A Farm Bureau Lawsuit

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


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MERCED COUNTY FARM BUREAU         )

 

Petitioner                                                      )

 

 

v.                                                                             )

 

CITY OF LIVINGSTON; CITY OF              )

LIVINGSTON CITY COUNCIL;                  )

AND DOES 1-10                                          )

 

Respondents.                           )

 

 

DOES 11-100                                               )

 

Real Parties in Interest.                       )


BY FAX

 

Case No.:

 

 

 

VERIFIED PETITION FOR

WRIT OF MANDATE


24                                                                   INTRODUCTION


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.

8                                                                             PARTIES

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

6         impacts.

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.

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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

8        residents.

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

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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.

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I                                       EXHAUSTION OF ADMINISTRATIVE REMEDIES

AND INADEQUACY OF REMEDY

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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).

18                                                                         STANDING

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.

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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

 

 

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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

7         influence.

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

20       measures.

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

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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

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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.

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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

26       production.

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.

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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

5         Reserve.

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

14      GPU.

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.

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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

9         studies.

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 4.13.6.1 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

20       policy.

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.

28

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

7         expansion.

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.

28

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.

28

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


 


 

 

 

 

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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

Respectfully submitted,

LAW OFFICES OF DONALD B. MOONEY

 

 

 

B

Donald B. Mooney

Marsha A. Burch

Attorney for Petitioners

Merced County Farm Bureau

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

VERIFIED PETITION FOR WRIT OF MANDATE                                                                                                       19


 

 

 

 

 

1                                                                       VERIFICATION

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.

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VERIFIED PETITION FOR WRIT OF MANDATE                                                                                                       20


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit A


 

 

LAW OFFICES OF DONALD B. MOONEY


 

 

DO’S A1.D 11          100NI?l

 

 

 

 

VIA U.S. MAIL

AND FASCIMILE:

(209) 394-1751

 

 

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

dbmooneyC1jdcn.org

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
“Project”).

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


 


 

 

 

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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

(209) 394-1751

 

 

 

I declare under penalty of perjury that the foregoing is true and correct. Executed on

November 25, 2008, at Davis, California.

 

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