Attorneys for Petitioner, FRIENDS OF THE SAN DIEGUITO RIVER VALLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, HALL OF JUSTICE

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1 JULIE M. HAMILTON, ESQ. SBN 11 LESLIE GAUNT, ESQ. SBN Adams Ave. San Diego, CA Telephone: (1-001 FAX: (1-00 Attorneys for Petitioner, FRIENDS OF THE SAN DIEGUITO RIVER VALLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA FRIENDS OF THE SAN DIEGUITO RIVER VALLEY, a California Non-Profit Public Benefit Corporation, Petitioner, vs. CITY OF SAN DIEGO, a public entity; and DOES 1 through, inclusive, Respondent, SURF CUP SPORTS, LLC, a limited liability company; and OCEAN INDUSTRIES, INC., a corporation of unknown origin; and DOES through, TO: Real Parties in Interest. COUNTY OF SAN DIEGO, HALL OF JUSTICE RESPONDENT AND REAL PARTIES IN INTEREST: GENERAL CIVIL (CEQA CASE NO.: CU-TT-CTL PETITIONER S NOTICE OF MOTION AND MOTION TO ALLOW AMENDED AND SUPPLEMENTAL PETITON FOR WRIT OF MANDATE Judge: Hon. Gregory W. Pollack Dept.: C-1 Petition Filed: August, 01 Ex Parte Hearing Date: November 1, 01 Ex Parte Hearing Time: :0 p.m. NOTICE IS HEREBY GIVEN that on November 1, 01 at :0 pm, or as soon thereafter as the matter may be heard, in Department C-1 of the above entitled Court, Petitioner FRIENDS OF THE SAN DIEGUITO RIVER VALLEY ( FRSDRV will move the Court to allow the filing of an Amended and Supplemental Petition for Writ of Mandate. 1 NOTICE OF MOTION AND MOTION TO AUGMENT THE ADMINISTRATIVE RECORD

2 This motion is made on the grounds that substantial activity has occurred on the Polo Fields since the filing of the original FSDRV s original Petition for Writ of Mandate. This activity constitutes new facts, these facts are material to the Petitioner and are grounds for an additional cause of action. This motion is based on this Notice of Motion, the Memorandum of Points and Authorities in attached hereto, all papers, records and documents on file in this action; and such evidence as may be presented at the hearing on the motion Dated: October, 01 Respectfully Submitted, Julie M. Hamilton Attorney for Petitioner Friends of the San Dieguito River Valley NOTICE OF MOTION AND MOTION TO AUGMENT THE ADMINISTRATIVE RECORD

3 Petitioner FSDRV hereby submits the following Memorandum of Points and Authorities in support of its Motion to Allow Amended and Supplemental Petition for Writ of Mandate. I. INTRODUCTION & BACKGROUND FSDRV filed a Petition for Writ of Mandate ( Petition on August, 01, seeking an administrative writ of mandate under Code of Civil Procedure section. ( CCP. and Public Resources Code section ( PRC. The City approved a -year lease of the project site to Real Party-in-Interest, Surf Cup Sports, LLC on July, 01. The City was granted the project site in 1 as mitigation for Watt Industries/San Diego Inc. s development of the community of Fairbanks Ranch. The grant deed for the project site limits use of the project site to passive, non-commercial recreational use (picknicking, walking, hiking and active non-commercial recreational uses not involving large assemblages of people or cars (equestrian activities, jogging, frisbee. (See, Petitioner s Request for Judicial Notice and Lodgement in Support of Request for Preliminary Injunction filed November, 01 ( RJN Ex. 1, lease p.. The 11 Environmental Impact Report ( EIR for the Fairbanks Ranch Country Club required acres of riparian habitat where there is now none; this mitigation requirement has never been fulfilled. (RJN Ex., Response to Letters of Comment, p. 1. The project site is acres located along the northern bank of the San Dieguito River, extending east from El Camino Real to the community of Whispering Palms. The site is bounded on the south by the San Dieguito River, on the north by vacant land and a residential project, on the east by Whispering Palms and on the west by El Camino Real, the San Dieguito Lagoon, and the San Dieguito Wetland Restoration Project. The project was developed with polo fields established on the site through a 1 lease between the City and the Fairbanks Polo Club (now the Rancho Santa Fe Polo Club ( Polo Club. The Polo Club development included dirt access roads and parking areas, grass fields, and a portion of the public Coast to Crest trail. A Mitigative Negative Declaration ( MND was prepared for the Polo Club lease in 1. The Polo Club contracted with Surf Cup for use of the Polo Fields for soccer tournaments beginning in 1. (RJN Ex. 1, June 0, 01 Memorandum, pp. 1-. Over the NOTICE OF MOTION AND MOTION TO AUGMENT THE ADMINISTRATIVE RECORD

4 years, the use on the project site has included a variety of different activities including Christmas tree sales, dog shows, soccer tournaments, lacrosse tournaments and a variety of other special events. (Ibid. The use of the site has increased from the original use for polo to the current use for events that was limited to no more than days per year without the required approval or authorizations. 1 The Polo Club s lease of the project site expired on March 1, 01 the Polo Club has been using the Polo Fields on a month-to-month holdover basis since that date. (Id. at p.. The City issued a Request for Proposals ( RFP in July 01 and subsequently determined Surf Cup s proposal to be the only responsive proposal. (RJN Ex. 1, Council Action Executive Summary Sheet, p. 1. The new lease was approved by the City on July, 01 and amended on August, 01. FSDRV s Petitioner for Writ of Mandate was filed on August, 01. Since the Petitioner for Writ of Mandate was filed, Surf Cup has undertaken the following activities: Removed clubhouse, tack room, barns, store, and stalls. Buried gasoline tanks. Created and graded new parking areas. Graded and widened the access road. Graded new storage areas. Increased the use of the project site for a variety of events and practices. Removed the polo school arena from the Polo Fields. Gated the entrance to the Polo Fields. Constructed new curb, gutter, sidewalk and signage. Install lights for use at night. Disposed of horse bedding material in the south west corner of the property. 1 Surf Cup had been using the vacant land between the Polo Fields and Via de la Valle for parking, this use was discontinued in 01 and Surf Cup has since modified the parcel to provide for 000 parking spaces on areas previously used as playing fields. NOTICE OF MOTION AND MOTION TO AUGMENT THE ADMINISTRATIVE RECORD

5 All of these activites are new facts that were not available at the time the Petition was filed. These new facts are material to the causes of action alleged in the Petition; therefore a Supplemental Petition is appropriate. [See Exhibit 1 for Amended and Supplemental Petition.] II. ARGUMENT California Code of Civil Procedure section allows the plaintiff, on motion, to make a supplemental complaint alleging facts material to the case occuring after the former complaint. FSDRV intends to allege the City should require a grading permit, conditional use permit, stormwater pollution prevention plan, best management practices and must enforce its illegal dumping ordinance. These allegations are properly plead under Code of Civil Procedure section, mandating the City to fulfill its mandatory duty to enforce the San Diego Municipal Code. Blankenship v. Michalski (1 1 Cal.App.d (if an ordinance imposes a mandatory duty on respondent to commence a proceeding to enforce the ordinance, mandamus will lie even if other remedies may also exist; Terminal Plaza Corp. v. City (1 1 Cal.App.d 1, 0 (the traditional mandamus provisions of Code of Civil Procedure may be employed to compel the performance of a duty that is purely ministerial in character, but they cannot be applied to control discretion as to a matter lawfully entrusted to the City. In this case, FSDRV will be asking the Court to compel the City to enforce the provisions of the municipal code relating to grading, this use in this location, stormwater control and illegal dumping. FSDRV is not asking this Court to control the City s discretion in enforcing the code. Should this Court choose not to allow the Supplemental Petition, FSDRV would be left with no choice by to file a new petition, increasing the burden on the Court and all parties. FSDRV anticipates relying on declaratory evidence provided by parties witnessing each activity. FSDRV does not anticipate formal discovery. At the time the City Smart Growth and Land Use Committee recommended approval of the ground lease for Surf Cup, the Committee and staff anticipated Surf Cup would be receiving the necessary permits and environmental review for the above described work. [NOL Ex. 1, :- NOTICE OF MOTION AND MOTION TO AUGMENT THE ADMINISTRATIVE RECORD

6 1:.] Surf Cup has not applied for and the City has not required the necessary permits as discussed at the Smart Growth and Land Use Committee and required by the San Diego Municipal Code. III. CONCLUSION For the reasons stated above, the Court should grant Petitioner's Motion to Allow Amended and Supplemental Petition for Writ of Mandate DATED: Respectfully Submitted, LAW OFFICES OF JULIE M. HAMILTON By: Julie M. Hamilton Attorney for Petitioner Friends of the Canyon NOTICE OF MOTION AND MOTION TO AUGMENT THE ADMINISTRATIVE RECORD

7 EXHIBIT 1

8 JULIE M. HAMILTON, ESQ. SBN 11 LESLIE GAUNT, ESQ. SBN Adams Ave. San Diego, CA Telephone: (1-001 FAX: (1-00 Attorneys for Petitioner, FRIENDS OF THE SAN DIEGUITO RIVER VALLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA Friends of the San Dieguito River Valley, a California Non-Profit Public Benefit Corporation, Petitioner, vs. CITY OF SAN DIEGO, a public entity; and DOES 1 through, inclusive, Respondent, SURF CUP SPORTS, LLC, a limited liability company and OCEAN INDUSTRIES, INC., a California Corporation; and DOES through, Real Parties in Interest. COUNTY OF SAN DIEGO, HALL OF JUSTICE GENERAL CIVIL (CEQA CASE NO.: AMENDED AND SUPPLEMENTAL PETITION FOR WRIT OF MANDATE (CCP Sections,., and PRC Section Petitioner FRIENDS OF THE SAN DIEGUITO RIVER VALLEY ( FSDRV, hereby petition this Court for a Writ of Mandate under Section. of the Code of Civil Procedure and Section of the Public Resources Code, directed to Respondent CITY OF SAN DIEGO ("City", and by this verified Petition represents that: 1

9 GENERAL ALLEGATIONS 1. FSDRV is a California Non-Profit Public Benefit Corporation. Established in 1 as a non-profit, and supported by a network of members and affiliates, the FSDRV promotes and supports conservation, restoration, preservation and enhancement of the natural scenic, ecological and openspace resources of the San Dieguito River Valley through advocacy, study, monitoring, and education. The members of CARA reside in or visit the San Dieguito River Valley in City of San Diego and County of San Diego, State of California.. FSDRV believes in preserving and ensuring a quality of life by protecting the environment, through wise planning, lawful stewardship of lands, and following the policies, ordinances, and laws which apply to the San Dieguito River Valley in the City of San Diego. As residents, community members, and visitors to the San Dieguito River Valley, members of FSDRV are directly affected by the July, 01 decision of Respondent to authorize an approximate year Ground Lease with Surf Cup Sports, LLC, for the acres of City-owned property located at 1 El Camino Real/1 Via de la Valle known as the Polo Fields ("Project". Respondent based this decision on its determination that the Project is covered by the General Rule, California Environmental Quality Act (CEQA Section 1(b( and (, and is categorically exempt from CEQA pursuant to CEQA Guidelines Sections 1, 1, and 1, and that an exception to the exemptions as set forth in CEQA Guidelines Section 0. does not apply.. Subsequent to Respondent s approval of the Ground Lease and categorical exemptions, Surf Cup has demolished temporary corrals and tack rooms, graded the road and other areas of the site, disposed of stall bedding in native habitat, increased use of the site, removed trees, installed new chain link fencing, added road bed material, constructed a new entrance off Via de la Valle, constructed a new arena and trenched along the access road. There is no evidence the City has required or considered any permits for this work.. FSDRV and its members are directly affected by the failure of the City of San Diego to require permits for the ongoing activities on the Polo Fields.

10 FSDRV and its members have been injured as a result of Respondent s actions approving the Project and failing to require or consider permits for the ongoing activities. Respondent s actions adversely affect the aesthetic, environmental, health, and safety interests of FSDRV s members. The interests of FSDRV s members have been and will continue to be adversely affected by Respondent s unlawful actions in violation of the Fairbanks Ranch Country Club Specific Plan, San Diego Municipal Code, California Environmental Quality Act ("CEQA" and the Code of Civil Procedure ("CCP". The relief sought in this Petition would redress FSDRV and FSDRV s injuries.. Respondent is a local government which is a subdivision of the State of California and a body corporate and politic exercising local government powers, as specified in the Constitution and the laws of the State of California. At all times mentioned in this Petition, Respondent has assumed the role of the governmental agency charged by law with administering the provisions of the San Diego Municipal Code and the Public Resources Code Section 00 et seq.. FSDRV does not know the true names or capacity of the persons or entities sued herein as Does 1 through, and therefore sues these Respondents by fictitious names. FSDRV will amend the Petition to set forth names and capacity of said Respondents along with appropriate charging allegations when the same have been ascertained.. Real Party in Interest SURF CUP SPORTS, LLC ( Surf Cup is a California limited liability company. SURF CUP SPORTS, LLC is identified as the intended lessee for the Polo Fields.. Real Party in Interest OCEAN INDUSTRIES, INC. ( Ocean is a California Corporation and is the successor in interest to the original developer of Fairbanks Ranch, Watt Industries of San Diego ( WISD.. FSDRV does not know the true names or capacity of the persons or entities sued herein as Does through, and therefore sues these Real Parties in Interest by such fictitious names. FSDRV will amend the Petition to set forth the names and capacity of said Real Parties in Interest along with appropriate charging allegations when the same have been ascertained. VENUE

11 Venue and jurisdiction in this Court are proper pursuant to the California Code of Civil Procedure, for a matter relating to subject property located within, and discretionary, quasi-legislative and administrative actions decided within, this Court s jurisdiction. PROJECT DESCRIPTION AND HISTORY 1. The project site is approximately acres located at 1 El Camino Real/1 Via de la Valle on the east side of El Camino Real adjacent to the north bank of the San Dieguito River in the northwestern portion of the City of San Diego. The site is within the AR-1-1, AR-1- and OF-1-1 zones and is designated Open Space in the Fairbanks Ranch Country Club Specific Plan. 1. The site was originally acquired by the City of San Diego through the development of Fairbanks Ranch Country Club in 1 by Watt Industries/San Diego, Inc. ( WISD. The original grant deed limited uses on the site to agricultural uses, passive non-commercial recreational uses and active non-commercial uses not involving large assemblages of people or automobiles. 1. In 1, the City approved a mitigated negative declaration and signed a lease with the Rancho Santa Fe Polo Club that allowed the operation of a polo facility, polo matches, the boarding and training of horses, a public trail and uses incidental to polo. The City allowed the Rancho Santa Fe Polo Club to host a girls soccer tourney and Senior Olympics Soccer in 1. In 00, the Grantee, WISD, Inc. consented to allow dog shows, soccer tournaments, lacrosse tournaments, Christmas tree sales, golf equipment testing, your soccer practices and up to livestock/grounds keepers living on the site. WISD, Inc. limited dog shows, soccer tournaments and lacrosse tournaments to days (cumulative per year. This agreement was not recorded within the chain of title for any of the other lands benefited by the original grant deed. 1. In 0, the City approved a Site Development Permit and mitigated negative declaration for the restoration of an existing multi-use public trail, restoration of impacts to environmentally sensitive lands and a separate private equine exercise track on the project site. Restoration of the public trail and environmentally sensitive habitat was in response to a Notice of Violation and a Civil Penalty Notice and Order issued to the Rancho Santa Fe Polo Club.

12 In 01, the City s Real Estate Assets Department issued a Request for Proposals to lease and operate the property. The City received three proposals and determined Real Party-In- Interest SURF CUP SPORTS, LLC s ( Surf Cup proposal was the only proposal responsive to the RFP. 1. On March, 01 several truck loads of fill material were dumped and spread in the north east corner of the site. 1. In May 01, unknown parties began demolishing the club house, barns, stables and tack rooms. 1. On June, 01, the City s Smart Growth and Land Use Committee considered a - year lease of the project site to Surf Cup and recommended approval to the San Diego City Council. Members of FSDRV and other members of the public provided oral and written testimony in opposition to the approval of the lease. 0. On July, 01, the City approved a -year lease to Real Party-In-Interest that allowed for use of the property for youth sports, youth polo instruction, occasional polo matches, horse drop-off facilities for the public trail and partnering with other sports organization for sports-related special events and other ancillary uses. The Lease proposal included the following components: Improve existing irrigation system and equipment Install replacement fencing and gates around the property and wayfinding signage Replace existing turf with new turfgrass and make improvements to existing landscaping throughout the property Improve all existing roads and parking areas Remove unsafe non-native trees or foliage Disassemble and recycle existing barns, stables, temporary storage areas and other structures Replace existing trailers to support existing staff Remove and properly dispose of and/or recycle all trash/abandoned equipment and unused fixtures on site

13 Remove and replace existing dilapidated clubhouse and offices Remove and relocate existing maintenance yard and associated structures Miscellaneous improvements to ensure compliance with the City s Municipal Code Remove the existing equestrian arena Install caretaker housing to support polo uses on-site Remove polo scoreboard and billboards The City determined the Lease and associated components is exempt from the provisions of CEQA. Members of FSDRV and other members of the public provided written and oral testimony to the City Council prior to the close of the hearing at the City Council on July, 01. The City Council decided to approve the lease. 1. The City filed a Notice of Exemption with the County Clerk of the County of San Diego on July, 01.. On July, 01 unknown parties began spreading gravel on the access roads at the project site.. The City approved an amendment to the Resolution of Approval for the Lease on August, 01.. The City filed a second Notice of Exemption with the County Clerk of the County of San Diego on August, 01.. FSDRV is informed and believes that filing of the Notice of Exemption is the final action Respondent intends to take regarding approval of the Project under CEQA and other applicable laws.. At unknown times after the ground lease approval in 01, parties have buried gasoline tanks, repeatedly created and graded new parking areas, repeatedly graded and widened the access road, graded new storage areas, and significantly increased the use of the project site for a variety of events and practices.. In January 01 parties began removing the polo school arena from the Polo Fields.

14 In April 01 parties grated the entrance to the Polo Fields and constructed new curb, gutter, sidewalk and signage. Parties also installed lights for use at night.. In September 01 parties began disposing of horse bedding material in the south west corner of the property on native vegetation. EXHAUSTION OF ADMINISTRATIVE REMEDIES AND INADEQUATE REMEDIES AT LAW. FSDRV has exhausted all available administrative remedies, and objections to the Project have been presented orally and in writing to Respondent. 0. FSDRV has complied with the requirements of Public Resources Code Section. by mailing a written notice of commencement of this action to Respondent. A true and correct copy of that notice is attached hereto as Exhibit FSDRV has no adequate remedy at law unless this Court grants the requested writ of mandate requiring Respondent to set aside its approval of the Project set aside its determination the Project is exempt from CEQA; and prepare an environmental impact report ( EIR addressing all issues set forth in this petition. In the absence of such remedy, Respondent s approval will remain in effect in violation of State law, and FSDRV will suffer irreparable harm because violations of applicable land use laws and regulations and significant adverse environmental impacts generated by the Project that will have not been properly analyzed under CEQA.. FSDRV has performed all conditions precedent to filing this action by complying with all requirements and has no other remedy than to bring this action. All other requests of Respondent, having been previously made, would be futile. FIRST CAUSE OF ACTION (CEQA. Petitioner incorporates by reference each of the allegations set forth in this Petition as if set forth herein in full.. City has committed to a definite course of action regarding the proposed Project and has failed to consider the environmental consequences of this action.

15 The City inappropriately segmented the project to avoid consideration of the cumulative impact of all components of the lease described above.. The City then failed to consider the environmental consequences of the Project at the Project s formative stages thus allowing for undue project momentum and post-hoc rationalizations. SECOND CAUSE OF ACTION (CEQA. Petitioner incorporates by reference each of the allegations set forth in this Petition as if set forth herein in full.. The notice of exemption fails to include a statement of reasons to support the City s finding that the project is exempt. Although the Notice of Exemption does include citations to exemptions there is no explanation of why those exemptions apply to the Project. THIRD CAUSE OF ACTION (CEQA. Petitioner incorporates by reference each of the allegations set forth in this Petition as if set forth herein in full. 0. The Project is not categorically exempt from CEQA review. 1. There is substantial evidence to support a fair argument the Project may have a significant impact on biology, traffic, noise and water quality.. There is a reasonable possibility that the Project may have a significant effect on the environment due to unusual circumstances. The Project site is located next to and includes habitat supporting threatened and endangered species. CEQA does not support a categorical exemption for a Project located in proximity to environmentally sensitive habitat. FOURTH CAUSE OF ACTION CEQA. Petitioner incorporates by reference each of the allegations set forth in this Petition as if set forth herein in full.. The categorical exemptions relied upon by the City do not apply to the Project.

16 The Project does not meet the criteria of CEQA Guidelines section 1 because Project substantially changes the historical use on the project site and Surf Cup proposes extensive changes to the facility as cited above.. The Project does not meet the criteria of CEQA Guidelines section 1 because Surf Cup proposes to significantly increase the intensity of use on the project site and Surf Cup s use of the property has never undergone environmental review.. The Project does not meet the criteria of CEQA Guidelines section because the Project significant grading in and adjacent to environmentally sensitive habitat.. The Project does not meet the criteria of CEQA Guidelines section 1 because the components of the lease include the removal and/or replacement of every structure on the site and the placement of new structures with no information regarding the size, location and design of these new structures. The Project does not contemplate minor accessory structures; the Project allows significant new structures that have never been reviewed under CEQA. FIFTH CAUSE OF ACTION CCP 1. Petitioner incorporates by reference each of the allegations set forth in this Petition as if set forth herein in full. 0. The City has abused its discretion by failing to require a conditional use permit for a privately operated, outdoor recreation facility over 0,000 square feet in size in the AR 1-1 and 1- zones as required by San Diego Municipal Code section.0 1. The City has abused its discretion by allowing a privately operated, outdoor recreation facility over 0,000 square feet in the OF 1-1 zone that is prohibited by San Diego Municipal code section.0.. The City has abused its discretion by failing to require a grading permit for any grading within City-owned open space as requited by San Diego Municipal Code section 1.00(a.. The City has abused its discretion by failing to require the Best Management Practices ( BMPs required in San Diego County Code of Regulatory Ordinances section.01 et seq.

17 The City has abused its discretion by failing to require Surf Cup to prepare a Storm Water Pollution Prevention Plan ( SWPPP as required under the Construction General Permit that applies to any project that disturbs one or more acres of soil.. The City has allowed its lessee to illegally dump horse bedding material on City property in violation of the City s illegal dumping ordinance, San Diego Municipal Code section.001 et seq. PRAYER FOR RELIEF WHEREFORE, Petitioner respectfully prays: 1. That this Court finds that, by approving the Project, Respondent has not proceeded in a manner required by law and/or its decision is not supported by substantial evidence;. That this Court order Respondent to vacate and set aside its decision made on or about July, 01 and that this Court issue a peremptory writ of mandate ordering Respondent to set aside its decision approve the lease for the Project;. That this Court order Respondent to enforce its ordinances by required a Conditional Use Permit, Grading Permit and SWPPP for the Project.. That this Court order Respondent to enforce its ordinances by disallowing any portion of the Project to encroach into the OF 1-1 Zone.. That this Court issue a peremptory writ of mandate declaring that one or more of the decision(s rendered by Respondent on or about July, 01 and any additional discretionary or ministerial approvals by Respondent relating to, or dependent upon, the same are null and void and of no force or effect;. That Respondent refrain from granting any additional permits, entitlements, or other approvals related to the Project until it has taken action necessary to bring such approvals into compliance with the San Diego Municipal Code, CEQA, and any other applicable local ordinances, rules, and policies;. That Petitioner be awarded its reasonable costs incurred in this action;

18 . That Petitioner be awarded reasonable attorney s fees pursuant to Cal. Code of Civil Procedure Section 1.; and. For such other legal or equitable relief that the Court deems just and proper Dated: October, 01 Respectfully Submitted, Julie M. Hamilton Attorney for Petitioner Friends of the San Dieguito River Valley

19 1 I, Susan Hopps-Tatum declare: VERIFICATION I am President of the COLLEGE AREA RESIDENTS ASSOCIATION, petitioner in this action. I have read the above Petition for Writ of Mandate and know its contents. All the facts alleged in the Petition not otherwise by citation to the record, exhibits, or other documents are true of my own personal knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in San Diego, California, this day of October, 01. Susan Hopps-Tatum COLLEGE AREA RESIDENTS ASSOCIATION