211, 4226, 4242-4243 , 4269, 4270, 4278, 4293.) With the brief exception of noise, nothing in the Final EIR for Twelve Bridges Specific Plan nor the Final Subsequent EIR discusses hotels within the general commercial area where the Project is located. (See AR 0822, 1949.) Moreover, nothing in the Final EIR nor the Final Subsequent EIR addresses the impacts of placing a hotel adjacent to or in close proximity to a school or a residential neighborhood. (/d.) Also, nothing in either environmental document appears to address the construction of a four-story structure that may impact aesthetics and views from the adjacent neighborhood. (/d.) One of the significant impacts that are peculiar to the Project is the potential impacts to the aesthetics and views from the adjacent neighborhood. This impact is best illustrated by the testimony presented by Mike Hyatt, president of K Hovnanian Homes, a home builder 875 feet from the Project. (AR 3212.) Mr. Hyatt testified in relevant part: We have two projects, right now both of them -- both of them are under construction. We built the beautiful model complex that actually out of our back window has a view of this hotel. Okay. It doesn't -- we don’t need to see the nice little porte-cochere and the starburst, we get to see the backside of the hotel. We have another community at Twelve Bridges. It’s about 68 home sites that’s under construction today. There was a comment by this gentleman about the trees -- the trees that we planted. They won't be blocking the view of this hotel in my lifetime. At this point the trunk size is about the size of the flag poles. They’ll take 25 to 30 years before it ever blocks any of the views out of the windows of the back of these houses. There’s about 35 home sites that back up to Bella Breeze that look across the vacant land to look at this hotel site. You were asking the question, Mr. Manning, about the views and is it going to block in the horizon. It sure is going to block the horizon. There was also a comment too that was made that is not true. We sold 16 houses, four of those cancelled. I had one cancel today, I had two cancel this weekend, we had one cancel previously, we have two other customers now that are threatening to cancel. So we can talk all we want how it is not going to impact business and it’s not going to impact the home builders. I will tell you it's impacted us in a great way. Yes, the picketers haven't helped, but neither has the hotel. We have a nice rendering and we have nice floor plans of this hotel in our model complex, it doesn't matter, our residents do not want the hotel. If I would have known that this hotel was coming, I’m not sure I would have made the large investment that we made in this community, I would have gone to another site. PETITIONER’S OPENING BRIEF 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because I doubt that the residents that are backed up to Bella Breeze really truly want to look at the hotel site. As I stated, the picketers probably haven't helped, but they've rallied their cause. And I’m here tonight to support them, but I’m also here tonight to support our residents, and I’m also here tonight to support the company that's invested deeply into this community. The dollars that we’ ve invested in this community, you talked about the $1.2 million of the off-site improvements that you've made that you've donated graciously to the city, we’ve done that as well. So, as I state, I oppose this hotel. I’m not against development, I’m a developer, but I also think there’s seasoned planning and there’s proper planning. A hotel site in the middle of this community is not where it needs to go. While CEQA does not address economic impacts, Mr. Hyatt’s testimony is not about the economic impact, but the Project’s impacts to aesthetic views from neighborhood that is currently being built. Such testimony constitutes substantial evidence. “Statements of area residents who are not environmental experts may qualify as substantial evidence if they are based on relevant personal observations or involve 'nontechnical issues.” (Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 583; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal. App 4th 1184, 1210-1211 (citing firsthand observations of citizens and business owners that the city was already littered with “empty warehouse type rundown buildings and that the project would result in more as part of the basis for concluding that the EIR must analyze the impacts from urban decay); Ocean View Estates Homeowners Association v. Montecito Water District (2004) 116 Cal.App.396, 402; Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322 (lay testimony on traffic and biological impacts); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 932 (lay testimony on impacts to land use); Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 172 (lay testimony on traffic impacts). Thus, a layperson may provide their firsthand perception. CEQA states this another way in that fact and a reasonable assumption predicated upon fact constitute substantial evidence. (Pub. Resources Code, § 21080(e)(1).) That is exactly the type of evidence provided by members of the public. It must also be mentioned that General Plan Policy LU-12.1 (Hillside Visual Access) states that “The City shall maintain visual access to hillside views by regulating building orientation, height, and bulk.” (AR 8057.) The Project is a four story hotel that is not PETITIONER’S OPENING BRIEF 14 | | | | Y D n Wn fb oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | compatible with the hillside or existing area. (See A 2897, 2899, 2903.) The height of the | hotel, along with blocking the hillside views are peculiar to this Project as demonstrated by Mr. | Hyatt’s testimony and are issues that were not addressed in the previous environmental review | conducted for the Twelve Bridges Specific Plan. | Numerous members also expressed concern about the Project’s close proximity to the new | school that is currently being built. (See AR 3180, 3182, 3183, 3186-87, 3189, 3202, 3210- | 3212, 3218-3220, 3226, 3232, 3235, 3238, 3240, 4085, 4102, 4104, 4106, 4110, 4187, 4211, | 4226, 4242-4243, 4269, 4270, 4278, 4293.) The community expressed concern that the | location of the hotel is not compatible with a nearby high school given the risks it poses to | students due to sex trafficking, drugs and other issues. (/d.) This is peculiar to the Project. | As substantial evidence in the record demonstrates that there are impacts “peculiar to” the | Project that were not addressed as significant impacts in the previous environmental documents, | the exemption under CEQA Guidelines section 15183 and Public Resources Code section | 21083.3 do not apply to this matter. | 4. THE PROJECT IS INCONSISTENT WITH THE GENERAL PLAN | CEQA requires an environmental document to discuss any inconsistencies between the | Project and the applicable general plans, specific plans and regional plans. (CEQA Guidelines, §) 15125(d).) An applicable plan is a plan that has been adopted and legally applies to the Project. | (Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App4th 1134, 1145,n.2.) By | identifying a project’s inconsistencies with applicable plans means that a lead agency may be able to modify the project to avoid the inconsistencies. (See Orinda Ass’n v. Board of | Supervisors (1986) 182 Cal.App.3d 1145, 1169.) While an inconsistency with policies of | applicable plans does not necessarily mean that the project will have a significant environmental | impact CEQA requires that the environmental document contain the discussion and analysis. | (See Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 | Cal.App.5th 677, 695; Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th 903.) | Additionally, the Project is not consistent with the General Plan with respect to Floor | Area Ratio (“FAR”). (See discussion below.) Reliance on section 15183 requires that the | PETITIONER’S OPENING BRIEF 15 Y N N H nN fs oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a7 28 | | Project be consistent with the development density established by the existing zoning, community plan, or general plan policies for which and EIR was certified. As discussed in more detail below, the Project is not consistent with the FAR set forth in the General Plan. (See | also AR 3270-3271; 3273.) In order for section 15183 to apply the Project must be consistent | with the General Plan. (See CEQA Guidelines, § 15183(d)(1)(C); see also Pub. Resources | Code, § 21083.3(a)-(b).)+ 5. THE CITY FAILED TO MAKE THE REQUIRED FINDINGS REGARDING | MITIGATION MEASURES Public Resources Code section 21083.3(c) requires that the City must make a finding that | | | | any mitigation measures in the prior EIR that apply to the project’s specific effects will be undertaken. If the required finding relating to an applicable mitigation measure is not made, then the related significant effect is not exempt from further environmental review. (See Pub. Resources Code, § 21083(c); see also CEQA Guidelines, § 15183(e).) Section 21083.3(c) ! therefore requires the lead agency to “make a finding, at a public hearing, as to whether those mitigation measures will be undertaken.” (Gentry v. City of Murrieta, supra, 36 Cal.App Ath at | | | | | measures apply to this project and instead just makes a general statement about compliance with 1405-1406.) The City’s Resolution states that “the project shall comply with the Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan EIR Mitigation Measures.” (AR 013.) The Resolution, however, fails to identify which specific mitigation mitigation measures. The City’s failure to make any findings relating to any applicable mitigation measure constitutes a prejudicial abuse of discretion and is contrary to law. B. THE PROJECT VIOLATES LINCOLN MUNICIPAL CODE Lincoln Municipal Code section 18.56.010 provides that “The consideration of a conditional use permit application shall result in the issuance of written findings in support of the planning commission decision, which shall be based on substantial evidence in view of the whole record. To grant a conditional use permit, the planning commission shall find that the 4 Public Resources Code, section 21083.3 does not refer to specific plans. | PETITIONER’S OPENING BRIEF 16 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 establishment, maintenance or operation of the use, building or structure applied for will not, -_| under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood of such proposed | use or be detrimental or injurious to property and improvements in the nei ghborhood or to the | general welfare of the city.” | As a result the City must make findings that (1) that the use is substantially similar in | characteristic to a use or uses currently within the district; (2) that the use would be appropriate | in the district applicable to the property as a permitted or conditional use; (3) that the proposed | use, with the appropriate conditions, will not be detrimental to the health, safety, peace and | morals, comfort and general welfare of persons residing or working in the neighborhood or | injurious to property and improvements in the neighborhood or to the general welfare of the city; and (4) that at least one of the findings in Section 15.32.250 of the municipal code is satisfied. | The City’s Findings | and 3 do not adequately address the required findings and are not | supported by substantial evidence. | 1. STANDARD OF REVIEW Code of Civil Procedure section 1094.5 sets forth the standard of review in an | administrative mandamus proceeding as whether the agency committed a prejudicial abuse of | discretion. An abuse of discretion is established when the agency has not proceeded in the | manner required by law; the decision is not supported by the findings; or the findings are not supported by substantial evidence. (Code Civ. Proc., § 1094.5(b); Western States Petroleum v._ | Superior Court (1995) 9 Cal 4th 559, 571.) | In Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 | Cal.3d 506, the Court set forth the fundamental rules that apply to judicial review of findings in | an administrative mandate proceeding: | Implicit in section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. ... [The agency] must render findings | sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the | basis for the board's action. (11 Cal. 3d at 514-15) PETITIONER’S OPENING BRIEF 17 M N Ww O o w o N Y BD il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 oF 28 2. THE PROJECT IS NOT SUBSTANTIALLY SIMILAR IN CHARACTERISTIC TO A USE OR USES WITHIN THE DISTRICT Again, Finding 1 under Lincoln Municipal Code section 18.56.010 requires that City find that the use is substantially similar in characteristic to a use or uses currently within the district. | Such finding must be based upon substantial evidence. (AR 008.) The record demonstrates that | the proposed use is not substantially similar in characteristic to the uses currently within the district. The City found that the Project “is substantially similar in characteristic to developed commercial property in the Twelve Bridges area that include extensive landscaping, articulated building massing, varying use of exterior materials, pedestrian scale light and pedestrian access around the site.” (AR 008.) The City also found that project is designed to be consistent with existing and future uses for the site and vicinity. (/d.) The staff reports discussed that the hotel is located in the Main Village of the Twelve Bridges Development which is meant to be the primary activity center to Twelve Bridges and provide shopping, employment, community facilities and residential development. (AR 3060; see also AR 008.) First, the Planning Commission did not find that it is consistent with uses currently within the district, but instead found that it was consistent with “existing and future land uses for the | | | | | | | | | | site and vicinity.” (See AR 008.) Thus, the City is attempting to predict what future uses will be and then makes the determination that the Project will be consistent with those uses. Moreover, the findings with respect to the proposed use do not address the construction and operation of a hotel at this location, but instead focuses on the size of the building, the set-backs and landscaping. (/d.) The findings also fail to address how the use of a hotel is consistent or substantially similar to uses such as the high school and other schools currently planned for the area. It should also be noted that the hotel will be four stories and significantly taller than other structures in the vicinity and quite visible from nearby neighborhoods. (AR 2264-2265.) A four story building is not similar in characteristic to the uses currently within the district. PETITIONER’S OPENING BRIEF 18 | | | | | 10 11 12 13 14 15 16 17 18 19 20 Zl 22 23 24 25 26 27 28 The City staff’s analysis also asserts that the Project is consistent with existing uses because the City had previously approved a Holiday Inn in a commercial area of the City. (AR | 2226.) The City, however, fails to disclose that the Holiday Inn is about one and a half miles | away. (AR 2862.) Simply because a hotel has been approved elsewhere in the City does not | mean that the four-story hotel at this location is substantially similar in characteristic to use | currently within this district. To argue that there is a project somewhere else in the City that | may be similar in characteristic does not satisfy the requirements of section Lincoln Municipal _ | Code section 18.56.010. | The City’s findings also do not address the construction and operation of a hotel at this | location, but instead focuses on the size of the building, the set-backs and landscaping. (See AR | 008.) The findings also fail to address how the use of a hotel is consistent or substantially | similar to uses such as the high school and other schools currently planned for the area. (See /d.)| Finally, the City’s findings fail to address that the hotel will be four stories and significantly | taller than other structures in the vicinity and quite visible from nearby neighborhoods. (/d.) A | four story building is not similar in characteristic to the uses currently within the district. | 3. THE USE WILL BE DETRIMENTAL TO THE HEALTH, SAFETY, PEACE AND | MORALS, COMFORT AND GENERAL WELFARE OF PERSONS RESIDING OR WORKING IN THE NEIGHBORHOOD OR INJURIOUS TO PROPERTY AND IMPROVEMENTS IN THE NEIGHBORHOOD OR TO THE GENERAL WELFARE | OF THE CITY. | Under Finding 3 of Lincoln Municipal Code section 18.56.010 the City found that the use | will not be detrimental to the health, safety, peace and morals comfort and general welfare of | person residing or working the neighborhood. (AR 008.) The City’s Findings failed to | adequately address the hotel’s proximity to homes and a school. (See Id.) The Staff Report | indicates that the Project will be in close proximity to existing/future residential and | future/under construction schools (Twelve Bridges High School and John Adams Academy). | Amazingly, the Staff Report indicates that having a hotel in such close proximity to schools and | residential would be a benefit and provide a much needed service. (AR 2270.) The Staff | Report, however, fails to indicate how having a high school in such close proximity to hotel | would benefit the high school (or the John Adams Academy). (/d.) As expressed by the \ PETITIONER’S OPENING BRIEF 19 10 11 |W 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 community, having a hotel in such close proximity to these schools would be detrimental not a benefit. (See AR 3180, 3182, 3183, 3186-87, 3189, 3202, 3210-3212, 3218-3220, 3226, 3232 | | 3235, 3238, 3240, 4085, 4102, 4104, 4106, 4110, 4187, 4211, 4226, 4242-4243, 4269, 4270, | 4278, 4293.) The Staff Report indicates that commercial uses (service oriented) near a school | benefits parents of the school children but fails to state how a hotel in such close proximity | would benefit either the parents or the children. Instead, it would create a 24-hour business that | is designed to attract people from outside the area and bring them in close proximity to two | schools. (See AR 2270-2273.) | The other rationale that the Staff Report states it the City has received inquiries regarding | home sites and continues to issue building permits in the Main Village and The Ridge. While | that may address future or prospective buyers, it does not address those residents that purchased | their home in the Main Village or The Ridge prior to the proposed hotel. As testimony tothe | City Council and the Planning Commission demonstrated, many of those homeowners strongly | belief that a hotel is incompatible with schools and nearby residential area. (See AR 3180, | 3182, 3183, 3186-87, 3189, 3202, 3210-3212, 3218-3220, 3226, 3232, 3235, 3238, 3240, 4085, | 4102, 4104, 4106, 4110, 4187, 4211, 4226, 4242-4243, 4269, 4270, 4278, 4293.) | At hearings before the Planning Commission and City Council hearing there was | considerable discussion and concern about the risk of sex trafficking with a hotel so near a high | schools and the impacts to the community. (See e.g. AR 3186-87; 3202, 3216, 3226.) | LaQuinta’s representatives attempted to downplay such risks and concerns and discussed | LaQuinta’s training of employees in an effort to address the community’s concerns. (AR 3136- | 3144; 2855-2859.) Chief Lee also commented while sex-trafficking is a concern the only | arrests in Lincoln have been associated with police undercover operations (sting operations) in | Lincoln and they rely upon cooperation with respective hotels. (AR 2831-2835.) While Chief | Lee downplayed the risk of human-trafficking/sex-trafficking, he did not rule out that it exists | within Lincoln and at hotels within Lincoln. (/d.) | Despite the LaQuinta’s representations, LQ Properties, LLC and La Quinta Worldwide, | LLC. were named in federal lawsuit in Atlanta, Georgia regarding sex trafficking. (See Jane | PETITIONER’S OPENING BRIEF 20 Y N D n n N B P Ww W W V oo 10 11 12 13 14 15 16 17 18 |i) 20 21 22 23 24 25 26 zt 28 Doe 4 v. Red Roof Inns, Inc. et al. (N.D. Georgia, Case No. 1:19-cv-03945 .)° The allegations in | this recent litigation directly contradict the representations made by the La Quinta | representatives at the hearing before the Planning Commission. In fact, the Complaint illustrates | the very real and present dangers associated with sex trafficking. Such a facility should not be in| such close proximity to a high school. | Based upon the foregoing, substantial evidence does not support the City’s Findings under | Lincoln Municipal Code section 18.56.010. | C. APPROVAL OF THE PROJECT IS INCONSISTENT WITH THE GENERAL PLAN | L. THE STATE PLANNING AND ZONING LAW | Every city and county must adopt a “comprehensive, long-tern General Plan for the | physical development of the city or county ...” (Gov’t Code § 65300.) The California Supreme | Court has described the General Plan as the “constitution for all future developments.” | Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (“FUTURE”) | (1998) 62 Cal App 4th 1332, 1336, citing Citizens of Goleta Valley v. Board of Supervisors | (1990) 52 Cal.3d 553,570.) The Supreme Court described “the function of a general plan asa | “constitution,” and labeled it the “basic land use charter governing the direction of future land | use” in the locality. (Lesher Communications, Inc. v. City of Walnut (1950) 52 Cal.3d 531, 540, | | | > The lawsuit alleges: LQ participated in Plaintiffs sex trafficking and knowingly benefitted by receiving money from Plaintiffs trafficker for lookout work and other illegal | services provided to Plaintiffs trafficker, and by receiving money from Plaintiffs trafficker for the rental of hotel rooms in which Plaintiff was subsequently and openly sold for sex as many as 10 times per day. Through these and other actions, LQ participated in a venture it knew or should have known engaged in the sex trafficking of Plaintiff. (Complaint for Damages, J 34(b).) La Quinta Worldwide participated in Plaintiffs sex trafficking and knowingly benefitted by receiving money from Plaintiffs trafficker for lookout work and other illegal services provided to Plaintiffs trafficker, and by receiving money from Plaintiffs trafficker for the rental of hotel rooms in which Plaintiff was subsequently and openly sold for sex as many as 10 times per day. Through these and other actions, La Quinta Worldwide participated in a venture it knew or | should have known engaged in the sex trafficking of Plaintiff. (/d., § 37(b).) PETITIONER’S OPENING BRIEF 21 Y N D n W n fp oo 10 11 [2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DaVita v. County of Napa (1995) 9 Cal.3d 763, 773.) The propriety of an agency's decision | affecting land use and development depends on the project's consistency with the objectives, | policies and land uses specified in the General Plan. (Gov’t Code § 65860; Corona-Norco | Unified School Dist. v. City of Corona (1993) 17 Cal.App 4th 985, 994.) | Local land use and development decisions must also be consistent with the applicable | general plan. (FUTURE, supra, 62 Cal.App 4th at 1336; Gov’t Code, § 65860(a).) The | requirement that local land use decisions adhere to the governing General Plan is known as the | “consistency doctrine.” (Lesher Communications, Inc., supra, 9 Cal.3d at p. 541.) This doctrine | is “the linchpin of California's land use and development laws; it is the principle which infused | the concept of planned growth with the force of law.” (/bid, citing deBottari v. City Council | (1985) 171 Cal.App.3d 1204, 1213.) A project is consistent with the General Plan if "it will | further the objectives and policies of the General Plan and not obstruct their attainment." | (FUTURE, supra, 62 Cal.App 4th at p. 1336; Friends of Lagoon Valley v. City of Vacaville | (2007) 154 Cal.App.4th 807, 817.) While a court accords deference to an agency’s | interpretation of its general plan and various elements, an abuse of discretion is established if the | agency has not proceeded in a manner required by law, its decision is not supported by findings, | or the findings are not supported by substantial evidence. (See Code Civ. Proc., § 1094.5; | Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App4th 1552, 1563.) A project need | not be in perfect conformity with each and every General Plan policy as no project can | completely satisfy every General Plan Policy. (Sequoyah Hills Homeowners Assn v. City of | Oakland (1993) 23 Cal.App 4th 704, 719.) The County, however, cannot ignore General Plan | goals, policies and objectives that are by their very terms fundamental, mandatory and clear. An| action must be consistent with the very specific and mandatory policies of the general plan. | (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 785-786, | 789; FUTURE, supra, 62 Cal. App 4th at p. 1342.) Thus, a project is inconsistent with the | General Plan, and thus cannot be approved, where it violates such a policy or policies. (/d.) Courts have held that inconsistency exists when the project frustrates the achievement of | the General Plan's goals and policies. The court in Napa Citizens for Honest Government v. | PETITIONER’S OPENING BRIEF 22 wo Nn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 26 ZT 28 Napa County Board of Supervisors (2001) 91 Cal App 4th 342, articulated the standard as follows: We also are of the opinion that cases such as FUTURE v. Board of Supervisors (citations omitted) do not require any outright conflict between provisions before they can be found to be inconsistent. The proper question is whether development of the project area under the updated Specific Plan is compatible with and will not frustrate the General Plan's goals and policies. If the Updated Specific Plan will frustrate the General Plan's goals and policies, it is inconsistent with the County's General Plan unless it also includes definite affirmative commitments to mitigate the adverse effect or effects." (Id. at p. 379.) Ze STANDARD OF REVIEW UNDER THE PLANNING AND ZONING LAW An agency’s determination that a project is consistent with the General Plan is reviewed under the abuse of discretion standard. (FUTURE, supra, 62 Cal.App 4th at p. 1338.) The approval may be overturned if the agency did not proceed in a manner required by law, its decision is not supported by findings, or the findings are not supported by substantial evidence. (Sequoyah Hills Homeowners Ass’n. v. City of Oakland, supra, 23 Cal.App 4th at p. 717.) a THE PROJECT IS NOT CONSISTENT WITH GENERAL PLAN LAND USE ELEMENT The State Planning and Zoning Law prohibits the City from approving the Project if it conflicts with its General Plan and other applicable land use plans. Local land use and development decisions must be consistent with the applicable general plan. (FUTURE, supra, 62 Cal.App.4th at p. 1336.) “A project is consistent with the general plan “if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their 99:9 attainment.” ’ [Citation.] A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a project must be ‘compatible with’ the objectives, policies, general land uses and programs specified in the general plan.” (Jbid.) The record demonstrates that the Project is not consistent with the applicable General Plan regarding Floor Area Ratio (“FAR”). Under the General Plan, the Project site has a maximum FAR of 0.35. (AR 8041 [General Plan, Page 4-4, table 4.1].) As approved, the FAR is 0.42, which exceeds the maximum 0.35. (See AR 3270-3271.) On the Project site for just the hotel, which is 1.73, the FAR is 0.76, more than double allowed under the General Plan. (AR 3270.) PETITIONER’S OPENING BRIEF 23 | 10 11 12 13 14 15 16 17 18 19 20 21 Ze 23 24 25 26 Zi 28 At the Planning Commission hearing, Planning Commissioner Johnson provided an excellent | summary of the application of the General Plan’s FAR requirement to the Project. (See AR | 3270-3271.)6 City Staff acknowledged that the Project is not consistent with the General | Plan’s FAR requirements, but asserted that the Project need not comply with the General Plan | as the Project is consistent with the development agreement. (AR 3273, 2844-2845 2233-2335, | see also 12160-12161 (developments standards under development agreement.) | In arguing that the Project need not comply with the General Plan standards, the City staff | relied upon the court’s ruling in Naraghi Lakes Neighborhood Preservation Association v. City | of Modesto (2016) 1 Cal.App.5th 9. (See AR 2231-2233.) In Naraghi Lakes, the petitioners | challenged a city’s approval of a shopping center adjacent to an established nei ghborhood. Part | of the challenge was a challenge to the project’s consistency with the General Plan’s | Neighborhood Plan Prototype (“NPP”) regarding the square footage of neighborhood shopping | © At the Planning Commission hearing Commissioner Johnson stated: | So then going into the table on page 4-4, Table 4.1. When we look in the General | Plan, the land use circulation diagram, you know, granted 2008 has designated this area as neighborhood commercial and community commercial. On that table, | both of them have a maximum FAR of .35. | Now, I did the calculations. One acre equals 43,560 square feet. The total parcel that we're talking about, according to the staff report, is 3.1 acres, and that converts to 135,036 square feet. It says the hotel parcel is 1.73 acres which equals 75,359 square feet. And then the remaining | .37 is set apart for a future | restaurant. The hotel structure itself is said to be 56,914 square feet. So if I go conservative on the 3.1 acre, the whole parcel with the hotel, 56,914 square feet divided by the | whole 3.1 acres, which is 135,036 square feet equals a 42 which exceeds the .35. On the 1.73 acres, the hotel again is 56,914 square feet, the lands for that 1.73 | acres is 75,359 square feet, and that calculates to a .76 FAR, which exceeds by 41, more than double what the square feet, and that calculates to a 0.76 FAR, | which exceeds by 0.41, more than double what the General Plan allows. | So in my opinion, I know there is a lot of emphasis put on one of the four findings about health, safety, peace, morals and so forth. The CUP is all about | compatibility. It’s a gray area and that’s why we’re debating it is because it’s not specific. It’s a gray area and we’re supposed to evaluate it. So as far as I’m | concerned, it doesn’t satisfy all these four points and especially that FAR, which I think was designed to limit how tall of a building can be on a parcel of land. It’s a ratio. And so I know we always are guided by the General Plan of a city. That’s just where I’m sitting with that. I don’t know if there’s any comments from city about that. (AR 3270-3271.) PETITIONER’S OPENING BRIEF 24 Y N D n WN BD oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 centers. While the court acknowledged that the project was larger than the neighborhood | shopping center described in the NPP policies, the City argued that the policies were to provide | guidance. To this end, the court relied upon the term “should” in the vast majority of the NPP | policies, including the policy at issue in that matter. (/d. at p.21.) The court distinguished | between the agency’s NPP policies that used the term “should” and the mandatory term “shall.” (/d.) The court recognized the longstanding rule in that the word “shall” imposes a mandatory | standard. (See Gov’t Code, § 14 [“Shall” is mandatory and “may” is permissive.]). In contrast to the NPP policies in Naraghi Lakes that relied upon the term “should”, the | City of Lincoln’s General Plan states: “The FAR shall not exceed 0.35.” (AR 8043 [emphasis | added].) The General Plan’s use of the term “shall” imposes a mandatory obligation for | compliance with the General Plan’s obligations regarding FAR. (See Endangered Habitats | League, Inc. v. County of Orange, supra, 131 Cal.App 4th at p. 785-786, 789; FUTURE, supra, 62 Cal App.4th at p. 1342; Gov’t Code, § 14.) Thus, a project is inconsistent with the General | Plan, and thus cannot be approved, where it violates such a policy or policies. (/d.) The General] Plan’s reference to shall with respect to FAR imposes a fundamental and mandatory obligation. | The City also argued that the various regulating documents for the Twelve Bridges | specific plan area, including the Twelve Bridges General Development Plan (AR 11816-12044) | and Twelve Bridges General Development Agreement (AR 12098-12258) that govern the size | of the Project, not the mandatory obligations contained in the General Plan. (AR 2233-2235.) | The City, however, makes no effort to reconcile the General Plan’s FAR requirements with the | development agreement. Nor did City’s staff report provide any legal authority to support its | assertion that the Project need not comply with the General Plan. (See AR 223 1-2235.) | As the Project is inconsistent with a mandatory and fundamental obligation of the General | Plan, and it is that inconsistency that leads to a structure si gnificantly larger than nearby | structures and that may have aesthetic impacts, approval of the Project violates the State | Planning and Zoning Law. As the Project conflicts with the General Plan and the General Plan, | approval of the Project constitutes a prejudicial abuse of discretion and is contrary to law. | | PETITIONER’S OPENING BRIEF 2 o O N D N W Bp \o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vai 28 As the Project is inconsistent with a mandatory obligation of the General Plan, and it is that inconsistency that leads to a structure significantly larger than nearby structures, which may have significant impacts to aesthetics, approval of the Project violates and Zoning Law. CONCLUSION the State Planning Based upon the foregoing, Petitioner respectfully requests that the Court issue a peremptory writ of mandate ordering Respondents to: (a)vacate and set aside its approval of the Project grounds that it violates the California Environmental Quality Act, Public Resources Code section 21000 et seq.; Lincoln Municipal Code 18.56.010; and Government Code section 65300 et seq.; (b) vacate and set aside of Respondents’ Resolution No. 2019-242; (c) vacate and set aside Planning Commission Resolution No. 2019-39 and Resolution No. 2019-40. DATED: April 24, 2020 PETITIONER’S OPENING BRIEF Respectfully submitted, LAW OFFICES OF DONALD B. MOONEY Donald B. Mooney Attorney for Petitione Lincoln Twelve Bridgg¢ 26 | | Y D n N n fp oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ad 28 PROOF OF SERVICE Iam employed in the County of Yolo; my business address is 417 Mace Boulevard, Suite J-334, Davis, California; I am over the age of 18 years and not a party to the foregoing action. On April 24, 2020, I served a true and correct copy of PETITIONER’S OPENING BRIEF X_ (by mail) on all parties in said action listed below, in accordance with Code of Civil Procedure §1013a(3), by placing a true copy thereof enclosed in a sealed envelope in a United States mailbox in the City of Davis, California. (by overnight delivery service) via Federal Express to the person at the address set forth below: (by personal delivery) by personally delivering a true copy thereof to the person and at the address set forth below: (by facsimile transmission) to the person at the address and phone number set forth below: Kristine Mollenkopf City Attorney City of Lincoln 600 Sixth Street Lincoln, CA 95648 Attorney for Respondents City of Lincoln and City Council of the City of Lincoln Christopher J. Butcher Thomas Law Group 455 Capitol Mall, Suite 801 Sacramento, CA 95814 Attorney for Respondents City of Lincoln and City Council of the City of Lincoln Paul N. Meyer Elgund Meyer Koegel 2990 Lava Ridge Court, Suite 205 Roseville, CA 95661 Attorney for Real Party in Interest JG Land & Investment, LLC I declare under penalty of perjury that the foregoing is true and correct. Executed on April 24, 2020, at Davis, California. PETITIONER’S OPENING BRIEF Donald B. Mooney 27
