2nd Civil No. B220008
L.A.S.C. Case No. BS118229
IN THE COURT OF APPEAL
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MARY ALTMANN
Plaintiff and Appellant,
vs.
CITY OF AGOURA HILLS CITY COUNCIL
Defendant and Respondent
APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY
Hon. Thomas I. McKnew, Judge of the Superior Court presiding
PETITION FOR REHEARING
Mary Altmann, Private Attorney General
1857 Lookout Drive
Private Attorney General
Appellant MARY ALTMANN respectfully petitions for rehearing on this court’s decision July 9, 2010 affirming the trial court’s decision CEQA action was time barred, and CEQA notifications were adequate.
- I. REHEARING SHOULD BE GRANTED BECAUSE OF APPARENT MISTAKES BY THIS COURT AS TO THE MATERIAL EVIDENCE IN THE ADMINISTRATIVE RECORD
- The July 9th opinion recites the following at page 2, with regard to Plaintiff’s First Writ of Petition:
“The Agoura Village Specific Plan is a development framework for residential, commercial, retail, office, hotel, restaurant, community and open space uses in an area encompassing 135 acres of land. The Agoura Village Specific Plan sets forth development standards and design criteria to guide the future development of the project area.”
Petitioner must respectfully point out that the First Writ of Petition States:
“The Agoura Village Specific Plan consists of new development of up to 293 residential units, a total of up to 576,458 square feet of new office, retail, restaurant and hotel building area on vacant land, and rezoning of the existing 372,042 square feet of office and retail space to add greater density, and a recently added density bonus for low income housing that alters these calculations.”
The contested approvals correspond to zone changes and approvals for three large development projects and redevelopment within the project area, which implications are far greater than development standards and design criteria.
- The July 7th opinion recites the following on page 2, with regard to evidence in the administrative record:
“The record does not disclose the date on which the city issued its notice of determination, but was required to do so within five working days—by June 21, 2006”. (in regard to the 2006 approval)
Plainiff must respectfully point out that the Petition for Writ of Mandate states:
“June 28, 2006 the Agoura City Council held a public hearing and approved Ordinance No. 06-334; approving a zone change (CASE NO. 06-ZC-001), Ordinance No. 06-335; an ordinance of the City of Agoura Hills approving a zoning ordinance amendment (CASE NO. 06-ZOA-001) with a 5-0 vote… A notice of determination was filed June 29, 2006.”
The timing of the first Notice of Determination “NOD” is significant because the 2006 NOD was set aside as a result of a ruling by Judge Chalfant in Altmann v. City of Agoura Hills City Council, Superior Court Los Angeles County, 2007, no. BS104251, (Altmann 1). The NOD by the City Council Certifying that the City Council complied with CEQA was set aside because the City did not comply with CEQA as proved in a court of law, and therefore the June 29, 2006 NOD, which is a certification of compliance, was proved false, and subsequently outdated. Judge Chalfant refused to relate Altmann 1 with this case, also not disclosed or discussed in the court’s opinion but discussed in appellant’s opening and reply briefs.
- The July 7th opinion recites the following on page 2, with regard to evidence in the administrative record,
“Plaintiff’s initial mandate petition was only granted in part.”
With respect to the court, a Petition for Writ of Mandate was granted, not on the seven points contested, but on two significant points of the lawsuit. A Writ of Mandate cannot be partially granted. Specifically, The court ruled in Altmann 1:
“The Petition for Writ of Mandate is granted. A writ issue commanding the City to set aside it’s approval of the AVSP, the EIR, and the zoning amendment.” Appendix 19
Why this is significant, is the ruling set aside all corresponding approvals. The court discussed specific issues petitioner brought to the court’s attention in Altmann 1, and the significant action the court took was to set aside the AVSP (“Agoura Village Specific Plan”) the EIR (“Environmental Impact Report”) and the zoning amendment. The court did not approve of the actions in part. The statement Judge Chalfant made that “in all other respects, the EIR is adequate” is referring to the other points of the lawsuit that were challenged but not won. This is evidenced by Judge Chalfant refusing to relate these two cases, and the law itself discussed herein. Judgments may be granted in part or reversed in part, but Writs of Mandate are either granted, or they are not. A partial, or part of a Writ of Mandate may not be granted.
- The July 7th opinion recites the following at p. 8:
“Plainiff also asserts – in conclusory fashion without citation to the record—that defendant failed to prove it notified interested parties and responsible and trustee agencies.”
With respect, in Appellant’s Opening Brief, subsection “Inadequate Notification of Recirculation of EIR” p. 31, the opening brief at the trial court level was cited in the discussion on p. 32:
“The City did not send a notice of recirculation of this EIR to a large number of individuals and organizations who gave written or oral comments regarding the AVSP EIR, as explained in appellant’s opening brief (Appendix 17, 156-63).
The citation reads in part:
In addition to not informing individuals, the city failed to notify 1) California Department of Forestry and Fire Protection, 2) California State Lands Commission, 3) U.S. Army Corps of Engineers, 4) The City of Malibu, 5) South Coast Air Quality Management District, 6) Department of Housing and Community Development, 7) California Department of Water Resources, 8) Los Angeles County Health Services, 9) California Department of Parks and Recreation, 10) The Office of Historic Preservation, 11) Governor’s Office of Emergency Services, 12) California Department of Toxic Substance Control and 13) California Highway Patrol. These thirteen agencies the city required petitioner to send notice of this lawsuit, yet these agencies were never notified of the availability of the Updated Revised and Recirculated Draft EIR. (58AR8380-91.)
If the court read Appellant’s brief with citations, the court read this citation. This issue was discussed in Appellant’s trial petition, opening brief, reply brief, Appellate opening brief and reply brief, with corresponding argument including supporting case law. This evidence is provided to the court in a distilled volume of the administrative record petitioner prepared for the court which includes only those administrative record references cited in the moving papers.
Appellant asks the court for forgiveness in the oversight of not including this citation to the portion of the appellate brief in question, yet this citation was included within the citation and referenced in the appellate papers. For the court to not rule on a significant question of law based on evidence Cal. Rules of Court rule 8.204 (a) (1)(B)(C) could be construed as a draconian measure to avoid a favorable ruling to Appellant.
- The July 7th opinion recites the following at p. 8:
“Here, City Manager Greg Ramirez advised the city council as follows: notice of the revised Here, City Manager Greg Ramirez advised the city council as follows: notice of the revised environmental impact report was sent to all individuals who had commented in writing on the 2006 draft environmental impact report during the public comment period; further, individuals who provided written comments during the public comment period on the 2008 revised environmental impact report were added to the mailing list; but, individuals who filled out speaker cards at public hearings or who signed petitions were not included on the mailing list. Mr. Ramirez noted that as early as 2007, speaker cards did not include a space for an address. Further, Mr. Ramirez stated the addresses provided on petitions were not always legible or complete. Here, the city reasonably construed Guidelines section 15088.5, subdivision (f)(3) under the circumstances as not requiring it to give notice to individual citizens who did not request such in writing but who spoke at various hearings, wrote letters after the public comment period ended, or signed petitions. There was no abuse of discretion.
With respect, this portion of the record was not cited by Appellant or Respondent, and the court searched the administrative record for this citation. This citation cannot be used to support the court opinion for the following reason: The speaker cards in question for this case were issued in 2006, and included name, organization (if any) address, and phone number to be completed by the commenter. Mr. Ramirez refers to speaker cards issued after 2007, one year after the Agoura Village hearings in question.
- II. QUESTIONS OF LAW WERE NOT ADEQUATELY ADDRESSED
- CEQA Guidelines §15231. ADEQUACY OF EIR OR NEGATIVE DECLARATION FOR USE BY RESPONSIBLE AGENCIES: “A final EIR prepared by a Lead Agency or a Negative Declaration adopted by a Lead Agency shall be conclusively presumed to comply with CEQA for purposes of use by Responsible Agencies which were consulted pursuant to §15072 or §15082 unless one of the following conditions occurs: (a) The EIR or Negative Declaration is finally adjudged in a legal proceeding not to comply with the requirements of CEQA…”
The Native American Heritage Commission has every right to comment on a significant environmental impact, and get a response from the City. Respectfully, the July 7th opinion failed to comment on why this law does not apply.
- CEQA Guidelines §15088.5. RECIRCULATION OF AN EIR PRIOR TO CERTIFICATION (f) …In no case shall the lead agency fail to respond to pertinent comments on significant environmental issues.
Fire Hazard and Cultural Resources are significant environmental issues. The City shall not fail to respond not to them. This preamble to Public Resources Code §15088.5 governing the recirculation of EIRs was not discussed in the July 7th opinion. The court must clarify why this opinion ignores this clear mandate.
- C. PUBLIC RESOURCES CODE § 21168.9. PUBLIC AGENCY ACTIONS; NONCOMPLIANCE WITH DIVISION; COURT ORDER; CONTENT; RESTRICTIONS
(a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following: (1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part.(2) If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific
project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division. (3) A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division. (b) Any order pursuant to subdivision (a) shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. However, the order shall be limited to that portion of a determination, finding, or decision or the specific project activity or activities found to be in noncompliance only if a court finds that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with this division, and (3) the court has not found the remainder of the project to be in noncompliance with this division. (c) Nothing in this section authorizes a court to direct any public agency to exercise its discretion
in any particular way. Except as expressly provided in this section, nothing in this Section is intended to limit the equitable powers of the court. (Bold added)
Judge Chalfant used Public Resources Code §21168.9.(a)(3) to identify the non-compliance of the EIR. Judge Chalfant did not specify that the criteria of Public Resources Code § 21168.9.3. (B) 1, 2, and 3 were met and therefore Altmann 1 judgment voids the EIR, related approvals and the NOD which is a certification that the City complied with CEQA in 2006 – (which obviously they did not). Judge Chalfant refused to relate the cases, so this court must approach this as a new case and review obvious inadequacies in the EIR. This lawsuit challenges the NOD filed by the City November 13, 2008. This lawsuit is timely and relevant.
- Guidelines section 15088.5, subdivision (f)(3), “As part of providing notice of recirculation as required by [section] 21092.1, the lead agency shall send notice of recirculation to every agency, person, or organization that commented on the prior [environmental impact report].”
The court rightfully concludes “We have not found any decisional authority discussing Guidelines section 15088.5, subdivision (f)(3).”
It is correct this is a relatively new provision of CEQA in need of clarification and enforcement.
Hundreds of people commented on the Agoura Village EIR after the 30-day public comment period for the Draft EIR. Is it lawful for the court to insert “Draft EIR” instead of EIR into the law, and only require notification to those who commented within the first 30 days of the Draft EIR? What about those who commented on the Final EIR, which is an accurate interpretation of “EIR”? For the purposes of CEQA, all comments are legal and relevant before the approval of the Final EIR.
Conclusion
For all of the above reasons, this petition should be granted.
July 16, 2010 ____________________
Mary Altmann
Appellant
Certificate of Compliance
I certify that pursuant to California Rules of Court, Rule 14(c), this Petition for Rehearing was produced on a computer in 14-point type. The word count including footnotes, as calculated by the word processing program is 2,331 words.
Dated: July 16, 2010
___________________
Mary Altmann
