SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF RIVERSIDE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Jonathan Evans (SBN CENTER FOR BIOLOGICAL DIVERSITY PMB, 0 Sunset Blvd. Los Angeles, CA 00 Telephone: ( -1 jevans@biologicaldiversity.org John Buse (SBN CENTER FOR BIOLOGICAL DIVERSITY S. Dorchester Ave., No. Chicago, IL 0 Telephone: ( -1 jbuse@biologicaldiversity.org Attorneys for Petitioners CENTER FOR BIOLOGICAL DIVERSITY and SIERRA CLUB, Petitioners, vs. RIVERSIDE LOCAL AGENCY FORMATION COMMISSION, and DOES 1-, Respondents. SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY OF DESERT HOT SPRINGS, LANDMARK PROPERTIES US INC, MICHAEL CROSBY, and DOES 1-0, Real Parties in Interest. IN AND FOR THE COUNTY OF RIVERSIDE Case No. PETITION FOR WRIT OF MANDATE [Code Civ. Proc. ; Pub. Res. Code 00, et seq. (California Environmental Quality Act; Govt. Code 000 et seq. (Cortese-Knox- Hertzberg Local Government Reorganization Act of 00].

2 INTRODUCTION 1. In this action, Petitioners Center for Biological Diversity and Sierra Club (the Petitioners challenge the approvals of Respondents Riverside Local Agency Formation Commission ( LAFCO in connection with the Palmwood Sphere of Influence Amendment (addition to the City of Desert Hot Springs and Reorganization to Include Concurrent Annexation 0 to the City of Desert Hot Springs and Detachment from the Riverside County Waste Resources Management District (LAFCO 0-1- (the Annexation Project. The Annexation Project constitutes the annexation of, acres to the City of Desert Hot Springs from Riverside County at the intersection of Indian Avenue and Highway on the far northwestern fringe of the Coachella Valley. The stated purpose of the Annexation Project is to allow the conversion of virtually undeveloped fragile desert open space to thousands of residential units, golf courses, over one million square feet of commercial development, a 00 room hotel, and a commercial multi-use amphitheater ( underlying project or Palmwood project approved by the City of Desert Hot Springs on December, 0. Real Party in Interest Michael Crosby proposed the Annexation of the site on behalf of the City of Desert Hot Springs to provide the City with jurisdiction of lands that were located within Riverside County.. The Annexation Project jeopardizes the Coachella Valley Multiple Species Habitat Conservation Plan ( MSHCP because it would result in the destruction of important conservation areas and wildlife habitat relied upon by the Coachella Valley MSHCP. In the planning stages since 1, the Coachella Valley MSHCP provides a tool to help balance conservation of irreplaceable natural wildlife habitat with economic development, streamlines permitting and development of private development and public infrastructure within the region, and creates a regional development blueprint for the Coachella Valley. The ecological importance of the site for the Coachella Valley MSHCP is demonstrated by the evidence of seven California species of special concern, a federally endangered plant, and the federally endangered desert tortoise found on the site.

3 The Annexation Project does not provide for the adequate provision of municipal services to the City for police, fire, roads, library, recreation and park, and street maintenance services. The Annexation Project creates a disjointed service provision pattern which would serve to increase the cost of services for the Annexation Project without providing adequate fiscal resources for a financially troubled City. In 0 the City emerged from Chapter bankruptcy, which was filed in December 01. In August 0, the City Council approved a reduction in force by % in order to reduce expenditures by approximately $. million. These staff reductions included service provision personnel and five police officers. Even with this change, the FY 0 General Fund budget is still showing a deficit of approximately $1. million, covered through undesignated reserves. Evidence presented to LAFCO demonstrates that the Annexation Project only worsens this deficit.. On May, 0, LAFCO filed a Notice of Determination for LAFCO 0-1-, stating that the annexation was approved by LAFCO as a Responsible Agency based on the Environmental Impact Report prepared by the City of Desert Hot Springs as Lead Agency.. As described in detail below, LAFCO s actions in approving the Annexation Project violated provisions of California Environmental Quality Act ( CEQA (Public Resources Code 00 et seq. and the CEQA Guidelines (California Code of Regulations, title 1, 00 et seq., as well as the Cortese-Knox-Hertzberg Local Government Reorganization Act of 00 ( Cortese-Knox-Hertzberg Act or Act, (Government Code section 000, et seq., which requires that LAFCO s actions comply with CEQA. Petitioners seek a determination from this Court that the Annexation Project as approved is invalid and void under CEQA and the Cortese-Knox-Hertzberg Act.. LAFCO s approval of the Annexation Project constituted a prejudicial abuse of discretion in that LAFCO failed to proceed in the manner required by law and failed to act on the basis of substantial evidence. In particular, the findings and statement of overriding considerations are not supported by substantial evidence in light of the significant environmental effects in the record including the EIR s failure to adequately disclose and

4 analyze environmental impacts, the existing environment, mitigation measures, alternatives, and properly conform to public disclosure process. In addition, a subsequent or supplemental EIR must be prepared because new information and changed circumstances has been submitted after the EIR was certified. Thus, LAFCO relied on inadequate environmental review documents when approving the Annexation Project. Because LAFCO is responsible for considering the effects of approving the annexation, its reliance on an EIR that does not evaluate the significant environmental impacts of the Annexation Project violates CEQA. Public Resources Code 0.1(d. The Petitioners accordingly request that this Court issue a writ of mandate under Code of Civil Procedure sections directing LAFCO to vacate and set aside its approval of the Annexation Project. These claims are based on the following allegations: JURISDICTION AND VENUE. This Court has jurisdiction over this action pursuant to sections, 1, and of the California Code of Civil Procedure, sections. of the Public Resources Code, and sections 000 et seq. of the California Government Code.. Jurisdiction pursuant to section of the California Code of Civil Procedure is mandated because a LAFCO annexation determination is quasi-legislative. Sierra Club v. San Joaquin Local Agency Formation Com. (1 1 Cal. th,. Mandamus will lie to challenge an annexation before it is completed and final. Bozung v. Local Agency Formation Com. (1 Cal. d, 1-.. Venue for this action properly lies in the Riverside County Superior Court because Respondent City of Desert Hot Springs and the proposed site of the Annexation Project are located in Riverside County. Respondent LAFCO is the local agency formation commission for the County of Riverside. THE PARTIES. Petitioner CENTER FOR BIOLOGICAL DIVERSITY is a non-profit, public interest corporation with over,000 members and offices in Joshua Tree, San Francisco, Los

5 Angeles and San Diego, California; Tucson and Phoenix, Arizona; Pinos Altos, New Mexico; Portland, Oregon; and Washington, D.C. The Center and its members are dedicated to protecting the diverse native species and habitats of western North America through science, policy, education, and environmental law. Recognizing that global warming from society s emission of greenhouse gases is one of the foremost threats to the Center s members and their recreational, spiritual, vocational, aesthetic and other interests in the earth s environment, biodiversity, and public health, the Center s Climate, Air, and Energy Program works to reduce United States greenhouse gas emissions and promote sound conservation strategies in order to protect these interests. Center members and staff reside and own property in Riverside County, and use publicly accessible portions of the Annexation Project site and surrounding areas for recreational, wildlife viewing, scientific, and educational purposes. Center members presented both oral and written comments during the administrative hearings on the matters being challenged in this petition. The Center and its members are directly, adversely and irreparably affected, and will continue to be prejudiced by the Annexation Project and its components, as described herein, until and unless this Court provides the relief prayed for in this petition. Petitioner SIERRA CLUB is a national nonprofit organization of over,000 members dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible use of the earth s ecosystems and resources; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. Over 1,00 Sierra Club members reside in California. The Sierra Club has an interest in calling attention to urban sprawl and its impacts when such development threatens our environment, our health, and our quality of life. Members of the Sierra Club presented both oral and written comments during the administrative hearings on the matters being challenged in this petition. Individual Sierra Club members use and enjoy publicly accessible lands in and adjacent to the Annexation Project area for environmental, recreational, and aesthetic purposes. In addition, the Sierra Club and its members would derive environmental, recreational, health, and aesthetic benefit

6 from alternative uses of the Annexation Project area. These interests of the Sierra Club and its members have been, are, and will be directly, adversely, and irreparably affected by Respondents failure to comply with the requirements of CEQA and other applicable laws in certifying the EIR and approving the Annexation Project, and will continue to be prejudiced by Respondents unlawful actions until and unless this Court provides the relief prayed for in this petition.. Respondent RIVERSIDE LOCAL AGENCY FORMATION COMMISSION is the quasi-legislative body that is statutorily authorized to regulate, through approval or denial, the boundary changes proposed by other public agencies or individuals. Any proposal to add land to a city or special district (annexations, create a new city or special district (incorporation or formation, remove land from a city or special district (detachment, consolidate, merge, or dissolve cities or special district in Riverside County must be reviewed and approved by LAFCO. 1. Real Party CITY OF DESERT HOT SPRINGS is a local governmental agency and political subdivision of the State of California charged with the authority to regulate and administer land use activities within its boundaries, subject at all times to the obligations and limitations of all applicable state, federal, and other laws, including CEQA and the CEQA Guidelines. The City also has the authority to approve land use development in and pre-zone areas that it intends to annex. The City is the CEQA lead agency for the EIR prepared for the Annexation Project.. Real Party in Interest LANDMARK PROPERTIES US INC is the applicant for the entitlements that constitute the underlying project and Annexation Project. LANDMARK PROPERTIES US INC has been indicated as a recipient of an approval by the City and Respondent on Annexation Project approvals. 1. Real Party in Interest MICHAEL CROSBY is the named applicant for the Annexation Project. He is also President, Secretary, and Director of LANDMARK PROPERTIES US, INC.

7 Based on the Real Parties status as the identified applicant and developer, and on Petitioner s information and belief, Real Parties adequately represent the interests of any and all other non-joined parties in the Project. 1. The Petitioners are currently unaware of the true names and capacities of Respondents Does 1 through, inclusive, and therefore sue those parties by such fictitious names. Does 1 through, inclusive, are agents of the LAFCO, City, state, or federal government who are responsible in some manner for the conduct described in this petition, or other persons or entities presently unknown to the Petitioners who claim some legal or equitable interest in the Annexation Project that is the subject of this action. The Petitioners will amend this petition to show the true names and capacities of Does 1 through when such names and capacities become known. 1. The Petitioners are currently unaware of the true names and capacities of Real Parties in Interest, Does 1 through 0, inclusive. Does 1 through 0, inclusive, are persons or entities presently unknown to the Petitioners who claim some legal or equitable interest in the Annexation Project that is the subject of this action. The Petitioners will amend this petition to show the true names and capacities of Does 1 through 0 when such names and capacities become known. GENERAL ALLEGATIONS 1. The Annexation consists of, acres of mostly undeveloped open space at the southern base of the Little San Bernardino Mountains on the far northwestern fringe of the Coachella Valley. The Palmwood Annexation Project consists of the Palmwood Sphere of Influence Amendment (addition to the City of Desert Hot Springs and Reorganization to Include Concurrent Annexation 0 to the City of Desert Hot Springs and Detachment from the Riverside County Waste Resources Management District (LAFCO The site abuts public lands held by the Bureau of Land Management to the north and northeast and is largely disconnected from existing developed areas within the City of Desert Hot Springs. Surrounding land uses include the following: undeveloped open space

8 in the Bureau of Land Management Big Morongo Canyon Area of Critical Environmental Concern to the north and northeast that is adjacent to Joshua Tree National Park; undeveloped land and low density residential development to the west in the jurisdiction of Riverside County; and residential development to the southeast and undeveloped open space to the south within City s jurisdiction.. The underlying project includes the combined Palmwood Specific Plan and Palmwood Outparcels project, which together propose, homes, over 1,000,000 square feet of commercial space, a 00 room hotel, a commercial amphitheater, and golf courses. At completion, the underlying project would add over,00 new residents to Desert Hot Springs, increasing the population of the city by 0% based on 00 census data. 1. Specifically, the underlying project includes a Specific Plan, proposed amendments to the City s Sphere of Influence, the proposed annexation of 1, acres into the City, amendments to the City s General Plan and Zoning Map to provide for the Palmwood Specific Plan and Palmwood Outparcels land uses, approval of Vesting Tentative Tract Maps 1, 1 and 1 to subdivide the Specific Plan site, approval of the conceptual grading plan, and approval of roadway plans, park facilities, and water facilities. The underlying project itself proposes up to, residential dwelling units, 0 acres of General Commercial/Mixed Use Residential to include a multiple-use amphitheater, acres of Commercial Resort Visitor to include a proposed 00 unit hotel, acres of golf courses, acres of Public Utility as floodway designations, or water district property, and acres of undeveloped open space in the mountainous portion of the property. Coachella Valley MSHCP. The underlying project proposes development on substantial portions of areas designated for conservation under the Coachella Valley MSHCP. The project will limit the allowed take by other jurisdictions of species covered by the Coachella Valley MSHCP and threatens the viability of the Coachella Valley MSHCP. In the planning stages since 1, the Coachella Valley MSHCP provides a tool to help balance conservation of irreplaceable natural

9 habitat and wildlife with economic development, streamlines permitting and development of private development and public infrastructure within the region, and creates a regional development blueprint for the Coachella Valley. The Coachella Valley MSHCP was developed by federal, state, regional, and local agencies to grant incidental take of threatened or endangered species under the federal Endangered Species Act and State California Endangered Species Act.. Between February and June of 0 1 of 1 Permittees approved the Coachella Valley MSHCP. The City of Desert Hot Springs City Council was the sole jurisdiction to reject take authority under the Coachella Valley MSHCP. By a letter dated November, 0, the City of Desert Hot Springs withdrew its permit application as a potential participant in the Coachella Valley MSHCP.. A recirculated Coachella Valley MSHCP removing Desert Hot Springs has been completed and is currently undergoing environmental review and public comment. The recirculated Coachella Valley MSHCP has already cost approximately $1 million dollars in planning and consulting and threatens to impact the viability and success of the MSHCP. Letters from agencies that developed the Coachella Valley MSHCP concluded that the impacts of the underlying project and Annexation Project, as proposed, would adversely affect the implementation of the Coachella Valley MSHCP and recommended denial of the Annexation Project. Palmwood Environmental Impact Report. The City prepared a Draft Environmental Impact Report ( EIR for the underlying project and circulated it for public review and comment for days beginning on October, 0 and ending on December, 0. According to the Draft EIR, the underlying project would result in significant unavoidable environmental impacts to air quality, aesthetics, and biological resources. Following circulation of the Draft EIR, other agencies, including the U.S. Fish and Wildlife Service, California Department of Fish and Game and County of Riverside, and members of the public,

10 including Petitioners, provided comments on the Draft EIR. These comments contained, among other things, objections to the inadequate mitigation proposed for biological impacts, the failure to adopt feasible mitigation measures for biological, aesthetic, and traffic impacts, the failure to consider feasible alternatives, and the underlying project s inconsistency with the Coachella Valley MSHCP.. Biological surveys found a number of protected animals and plants including: Nelsons Bighorn sheep, burrowing owls, Palm Springs pocket mouse, Palm Springs/roundtailed Ground Squirrel, Le Conte's thrasher, loggerhead shrike (California designated species of special concern; Triple-ribbed milk vetch (federally endangered species; and Little San Bernardino Mountains linanthus (federal species of special concern under the Coachella Valley MSHCP. The site is also habitat for the desert tortoise (federally endangered species and evidence of the tortoise was found on the site. The underlying project will also result in significant indirect impacts to natural communities that rely on the groundwater aquifer for the underlying project, especially mesquite hummocks and desert fan palm oasis.. Substantial portions of the site have been designated for conservation by federal, state, and local agencies. The underlying project will develop areas adjacent and within portions of the Big Morongo Canyon Area of Critical Environmental Concern designated by the BLM, and Upper Mission Creek Big Morongo Conservation area under the Coachella Valley MSHCP.. Four different natural washes, Big Morongo, Dry Morongo, Mission Creek, and Midway Canyon, flow across the property. While dry under most conditions, the washes can carry large flows and sand sources after major storm events; the 0-year flood plain for these washes covers substantial portions of the site. The development footprint will place habitable structures within the existing 0-year flood hazard area as mapped by the Federal Emergency Management Agency.. The underlying project will generate 1,000 daily automobile trips and would result in significant air quality impacts even if the air mitigation measures proposed in the EIR

11 and adopted by the City are implemented. 0. Due to the significant impacts to aesthetic, biological, and air quality resources numerous federal, state and local organizations, and citizens expressed grave concerns over the underlying project and encouraged further mitigation. Despite the permanent and cumulative impacts, the City rushed the EIR through the CEQA process. Correspondence in City files on the underlying project show that the developer, Landmark Properties US, Inc, worked with the City to hasten approval of the underlying project. Desert Hot Springs officials admitted at public meetings to placing the underlying project on a fact track in order to approve the underlying project before a revised version of the Coachella Valley MSHCP could be approved. The City responded to over 1 pages of comments from 1 different federal, state, and local agencies on the DEIR over the weekend between Friday December th and Monday December th. Revisions were made to responses after December th and final responses to comments were completed on December, The City scheduled special meetings of the Planning Commission and City Council to consider the underlying project after the City offices were closed for the Christmas holiday. On December 1, 0, the City scheduled back-to-back special meetings by the Planning Commission and City Council regarding the underlying project. The public presented testimony that was opposed to the underlying project because of its significant environmental impacts, the haste of underlying project review and approval, and the City s decision to schedule the meeting on the eve of the Christmas holiday. The City Council continued the meeting until Friday December, 0 at :00 P.M.. On December, 0 the City Council by a vote of four to one approved the underlying project, certified that the Final EIR for the underlying project had been prepared in compliance with CEQA, adopted findings in support of the underlying project, adopted a Mitigation Monitoring and Reporting Program for the underlying project, approved a request for the Riverside Local Agency Formation Commission to approve annexation of the underlying project, and approved an ordinance of pre-zoning in accordance with the Palmwood

12 Specific Plan.. In comments at City meetings and to the public, City officials stressed that the City hoped to approve the underlying project, obtain LAFCO approval of the annexation, and sign the accompanying agreements with developers in advance of implementation of the Coachella Valley MSHCP. On or about December, 0 Mayor Pro Tem Mary Stephens publicly stated the following regarding the underlying project: "We should have taken more time, but we don't have time. This land may be taken by the MSHCP." In coverage of the vote by the Press Enterprise, Mayor Alex Bias stated that he voted against the approval because he was concerned about the City s haste in approving the underlying project without fully addressing certain issues before it was sent to LAFCO.. Notably, although under the CEQA Guidelines, a responsible agency should review and comment on environmental review documents for projects that the responsible agency will later be asked to approve, CEQA Guidelines, LAFCO did not comment on the EIR for the underlying project during the comment period and no comments from LAFCO were included in the Response to Comments. Petitioners are informed, and on that basis allege, that LAFCO did not provide comments on the underlying project or on the environmental review documents for the underlying project to the City at any time.. On December, 0, the City filed a Notice of Determination for the underlying project stating that the underlying project will have a significant effect on the environment, that an EIR was prepared for the underlying project pursuant to CEQA, that mitigation measures were made a condition of approval for the underlying project, that a Statement of Overriding Considerations was adopted for the underlying project, and that findings were made pursuant to CEQA.. On January, 0, the Center for Biological Diversity and the Sierra Club filed a petition for writ of mandate against the City in Riverside County Superior Court, challenging the City s certification of the Environmental Impact Report and approval of the underlying project. Center for Biological Diversity et al. v. City of Desert Hot Springs, et al., 1

13 Case No. RIC. This action is currently pending. Palmwood LAFCO Annexation. The Palmwood Annexation consists of the Palmwood Sphere of Influence Amendment (addition to the City of Desert Hot Springs and Reorganization to Include Concurrent Annexation 0 to the City of Desert Hot Springs and Detachment from the Riverside County Waste Resources Management District (LAFCO The Annexation Project provides for the annexation of, acres to the City of Desert Hot Springs from Riverside County at the intersection of Indian Avenue and Highway. The stated purpose of the Annexation is to permit the development of the underlying project approved by the City of Desert Hot Springs including, residential units, golf courses, over one million square feet of commercial development, commercial multi-use amphitheater, and a 00 room hotel. Real Party Michael Crosby proposed the Annexation of the site on behalf of the City of Desert Hot Springs to provide the City with jurisdiction of lands that were located within Riverside County.. On or about February, 0 LAFCO sent a notice of the opportunity to comment on the Palmwood annexation to federal, state, and local organizations.. LAFCO received numerous comments from public agencies, environmental and citizens organizations, and individual citizens critical of the Annexation Project and underlying environmental analysis. The agencies and organizations that overwhelmingly recommended denial of the Annexation Project because of its impacts on the environment and recognized regional conservation plans included U.S. Fish and Wildlife Service, California Department of Fish and Game, Coachella Valley MSHCP Core Scientific Advisory Committee, Center for Biological Diversity, Sierra Club, Endangered Habitats League, and Friends of Big Morongo Canyon Preserve. LAFCO received comments from several agencies critical of the Annexation Project because it was out of compliance with Coachella Valley MSHCP including the County of Riverside-Environmental Programs Department, and the Coachella Valley Conservation Commission. Several agencies submitted comments noting

14 that the environmental review and analysis of the Annexation Project was inadequate including the County of Riverside-Transportation Department & Planning Department, and the Bureau of Land Management. 0. LAFCO staff, Riverside County Board of Supervisors, and environmental organizations noted that the Annexation cannot provide for the adequate provision of municipal services for police, fire, roads, library, recreation and park, and street maintenance services provided by the City. The Annexation Project creates a disjointed service provision pattern which would serve to increase the cost of services for the Annexation Project without providing adequate fiscal resources for the City to serve the needs required by the Annexation Project. In 0 the City emerged from Chapter bankruptcy, which was filed in December 01. In August 0, the City Council approved a reduction in force by % in order to reduce expenditures by approximately $. million. These staff reductions included service provision personnel and five police officers. Even with this change, the FY 0 General Fund budget is still showing a deficit of approximately $1. million, covered through undesignated reserves. 1. The Staff Report prepared by LAFCO for the Annexation Project recommended denial of the project [b]ased on concerns on service provision for this project and upon concerns on the regional impact upon the Coachella Valley Multi Species Habitat Conservation Plan (CVMSHCP or HCP. Specifically, the Staff Report recognized that there are some significant service concerns associated with this proposal especially in regards to Police, Roads, Library and Recreation services provided by the City. The annexation creates a dis-jointed service provision pattern which would only serve to increase cost of service provision. Additionally, the Staff Report emphasized the negative costs associated with the Annexation Project s impacts on the Coachella Valley MSHCP that were not analyzed during the approval process for the underlying project or the Annexation Project including delayed projects, federal and state grant monies, impact fees and loss of habitat which may not be able to be mitigated in any other location. The Staff Report also emphasized the costs associated 1

15 with time consuming revisions of the Coachella Valley MSHCP resulting from the Annexation Project.. The underlying project and Annexation Project have the potential to negatively impact the federally and state listed Coachella Valley fringe-toed lizard ( fringe-toed lizard and its associated habitat. Comments submitted by the California Department of Fish and Game and the U.S. Fish and Wildlife Service noted that the Annexation will impact the sand transport system relied upon by the fringe-toed lizard. Prior to approval of the Annexation LAFCO produced a staff report on the Annexation Project recognizing that species not found within the Palmwood and out parcels annexation could be affected by the proposed development. One such species is the Coachella Valley Fringed-Toed Lizard which inhabits sand dunes located in the Willow Hole Conservation area [T]he source of sand sediments (mountain areas and the sand transport system (Mission Creek and Little Morongo washes is found within the Palmwood project area. Disruption of the source materials or the sand transport through the washes could have severe impacts upon the habitat of the lizard. The underlying project would result in the conversion of washes through development, channelization, and placement of soil cement along washes altering the necessary transport of sand sources downstream to existing reserves relied upon by the fringe-toed lizard. Impacts to the fringe-toed lizard, its habitat, or ecological processes supporting the fringe-toed lizard, however, were not analyzed during the CEQA process for the underlying project or Annexation Project.. On April, 0 LAFCO approved the annexation of the subject property from the County of Riverside to the City based upon the CEQA review for the Palmwood project and pre-annexation performed by the City. LAFCO has sole and final approval authority over aspects of the Annexation Project necessary for the Annexation Project to proceed including the sphere of influence amendment, concurrent annexation, and detachment from the Riverside County Waste Resources Management District.. On May, 0, LAFCO filed a Notice of Determination ( NOD for 1

16 LAFCO 0-1-, stating that the annexation was approved by LAFCO as a Responsible Agency based on the Environmental Impact Report prepared by the City of Desert Hot Springs as Lead Agency. The NOD found that the Annexation Project will have a significant effect on the environment, that an EIR has been prepared for the underlying project, that mitigation measures were adopted and made a condition of approval of the underlying project, and that a Statement of Overriding Considerations was adopted for the underlying project. Notably, the NOD did not find that all potentially significant effects(a [sic] have been adequately analyzed in an earlier EIR and did not find that NOTHING FURTHER IS REQUIRED for the Annexation Project and underlying project (emphasis in original.. On May, 0 the California Department of Fish and Game submitted a letter to the Coachella Valley Association of Governments stating that the Palmwood Annexation to the City of Desert Hot Springs approved by LAFCO may result in the expiration of the fringetoed lizard consistency determination permitting incidental take of the fringe-toed lizard because of delays encountered in the implementation of the Coachella Valley MSHCP. As a result of expiration of the fringe-toed lizard consistency determination and failure to implement the Coachella Valley MSHCP, individual projects that may result in take of Coachella Valley fringe-toed lizards would need to apply for a California Endangered Species Act (CESA Incidental Take Permit.. Petitioners are informed, and on that basis allege, that on May, 0 the Coachella Valley Conservation Commission and County of Riverside both independently filed requests for reconsideration of the April, 0 Palmwood Annexation approval by LAFCO. LAFCO is scheduled to hear the request for reconsideration on July 1, 0. Petitioners are informed, and on that basis allege, that LAFCO has not yet approved findings or executed resolutions approving the Palmwood Annexation. The resolutions cannot become completed or final until the July 1, 0 reconsideration hearing is completed. Nonetheless, the LAFCO NOD filed on May, 0 commenced the CEQA statute of limitations for the LAFCO action. In addition, Petitioners are informed based on telephonic conversation with LAFCO legal 1

17 counsel on May 1, 0, and on that basis allege that the requests for reconsideration do not automatically toll the statute of limitations for this action. Petitioners therefore file this action to preserve any legal rights and remedies.. As a result of LAFCO s approval of the Annexation Project, the Petitioners will suffer great and irreparable environmental harm as described herein. Petitioners have no adequate remedy at law for this irreparable harm.. The Petitioners have exhausted all administrative remedies by submitting written comments to LAFCO prior to the Annexation Project s approval and appearing at the public hearings on the Annexation Project to request compliance with CEQA and the Cortese- Knox-Hertzberg Act. All issues raised in this petition were raised before Respondents by the Petitioners, other members of the public, or public agencies.. The Petitioners have complied with Public Resources Code section. by prior service of a notice upon Respondents indicating its intent to file this Petition. Proof of Service of this notification, with the notification, is attached as Exhibit A. 0. Petitioners have complied with the requirements of Public Resources Code section. by concurrently filing a request concerning preparation of the record of administrative proceedings relating to this action. 1. This petition is timely filed in accordance with Public Resources Code section and CEQA Guidelines section 1.. Respondents have abused their discretion and failed to act as required by law in the following ways: FIRST CAUSE OF ACTION VIOLATION OF CEQA (Public Resources Code 00, et seq. Failure to Proceed in the Manner Required by Law and Failure to Act on the Basis of Substantial Evidence. Petitioners hereby incorporate by reference each and every allegation set forth above.. CEQA is designed to ensure that the long-term protection of the environment 1

18 be the guiding criterion in public decisions. CEQA accomplishes its purpose by requiring public agencies to determine and to disclose to the public detailed information about the effect that the proposed project is likely to have on the environment, to list ways in which the effects of the project might be minimized and to indicate alternatives to the project. The term project applies to the whole of an action which has the potential for resulting in a direct or reasonably foreseeable indirect change in the environment, including, for example, both activities undertaken directly by a public agency and activities undertaken by private persons with public agency approval. The CEQA analysis should be prepared as early in the planning process as possible in order to enable environmental considerations to influence project and program design.. The Cortese-Knox-Hertzberg Act requires that LAFCO comply with CEQA. See e.g. Government Code section (b. The Act also states that it is LAFCO s purpose to discourage sprawl, protect open space and prime agricultural lands, and promote orderly and efficient planning and growth. See e.g. Gov. Code 001, 01 and.. CEQA requires that each public agency shall mitigate or avoid the significant effects on the environment that it approves whenever feasible, including the responsible agency s requirement to mitigate and avoid the effects of those activities it is required by law to approve. Public Resources Code. Each public agency, including responsible agencies, are required to adopt necessary findings if a project has significant effects on the environment that can be mitigated, avoided, or such mitigation or avoidance measures are infeasible. Public Resources Code 1, CEQA Guidelines. Findings made by each public agency must be based on substantial evidence in the record. Public Resources Code 1., CEQA Guidelines. In approving the project LAFCO did not make findings related to the Annexation Project or the significant effects on the environment. LAFCO s failure to make findings under CEQA in approving the Annexation Project with significant effects on the environment that could have been mitigated or avoided through its statutory authority is a prejudicial abuse of discretion and cannot be supported by substantial evidence in 1

19 the record.. LAFCO s approvals of the Annexation is invalid under CEQA and the CEQA Guidelines and constitutes a prejudicial abuse of discretion in that LAFCO failed to proceed in the manner required by law and failed to act on the basis of substantial evidence. LAFCO s actions are invalid because the agency relied upon an EIR when there is substantial evidence in the record to demonstrate that the Annexation Project will have significant impacts on the environment that have not been adequately analyzed or mitigated. Specifically, LAFCO s approvals constitute a prejudicial abuse of discretion in light of the following EIR and CEQA deficiencies: a Failure to adequately disclose and analyze the project s impacts to entire categories of environmental impacts including, but not limited to: Biological Resources such as the Coachella Valley fringe-toed lizard, its habitat, and adopted conservation plans; Hydrology and Water Quality; Water Supply; Energy Conservation; Public Services; Transportation and Traffic; Air Quality; Global Warming; Population and Housing, and Growth Inducement; Aesthetics; Recreation; Cumulative Impacts; conflicts with the Coachella Valley MSHCP and Coachella Valley fringe-toed lizard HCP; and General Plan inconsistencies. LAFCO s environmental review fails to analyze the impacts of additional areas of annexation not included in the EIR; the LAFCO application,, acres, contradicts the 1, acre site description contained in the EIR and as approved by the City of Desert Hot Springs. b Failure to adequately analyze mitigation measures to reduce impacts to biological resources, air quality, hydrology and water quality, groundwater availability, public services, transportation and traffic, population and housing, and growth inducement, aesthetics, energy conservation, recreation, growth-inducing and cumulative impacts. The EIR fails to adopt feasible and reasonable mitigation measures proposed by public agencies during the review and approval of the project, including those proposed by the USFWS, CDFG, BLM, South Coast Air Quality 1

20 Management District, National Park Service, California Department of Toxic Substances Control, County of Riverside Transportation and Land Management Agency, and Riverside County Flood. c In approving the Project, Respondents failed to consider alternatives to the Project that could eliminate or substantially lessen significant impacts. d Adoption of a statement of overriding considerations that is not supported by substantial evidence including a finding that specific considerations make infeasible the mitigation measures or alternatives identified in the EIR for the Project s unavoidable significant impacts. e Failure to revise and recirculate the EIR for further review and comment when significant new information within the meaning of Public Resources Code.1 and State CEQA Guidelines. was submitted including, but not limited to, biological resources, aesthetics, air quality, hydrology and water quality, groundwater availability, public services, transportation and traffic, population and housing, and growth inducement, aesthetics, and recreation. f Inadequate response to comments in the EIR to Petitioners, other members of the public, and other agencies. The responses given to numerous comments regarding the Project s biological resources impacts, aesthetic impacts, traffic impacts, water supply, hydrology and water quality, cumulative and growth inducing impacts, consistency with General Plan policies and standards, public services, transportation and traffic, population and housing, recreation, adequacy of mitigation measures, and alternatives are conclusory, evasive, confusing, or otherwise non-responsive, contrary to the requirements of CEQA. g Inadequate project description and description of the existing environment including, inter alia, the Big Morongo Canyon Area of Critical Environmental Concern, operation and management of the golf course component of the Project in order to determine the Project s full range of impacts on biological resources,

21 existing conservation areas, water quality, hydrology, traffic, air quality, and water resources.. LAFCO s NOD for the Annexation Project that the EIR, mitigation, and statement of overriding considerations comply with CEQA is not supported by substantial evidence and represent a failure to proceed in the manner required by law. SECOND CAUSE OF ACTION VIOLATION OF CEQA (Public Resources Code 00, et seq. Failure to Require a Supplemental or Subsequent EIR. Petitioners hereby incorporate by reference each and every allegation set forth above. 0. CEQA requires that changes to a project or its surrounding circumstances subsequent to the certification of an initial EIR necessitate the preparation of either a subsequent EIR or supplemental EIR. CEQA Guidelines,. As a Responsible Agency LAFCO has the discretion to require environmental review or analysis of factors that were not considered as part of the Lead Agency s environmental review. This permits Lead and Responsible agencies to prepare documents that allow projects to be modified in response to changed circumstances and new information without requiring that an entirely new CEQA process. 1. A subsequent or supplemental EIR must be prepared because new information or changed circumstances has been submitted after the EIR was certified by the City including: impacts on the fringe-toed lizard, its habitat, HCP, and ecological processes supporting the fringe-toed lizard and the fringe-toed lizard HCP; impacts to the Coachella Valley MSHCP; impacts to surrounding jurisdictions such as negative economic impacts and impacts upon adopted Habitat Conservation Plans; the viability of the City and the underlying project to provide adequate municipal services for the project including police, fire, roads, library, recreation, and street maintenance services; and changes in Annexation Project from the underlying project approved by the City such as the addition of annexation areas included in 1

22 1 1 1 the EIR. The LAFCO application,, acres, contradicts the 1, acre site description contained in the EIR and as approved by the City of Desert Hot Springs. Numerous public agencies raised new information or changed circumstances after the certification of the City s EIR during the LAFCO annexation proceedings and reconsideration requests such as information submitted by Petitioners, the U.S Fish and Wildlife Service, California Department of Fish and Game, County of Riverside, the Coachella Valley Conservation Commission, and other environmental groups. Additionally, information submitted by the California Department of Fish and Game on May, 0 regarding the Annexation s impacts on the consistency determination for the fringe-toed lizard must be analyzed in a subsequent or supplemental EIR.. LAFCO s failure to require environmental review for information triggering a subsequent or supplemental EIR is not supported by substantial evidence and represents a failure to proceed in the manner required by law. PRAYER FOR RELIEF WHEREFORE, Petitioners pray for relief as follows: 1. For alternative and peremptory writs of mandate, commanding Respondents: 1 (A to vacate and set aside approval of the Annexation Project, including the Palmwood Sphere of Influence Amendment (addition to the City of Desert Hot Springs and Reorganization to Include Concurrent Annexation 0 to the City of Desert Hot Springs and Detachment from the Riverside County Waste Resources Management District; (B to vacate and set aside the Notice of Determination of the EIR for the 1 Annexation Project; (C to require the preparation and certification of a legally adequate EIR for the Annexation Project; (D to suspend any and all activity pursuant to Respondent s approval of the Annexation Project that could result in an adverse change or alteration to the physical environment until Respondent has complied with all requirements of CEQA and all other applicable state and local laws, policies, ordinances, and regulations as are directed by this

23 l0 Court pursuant to Public Resources Code section... For a stay, temporary restraining order, preliminary injunction, and permanent injunction prohibiting any actions by Respondent pursuant to Respondent's approval of the Annexation Project and certification of the EIR for the Annexation Project until Respondents have fully complied with all requirements of CEQA, and all other applicable state and local laws, policies, ordinances, and regulations;. For a declaration that the Annexation Project is inconsistent with CEQA;. For costs of the suiu. For attorney's fees pursuant to the Code of Civil Procedure section I 0 I.; and. For such other and further relief as the Court deems just and proper. 1l t t DATED: May 1., 0 Jonathan Evans John Buse CENTER FOR BIOLOGICAL DIVERSITY 1 t r 1 rg nathan Evans Attorneys for Petitioners CENTER FOR BIOLOGICAL DIVERSITY SIERRA CLIJB r

24

25 Jonathan Evans ( CENTER FOR BIOLOGICAL DIVERSITY PMB, 0 Sunset Blvd. Los Angeles, CA 00 Tel: ( -1 Fax: ( - jevans@biologicaldiversity.org John Buse (SBN CENTER FOR BIOLOGICAL DIVERSITY S. Dorchester Ave., No. Chicago, IL 0 Tel: ( -1 jbuse@biologicaldiversity.org Attorneys for Petitioners CENTER FOR BIOLOGICAL DIVERSITY and SIERRA CLUB Petitioners, vs. RIVERSIDE LOCAL AGENCY FORMATION COMMISSION, and DOES 1-, Respondents. Notice of Commencement of CEQA Action SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY OF DESERT HOT SPRINGS, CITY COUNCIL OF THE CITY OF DESERT HOT SPRINGS, LANDMARK PROPERTIES US INC, LANDMARK MIDWEST LTD., COYOTE CANYON GROUP LLC, PALMWOOD COMMERCIAL LLC, MICHAEL CROSBY, and DOES 1-0, Real Parties in Interest. IN AND FOR THE COUNTY OF RIVERSIDE Case No. NOTICE OF COMMENCEMENT OF CEQA ACTION [Pub. Res. Code.] EXHIBIT A 1

26 TO RESPONDENTS RIVERSIDE LOCAL AGENCY FORMATION COMMISSION: Please take notice, pursuant to Pub. Res. Code S., that on May I,0, Petitioners Center for Biological Diversity and Sierra Club intend to commence an action for validation to review, overtum, set aside, void, and annul the Riverside Local Agency Formation Commission's decisions approving LAFCO SPHERE OF INFLUENCE AMENDMENT (addition TO THE CITY OF DESERT HOT SPRINGS AND REORGANIZTION TO INCLUDE CONCURRENT ANNEXATION 0 TO THE CITY OF DESERT HOT SPRINGS AND DETACHMENT FROM THE RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT (the "Project" and relying upon Environmental Impact Report SCH #01. This action is based on Respondents' failure l1 1 to comply with the Califomia Environmental Quality Act (Public Resources Code $ 00 et seq., and the Cortese-Knox-Hertzberg Local Govemment Reorganization Act of 00 (Government Code $ 000 et seq. in approving the Project. t 1 r r DATED: May.0 Jonathan Evans John Buse CENTER F'OR BIOLOGICAL DIVERSITY l r l By: ATHAN E,VANS ttornevs for Petitioners CENTER F'OR BIOLOGICAL DIVERSITY SItrRRA CLTJB Notice of Commencement of CEQA Action

27 I PROOF OF SERVICE STATE OF CALIFORNIA, COLINTY OF LOS ANGELES I am employed in the County of Los Angeles, Califomia. I am over the age of 1 and not a party to the foregoing action. My business address is PMB,0 Sunset Blvd. Los Angeles, CA. 00. On May,0,I served a true and correct copy of the NOTICE OF COMMENCEMENT OF CEQA ACTION on Respondent Riverside Local Agency Formation Commission in this action as follows: Xl 1 l l r t 1 I I I t I BY MAIL Such envelope was sealed and placed for collection and mailing following ordinary business practices addressed to: BY PERSONAL SERVICE by personally delivering such envelope by hand to the offrces of the addressee(s. BY OVERNIGHT DELIVERY SERVICE via Federal Express to the offices of the addressee(s. In accordance with Code of Civil Procedure $ (c as follows: I am readily familiar with this firm's practice of collection and processing correspondence for mailing with the Federal Express. Under that practice the correspondence would be deposited with Federal Express on that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. Such envelope was sealed and placed for collection and mailing following ordinary business practices addressed to: George Spiliotis, Executive Officer Riverside Local Agency Formation Commission 0 Vine St, Suite 1 Riverside, CA. 0 - l t I BY FACSIMILE. A true copy thereof was transmitted by facsimile and the transmission reported complete and without effor. Executed on May 0,0 in Los Angeles, California. txl STATE I declare under penalty of perjury under the law of California that the foregoing is true and correct. Jonathan Evans Type or Print Name Signature Notice of Commencement of CEQA Action