ReplyCal. Super. - 3rd Dist.November 27, 20191 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 1 to 20, ) ) Respondents ) ________________ ) ) JG LAND & INVESTMENT, LLC., a ) Limited Liability Corporation; and DOES 21-40 ) ___________ ) Case No. SCV0044111 PETITIONER'S REPLY BRIEF Date: July 10, 2020 Time: 8:30 am Dept.: 42 Judge: The Hon. Charles D. Wachob Action Filed: November 27, 2019 06/19/2020 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Petitioner Stop Lincoln Twelve Bridges Hotel respectfully submits this Reply Brief in response to Respondents' City of Lincoln and City Council of the City of Lincoln and Real Party in Interest's Opposition Brief. As discussed below, the City improperly relied on Public Resources Code section 21083.3 and CEQA Guidelines section 15183 as there are peculiar impacts associated with building a four-story hotel at the approved location. The City asserts that the appropriate standard of review is the substantial evidence standard. The City, however, fails to cite to single case holding that substantial evidence is the standard of review under section 21083.3. Moreover, the City's Opposition Brief ignores the uniqueness of section 21083.3 as compared to CEQA's more standard statutory exemptions. As the City relies entirely on the substantial evidence standard, the City's opposition does not address or respond to Petitioner's assertion that substantial evidence supports a fair argument that there peculiar impacts from the Project that were not previously address. Instead, the City argues that the substantial evidence standard applies and that substantial evidence supports the City's approval of the exemption under. section 21083.3 and CEQA Guidelines section 15183. Additionally, 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. Therefore, the City's required finding for approving a conditional use permit is not supported by substantial evidence. II. LEGAL ARGUMENT A. THE CITY'S APPROVAL OF THE PROJECT VIOLATES THE CALIFORNIA ENVIRONMENTAL QUALITY ACT 1. THE FAIR ARGUMENT ST AND ARD GOVERNS REVIEW UNDER PUBLIC RESOURCES CODE SECTION 21083.3 The City's CEQA argument relies upon the court agreeing that the appropriate standard of I review is the substantial evidence standard. To this end, the City relies upon cases regarding PETITIONER'S REPLY BRIEF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statutory exemptions. The City, however, fails to address or recognize that Public Resources Code section 21083 differs from the statutory exemptions upon which those cases relied upon. Section 21083 is more similar to tiering than to a statutory exemption. (See Gentry v. City of Murrieta (1995) 36 Ca1App.4th 1359, 1406.) The court in Gentry recognized the difference between the partial exemption under section 21083.3 and the statutory exemptions relied upon in l the cases cited by the City. In Gentry, the court stated that: the results of section 21083 .3 are much like those of tiering. If the new project has peculiar effects which were not addressed in the prior EIR, it may be appropriate to use tiering to streamline review of those effects. (See Guidelines, § 15152 and discussion.)[footnote omitted] Nevertheless, section 21083.3 is not, strictly speaking, a tiering provision; rather, it provides a statutory exemption from CEQA. (1 Kostka & Zischke, § 11.34, pp. 452-453; see former§ 21083.3, subd. (a), amended eff. Jan. 1, 1993, now§ 21083.3, subd. (e).)" (Id.) The court further stated: We have held that a substantial evidence standard of review applies to an agency's factual finding that a statutory exemption applies. (Western Mun. Water Dist. v. Superior Court (1986) 187 Ca1App.3d 1104, disapproved on other grounds in Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at pp. 570, fn. 2,576, fn. 6, 38 Cal.Rptr.2d 139,888 P.2d 1268; see 1 Kostka & Zischke, § 5.99, pp. 244-245.) Most statutory exemptions, however, operate regardless of whether the project will have effects on the environment. (E.g.,§§ 21080, subds. (b)(l)-(b)(8) & (b)(10)-(b)(13), 21080.01-21080.03, 21080.05, 21080.07 .) Thus, "[ w ]hen reviewing a statutory exemption, the nature and extent of the project's environmental impacts are ordinarily irrelevant." (1 Kostka & Zischke, § 5.99, at p. 244.) Therefore, we have at least suggested that where a statutory exemption does depend on whether the project will have significant environmental effects (as does section 21083.3), the fair argument standard should govern review of an agency determination that the statutory exemption applies. (Western Mun. Water Dist. v. Superior Court, supra,187 Ca1App.3d at p. 1113; but see 1 Kostka & Zischke, § 11.34, at p. 452 [substantial evidence standard should govern review of agency determination that section 21083.3 applies].) Gentry v. City of Murrieta, supra, 36 Ca1App.4th at p. 1406 fn 24 [emphasis added].) Notably, none of the cases cited by the City states that the substantial evidence standard applies to section 21083.3. The City cites to Defend Our Waterfront v. State Lands Com. (2015) 240 Cal App.4th 570,587; North Coast Rivers Alliance v. Westlands Water District (2014) 227 Cal App.4th 832,850; Sierra Club v. County of Sonoma (2017) 11 Cal App.5th 11, 24; and Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 CalApp.4th 598,610 to argue that the substantial evidence PETITIONER'S REPLY BRIEF 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 standard applies to this matter. A review of those cases, however, reveal that none of them were based upon Public Resources Code section 21083.3 or Guidelines section 15183. In fact, in CREED, supra, 134 Cal.App.4th at p. 612, fn 12, the court specifically stated that the parties did not argue the section 21083.3 applied to that matter. The City also cites Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135, 1145 in support of its substantial evidence argument which references CEQA Guidelines section 15813. That case is easily distinguishable from this matter. In Health First, in referencing CEQA Guidelines section 15183, the court found that substantial evidence supported the agency's administrative decision that the traffic mitigation measures were made applicable to . the Design Plan application. The court held: Although Health First and Tesco each engage in detailed, painstaking, and contradictory analyses of traffic impacts, we conclude substantial evidence supports the administrative decision of the Authority that the traffic mitigation measures were made applicable to the Design Plan Application. (Ca/beach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529,536, 127 Cal.Rptr.2d 1; § 21083.3; Guidelines,§ 15183.) Similarly, the issue of air quality impact was adequately considered by the Authority and received sufficient mitigation under the Specific Plan and in the Design Plan Application. That differs significantly from this case where the issue is focused on the Project's potential impacts and that such impacts were not addressed in the previous environmental review. (See Petitioner's Opening Brief at p. 11-15.) By comparison, the two courts that have considered the standard of review under Public Resources Code section 21083 and CEQA Guidelines section 15183 have stated that the I appropriate standard of review for 21083.3 is the fair argument standard. (Wal-Mart Stores, Inc. I 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, supra, 36 Cal.App.4th at 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].) The City argues that these cases are not determinative because neither case decided the issue. Despite the City's assertion, each court, provided guidance on how section 21083.3 should be viewed, the distinction between 21083.3 and other types of statutory exemptions PETITIONER'S REPLY BRIEF 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 referenced in the cases relied upon by the City, and the basis for stating that the appropriate standard of review in these matters is the "fair argument" standard. By comparison, the City fails to cite to a single case stating that the substantial evidence standard applies to section 21083.3 . 3. THE PROJECT IS NOT EXEMPT FROM CEQA UNDER PUBLIC RESOURCES CODE SECTION 21083.3 OR CEQA GUIDELINES SECTION 15183 The City did not address the CEQA issues raised by Petitioner with respect to the fair argument standard. The City's brief addressed the issues based upon substantial evidence standard. Thus, if the court finds that the fair argument standard applies as set forth in Walmart I and Gentry, the court should find for Petitioner as the City raised no objection or opposition to I Petitioner's arguments based upon the fair argument standard. Thus, Petitioner refers back to thel Opening Brief in support of its arguments that a fair argument supports the conclusion that the project is not exempt under section 21083.3 or CEQA Guidelines , section 15183 . Based upon the fair argument standard, Petitioner's Opening Brief established that that the I Project may have significant impacts that are peculiar to the site and peculiar to a hotel project inl such close proximity to schools and residential neighborhoods. As discussed in Petitioner's Opening Brief, one of the significant impacts that peculiar to the Project is the potential impacts to the aesthetics and views. (See Opening Br. at 12-14.) As discussed .by Petitioner, 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; Opening Br. at 12-14 ;) The City argues that since the previous environmental review found that aesthetic impacts from the development would be significant and unavoidable, Petitioner cannot now argue or assert that there is something peculiar about this Project that will make the impact to aesthetics more severe. Simply because the City found that the aesthetic impacts were significant and unavoidable does not grant them immunity from addressing additional impacts to aesthetics that are peculiar to this Project. As discussed in Petitioner's Opening Brief, Petitioner does not dispute that there are impacts from development in the area, but what is peculiar about this Project is the height and size has more impact to aesthetics than what was PETITIONER'S REPLY BRIEF 5 1 contemplated in the previous environmental documents. (AR 39, 934-942, 2011-2013, 1678.) 2 Those previous environmental documents did not address the height of buildings, especially a 3 four story building. (Id.) Thus, what is peculiar to this Project is the height and size of the 4 building, especially in light of the other development in the area. 5 Respondents argue that public debate is not evidence of aesthetic and land use 6 compatibility impacts. (Opp. Br. at 21.) With respect to aesthetics it is not about the character 7 of the community but the destruction of the aesthetic views associated with the development. 8 This is not a public debate about the impact, but acknowledged impacts the Project will have 9 to aesthetics. Impacts that are acknowledged by the City. 10 The City also challenges Petitioner's reliance on the cases that hold that residents' lay 11 opinions are sufficient to demonstrate that a project may have significant aesthetic and land 12 use impacts. (Opp. Br. 21; see Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572,583; 13 Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 14 1210-1211 (citing firsthand observations of citizens and business owners that the city was 15 already littered with "empty warehouse type rundown buildings and that the project would 16 result in more as part of the basis for concluding that the EIR must analyze the impacts from 17 urban decay); Ocean View Estates Homeowners Association v. Montecito Water District 18 (2004) 116 Cal.App.396, 402; Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322 (lay 19 testimony on traffic and biological impacts); Pocket Protectors v. City of Sacramento (2004) 20 124 Cal.App.4th 903, 932 (lay testimony on impacts to land use); Citizens Association for 21 Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 172 (lay 22 testimony on traffic impacts). To this end, the City asserts that these cases do not involve the 23 substantial evidence standard of review. While the City is correct, the lay opinions still 24 constitute substantial evidence they are just not as helpful to Petitioner's under the substantial 25 evidence standard if there is competing evidence. However, if the court agrees that the 26 appropriate standard of review is the fair argument standard, then such substantial evidence 27 can and does support the fair argument as the comments are based upon personal knowledge 28 and do not require technical expertise. PETITIONER'S REPLY BRIEF 6 1 The City next asserts that the types of aesthetics impacts in this case differ from those 2 cases cited by Petitioner. While Mr. Hyatt's testimony discussed the impact to the views from 3 the community he is developing, it is clear from his comments that not a just a few private 4 views are impacted, but a significant amount of the community and beyond the community. 5 Moreover, as noted in Petitioner's Opening Brief, General Plan Policy LU-12.1 (Hillside 6 Visual Access) states that "The City shall maintain visual access to hillside views by regulating 7 building orientation, height, and bulk." (AR 8057.) The Project is a four story hotel that is 8 not compatible with the hillside or existing area. (See AR 2897, 2899, 2903.) The height of 9 the hotel, along with blocking the hillside views are peculiar to this Project as demonstrated by 10 Mr. Hyatt's testimony. 11 As substantial evidence in the record demonstrates that there are impacts "peculiar to" the 12 Project that were not addressed as significant impacts in the previous environmental documents, I 13 the exemption under CEQA Guidelines section 15183 and Public Resources Code section 14 21083.3 do not apply to this matter. 15 4. THE CITY FAILED TO MAKE THE REQUIRED FINDINGS REGARDING 16 MITIGATION MEASURES 17 The City failed to make the appropriate findings under section 20183.3(c). The City 18 asserts that it only need to make a general finding that any mitigation measures in the prior EIR 19 that apply to the project's specific effects will be undertaken. Section 21083.3(c) states: 20 "all public agencies with authority to mitigate the significant effects shall undertake or require the undertaking of any feasible mitigation measures specified 21 in the prior environmental impact report relevant to a significant effect which the project will have on the environment or, if not, then the provisions of this section 22 shall have no application to that effect. The lead agency shall make a finding~ at a public hearing, as to whether those mitigation measures will be undertaken. 23 24 25 26 27 28 The reference to those mitigation measures implies that the findings need to have more specificity to them with respect to the mitigation measures that are applicable. Just referencing every mitigation measure identified the relevant environmental documents does not inform the public or decisionmakers what constitutes "those" mitigation measures. Section 21083. 3 ( c) therefore requires the lead agency to "make a finding, at a public hearing, as to whether those PETITIONER'S REPLY BRIEF 7 1 mitigation measures will be undertaken." (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at 2 1405-1406 [emphasis added].) While, the City's Resolution states that "the project shall comply I 3 with the Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan! 4 EIR Mitigation Measures" (AR 013), it does not provide the public any information as to which I 5 mitigation measures apply to the Project. 6 The City relies upon Health First, supra, 174 Cal.App.4th at 1145 to argue that the specific! 7 mitigation measures need not be identified. Such reliance is misplaced. First, nothing in Health I 8 First states that the court considered whether the 21083.3(c) requires the agency to identify the 9 applicable mitigation measures. Second, a review of Health First, indicates that the case was 10 about specific mitigation measures regarding traffic and air quality. (174 Cal.App.4th at 1145.) 11 B. THE PROJECT VIOLATES LINCOLN MUNICIPAL CODE 12 The City asserts that Petitioner's challenge is premised on a misreading of Lincoln 13 Municipal Code section 18.56.010. Petitioner, however, applied the same reading of the LMC 14 as the City and City Council did during the hearing and in the City's Resolution approving the 15 Project. The City argues that for a conditional use permit such as in this matter, the City only 16 ·need make a finding under section 18.56.010 and need not make any findings under section 17 18.56.020. The City, however, made no such findings under section 18.56.010. (See AR 007- 18 009.) The City's Resolution referenced section 18.56.010 in the "Whereas" section of the 19 Resolution, but the findings section makes no reference to section 18.56.010. (AR 007 .. ) The 20 findings regarding the Conditional Use Permit in the Resolution were exclusively under section 21 18.56.020. (AR 008.) This is further confirmed by the City's Opposition Brief that provides 22 no citation to the administrative record identifying that findings were made under section 23 18.56.010. (See Opp. Br. at p. 29.) Moreover, neither the Planning Commission, the City 24 Council, nor presumably the City's attorney interpreted section 18.56.010 in the manner 25 presented in the City's Opposition Brief. (See AR 007-009.) During the staff presentation to 26 the City Council, planning staff stated "Along with the design aspects in the Specific 27 Development Plan and Development Permit is required to make four findings for a Conditional 28 Use Permit. (AR 2823-2830; see also 3111-3115 (staff presentation to the Planning PETITIONER'S REPLY BRIEF 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commission); AR 2268-2273 (Staff Report to Planning Commission identifying the four required findings under LMC section 18.56.020).) Thus, nothing during the City's proceedings in this matter interpreted section 18.56.010 as the City now asks this court to interpret that section. 2. THE PROJECT IS NOT SUBSTANTIALLY SIMILAR IN CHARACTERISTIC TO A USE OR USES WITHIN THE DISTRICT Lincoln Municipal Code section 18.56.020 requires that City find that the use is substantially similar in characteristic to a use or uses currently within the district. Such finding I must be based upon substantial evidence. (AR 008.) As discussed in Petitioner's Opening Brief, ! I the record demonstrates that the proposed use is not substantially similar in characteristic to the uses currently within the district. The City does not dispute that there no substantially similar uses in this district. Instead, Respondents argue that it is similar to the uses in other areas that have similar zoning . (Opp . Br. at p . 30.) To this end, the City argues that the use of the term "district" refers to zoning "districts" as established in the zoning code. (Id) That, however, is not what section 198.56.020 states. It refers to use or uses currently within the district. (Emphasis added.) It does not reference uses elsewhere within the City or in similarly zoned I districts . As acknowledged by the City, the Holiday Inn is one and a half miles from the Project and not within the same district. While they both may share the same zoning designation, the I Holiday Inn is not in the same district as the Project. The LMC states within the district, not within a similar district somewhere else within the City. 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 18.56.020 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.) As discussed by Petitioner , the City's Findings failed to adequately address the hotel's proximity to homes and a school. (See Id.) The City asserts that City staff used its professional PETITIONER'S REPLY BRIEF 9 I I 1 judgment and public testimony to determine that the location of the hotel is beneficial. (Opp. 2 Br. at p. 33; citing AR 2270.) A review of the citation, however, reveals that the Staff Report, 3 fails to indicate how having a high school in such close proximity to hotel would benefit the 4 high school (or the John Adams Academy). (Id.) Again, as expressed by the community, 5 having a hotel in such close proximity to these schools would be detrimental not a benefit. (See I 6 AR 3180, 3182, 3183, 3186-87, 3189, 3202, 3210-3212, 3218-3220, 3226, 3232, 3235, 3238, 7 3240,4085,4102,4104,4106,4110,4187,4211,4226,4242-4243,4269,4270,4278,4293.) 8 The Staff Report indicates that commercial uses (service oriented) near a school benefits 9 parents of the school children but again fails to state how a hotel in such close proximity would 10 benefit either the parents or the children. (AR 2270.) 11 CONCLUSION 12 Based upon the foregoing and Petitioner's Opening Brief, Petitioner respectfully requests 13 that the Court issue a peremptory writ of mandate ordering Respondents to: (a)vacate and set 14 aside its approval of the Project grounds that it violates the California Environmental Quality 15 Act, Public Resources Code section 21000 et seq.; Lincoln Municipal Code 18.56.010; and 16 Government Code section 65300 et seq.; (b) vacate and set aside of Respondents' Resolution 17 No. 2019-242; (c) vacate and set aside Planning Commission Resolution No. 2019-39 and 18 Resolution No. 2019-40. 19 Respectfully submitted, 20 DATED: June 12, 2020 21 22 23 24 25 26 27 28 PETITIONER'S REPLY BRIEF LAW OFFICES OF DONALD B. MOONEY By.LZ.:z::::::=~~~L£.~~~~-- Attomey for Pet Lincoln Twelve 1 10 1 2 3 4 5 6 7 8 9 10 \ I PROOF OF SERVICE I am 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 June 12, 2020, I served a true and correct copy of PETITIONER'S REPLY 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 11 below: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kristine Mollenkopf City Attorney City of Lincoln 600 Sixth Street Lincoln, CA 95648 Christopher J. Butcher Thomas Law Group 455 Capitol Mall, Suite 801 Sacramento, CA 95814 Paul N. Meyer Elgund Meyer Koegel 2990 Lava Ridge Court, Suite 205 Roseville, CA 95661 Attorney for Respondents City of Lincoln and City Council of the . City of Lincoln Attorney for Respondents City of Lincoln and City Council of the City of Lincoln 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 June 12, 2020, at Davis, California. PETITIONER'S REPLY BRIEF 11
