2nd Civil No. B220008
L.A.S.C. Case No. BS118229
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
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 REVIEW
AFTER A DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION FIVE (B220008)
Mary Altmann, Private Attorney General
TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:
Appellant MARY ALTMANN respectfully petitions this court for review of the decision filed by the Second District Court of Appeal, Division Five, as decided on July 7, 2010 in Mary Altmann vs. The City of Agoura Hills City Council (B220008).
In particular, Appellant seeks review of this California Environmental Quality Act (“CEQA”) case affirming the trial court’s decision CEQA notifications were adequate, and CEQA action was time-barred.
A petition for rehearing for this case was filed, and denied by the appellate court.
Table of Contents
Page
Introduction…………………………………………………….1
Grounds for review…………………..……………………….2
I. Need to settle an important question of law etc. (CRC Rule 8.500(b)(1) The lower court erroneously interpreted CEQA Guidelines section 15088.5 subdivision (F)(3) to mean notify only the people who commented within the first 30 days of the Draft EIR rather than those who commented on the EIR………………………..2
II. Need for Uniformity of Decisions etc. (CRC Rule 8.500.(b) (1) The lower court ignored CEQA Guidelines §15231 which states EIRs adjudged in a legal proceeding are not to be viewed as compliant with CEQA……………………..………………………………………….4
conclusion….………………………………………………….….8
Table of Authorities
Page(s)
California Cases
Citizens for Responsible and Equitable Development (“Creed”) v. City of San Diego (2005)
36 Cal.Rptr. 893…………………………………………………………………………………… 8
Laurel Heights Improvement Association v. Regents of the University of California,
47 Cal. 3d 376 (1988) (Laurel Heights I)………………………………………….. 6,7
Laurel Heights Improvement Association v. Regents of the University of California,
Cal. 4th 1112 (1993) (Laurel Heights II)………………………………………………. 6
Mary Altmann vs. City of Agoura Hills City Council Los Angeles County Superior Court,
BS 1042521 (2007) (“Altmann I”)……………………………………………………. 5,7
Friends of Mammoth v. Board of Supervisors (1972) 8 Cal. 3d 247, 259 [104 Cal. Rptr. 761, 502 P.2d 1049]…………………………………………………………………………………. 3
People v. Robles (2000) 23 Cal.4th 1106, 1111 [99 Cal. Rptr. 2d 120, 5 P.3d 176] 3
Statutes
California Rules of Court
Rule 8.500(b)(1)……………………………………………………..2
Public Resources Code
§ 21068.9……………………………………………………………………….. 4
§ 21168.9.(a)(3)……………………………………………………………….. 5
§ 21168.9.3. (B) (1)(2) (3)…………………………………………5
CEQA Guidelines
§ 15088.5……………………………………………………………………….. 4,6
§ 15088.5(f)……………………………………………………………………….. 6
§ 15088.5(f)(3)………………………………………………………………… 1,2
§ 15231………………………………………………………………………….. 5,6
INTRODUCTION
The Decision of the Court Below
Should CEQA Guidelines §15088.5(f)(3) requiring agencies to send a notice of recirculation to every agency, person or organization that commented on the prior EIR be interpreted by the court to mean notifying only those persons or organizations who commented within the first 30 days of the Draft EIR?…
When a City is adjudged in a legal proceeding as non-compliant, should the Notice of Determination (NOD) in that action certifying compliance be deemed valid indefinitely?….
These are the questions of the Agoura Village Specific Plan (“AVSP”) and related approvals of approximately one million square feet of development and 300 homes on 135 acres of land at the corners of Kanan Highway and Agoura Road in the City of Agoura Hills, California. The project is in a Zone 4 Fire Hazard Area, (most severe), and the only proposed mitigation for emergency evacuation and emergency response is a “roundabout” on a highway used by millions of residents and visitors to access the beach and Malibu. The Plan does not include one new road for an added 17,000 daily vehicle trips. [1] This plan poses a serious safety risk to thousands of residents living in and around the Santa Monica Mountains National Recreation Area.
The City of Agoura Hills City Council (“The City”) failed to proceed in the manner required by law because (a) the AVSP “Updated Revised and Recirculated EIR” does not adequately disclose or mitigate Fire Hazard as a Significant Impact, (b) this EIR does not adequately identify and mitigate Cultural Resources, and (c) The City failed to notify agencies and citizens as required by law.
- I. GROUNDS FOR REVIEW
Issue No.One: Need to settle an important question of law etc. (CRC Rule 8.500(b)(1)
The appellate court rightfully concluded in the July 9th, 2010 appellate decision p. 8:
“We have not found any decisional authority discussing Guidelines section 15088.5, subdivision (f)(3).”
CEQA Guidelines section 15088.5 subdivision (F)(3) is a relatively new provision of CEQA with no previously recorded decisions, and reads:
“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 EIR.”
The lower court interpreted this to mean only those persons or organizations who commented within the first 30 days of the Draft EIR. Lawyers representing clients, citizens who wrote letters, citizens and former City Council members who gave oral testimony at the hearings, and people who signed petitions with name and address — hundreds of people who commented on the EIR were not notified. The term “EIR” is most commonly used referring to a Final EIR, for example, “the need for an EIR” refers to a need for the finished document, and for CEQA purposes, all comments are legal, relevant and timely before the approval of the EIR. Is it correct for the lower court to interpret “EIR” as “Within the first 30 days of the Draft EIR”?
Guiding CEQA case law established by the court reads “Legislature intended [CEQA] to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal. 3d 247, 259 [104 Cal. Rptr. 761, 502 P.2d 1049].
The court also recognizes: “We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent…The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.” (Ibid.) If the statutory language is unambiguous, “we presume the Legislature meant what it said, and the plain meaning of the statute governs.”
( People v. Robles (2000) 23 Cal.4th 1106, 1111 [99 Cal. Rptr. 2d 120, 5 P.3d 176].)
Issue No. Two: Need for Uniformity of Decisions etc. (CRC Rule 8.500.(b) (1)
Is an EIR adjudged non-compliant by the court “grandfathered in”?
The law reads:
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…” (bold and underlined added)
The Native American Heritage Commission has a legal right to comment on Cultural Resources, a Significant Environmental Impact, and get a response from the City that corresponds to the findings, determinations, mitigation measures and overriding considerations of CEQA for this EIR. The people have a right to challenge the legality of an EIR if it is “adjudged in a legal proceeding not to comply with the requirements of CEQA.” (CEQA Guidelines §15231)
Judge Chalfant used Public Resources Code § 21168.9.(a)(3) to identify the non-compliance of the EIR in Altmann I.
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 did not rule that the criteria of Public Resources Code
§ 21168.9.3. (B) (1), (2), and (3) were met. The Altmann 1 judgment set aside all approvals and the EIR, including the NOD which is a certification that the City complied with CEQA in 2006 – (which obviously they did not) and related approvals. The case challenges this EIR, and corresponding NOD filed by the City November 13, 2008 certifying the “Updated Revised and Recirculated EIR” is correct. This lawsuit is timely, relevant, and has merit.
Likewise, CEQA Guidelines §15088.5 governing the recirculation of an EIR prior to approval mandates:
(f) …In no case shall the lead agency fail to respond to pertinent comments on significant environmental issues.
This preamble to Public Resources Code §15088.5 governing the recirculation of EIRs was not discussed in the July 9th opinion, and likewise ignored by the lower court, and the City itself. To this alarming safety concern, the City responded it was too late for Captain Franklin, Fire Expert and former Fire Chief to comment on the EIR, and the court erroneously agreed. This is an outrageous misinterpretation of the law as it reads plainly and clearly. The NOD prepared by the City for this revised EIR must comply with the mandatory provisions of CEQA governing NODs.
Respondents and the Court relied on Laurel Heights Improvement Association v. Regents of the University of California, Cal. 4th 1112, 1130 (1993) (Laurel Heights II). This judgment is related to the Supreme Court case Laurel Heights Improvement Association v. Regents of the University of California, 47 Cal. 3d 376, 764 (1988) (Laurel Heights I)
In the 1988 Supreme Court ruling of Laurel Heights I, The court states:
“We find the EIR was inadequate because: (1) it fails to discuss the anticipated future uses of the new facility and the environmental effects of those uses, and (2) the discussion of alternatives is inadequate under CEQA. We find, however, there is substantial evidence the environmental effects identified in the present EIR will be sufficiently mitigated. . . . Because the EIR is invalid in part, a new EIR must be prepared, submitted for public review and comment, and certified in accord with CEQA procedures. We decline, however, to order UCSF’s present activities at the new location stayed pending certification of a new EIR.”
In Laurel Heights I the court used a severability clause, approving the EIR in part; finding “there is substantial evidence the environmental effects identified in the present EIR will be sufficiently mitigated.” This is why in Laurel Heights II the petitioners were limited to challenge only the legality of the ordered changes made to the EIR.
The cases are dissimilar because Judge Chalfant did not validate the City’s EIR in part; he set aside all approvals, the entire EIR, and refused to relate the cases. (Appendix 11 p. 47.) Judge Chalfant’s ruling in Altmann v. City of Agoura Hills (Super. Ct. L.A. County, 2007, No. BS104251) (“Altmann 1”) states:
“The Petition for Writ of Mandate is granted. A writ shall issue commanding the City to set aside its approval of the [Agoura Village Specific Plan], the EIR, and the zoning amendment. If the City intends to go forward with the project, then the City must prepare a new EIR or conduct some other appropriate environmental review. See Pub. Res. Code § 21168.9(a)(3). . . . Whatever review is conducted must include timely biological data, support re-planting through appropriate expert evidence, and provide a more complete discussion of why a reduced specific plan alternative does not meet project objectives. The review, in the exercise of the City’s discretion, may discuss more than the required areas, but is not required to do so. In all other respects, the EIR is adequate.”
Petitioner challenged seven points in Altmann 1, two points were merited with the Writ of Mandate. Judge Chalfant was referring to the other points of the lawsuit that were lost when he said, “in all other respects, the EIR is adequate”. Respondents and the court took the last line of the opinion completely out of context. Judge Chalfant did not read. speak of, or rule upon the Fire Hazard or Cultural Resources sections of the EIR as they were not challenged in court. If Judge Chalfant intended to legally approve these portions of the EIR, he would have used a severability clause, and related the cases. Appellant explained this in the opening brief, (Appendix 17) reply brief, (Appendix 20) oral argument (Transcripts p.23-25) and evidenced by Judge Chalfant’s 26-page ruling (Appendix 19.)
CONCLUSION
The Reason Why
Although this is an unpublished decision, thanks to the internet these decisions are recorded and searchable in websites such as www.leagle.com and can be used to interpret the law for the worse. This is a significant decision because more cities like Agoura Hills are taking advantage of redevelopment funds to approve large combined projects that will require no further environmental review after initial CEQA certification, as already established by lower court case law left unchallenged. (See Citizens for Responsible and Equitable Development (“Creed”) v. City of San Diego (2005) 36 Cal.Rptr. 893.)
The lower court ruling does not stop cities like Agoura Hills from pushing through grossly lacking environmental impact reports, making one obligatory round of CEQA litigation, then illegally re-certifying woefully inadequate portions of a prior EIR. This ruling effectively guts CEQA, and strips the law of clear and mandated accountability, and makes it impossible for the people to insure a safe and livable future for all Californians. Finally, and most importantly to us, this particular project poses a frightening safety hazard to locals now and in the future.
For these reasons, I pray the Supreme Court of the State of California review this case. The appeal papers were meant to be reviewed in adjunct to the trial briefs.
August 16, 2010
__________________
Mary Altmann
Appellant
Certificate of Compliance
I certify that pursuant to California Rules of Court, Rule 14(c), this Petition for Review was produced on a computer in 14-point type. The word count including footnotes, as calculated by the word processing program is 2,385 words.
Dated: August 16, 2010
___________________
[1] The AVSP will add over 17,000 vehicle trips a day to the project area, including Kanan Road, the very route that was used in this case during emergency evacuation for wildfire. (29AR241-84)
