William P. Parkin. SBN 9718 RyanD. Moroney, SBN 2189 WITTWER PARKIN LLP 147 S. River Street, Suite 221 Santa Cruz, CA 95060 Tele(>hone: (81) 429-4055 Facsunile: (81) 429-4057 wparkin@wittwerparkin.com 5 Attorneys for Petitioner, 6 THE APTOS COUNCIL F 'LEDI. MAR 19 14 ~, ALEX CAL.VO, CLERK BY JUSTIN BROWN DEPUTY, SANTA CRUZ COUNTY 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CRUZ 10 11 14 15 16 17 18 19 21 22 2 27 THE APTOS COUNCIL, an unincorporated association Petitioner, v. COUNTY OF SANTA CRUZ and BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CRUZ and DOES 1 through 15, Respondents. Case No. CV178868 PETITION FOR WRIT OF MANDAMUS [CEQACASE]
1 I 2 Introduction 1. Petitioner The Aptos Council (Petitioner) brings this mandamus action in the 4 public interest. Petitioner challenges the County of Santa Cruz's (County) actions on January 5 28, 14, loosening existing County standards and regulation governing hotel development and 6 commercial signage throughout the County. The proposed changes to the sign ordinance 7 eliminate the existing (and far more stringent) sign variance process, and replace it with a 8 subjective administrative process limiting public involvement. Likewise, the proposed changes 9 to the hotel ordinance remove existing density standards, increase the story limitation from 10 stories to 4 stories, and relax existing parking requirements. Furthermore, Petitioner 11 challenges the County of Santa Cruz's approval on March 18, 14 of amendments to the County Code expanding the scope of exceptions from zoning standards and reduced setbacks for garages. 14 2. Despite the obvious potential impacts of these ordinance changes, the County 15 failed to performed the required environmental review, opting instead to "exempt" from the 16 California Environmental Quality Act (CEQA) review the sign ordinance changes based on 17 claimed statutory and categorical exemptions that obviously do not apply, and, in relying on an 18 inadequate Negative Declaration, "defer" actual environmental impact analysis ofthe hotel 19 ordinance revisions in violation of CEQA. Moreover, the County improperly relied on an Addendum to an old Negative Declaration for a previous round of zoning code amendments for 21 a new amendment that expands exceptions to zoning standards and reduced setbacks for 22 garages. 2 Collectively these ordinance revisions are part of the County's self-proclaimed "Regulatory Reform Efforts" which constitute a suite of prior, pending and future County Code amendments contemplated by the County Planning Department. Indeed, the original Staff Report on the sign ordinance revisions freely admitted as much: "[T]he proposed amendments 27... are part of the ongoing Planning Department program to streamline permit review, 28 modernize the County Code, and facilitate economic development." However, rather than 1
1 perform environmental reyiew of this "Regulatory Reform Effort" as a whole as required by 2 CEQA, the County has engaged in a continued pattern and practice of segmenting or "piecemealing" these efforts by splitting the project up into numerous smaller segments in 4 order to a\'oid environmental review, in violation of CEQA. 5 4. A peremptory writ should therefore issue to require the County to fulfill its public 6 duty to first consider the potential impacts of the loosening existing standards regulating hotels 7 and commercial signage throughout the County, and expanding applicability of minor 8 exceptions and reduced setbacks for garages (and all other "Regulatory Reform Efforts"), 9 before implementing said changes. Petitioner therefore requests that the approval of these 10 changes be set aside and reconsidered only after the environmental review required by CEQA. 11 14 5 II Parties The Aptos Council is an unincorporated association formed in the public interest. 15 The Aptos Council's members support compliance with principles, rules, ordinances and 16 statutes that have long-served as guides to environmental protection in the County of Santa 17 Cruz. The Aptos Council's members include County residents, property owners, taxpayers and 18 concerned citizens who enjoy and appreciate Santa Cruz and its environs, and desire to protect 19 the County's historic, cultural, environmental and natural resources. The interests of Petitioner and its members have been, are, and will continue to be directly, adversely, and 21 irreparably affected by the County's failure to comply with the requirements of CEQA in 22 approying the hotel and sign ordinance changes, and expanding the applicability of exceptions 2 to zoning standards and reduced setbacks for garages. Petitioner brings this petition on behalf of all others similarly situated that are too numerous to be named and brought before this Court. The Aptos Council and its members provided objections to the hotel and sign ordinance changes, and exhausted all administrative remedies. 27 6. Respondent County of Santa Cruz (County), through Respondent Board of 28 Supervisors (collectively "Respondents"), is the governmental body that approved the hotel and 2
1 sign ordinance changes, and expanded the scope of exceptions from zoning standards and 2 reduced setbacks for garages, and is the lead agency under CEQA. 4 III 5 Jurisdiction and Venue 6 7. This Court has jurisdiction under Public Resources Code sections 21168 and 7 21168.5 and Code of Civil Procedure sections 1085 and 1094.5. The parties and the area 8 affected by the project are located within the County of Santa Cruz. 9 8. This action is timely filed under Public Resources Code section 21167(d) and 10 CEQA Guidelines section 151(C)(2). 11 9. Petitioner performed all conditions precedent to filing this action by complying with the requirements of Public Resources Code 21167.5 by serving prior notice of this action on March 19, 14. A copy of the written notice and proof of service is attached hereto as 14 ExhibitA. 15 10. Pursuant to Public Resources Code section 21167.6(b), Petitioner has elected to 16 prepare the record of proceedings in this matter, and is simultaneously filing its notice of 17 intent to prepare said record of proceedings with this complaint. 18 11. Petitioner has no plain, speedy, and adequate remedy in the ordinary course of 19 law. Issuance of a peremptory writ is needed to avoid immediate, severe, and irreparable harm to County of Santa Cruz residents yia implementation of the hotel and sign ordinance changes, 21 and expansion of exceptions to zoning standards and reduced setbacks for garages, without 22 adequate environmental review. The County has the capacity and opportunity to correct its 2 violations of law but has failed and refused to do so. 27. IV General Allegations On October 1,, the Board of Supervisors considered two items on its agenda 28 relating to a relaxation of standards of the County's sign and hotel ordinances, respectively.
2 4 5 6 7 8 9 10 11 14 15 16 17 18 19 21 22 2 27 28 Specifically, item 9, a public hearing to consider amendments to Chapters.10 and.11 of the Santa Cruz County Code, to provide for an administrative exception process for signs (hereinafter "the Sign Ordinance Revisions"), and item 40, a public hearing to consider an amendment to Chapter.10 of the Santa Cruz County Code and the General Plan/Local Coastal Program to modify standards for hotels and motels in commercial districts (hereinafter the "Hotel Ordinance Revisions.") The Sign Ordinance Revisions were designed to eliminate the existing (and far more stringent) sign variance process, and replace it with a subjective "administrative" (i.e. behind closed doors) process with limited public invoh ement. The Hotel Ordinance Revisions were aimed at relaxing existing standards for maximum allowable density, and story and parking limitations. The Hotel Ordinance Revisions also included a companion amendment to County General Plan Policy 2.16.7.. The public hearing for both the Ordinance Revisions was continued to November 5, in response to public comments questioning the proposed changes, and specifically the lack of environmental review. At the November 5, hearing, the Board remanded both Ordinance Revisions to the Planning Commission (Commission) with a few changes proposed by staff, which were approved at the December 11, Commission meeting. 14. At its January 28, 14, the Board of Supervisors approved both Ordinance Revisions and related General Plan amendment. These approvals included finding statutory and categorical exemptions for the Sign Ordinance Revisions, and approval of a Negative Declaration for the Hotel Ordinance Revisions. 15. During the administrative proceedings, the County was provided with argument that the claimed CEQA exemptions did not apply to the Sign Ordinance Revisions because, inter alia, the exemptions were facially inapplicable, and changes would result in a weakening of existing standards. With respect to the Hotel Ordinance Revisions, Petitioners noted that a Negative Declaration was impermissible because it deferred environmental analysis in violation of CEQA. Environmental review for the both Ordinance Reyisions was repeatedly requested throughout the administrative process. 16. A Notice of Exemption for the Sign Ordinance Revisions was posted at the Clerk 4
1 of the Board of Supervisors on February, 14, and a Notice of Detennination for the Hotel 2 Ordinance Revisions was filed on February 19, 14. 4 V 5 FIRST CAUSE OF ACTION 6 Violation of the California Environmental Quality Act 7 [Public Resources Code 21167] 8 (Sign Ordinance Revisions not Exemptfrom Environmental Review) 9 17. Petitioner incorporates all previous paragraphs as if fully set forth. 10 18. The County abused its discretion and failed to act in a manner required by law in 11 approving the Sign Ordinance Revisions on the basis of claimed statutory and categorical exemptions instead of performing environmental review. 19. The Notice of Exemption filed by the County assert the following exemptions 14 under CEQA: 1) the proposed ordinance amendment is statutorily exempt as a Local Coastal 15 Program Amendment pursuant to CEQA (Section 155(a)); 2) Minor Alterations in Land Use 16 Limitations (Section 1505) and ) Accessory Structures (Section 1511). 17. The statutory exemption for a Local Coastal Program Amendment does not apply 18 for the obvious reason that the Sign Ordinance applies County-wide, and not just in the Coastal 19 Zone. Therefore this exemption if facially inapplicable. 21. The categorical exemption for minor alteration in land use limitation does not 21 apply to because the proposed revisions have nothing whatsoever to do with alterations in lot 22 size, configuration, etc. for an individual parcel of land as contemplated by the exemption. 2 Instead, this revisions involve a County-wide ordinance change. The claimed "accessory structure" exemption does not apply for the same reason. 22. Moreover, it unlawful to use the exemption process to weakening of existing environmental standards. International Longshoremen's & Warehousemen's Union, Local 5 27 v. Board of Supervisors (1981) 116 Cal.APP.d 5, California Unionsfor Reliable Energy v. 28 Mojave Desert Air Quality Management Dist. (09) 178 Cal. App. 4th, 40 5
1 2 4 5 6 7 8 9 10 11 ("Rulemaking proceedings cannot be found exempt, however, when the rule has the effect of weakening environmental standards. [Citations.] [~] [Even a] new regulation that strengthens some environmental requirements may not be entitled to an exemption if the new requirements could result in other potentially significant effects. [Citations.] (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, -4, p. 981."» 2. The County failed to proceed in a manner required by law to adequately assess the existing environmental setting relative to existing sign ordinance regulations as a basis for environmental analysis, and failed to obtain accurate, comprehensive analysis and data regarding how the Sign Ordinance Revisions may affect the environment, and failed to provide decision makers and the public with adequate evidence and data supporting the proposed Sign Ordinance Revisions. 14 15 16 17 18 19 21 22 2 27 28 VI SECOND CAUSE OF ACTION Violation of the California Environmental Quality Act [Public Resources Code 21167] (Hptel Ordinance Revisions may have significant impact on the Environment). Petitioner incorporates all previous paragraphs as if fully set forth.. A Negative Declaration may not be prepared in lieu of an Environmental Impact Report (EIR) when there are significant em-ironmental impacts from a proposed project. The approval of the Project will result in significant environmental impacts that are either not addressed in the Negative Declaration, or are not mitigated to a less than significant level.. A public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project will have a significant effect on the environment. Significant effect on the environment means a substantial, or potentially substantial adverse change in the environment. The fair argument standard, deriyed from Public Resources Code Section 21151, mandates preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that a project will have a significant effect on the environment. 6
1 27. Section 21151 creates a low threshold requirement for initial preparation of an 2 EIR and reflects a preference for resolving doubts in favor of environmental re\iew when the question is whether any such review is warranted. An EIR is the proper format for evaluation 4 and analysis of these impacts. 5 28. The Project will result in impacts that will not be adequately mitigated by the 6 Negative Declaration, or were not adequately analyzed in the Negative Declaration,including, 7 but not limited to the following: failure to adequately analyze impacts on water supply and 8 availability, visual resources and aesthetics, and traffic and parking. 9 29. The Initial Study/Negative Declaration (IS/ND)is fatally flawed in its required 10 analysis of all Environmental Factors Potentially Affected (IS at 2) because it defers all 11 environmental review to a later time when a "future projectd to construct or rehabilitate visitor accommodations within the County... would require a future discretionary approval" (IS/ND at 18). This skirting of analysis is expressly prohibited by CEQA. California Unions for Reliable 14 Energy v. Mojave DesertAir Quality Management Dist. (09) 178 Cal. App. 4th : 15 16 17 18 19 21 Piecemeal environmental review that ignores the environmental impacts of the end result is not permitted. rcitations.]...'the scope of review under CEQA is not confined to immediate effects but extends to reasonably foreseeable indirect physical chan~es to the environment. [Citations.] An agency action is not exempt from CEQA sunply because it will not have an immediate or direct effect on the environment. CEQA applies if it is reasonably foreseeable that emironmental impacts will ultimately result. [Citations.T... the focus must be not on the project alone, but rather on the project's reasonabfy foreseeable direct and indirect physical effects. While the adoption of Rule 1406 did not cause any road paving DY Itself, certainly it encouraged third parties to pave roads. It is reasonably foreseeable that, if the District allows applicants to obtain PMlO offsets by paving roads, at least some applicants will do so. Otherwise, why adopt the rule? 22 178 Cal. App. 4th at 42, 44 (emphasis added). 2 0. The County failed to proceed in a manner required by law to adequately assess the existing environmental setting relative to existing hotel ordinance regulations as a basis for emironmental analysis, and failed to obtain accurate, comprehensive analysis and data regarding how the Hotel Ordinance revisions may affect the emironment, and failed to provide 27 decisionmakers and the public with adequate e\idence and data supporting the proposed 28 relaxation of hotel development standards. 7
1 VII 2 THIRD CAUSE OF ACI'ION Violation of the California Environmental Quality Act 4 [Public Resources Code 21167] 5 (Minor Exceptions and Reduced Garage Setbacks may have significant impact 6 on the Environment) 7 1. Petitioner incorporates all previous paragraphs as if fully set forth. 8 2. The use of an Addendum to a Negative Declaration prepared in 11 is a violation 9 of CEQA. Expansion of minor exceptions to zoning standards and relaxation of setbacks for 10 garages must be considered as part of a new project under the zoning code reform rubric. In 11 other words, this amendment must be considered under comprehensive environmental review for the entire zoning code reform effort, not under an outdated Negative Declaration for a previous change to the County Code. The County bootstraps expanded exceptions beyond 14 those even contemplated in 11 when the Board approved changes to the zoning code. The 15 new zoning changes constitute a new proposal for changes to the County Code. The changes 16 are beyond the statutory scope permissible for an Addendum and the Addendum does not J 7 comply with CEQA. The Addendum itself it flawed since there are substantive changes being J 8 considered as part of these amendments. 19. Thus, the County failed to proceed in a manner required by law to adequately assess environmental impacts related to expansion of exceptions from County zoning standards 21 and relaxation of setbacks for garages. 22 2 27 28 8
1 2 4 5 VIII FOURTH CAUSE OF ACTION Violation of the California Environmental Quality Act [Public Resources Code 21167] (Unlawful Piecemealing of Environmental Review) 6 4. Petitioner incorporates all previous paragraphs as if fully set forth. 7 5. The Sign Ordinance Revisions constitute unlawful piecemealing as the County is 8 9 10 11 14 15 16 17 18 19 21 22 2 27 28 in the process of a "comprehensive" sign ordinance revision in addition to what the County Board of Supervisors approved on January 28, 14, the impacts of which must be addressed as a whole. See, October 1, Staff Report, p. 2: Future Comprehensive Sign Ordinance Revision.... A comprehensive sil9.1 ordinance amendment would improve the quality of signage and the built environment, provide standards more specific to sign type and location, expedite permit processes, and reduce costs associated with processing sign approvals. Staff IS recommending that an effort be undertaken to prepare a more comprehensive amendment of the sign ordinance. 6. The Initial Study/Negative Declaration (IS/ND) for the Hotel Ordinance Revisions unlawfully defers all environmental review to a later time when a "future projectd to construct or rehabilitate visitor accommodations within the County... would require a future discretionary approval..." (IS/ND at 18). This skirting of analysis is expressly prohibited by CEQA. California Unions/or Reliable Energy v. Mojave Desert Air Quality Management Dist. (09) 178 Cal. App. 4th 7. Expansion of minor exceptions to zoning standards and relaxation of setbacks for garages must be considered as part of a new project under the zoning code reform rubric. In other words, this amendment must be considered under comprehensive environmental review for the entire zoning code reform effort, not under an outdated Negative Declaration for a previous change to the Zoning Code. 8. Collectively the above referenced Ordinance Revisions are part of the County's self-proclaimed "Regulatory Reform Efforts" which constitute a suite of prior, pending and future County Code amendments contemplated by the Planning Department. Indeed, the 9
1 original staff report on the sign ordinance revisions freely admitted as much: "[T]he proposed 2 amendments... are part of the ongoing Planning Department program to streamline permit review, modernize the County Code, and facilitate economic development." However, rather 4 than perform the required environmental review of this "Regulatory Reform Effort" as a whole 5 as required by CEQA, the County has engaged in a pattern and practice of segmenting or 6 "piecemealing" these efforts by splitting the project up into numerous smaller segments in 7 order to avoid environmental review, in violation of CEQA. 14 CCR 1578(a). Legal 8 precedent has long established that the environmental impacts of a project cannot be 9 submerged by chopping a larger project into smaller pieces. See Burbank-Glendale-Pasadena 10 Airport Authority v. Hensler (1991) 2 Cal.APP d 577, 592. 11 IX INJUNCTION 14 9. Petitioner incorporates all previous paragraphs as if fully set forth. 15 40. An actual controversy has arisen concerning Respondents' failure to comply with 16 Public Resources Code Section 21000 et seq. as set forth above. 17 41. As a result of the above-alleged violations of CEQA, Respondents have failed to 18 conduct adequate environmental review as required by law, and have failed to proceed in a 19 manner required by law. 42. At all times mentioned herein, Respondents have been able to require adequate 21 environmental review, and to comply with CEQA. Notwithstanding such ability, the 22 Respondents fail and continues to fail to perform their duty to require and perform required 2 environmental review. 4. Petitioner is informed and believes and thereon alleges that Respondents are threatening to implement the Sign and Hotel Ordinance Revisions, and expanded exceptions and reduced setbacks for garages, in the near future. Said implementation will irreparably 27 harm the environment, and will result in significant environmental impacts. 28 44 Petitioner possesses no speedy, adequate remedy at law, in that implementation 10
1 of the above referenced code revisions will permanently and forever harm, injure, degrade and 2 impact the environmental values of the County of Santa Cruz. Petitioner and its members will suffer irreparable and permanent injuries if Respondents' actions herein are not set aside. 4 45. A stay and/or restraining order and preliminary and permanent injunction 5 should issue restraining Respondents from proceeding with implementation of the Sign and 6 Hotel Ordinance Revisions, expanded exceptions and reduced setbacks for garages, and other 7 continuing code changes. 8 46. In order to preserve the status quo, a stay and/or restraining order and 9 preliminary and permanent injunction should issue staying the Respondents' approval of the 10 Sign and Hotel Ordinance Revisions, the expanded exceptions, reduced setbacks for garages II and other continuing code changes, and related environmental determinations. I X 14 ATIORNEYSFEES IS 47. Petitioner incorporates all previous paragraphs as if fully set forth. 16 48. In pursuing this action, Petitioner will confer a substantial benefit on the People 17 of the State of California and the People of the County of Santa Cruz, and therefore are entitled 18 to recover from Respondents reasonable attorneys' fees and costs pursuant to section 1021.5 of 19 the Code of Civil Procedure, and other provisions of law. 21 WHEREFORE, Petitioner prays: 22 1. That the Court issue alternative and peremptory writs of mandamus ordering 2 respondents County of Santa Cruz and Board of Supervisors of the County of Santa Cruz to: a. set aside their approval of the Sign and Hotel Ordinance Revisions related to County Code Chapters.10 and.11 and approval of a related amendment to General Plan Policy 2.16.7, approval of expanded exceptions from zoning standards and reduced setbacks for 27 garages related to County Code Chapter.10, and all other future County Code amendments 28 approved during the pendency of this action, ab initio; II
1 2 4 5 6 7 8 9 10 11 14 15 16 17 18 19 21 22 2 27 b. set aside the Notice of Exemption for the Sign Ordinance Revisions, the Negative Declaration for the Hotel Ordinance Revisions, the Addendum for the expanded exceptions. from zoning standards and reduced setbacks for garages, and other exemptions and environmental review for all other future code amendments approved during the pendency of this action ab initio; c. set aside any and all other actions approving or granting any permits, entitlements, or other approvals related to any of the above referenced amendments to the County Code unless and until Respondents have prepared, circulated, and considered a legally adequate environmental review document in any subsequent action taken to approve revisions to the County Code, including but not limited to, requiring implementation of all feasible mitigation measures to reduce environmental impacts, analyzing all feasible alternatives, issuing the findings required by law, and taking all actions necessary to bring its approvals into compliance with CEQA; and d. prepare and circulate an environmental review document, requiring implementation of all feasible mitigation measures to reduce the environmental impacts of the above referenced County Code revisions, and otherwise to comply with CEQA prior to taking any subsequent action or actions to approve any code revisions. 2. For preliminary and permanent injunctions staying the effect of Respondents' actions issuing a Notice of Exemption for the Sign Ordinance Revision, Negative Declaration for the Hotel Ordinance Revisions, the Addendum for the expanded exceptions from zoning standards and reduced setbacks for garages, and other exemptions and environmental review for all other future code amendments approved during the pendency of this action, pending the outcome of this proceeding.. For a writ of mandate directing Respondents to suspend any and all activity in furtherance of the above referenced County code revisions unless and until Respondents take all necessary steps to bring their actions into compliance with CEQA. 4 For a preliminary and permanent injunction directing Respondents to cease and 28 refrain from engaging in any and all activities in furtherance of the above referenced County
1 Code revisions unless and until Respondents take all necessary steps to bring their actions into 2 compliance with CEQA. 4 5 5 6. For Petitioner's costs and attorneys fees pursuant to CCP section 1021.5; and For such other and further relief as the Court finds proper. 6 7 8 9 10 11 14 15 16 17 18 19 21 22 2 27 28 March 18, 14 1 iam P. Parkin Attorney for Petitioner
VERIFICATION 2 4 5 6 7 8 9 10 1, Sandra Henn, am an authorized representative of The Aptos Council, a party to this action. I have read the foregoing Verified, and know the contents thereof. ' The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe them to be true. This verification was executed on March 18, 14 in Aptos, California. ~ 11 14 15 16 17 18 19 21 22 2 27 28
EXHIBIT A
JUNATHAN WITTWHR WILLIAM P. P ARKIN RYAN U, MORUNE Y March 19,14 VIA HAND DELIVERY Board of Supervisors County of Santa Cruz 701 Ocean Street, 5 th Floor Santa Cruz, CA 95060 RE: Notice oflntent to Commence Litigation Pursuant to the requirements of Public Resources Code Section 21167.5, this letter will serve as notice that The Aptos Council will commence litigation against the County of Santa Cruz. The litigation challenges the related to the County's January 28,14 and March 18, 14 approvals of revisions to the County Code, including those provisions related to hotel development, signs, exceptions to zoning standards and reduced setbacks for garages, and the County's environmental determinations for said revisions. The litigation has been commenced because the actions listed in the preceding paragraph do not comply with the requirements of the California Environmental Quality Act. truly yours, TWER PARKIN LLP WITTWER PARKIN L LP / 14 7 S. RIVER ST., STE. 2 2 1 / SANTA CRUZ, CA / 95060 / 81.429.4 55 WWW. WITTWERPARKIN. COM / LAWOFPICE@WITTWBRPARKIN.COM
1 PROOF OF SERVICE BY HAND 2 4 I certify and declare as follows: 5 I am over the age ofl8, and not a party to this action. My business address is 147 S. River 6 Street, Suite 221, Santa Cruz, CA 95060, Santa Cruz County. 7 On March 19,14 the following document: 8 1. NOTICE OF INTENT TO COMMENCE LmOATION 9 was hand delivered to:. 10 Clt:rk of the Board 11 Board of Supervisors County of Santa Cruz 701 Ocean Street, 5 th Floor Santa Cruz, CA 95060 14 I certify and declare under penalty of peijury that the forgoing is true and correct. 15 16 Dated: March 19, 14 17 18 19 21 22 2 27 28 1