DONALD B. MOONEY (SBN153721)
MARSHA A. BURCH (SBN 170298)
LAW OFFICES OF DONALD B. MOONEY
129 C Street, Suite 2
Davis, California 95616
Telephone: (530) 758-2377
Facsimile: (530) 758-7169
Attorneys for Petitioner
Merced County Farm Bureau
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MERCED
MERCED COUNTY FARM BUREAU )
CITY OF LIVINGSTON; CITY OF )
LIVINGSTON CITY COUNCIL; )
AND DOES 1-10 )
DOES 11-100 )
Real Parties in Interest. )
VERIFIED PETITION FOR
WRIT OF MANDATE
25 1 By this action, Petitioner Merced County Farm Bureau (“MCFB”) challenges the
26 approval on October 21, 2008, by the City of Livingston and the City of Livingston City
27 Council (“City” or “Respondent”) of the City of Livingston 2025 General Plan Update (“GPU”
28 or “Project”). Petitioners also challenge Respondents’ certification of an environmental impact
I report (“EIR”) for the Project. Petitioners allege that these actions violate the California
2 Environmental Quality Act, Public Resources Code section 21000 et seq. (“CEQA”) and the
3 CEQA Guidelines, Title 14, California Code of Regulations, section 15000 et seq. and
4 California Planning Law, Government Code section 65100 et seq. Petitioners seek a
5 determination from this Court that Respondent’s approval of the Project is invalid and void and
6 that the EIR prepared for the Project fails to satisfy the requirements of the State Planning Law,
7 CEQA and the CEQA Guidelines.
9 2. Petitioner Merced County Farm Bureau (“MCFB”) is an independent, non-
10 governmental, grassroots organization that advocates for the men and women who provide
11 food, fiber, and nursery products for our community, state, and nation. MCFB exists for the
12 purpose of improving the ability of individuals engaged in production agriculture to utilize
13 California resources to produce food and fiber in the most profitable, efficient and responsible
14 manner possible guaranteeing our nation a domestic food supply. To that end, it is involved in
15 efforts to protect the resources of the Valley, including air and water quality and the
16 preservation of agricultural land. The MCFB is composed of persons whose economic,
17 personal, aesthetic, and property interests will be severely injured if the adoption of the project
18 is not set aside pending full compliance with CEQA and all other environmental laws. The
19 MCFB brings this petition on behalf of all others similarly situated who are too numerous to be
20 named and brought before this court as petitioners. As a group composed of residents and
21 property owners generally within the San Joaquin Valley and specifically in Merced County,
22 the MCFB is within the class of persons beneficially interested in, and aggrieved by, the acts of
23 respondents as alleged below. Members of the MCFB participated in the administrative
24 processes herein, and exhausted its remedies. Accordingly, the MCFB has standing to sue.
25 3. The MCFB and its members have a direct and substantial beneficial interest in
26 ensuring that Respondents comply with the laws relating to environmental protection,
27 particularly CEQA. The MCFB is affected by Respondents’ failure to prepare an adequate EIR
28 for the Project.
VERIFIED PETITION FOR WRIT OF MANDATE 2
I 4. Respondent City of Livingston is a general law city existing under the laws of the
2 State of California, located in Merced County. The City is the CEQA “lead agency” for the
3 Project. As lead agency for the Project, the City is responsible for preparation of an
4 environmental document that describes the Project and its impacts, and, if necessary evaluates
5 mitigation measures and/or alternatives to lessen or avoid any significant environmental
7 5. Respondent City of Livingston City Council is a legislative body duly authorized
8 under the California Constitution and the laws of the State of California to act on behalf of the
9 City of Livingston. Respondent City of Livingston City Council is responsible for regulating
10 and controlling land use within the City including, but not limited to, implementing and
11 complying with the provisions of CEQA and the CEQA Guidelines.
12 6. Petitioner is unaware of the true names and capacities of Respondents identified as
13 Does 1-10. Petitioner is informed and believes, and on that basis alleges, that Respondents
14 Does 1-10, inclusive, are individuals, entities or agencies with material interests affected by the
15 Project or by the City’s actions with respect to the Project. When the true identities and
16 capacities of these Respondents have been determined, Petitioner will, with leave of Court if
17 necessary, amend this Petition to insert such identities and capacities.
18 7. Petitioner is unaware of the true names and capacities of Real Parties in Interest
19 identified as Does I 1-100. Petitioner is informed and believe, and on that basis alleges, that
20 Respondents Does 11-100, inclusive, are individuals, entities or agencies with material interests
21 affected by the Projects or by the City’s actions with respect to the Project. When the true
22 identities and capacities of these Real Parties in Interest have been determined, Petitioner will,
23 with leave of Court if necessary, amend this Petition to insert such identities and capacities.
24 BACKGROUND FACTS
25 A. Administrative Process
26 8. On July 16, 2008, the City released for public review and comment the draft
27 Environmental Impact Report (“Draft EIR”) for the GPU. No Public hearings were held on the
28 Draft EIR.
VERIFIED PETITION FOR WRIT OF MANDATE 3
I 9. In July 2008, a draft GPU was published. The GPU revised the City’s 1999
2 General Plan. The GPU expanded the City’s previous SOI to add 2,905 acres of land and
3 include an additional 2,261 acres of Urban Reserve. Thus, the GPU added 5,166 acres to the
4 City’s Planning Area. The Planning Area is bound by the Merced River and Olive Avenue to
5 the north, Washington Boulevard to the west, Westside Boulevard to the south and Cressey
6 Avenue to the east. The GPU provides for an increase in population of over 100,000 people in
7 the City of Livingston by the year 2025, with a present population of approximately 13,287
9 10. After the close of the public comment period on the Draft EIR, the City published
10 the Final EIR and thereafter the Planning Commission considered the Final EIR during a
11 meeting on September 23, 2008, where the Planning Commissioners voted 3 to 2,
12 recommending that the City not certify the Final EIR. The City Council considered
13 certification of the Final EIR on October 7 and October 21, 2008.
14 11. On October 21, 2008, the City, through its City Council, adopted the Final EIR
15 and approved the Project.
16 12. On October 27, 2008, the City filed a Notice of Determination with the County
17 Clerk of Merced County as provided for in Public Resources Code, section 21152.
18 B. The City of Livingston 2025 General Plan Update
19 13. Under California law (Govt. Code § 65100, et seq.), every city is required to have
20 a general plan, which acts as “the constitution for growth” in that city. The Project at issue is an
21 update by Respondent to the 1999 City General Plan. The updated General Plan adopts goals
22 and policies that will direct future growth, and transportation in the City of Livingston from the
23 present to 2025, with an Urban Reserve designed to direct urban development through 2050.
24 14. The Project area consists of two components: the 20-year Buildout Area that
25 includes the areas within the existing City boundary, the existing and proposed Spheres of
26 Influence (“SOI”), and, the City’s projected 50-year growth boundary, which includes the
27 Urban Reserve Areas. Together, the two components are referred to as the “Planning Area.”
28 15. The GPU provides policy direction regarding land use, circulation, and urban
VERIFIED PETITION FOR WRIT OF MANDATE 4
I boundaries and designates land uses within the Planning Area.
2 16. The City limits prior to adoption of the GPU contained approximately 3.5 square
3 miles (2,255 acres). The previous SOI, not including those lands currently located within City
4 limits, contained an additional 977 acres of land (approximately). The GPU’s SOT added
5 approximately 2,905 acres of land, while the General Plan Planning Area Boundary would
6 ultimately expand the City to include an additional 2,261 acres of Urban Reserve, resulting in a
7 total of 8,398 acres. Thus, the GPU expanded the urban boundary from approximately 3,232
8 acres to 8,398 acres.
9 17. The GPU planning area contains approximately 6,496 prime agricultural acres that
10 are anticipated to convert to urban use with implementation of the General Plan.
11 Approximately 608 acres are subject to active Williamson Act contracts. No enforceable
12 mitigation measures were included in the GPU or the EIR to lessen the severity of the impacts
13 to agriculture or to address the existing Williamson Act contracts.
14 18. City identifies the GPU as intended to accommodate City growth over the next 20
15 to 50 years. The Merced County Association of Governments projects a population of the City
16 for the year 2025 is 18,600. The GPU provides for a population explosion that will result in a
17 2025 population of 102,958.
18 .IURISDICTION AND VENUE
19 19. This Court has jurisdiction over the matters alleged in this Petition pursuant to
20 Code of Civil Procedure section 1085, and Public Resources Code section 211.68.5. In the
21 alternative, this Court has jurisdiction pursuant to Code of Civil Procedure section 1904.5 and
22 Public Resources Code section 21168.
23 20. Venue for this action properly lies in the Superior Court for the State of California
24 in and for the County of Merced pursuant to section 394 of the Code of Civil Procedure.
VERIFIED PETITION FOR WRIT OF MANDATE 5
I EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND INADEQUACY OF REMEDY
3 21. Petitioner has performed any and all conditions precedent to filing the instant
4 action and has exhausted any and all available administrative remedies to the extent required by
5 law. Petitioner timely submitted written comments on the Draft EIR.
6 22. Petitioner has complied with the requirements of Public Resources Code, section
7 21167.5 by mailing written notice of this action to the Respondents. A copy of this written
8 notice and proof of service are attached as Exhibit A to this Petition for Writ of Mandate.
9 23. Petitioner complied with Public Resources Code section 21167.6 by concurrently
10 filing a request concerning preparation of the record of administrative proceedings relating to
1 1 this action.
12 24. Petitioner has no plain, speedy or adequate remedy in the course of ordinary law
13 unless this Court grants the requested writ of mandate to require Respondents to set aside their
14 approval of the GPU Project, and certification of the Final EIR. In the absence of such remedy,
15 Respondents’ approvals will remain in effect in violation of State law.
16 25. This action has been brought within 30 days of the filing of the Notice of
17 Determination as required by Public Resources Code section 21167(c).
19 26. Petitioner has standing to assert the claims raised in this Petition because Petitioner
20 and its members’ environmental interests are directly and adversely affected by the City’s
21 approval of the Project.
22 ARBITRARY AND CAPRICIOUS ACTIONS
23 27. Petitioner brings this action on the basis, among others, of Government Code
24 section 800, which awards Petitioner’s attorneys’ fees in actions to overturn agency decisions
25 that are arbitrary and capricious, such as the decisions here in question.
VERIFIED PETITION FOR WRIT OF MANDATE 6
FIRST CAUSE OF ACTION
(Abuse of Discretion)
VIOLATIONS OF STATE PLANNING LAW
Govt. Code § 65100, et seq.
28. Petitioner realleges and incorporates by reference Paragraphs 1 through 27,
inclusive, of this Petition, as if fully set forth below.
29. Respondents committed a prejudicial abuse of discretion and failed to proceed in a
manner required by law by adopting a GPU that is arbitrary, capricious and unreasonable under California General Plan Law, Government Code section 65100 et seq.
30. The GPU is internally inconsistent and fails to comply with the General Plan Law
requirement that a general plan be internally consistent.
31. The GPU fails to provide for protection of permanent undeveloped open space,
including protection for biological resources, agricultural lands and scenic viewshed resources in violation of State planning law and the Open Space Lands Act.
32. Respondent’s failure to comply with the requirements of California Planning Law
renders the GPU inadequate as a matter of law and requires that Respondent’s approval of the GPU be set aside.
SECOND CAUSE OF ACTION
(Abuse of Discretion)
VIOLATIONS OF CEQA
33. Petitioner realleges and incorporates by reference Paragraphs 1 through 32,
inclusive, of this Petition, as if fully set forth below.
34. CEQA requires the preparation of an EIR in order to identify the significant effects
on the environment of a project, so that measures to mitigate or avoid those effects, or alternatives that avoid those effects, can be devised. (Pub. Resources Code §§ 21002.1(a),
21060.) Compliance with the procedural requirements of CEQA sets the stage for development
of mitigation measures and alternatives. Without a proper procedural foundation, a local
agency cannot comply with CEQA’s mandate that public agencies should not approve projects
as proposed if there are feasible alternatives or feasible mitigation measures available which
VERIFIED PETITION FOR WRIT OF MANDATE 7
I would substantially lessen the significant environmental effects of such projects. (Pub.
2 Resources Code § 21002.)
3 35. CEQA’s fundamental goals are to foster informed decision-making and to fully
4 inform the public about the project and its impacts. (CEQA Guidelines § 15003.)
5 36. An EIR must provide public agencies and the public in general with detailed
6 information about the effect that a project is likely to have on the environment, to list ways in
7 which the significant effects of a project might be minimized, and to indicate alternatives to
8 such a project. (Pub. Resources Code § 21061.) California Code of Regulations, title 14
9 (CEQA Guidelines), section 15126.2, requires that the FEIR identify the significant
10 environmental impacts of the project, including direct and indirect impacts. CEQA Guidelines
I1 section 15126.4 requires that the FEIR describe all feasible measures that can minimize
12 significant adverse impacts of the project. CEQA does not allow an agency to defer analysis of
13 impacts and mitigation measures. (CEQA Guidelines § 15126.4(a)(I)(B).)
14 37. Respondents committed a prejudicial abuse of discretion and failed to proceed in
15 a manner required by law by relying on an EIR that fails to meet the requirements of CEQA for
16 disclosure, analysis, and/or mitigation of significant project impacts. As discussed below, the
17 deficiencies in the Final EIR include an inadequate project description, an inadequate
18 alternatives analysis, an inadequate analysis regarding impacts to agricultural resources, air
19 quality, land use, traffic and circulation, water resources, water quality, and public services, as
20 well as a failure to properly evaluate flooding risks and the Project’s contribution to global
21 warming. The EIR also includes an inadequate analysis of the Project’s cumulative impacts.
22 A. Project Description, Need for the Project and Project Objectives:
23 38. The EIR fails to provide an adequate description of the Project and fails to
24 acknowledge existing environmental conditions and existing available development area that
25 may fulfill some portion of the Project objectives.
26 39. The EIR misstates the need for and the objectives of the Project, and there is no
27 substantial evidence in the record to support the conclusion that growth rates require the radical
28 expansion of the Planning Boundaries and more than doubling of the size of the urban area to
VERIFIED PETITION FOR WRIT OF MANDATE 8
1 accommodate more than 100,000 new residents by 2025. There is also no substantial evidence
2 to show that buildout of the existing residential land is imminent, or even likely during the 20-
3 year planning timeframe. In fact, the City has not even reached the population projections of
4 the 1999 General Plan.
5 40. The Project description also fails to include the required City infrastructure and
6 services that will be necessary to serve the urban development within the City sphere of
8 41. The Project Description is also inadequate under CEQA because the it fails to
9 include adequate detail regarding the optional agricultural buffers between urban and
10 agricultural uses, it fails to adequately describe the resource conservation area, it fails to
1 1 describe the timing and potential impacts of extending urban services into agricultural areas,
12 and fails to adequately describe truck routes and traffic circulation.
13 42. The Project description also failed to include the “allocation policy” for available
14 City services, which prevented the EIR from evaluating the impacts associated with the
15 allocation policy.
16 43. The EIR relies upon reference to several “master plans” as a part of the Project
17 description and as providing mitigation measures for various impacts, and the master plans were
18 not circulated with the EIR, rendering the EIR deficient as an informational document, and
19 resulting in a failure to include an adequate project description and feasible mitigation
21 B. Impacts Analyses and Development of Mitigation Measures
22 44. The EIR fails to provide adequate analysis of the Project’s impacts, and improperly
23 fails to provide sufficient detail regarding the foreseeable impacts that will arise from
24 development in the GPU area. Analysis of many foreseeable impacts is improperly deferred.
25 45. The EIR fails to provide adequate mitigation measures that avoid, minimize,
26 rectify, reduce, or compensate for significant environmental impacts. The EIR also improperly
27 contains mitigation measures that amount to the deferral and speculation of the solutions to
28 significant environmental impacts. For example, the EIR does not provide for the Respondent
VERIFIED PETITION FOR WRIT OF MANDATE 9
I to mitigate impacts to agricultural resources. The EIR also improperly avoids analysis of
2 impacts that are foreseeable and will be a direct result of Project approval, and thus improperly
3 defers analysis of the actual impacts and formulation of mitigation measures.
4 46. The EIR fails to adequately consider and evaluate all potentially feasible measures
5 to mitigate the Project’s significant impacts.
6 47. The EIR fails to adequately analyze impacts and also fails to evaluate potentially
7 feasible mitigation measures in every area of impact included in the EIR. The following
8 examples illustrate the most egregious shortcomings:
9 1. Air Quality and Greenhouse Gas Emissions
10 48. The GPU will serve as the template for growth and development in the City for the
1 1 next 20 to 50 years. The GPU accommodates a population increase of more than 80% within
12 the next 20 years, which will guarantee major increases in driving, and concomitant increases in
13 emissions of air pollutants.
14 49. The GPU also includes plans for residential and commercial development without
15 requiring the density, energy efficiency and alterative energy sources that could limit pollutant
16 emissions, and will allow the replacement of productive agricultural land with buildings,
17 paving, and hardscape, without requiring offsetting measures to counter the global warming
1 8 effects of development.
19 50. The California legislature has found that “Igilobal warming poses a serious threat
20 to the economic well-being, public health, natural resources, and the environment of
21 California.” (Health and Safety Code section 38501(a).) Taking a leading role in meeting the
22 threat posed by global warming, in 2006 the Legislature enacted Assembly Bill 32 (“AB 32”
23 codified as Health and Safety Code section 38501, et .seg.) a law that requires the State to
24 reduce its levels of greenhouse gas emissions to 1990 levels by 2020, a time well within the
25 2025 planning horizon of the GPU.
26 51. CEQA requires that a public agency undertaking a project with the potential to
27 harm the environment must prepare an EIR that uncovers, analyzes, and fully discloses the
28 reasonably foreseeable effects on the environment of the project, and adopts all feasible
VERIFIED PETITION FOR WRIT OF MANDATE 10
I measures available to mitigate those effects. Here, despite the enactment of AB 32, the Final
2 EIR on the GPU does not adequately disclose the effects of the GPU on emissions of
3 greenhouse gasses, fails to adequately quantify or estimate the current levels of greenhouse gas
4 emissions in the City, fails to adequately quantify the increases in greenhouse gas emissions that
5 the full execution of the GPU will cause, makes no attempt to analyze the effects of those
6 increases on global warming or the greenhouse gas emissions reductions required by AB 32,
7 and neither adopts all feasible mitigation measures nor makes findings supported by substantial
8 evidence in the record that such mitigation measures are infeasible, all in violation of CEQA.
9 52. As the FEIR acknowledges, the City already has a critical air pollution problem as
10 to conventional air pollutants, exceeding air quality standards. The Final EIR projects an
1 1 increase in driving and air pollutant emissions due to driving over the time period covered by
12 the GPU. However, the Final EIR does not disclose or analyze the amount of increase in
13 emissions, or the distribution and concentration of the pollutants that this increase will cause.
14 Neither does it disclose or adequately discuss the potential effects on human health in general,
15 and to children’s lung capacity, asthma rates, adult rates of heart attack or cardiovascular
16 damage of these increases in pollutant emissions and concentrations. Also absent from the
17 Final EIR is a full discussion of the effect of increased air pollution on crop production, or other
18 sectors of the economy that will suffer damage from the increased driving and air pollution that
19 the GPU will accommodate. The Final EIR also fails either to adopt all feasible mitigation
20 measures, in fact, it fails to adopt any enforceable, effective mitigation measures.
21 53. The EIR improperly concluded that the Project’ impacts to air quality will be
22 significant, unmitigable and unavoidable. There is no substantial evidence in the record to
23 support the City’s decision to ignore feasible mitigation measures, including the possibility of
24 acquiring Emission Reduction Credits from the San Joaquin Valley Air Pollution Control
25 District, or securing off-site reductions in existing criterion emissions equal to or greater than
26 the quantified new criterion emissions that will result from implementation of the GPU.
VERIFIED PETITION FOR WRIT OF MANDATE 11
I 54. The EIR also improperly concluded that the Project’s contribution to greenhouse
2 gas emissions could not be mitigated, despite readily available and feasible mitigation measures,
3 such as the use of a Carbon Offset Credit Bank.
4 55. The EIR failed to analyze other feasible mitigation measures for reducing
5 greenhouse gas emissions, in the form of reduction in energy consumption through enforceable
6 policies for energy reduction measures for all development under the GPU.
7 2. Agriculture
8 56. The total planning area contains approximately 6,496 prime agricultural acres that
9 are anticipated to convert to urban use with implementation of the General Plan.
10 Approximately 608 acres are subject to active Williamson Act contracts. Some of the
I 1 agricultural lands within the Urban Reserve are in farmland conservation easements. Impacts to
12 agricultural lands are recognized in the DEIR as significant and unavoidable.
13 57. The EIR states that the 2025 General Plan is intended to be a “self-mitigating”
14 document, in that its policies are designed to mitigate or avoid environmental impacts resulting
15 from implementation of the updated plan. Policies proposed to reduce impacts associated with
16 the loss of agricultural lands largely include encouraging landowners and/or Merced County to
17 take action. Included are many “should” statements. In fact, these policies neither reduce nor
18 avoid the impact of the loss and conversion of important farmland that will result from
19 implementation of the GPU, as they are unenforceable. The GPU does not identify measurable
20 performance standards by which the success of the policies can be determined. There is no
21 identification of who is responsible for the policy or a schedule of implementation.
22 58. The City failed to consider feasible mitigation measures to reduce the severity of
23 the impacts to agriculture. This failure is particularly egregious in light of the fact that the City
24 of Livingston includes some of the richest, most productive farmland in the world, and the first
25 objective listed in the EIR states that the GPU is intended to preserve and protect agricultural
27 59. The City failed to consider the direct and indirect impacts to City land use and
28 infrastructure in place to support the agricultural activities.
VERIFIED PETITION FOR WRIT OF MANDATE 12
I 60. The City failed to respond to the issue raised by property owners in the Urban
2 Reserve area who have farms under conservation easements. The intent of the easements is to
3 maintain agricultural production on the burdened parcels in perpetuity. The City failed to
4 evaluate the impacts related to the areas of permanent farmland easement within the Urban
6 3. Water Quality, Flooding and Water Supply
7 61. The EIR relies upon erroneous calculations and assumptions regarding population
8 growth and water usage and the City failed to prepare the analysis and plans required by SB
9 1087, 610 and 221.
10 62. The EIR failed to include analysis of the fact that the City is currently not meeting
11 the California Department of Health Services criteria for Adequate Source Capacity, is not
12 meeting its current water needs, and there is no evidence to support the conclusion that
13 sufficient water supply will be available to supply the needs of development provided for in the
15 63. The EIR used unsupported and unrealistic assumptions regarding per capita water
16 consumption within the GPU area.
17 64. In its evaluation of water supply needs the EIR improperly included surface water
18 consumption as groundwater consumption, invalidating any conclusions regarding previous
19 water supply usage and future water supply needs under the GPU.
20 65. The EIR fails to adequately consider impacts to City water supply and wastewater
21 treatment facilities, and the potential for GPU wastewater treatment facilities to be located
22 within the floodplain and in close proximity to the City’s groundwater and drinking supply.
23 66. EIR failed to adequately evaluate the potential flooding impacts at the DWWTP
24 and the IWWTP, and failed to evaluate mitigation measures for the flooding risk at the
25 DWWTP and IWWTP.
26 67. The EIR failed to analyze the impacts associated with the expansion of the
27 DWWTP from 2.0 million gallons per day to 4.0 million gallons per day, which will be required
28 by 2009 or 2010 to accommodate the GPU’s projected population increase.
VERIFIED PETITION FOR WRIT OF MANDATE 13
1 68. The EIR also improperly defers evaluation of flood risk in the FEMA regulatory
2 flood zone and/or the contiguous areas in the northwest quadrant of the General Plan Planning
3 Area, including lower-lying portions of the River Ranch Special Planning Area, and failed to
4 evaluate the 200-year flood plain.
5 69. EIR fails to analyze the impacts of increased population coupled with high levels
6 of nitrate, dibromochloropropane (“DBCP”) and 1, 2, 3 -trichloroproprane (“TCP”), and arsenic
7 concentrations in shallow City groundwater wells, and the EIR failed to include analysis of
8 relevant, recent studies and information and instead improperly relied on outdated groundwater
10 70. The EIR failed to adequately analyze the impacts to the groundwater basin,
11 including potential depletion, and failed to consider feasible mitigation measures designed to
12 lessen the severity of these impacts.
13 71. With respect to the groundwater basin, Impact 4.10.7 acknowledges that future
14 development under the GPU could result in drawdown of the groundwater aquifers. The EIR
15 deferred analysis and development of mitigation measures, including a mitigation measure
16 requiring the City to coordinate with Merced Irrigation District and implement “applicable and
17 appropriate and feasible recommended actions in the Merced Water Supply Plan Update.” The
18 mitigation measure is unenforceable and fails to include any performance standard. Despite the
19 complete deferral of meaningful study and analysis, the EIR concludes that this impact is
20 mitigated to a less than significant level.
21 72. A further example, Impact 22.214.171.124 indicates that increased water consumption
22 will result in increased ground and surface water “pumpage.” The EIR concludes that this
23 impact is less than significant, relying on a mitigation measure that requires the City, within two
24 years, to prepare a plan and schedule for implementing the remaining applicable Urban Water
25 Management Planning Act Demand Management Measures.
26 73. The EIR failed to evaluate the impacts of the 42-inch sewer trunk line that was
27 installed without any CEQA review. The City ignored comments regarding the need for
28 evaluation of the impacts created by the trunk line, but the GPU includes the installation of the
VERIFIED PETITION FOR WRIT OF MANDATE 14
I line, and since there has been no environmental review of the impacts of its installation, those
2 impacts must be evaluated in connection with the GPU.
3 4. Traffic and Circulation
4 74. The EIR failed to adequately address impacts to traffic and circulation by
5 improperly assuming that the improvements identified in the Circulation Master Plan will be
6 installed within 20 years. This assumption is not based upon substantial evidence in the record,
7 and the EIR further fails to consider the impacts in the event the improvements are not installed
8 during that timeframe.
9 75. The EIR also failed to evaluate the impacts of the construction of the
10 improvements identified in the Circulation Master Plan
II 76. The EIR’s analysis of existing traffic patterns failed to include analysis of heavy
12 periods of traffic, including harvest periods from late August through October.
13 77. The EIR concludes that several County roadways will be severely impacted by the
14 Project, but no mitigation measures were considered. For example, Impact 4.4.2 discusses the
15 fact that the level of service at several intersections will be reduced to a “D” as a result of the
16 Project. The EIR’s Executive Summary notes that no mitigation is feasible for Impact 4.4.2, but
17 the discussion in the Draft EIR actually indicates that the GPU includes a policy that lowers the
18 threshold for a finding of significance to level “D.” Thus, the City attempted to avoid
19 considering mitigation measures for the admittedly significant impact by proposing a new
21 78. The EIR also improperly deferred consideration and adoption of feasible
22 mitigation measures for traffic impacts. For example, for Impacts 4.4.6 and 4.4.7,
23 acknowledging significant impacts to City streets as a result of the GPU, the EIR includes
24 mitigation requiring the City to monitor and update the circulation master plan. This defers
25 analysis and development of mitigation measures, and fails to include any performance
26 standards, simply calling for the payment of fair share fees into unknown mitigation funds to be
27 developed at some point in the future.
VERIFIED PETITION FOR WRIT OF MANDATE 15
1 5. Public Services
2 79. The EIR failed to adequately evaluate impacts to City services. For example, the
3 EIR failed to evaluate response times for emergency services in light of the GPU traffic
4 impacts, in the case of some roads/intersections the level of service will be a “D” or an “F.”
5 80. The EIR improperly assumed that the DWWTP would be expanded, without
6 evaluation of the regulatory, financial and environmental hurdles that may prevent such
8 81. The EIR improperly concluded that no mitigation measures existed to reduce the
9 impacts associated with the increase in treated wastewater effluent, and improperly deferred
10 evaluation of the impacts and development of mitigation measures.
1 1 82. The EIR failed to adequately address the Project’s safety impacts at railroad
12 crossings, and failed to adequately respond to comments from the Public Utilities Commission
13 regarding this issue.
14 6. Land Use
15 83. Respondents violated CEQA in approving the Project because the Project conflicts
16 with the existing policies and goals of existing plans and policies, including the Merced County
17 General Plan and existing habitat conservation plans.
18 84. The Project also conflicts with the Williamson Act, impacting several properties
19 under Williamson Act contracts, as well as conflicting with agricultural conservation efforts,
20 including farmland conservation easements.
21 C. Alternatives Analysis
22 85. The EIR fails to provide a selection and discussion of alternatives that fosters
23 informed decision-making and informed public participation. The alternatives analysis in the
24 EIR does not meet the requirement of a reasonable range of alternatives that lessen the Project’s
25 significant environmental impacts, and does not focus on alternatives that either eliminate
26 adverse impacts or reduce them to insignificance, even if they would to some degree impede the
27 Project’s objectives, as required by CEQA.
VERIFIED PETITION FOR WRIT OF MANDATE 16
I 86. Specifically, the EIR failed to consider the alternative of locating the Domestic
2 Wastewater Treatment Plant (“DWWTP”) on the Industrial Wastewater Treatment Plant
3 (“IWWTP”) site, or at any other feasible location outside of the Merced River floodplain.
4 87. There is no substantial evidence in the record to support the conclusion that the
5 Project was the “environmentally superior” alternative.
6 D. Procedural Requirements and Agency Findings
7 88. Prior to approving the Project, the City Council failed to consider some of the
8 public comments submitted during the environmental review process.
9 89. The City refused to make documents relating to the Project available to the public
10 during the course of review of the GPU, in violation of the California Public Records Act, the
1 1 Brown Act and CEQA.
12 90. The responses to comments in the Final EIR fail to meet the requirements of
13 CEQA in that they neither adequately dispose of all the issues raised, nor provide specific
14 rationale for rejecting suggested Project changes, mitigation measures, or alternatives. CEQA
15 requires that the lead agency evaluate and respond to all environmental comments on the Draft
16 EIR that it receives during the public review period. The response(s) must describe the
17 disposition of the issue(s) raised and must specifically explain reasons for rejecting suggestions
18 and for proceeding without incorporating the suggestions. The Final EIR’s responses to
19 comments fail to meet this standard.
20 91. Where mitigation measures and alternatives to a project are not adopted, the
21 CEQA findings must identify specific economic, legal, social and technological and other
22 considerations that make infeasible the adoption of mitigation measures or alternatives. All
23 CEQA findings must be supported by substantial evidence in the record and must disclose the
24 analytical route by which approval of the project is justified. The findings regarding the
25 impacts, mitigation measures, and alternatives relied upon by Respondent’s approval of the
26 Project are not supported by substantial evidence in the record, and the links between evidence
27 and conclusions are not satisfactorily provided.
VERIFIED PETITION FOR WRIT OF MANDATE 17
I 92. Respondents violated CEQA in that the findings they adopted in support of the
2 approval of the GPU and certification of the EIR are legally inadequate and not supported by
3 substantial evidence. Inadequate findings include, but are not limited to, findings regarding
4 Project-specific and cumulative impacts, mitigation measures, alternatives, and the statement of
5 overriding considerations.
6 93. Respondent’s failure to comply with the requirements of CEQA renders the EIR
7 inadequate as a matter of law and requires that Respondent’s certification of the EIR and
8 approval of the GPU must be set aside.
9 PRAYER FOR RELIEF
10 WHEREFORE, Petitioner prays for judgment as follows:
1 1 1. That this Court issue a peremptory writ of mandate ordering the City to:
12 (a) Vacate and set aside its October 21, 2008, approval of the Final EIR for the
13 GPU, the approval of mitigation measures, the approval of a mitigation reporting and
14 monitoring plan, the approval of a statement of overriding considerations and findings for the
1 5 GPU, and approval of the GPU, on the ground that it violates the California Environmental
16 Quality Act, Public Resources Code section 21000 et seq.;
17 (b) Withdraw the Notice of Determination for the GPU;
18 (c) Prepare, circulate and consider a new legally adequate EIR for the Project;
19 (d) Suspend all activity that could result in any change or alteration to the
20 physical environment until Respondents have taken such actions as may be necessary to bring
21 its determination, findings or decision regarding the Project into compliance with CEQA;
22 2. Vacate and set aside its October 21, 2008, approval of the GPU on the ground that
23 it violates the California Planning Law.
24 3. Preliminary and permanent injunctions restraining Respondents, their agents,
25 employees, contractors, consultants and all person acting in concert with them, from
26 undertaking any construction or development, issuing any approvals or permits, or taking any
27 other action to implement in any way the approval of the General Plan update without full
28 compliance with California law;
VERIFIED PETITION FOR WRIT OF MANDATE 18
4. For a preliminary and permanent injunction preventing City from approving
additional projects that require a finding of general plan consistency until the GPU is in compliance with applicable laws;
5. For Petitioner’s costs associated with this action;
6. For an award of reasonable attorneys’ fees pursuant to Code of Civil Procedure
section 1021.5; and
7. For such other and further relief as the Court may deem just and proper.
Dated: November 25, 2008
LAW OFFICES OF DONALD B. MOONEY
Donald B. Mooney
Marsha A. Burch
Attorney for Petitioners
Merced County Farm Bureau
VERIFIED PETITION FOR WRIT OF MANDATE 19
2 I am the attorney for Petitioner Merced County Farm Bureau who is located outside the
3 County of Yolo, State of California, where I have my office. For that reason, I make this
4 verification for and on their behalf pursuant to the California Code of Civil Procedure section
5 446. 1 have read the foregoing Verified Petition for Writ of Mandate and know its contents.
6 The matters stated in this Verified Petition for Writ of Mandate are true of my own knowledge
7 except those matters stated on information and belief, and as to those matters I believe them to
8 be true.
9 I declare under penalty of perjury that the above is true and correct. Executed this 25″‘
10 day of November 2007, at Davis, California.
VERIFIED PETITION FOR WRIT OF MANDATE 20
DO’S A1.D 11 ‘ 100NI?l
VIA U.S. MAIL
Richard N. Warne, City Manager
City of Livingston
1416 C Street
Livingston, CA 95334
1 21! C Street, Suite – 2
Davis, California 95616
Tck,pho nc (530) 758-2377
ITac,imile (530) 758-7169
November 25, 2008
Re: NOTICE OF INTENT TO FILE CEQA PETITION
Dear Mr. Warne:
This office represents the Petitioner described herein. Please take notice, under
Public Resources Code section 21167.5, that Petitioner Merced County Farm Bureau
intends to file a Petition for Writ of Mandate in Merced County Superior Court under the
provisions of the California Environmental Quality Act (“CEQA”), Public Resources
Code section 21000 et seq. and the Land Use Planning Laws, Government Code section
65100 et seq. against the City of Livingston, California (“City”) challenging the October
21, 2008 approval of the City of Livingston 2025 General Plan Update (“GPU” or
The Petition for Writ of Mandate will request that the court direct City to vacate and rescind all Project approvals and direct City to comply with CEQA the Land Use Planning Laws. Additionally, the Petition will seek Petitioner’s costs and attorney’s fees associated with this action.
Very truly yours,
Donald B. Mooney Attorney
PROOF OF SERVICE
I am employed in the County of Yo1o; my business address is 129 C Street, Suite 2, Davis, California; I am over the age of 18 years and not a party to the foregoing action. On November 25, 2008, I served a true and correct copy of as follows:
NOTICE OF INTENT TO FILE CEQA ACTION
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 Davis, California.
(by overnight delivery service) via Federal Express to the person at the address set forth below:
X (by facsimile transmission) to the person at the facsimile phone number set forth below:
Richard N. Warne, City Manager
City of Livingston
1416 C Street
Livingston, CA 95334
I declare under penalty of perjury that the foregoing is true and correct. Executed on
November 25, 2008, at Davis, California.