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HomeMy WebLinkAboutLawsuit w/Carl Atkinson, Jr.,Joseph Bono and Sigfredo Concepcion • • «I ANo.00RI Ss u. •r roars.. • _ _ Marguerite P. Battersby "'"` "O' BRUNICK 6 PYLE 1:.) d39-8301 1839 Commercenter West , P.O. Box 6425 San Bernardino, CA 92412 A"onwvAoR Petitioners 'NMI,NA4(O.COURI .UOICIAI OISIRgr OR!PIANO.COuR I.If •N♦ ANO POST O.IICf •NO SrRtt t•OORt SS SAN BERNARDINO SUPERIOR COURT 351 North Arrowhead Avenue San Bernardino, CA 92415-0240 r1•�N ofs�r� nruuNt R,sr . CARL I!. ATKINSON, JR. , JOSEPFI BONO, and SICFREDO CONCEPCION, Individually, and on behalf of all n h- s e Ulf ENO•NIISI Rt SKINOINII I and DOES 1 throw h CITY OF F A, a Municipal Corporation, g 50, Inclusive PROOF OF PERSONAL SERVICE ast Nu4e01 ftbsatingt Rime itets . RR0.t. I served a copy of the following documents : 1. PETITION FOR ALTERNATIVE AND PEREMPTORY WRI OF MANDATE (C.-C.P. 1094 .5 PUB. RES. CODE 21000 et seq. 1 ; COMPLAINT FOR DECLARATORY A INJUNCTIVE RELIEF; 2. INITIAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPQRT OF PEI FOR WRITS OF MANDATE AND COMPLAINT; 3. NOTICE OF COMMENCEMENT OF ACTION (Public Res Code section 21167) ; 4. REQUEST FOR PREPARATION OF RECORD OF PROCEEDINGS (Public Res Code section 21167.6(a) ) ; 5. CERTIFICATE OF ASSIGNMENT Person served (name): CITY OF FONTANA, a Municipal Corpor tion, by serving the follow person in the City Clerk's office: �� By personally delivering copies to the person served, as follows: I~�� 11) Date January 8, 1990 c- (2) Time_ (31 Address 8353 Sierra Avenue, Fontana, California At the time of service I was at least 18 years of age and not a party to this cause. I declare under penalty of perjury that the foregoing is true and correct and that this declaration is executed on (date) January 8, 199n , at (place) Fontana, California • SitSa �� rt t�'. / (c,�f G�L4 �/l,L(l p/' • Typo or Pant N tr��� r !L V v Signora /VI 1111 -I ODIC3 °- 1o*k f (tL 6 6 ( . alk • '� I"-QrdJ'/1 C(,wI QuSs Tr-Loma K ACIs Cele OAK 8 '1990 3320a102) I PROOF OF PERSONAL SERVICE oe 11107.301' *yWA° (SPACE BELOW FOR FILING STAMP ONLY) 1 BRUNICK & PYLE PROIESEIOIAL LAW COI.PORATION teas COMNuct.Tu wuT POST OFFICE BO2 e42e SAN BERNARDINO. CALIFORNIA 02411 TELEPHONE: 17141 eeo.e201 e2E-0e22 3 5 Attorneys for Petitioners 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN BERNARDINO 10 11 CARL E. ATKINSON, JR. , JOSEPH BONO, ) 12 and SIGFREDO CONCEPCION, ) CASE NO. Individually, and on behalf of 13 all others similarly situated, ) PETITION FOR ALTERNATIVE AND 14 Petitioners, ) PEREMPTORY WRITS OF 15 vs. ) MANDATE [C.C. P. 1094 . 5 PUB. RES. CODE 21000 et seq. ) ; COMPLAINT 16 CITY OF FONTANA, a Municipal ) FOR DECLARATORY AND Corporation, and DOES 1 through 50, ) INJUNCTIVE RELIEF 17 Inclusive, Date: 18 Respondents. ) Time: Dept: 19 20 Petitioners, CARL E. ATKINSON, JR. , JOSEPH BONO, anc 21 SIGFREDO CONCEPCION, Individually and on behalf of all other; 22 similarly situated (collectively referred to hereinafter a 23 "Petitioners") , allege as follows: 24 INTRODUCTION 25 1. This is an action requesting this court to orde 26 Respondent, CITY OF FONTANA (hereinafter referred to as "CITY" c 27 "Respondent") to vacate its decision of December 5, 1989 28 approving the project and adopting a Negative Declaration for the -1- 1 "Foothill/Beech Sewer Project, " as that project is described a: 2 was approved by the City Council of the CITY on that date. 3 2 . This action alleges under Public Resources Cod( 4 Sections 21000 et seq. and Section 21168 , that such decision w; 5 made unlawfully, unsupported by substantial evidence in t' 6 record, and as an abuse of discretion, in that Response. 7 violated and refused and failed to comply with the requiremen 8 of laws, including, but not limited to, the Californ 9 Environmental Quality Act (Pub. Res. Code, Sections 21000 , 10 seq. ) ( "CEQA") ; and the Guidelines for the Implementation of tl 11 California Environmental Quality Act (Cal. Code of Regulation: 12 Title 14 , Sections 15000 et seq. (the "Guidelines") . 13 3 . This is also an action for appropriate declarato. 14 relief and injunctive relief in the event that Respondents, prii 15 to the final resolution of this action, proceed to impleme: 16 their decisions and approvals described herein or attempt to u: 17 the Negative Declaration as justification for other proje. 18 approvals or agency actions. 19 THE PARTIES 20 4 . Petitioners CARL E. ATKINSON, JR. , JOSEPH BONG a: 21 SIGFREDO CONCEPCION (hereinafter collectively referred to as ti 22 "Petitioners") are individuals, property owners, businessmen a: 23 taxpayers with businesses in the unincorporated area of t: 24 County of San Bernardino, California, which businesses will 25 affected by the actions challenged by this Petition a 26 Complaint. 27 5. Petitioners' primary purpose in bringing this acti 28 is to represent the interests and concerns of landowners, -2- 1 citizens, residents, businessmen and taxpayers in the City o 2 Fontana and adjacent incorporated and unincorporated area 3 affected by the project which is the subject of this Petition an 4 Complaint, particularly as those interests and concerns relate t 5 the environmental impacts of the project. Petitioners, and eac 6 of them, are beneficially interested in the outcome of thi 7 action and have timely appeared and objected to the approva 8 herein challenged, orally and/or in writing. g 6. Respondent CITY OF FONTANA (hereinafter referred t 10 as "CITY") is, and at all times herein mentioned was, a municipa 11 corporation and a duly organized governmental entity organize 12 under the Constitution and laws of the State of California. Tt 13 CITY, by and through its duly elected City Council, i 14 responsible for municipal operations within its borders 15 including operations and facilities which by necessity pas 16 through unincorporated areas of the County of San Bernardino, ar 17 including the regulation management, operation and control of tr.. 18 municipal water supply and sewage system and related facilities 19 Respondent CITY, in conducting these functions and project 20 related thereto, is responsible, inter alia, for complying wit 21 the Constitution of the State of California and for implementin 22 the laws of the State of California, including, but not limits 23 to compliance with the provisions of the California Environments 24 Quality Act (Public Resources Code Sections 21000 et seq. 25 "CEQA") . 26 7 . Petitioners are unaware of the true names at 27 capacities of Respondents DOES 1 through 50, Inclusive, and si 28 such Respondents herein by fictitious names. Petitioners a: -3- 1 informed and believe and on such information and belief allege 2 that the fictitiously named Respondents are also responsible fc 3 the threatened injuries to Petitioners and other citizens of tt• 4 City of Fontana and unincorporated areas of the County of Se 5 Bernardino as herein described. When the true identities ar 6 capacities of Respondents have been determined, Petitioners wil 7 with leave of court if necessary, amend this Petition to inset 8 such identities and capacities. 9 8 . In taking the actions , hereinbelow allegec 10 Respondents, and each of them, were acting in concert with and 11 agents of each other. 12 EXHAUSTION OF ADMINISTRATIVE REMEDIES 13 9. Petitioners have each, individually and•either 14 writing or orally at public hearings on the project, performE 15 any and all conditions precedent to the filing of the Petitic 16 and have participated in all phases of the administrative proces 17 and in the environmental documentation process and have full 18 exhausted their administrative remedies. 19 THE ADMINISTRATIVE PROCEEDINGS 20 10. On or about December 5, 1989, the City Council or 21 the CITY determined that the project would not have a substantial 22 adverse impact on the environment, adopted a "mitigated" Negatii 23 Declaration and approved the "Foothill/Beech Sewer Project, 24 which project is described in the Initial Study as follows: 25 "1) Installation of sewer line 41' from center line on tt 26 north side of Foothill Boulevard from Cherry to Lime Avent 27 and in-between 12 ' County and City owned strip of proper1 28 designated as future Beech Avenue from Foothill to Baseline. -4- 1' 1 2) Installation of storm drain line 34 ' north of center lin 2 of Foothill ' Boulevard from Cherry to Beech Avenue. 3 3 Installation of water line 28 ' north of center line a 4 Foothill Boulevard from Cherry to Beech Avenue. " 5 This project description is provided in the CITY's Environmenta 6 Checklist Form (the "Initial Study") , attached hereto as Exhibi 7 "A" and incorporated herein in full by reference. A true ar 8 correct copy of the Notice of Determination filed on this projec g is attached hereto as Exhibit "B" and incorporated herein in ful 10 by reference. At the time of filing this action, the Minutes c 11 the December 5, 1989, Meeting of the City Council at which tt 12 project was approved, were not available to Petitioners. Thee 13 Minutes will be made a part of the Administrative Record, and al 14 incorporated herein in full by reference as part of that Record. 15 11. The approval of the Fontana/Beech Sewer Projec 16 (the "Project") is, and at all times herein mentioned was, 17 "project" within the meaning of CEQA, which project has be( 18 identified by the CITY to have the potential to and in fact wi. 19 have significant adverse effects on the environment. 20 12 . Petitioners are informed and believe that tt 21 Project is located partially within the City incorporate 22 boundaries and partially in an unincorporated area of the Coun 23 of San Bernardino, including that portion of Foothill Bouleva 24 wherein Petitioners' businesses are located, and is designed a 25 proposed to serve future development in the incorporated area 26 north Fontana. The Project will provide no immediate benefit 27 service to properties or businesses which are in t 28 unincorporated areas of San Bernardino County through which it -5- 1 passes. 2 13 . The project as described and proposed will caw 3 significant adverse environmental effects and cumulative effec- 4 upon the land, air, aesthetics and traffic of the area in that 5 proposes to remove mature eucalyptus trees which provide a wi 6 and blowing sand break and landscaping to the highway, and wi 7 necessitate major construction activities over an undisclos 8 (but extended) duration, causing traffic, noise, air quality a 9 land use impacts that have either not 'been considered or n 10 considered and mitigated or adequately mitigated. 11 IRREPARABLE HARM AND ARBITRARY AND CAPRICIOUS ACTION 12 14 . Petitioners bring this action as individu 13 property owners, businessmen and taxpayers and on behalf of a 14 others similarly situated who will suffer irreparable injuries 15 Respondent's actions are not set aside immediately. SL 16 injuries include, but are not limited to, deterioration of t 17 environmental setting in which they own property and/or condi. 18 business ; endangerment of public health and safety; invasion of 19 property rights; and adverse impacts on traffic and circulati 20 and upon animal and plant life in the area affected by t 21 Project. 22 FIRST CAUSE OF ACTION 23 (Environmental Quality Act Violations) 24 15. Petitioners adopt and incorporate those allegati, 25 contained in Paragraphs 1 through 14 herein as though set fo 26 in full hereat. 27 16. Petitioners contend that the Initial Study wh 28 was prepared by Respondent pursuant to the requirements of CEQA -6- • 1 Guideline 15063 , and which forms the basis for Respondent' 2 approval of the project and adoption of a Negative Declaration 3 fails to comply with the requirements of law and does not provid 4 adequate information about the Project from which a determinatic 5 of significance can be made. The CITY's determination to appro'. 6 the project and adopt a Negative Declaration is unsupported t 7 substantial evidence in the record and constitutes an abuse c a discretion. A nonexclusive list of the deficiencies in ti 9 Initial Study includes the following: 10 a. It fails to identify all phases of project planninc 11 implementation and operation as required by CEQA Guidelir 12 15063 (a) , which is necessary to the adequate evaluation c 13 the potential environmental impacts of the project and whit 14 would enable Respondent to modify the project, mitigatii 15 adverse impacts or to adopt a Negative Declaration for tt 16 project [Guideline 10563 (c) ] . The adequate description al 17 evaluation of the scope of the project is essential to tt 18 review of the potential adverse environmental impacts relat( 19 to it, particularly in light of the fact that the project, a 20 described, includes the installation of three separate lines 21 (sewer, storm drain and water) in the public right of wav 22 but fails to identify phasing of construction or tl 23 cumulative impacts of three separate construction activiti, 24 over a period of several years. This simply has not be. 25 done, and the Initial Study reads as though only a sing 26 phase project (namely, the sewer line project) is proposed. 27 b. It fails to adequately describe the project or t 28 environmental setting in which it exists, as required by CEQ -7- 1 Guideline 10063 (d) . 2 c. The Initial Study, as prepared, contains r 3 description of the environmental setting, as required by CE< 4 Guideline 15063 (d) (2) , including a significant prevailii 5 wind condition and blowing dust related to the conditioi 6 which description is essential to an adequate determinatic 7 of environmental impacts. The project description ai 8 Initial Study further fail to identify the significance 9 historic eucalyptus trees bordering the right of way, whit 10 trees are not only a historic landmark but also provit 11 protection from wind and dust. These trees are scheduled f' 12 removal as part of the project, but the significance of the 13 removal from an aesthetic as well as practical (wina and du: 14 control) perspective has not been identified or consideret 15 The project description further fails to describe or identi 16 traffic patterns, including traffic related to loc. 17 businesses compared with other regional or local traff 18 patterns which will be directly affected by the constructit 19 phase of the project, particularly in light of the fact tha 20 there will be three separate utility line installations whic 21 are apparently not planned to be simultaneous. 22 d. The Initial Study is unclear and ambiguous in th 23 it makes certain determinations of significant adver 24 environmental effects related to the project, but fails 25 explain the determinations or otherwise substantiate 26 mitigate the adverse impacts so as to enable the project 27 qualify for a Negative Declaration. For example, the Initi 28 Study, at Item No. 4 .b. , identifies a significant adverse -8- 1 environmental effect related to the " ( r)eduction of tr 2 numbers of any unique, rare or endangered species of plants, 3 but neither substantiates nor explains the nature of tt 4 effect nor attempts to mitigate its effect so as to avoid tt 5 necessity of preparing an Environmental Impact Report 6 required by CEQA. CEQA Guideline 15063 (c) and (d) . 7 e. It fails to examine whether the project would 1 8 consistent with existing zoning, plans and other applicab 9 land use controls, including, but not limited to, the Gener. 10 Plan, Development Code and zoning ordinances of the County 11 San Bernardino and/or the CITY. CEQA Guideline 15963 (d) (5 12 Without this information, a response to Initial Study Secti 13 8 ("Land Use: Will the proposal result in a substanti 14 alteration of the present or planned land use of an area? 15 is impossible. Petitioners are informed and believe that t 16 Project is proposed for the purpose of providing sewer a 17 other services (water, storm drain) to an incorporated ar 18 of North Fontana. If this is the case, the nature and exte 19 of this new development should be evaluated or at leas 20 described as a justification or explanation for the Project. 21 17. At all times herein mentioned, and specifically i 22 taking the action to approve the project and adopt the Negati 23 Declaration, Respondent CITY was aware of the significant adver 24 environmental effects inherent in this project, and failed a 25 refused to appropriately identify or address them in the Initi 26 Study or Negative Declaration as required by law. True a 27 correct copies of correspondence between Petitioners and CI7 28 which correspondence confirms Respondent's knowledge and -9- 1 awareness of deficiencies in the environmental documents, ax 2 attached hereto as Exhibit "C" and incorporated herein in full t 3 reference. 4 18 . Public Resources Code Section 21003 requires thi 5 documents prepared pursuant to the requirements of CEQA "2 6 organized and written in such a manner that they will I 7 meaningful and useful to decision-makers and to the public 8 Respondent CITY failed to proceed in the manner required by 1, g and the decision to approve the project and adopt a Negati• 10 Declaration constitutes an abuse of discretion in that ti 11 Initial Study, including the description of the project which w: 12 being approved, was unclear, disorganized and written in a mann' 13 which was confusing to the public and remains unintelligible , 14 to what impacts were found related to the project, which we: 15 mitigated or mitigable, and how the proposed mitigations related 16 to the impacts. An example of the unintelligible nature of th. 17 document is seen in Section 16 "Utilities. " Not only does ti 18 Initial Study form itself not identify what utilities (if an: 18 are impacted by the project (even given the punctuation whic 20 would lead one to believe that an enumeration would b 21 forthcoming) , but it clearly indicates that there will be • 22 significant adverse environmental impact related to it. TI 23 corresponding mitigation measure not only does not mitigate 24 substantiate the point being made, but further accentuates i 25 ambiguity. The same type of inconsistencies exist with Initi 26 Study Section 4 .b (no corresponding mitigation measure followi: 27 identified positive impact) , and Section 13 .c (What are t 28 existing transportation systems which will be impacted? Is ther -10- V 1 a bus or other public transportation service in the area?) . 2 19 . Petitioners contend that Respondent failed to 3 proceed in a manner required by law and the decision to approve 4 the Project based upon a Negative Declaration constitutes an 5 abuse of discretion unsupported by substantial evidence in the 6 record, in that it failed to mitigate or adequately mitigate 7 identified and known significant adverse environmental impacts of 8 the project. Based upon evidence in the record, and the g inadequacy and unintelligibility of the Initial Study upon whict 10 the CITY's action was based, Respondent was required, as a matter 11 of law, to prepare an Environmental Impact Report prior tc 12 approving the project. 13 20. Significant adverse environmental impacts relatec 14 to the project were identified in the Initial Study in the 15 following areas: Earth, Air, Water, Plant Life, Animal Life, 16 Noise, Rusk of Upset, Transportation/ Circulation, Public 17 Services, Utilities and Aesthetics. Of the identified impacts. 18 the following were either pot mitigated or were inadequatel! 19 mitigated: 20 a. Initial Study Sections l.a, 1.b, and 1.c: It cannot 21 be determined from the mitigation measure provided whether it 22 is adequate or not. The Initial Study further does no 23 address the problem of construction activity soil placement 24 When a trench is dug, where is the soil placed? What is it 25 impact on traffic? Why are topographic changes predicte 26 ( l.c) ? 27 b. Initial Study Section 1.e (wind erosion) , fails t 28 adequately address the known problem of prevailing winds and -11- 1 blowing sand in the project area during the 'constructio: 2 phase. Heavy wind conditions in the area are common, causinc 3 an ongoing problem with substantial wind erosion and blowin, 4 sand. In addition, it fails to address the issue of removini 5 the trees which in part buffer the effect of the prevailin 6 winds and sand. This is a problem which will remain afte 7 the construction phase, particularly where there is no tim 8 frame provided for mitigation of the removal of the trees g Because unique wind conditions have neither been identifie 10 nor addressed, there is no mitigation provided. 11 c. Initial Study Section 2 .a (air quality) , fails t 12 provide an enforcement mechanism which will ensure that wor 13 will stop on smog alert days. How many such days can t 14 anticipated based upon experience? In addition, the questic 15 of slowed work due to air quality problems has not bee 16 addressed - how will this affect traffic and circulation, ar 17 how will contingent problems be mitigated? 18 d. Initial Study Section 3 .b (Water) , fails to address 19 the question of drainage patterns during the constructio 20 phase: Where will runoff occur? How will it b 21 accommodated? Is construction to occur during the rain 22 season? These issues have not been addressed or mitigated. 23 e. Initial Study Section 4 .a (removal of trees 24 attempts to address the problem of removal of a significar 25 row of eucalyptus trees. Not only is this windrow 26 historic landmark, but it also provides an aesthetic additic 27 to the community and a habitat for birds and other anima 28 and protection from blowing sand and wind. The proposed -12- 1II mitigation measure does not require replacement o : trees 2 the same species or size, and contains no parameters as 3 when they will be replaced or in what number, or even •wh 41 the "tree program" will be established. The nebulous a 5 I uncertain quality of this "mitigation" measure alone defi 6 the law and is totally without basis in the record. It 7 this type of unenforceable lip service in mitigation measut 8 which led the Legislature to impose the requirement of 9 mitigation monitoring program on all mitigation measures, 10 ensure compliance with objective standards. It is not 11 here, and elsewhere in this Petition that the CITY has al 12 failed to comply with those provisions of the law whi 13 mandate such a monitoring program (Pub. Res. Code Sect 14 21081 . 6) . 15 f. Initial Study Section 4 .b clearly identifies 16 substantial adverse environmental impact related to t 17 "reduction of the numbers of any unique, rare or endanger 18 species of plants. " Not only is this nowhere substantiatc 19 but it is also not mitigated anywhere in the documents 20 record which formed the basis for the CITY's decision. CE 21 reauires that an Environmental Impact Report be prepared 22 address any and all significant adverse environmental impac 23 identified with the proposed project which have not b. 24 reduced through mitigation measures to a nonsignific, 25 level . The CITY's action in approving the project , 26 adopting the Negative Declaration constitutes an abuse 27 discretion in that it failed to comply with the law 28 requiring the preparation of an Environmental Impact Report -13- 1 In addition, where rare and endangered species ray 2 affected by a project, the CITY has an obligation 3 circulate the Initial Study through the State Clearingho 4 (CEQA Guideline 15206) . Petitioners are informed and beli 5 that this was not done. 6 g. Initial Study Section 5.a (effects on animal 1 7 related to removal of a significant windrow of trees) . 8 comments above at (e) . 9 h. Initial Study Section 6.a (increases in exist 10 noise levels) fails to identify or substantiate 11 conclusion of significant effect, And fails to mitigate 12 The mitigation is vague and unintelligible in that it appe 13 to impose some unidentified State noise standard on 14 construction activity, without regard to whether. the Cot 15 in which the project is located has a noise standard, what 16 is, or how enforcement will be obtained. In addition, 17 mitigation measure fails to consider the fact that 18 proposed limitation to hours of construction to regt 19 business hours will have a corresponding adverse effect 20 traffic, circulation, and the ability of business owners 21 carry on their business. The effect and the mitigat 22 measure proposed simply ignores the fact that this projec 23 impacting a commercial/business district where th 24 adverse effect is felt by construction carried on du 25 business hours. A more appropriate mitigation measur w 26 clearly have been a construction limitation to off-busi 27 hours, with some assurance that traffic would re 28 relatively unimpeded when commercial activities are most -14- 1I common. 2 i . Initial Study Section 10.b (effects on emerge: 3 response) is vague and unintelligible. It is impossible 4 determine from the document or from the record itself 5 nature or extent of interference anticipated, whether 6 emergency evacuation plan exists and if so, what it is, 7 how this impact will be mitigated. 8 ' j . Initial Study Section , 13 .b (effects on parki 9 identifies the potential for a significant adverse effe 10 but fails to mitigate the effect other than indicating t 11 existing traffic will be diverted elsewhere. There is 12 estimate of duration of the disruption and no mitigat 13 proposed for businesses which depend on parking availabili 14 impacts on City or other parking lots or areas where park 15 is available. Mere displacement to other unidentified ar 16 is not mitigation of a significant environmental effe 17 particularly where it also impacts directly on traffic 18 circulation patterns. 19 k. Initial Study Section 13 .c (impact on exist. 20 transportation systems) fails to identify what transportat 21 systems will be impacted, over what term, or how additio, 22 signage will relieve the problem. 23 1 . Initial Study Section 13 .d (alterations to present 24 patterns of circulation . . . ) : it is impossible 25 determine how this impact is identified as a potential img 26 rather than a certain impact, particularly given the nat 27 and scope of the project, and the fact that it has 28 potential to have Foothill Boulevard (State Highway 66) toi -15- i 1 up for a period of literally years . Temporary drk e 2 access is the only point addressed in the mitigation measu 3 yet the potential for total traffic and circulation breaks 4 due to this project is substantial and real . Not only 5 this impact improperly identified, but it is simply 6 mitigated in any way. 7 m. Initial Study Section 13 . f ( increase in trai 8 hazards) : see comments (j ) , (k) and (1) above. 9 n. Initial Study Section 162( impact on utilities) 10 identified as a significant adverse impact related to 11 project, yet there is no indication as to what utilities r 12 be impacted or how. The mitigation measure is not c 13 inadequate, but incompetent. See Paragraph 17 above. 14 21. Petitioners further contend that the Initial St 15 and Negative Declaration adopted thereon failed to ident 16 significant adverse impacts of the project as required by 17 and therefore constitute an abuse of discretion. The folloc 18 significant adverse environmental impacts are related to 19 project yet have not been identified or addressed in 20 environmental document: 21 a. Initial Study Section 8 (Land Use) . See Parag: 22 16(e) above. 23 b. Initial Study Section 18 (Aesthetics) . The rem. 24 of a significant windrow of eucalyptus trees ha 25 potential of degrading the neighborhood, and will creat 26 • aesthetically offensive site open to public view. T 27 mature trees are an integral part of the scenic v 28 associated with State Highway 66, and form a necessary of the historic ambiance of the neighborhood as well as an -16- l /I aesthetic addition to an otherwise bland commercial district , 2 22 . ,The project has the potential to substantial 3 degrade the quality of the environment by the elimination 411 destruction of the eucalyptus windrow along Foothill Bouleva: 5II j These trees are an important landmark and example of a major 6 period of California history. Respondent CITY is required by 1 7 to require the preparation of an Environmental Impact Report f 8 the Project. CEQA Guideline 15065 (a) . Respondents approval g the project and adoption of the Negative Declaration then 10 constitute an abuse of discretion and a violation of the law. 11 23 . The project has possible environmental effec 12 which are individually limited but cumulatively considerab: 13 including unmitigated traffic and circulation problems related 14 the construction period, together with more permanf 15 environmental effects of removal or destruction of landmu 16 eucalyptus trees with no adequate proposed mitigation measure 17 Respondent CITY is required by law to require the preparation 18 an Environmental Impact Report for the Project. CEQA Guidel. 19 15065 (c) . Respondent's approval of the project and adoption o: 20 Negative Declaration thereon constitute an abuse of discreti 21 and a violation of the law. 22 24. Petitioners further contend that the projr 23 required the discretionary approval of a State Agency, in t: 24 the State of California, California Department of Transportat 25 ("CalTrans") was required to grant permission to Respondent 26 conduct construction activities related to the Proje 27 including, but not limited to, street cuts and repairs in 28 State right of way, and certain authority over traffic control -17- 1 i Foothill Boulevard . It is only with the permission of the 3t 2 of California, Department of Transportation, that the Project 3 be conducted by the CITY in unincorporated territory al( 4 Foothill Boulevard in the State right of way. In addition, • 5 Project has the potential for causing significant effects on th• 6 environment extending beyond the City boundaries ( in fact, 7 Project is proposed to exist outside the City boundaries, and 8 the potential for causing significant effects on traffic 9 circulation beyond the City boundaries) . Respondent failed 10 proceed in the manner required by law in that the Environmen 11 Checklist Form ("Initial Study") prepared by Respondent 12 approving the Project failed to identify the State (CalTrans) 13 a responsible agency and otherwise failed to comply with 14 requirements of CEQA Guidelines 15073 , 15206 (b) (2) in that it 15 not submitted to the State Clearinghouse as required by 1 16 CEQA Guidelines 15073 , 15206. 17 25. Public Resources Code Section 21081. 6 provides t 18 when an agency adopts a negative declaration with mitigat 19 measures pursuant to Section 21080 (2) (c) , 20 "the public agency shall adopt a reporting or monitor 21 program for the changes to the project which it has adop 22 or made a condition of project approval in order to miti5 23 or avoid significant effects on the environment. 24 reporting or monitoring program shall be designed to en! 25 compliance during project implementation. . . . " 26 (Emphasis added. ) Respondent CITY has failed to act in 27 manner required by law in that it has failed to adopt 28 mitigation reporting or monitoring program for the mitigation -18- 111 measures adopted as part of the Negative Declaration , and i 2 action in app t roving the project and adopting the Nega 3 Declaration constitute an abuse of discretion and a violation I 4I the law. 5 26 . There is substantial evidence in the record t 6I the proposed Project might have a significant environmen 7 impact such that the CITY is required by law to prepare 8 Environmental Impact Report prior to conducting the Project. g action of the CITY in approving the project must therefore be 10 aside because Respondent abused its discretion by failing 11 proceed in a manner required by law. 12 27 . Respondent CITY's actions in adopting the Negat 13 Declaration were arbitrary and capricious, and Petitioners 14 entitled to an award of attorneys' fees pursuant to 15 provisions of Government Code Section 800. 16 28 . Petitioners are entitled to attorneys fees purst 17 to Code of Civil Procedure Section 1021. 5 in that: 18 a . The successful disposition of this action T. 19 result in the enforcement of important rights affecting 20 public interest and will confer significant benefits upon 21 public and a large class of persons in that Petitioner se 22 to enforce the provisions of important state and lc 23 environmental laws for the benefit of the public and in • 24 Petitioner seeks to rectify certain procedural improprie 25 which will benefit all future participants in 26 decision-making process employed by Respondent and which 27 benefit the public in general; 28 b. The necessity and financial burden of private -19- lIenforcement is such as to make the award appropriate ; and 2111 c. Such fees will not be paid out of any recovery. 3 SECOND CAUSE OF ACTION 41 (Complaint for Declaratory Relief) 5 29 . Petitioners incorporate herein by refere 6 Paragraphs 1 through 28 as if fully set forth hereat. 7 30. A present controversy exists between 8 Petitioners and Respondent CITY. Petitioners contend that C 9 has not acquired property interests acid/or easements acr 10 private property, including property of Petitioners which will 11 permit the construction of the Project, and that prior 12 initiating construction, such easements must be appropriately 13 legally acquired. Respondent CITY contends that it has acqui 14 all easements and property rights necessary to the project, 15 intends to proceed with construction. 16 31. Petitioners are informed and believe t 17 Respondent CITY will proceed with the project without fi 18 making a positive determination of ownership, control and Sc 19 of easements and rights of way, thus necessitating additional , 20 unnecessary litigation based upon theories of inve 21 condemnation and damages. 22 32 . Petitioners seek a judicial determination 23 declaration that Respondent, prior to proceeding with 24 Project, must first make a determination of ownership, con 25 and scope of easements and rights of way along the path of 26 proposed project, and must commence proceedings in eminent do 27 prior to encroachment on or use of any private property inter 28 not otherwise legally acquired. -20- 1 . 73 . This declaration is necessary and appr_mr_i_e 2 i this time in order that petitioners and others similarly sit-la • 3 I may acertain the right to have Respondent CITY act in confo rma 4 /I with State Law, and to avoid the necessity of additic 5 litigation. 6 THIRD CAUSE OF ACTION 7 (Injunctive Relief) 8 34 . Petitioners incorporate herein by refere g Paragraphs 1 through 33 as though set forth in full hereat. 10 35 . Respondent CITY has, by its approval of the �1 Project, indicated its intention to proceed with construction 12 soon as contracts can be let. 13 36. Petitioners will be irreparably injured if the C 14 continues to act pursuant to its approvals. 15 37. The public interest favors resolution of 16 substantial public issues presented by the Petition for Writ 17 Mandate, and such issues would be mooted if the CITY were 18 proceed with construction activities, including contrac 19 financing agreements and actual construction of the proj 20 during the pendency of this proceeding. 21 38. Respondent CITY will not be injured by a tempon 22 stay of its intended action, and has no right to proceed 23 violation of California law. 24 39 . The balance of hardships tips strongly 25 Petitioners' favor in that if the Court does not gi 26 preliminary injunctive relief, Petitioners will not receive tt 27 fair day in court. A multiplicity of actions will oc' 28 including suits for economic and other damage. The harm to th. -21- l l environment, including the removal and destruct:cn of 21 eucalyptus trees along Route 66 , will be irreversible. 31 WHEREFORE, Petitioners pray for relief as follows: 4li AS TO THE FIRST CAUSE OF ACTION 5II 1 . That peremptory and alternative writs of mand. 6 issue, determining that Respondent CITY has failed to comply w 7 the law and CEQA, and issuing an order as follows: 8 a. A mandate that the determination, finding 9 decision of Respondent CITY approving the Foothill/Be 10 Sewer Project be voided by the CITY; 11 b. A mandate that Respondent CITY suspend all activi 12 pursuant to the determination, finding or decision approv 13 the Foothill/Beech Sewer . Project, that could result in 14 change or alteration to the physical environment, until 15 CITY has taken such actions as may be necessary to bring 16 decision into compliance with the law; and 17 c. A mandate that Respondent CITY take specific act 18 as may be necessary to bring the decision approving 19 Foothill/Beech Sewer Project into compliance with the 1i 20 including, but not limited to, the preparation of 21 environmental impact report. Public Resources Code Sect. 22 21168. 9 (a) . 23 d. That the court shall maintain continm 24 jurisdiction over the matter until CEQA compliance 25 achieved. Public Resources Code Section 21168.9 (b) . 26 2 . For an award of reasonable attorneys fees purst 27 to Code of Civil Procedure Section 1021.5. 28 3 . For an award of attorneys fees pursuant -22- IL Government Code Section 500 . it 211 4 . . For costs of bringing this action. 31i 5 . For such other relief as the court may find just 411, proper. 511 AS TO THE SECOND CAUSE OF ACTION 6 6 . For a declaration of the respective rights 7 duties of the parties. 8 7 . For reasonable attorneys fees and costs 9 litigation. 10 8 . For such other relief as the Court may deem just 11 Proper. 12 AS TO THE THIRD CAUSE OF ACTION 13 9 . That preliminary and permanent injunctions iss 14 enjoining the CITY from proceeding with the Project until s 15 time as it has appropriately complied with CEQA and the law. 16 10 . For attorneys fees and costs of suit. 17 11 . For further relief as the court may deem just 18 proper. 19 Dated: January 8 , 1990 ' 20 BRUNICK & PYLE 21 22 By 23 Marguerite P. Battersby 24 25 26 27 28 -23- APPENDIX I . ENVIRONMENTAL CHECKLIST FORM (To Be Completed By Lead Agency) I. Background I. Name of Proponent City of Fontana 2. Address and Phone Number of Proponent 8353 Sierra Avenue Fontana, California 92335 (714) 350-7610 3. Date of Checklist Submitted September 22. 1989 4. Agency Requiring Checklist City of Fontana 5. Name of Proposal , if applicable Foothill/Beech Sewer Project • CD/ 6. Description of Project 1) Installation of sewer line 41 ' from center line on the north side of Foothill Boulevard from Cherry to Lime Avenue and in-between 12' County and City owned strip of property designated as future Beech Avenue from Foothill to Baseline. 2) Installation of storm drain line 34' north of centerline of Foothill Boulevard from Cherry to Beech Avenue. 3) Installation of water line 28' north of centerline of Foothill Boulevard from Cherry to Beech Avenue. 7. Location of Project 1) Sewer project is from Cherry to Lime on north side of Foothill Boulevard and between Foothill and Baseline on Beech Avenue. 2) Storm drain is on Foothill Boulevard between Cherry and Beech Avenue. 3) Water line project is from Cherry to Beech Avenue (see attached map) . II. Environmental Impacts (Explanations of all "yes' and "maybe' answers are required on attached sheets.) Yee; Maybe No 1. Earth. Will the proposal result in: a. Unstable earth conditions or in changes in geologic substructures? X b. Disruptions, displacements, compaction or overcovering of the soil ? c. Change in topography or ground surface relief features? _ ) APPENDIX I Page 2 d. The destruction, covering or modification of any unique geologic or physical features? _ X e. Any increase in wind or water erosion of soils , either on or off the site? X _ f. Changes in deposition or erosion of beach sands, or changes in siltation, deposition or erosion which may modify the channel of a river or stream or the bed of the ocean or any bay, inlet or lake? X g. Exposure of people or property to geologic hazards such as earthquakes, landslides, mudslides, ground failure, or similar hazards? _ X 2. Air. Will the proposal result in: a. Substantial air emissions or deterioration or ambient air quality? X b. The creation of objectionable odors? _ X c. Alteration of air movement, moisture, or temperature, or any change in climate, either locally or regionally? _ X 3. Water. Will the proposal, result in: a. Changes in currents, or the course of di- rection of water movements, in either marine or fresh waters? _ X b. Changes in absorption rates, drainage pat- terns, or the rate and amount of surface runoff? _ X c. Alterations to the course or low of flood waters? d. Change in the amount of surface water in any water body? e. Discharge into surface waters, or in any alteration of surface water quality, in- cluding but not limited to temperature, dissolve oxygen or turbidity? _ _g_ f. . Alteration of the direction or rate of flow of ground waters? _ X • APPENDIX I Page 3 g. Change in the quantity of ground waters, either through direct additions or with- drawals , or through interception of an aquifer by cuts or excavations? — -- X h. Substantial reduction in the amount of water otherwise available for public water supplies? X i . Exposure of people or property to water re- lated hazards such as flooding or tidal waves? X 4. Plant Life. Will the proposal result in: • a. Change in the diversity of species, or num- ber of any species of plants (including trees, shrubs, grass, crops, and aquatic plants)? X b. Reduction of the numbers of any unique, rare or endangered species of plants? X c. Introduction of new species of plants into an area, or in a barrier to the normal replenish- ment of existing species? _ X d. Reduction in acreage of any agricultural crop? _ X 5. Animal Life. Will the proposal result in: a. Change in the diversity of species, or num- bers of any species of animals (birds, land animals including reptiles, fish and shell - fish, benthic organisms or insects)? _ X b. Reduction of the numbers of any unique, rare or endangered species of animals? _ X c. Introduction of new species of animals into an area, or result in a barrier to the migra- tion or movement of animals? _ X d. Deterioration to existing fish or wildlife habitat? _ X 6. Noise. Will the proposal result in: a. Increases in existing noise levels? 7� b. Exposure of people to severe noise levels? _ X APPENDIX I Page 4 7. Light and Glare. Will the proposal produce new light or glare? X 8. Land Use. Will the proposal result in a sub- stantial alteration of the present or planned land use of an area? X 9. Natural Resources. Will the proposal result in: a. Increase in the rate of use of any natural resources? _ X • 10. Risk of Upset. Will the proposal involve: • a. A risk of an explosion or the release of hazardc.: substances (including, but not limited o, oil , pesticides, chemicals or radiation) in the event of an accident or upset conditions? _ X b. Possible interference with an emergency response plan or an emergency evacuation plan? _ X 11. Population. Will the proposal alter the location, distribution, density, or growth rate of the human population of an area? _ X 12. Housing. Will the proposal affect existing hous- ing, or create a errand for additional housing? _ X 13. Transportation/Gir.Jlation. Will the proposal result in: a. Generation of substantial additional vehicular movement? _ X b. Effects on existing parking facilities, or demand for new parking? _ — c. Substantial impact upon existing transpor- tation systems? _ d. Alterations to present patterns of circula- tion or movement of people and/or goods? _ X _ e. Alterations to waterborne, rail or air traffic? _ X f. Increase in traffic hazards to motor vehicles, bicyclists or pedestrians? _ X _ APPENDIX I Page 5 • 14. Public Services. Will the proposal have an effect upon, or result in a need for new or altered gov- ernmental services in any of the following areas: a. Fire protection? X b. Police protection? X c. Schools? • X d. Parks or other recreational facilities? _ e. Maintenance of public facilities, including ; roads? f. Other governmental services? X 15. Energy. Will the proposal result in: a. Use of substantial amounts of fuel or energy? _ X b. Substantial increase' in demand upon existing • sources or energy, or require the development of new sources of energy? _ X 16. Utilities. Will the proposal result in a need for new systems, or substantial alterations to the following utilities: X 17. Human Health. Will the proposal result in: a. Creation of any health hazard or potential health hazard (excluding mental health)? _ X b. Exposure of people to potential health hazards? _ X 18. Aesthetics. Will the proposal result in the obstruction of any scenic vista or view open to the public, or will the proposal result in the creation of an aesthetically offensive site open to public view? _ X 19. Recreation. Will the proposal result in an impact upon the quality or quantity of existing recreational opportunities? _ X APENOIX I Page 6 20. Cultural Resources. a. Will the proposal result in the alteration of or the destruction of a prehistoric or historic archaeological site? _ X b. Will the proposal result in adverse physical aesthetic effects to a prehistoric or ,;istoric building, structure, or object? _ X c. Does the proposal have the potential to cause a physical change which would affect unique ethnic cultural values? _ X • d. Will the proposal restrict existing religious or sacred uses within the potential impact area? X 21. Mandatory Findings of Significance. a. Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self sustaining levels, threaten to eliminate a plant or animal community, re- duce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? _ X b. Does the project have the potential to achieve' short-term, to the disadvantage of long-term, environmental goals? (A short-term impact on the environment is one which occurs in a rela- tively brief, definitive period of time while long-term impacts will endure well into the future.) _ X c. Does the project have impacts which are individually limited, but cumulatively con- siderable? (A project may impact on two or more separate resources where the impact on each resource is relatively small , but where the effect of the total of those impacts on the environment is significant.) _ X d. Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? _ X APENDIX I Page 7 III Discussion of Environmental Evaluation (Narrative description of environmental impacts. ) IV. Determination (To be completed by. the Lead Agency. ) • On the basis of this initial evaluation: I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A NEGATIVE DECLARATION WILL BE PREPARED. X I find the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. PREPARED BY: • October 19. 1989 1 c � DATE YOUSUFPATANWALA CIVIL ENGINEERING ASSISTANT III REVIEWED AND APPROVED ROBERT W. WEDDLE INTERIM CITY ENGINEER Mitigation Measures to all "Yes" and "Maybe" answers : l.a. At the time of excavation unstable earth conditions will result which will be mitigated through proper shoring procedure or by maintaining side slopes of the trench at an angle as recommended by soils engineer which will allow stable slopes. l .b. Due to the excavation of the trench, soil will be disturbed and displaced. Most of this soil will be placed back into the trench after the placement of utility pipes. During backfilling operation, the soil will be well compacted; and the top of the trench will be leveled to grade with the surrounding ground. 1.c. Topographical change is expected during construction stage only which will diminish as the project is out of the construction stage. 1.e. Increase in wind erosion may result due to loose excavated dirt piled up on the side or alongside the project. This will be mitigated through proper watering of the area under construction stage and where dirt is being piled up as per standard specification for Public Work's construction 7-8. 1. 1 .g. There is a possibility during construction of ground failure which will be prevented through proper shoring of the trench walls. 2.a. The heavy equipment on the project site will temporarily disturb the air quality of the surrounding area, but he is regulated by Article 7-8.2 of the Standard Specifications for Public Work's Construction. To further minimize this effect, the work will not be carried out on days when the general air quality is said to be in 1st stage smog alert. 3.b. Installation of a storm drain line will benefit the general area by allowing the storm run off water to be picked up by catch basins in the side streets and reducing the surface flow on streets itself, thus reducing chances of flooding of streets and surrounding area. 4.a. The City of Fontana recognizes and appreciates the positive effect that the wind rows of Eucalyptus trees have in creating the beauty and ambience of the City. The City encourages saving these wind rows whenever possible. In this project, in order to provide for public health and safety by the construction of sewers and storm drains, the removal of the existing wind rows of Eucalyptus trees is necessary on Foothill Boulevard between Cherry Avenue and Lime Avenue and on the proposed Beech Avenue between Foothill and Baseline. These wind rows lie within the existing or proposed street right-of-way. Page 2 In order to insure that the trees will be planted in the streetscape at the time Foothill Boulevard is widened to its full width, the City of Fontana will establish a tree program. Money will be placed in the tree program using the following guidelines: 1 . Before the project begins, a certified arborist will verify the number of trees, which have to be removed for the project, along Foothill Boulevard and the proposed Beech Avenue. The condition and trunk size of each of these trees will be determined by the arborist. • • 2. For the trees which have to be removed along Foothill Boulevard, the City will place $75.00 in the Tree Program for every tree rated average or above with a diameter of 8" or less. For every tree rated average or above with a diameter of 9" or more, $300 will be placed in the Tree Fund. 3. For the trees which have to be removed for the project on private property along the future Beech Avenue, the City will negotiate with the private property owners. If the property owner agrees to maintain the trees, the City will plant 'trees • on the private property of the resident per the schedule established for the trees along Foothill Boulevard. Money placed in this tree program will be used to plant trees along Foothill Boulevard and vicinity where not already required by development standards. 5.a. The removal of the Eucalyptus trees may change the number of birds and small rodents in the area. However, with the planting of new trees in the streetscape, the birds and small rodents may return. 6.a. There will be an increase in noise level due to construction equipment, but will it be mitigated by enforcing state laws for keeping their noise level within permissible limits. Also, the hours of construction will be limited to 7 a.m. to 6 p.m. 10b. The project may interfere with normal emergency operations. All utility companies, Police and Fire will be notified at least a week in advance of the section of the project on which work will be taking place. In addition, the contractor will be required to follow the Article 7-10 of the Standard Specification for Public Works Construction, which addresses public convenience and safety. Page 3 13b. Existing parking along side of the street may be affected and it will be mitigated through proper posting of sign indicating approximately for what time period parking at a particular location will not be available. 13c. It will cause substantial impact on traffic flow on Foothill Boulevard during construction stage and to mitigate this impact. there will be advance notice placed on the roadway to make the people aware of the lane closures and expected date of its returning back to normal state. Also, the contractor will follow Caltran's temporary detour plans for the smooth flow of traffic. 13d. Excavation of a trench in front of property may cause temporary inconvenience to the businesses and homeowners along the project site. In order to minimize the effect, the contractor will be required, through project specifications and plan notes, to provide temporary driveway access by any suitable means to the property at all times. • 13f. The closure and movement of construction equipment will increase traffic hazards to all the road users, and this will be mitigated through proper posting of signs according to traffic safety standards and by proper traffic controlling devices for safe detour of the traffic. 16. The construction of the new sewer line will provide sewer service to the property owners in that areas as well as releasing substantial pressure off the existing sewer pump at corner of Lime Avenue and Foothill Boulevard. 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R\i i I ,iota i - It 1 Ei 1 4 P. 7 ' / • • • \ r/,,t4,,/, ,,,•//,.,/,) • \ �-X-Sec nom FoonNILL BL✓O. TO /G/-00 • : < , . zr- -I ,I • CI �' � r r�4dfclr.- ••r taw TO;c'ro I � T VIl� DET,�/L r I. suLE: , 'no q,,,,,� A t FOOrs//L L TO /6/+ 11 *44X /S•MAI' NOTE: TRENCH WILL NOT BE EXCAVATED IN PRIVAT PROPERTY UNLESS TEMPORARY CONSTRUC • EASEMENT HAS BEEN GRANTED BY THE PR OWNER. • APPENDIX D City of Fontana NOTICE OF DETERMINATION Engineering Division 8353 Sierra Avenue Fontana, CA 92335 TO: Office of Planning and Research 1400 Tenth Street, Room 121 Sacramento, CA 95814 _X_ County Clerk County of San Bernardino 385 N. Arrowhead Avenue San Bernardino, CA 92415 , SUBJECT: Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources Code. `O Project Title: Foothill Boulevard/Beech Avenue Sewer Project State Clearinghouse Number Contact Person Teaephone Number Yousuf Patanwala (714) 350-7661 Project Location: In existing right of way on northside of Foothill Boulevard between Hemlock and Lime Avenues and on existing Beech Avenue right of way between Foothill Boulevard and Baseline Avenue Project Description: To construct trunk sewer line in existing right of way of Foothill Boulevard and Beech Avenue in the above mentioned limits. This is to advise that the City of Fontana has approved the above described project on December 5. 1989 and has made the following determinations regarding the above described project: 1. The project will , X will not have a significant effect on the environment. 2. _ An Environmental Impact Report was prepared for this project pursuant to the provisions of CEQA. X A Negative Declaration was prepared for this project pursuant to the provisions of CEQA. 3. Mitigation measures X were, were not made a condition of approvarorthe project. 4. A statement of Overriding Considerations was, X was not adopted for this project. This is to certify that the final ND with comments and responses and record of project approval is available to the General Public at the City of Fontana Engineering Division. Date Received For Filing and Posting at OPR: `ram w dQ. tE. "//aS Environmental Review Officer Signature Title December 5, 1989 • Fontana City Council City Hall Fontana, CA • Dear Council member: I respectfully request that consideration of the environmental documents concerning the Foothill/Beech Sewer Project be continued until a future date in order for the city staff to more thoroughly examine some environmental issues that I will enumerate in this letter. It is further requested that consideration of the project itself be continued until such time that an appropriate and informed decision regarding the project's potential for environmental damage has been made under the provisions of the California Environmental Quality Act (CEQA) and the CEQA Guidelines. The Initial Study prepared by Yousuf Patanwala, reviewed and approved by Robert W. Weddle, dated October 19, 1989 does not seem to provide sufficient information from which a judgement regarding significance can be made. The following general comments regarding the Initial Study are appropriate in this case: • The project description does not provide sufficient detail to know what is to occur, when it will occur, or why the project is being proposed. If installation of a sewer is involved, shouldn't the fact that a particular amount of earthwork will be accomplished be noted, or that the surface will be left bare or paved over, or a large hole will be left, be noted there. All phases of project planning, implementation , and operation are required to be considered by the Initial Study. Yet only installation is mentioned in the project description. No mention is made of the existing environmental setting. Without a baseline from which the project will be starting, it may be impossible to predict change. Without a baseline environment how can significance be determined? This is especially important for this project which is outside of the city limits and could be quite different than the setting within the city. No substantiation of any information is provided in the Initial Study. This would possibly be of less importance if the Initial Study did not indicate the potential for significant impact and then suggest that all of the impacts will be fully mitigated to levels of non-significance. The Initial Study does not examine consistency with applicable zoning, land use designations or other land use controls. The following comments are alpha-numerically keyed to the "mitigation measures" in the City of Fontana Initial Study and deal with the corresponding environmental issues: • • l.a. What angle is being proposed that will assure side slope stability and x;,; ,s this angle to be arrived at if it has not been? What soils are beneath proposed alignment? What is the proper shoring procedure in these soils? • l.b. What is to be done with residual soil? What is the recourse if the surface subsides and the excess soil has been trucked away? What definition of significance has been used in this instance? 1.c. Does this "mitigation measure" indicate that there could be significant impact to area topography? How does this paragraph mitigate that impact? 1.e. What is proposed to preclude wind erosion following construction? This area is noted for the winds that occasionally occur there. 1.g. What qualifies as proper shoring of the trench, walls? What level of earthshaking was considered as probable? 2.a. Who is going to determine that work will halt on 1st stage days and what is the general area? This information is generally available and needs to be • included in the evaluation and considered by the Council. 3.b Since it is a storm drain project will the project be taking flows from Foothill? What is the project doing about runoff in the project area, has it been quantified, will sheetflows across Foothill be impeded by the project? Is the project to occur during the wet part of the year? 4.a. The tree program that is mentioned as a mitigation measure uses an unstated formula for replacement. Does the tree program just collect money for mitigation yet not cause even a one for one replacement because a county program will cause planting in this area at some future stage of area development? What will mitigate the impact of tree removal from this project? 4.b. The Initial Study notes a significant impact and no mitigation is required. This omission alone precludes the use of a negative declaration. 5.a. Until you are able to quantify and time a replanting program and quantify the impact you are mitigating, the accuracy of this statement is in question. Has a biological assessment of the area been accomplished? Has the California Natural Diversity Data Base been reviewed for this project? • 6.a. What is the state law referred to and what noise levels does that law require? Are those limitations equal to or greater than those required by the county? 10b. If this project may interfere, what is the interference and how does notifying those agencies mitigate the impact? It would seem that the physical impact will require a physical resolution. 2 • 13b. What might be the impact on parking and how will signage mitigate that impact? For what time periods might the parking areas not be available? I3c. What is the impact on traffic and how does the proposed mitigation lessen that impact? Again, what time frame is involved? Total disruption for three days has an entirely different significance than seventy-live percent disruption for three months. 13d. At what point is this being required of the contractor and through what mechanism? What controls are in place to assure compliance? 13f. What is proper for this traffic environment? Who is to judge the proper levels of signage and proper controlling devices if they are not spelled out here? Should this be left to the contractor? 16. If the proposed project impacts adversely on area utilities, what is that impact? The mitigation measure that is noted is not a mitigation measure. In summary the environmental documentation that has been prepared does not meet the requirements of CEQA either as it has been written and amended and it does not inform the decisions makers of the potential impacts the project may have on the environment. Furthermore the Initial Study as written does not mitigate all noted significant impacts to levels of non-significance, mandating a course of action other than issuing a Negative Declaration. In the interest of improving the quality of the Foothill/Beech Sewer.Project, I ask that you continue this public hearing until such time as you have been able to reevaluate the potential environmental impacts that may be caused by this proposed project. Because of the amount of reevaluation that must be accomplished it is appropriate that the new Initial • Study be recirculated for public review and comment and that future hearings on the project be properly noticed. • Because the project requires discretionary approval of a state agency, any future review should be coordinated with the state clearing house and the review period should reflect state review. • Your careful consideration of these issues prior to making a decision is appreciated wholly. Sincerely, Carl Atkinson 3 4 • ^ 11 . e1 : , . Navpmeer 10 , 1 .3; Mr . 5cb :eaa : e Cit. : r Engineering Department H.111 F: r. cana . Ca ;_337 :3ar Mr . Uedd :e : am sending you a COPY Or the Protest font tO the 17rc',5 hermit se: tson . The rQa%00 thti letter w.1S Sent t0 t^.•Sm Li t'.:lt tr.ey Satd in their permit review regarding this zr0je: t they found n0 record of any protest by the Property a Teri , have invited them to attend Our neighborhood meeting On eh, Z9th and hope th.lt YOU Can have some answers to these orOblemS at that time . : di believe it ti unfair tO the people in the area to continue having meetings and y0U be u nwtiling to :lniwer these Questions or Commit in writing remedsOS for our ewpe: ted losses . Stn•:ereli C:ar1 E . Atki ' , Jr Y " . 11 '7 . c : : 11 . the C7 tme cn.D : ect ond m.Dw IT 4;;Iondtti' y - 3.7de Ldsttt.15 ] 1e ;. i41 re;otjln; :ns zsr : JeZt tine Liss ce Pr,.:P4rtleS ni ti.J5Losi -45es nd IF tms g0 ;. flE. tt emPiCieei Crp.i Ccir nns : lez the iCi2 Cr- ouslreE5 . L'. 11C tr,4 c.Dittm.fl or d,_; st c,nt ':me : F tme r%or,..totcfl hCZ,;:n.pne t`,4 1 / 3t9d h7.%'e t4sn ons..iered . We see z,-,e orCijeCt the ; treed rind ':nnt 1199.7 : 1 .1t1: tli fr...1Y4 never t.“ 4n c: Lt” PrCz ?, tMt erf 9 C te e 1 ; L t.• 1 .ts -.: int t F ' m.7,Je P..",:h = r0r-c:717 . (CCIILS r. ) Ler? ni'.'er H -4 tc give C.J. 5 .9n 30 m n IF 6:9 uon .,79. ,:: oSe cr4rt: In tMe ore0 . he: e the me .10t told the PnC, Je.: :: ; ewer 6nd CCrl !trCi 17) ' ...hen he found atout It h? *.CC. • OniCt tzj he '../CL:ld he to vo: teer OnnS - `,12 PrCCir '7% '70 tfr.4 Tte Latent or th: s letter to 'Jou CI":11▪ t". 11 test. Pr,: t= 2 `gte cedInnIng d.jt=very erfl.mt mOde ty the o ' `-] ; t eEtCLISPn tine effect OF ths ; Pn7.. je.: t tmelr 7,notert, moS e 4n ln vnln , 4i M. . 4 teen 7%0 t :rt n t m 4 ;Sang ,1nswqr' r :hat ;:me Infora '710,-; was act ayallatle .wQwl,d 10. 0 tv list th4 onl ,2-3nCern3 or the Pfl'OPartY : w -ere on a separate page along : 1 !:1" su::rnion= rr-tde t ; cln.71 signatures or the 940P1e In 'thli oc.el otleo ': project under the prezent CCnditiCkn:i . (Sr. We the c ; et; ; ? • 2 : _ e':1rd vc . i _ . i . - - _ - _ - - _ _. e - - _ r ` e : - - ' .r _ ,.e d the _ t t . - - _ - - - . r : .• 'r • - - ens, to ;. ire . We d .Oree G : - _ - - rerlt _ C : y tereeit tre il, t'Jre - - : .: - , t : _ re L :Le in the .. .'_1: _ ., i - - to use :1 sewer or' b r.a 3 e P `t L : t C1 n. -_ .o c . ` " _ 'P rr SEC l- COUld be he r ; yht project to the t -h - - _ _ i the night t iime v Firs , we Oh ; eC ' t0 the manor : n :h to for : e u5 into granting •r.ascessar ` - - - or a t ?grantingFrc.^ert" rOr the :Onttru4 . . :n or `h - . e _ me Cons iitert !denied enied ^em Perrot ISIOri : the prOJect :.•1t.: .� G The _ _ r _ . r_Ccr :) . _ grar czroerrotion for ohis c : _ , d , re olio dame . . ;e : Drd we _ h JCC _ `O . -•e :•-1.: L' Or or 1 nonr r? : " irvnn - offered ue by the : i ' regards ".1 the tC1 ` —b el " " . :orSOliOatton Of c'ro ,a _ t ; ir..: lu.tn❑ e r1 ]rytr,3 tna : ? tar SUPP : y lane , mCvin5 the gni line to Che Ecuth size C.f . F'JOthill , r :OCd :•Jn "Ol ar o Foothill by the State [• . C1 , T , , .n.14 the ? e'Jer , _ Third the City seems unwilling to Jddre SS `r,a r :_ 1am ; racing the buiireSSet ir. this area iu :h a5 the' lois of t'iin?Si • the Cueiti •-r Cr ':h,C : ill. : 7: f.a t111 : dj: _ • the t : to we :ire unable '.7.1% to. .? in -._on - - - If the . :ntr:1C tOI` r:-� l : i _ _ _'1c ? i .a hli - � i - a.: :cn ` ill.2 Or fails ;:O rest:re our GrC'Fert, t•: it ' s C ,- iii _ COndit _Cn . how _ : l -he creei oe 1ny ".3Er : y . .-,.-I`re; 1 - : e. ...:here ,. FC'Urth we object to the concept th:. t , inito / l CI utility Ond '! _utility On cur prope l;� U i ll 5 a O f -„ that utility or Charge a diiprOPOrttcnate fee fC•r It ' - 'Jig bl those whose FrOFertf ii : rreOte.A? l t `. "IS C.Ch/c/-Once.? ca..2LyiwC __1/4<crll .721 C%I.L 4.-0.-i-Ll�•,,� /S -/ir/ '-& f/. is .J/c•.i p A -/— 4rJ_ _ t`,_ &J ill ' L r',� -Fl �' - 64 ---- -- . all i I _19-I 0 F00 TH(L-L 1>L-V0 • .� CiL r i. r::::?� I 1 ( ? III ;_i I I ..y 1w�. � 0 � November 27, 1989 C/F- Mr. Carl E. Atkinson, Jr. Wheels , Etc. 15186 Foothill Boulevard Fontana, CA 92336 Subject: Foothill/Beech Sewer Line Project Dear Mr. Atkinson: • The purpose of this correspondence is to respond to the issues you raised in your November 16, 1989 letter and to document my understanding of your concerns per your November 16, 1989 letter and our previous telephone conversations and correspondence. Attached to your letter was your November 15, 1989 correspondence to Cal trans and a property owner petition. In brief, you have previously requested a written agreement between yourself and the City of Fontana that details the impacts of the project on your property and sets up a guarantee that if the mutually agreed upon construction period takes too long, you would be compensated monetarily for the delays. Additionally, you had requested proof of the half street right of way dedication for your property, i .e. 50 foot vs. 60 foot issue, and had indicated you plan to take appropriate legal action to secure the aforementioned agreement. Driveway access is not your main concern, but that the trenching will go through your work area that is located in Cal trans street right of way. In our previous telephone conversations, I had indicated to you that I had requested a legal opinion from the City Attorney's office on the appropriateness of potential compensation for lost business. I have not received the City Attorney's response yet, but expect it in the near future. I have requested copies of your deeds to verify dedications, but they have not arrived yet. The project specifications are being set up to require the contractor to be through your work area and to restore the paving area within 3 days from start of the work along your property. Delays by the contractor will result in monetary penalties being assessed and deducted from the contractor's payments. I also agree that we still have to meet in the field to discuss how you want your tire signs, mailboxes, etc. , relocated, stored and replaced during the time construction occurs along your property. The following discussion responds to the issues you raised in your November 15, 1989 Caltrans letter and property owner petition. (copy attached) 8353 SIERRA AVCNUE (P.O. UGX 510) FONTANA. CALIFCr,NIA 0233,1-U510 (/I4) 350-7000 Mr. Carl E. Atkinson, Jr. • November 27, 1989 • Page 2 LETTER TO CALTRANs: 1 . Statement: The property owners unanimously objected to the project and request that the City answer questions regarding the project and how it would be paid. Response: In my communications with some of the property owners and the reports to me by my staff and right of way consultant, I do not have the feeling that a major portion of the impacted property owners are against the project. Most are primarily concerned solely with the construction aspects of the project, i .e. driveway access, dust control , trees, curb replacement at ultimate location vs. to existing location. A number of property owner meetings have been held on this project and I personally conducted the May 31 , 1989 meeting that was held at Bono's Deli and Restaurant. My sign-in log indicates that you attended this meeting. At that meeting and other property owner meetings it was pointed out that the project's construction costs were going to be paid through the City's Sewer Fund. This restricted fund received its monies from developer or property owner payments for extending a sewer line to North Fontana. These funds cannot be used to widen Foothill Boulevard. 2. Statement: How much would it cost the property owner to be hooked up and if it would be mandatory. Response: For existing commercial buildings and houses, sewer hook ups are not required. For new buildings and perhaps building additions, most agency's plumbing codes require connection to a sewer system if the property is within a certain distance to the sewer line. I suggest you contact the County Building and Safety Department for this information. For properties located in the County to connect to a City of Fontana sewer line there are certain requirements that must be met. Specifically, the property owner must comply with Fontana Municipal Code Section 26-37 "Permit for connections outside City" and other appropriate Municipal Code Sections. The City Council has also required that should any property located in the County request connection to the City sewer line, the property owner must first execute an annexation agreement and pay all appropriate fees. The sewer connection fees for your property can be computed by City staff if you drop by the Engineering Division public counter. I suggest you call (714) 350-7610 to confirm that the appropriate staff person is available before you come in. 3. Statement: Some of us with businesses wanted answers regarding how the project would affect the use of our properties as businesses and if the Mr. Carl E. Atkinson, Jr. November 27, 1989 Page 3 • City was going to pay our employees and our families for the loss of business . Response: The project specifications will require that an access be provided to all properties. Alternate driveway access points will be utilized to minimize the inconvenience. The compensation issue as previously noted has been directed to the City Attorneys office for review. 4. Statement: Also the control of dust and other confusion. Response: The project specifications require the contractor to maintain adequate dust control . Oust control spray agents are being reviewed for inclusion in the project. Traffic control will be as approved by Caltrans with the intent to eliminate any driver confusion and provide a safe work area. 5. The projects that are being constructed by the Village of Heritage .easterly of your business have been under way for a number of weeks. My Public Works Inspection Staff have indicated that all properties have access to Foothill Boulevard. Per Mr. Roger Hatch, Fontana Heritage West End Associates, all property owners were sent a letter advising them of the project. They have also set up a special pick up and delivery of mail for the existing business and property owners. 6. Each property will be provided with a sewer lateral at the down stream end of each property. Requirements for connections are discussed in Item No. 2. City staff can show you where we plan to construct your lateral . 7. The Heritage project also includes construction of a storm drain and water line as well as a sewer line, (see attached status report on Heritage/City projects) in Foothill Boulevard. This item was discussed in brief at the May 31, 1989 meeting. As I recall , one of the attendees asked me if the City could complete the construction of all utilities at the same time so that there would only be one construction period not many. At that time I stated that the City of Fontana only had funds for the sewer line and that the other utilities would be extended at the time monies were available. PETITION, 1. Statement: First we object to the manner in which the City has tried to force us into granting unnecessary use of our property for the construction of this project. Mr. Carl E. Atkinson, Jr. November 27, 1989 Page 4 Response: As stated at the May 31, 1989 property owner meeting and other meetings, no property owner will be forced iiito granting temporary construction easement. The City of Fontana has received six temporary construction easements out of the nineteen we attempted to secure in Foothill Boulevard. Since the City was unsuccessful in securing the full temporary construction easements in Foothill Boulevard the projects construction work area will have to utilize more street area. This will further narrow the Foothill Boulevard travel ways, but there is sufficient room in Caltrans' right of way to construct the project. 2. Statement: We have consistently denied them permission to dump dirt from the project onto a temporary easement. Response: True. Now the construction will utilize more of •Foothill Boulevard for a work area. 3. Statement: They asked the County to grant condemnation for this purpose and were also denied. Response: I am not aware that this occurred; however, the City of Fontana has condemnation authority in County areas for constructing certain utility lines, but not for street widenings per a legal opinion from the City Attorney. We see no need to acquire any further permanent easements or temporary construction easements. 4. Statement: Second we object to the lack of or incorrect information offered us by the City regarding the possible consolidation of projects including enlarging the water supply line, moving the gas line to the south side of Foothill , Flood Control Drainage System, widening Foothill by the State D.O.T. and the sewer. Response: These items can be discussed at the 9:00 a.m. November 29, 1989 meeting at Bono's Deli and Restaurant. 5. Business loss issue will be reviewed by the City Attorney as previously stated. 6. The construction of the City sewer line will be within State Street and public utility rights of way in Foothill Boulevard. The City, as utility owner for the sewer line, has specific requirements for connections that apply uniformly as per City Code depending on the location of the property, i .e. Incorporated vs. Unincorporated. Mr. Carl E. Atkinson, Jr. November 27, 1989 Page 5 • I hope the above lengthy discussion answers your questions . Should you need any additional information please contact the undersigned or Mr. Yousuf Patanwala at (714) 350-7610. I hope to see you at the November 29, 1989 property owner meeting. Very truly yours, Robert W. Weddle Interim City Engineer RWW:cm Enclosures cc: A. Calvert C. Alsop G. Bucknell Y. Patanwala C. Navarro L. Dale J. Hogan K. Kobayashi M. Miles • The West End Resource Conservation District rienenber : 4 . ... , Joe Bono P . O. Box 3G:3 Fontana . CA 02334-0:7: Dear Mr . Duno , I have talked with Roberr Weddle with the City of Fontana and disco::dyi ... ground d: .urbance and its probable blew sand hazard. Mr . Weddle knows of your concern and will be p:'nv: Ln prarnction from blowing sand by wnierin3 the disturb site during construction and then applying a sni , st .„ , l her after construction is cam.!.lute . Mr . Wed,lle also mention that groun,i dis - turbance will begin in April and the project will he completed in On days . My recommendation to Mr . Weddle was to have the project ,lone aa'i the sniff stabilizer applied beCore October 1000, and not to reopen the ground until late March for the next two proposed ground disturbance. activir ;es . I also mention that they should add to their contract bid a provision that would require the contract bidder to have a water truck available seven dn :s a week and on holidays to water drown the site when wind gust arc predicted by a News Weatherman and during such gust to protect the area from dust. nr blow sand leaving the site . As you know the Eucalyptus windbreak will he cut down to continue the project and thus , increase the wind velocity down wind from the windbreak. I recommend that a windbreak he planted just north of the disturbed area . Yon might contact the City and see if they will replace your windbreak trees . As you know the winds and blow sand is a problem in this arra . Just in the past few years law suits have been won against developers and the problems of blow sand has to businesses and homes . This may be the way to gn if the City lacks in their responsibilities to control the blow sand . Please contact the West End ROD for information on windbreaks , blow sand etc. . . Sincerely Jeff Wilson • Soil Conservationist CONSERVATION • OCvaLo ME:NT • SCLF•OOvCnNMCNT ERIFICA HON STATE OF CALiFOR.,A. COLNTY OF SIC: I ha•.e :cad :it _-. :',i,r__ _ __ __ _ _ C.'"'L \A" ; :R'.' .. . _ - .._ •. - _ Ana .nit. :is CHECK APPLICABLE PARAGRAPH I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except is .o❑ those matters which arc stated on information and belief. and as to those matters I believe them to be true. I am an Officer _ a partner - of a party to this action, and am authorized to make this verification for and on its behalf,and I make this verification for :nat reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. C The matters stated in the foregoing document are true of my own knowledge except as to those matters whicn are ❑ stated on information and belief, and as to those matters I believe them to be true. I am one of the attorneys for a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices. and I make this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege :hat the matters stated in the foregoing document are true. • Executed on January 8 , 1990 , at San Bernardino I declare under penalty of perjury under the laws of the State of California that the foregoing is true Californiarr . ARL E. ATKINSON, JR. Type or Print Name Signatur PROOF OF SERVICE Iona ill CCP eo,wd Inns STATE OF CALIFORNIA, COUNTY OF I am ems iyed in the county of I am over the age of 18 and not a party to the within action: my business address is: State.f California. On , 19_, I served the foregoing document described as on in this action by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: by placing 0 the original 0 a true copy thereof enclosed in sealed envelopes addressed as follows: ❑ BY MAIL ❑ •I deposited such envelope in the mail at , California. The envelope was mailed with postage thereon fully prepaid. ❑ As follows : I am "readily familiar"with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at California in the ordinary course of business. I am aware that on motion of the party served,service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. • ❑ Executed on . 19_, at , California. ••(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. 8 Executed on , 19_, at , California.(State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I ant employed in the office of a member of the bar of this court at whose direction the service was • made. Type or Pnnt Name Signature stvaats tiaiaoii ni414vt4 igvifee si iiaei NE*CiSCO.tw uw 10>Q✓'O t0ai CCP ';�WAILSOtUl!xkwae Of Rinpi atiosiniG EwltOrt Y wia toy aoi a aaci iuw CO.is.Cans San Pas Can "ird etiiaDa WWI sowrtas MAT N rwr O iatsat'rnfw VERIFICATION STATE OF CALIFORNIA, COUNTY OF SA:: 3ER::ARDI::0 . I have read the foregoing `, 'C.' .1L-=?""r',i v.2 p-1_s.?-gyp,_ _ __ _ _ CONPLA INT FOR DEC:APJ.-CRY AND :::jc::CTrvE RELIEF — .. and 4miw L7 CHECK APPLICABLE PARAGRAPH El I am a party to this action. The matters stated In the foregoing document are true of my own knowledge csccpt as ❑ those matters which arc slated on information and belief. and as to those matters I believe them to be true. l am0 an Officer C a partner ❑ a of a party to this action, and am authorized to make this verification for and on its behalf,and I make this verification for that reason. C I am informed and believe and on that ground allege that the matters stated in the foregoing document arc true. 0 The matters stated in the foregoing document are true of my own knowledge except as to those matters which arc ❑ stated on information and belief, and as to those matters I believe them to be true. I am one of the attorneys for a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices,and l make this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on January 8 • 19�Q_, at San Bernardino I declare under penalty of perjury under the laws of the State of California t th fore ing/Is }�ue and correct. California. SICFREDO CONCEPCION A? 2 _` Type or Print Name `�• Signature PROOF OF SERVICE I011A lal CCr Reined S/I/re STATE OF CALIFORNIA, COUNTY OF I am employed in the county of , Stain of California. I am over the age of 18 and not a party to the within action; my business address is: On . 19_, I served the foregoing document descnbed as on in this action by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: by placing Cl the original C a true copy thereof enclosed in sealed envelopes addressed as follows: ❑ BY MAIL ❑ •1 deposited such envelope in the mail at • California. The envelope was mailed with postage thereon fully prepaid. ❑ As follows : I am"readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at• California in the ordinary course of business. I am aware that on motion of the party served,service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on , 19_, at . California. ❑ "(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. Executed on - , 19_, at , California. 9 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Type or Print Name • Signature mans e.a.oa ioas.. 0I.1vyrs 1l„M •m y.*swruae war IN a.ea .WOWING twetost,. .eV OrIC0 tw tar.AS SIC KWCC• Mt Lnr aOR.a aa01 firer ail.C OM a i.e.eneb '•Iron Want/riCS acmes.y%r rr hat OP.4SS[Ytn STATE OF CALIFORNIA _ ERIFICAT;o\ . COUNTY OF S .; ,. I ha•.e read the ioregoin P= ; ___ _ _ r-p;.,p; A1':i F�oC�>Wyc"'+=i, ': �, -.; ": ;�_. _ . and .: • —v�— _1', -_ u.c a '.no,. •t, ❑ LxJ CHECK APPLICABLE PARAGRAPH 1 am a party to this action. The matters stated in the foregoing document are true of my own knowledge es,c;; ❑ those matters which are stated on information and belief, and as to those matters I believe them to be true I am a an Officer C a partner a of a party to this action, and am authorized to make this verification for and on its behalf,and I make this 'erlfication iur moat reason. C I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. The matters stated in the foregoing document are true of my own knowledge except as to those matters which are ❑ stated on information and belief, and as to those matters I believe them to be true. I am one of the attorneys for a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on January 8 . 1990 , at San Bernardino Cr I declare under penalty of perjury under the laws of the State of California that the foregoing is true and orlrec(nla. JOSEPH BONG Type or Print Name Signature PROOF OF SERVICE tot A ill CCP xe•,rd Liss STATE OF CALIFORNIA. COUNTY OF a I am employed in the county of I am over the age of IS and not a party to the within action, my business address is: State ( Cah(ornu. On , 19_, I served the foregoing document described as on in this action by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: — by placing ❑ the original ❑ a true copy thereof enclosed in scaled envelopes addressed as follows: ❑ BY MAIL ❑ •I deposited such envelope in the mail at , California. The envelope was mailed with postage thereon fully prepaid. ❑ As follows : I am"readily familiar' with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at California in the ordinary course of business. I am aware that on motion of the party served,service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Li "(BY on , 19_, at , California. ar(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. Executed on , 19_, at , California, (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Type or Print Name Signature sru&at s tiSpOx naiad.IRMR0 It!is rfr yaeplat,ur FF ew0 Fat CCP 'Werace anisearUR nicer II OF Know OnosiriiC t,.ytLoit sotto!.SOIL CO SAW iayr r w Cain r San COON 'VON'IMOML WWI 90iearyR SAT N eirr a rt5WCtSi VERIFICATION STATE OF CALIFORNIA. COUNTY OF • have read the foregoing and know .ts E CHECK APPLICABLE PARAGRAPH El I am a party to this action. The matters stated in the foregoing document arc true of my own knowicdz: _iccpt as to ❑ those matters which are stated on information and belief. and as to those matters l believe them to c: :rue. I am = an Officer C a partner p a of a party to this action, and am authorized to make this verification for and on its behalf and I make this verification for that reason, _ I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. C The matters stated in the foregoing document are true of my own knowledge except as to those matters which are ❑ stated on information 'and belief. and as to those matters I believe them to be true. I am one of the attorneys for a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. • Executed on , 19_, at i California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Type or Print Name Signature PROOF OF SERVICE IQim in CCP Revised S/I/U STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO • I am employed in the county of San Rprnardinn , State of California. I am over the age of 18 and not a party to the within action; my business address is: 1839 Commercenter West, P.O. Box 6425, San Bernardino, CA 92412 On 1/8 . 19 90 , i served the foregoing document described as PETITION FOR ALTERNATIVE AND PERE2IPIORY WRIIS OF 21ANDATE [C.C.P. 1094.5 PUB. RES. CODE 21000 et seq. COMPLAIN' FOR DECLARATORY AND INJUNCTLVE RELIEF on the interested parties in this action by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: �. by placing G the original t a true copy thereof enclosed in sealed envelopes addressed as follows: OFFICE OF THE ATTORNEY GENERAL 3580 Wilshire Boulevard, Room 800 Los Angeles, CA 90010 Q BY MAIL ❑ •I deposited such envelope in the mail at , California. The envelope was mailed with postage thereon fully prepaid. © As follows : 1 am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at San Bernardino California in the ordinary course of business. I am aware that on motion of the. party served,service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on January B , 192.Q—, at San Bernardino , California. ❑ "(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. Executed on , 19_, at , California. .� (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this coup at whose direction the service was made. Paulette R. Carriger i4 .0..t4tt '` • � � Type or Pnnt Name Signature swam the nee SAN*IM'i'YO vi,rr 'IF race el)ertt rg War r or KOS>eeegytnl)twttWe + vew ascoven user MO rill)ane CCP re4 SLOT SOIL 011 Nqe irw al yr.Urn,stir s lea Ca "irol flea Una sl)ranaie wet ae Twee CI rt151'C Q' BRUNICK1 8 PYLE 'SPACE BELOW FOR r.. _>.; -�� .110.[.1110M•L LAW COMPOLTIOM Ian) Cornuc[Mru Wt.T 2 ; Pon Oir'ct sox alas IAN •[11NAROINO. CALIFORNIA e2411 • Tsu...OM.: Ilia) e0Peaot e14.0e13 4 II Attorney, for Petitioners • 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN BERNARDINO 10 ti CARL E. ATKINSON, JR. , JOSEPH BONO, ) 12 and SIGFREDO CONCEPCION, ) CASE NO. Individually, and on behalf of ) 13 all others similarly situated, ) INITIAL MEMORANDUM OF • ) POINTS AND AUTHORITIES 14 Petitioners, ) IN SUPPORT OF PETITION FOR WRITS OF MANDATE 15 vs . ) AND COMPLAINT 16 CITY OF FONTANA, a Municipal ) Corporation, and DOES 1 through 50, ) 17 Inclusive, ) Date: Time: 18 Respondents. ) Dept: 19 ) 20 Petitioners have outlined in their Petition al 21 Complaint the various violations of law that necessitated tl 22 filing of this action. In support of their contention 23 Petitioners submit the following Initial Memorandum of Points a 24 Authorities. 25 I. 26 PETITIONERS MAY CHALLENGE THE ACTION OF THE CITY COUNCIL 27 THROUGH AN ACTION IN ADMINISTRATIVE MANDAMUS 28 The action of Respondent CITY which is challenged by t —1— I! 1 Petition is an environmental determination made pursuant t 2 California Environmental Quality Act (Public Resources 3 . Sections 21000 et seq. , "CEQA") . 4I Petitioners' causes of action arising under CEQA must 5 raised through an action in administrative mandamus because 6 underlying actions were adjudicatory in nature and were r 7 pursuant to public hearing. Public Resources Code Section 211E 8 II , 9 PETITIONERS ARE ENTITLED TO A_ PRELIMINARY INJUNCTION 10 TO PRESERVE THE STATUS QUO IN THE PROJECT AREA 11 PENDING THE COURT'S DECISION ON THE MERITS. 12 The purpose of a preliminary injunction is to pres( 13 the status quo until the court is able to render a decisioc 14 the merits of the litigation. A trial court should gra! 15 preliminary injunction if it finds that the Petitioner h( 16 reasonable probability of prevailing on the merits at trial, 17 would suffer more harm from denial of the preliminary injunct 18 than Respondent would suffer from its grant. Robbins v. Sunerj 19 Court (1985) 38 Ca1 . 3d 199, 205-206, 211 Cal.Rptr. 398 ; IT Cor 20 v, County of Imperial (1983) 35 Ca1 . 3d 63 , 69-70, 196 Ca1.R 21 715. 22 Preservation of the status quo is particularly impor 23 in litigation challenging land use development approvals u 24 CEQA. Once construction of a project such as the one t 25 challenged herein commences, the irreversible harm may alz 26 have occurred, and a court's judgment ordering proper compli 27 with proper environmental impact analysis may be rend 28 meaningless. igg, g,g. , friends of Westwood. Inc. v. City of 1 'I Angeles ( 1987) 191 Ca1 . App. 3d 259 , 235 Cal . Rptr. 733 . 2 preliminary injunction may also serve to protect the prt; € 3 proponent's interests , because in the absence of such 41 injunction, he proceeds with the project at his own risk. 50 Kriebel v. City Council ( 1980) 112 Cal .App. 3d 693 , 169 Cal . Rp 6 342 . This is true also with public works projects where 7 proponent is a public agency. Friends of "B" Street v. City 8 Hayward (1980) 106 Ca1 .App. 3d 988 , 165 Cal .Rptr. 514 . 9 III. 10 DECLARATORY RELIEF IS PROPER IN THIS ACTION 11 An action for declaratory relief is proper 12 determining rights under a statute declaring public policy and 13 alleged violation thereof. Lane v. City of Redondo Beach ( 19 14 49 Cal .App. 3d 251, 122 Ca1 .Rptr. 189. It is a broad reme 15 involving controversies which can operate prospectively and 16 merely for the redress of past wrongs. Le Paae v. City 17 Oakland (1970) 13 Ca1 .App. 3d 689, 91 Ca1.Rptr. 806 . 18 Declaratory relief is appropriate in this ce 19 Respondent has indicated its position that it has prope 20 acquired all necessary right of way in order for the project 21 go forward. Petitioners believe that this is not the case, 22 that Respondent intends to intrude on private property in of 23 to construct the project. Petitioners' rights are or ma! 24 affected by the imminent actions of Respondent. If Respondent 25 permitted to proceed with the proposed construction proj, 26 Petitioner will be forced to file additional lawsuits in orde 27 vindicate their rights. 28 / / / / / -3- is 111 1I IV. 21 RESPONDENT'S ADOPTION OF A NEGATIVE DECLARATION ii TO SUPPORT ITS APPROVAL OF THE FOOTHILL/BEECH SEWER PROJECT 4 ! VIOLATED THE CALIFORNIA ENVIRONMENTAL OUALITY ACT 5 A. An overview of the California Environmental Ouali 6 Act (Public Resources Code Sections 21000 et seq. , "CEOA") 7 The California Legislature enacted the Califor 8 Environmental Quality Act ("CEQA;" Public Resources Code Secti g 21000 et seq. ) in 1970 to force public agencies to document 10 to consider the environmental impacts of their decisions. 11 Friends of Mammoth v. Board of Supervisors ( 1972) 8 Ca1. 3d 2 12 254-56, 104 Cal .Rptr. 761, 765-66; No Oil. Inc. v. City of t 13 Anaeles (1975) 13 Ca1 . 3d 68 , 73-75, 118 Cal.Rptr. 34 , 37-38 ; 14 Francisco Ecoloav Center v. City and County of Los Angeles ( 15 15 48 Cal .App. 3d 584 , 589-91, 122 Cal .Rptr. 100, 102-104 ; and Se: 16 The Judicial Development of the California Environmental Oual. 17 Act ( 1984) 18 U.C. Davis L. Rev. 197, 202 . The several gen! 18 policy statements that preface the statute's specific provis: 19 evince a strong commitment to environmental protection, 1 20 though considerable time and expense might thereby be requi 21 Pub. Res. Code Sections 21000, 21001. 22 Significantly, "environmental values are to be assi 23 greater weight than the needs of economic growth. " San Franci 24 Ecoloov Center, supra. Moreover, CEQA must be interpreted s 25 "to afford the fullest possible protection to the. enviror 26 within the reasonable scope of the statutory language. " Fric 27 of Mammoth, supra. 28 Since 1970, the Act has been amended to impose on pi • lli agencies certain substantive duties to protect the enviren-.en 2 CEQA's Primary functions are now regarded as the following: 311 to inform government decisionmakers and the public about t 41' potential environmental effects of proposed activities ; (2) Ij 5i identify methods for avoiding or significantly reduci 6 environmental damage; (3) to prevent significant, avoidat 7 environmental damage by requiring changes in projects, either 8 the adoption of alternatives or the imposition of mitigat g measures; and (4) to disclose to the public the reasons a proje 10 was approved notwithstanding significant environmental effect 11 CEQA Guidelines, Cal . Code of Regulations, Sections 15000 12 seq. , 15002 , subd. (a) (hereinafter referred to as "C! 13 Guidelines, " or "Guidelines") . 14 A public agency cannot satisfy CEQA merely 15 "considering" the environmental impacts of its actions. Burg( 16 v. County of Mendocino (1975) 45 Cal .App. 3d 322 , 119 Cal.Rp+ 17 568 . Instead, agencies have a substantive duty to avoid tak. 18 actions that cause needless significant environmental damage w! 19 feasible mitigation measures or alternatives are available: 20 The Legislature finds and declares that it is the policy of the state that public agencies should not approve 21 projects as proposed if there are feasible alternatives or feasible mitigation measures available that would 22 substantially lessen the significant environmental effects of such projects, and that the procedures 23 required by this division are intended to assist public agencies in systematically identifying both the 24 significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will 25 avoid or substantially lessen such significant effects. The Legislature further finds and declares that in the 26 event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation 27 measures, individual projects may be approved in spite of one or more significant effects thereof. " Pub. Res. Code 28 Section 21002 (emphasis added) . -5- 1 See also, Pub. Res . Code Sections 21002 . 1 , 21081 ; Gui'e_ Lr. 2 , Sections 15002 (a) ( 3 ) , 15021 (a) (2 ) , (c) , 15041 (a) , 15091 ( 31i 15092 (b) , 15093 , 15126 (c) , (d) , 15364 , and 15370 ; Friends 4 Mammoth, supra, 8 Ca1 . 3d at 263 , Lacuna Beach. Inc. v. Board 5 Supervisors ( 1982) 134 Ca1 .App. 3d 1022 , 1034 , 185 Cal . Rptr. 6 47-48 ; Orinda Assoc. v. Board of Supervisors ( 1986) 7 Cal . app. 3d 1145, 1168-69, 227 Ca1.Rptr. 688 , 703-704 . 8 CEQA provides for a three-step process in evaluat 9 environmental impacts of a proposed project. Under CE 10 agencies must prepare an EIR whenever a project "may hay 11 significant effect on the environment. " Pub. Res. Code Secti 12 21100 , 21151. In No Oil v. City of Los Angeles, supra, 13 California Supreme Court gave effect to a Guideline sect 14 defining a three-tiered process for determining how to pros 15 under CEQA. The three steps in the process are set forth in 16 Guidelines. Guidelines, sections 15002 (k) , 15061, 15063-15( 17 15070, 15071. 18 If an agency has determined that a proposal does in i 19 constitute a "project, " the first step requires the agenc} 20 determine whether the project is nevertheless exempt from the 21 or, as a matter of common sense, certain not to create even 22 possibility of significant impacts. Guidelines, Sec 23 15061(b) . If the project is not exempt, the second step requ 24 the agency to conduct an "Initial Study. " Guidelines, Sec 25 15063 . What the third step will be depends on the finding 26 the Initial Study. If the Initial Study produces no substar 27 evidence, or reasonable inferences therefrom, that the prc 28 may produce significant adverse environmental impacts, the age -6- must issue a "Negative Declaration. " Pub. Res . Cede , Scot : 21 21080 (c) ; Guidelines, Section 15070 ; Sundstrom v. Cou-,t•; it 311 Mendocino ( 1988) 202 Cal .App. 3d 296 , 311 , 248 Cal . Rtpr. 35 41; 361-362 . I� i 51 An Initial Study may reveal substantial evidence th 6 I such impacts, might occur, but the project proponent can modi 7 the project so as to eliminate all signficant impacts or redu 8 them below a level of significance. In such instances, the le g agency may satisfy its CEQA obligations by filing a "mitigat 10 negative declaration. " 11 If no mitigated negative declaration is possible, z 12 the Initial Study reveals substantial evidence of significz 13 environmental effects, or gives rise to reasonable. inferenc 14 that such effects are possible, the lead agency must prepare 15 cause to be prepared an EIR analyzing those effects 16 suggesting feasible means, if any, of mitigating or avoid. 17 them. Pub. Res . Code Sections 21002 . 1, 21061; Guideline 18 Sections 15080-15096, 15120-15132 , 15160-15170; Sundstrc 19 supra . In other words, if reasonable people may differ as 20 whether the substantial evidence presented indicates that impac 21 might occur, an EIR is required. As the No Oil court stated: 22 (the) act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial 23 evidence that the project may have a significant environmental impact. 24 13 Ca1 . 3d at 75, 118 Ca1.Rptr. at 38 ; see also, friends of " 25 Street v. City of Havwar4, supra; City of Antioch v. City Coun 26 ( 1987) 187 Cal .App. 3d 1325, 1330-1331, 232 Cal.Rptr. 507 , 509-51 27 The determinations of the public agency in each of 28 -7- 1 three steps must be supported by substantial evidence to 2 record. Pub. Res. Code, Sections 21168 , 21168 . 5 . The GuideLi 3 define "substantial evidence" as "enough relevant information 4 reasonable inferences from this information that a fair arguer 5 can be made to support a conclusion, even though of 6 conclusions might also be reached. Whether a fair argument 7 be made is to be determined by examining the entire record. 8 uncorroborated opinion or rumor does nqt constitute substant 9 evidence. " Guidelines, Section 15384 (a) ; Sundstrom, supra. 10 In Citizens Assoc. for Sensible Development of Bist 11 Area v. County of Invo (1985) 172 Cal.App. 3d 151, 171, 217 c 12 Rptr. 893 , 906, the court held that an initial, study 13 "disclose data or evidence upon which the person(s) conduc' 14 the study relied. Mere conclusions simply provide no vehicle 15 judicial review. " See also, Sundstrom, supra; Christwa 16 Ministry v. Superior Court ( 1986) 184 Cal. App. 3d 180 , 228 • 17 Rptr. 868 . 18 B. The Initial Study. 19 The initial study is a "preliminary analysis" that 20 lead agency prepares in order to determine whether to prepa 21 negative declaration or an EIR and, if necessary, to identify 22 impacts to be analyzed in the EIR. Guidelines, Section 15 23 When the initial study concludes that no EIR is necessary, 24 preliminary document must also "provide documentation of 25 factual basis" for concluding that a negative declaration 26 suffice. Guidelines. Section 15063 (c) (5) . 27 Although the Guidelines do not specify precise fc 28 requirements for an initial study, the following spe( -a- 1 ' elements must be present: ! a description of the pro, _. 2J including its location; information identifying the pro; ec 3ii environmental effects, if any, by use of a checklist, matrix 4u other method; a discussion of suggested means, if any, 51 mitigating the significant effects identified; an examination 6 whether the project would be consistent with existing zoni 7 plans and other applicable land use controls ; and the name of g person of persons who prepared or participated in the init g study. Guidelines, Section 15063 (d) . 10 An appendix to the Guidelines contains a sam 11 "environmental checklist form" that, according to Guideli 12 Section 15063 ( f) , will satisfy legal requirements when used 13 conjunction with the sample "environmental information for 14 Guidelines, Section 15063 (f) and appendices H and I to 15 Guidelines. Copies of appendices H and I are attached hereto 16 Exhibit "A" and incorporated herein in full by reference. I 17 use of these forms, however. without supporting factual da 18 and/or explanation is an inadequate basis for deciding to arena ig a negative declaration. In Citizens Association for Sensib 20 Development of Bishop Area v. County of Invo, supra, the Co 21 held that, although the use of a checklist was permissible, 22 initial study must also "disclose the data or evidence upon wt 23 the person(s) conducting the study relied. Mere conclusi 24 simply provide no vehicle for judicial review. " Supra, at 25 217 Cal .Rptr. at 96; Sundstroq, supra, at 305-6, 248 Ca1.Rptr. 26 357-8 . 27 An initial study is inadequate if it omits neces: 28 information and inaccurately characterizes the proposed proj. -9- In Christward Ministry v. Superior Court (4th Distr . , 1926) _: 2I Ca1 . App. 9d 180 , 197 , 228 Cal . Rptr. 868 , 878 , the court fa.:r deficient an initial study that omitted the project's address at 4 , legal description, described the project only in vague term., 5 failed to recognize its place within a larger project, and fail. 6 to acknowledge its probable effects on the land use patterns a 7 character of the affected area. 8 C. Negative Declarations. "Mitigated Negative g Declarations, " and Mitigation Monitoring 10 _ 1 . The Negative Declaration Generally 11 Negative declarations must be prepared when an agen 12 determines, after preparing an initial study, that a proje 13 "does not have a significant adverse impact on the environment 14 Such a determination can only be made if "there is no substanti 15 evidence before the agency" that such impacts may occur. Put 16 Res . Code, Section 21080 (c) ; Guidelines, Section 15070 (a) . 17 trigger an EIR, the substantial evidence in question must suppc 18 a "fair argument" that impacts may occur. Even if att. 19 substantial evidence supports the opposite conclusion, the agen 20 nevertheless must prepare an EIR. See, e.g. , No Oil, supr 21 EIRs are necessary to resolve "uncertainty created by conflict 22 assertions" and "to substitute some degree of factual certai 23 for tentative opinion and speculation. " No Oil, supra, at 24 118 Cal .Rptr. at 45 . 25 In Friends of "B" Street, supra, the court required 26 preparation of an EIR for a proposed road improvement proje 27 In so holding, the Court exercised its own judgment as to whet 28 the administrative record contained substantial evict( -10- 1 ,1 supporting a fair argument that significant impacts 211, possible. 3 . In Sundstrom v. County of Mendocino, supra, the c ci 4i; addressed the situation where the agency has failed to gather 5i; data necessary to an informed decision. Because "CEQA places 6 burden of environmental investigation on government rather t 7 the public, " an agency "should not be allowed to hide behind B own failure to gather relevant data, " and thus can be made 9 prepare an EIR even where the administrative record contains 10 concrete evidence of potential significant impacts: 11 If the local agency has failed to study an area of possible environmental impact, a fair argument may be 12 based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair 13 argument by lending a logical plausibility to a' wider range of inferences. 14 Id. at 311 , 248 Cal . Rptr. at 361-62 . Sundstrom involve 15 negative declaration prepared for a conditional use per 16 authorizing construction of a sewage treatment plant to serve 17 existing development that would be expanded. The initial st 18 in question failed to demonstrate that certain impacts associa‘ 19 with sewage treatment could adequately be mitigated. The Cot 20 set aside the agency's approval of the use permit despite t 21 lack of affirmative evidence showing that significant impa 22 might occur. 23 The notion that agencies "should not be allowed to h 24 behind [their] own failure to gather relevant data" is consist 25 with the Supreme Court's statement, quoting a federal case, t 26 EIRs should be prepared in "doubtful cases, " so that agencies 27 not make decisions "without the relevant data or a detailed st 28 -ll- 1 of it . " No Oil , supra . 13 Ca1 . 3d at 84 , 118 Ca1 . P..ptr at 21 " [O] ne of the purposes of the impact statement is to insure 3i the relevant environmental data are before the agency 4II considered by it prior to the decision to commit . resour 5 to the project . . . . " Id. at 84 , 118 Cal . Rptr. at 44 -45 . 6 Furthermore, negative declarations cannot be base( 7 the presumed success of mitigation measures that have not 8 formulated at the time of project approval . In Sundstrom, J 9 the court faulted the respondent county for assuming that var. 10 responsible agencies would be able to devise means of avcic 11 potentially significant impacts associated with soil stabil 12 erosion and flooding. Because there was no certainty • 13 success could be achieved, the agency had no basis for fin 14 that the project's impacts would be insignificant. 3d 15 306-314 , 248 Cal.Rptr. at 358-64 . The court also reject 16 project condition that would have required the applican 17 conduct hyrdological studies subject to approval by the coun 18 planning department. The court held that only the boar, 19 supervisors, as the ultimate decisionmaker, could grant 20 approval . Id. at 307, 248 Cal.Rptr. at 359 . 21 If an initial study is inadequate, the nega 22 declaration relying thereon must also be deficient. 23 Christward Ministry, supra, 184 Cal.App. 3d at 197 , 228 Cal. R 24 at 878 . 25 A negative declaration is defective if 26 mischaracterizes the proposed project and fails to acknowl 27 evidence showing that significant effects might occur. 28 Christward Ministry, supra at 197, 228 Ca1 .Rptr. at 877-88 , c -12- • • 1I involved a general plan amendment designating a landfill site 2i allow a "waste-to-energy" facility, the court found inadeq_:a 3ii both the initial study and the negative declaration in questic 41� The initial study omitted crucial information, mischaracteriz 511 the project, and failed to acknowledge evidence of potent 6 significant effects, including the effect on the petitioner 7 religious practices. The negative declaration wrongly sta+ 8 that an earlier EIR for the landfill had adequately addressed • 9 potential impacts of. the proposed waste incinerator. In fat 10 the agency ignored evidence in the administrative record show 11 that the waste-to-energy facility would produce signific. 12 effects. 13 2 . The Mitigated Negative Declaration. • 14 When an initial study reveals substantial evidence t 15 significant environmental effects might occur, but the proj 16 proponent can modify the project so as to eliminate 17 significant impacts or reduce them to a level of insignifican 18 In such instances, the lead agency may satisfy its C 19 obligations by preparing and circulating a "mitigated negat: 20 declaration. " Pub. Res. Code, Section 21080 (c) ; Guidelin4 21 Section 15070(b) . 22 As of January 1, 1989, public agencies adopt 23 mitigated negative declarations must take affirmative step: 24 determine that approved mitigation measures are in 1 25 implemented subsequent to project approval. Specifically, 26 lead or responsible agency must adopt a "reporting or monito: 27 program" for any mitigation measures incorporated into a pro: 28 or imposed as a condition of approval. The program mus -13- li 11 designed to ensure compliance during project implementati 2 ' Pub. Res. Code, Section 21081 . 6 . This provision is mandato i 31, and as with other CEQA provisions, the failure of an agency 4 follow the law will constitute grounds fcr voiding the decision 5 V. 6 CONCLUSION 7 This Initial Memorandum of Points and Authorities 8 intended as a brief overview of the major points of 9 supporting the Petition and Complaint. For all of the real 10 stated in the Petition and Complaint, the action of the CIT1 11 approving the Foothill/Beech Sewer Project must be overturned 12 failure to comply with the law and abuse of discretion. 13 addition, preliminary injunctive relief is warranted in • 14 instance, together with an award of attorneys fees under C.( 15 Section 1021 . 5 and under Government Code Section 800. 16 Dated: January 8 , 1990 17 BRUNICK & PYLE 18 19 11641 0" Marguerite P. Battersby 20 Attorneys for Petitioners 21 22 23 24 25 26 27 28 -14- APPENDIX if ENVIRNIQNTAL INPCRHATICN Thou (To Be Completed By Applicant) Date Filed General Information 1 . Name and address of developer or project sponsor: 2. Address of project: Assessor's Block and Lot Number: — 3. Name , address , and telephone number of person to be contacted concerning this project: 4. Indicate number of the permit application for the project to which this form pertains: 5. List and describe any other related permits and other public approvals required for this project , including those required by city, regional , state and federal agencies: 6. Existing zoning district: 7. Proposed use of site (Project for which this form is filed) : Project Description S. Site size. 9. Square footage. 10. Number of floors of construction. 11 . Amount of off-street parking provided. 12. Attach plans. 13. Proposed scheduling. 14. Associated project. 15. Anticipated incremental development. 16. If residential, include the number of units, schedule of unit sizes , range of sale prices or rents, and type of household size expected. • • 285 17. If commercial , indicate the type, whether neighborhood, city or regionally oriented, square footage of sales area, and loading facilities. 18. If industrial , indicate type, estimated employment per shift , and loading facilities. 19. If institutional , indicate the major function , estimated employment per shift , estimated occupancy, loading facilities, and cammunity benefits to be derived from the project. 20. If the project involves a variance, conditional use or rezoning applica- tion, state this and indicate clearly why the application is required. Are the following items applicable to the project or its effects? Discuss below all items checked yes (attach additional sheets as necessary) . Tee No 21 . Change in existing features of any bays, tidelands, beaches, or hills, or substantial alteration of ground contours. — — 22. Change in scenic views or vistas from existing residential areas or public lands or roads. — — 23. Change in pattern, scale or character of general area of project. r— — 24. Significant amounts of solid waste or litter. 25. Change in dust, ash, smoke, fumes or odors in vicinity. 26. Change in ocean, bay, lake, stream or ground water quality or _ quantity, or alteration of existing drainage patterns. 27. Substantial change in existing noise or vibration levels in the vicinity. 28. Site on filled land or on slope of 10 percent or more. 29. Use of disposal of potentially hazardous materials, such as toxic substances, flamnables or explosives. — — 30. Substantial change in demand for municipal services (police, fire, water, sewage, etc.) . — — 31. Substantially increase fossil fuel consumption (electricity, — _ oil, natural gas, etc.) . 32. Relationship to a larger project or series of projects. Enviroomsital Setting 33. Describe the project site as it exists before the project, including infor- mation on topography, soil stability, plants and animals, and any cultural , historical or scenic aspects. Describe any existing structures on the 286 • site, and the use of the structures . Attach photographs of t:_ Snapshots or polaroid photos 4411 be accepted. 34. Describe the surrounding properties, Including information on plants and animals and any cultural , historical or scenic aspects. Indicate the type of land use (residential , cccrnercial , etc. ) , intensity of land use (one- family , apartment houses , shops , department stores, etc. ) , and scale of deveiopment (height , frontage, set-back, rear yard , etc . ) . At -aca photographs of the vicinity. Snapshots or polaroid photos will be accepted. Certification I hereby certify that the statements furnished above and in the attached ex- hibits present the data and information required for this initi '.l evaluation to the best of my ability, and that the facts, statements , .anu in formation presented are true and correct to the best of my knowledge and belief. Date — -- Signature - For (Note: This is only a suggested form. Public agencies are free to devise their own format for initial studies.) • • 287 APPEPDIE I EIVI}ENC'IAL CHECKLIST PORK (To Be Completed By Lead Agency) I. Background 1. Name of Proponent 2. Address and Phone Number of Proponent 3. Date of Checklist Submitted 4. Agency Requiring Checklist 5. Name of Proposal , if applicable II. Environmental Impacts • (Explanations of all "yes" and "maybe" answers are required on attached sheets.) Yes Maybe No 1. Earth. Will the proposal result in: a. Unstable earth conditions or in changes in geologic substructures? b. Disruptions, displacements, compaction or overcovering of the soil? c. Change in topography or ground surface relief features? d. The destruction, covering or modification of any unique geologic or physical features? e. Any increase in wind or water erosion of soils, either on or oft the site? f. changes in deposition or erosion of beach sands, or changes to siltation, deposition or erosion which may modify the channel of a river or stream or the bed of the ocean or any bay, inlet or lake? g. Exposure of people or property to geologic hazards such as earthquakes, landslides, mudslides, ground failure, or similar hazards? 288 .es tyte 2. Air. Will the proposal result in: a. Substantial air emissions or deterioration of ambient air quality? b. The creation of objectionable odors? c. Alteration of air movement , moisture, or temperature, or any change in climate, either locally or regionally? 3. Water. Will the proposal result in: a. Changes in currents, or the course of di- rection of water movements, in either marine or fresh waters? b. Changes in absorption rates, drainage pat- terns, or the rate and amount of surface runoff? c. Alterations to the course or low of flood waters? — T — d. Change in the amount of surface water in any water body? e. Discharge into surface waters, or in any alteration of surface water quality, in- cluding but not limited to temperature, dissolved oxygen or turbidity? f. Alteration of the direction or rate of flow of ground waters? — — g. Change in the quantity of ground waters, either through direct additions or with- drawals, or through interception of an aquifer by cuts or excavations? — — h. Substantial reduction in the amount of water otherwise available for public water supplies? i. Exposure of people or property to water re- lated hazards such as flooding or tidal waves? — — 4. Plant Life. Will the proposal result in: — — a. Change in the diversity of species, or numr ber of any species of plants (including trees, shrubs, grass, crops, and aquatic plants)? 289 Yes Asybe No b. Reduction of the numbers of any unique, rare or endangered species of plants? c. Introduction of new species of plants into an area, or in a barrier to the normal replenish- ment of existing species? d. Reduction in acreage of any agricultural crop? _ 5. Animal Life. Will the proposal result in: a. Change in the diversity of species, or num- bers of any species of animals (birds, land animals including reptiles, fish and shell- fish, benthic organisms or insects)? b. Reduction of the numbers of any unique, rare or endangered species of animals? c. Introduction of new species of animals into an area, or result in a barrier to the migra- tion or movement of animals? d. Deterioration to existing fish or wildlife habitat? 6. Noise. Will the proposal result in: a. Increases in existing noise levels? b. Exposure of people to severe noise levels? 7. Light and Glare. Will the proposal produce new light or glare? 8. Land Use. Will the proposal result in a sub- stantial alteration of the present or planned land use of an area? 9. Natural Resources. Will the proposal result in: a. Increase in the rate of use of any natural resources? 10. Risk of Upsst. Will the proposal involve: a. A risk of an explosion or the release of hazardous substances (including, but not limited to, oil, pesticides, chemicals or radiation) in the event of an accident or upset conditions? 290 Yes u.a.t' b. Possible interference with an emergency response plan or an emergency evacuation plan? 11 . Population. Will the proposal alter the location, distribution, density, or growth rate of the human population of an area? 12. Sousing. Will the proposal affect existing hous- ing, or create a demand for additional housing? 13. Transportation/Circulation. Will the projn$+1 result in: a. Generation of substantial additional vehicular movement? — — b. Effects on existing parking facilities, or demand for new parking? — — c. Substantial impact upon existing transpor- tation systems? d. Alterations to present patterns of circula- tion or movement of people and/or goods? — — e. Alterations to waterborne, rail or air traffic? — f. Increase in traffic hazards to motor vehicles, bicyclists or pedestrians? — — 14. Public Services. Will the proposal have an effect upon, or result in a need for new or altered gov- ernmental services in any of the following areas: a. Fire protection? — b. Police protection? — — c. Schools? — — d. Parks or other recreational facilities? _ — e. Maintenance of public facilities, including roads? — — f. Other governmental services? — — 15. Energy. Will the proposal result in: • I. Use of substantial amounts of fuel or energy? 291 Yes Maybe No b. Substantial increase in demand upon existing sources or energy, or require the development of new sources of energy? 16. Utilities. Will the proposal result in a need for new systems, or substantial alterations to the following utilities: 17. Human Health. Will the proposal result in: a. Creation of any health hazard or potential health hazard (excluding mental health)? b. Exposure of people to potential health hazards? 18. Aesthetics. Will the proposal result in the obstruction of any scenic vista or view open to the public, or will the proposal result in the creation of an aesthetically offensive site open to public view? 19. Recreation. Will the proposal result in an impact upon the quality or quantity of existing recreational opportunities? 20. Cultural Resources. a. Will the proposal result in the alteration of or the destruction of o r:ehistoric or historic archaeological site? b. Will the proposal result in adverse physical or aesthetic effects to a prehistoric or historic building, structure, or object? c. Does the proposal have the potential to cause a physical change which' would affect unique ethnic cultural values? d. Will the proposal restrict existing religious or sacred uses within the potential impact area? 21. Mandatory Findings of Significance. a. Does the project have the potential to degrade the quality of the environment, substantially .reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self sustaining levels, threaten to eliminate a plant or animal community, re- duce the number or restrict the range of - rare or endangered plant or animal or eliminate 292 -!i 1ti re ••.l Important examples of the major periods of California history or prehistory? b. Does the project have the potential to achieve short-tern, to the disadvantage of long-term, environmental goals? (A short-term impact on the environment is one which occurs in a rela- tively brief, definitive period of time while long-term impacts will endure well into the future.) c. Does the project have impacts which are individually limited, but cumulatively con- siderable? (A project may impact on two or more separate resources where the impact on each resource is relatively small , but where the effect of the total of those impacts on the environment is significant.) d. Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? III. Discussion of Environmental Evaluation (Narrative description of environmental impacts.) IV. Determination (To be completed by the Lead Agency.) On the basis of this initial evaluation: I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect oo the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A NEGATIVE DECLARATION WILL BE PREPARED. ❑ I find the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. Date Signature For (Note: This is only a suggested form. Public agencies are free to devise their own format for initial studies.) 293 APPENIDIX J NOTICE OP PREPARATION TO: FROM: (Address) (Address) SUBJECT: Notice of Preparation of a Draft Environmental Impact Report will be the Lead Agency and will prepare an env ronmental impact report for the project identified below. We need to know the views of your agency as to the scope and content, of the environmental information which is germane to your agency's statutory responsibilities in connection with the proposed project . Your agency will need to use the EIR prepared by our agency when considering your permit or other approval for the project. The project description, location, and the probable environmental effects are contained in the attached materials. A copy of the Initial Study is, is not, attached. — Due to the time limits mandated by State law, your response must be sent at the earliest rntsible date but not later than 30 days after receipt of this notice. Please send your response to at the address shown above. We will need the name for a contact person in your agency. Project Title: Project Applicant, if any: DATE Signature Title Telepbone Reference: California Administrative Code, Title 14, Sections 15082(a) , 15103, 15375. 294 APPUNDIX K ARCRASCLCGICAL IMPACTS I. CEQA applies to effects on historic and prehistoric archaeological resources. II . Public agencies should .seek to avoid damaging effects on an archaeologi- cal resource whenever feasible. If avoidance is not feasible , the Lmportance of the site shall be evaluated using the criteria outlined :n Section III . A. In-situ preservation of a site is the preferred manner of avoiding damage to archaeological resources. Preserving the site is more important than preserving the artifacts alone because the relation- ship of the artifacts to each other in the site provides valuable information than can be lost when the artifacts are removed . Further, preserving the site keeps it available for more sopblsti- cated future research methods. Preservation may also avoid conflict with religious or cultural values of groups Associated with the site. B. Avoiding damage may be accomplished by many approaches, including: 1. Planning construction to miss archaeological sites; 2. Planning parks, greenspace, or other open space to incorporate archaeological sites; 3. "Capping" or covering archaeological sites with a layer of soil before building tennis courts , parking lots , or similar facilities. Capping may be used where: a. The soils to be covered will not suffer serious compaction; b. The covering materials are not chemically active; c. The site is one in which the natural processes of deteriora- tion have been effectively arrested; and d. The site has been recorded. 4. Deeding archaeological sites into permanent conservation easements. III. If the head Agency determines that a project may affect an archaeological resource, the agency shall determine whether the effect may be a sig- nificant effect on the environment. If the project may cause damage to an important archaeological resource, the project may have a significant effect on the environment . For the purposes of CEQA, and "important archaeological resource" is one which: A. Is sq rriated with an event or person of: 1. Recognized significance in California or American history, or 295 2. Recognized scientific importance in prehistory. B. Can provide Information which is both of demonstrable public interest and useful in addressing scientifically consequential and reasonable or archaeological research questions; C. Has a special or particular quality such as oldest , best example, largest, or last surviving example of its kind; 0. Is at least 100 years old and possesses substantial stratigraphlc integrity; or E. Involves important research questions that historical research has shown can be answered only with archaeological methods. ' IV. If an archaeological resource is not an important archaeological resource, both the resource and the effect on it shall be noted in the Initial Study or EIR but need not be considered further in the CEQA process. V. If avoidance of the important archaeological resource is not feasible, the Lead Agency should include an excavation plan for mitigating the effect of the project on the qualities which make the resource Important under Section III. A. If an excavation plan is prepared, it shall: 1. Be a brief surtmary of the excavation proposed as part of a mitigation plan; 2. Be available for review only a need-to-know basis; 3. Not include the specific location of any archaeological resources if the plan will be made known to the general public. B. An excavation plan nay: 1. List and briefly discuss the important information the ar— chaeological resources contain or are likely to contain; 2. Explain how the information should be recovered to be useful in addressing scientifically valid research questions and other concerns identified in subdivision (a) ; 3. Explain the methods of analysis and, if feasible, display of • excavated materials; 4. Provide for final report preparation and distribution; and 5. Explain the estimated cost of and time required to complete all activities undertaken under the plan. C. The Lead Agency may require a mitigation plan to be carried out as a condition of approval of the project. 296 VI . A public agency following the federal clearance process MC National Historic Preservation Act or the National Environmental Act may use the documentation prepared under the federal guidel :os the place of documentation called for in this appendix. VII . Limitations oa Mitigation Special rules apply to mitigating significant effects on Lnportaat ar- chaeological resources. A. If it is not feasible to revise the project to avoid an important archaeological resource, the Lead Agency shall require the project applicant to guarantee_ to pay one half of the cost of mitigating the significant effect of the project on important archaeological resources. 1. In determining the payment to be required fran the applicant, the Lead Agency shall consider the in-Mind value of project design or expenditures intended to permit any or all important archaeologi- cal resources or California Native American culturally significant sites to be undisturbed or preserved in place. a. Consideration of in-kind values does not require a dollar for dollar set-off against the payment by the project applicant. b. In deciding on an appropriate set-off, the Lead Agency shall consider such factors as whether the project design or expen- ditures would provide other benefits to the applicant and whether the design or expenditures required special changes in the project plans. 2. When it decides to carry out or approve the project , the Lead Agency shall , if necessary, reduce the mitigation measures specified in the EIR to those which can be funded with: a. The money guaranteed by the project applicant, and b. Money voluntarily guaranteed by any other person or persons for the mitigation. 3. In order to allow time for interested persons to provide a volun- tary funding guarantee, the Lead Agency shall not decide to carry out or approve a project having a significant effect on important archaeological resources until 60 days after completing the final EIR on the project. 4. In no event shall the Lead Agency require the applicant to pay more for mitigation within the site of the project than the. following amounts: a. One half of one percent of the projected cost of the project, if the project is a cannercial or industrial project. b. Three fourths of one percent of the projected cost of the project for a housing project consisting of one unit. 297 c. If a housing project consists of more than one unit , three fourths of one percent of the projected cost of the first unit plus the sum of the following: ( 1) $200 per unit for any of the next 99 units, ( ii) $150 per unit for any of the next 400 units, ( iii) $100 per unit for units in excess of 500. B. Unless special or unusual circumstances warrant an exception , the field excavation phase of an approved mitigation plan shall be ccer pleted within 90 days after the applicant receives the final approval necessary to begin physical development of the project. 1. With a phased project, the mitigation measures shall be completed within 90 days after approval Is granted ,for the phased portion to which the specific mitigation measures apply. 2. The project applicant can elect to extend the time limits for completing the field excavation phase of the approved mitigation plan. 3. A mitigation plan shall not authorize violation of any law protecting American Indian cemeteries. C. Excavation as part of a mitigation plan shall be restricted to those parts of an important archaeological resource that would be damaged or destroyed by the project unless special circumstances require limited excavation of an immediately adjacent area in order to develop important information about the part of the resource that would be destroyed. D. Excavation as mitigation shall not be required for an important archaeological resource if the Lead Agency determines that testing or studies already completed have adequately recovered the scientifi- cally consequential information from and about the resource, provided that the determination is documented in the EIR. E. The limitations on mitigation shall not apply to: 1. A public project if the Lead Agency decides to comply with other provisions of CEQA that apply to mitigation of significant ef- fects, and 2. A private project if the applicant and the Lead Agency jointly elect to comply with oth. r provisions of CEQA that apply to mitigation of significant effects. F. The time and cost limitations described in this section do not apply to surveys and site evaluation activities intended to determine whether the project location contains archaeological resources , and if so, whether the archaeological resources are important as defined in this appendix. 298 VIII. Discovery of Hunan Remains A. In the event of discovery or recognition of any hump remains to try location other than a dedicated canetery, there shall be no ;,;i-:her excavation or disturbance of the site or any nearby area reasonably suspected to overlie adjacent human remains until: I. The coroner of the county in which the mains are discovered has been informed and has determined that ,to investigation of the cause of death is required, and 2. If remains are of Native American origin, a. The descendants from the deceased Native Americans have made a recommendation to the landowner or the person responsible for the excavation work, for means of treating or disposing of , with appropriate dignity, the human remains and any associated grave goods as provided in Public Resources Code Section 5097.98, or b. The Native American Heritage Ca®ission was unable to iden- tify a descendant or the descendant failed to make a recommendation within 24 hours after being notified by the commission. B. where the following conditions occur, the landowner or his authorized representative shall rebury the Native American human rifts and associated grave goods with appropriate dignity on the property in a location not subject to further subsurface disturbance. 1. The Native American Heritage Commission is unable to identify a descendant; 2. The descendant identified fails to make a recommendation; or 3. The landowner or his authorized representative rejects the recan- mendatioa of the descendant , and the mediation by the Native American Heritage Commission fails to provide measures acceptable to the landowner. C. If the human remains are discovered before the Lead Agency has finished the CDQA process, the Lead Agency shall work with the Native American Heritage Commission and the applicant to develop an agree- ment for treating or disposing, with appropriate dignity, of the human remains and any associated grave goods. Action implementing such an agreement is exempt from: 1. The general prohibition on disinterring, disturbing, or removing human r .ins from any location other than a dedicated cemetery (Health and Safety Code Section 7050.5) . 2. The requirements of CDQA and the Coastal Act. IX. As part of the objectives, criteria, and procedures required by Section 21082 or as part of conditions imposed for mitigation, a Lead Agency should make provisions for archaeological sites accidentally discovered 299 during construction . These provisions should include an immediate evaluation of the find. If the find is determined to be an Luportant archaeological resource, contingency funding and a time allotment suffi- cient to allow recovering an archaeological sample or to anploy one or the avoidance measures should be available. Construction work could continue on other parts of the building site while archaeological mitiga- tion takes place. • Note: Authority cited: Sections 21083 and 21087 , Public Resources Code ; Reference: Section 7050 .5 , Health and Safety Code; Sections 5097.98 , 21001 (b) and (c) , and 21083.2 , Public Resources Code ; Society for California Archaeology v. County of Butte, (1977) 65 Cal . AppT a BJ2. -- Discussion: This appendix responds to problems that have arisen in applying CDQA to archaeological resources. In sane areas of the state, full excavations of archaeological sites have been required for nearly every site dis- covered within the tract where a project would be located regardless of the importance of the sites. As a result, federal officials have noted that in CEQA documents they have found descriptions of archaeological excavations of sites that would not be regarded as important enough to call for excavation under federal law. This experience has shown a need for establishing standards to guide agencies in deciding whether a site would be important enough to call for analysis under CEQA. While there have been problems in some parts of the state, archaeological impacts have been handled well in other areas. Mendocino County and Santa Barbara County especially have been noted for the excellence of their methods for dealing with archaeological resources. This appendix does not mandate a uniform system statewide so that successful local programs can continue. The unnecessarily large number of excavations has also involved an un- necessary conflict with Native American values. Native Americans have been upset by people digging up the remains of their ancestors. While archaeology can be carried out in conjunction with Native Americans , and has been done successfully to help Native Americans learn about their ancestors, too often excavations have been carried out without concern for the sensitivities of Native Americans. The approaches described in this appendix should reduce the conflict with Native American values concerning protection of burial sites. An important principle in this appendix is the emphasis on avoidance of archaeological sites. Avoidance is discussed as a way of avoiding a significant impact in the first place, thereby enabling a project to qualify for a Negative Declaration. Where the proposed project includes a potential impact on a site, avoidance is suggested as a preferred mitigation measure where all other factors are equal. If a project can be altered to avoid a site, the costs and delays involved in an ar- chaeological excavation may also be avoided , and there would be no interference with Native American sensitivities. Possible methods of avoidance are listed in order to give people Ideas of how to proceed. These methods are not exclusive and could be supplemented by other methods at the option of the Lead Agency. • 300 The appendix also identifies standards for determining the . ir.• ., the archaeological site and provides that a project - nificant effect on the environment if it would cause ja-.a,;.! t ) l important archaeological site. These standards are in kerpic;; .. efforts in CEQA to focus on significant effects rather than on effects . The standards are an effort to focus on archaeological resources that people would generally agree are important rather than requiring protection of all archaeological resources. The standards are consistent with the standards included in AD 952 (Deddeh) . Chapter 16'5 of tta•: Statutes of 1982 . The appendix uses the term "Laportant ' ar- chaeological resources rather than "unique" archaeological resources in order to use terminology more closely related to accepted scientific usage. The substance of the standards remains consistent with the bill despite the change in label. The appendix encourages the preparation of an excavation plan in an EIR as one of several possible mitigation measures for destruction or darnge to an archaeological site. The excavation plan is an effort to achieve Mach greater precision in the ways in any necessary excavation would be carried out. The excavation plan would put a burden on the archaeologist to explain the importance of the site and to demonstrate how the proposed excavation would serve sane public interest. The elements listed for au excavation plan are suggested but not required. This approach allows Lead Agencies to take various approaches in excavation plans. The plans are intended to shift the burden to the archaeologist to demonstrate the necessity for an excavation rather than requiring a staff worker in the Lead Agency to deal with unfocused claims of the importance of the site. The Resources Agency has received information suggesting that planners working for Lead Agencies have had difficulty in evaluating clatms'fraa expert archaeologists demanding that excavation be allowed. The excava- tion plan requirement is designed to alleviate that problem. To conform to the recently enacted Assembly Bill 952, Chapter 1623 of the Statutes of 1982 , the appendix identifies various restrictions on ar- chaeological mitigation and cost limitations on archaeological mitigation. These restrictions apply to the CEQA process, and people implementing the Act need to be made aware of them. The appendix reor- ganizes and clarifies the limitations and adds interpretations with a few subjects from the bill such as offsets and the 60-day' delay in approval after completing the EIR. The appendix also suggests ways for Lead Agencies to standardize their methods of dealing with archaeological resources. The methods could be included within mitigation measures in EIRs or included in the CEQA procedures which an agency is required to adopt by Section 21082 of the Public Resources Code. The appendix also encourages Lead Agencies to deal with the problem of unexpected sites which nay be discovered during • construction. The appendix does not mandate any particular way to deal. with this situation. The appendix also reflects the protections recently enacted in Senate Bill 297 (Garamendi) , Chapter 1492 of the Statutes of 1982, for human remains discovered during excavation. If the human remains are of Native American origin, special rules and procedures apply. The rules and procedures are included here because they are so closely related to the archaeological activities discussed in this appendix. rig ,,�, aol , ERIFICATICN STATE OF CALIFORNIA. COUNTY OF I have read the foregoing and know, it; :on to ns IJ CHECK APPLICABLE PARAGRAPH ❑ I am a party to this action. The matters stated in the foregoing document arc true of my own knowledge exccpt as :o ❑ those matters which are stated on information and belief, and as to those matters I believe them to be true. I am 0 an Officer C a partner C a of a party to this action, and am authorized to make this verification for and on its behalf,and I make this verification [or that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document arc true. C The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. ❑ I am one of the attorneys for a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on , 19_, at . California. I declare under penalty of perjury under the laws of the State of California that the'foregoing is true and correct. Type or Print Name Signature PROOF OF SERVICE IOU. p1 CCr xnirtl 1/I/1t STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO I am employed in the county of San Bernardino , State Ef California. I am over the age of 18 and not a party to the within action: my business address is: 1839 Commercenter est , P.O. Box 6425 , San Bernardino , CA 92412 On 1/8 19 90 , I served the foregoing document described as INITIAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT O P TITION FOR LWR TS OF MANDATE AND COMPLAINT on the interested in this action by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: 2r by placing 0 the original l a true copy thereof enclosed in sealed envelopes addressed as follows: OFFICE OF THE ATTORNEY GENERAL 3580 Wilshire Boulevard, Room 800 Los Angeles, CA 90010 12 BY MAIL ❑ •1 deposited such envelope in the mail at , California. The envelope was mailed with postage thereon fully prepaid. © As follows: I am"readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at San Bernardino California in the ordinary course of business. 1 am aware that on motion of the party served.service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit . for mailing in affidavit. Executed on January 8 19 90 at San Bernardino , California. ❑ ••(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. Executed on , 19_, at , California. 9 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that lam employed in the office of a member of the bar of this court at whose direction the service was made. , Paulette R. Carriger 7'Ltiae , 4244 Type or Print Name • Signature snarl tams tP4Lwt•iarvi%o siI/a01 •iF tuix yCp,Uit WIT In 7 PEn00u WW1 t« LOPE .y «tw oKO.tn'LAS M/0 ASO a031 COI '.Nx goT ao■.On a.oi ,la.,is AM•Cris stir a/.e.GOON 'VON RMS.WWI a ONATLI t WA,at TN"COi,tyaarCLCI d PACE BELOW FOR FIL v; ar-LaP 1 BRUNICK & PYLE -' 101.A4 LAW CORP0 AnoM 1 C0 .stnc[Mlie Wan 2 b•* ornc. .ei'Ms .AN ■.RNAROjMO. CALiRORNIA ..•1. T.LeVMON.: ITI.1 •..-..OI ..•.0... 3I 4 5 Attorney. for Petitioners 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN BERNARDINO 10 11 CARL E. ATKINSON, JR. , JOSEPH BONO, ) 12 and SIGFREDO CONCEPCION, ) CASE NO. Individually, and on behalf of ) 13 all others similarly situated, ) NOTICE OF COMMENCEMENT OF ACTION 14 Petitioners, ) ( Public Resources Code 15 vs. ) section 21167 ] 16 CITY OF FONTANA, a Municipal ) Corporation, and DOES 1 through 50, ) 17 Inclusive, ) 18 Respondents. ) 19 ) 20 NOTICE IS HEREBY given that an action has been commence 21 in the above-entitled court concerning alleged violations of tl 22 California Environmental Quality Act (Public Resources Cc 23 section 21000, et seq. ) arising out of Respondent's adoption of 24 Negative Declaration and approval of the project known as t 25 Foothill/Beech Sewer Project ("the Project") which is the subj( 26 of this action. The object of this action is to determine i 27 validity of actions taken by Respondent CITY OF FONTANA 28 December 5, 1989 adopting a Negative Declaration and approv -1- it the project described in the Petition for Writ of :Mandate i.. _ 2 above-entitled action. 3 4 DATED: January 8, 1990. 5 BRUNICK & PYLE 6 7 fr ��i Marguerite P. Battersby 8 Attorneys for Petitioners 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- VERIFICATION STATE OF CALIFORNIA. COUNTY OF I have read the foregoing anc 'knew it; :orachts a CHECK APPLICABLE PARAGRAPH ❑ I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to ❑ those matters which are stated on information and belief, and as to those matters I believe them to be true. I am C an Officer C. a partner C a of a party to this action, and am authorized to make this verification for and on its behalf, and I make this certfcation for :hat reason. C I am informed and believe and on that ground allege that the matters stated in the foregoing document are true C The matters stated in the foregoing document are true of my own knowledge except as to those matters which are ❑ stated on information and belief, and as to those matters I believe teem to be true. I am one of the attorneys for a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on . 19 , at Caifor I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. a Type or Print Name Signature PROOF OF SERVICE t013A Ill CCP Renard 1/1/U STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO I am employed in the county of San RP rnardi nn , State p( California. I am over the age of 18 and not a party to the within action: my business address is: 1839 Commercenter West , P .O. Box 6425 , San Bernardino , CA 92412 On 1/8 , 19 90 . I served the foregoing document described as NOTICE OF COMMENCEMENT OF ACTION (Public Resources Code section 211671 on the interested parties in this action by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: 5S by placing ❑ the original C*a true copy thereof enclosed in sealed envelopes addressed as follows: OFFICE OF THE ATTORNEY GENERAL 3580 Wilshire Boulevard, Room 800 Los Angeles , CA 90010 ® BY MAIL ❑ •I deposited such envelope in the mail at , California. The envelope was mailed with postage thereon fully prepaid. EtAs follows: I am"readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at San Bernardino California in the ordinary course of business. I am aware that on motion of the party served,service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on January 8, , 19 90. at San Bernardino , California. ❑ ••(BY PERSONAL SERVICE) 1 delivered such envelope by hand to the offices of the addressee. gExecuted on . 19_, at , California. (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Paulette R. Carriger ClQablart, 1C . Pal A Type or Print Name Signature marts(,mom Twames Ames sri/Ni 'a OYOYtfv Law MO Ule atfi CCP 'Is x YlWVOfOf 11Mo.Otroye iyo ewer w t boa 0t Mt OR 401 IYIr le ail w C4051 adr a MSS r.w.t "iron fnHOfUt SUM=SO,YrA I if f e< T."Of„f SSE'CI si (SPACE BELOW FOR Fl L;NO S AVIP 1 ORUNICK & PYLE .000OOO10wAt. La VW CORPO.ATI01. 111e CONNIRC{OTIR Welly 2 1.0S1 O..(u SOS e4u RAN RRIINARDINO. CALIFORNIA 01412 TfWwONS: 1714) Rll•l301 1114.O/13 3 4 5 Attorneys for Petitioners 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN BERNARDINO l 10 11 CARL E. ATKINSON, JR. , JOSEPH BONO, ) 12 and SIGFREDO CONCEPCION, ) CASE NO. Individually, and on behalf of ) 13 all others similarly situated, ) REQUEST FOR PREPARATION OF RECORD OF PROCEEDINC 14 Petitioners, ) (Public Resources Code 15 vs. ) section 21167 . 6 (a) ] 16 CITY OF FONTANA, a Municipal ) Corporation, and DOES 1 through 50, ) 17 Inclusive, ) 18 Respondents. ) 19 ) 20 TO RESPONDENTS CITY OF FONTANA, and DOES 1 through 5 21 Inclusive: 22 In accordance with Public Resources Code Sect! 23 21167.6(a) Petitioners herein request the comple* 24 Administrative Record for the project as described in Petit 25 for writ of Mandate, which is incorporated by this referent 26 which includes approval of and adoption of a Negative Declarat 27 ' for the Fontana/Beech Sewer Project. 28 ///// -1- i' 1 This request is for preparation of the Administrat_• 2 Record in consultation with Petitioners, as providec in Publ 3 Resources Code section 21167 . 6 (b) , and shall include all minute I 41 memoranda, agendas, correspondence, proposals, and requests f 5 proposals, evidence (whether excepted or rejected) and sta 6 reports, memoranda, studies, and comments relevant to the City 7 Fontana's approval of the above-referenced project, the Initi 8 Study and Negative Declaration adopted by the City on or abc g December 5, 1989 . 10 11 DATED: January 8, 1990 . 12 RESPECTFULLY SUBMITTED, 13 BRUNICK 6 PYLE 14 j1m`eP ► ruvn 15 Marguerite P. Battersby 16 Attorneys for Petitioners 17 18 19 20 21 22 23 24 25 26 27 • 28 -2- VERIFICATION STATE OF CALIFORNIA. COUNTY OF I have read the foregoing ❑" CHECK APPLICABLE PARAGRAPH and know its contents ❑ I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to ❑ those matters which are stated on information and belief, and as to those matters I believe them to be true. I am C an Officer C a partner C a of a party to this action, and am authorized to make this verification for and on its behalf, and I make this verification for that reason. C I am informed and believe and on that ground allege that the matters slated in the foregoing document are true. C The matters stated in the foregoing document are true of my own knowledge except as to those matters which arc ❑ stated on information and belief, and as to those matters I believe them to be true. I am one of the attorneys for a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification (or and on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on , 19 , at I declare under penalty of perjury under the laws of the State of California that the foregoing is true and orlrectnta. Type or Print Name Signature PROOF OF SERVICE QUA Ill CCr Revisal smile STATE OF CALIFORNIA. COUNTY or SAN BERNARDINO I am employed in the county of San Bernardino I am over the age of 18 and not a party to the within action: my business address is: State of California. 1839 Commercenter West , P. O. Box 6425 , San Bernardino . CA 92412 On 1/8 . 1990 , 1 served the foregoing document described as REQUEST FOR PRFPARATT()N OF RECORD OF PROCEFD TNGS [Public- Rosnttrraq f nria cart inn ?II 6T _ 6 (a) 1 on tha intaractad parting in this action Yby placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: by placing C the original el a true copy thereof enclosed in sealed envelopes addressed as follows: OFFICE OF THE ATTORNEY GENERAL 3580 Wilshire Boulevard, Room 800 Los Angeles, CA 90010 ® BY MAIL ❑ •l deposited such envelope in the mail at California. The envelope was mailed with postage thereon fully prepaid. ® As follows: I am"readily familiar"with the firm's practice of collection and processing correspondence for mailing. Under that practise it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at San Bernardino California in the ordinary course of business. lam aware that on motion of the party served,service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. ❑ Executed on January 8 , 1990 in San Bernardino , California. ••(8Y PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. EExecuted on , 19_, at . California. (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.Paulette R. Carriaer `441 rt 7e ,(A- Type or Print Name Signature SNOWS rsanpna rV4NR t4tYtrO Ytrfa Mlw OIaCOYIar U,r MN Asa AM CC• 'IF Wa f04alt/e air OPrlttap4(4rpyr•q lwllorl+, tra aor aCO Sea �Iaw•rr n Cale Nsr. e Gear "Ira.enoa WWI lOtSI%fl iwar N rwr at t4tN'IrAel SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN SERNARDINO CARL E. ATKINSON, JR. , JOSEPH 30N0, and SIGFREDO CONCEPCION, et a1 . Case No. vs. CERTIFICATE OF ASSIGNMENT CITY OF FONTANA, et al . A civil action or proceeding pr tad for filing must be accompanied by this certificate. If the ground is the residen, of a party, name and residence shall be stated. The undersigned declares that the above entitled matter is filed for proceedings in the Central District of the Superior Court under Rule 153.1 of this court for the checked reason: Nature of Action. Ground, ❑ 1 Adoption Petitioner resides within the district. 0 2 Conservator Petitioner or conservatee resides within the district. ❑ 3 Contract Performance in the district is expressly provided for. 0 4 Equity The cause of action arose within the district. ❑ 5 Eminent Domain The property is located within the district. ❑ 8 Family Law Plaintiff, defendant, petitioner or respondent resides within the district. 0 7 Guardianship Petitioner or ward resides within the district or has property within the distri ❑ 8 Harrassment Plaintiff, defendant, petitioner or respondent resides within the district. 3 9 Mandate The defendant functions wholly within the district. ❑ 10 Name Change The petitioner resides within the district. ❑ 11 Personal Injury The injury occurred within the district. 0 12 Personal Property The property is located within the district. 0 13 Probate Decedent resided or resides within the district or had property within district. ❑ 14 Prohibition The defendant functions wholly within the district. ❑ 15 Review The defendant functions wholly within the district. ❑ 18 Title to Real Property The property is located within the district. ❑ 17 Transferred Action The lower court Is located within the district. ❑ 18 Unlawful Detainer The property is located within the district. ❑ 19 Other THE RESIDENCE OF THE PETITIONER, RESPONDENT, DECEASED. CONSERVATEE, WARD, PLAINTIFF, DEFENDANT IS: NAME: CITY OF FONTANA ADDRESS: 8353 Sierra Avenue, Fontana, California I declare, under penalty of perjury, that the foregoing is true and correct and this declaration was executed January 8 , 1990 at San Bernard ,Caiifo BR LE ea_sr"'sY: l/ Signor ae ar stranwy all111111411 ,� Marguerite P. Battersby