SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION. Case No. ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Everett L. DeLano III (Calif. Bar No. 0 M. Dare DeLano (Calif. Bar No. 0 DELANO & DELANO W. Grand Avenue Escondido, California (0 - (0 - (fax Attorneys for Petitioner SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION MISSION HILLS HERITAGE, a non-profit organization, and SAVE OUR HERITAGE ORGANIZATION, a non-profit organization; Petitioners, vs. CITY OF SAN DIEGO, a public body corporate and politic, and DOES 1 through, inclusive, Respondents. Case No. VERIFIED PETITION FOR WRIT OF MANDATE (California Environmental Quality Act Mission Hills Heritage v. City of San Diego Page 1

2 INTRODUCTION 1. This action challenges the approvals by Respondent City of San Diego ( City or Respondent of the Uptown Community Plan Update, Project No. 0 ( Plan or Project, and the related failure to comply with the California Environmental Quality Act ( CEQA, Pub. Res. Code 000, et seq.. Among other things, the City failed to consider the environmental impacts associated with the Plan, failed to prepare and circulate required environmental analysis, and failed to consider and adopt feasible alternatives and mitigation.. Petitioners seek alternative and peremptory writs of mandate declaring the City s approvals invalid, and enjoining the City from taking steps to implement the approvals. PARTIES. Petitioner Mission Hills Heritage is non-profit public interest organization with a mission to preserve and protect the charm, character and historic resources of Mission Hills. Petitioner and its members have been injured as a result of Respondent s actions. Petitioner and its members use, enjoy and benefit from the resources affected by Respondent s actions. Respondent s actions adversely affect the cultural, historical, health and safety, recreational, vocational, aesthetic, scientific, environmental and economic interests of Petitioner and of Petitioner s members. The interests of Petitioner and Petitioner s members have been and will continue to be adversely affected by Respondent s unlawful actions. The relief sought in this Petition would redress Petitioner s and Petitioner s members injuries.. Petitioner Save Our Heritage Organization is non-profit public interest organization formed in to lead the San Diego community as a catalyst for historic preservation by raising awareness and appreciation of the region s rich architectural and cultural heritage. Petitioner and its members have been injured as a result of Respondent s actions. Petitioner and its members use, enjoy and benefit from the resources affected by Respondent s actions. Respondent s actions adversely affect the cultural, historical, health and safety, recreational, vocational, aesthetic, scientific, environmental and economic interests of Petitioner and of Petitioner s members. The interests of Petitioner and Petitioner s members have been and will continue to be adversely affected by Respondent s unlawful actions. The relief sought in this Petition would redress Petitioner s and Petitioner s members injuries. Mission Hills Heritage v. City of San Diego Page

3 . Respondent City of San Diego is a political subdivision of the State of California and a body corporate and politic exercising local government powers, as specified by the Constitution and the laws of the State of California.. Petitioners do not know the true names or capacities of the persons or entities sued herein as Does 1 through, and therefore sue these respondents by such fictitious names. Petitioners will amend the Petition to set forth the names and capacities of said respondents along with appropriate charging allegations when the same have been ascertained. PROJECT DESCRIPTION AND HISTORY. The Uptown planning area consists of,00 acres, bounded on the north by the hillsides of Mission Valley, on the east by Park Boulevard, and on the west and south by Old Town San Diego and Interstate.. The City has represented that the Plan was intended to update the community plan, and to bring the community planning into conformance with the City s General Plan and Climate Action Plan.. The City began efforts to update the community plan in 0. These included meetings, charrettes, and multi-day workshops to discuss issues important to community residents, and several residents and representatives of community groups participated. The discussions resulted in several specific recommendations regarding the community plan.. On or about June,, a draft plan and Draft Environmental Impact Report ( EIR regarding the Plan was made available for public review. The draft plan was inconsistent in several fundamental respects with the discussions and recommendations received during the meetings and workshop.. The Draft EIR noted that the Density Redistribution Alternative was the environmentally superior alternative while it met most of the project objectives.. Several comments, including from Petitioners, were received regarding the draft plan and Draft EIR. Comments noted the Plan s impacts, including impacts on historic resources, greenhouse gas emissions, air quality, community character, visual impacts, traffic, safety, parking, noise, lighting and other issues. Mission Hills Heritage v. City of San Diego Page

4 . Comments also noted the failure to analyze and adopt feasible mitigation and alternatives.. Comments also noted that the Plan was inconsistent with the City s adopted Climate Action Plan and with its adopted Recreation Element and Strategic Framework Element of the General Plan.. On October,, the Planning Commission met to consider the Plan and EIR. Testimony, including from Petitioner s members, was received regarding several concerns. Despite these concerns, the Planning Commission voted to recommend increasing the density provided in the Plan, and the Plan removed important protections for historic resources. The Plan approved by the Planning Commission was not studied or analyzed in the EIR. The Planning Commission s recommendations were also vague and ambiguous in several respects.. On November 1,, the community planning group Uptown Planners met to consider the Plan and EIR. Uptown Planners voted against the Plan, urging the City to adopt the Density Redistribution Alternative.. On or about November,, several documents were added to the City s website regarding the Plan and EIR. These documents included a -page errata to the EIR, a 1-page memo regarding additional potential changes to the EIR, and a -page supplemental memo addressing recommendations made by the Planning Commission.. On November,, the City Council met to consider the Plan and EIR. Testimony, including from Petitioner s members, was received regarding several concerns. Despite these concerns, the City Council voted to approve the Plan largely as recommended by the Planning Commission, while ignoring the concerns of residents and the recommendations of Uptown Planners. The Plan approved by the City Council was not studied or analyzed in the EIR.. Approvals included approving the EIR, findings, a Statement of Overriding Considerations, a Mitigation Monitoring and Reporting Program, a resolution amending the Uptown Community Plan and General Plan, ordinances amending the Land Development Code, and an ordinance rezoning land.. A Notice of Determination was filed on December,. /// /// /// Mission Hills Heritage v. City of San Diego Page

5 EXHAUSTION OF ADMINISTRATIVE REMEDIES AND INADEQUATE REMEDIES AT LAW. Petitioners exhausted all available administrative remedies, and objections to the Project have been presented orally and in writing to the City, as required by Public Resources Code Section. These include, but are not limited to, letters and oral comments presented during public hearings.. Petitioners have complied with the requirements of Public Resources Code Section. by mailing a written notice of commencement of this action to the City. A true and correct copy of that notice is attached hereto as Exhibit 1.. Petitioners have advised the City that Petitioner has elected to prepare the record of proceedings relevant to the approval of the Project, pursuant to Public Resources Code Section.. A true and correct copy of that notice is attached hereto as Exhibit.. Petitioners have complied with Public Resources Code Section. by filing a copy of the original petition with the California Attorney General. A true and correct copy of the notification is attached hereto as Exhibit.. Petitioners have no adequate remedy at law unless the Court grants the requested writ of mandate requiring the City to set aside its approval of the Project and the FEIR. In the absence of such remedy, the City s approvals will remain in effect in violation of State law, and Petitioners will suffer irreparable harm because of the significant adverse environmental impacts generated by the Project. FIRST CAUSE OF ACTION (FAILURE TO COMPLY WITH CEQA PROCEDURAL REQUIREMENTS. Petitioners incorporate by reference each of the allegations set forth in this Petition as if set forth herein in full.. The FEIR fails to meet the requirements for an objective analysis of impacts.. Respondents failed to recirculate the EIR after substantial changes were made. 0. Respondents failed to revise the EIR or prepare supplemental analysis after substantial changes were made to the Plan. Mission Hills Heritage v. City of San Diego Page

6 1. Respondents failed to follow procedures mandated by CEQA, including but not limited to, failing to notify responsible agencies, failing to provide proper notice for public involvement, failing to provide adequate information in the EIR and allow adequate opportunity for public input, and failing to provide adequate access to Plan-related documents. SECOND CAUSE OF ACTION (FAILURE TO ADEQUATELY CONSIDER ENVIRONMENTAL IMPACTS AS REQUIRED BY CEQA. Petitioners incorporate by reference each of the allegations set forth in this Petition as if set forth herein in full.. Respondents approval of the FEIR constituted a prejudicial abuse of discretion in that the FEIR is not in accord with CEQA, the CEQA Guidelines, and case law, but rather is legally inadequate and insufficient in numerous respects, including but not limited to, the following: a. The Project description is not stable and finite, and is unclear, inconsistent, skewed, inaccurate and incomplete in numerous respects; b. The FEIR fails to discuss the existing environmental conditions in the affected area, including but not limited to, conditions on the ground and current planning conditions; c. The FEIR fails to analyze adequately the significant adverse direct, indirect and cumulative effects of the Plan, including but not limited to, the following: i. Land use and community character impacts, including but not limited to, failing to address inconsistencies with City Municipal Code requirements, failing to address inconsistencies with applicable General Plan requirements, failing to address impacts to views, failing to address effects on the physical conditions as they existed at the time of the environmental analysis, and failing to address impacts to neighborhood and community character; ii. Visual quality and aesthetics impacts, including but not limited to, failing to address impacts to existing resources, failing to address impacts to neighboring homes, and failing to address impacts associated with lighting; iii. Transportation and traffic impacts, including but not limited to, failing to consider existing conditions, failing to address reasonably foreseeable impacts to Mission Hills Heritage v. City of San Diego Page

7 traffic and traffic safety (including construction traffic, increased traffic, additional delays, narrow roads, overcrowded roads and intersections, additional accidents, excessive speeding, reduced access, and shifts in travel routes, failing to address impacts associated with existing failing streets and roads, failing to consider all roadways (including regionally significant arterials, freeways, ramps, and interchanges, failing to recognize the Plan s impacts in relation to existing problems and failing streets and intersections, failing to address safety considerations associated with existing and Plan traffic, using inaccurate baseline data, failing to assess impacts on alternative transportation (such as public transit, pedestrian and bicycle usage, failing to address the Plan s impacts on area roads and intersections, using incorrect criteria to determine impacts, failing to address impacts associated with special events and special event traffic and parking, failing to consider sight distance, failing to consider impacts if mitigation is not fully funded, failing to address impacts to and from parking, failing to address impacts to pedestrian and bicycle traffic, relying upon unsupported models and data, using unsupported assumptions, failing to consider an appropriate share of mitigation for Plan impacts, failing to analyze adequately impacts to intersections, and failing to analyze all affected areas; iv. Biological resource impacts, including but not limited to, failing to address impacts to open space, failing to address impacts to sensitive habitats and plant and animal species, failing to consider impacts of biological resources below the soil, failing to consider post-construction impacts, failing to consider impacts to non-native grasslands, failing to address impacts of mitigation proposed, failing to address impacts to wildlife corridors and wildlife movement, failing to address impacts associated with lighting, failing to protect important resources, relying upon old and inadequate survey data, lack of a synthesized project analysis, failing to provide a regional context, and failing to address impacts to other species of concern; Mission Hills Heritage v. City of San Diego Page

8 v. Climate Change impacts, including but not limited to, failing to address reasonably foreseeable impacts, failing to adequately account for current and future Greenhouse Gas emissions, failing to provide a sufficient greenhouse gas reduction plan, failing to meet AB requirements, failing to ensure consistency with California Executive Order S--0, failing to use proper criteria to identify impacts to global warming, failing to comply with CEQA Guidelines Section 0., and failing to consider potential health impacts, including cancer risk; vi. Hydrological and water quality impacts, including but not limited to, failing to address reasonably foreseeable impacts and the introduction of pollutants to groundwater and surface water, failing to discuss post-construction impacts, and failing to consider criteria for mitigation to impacts; vii. Water supply impacts, including but not limited to, failing to address the shortage of water in the area, failing to demonstrate an adequate water supply, failing to consider long-term water needs and supply, failing to provide an adequate showing that water supply would be available, and failing to analyze the impacts of the Plan s use of and demand for water; viii. Air quality impacts, including but not limited to, failing to address reasonably foreseeable impacts (including the contribution of pollutants, grading related impacts, and the lack of attainment of air quality standards, failing to address construction impacts, failing to use proper criteria to identify impacts to air quality, and failing to consider potential health impacts, including cancer risk; ix. Noise impacts, including but not limited to, failing to consider existing noise conditions, failing to address reasonably foreseeable impacts, failing to consider all likely sources of noise, failing to address impacts caused by proposed mitigation, failing to apply applicable standards appropriately, failing to consider likely future noise sources, and relying upon unsupported models and data; Mission Hills Heritage v. City of San Diego Page

9 x. Historic and cultural resource impacts, including but not limited to, failing to consider all available resources, failing to consider the entire extent of the resource, relying upon improper methods of survey and analysis, failing to adequately analyze impacts, and inadequately disclosing resources and impacts; xi. Natural resource impacts, including but not limited to, failing to address soils and geology in the area; xii. Growth-related impacts, including growth inducement associated with the Plan. d. The FEIR fails to consider adequately the cumulative impacts of the Plan and other projects that are either existing, approved, planned, or reasonably foreseeable, including future road projects and other developments located both within and outside of Respondents physical boundaries; e. The FEIR illegally defers analysis of reasonably foreseeable impacts; f. The FEIR improperly segments the Plan, piecemealing or otherwise avoiding reasonably foreseeable impacts, and separately focusing on isolated parts of the whole; g. The FEIR fails to consider adequately impacts that narrow the range of beneficial uses of the environment, in violation of Section (e of the CEQA Guidelines; h. The FEIR fails to address adequately impacts that cannot be mitigated, including but not limited to, describing their implications and the reasons why the Plan is being proposed notwithstanding its adverse effects; i. The FEIR fails to consider adequately the significant irreversible effects of the Plan, in violation of Section (f of the CEQA Guidelines, including but not limited to, traffic circulation impacts; reduction in visual quality; increased erosion rates and the potential to exacerbate the loss of native top soils due to grading, compaction, and construction of impervious surfaces; and the change in the existing community character; j. The FEIR impermissibly defines the Plan objectives in a way to attempt to preclude discussion of reasonable alternatives; Mission Hills Heritage v. City of San Diego Page

10 k. The FEIR fails to analyze adequately a reasonable range of alternatives to the Plan, which could reduce substantially Plan related impacts, and to evaluate the comparative merits of the alternatives; l. The FEIR fails to analyze adequately feasible mitigation measures, fails to provide for mitigation for each environmental effect, illegally relies upon deferred mitigation measures, and fails to provide for effective and enforceable mitigation; and m. The FEIR fails to adopt a proper baseline, including presuming that development of the area is imminent, ignoring on-the-ground conditions, and using the previously approved community plan as a baseline.. Respondents failed to respond adequately to public comments. THIRD CAUSE OF ACTION (FAILURE TO ADOPT FEASIBLE MITIGATION MEASURES AND ALTERNATIVES REQUIRED BY CEQA. Petitioners incorporate by reference each of the allegations set forth in this Petition as if set forth herein in full.. Respondents failed to consider and adopt feasible alternatives, including but not limited to, alternatives requiring less impacts that meet some or all of the Plan objectives.. Respondents defined the Plan and its objections too narrowly, resulting in a narrowing of the consideration of alternatives.. Respondents failed to adopt the environmentally superior alternative.. Respondents failed to consider and adopt feasible mitigation measures, failed to mitigate for each environmental effect, illegally deferred mitigation, and failed to provide for effective and enforceable mitigation. FOURTH CAUSE OF ACTION (FAILURE TO ADOPT FINDINGS THAT ARE SUPPORTED BY EVIDENCE IN THE RECORD 0. Petitioners incorporate by reference each of the allegations set forth in this Petition as if set forth herein in full. 1. Respondents failed to adopt findings that are supported by substantial evidence in the record. Among other things, the findings assert that the Plan s mitigation measures adequately reduce Mission Hills Heritage v. City of San Diego Page

11 impacts below a level of significance without adequate evidence in the record to support such findings, and the findings assert that the Plan will be consistent with General Plan, Climate Action Plan, and other requirements where there is insufficient evidence to support such consistency findings. FIFTH CAUSE OF ACTION (FAILURE TO ADOPT A STATEMENT OF OVERRIDING CONSIDERATIONS THAT IS SUPPORTED BY EVIDENCE IN THE RECORD. Petitioners incorporate by reference each of the allegations set forth in this Petition as if set forth herein in full.. Respondents failed to adopt a Statement of Overriding Considerations that is supported by substantial evidence in the record despite the Plan s significant environmental impacts. SIXTH CAUSE OF ACTION (VIOLATION OF GENERAL PLAN AND CLIMATE ACTION PLAN. Petitioners incorporate by reference each of the allegations set forth in this Petition as if set forth herein in full.. The Plan violates and is inconsistent with the adopted Recreation Element and Strategic Framework Element of the City s General Plan.. The Plan violates and is inconsistent with the adopted Climate Action Plan, including Action. of the Climate Action Plan. WHEREFORE, Petitioners pray for relief as follows: PRAYER FOR RELIEF A. For a temporary restraining order, preliminary injunction and/or permanent injunction enjoining Respondents from taking any steps to further the Plan until lawful approval is obtained from Respondents after the preparation and consideration of adequate environmental analysis, with adequate notice to interested parties, adoption of findings supported by substantial evidence, and compliance with applicable requirements; B. For alternative and peremptory writs of mandate, vacating approval of the FEIR and all aspects of the Plan, and enjoining Respondents from taking any steps to further the Plan until lawful approval is obtained from Respondents after the preparation and consideration of adequate environmental Mission Hills Heritage v. City of San Diego Page

12 analysis, with adequate notice to interested parties, adoption of findings supported by substantial evidence, and compliance with applicable requirements; C. For costs of suit; D. For reasonable attorneys fees; and E. For such other and further relief as the Court deems just and proper. DATED: January, Respectfully Submitted, DELANO & DELANO By: s//everett L. DeLano III Everett L. DeLano III Attorneys for Petitioners Mission Hills Heritage v. City of San Diego Page

13 VERIFICATION I have read the foregoing Verified Petition for Writ of Mandate and know its contents. I am a party to this action. The matters stated in it are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters 1 believe them to be true. X I am an officer of Mission Hills Heritage, 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 have read the foregoing document(s. I am informed and believe and on that ground allege that the matters stated in it are true. I am one of the attorneys for a party to this action. Such party is absent from the County San Diego, California, where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. I have read the foregoing document(s. I am informed and believe that on that ground allege that the matters stated in it are true. Executed on January, at San Diego, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Mission Hills Heritage v. City of San Diego Page

14 EXHIBIT 1

15 ?. ~ ~ DELANO & DELANO January, VIA & US. MAIL Elizabeth Maland, City Clerk City of San Diego C St., nd Floor San Diego, CA 01 Re: Notice oflntention to Commence Action Under the California Environmental Quality Act Dear Ms. Maland: Please take notice that Mission Hills Heritage and Save Our Heritage Organization intend to commence an action in California Superior Court, alleging, among other things, violations of the California Environmental Quality Act ("CEQA" against the City of San Diego to challenge the approvals ofthe Uptown Community Plan Update ("Plan", Project No. 0, including approval of the EIR, fmdings, a Statement of Overriding Considerations, a Mitigation Monitoring and Reporting Program, a resolution amending the Uptown Community Plan and General Plan, ordinances amending the Land Development Code, and an ordinance rezoning land. Among other things, the petition will seek to vacate the approvals of the Plan, and to enjoin the City from taking any further steps to implement the approvals. If the City would like to discuss these concerns and their possible resolution, please contact the undersigned immediately. Thank you for your attention to this matter.,..-..., \ 0\ Vt Vt I I Vt Vt... 0\ 0\ Vt N

16 EXHIBIT

17 Everett L. DeLano III (Calif. Bar No. 0 M. Dare DeLano (Calif. Bar No. 0 DELANO & DELANO W. Grand Avenue Escondido, California (0 - (0 - (fax Attorneys for Petitioner SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION MISSION HILLS HERITAGE, a non-profit organization, and SAVE OUR HERITAGE ORGANIZATION, a non-profit organization; ~ Petitioners, vs. CITY OF SAN DIEGO, a public body corporate and politic, and DOES 1 through, inclusive, Respondents l l Case No. NOTICE OF ELECTION TO PREP ARE ADMINISTRATIVE RECORD l (California Environmental Quality Act By this notice, Petitioner gives notice that Petitioner elects to prepare the administrative record in the above-entitled action. DATED: January, Respectfully Submitted, DELANO & DELANO -~~ v~e~re~tt~~r~~~e~~-~~ By: Attorneys for Petitioner o~i~n~~-- Mission Hills Heritage v. City of San Diego Notice of Election to Prepare Record Page 1

18 EXHIBIT

19 I, the undersigned, declare: PROOF OF SERVICE Mission Hills Heritage v. City of San Diego 1... I am over the age of years and not a party to this action. I am employed in the County of San Diego, California, in which county the within mentioned service occurred. My business address is W. Grand Avenue, Escondido CA. I am familiar with this office's normal business practice for collection and processing of correspondence for mailing with the U.S. Postal Service. That practice is to deposit correspondence with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. On January,, I served a copy of VERIFIED PETITION FOR WRIT OF MANDATE to the following by the following means: California Attorney General Service Deputy 00 South Spring St. Los Angeles, CA 00 US Mail I declare under penalty of perjury that the foregoing is true and correct. Dated this Wednesday, January 0, at Escondido, California, Proof of Service - 1