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6 AttachmentZWN TOWN OF LOS GATOS PLANNING COMMISSION STAFF REPORT �os'� ° Meeting Date: October 12, 2011 PREPARED BY: APPLICATION NO.: LOCATION: APPLICANT: PROPERTY OWNER: CONTACT PERSON: Marni F. Moseley, Associate Planner, AICP mmoseley@los atg osca.gov Architecture and Site Application S -11 -054 ITEM NO: 3 DESK ITEM 100 Constances Court (Also known as 15881 Linda Avenue Lot #1) Sanford Havens Mission Way Properties LLC Galina Novick (Summers and Novick) APPLICATION SUMMARY: Requesting approval to modify an approved Architecture and Site application to construct a new single family residence on property zoned R- 1:8:PD. APN 523 -25 -052 EXHIBITS: 1 -7. Previously Submitted 8. Letter from David Crites, received October 12, 2011 (two pages) 9. Petitioners Opposition to Writ dated May 25, 2011, received October 12, 2011 (22 pages) 10. Petition for Writ of Supersedeas and for Temporary Stay, dated June 24, 2011, received October 12, 2011 (52 pages) 11. Reply to Petition for Writ of Supersedeas and for Temporary Stay, dated July 26, 2011, received October 12, 2011 (37 pages) 12. Petition for Writ of Mandamus, filed September 2, 2011, received October 12, 2011 (15 pages) 13. Court Order dated May 26, 2011 granting discharge of writ petition, Santa Clara County Superior Court (1 page) 14. Court Order dated September 9, 2011 denying stay, Sixth Appellate District (1 page) 15. Letter from Attorney Andrew Faber to Town Council dated May 2, 2011 (5 pages) REMARKS: The attached exhibits were received after distribution of the staff report. Exhibit 8 (David Crites letter) includes a comment that the approved subdivision for the project violates the California Map Act in that the approved subdivision violates the Town's street ATTACftEff 2 Planning Commission Staff Report - Page 2 100 Constances Court/5 -11 -054 October 12, 2011 width, sidewalk, and minimum lot area requirements and does not provide public access to the creek. As discussed during the public hearing process for the approved PD application for this development, pursuant to Town Code, PD overlay zones allow alternative regulations and - requirements from the underlying zoning in order to provide an optimum quantity and use of open space. The Zoning Ordinance, which includes Planned Development, overlay zoning (Chapter 29 of the Town Code) and the Subdivision Ordinance (Chapter 24 of the Town Code) work in conjunction with one another. Both the Town Code and the approved PD Ordinance support that the Town Codes apply to the development (including the Subdivision Ordinance), except where the PD overlay zoning specifically sets forth a different standard. Town Code (Sections 29.80.120 and 29.80.125) require that the PD overlay zoning establish the development plan and standards for the project. Town Code (Sections 29.80.080, 29.80.085, 29.80.090, and 29.80.095) describe the relationship of Planned Development procedures to other ordinances. The Town Code basically provides that even if an applicant obtains approval for PD overlay zoning, the applicant is still required to follow the Subdivision Ordinance to process the subdivision and maps, and the subdivision must be in conformance with the regulations of the applicable zoning. The approved PD Ordinance for this project establishes the development standards including the private street width, minimum lot sizes, public improvements and access points. The plans for the approved PD Ordinance were reviewed and accepted by the Engineering Division, Santa Clara County Fire Department, California Department of Fish and Game, Santa Clara Valley Water District and the Regional Water Quality Control Board. Exhibit 8 also includes a comment that the proposed Architecture and Site modifications do not comply with the approved PD ordinance and that additional environmental review should be required for the changes. Specifically that the PD Ordinance requires that the footprint, square footage, and height are consistent with the referenced development plans. The square footage and height of the proposed residence are exactly the same as the approved development plans. While the layout of the footprint of the house differs slightly from the approved plans, the square footage, location, and setbacks of the footprint have not changed. And as further discussed in the staff report for this application, staff has determined that the modifications are consistent with the approved PD and that the minor modification to the footprint is in order to comply with the mitigation measures of the EIR in regards to construction near the creek. Exhibit 8 also contends that the minor changes requested to the prior Architecture and Site approval require the preparation of an EIR amendment. The EIR was certified by Town Council on September 7, 2010 and recertified after Court approval on May 2, 2011. The EIR is current and, none of the proposed minor modifications to the Architecture and Site require further environmental review. The minor requests by the applicant were covered as part of the EIR approved by the Court and certified by Town Council. Planning Commission Staff Report - Page 3 100 Constances Court /S -11 -054 October 12, 2011 Exhibit 9 (Petitioners Opposition to Writ) is misleading. While it is correct that Mr. Crites, through his attorney and neighbor, Timur Engin, made the arguments set forth in the Opposition filed with the Court. However; the Court denied their claims and determined -the matter in the Town and Applicants' favor. On May 26, 2011, the Santa Clara County Superior Court, through its discharge of the writ, determined that the Town satisfied the prior Court rulings and determined that the EIR for the project was adequate (Exhibit 13). That Court ruling removed all barriers to the Town to process building permits for the project and allowed the Applicant to construct the project. Exhibits 10 and 11 (Writ of Supersedeas and Request for Stay) submitted by Mr. Crites accurately depicts his request, but Exhibit 14 is the Court Order that denied the request for a stay and denied the Petition for writ of supersedeas. Exhibit 12 is another lawsuit filed by opponents that challenges Town Council's approval of the Final Map for the project. On September 20, 2011, at a lengthy Court hearing, the Court denied the request for the stay. While the Court will consider the merits of the lawsuit on November 21, 2011, there is nothing new raised by opponents in the lawsuit that prevents the Planning Commission from consideration of this application tonight. All of the objections raised in Mr. Crites letter (Exhibit 8) have been raised at every other hearing on the Ross Creek/Linda Avenue project and have been considered by the Santa Clara County Superior Court. In every instance, the Court has ultimately decided these issues in favor of the Town., On May 2, 2011, when the Town Council considered the addendum- amendment to the final EIR, Andrew Faber, an attorney for the Town and The Linda Court Project applicants provided a letter to Town Council addressing the same issues that are being raised by Mr. Crites again tonight. I -mvil"aA, Prepared by: Marni F. Moseley, AICP Associate Planner t e ed v by: e L. Roone Director of Community Development 1 Jud' Propp To Attorney WRR:MM:cgt N:\DEV\PC REPORTS\2011 \100 Constances- desk.doc This Page Intentionally Left Blank RECEIVED David Crites Ross Creek Neighbors 15900 Rochin Terrace Los Gatos, CA 95032 U,` 12 2011 TOWN OF LOS GATOS PLANNING DIVISION October 12, 2011 Planning Commission Town of Los Gatos 110 E. Main Street Los Gatos, CA 95030 Re: 100 Constances Court (AKA Linda Ave Lot 1) A &S Application S -11 -054 Dear Planning Commission Members: The Town of Los Gatos violated the California Map Act by approving a project that, inter alia, violates the Town's own street width requirements, has sidewalks that violate the Town's Engineering standards, has lots that violate the Town's minimum lot area requirements, and that does not provide public access to the creek that abuts the project site. Ross Creek Neighbors ( "RCN ") brought an action in Santa Clara Superior Court challenging the subdivision approval for this project. If RCN prevails in that action, the subdivision map will be void and lot 1 would no longer exist. The Planning Commission and the Town should withhold further project approvals until the validity of the subdivision is adjudicated. Attached please find a copy of the September 2, 2011 Petition for a Writ of Administrative Mandate that RCN filed in Santa Clara Superior Court. RCN incorporates by reference as if set forth fully herein that Petition and all of the papers filed in that Superior Court action, all of which set forth in detail why the Town has violated California law and its own laws by approving the project. The proposed changes to the project plans require the preparation of an environmental impact report ("EIR") amendment to determine what environmental impacts the proposed changes would have. As the Town knows, RCN contends that the existing EIR is inadequate and violates California law. Amending the project with no consideration of the changed environmental impacts of the amended project only further violates the law. Attached please find briefs that RCN filed in the Santa Clara Superior Court and in the California Court of Appeal that explain in detail why the Town has violated California law and why the Town may not rely on an out of date and inadequate EIR to approve any aspect of this project, including the current Architecture and Site application. RCN incorporates by reference as if set forth fully herein those two briefs and all of the papers filed in that Superior Court action and the California Court of Appeal. The Planning Commission should deny the Architecture and Site application until an EIR amendment that complies with California law is prepared. F, .WHIT 8 i t The PD Ordinance for the project (PD Ordinance 2193) requires that the project conform to the September 20, 2010 project plans. Specifically, item 3 of section V states that the "footprint, square footage and height of each house shall be consistent with the Development Plans as shown in Exhibit B." Thus, if the Planning Commission, or the Town more generally, changes the footprint, square footage, or the height of any house — including the lot on proposed lot 1, then a new PD Ordinance must be prepared and ratified. The staff report and minutes of the September 22, 2010 Planning Commission meeting regarding the A &S applications for the project reflect that the Town Council, Town Staff, and Planning Commission were in agreement that the "proposed square footages, FAR, building footprints, and heights" were fixed by the PD process and the planning commission's A &S consideration only "has discretion in reviewing architectural detailing which includes window and door placement." The minutes indicate that the findings regarding the environmental impact of the project (neighborhood compatibility, aesthetic, biological, hydrological, riparian habitat, and species of concern) were made using the footprints, square footages, and heights specified in the September 20, 2010 project plans. As a result, the requested modifications to the project plans exceed this Planning Commission's discretion, would be in violation of PD Ordinance 2193, and would require an EIR amendment to consider the environmental impacts of the proposed changes. Sincerely, David Crites (on behalf of Ross Creek Neighbors) 2 RECEIVED 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RACHEL HOWLETT, CA STATE BAR NO. 248809 PROVENCHER & FLATT, LLP 823 Sonoma Avenue Santa Rosa, CA 95404 Tel: (707) 284 -2380 Fax: (707) 284-2387 TIMUR ENGIN, CA STATE BAR NO. 229944 15841 Loma Vista Avenue Los Gatos, CA 95032 Tel: (408) 356 -0716 Fax: (707) 284 -2387 ATTORNEYS FOR PETITIONERS u, " 12 2011 TOWN OF LOS GATOS PLANNING DIVISION SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA ROSS CREEK NEIGHBORS, et al.; Petitioners, V. TOWN OF LOS GATOS, et al.; Respondents; LINDA COURT PARTNERS LLC, et al.; Real Parties in Interest. Case No. 108 -CV- 106461 PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPPLEMENTAL RETURN TO WRIT OF MANDATE Hearing: May 26, 2011 Time: 8:45 am Dept: 19 Honorable Leslie C. Nichols PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No, 108 -CV- 106461 EXHIBIT 9 1 2 3 4 5 6 7 8 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Since the Court last reviewed the Town of Los Gatos' ( "Town ") actions, the Town approved an amended EIR without circulating the amended EIR or the amendment to the public. Because the Town's prior EIR was fundamentally inaedequate in its analysis of hazardous chemicals, governing California law required the Town to circulate the amended EIR to the interested public. The California Court of Appeals has held that lead agencies may not satisfy CEQA's circulation requirement with an EIR that is fundamentally inadequate with respect to an environmental impact, and then rely on an amended (but uncirculated) EIR to cure the original EIR's deficiency. Yet that is exactly what the Town did. Additionally, the Town was required to circulate its amended EIR because the amendment added significant new information about a significant environmental impact: hazardous pesticides. While the amended EIR 2011 contains significant new information and analysis, its authors attempted to obscure that fact. Specifically, the authors claimed that preexisting analysis made all sorts of findings and reached all sorts of conclusions that it did not. Tellingly, the Town for the first time in its amended EIR purported to apply eighteen pages of California Department of Toxic Substances Control ( "DTSC ") guidelines applicable to former agricultural properties like the one at issue here. But the Town tried to prohibit the public from providing reasoned analysis of the guidelines and from getting clarification from DTSC by not permitting the public the opportunity to comment on the eighteen pages of guidelines and the Town's result- driven analysis. Moreover, while the amended EIR relies heavily on DTSC guidelines and aerial photos, the Town never provided those guidelines or the photos to the decision makers or to the public. As the California Court of Appeals has held, "if a project proponent can pick and choose who sees pertinent data - -then a stake is driven into the `heart of CEQA' by preventing the information necessary for an informed decision from reaching the decision makers and the public." Finally, a lead agency is required to certify that the final EIR has been completed in compliance with CEQA, and that it reviewed and considered the information in the final EIR prior to approving the project. The Town approved the project —by passing an ordinance and approving the subdivision map — months before the final EIR was even prepared. Because the Town has not complied with CEQA and has not followed DTSC's or the Court's guidance, the Court should deny Respondents' Second Supplemental Return to Writ of Mandate ( "Return ") PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 L STATEMENT OF FACTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On March 8, 2011, the Court found Respondents' EIR "inadequate" and issued an Order "denying discharge of Peremptory Writ of Mandate pending further return, and order of the Court, confirming compliance with CEQA." (March 8, 2011 Order Re: Return on Writ of Mandate. ( "March 2011 Order ").) Citing DTSC's March 2010 letter, the Court found that DTSC had rejected the EIR's conclusion "that the potential for pesticide and herbicides on the project site was not a significant environmental concern because any such chemicals had likely biodegraded ": Pesticides and herbicides tend to be persistent in the environment and do not significantly biodegrade over time. Therefore, there is a potential for these chemicals to be present at the Project site ... The level of residual chemicals in the soil and /or groundwater is unknown unless an environmental assessment is done. Therefore, DTSC recommends that soil, and possibly groundwater, sampling be performed at this site for chemicals from past agricultural operations. The sampling results should be discussed in the EIR and any screening levels or criteria that are used in making a determination whether detected contaminants are found at concentrations that pose a risk to human health or the environment should be identified. (Id. at 5:3 -13 (citing DTSC's March 2010 letter).) Thus, the Court held that "the Town's response in the Final EIR to the March 23, 2010 letter by the California Department of Toxic Substances Control ( "DTSC ") commenting on the Draft EIR was inadequate ": Referring back to the same material the DTSC had already indicated it had reviewed, restating the conclusion the DTSC already disagreed with, and suggesting, without clearly indicating, that nothing further would be done is not a proper reasoned response supported by substantial evidence. CEQA Regulations §15088(b) & (c) state: "(b) The lead agency shall provide a written proposed response to a public agency on comments made by that public agency at least 10 days prior to certifying an environmental impact report. (c) The written response shall describe the disposition of significant environmental issues raised (e.g., revisions to the proposed project to mitigate anticipated impacts or objections). In particular, the major environmental issues raised when the Lead Agency's position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements.unsupported by factual information will not suffice." This is not a pro forma obligation. (Id. at 5:24 -6:8.) While Respondents faulted DTSC for not conducting its own Phase I analysis and for supposedly not establishing that there were toxic chemicals on the site, the Court held that "[i]t is the lead agency's responsibility in the first instance to properly respond, not to try to shift responsibility to a commenting public agency to continue to press the lead agency to do what it was obligated to do in the first instance." (Id at 6 :16 -19.) PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Despite the fact that, as the Court found, "the DTSC disagreed with the factual premise for the Initial Study's conclusion (the claimed rate of biodegradability of such chemicals over time) and stated its position that such a conclusion could not be reached without soil and possibly groundwater sampling being done at the site," (March 2011 Order at 7:1 -4), The Town did not follow DTSC's recommendation to test the site to see if toxic chemicals were present. Thus, "[t]he Court [wa]s [in] no position to evaluate, based on the Final EIR, whether pesticides or herbicides are in fact present in the soil or water at the project site at all or at concentrations that pose a risk to human health. That is precisely the problem." (Id. at 6:20 -22.) On April 13, 2011, even after the Court provided guidance in its March 2011 Order, the Town's environmental consultant, ERAS Environmental, Inc., wrote a letter to the Town that stated: "[t]he conclusion of the Phase I study, that no further environmental testing is needed, remains unchanged." (SSAR0034.) Despite DTSC's finding (repeated in the Court's March 2011 Order) that "[p]esticides and herbicides tend to be persistent in the environment and do not significantly biodegrade over time ERAS's April 2011 letter maintains that pesticides " would have undergone significant degradation through soil disturbance, attenuation, dilution, biodegradation and other natural processes." (SSAR0034.) Thus, in the face of the Court's March 2011 Order and DTSC's recommendation to test the soil, Respondents still have not tested the soil and have no plans to. When approving the amended EIR, the Town found that "DTSC continue[s] to recommend no further testing at this time." (Return at 5:25 -27.) To the contrary, DTSC did (as the Court, itself, noted) and does recommend soil testing for chemicals at the site from past agricultural operations and recommends that the sampling be discussed in an EIR. (Engin Dec., Ex. 2 (May 20, 2011 correspondence stating: "However, our March 29, 2011 letter was not intended to withdraw the recommendation made in our March 23, 2010 letter "); SSAR0031 (March 23, 2010 letter stating: "DTSC recommends that soil, and possibly groundwater, sampling be performed at this site for chemicals from past agricultural operations. The sampling results should be discussed in the EIR and any screening levels or criteria that are used in making a determination whether detected contaminants are found at concentrations that pose a risk to human health or the environment should be identified. ").) Because Respondents have not done any soil testing, soil testing results are not discussed in the EIR. Moreover, while Respondents' Return and the Towns' approval are premised on the notion that "DTSC's Guidance documents" do not "suggest[] that testing should be done (Return at 5:23 -25), DTSC disagrees. Specifically, even though DTSC had in its possession ERAS' April 13, 2011 letter which essentially states that DTSC's guidelines do not apply to the subject property, DTSC stated that its PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 guidance document entitled "Interim Guidance for Sampling Agricultural Properties (Third Revision) dated August 7, 2008" does apply: [T]his document is the most applicable DTSC guidance document for making a determination on the sampling that should be performed at former agricultural sites It specifically outlines the sampling strategies and procedures and human health risk assessment methodologies for sites where pesticides and /or fertilizers were presumably applied uniformly for agricultural oses consistent with normal application practices. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While ERAS purports to have distinguished applicable DTSC guidelines, in fact, ERAS applied DTSC's 2000 guidelines and not the operative August 2008 guidelines. (SSAR0036.) The ERAS April 13, 2011 letter also concludes (without any record citation) that "there has been no documented impact of past pesticide use on the current environment or in the area..." (SSAR0035.) In fact, DTSC is aware of sites in the South Bay were farmers used arsenic and DDT. (Engin Dec. ¶ 9.) DTSC's familiarity with such practices are in accord with a comment provided by Pauline Sprock (a long time resident) about "old- timers" using arsenic and lead in local orchards. (AR:J0020 :22 ( "And also, I wanted to know if they did a soil test for arsenic, or lead, as this was a former orchard, and that's what the old - timers used to spray with all the time. ").) On Friday, April 29, 2011, the Town posted the amended EIR on their web site and three days later, on Monday, May 2, 2011, the Town held a public hearing. Members of the public were given three minutes each to comment on the proposed project. When their time was exhausted, they were directed to sit down. (DVD of May 2, 2011 Hearing.) On Monday, May 2, 2011, Petitioners called the DTSC to get clarification on DTSC's recommendations. DTSC did not return Petitioners' call until after the Town's May 2, 2011 hearing. (Engin Dec. at ¶¶ 2 -3.) Town staff presented the April 13, 2011 ERAS Letter (2011 ERAS Letter) and the EIR Adden< to the EIR to the Town on May 2, 20 i 1. Neither of those documents even mentions DDT, arsenic, or lead, much less provides a reasoned analysis of their properties and their behavior in the environment. (SSAR0024 -29; SSAR0034 -37) The Town staff, the Town attorney, and counsel of record for Respondents (who attended the hearing), did not so much as mention DDT, arsenic, or lead. (DVD of May 2, 2011 Hearing.) II. STANDARD OF REVIEW In deciding whether to issue a writ, the Court shall determine whether the Town committed a prejudicial abuse of its discretion; an agency can abuse its discretion either by: (1) not proceeding in, the manner required by law or (2) making determinations or decisions that are not supported by substantial 4 PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 ( ,— A evidence in light of the whole record. (Pub. Resources Code § 21168.5; Vineyard Area Citizens v. City Rancho Cordova (2007) 40 CalAth 412, 426 -427, 435.) Judicial review of these two types of error differs significantly: while we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements ", we accord greater deference to the agency's substantive factual conclusions. Id. at 435 (citation omitted). The de novo standard applies if an EIR fails to disclose information about a possible significant environmental effect because this constitutes a failure to proceed in the manner required by law. (Id.; see also Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th 1099, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1108 -1109 (In preparing an EIR, the agency must consider and resolve every fair argument that can be made about the possible significant environmental effects of a project.) The substantial evidence standard applies to review of an agency's factual determinations and findings. Vineyard Area Citizens, 40 Cal.4 at 435. Substantial evidence is defined as "facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." Pub. Resources Code §§ 21080, subd. (e)(1), 21082.2, subd. (c). Substantial evidence is not just any evidence: ... , if the word `substantial' means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with `any' evidence. It must be reasonable in nature, credible, and of solid value; it must actually be `substantial' proof of the essentials which the law requires in a particular case. In re Teed's Estate (1952) 112 Cal.App.2d 638, 644. III. THE ROLE OF CEQA AND EIRS The process compelled by CEQA "is a meticulous process designed to ensure that the environment is protected ... [and] the EIR is the heart and soul of CEQA." Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4 892. In fact, "[t]he integrity of the [CEQA] process is dependent on the adequacy of the EIR." Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4 99, 118 -119. The EIR, with all its specificity and complexity, is the mechanism prescribed by CEQA to force informed decision making and to expose the decision making process to public scrutiny. No Oil, Inc, v. City of Los Angeles (1974) 13 Cal.3d 68, 86. An EIR is an "environmental `alarm bell' whose purpose it is to alert the public and its responsib officials to environmental changes before they have reached ecological points of no return." The EIR is also intended "to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action. Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 respond accordingly to action with which it disagrees. The EIR process protects not only the environment but also informed self - government. Laurel Heights Improvement Assn v. Regents the University of California (Laurel Heights 1) (1988) 47 Cal.3d 376, 39 (citations omitted). EIRs provide public agencies and the public with "detailed information about the effect which a project is likely to have on the environment, to list ways in which the significant effects of such project might be minimized; and to indicate alternatives to such a project." (Pub. Resources Code §§ 21061, 21100.) IV. ARGUMENT A. The EIR Was Not Circulated to the Public as Required by Law 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The Town May Not Rely on an Uncirculated EIR to Correct a Fundamentally Inadequate EIR Neither the Final EIR, nor the Amendment to the EIR was circulated to the public prior to their May 2, 2011 certification. The Town posted the Amendment on -line on Friday April 29, 2011, and one business day later closed the administrative record on Monday, May 2, 2011. (Crites Dec. ¶ 5.) Lead agencies may not satisfy the circulation requirement with an EIR that is "fundamentally and basically inadequate and conclusory in nature" and then amended that EIR without re- circulating. Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal. App. 3d 1043, 1049; 14 CCR 15088.5(a)(4) ( "`Significant new information' requiring recirculation include, for example, a disclosure showing that:... (4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. ") In Mountain Lion Coalition, the Superior Court found a draft EIR (which had been circulated) insufficient in its cumulative impacts analysis and refused to consider the adequacy of a more robust, fina EIR that was NOT circulated to the public. Id. The California Court of Appeals affirmed and refused to permit the final, uncirculated EIR to cure the cumulative impacts deficiencies in the circulated EIR: We do not reach the question of whether the final EID, which was not considered by the trial court, clears up some of the deficiencies of the draft. The cumulative impact analysis contained in the final EID has never been subjected to public review and criticism. If we were to allow the deficient analysis in the draft EID to be bolstered by a document that was never circulated for public comment, we would not only be allowing appellants to follow a procedure which deviated substantially from the terms of the writ, but we would be subverting the imp ortant public purposes of CEOA Only at the stage when the draft EID is circulated can the public and outside agencies have the opportunity to analyze a proposal and submit comment. No such right exists upon issuance of a final EID unless the project is substantially modified or new information becomes available. (See Cal.Code Regs., tit. 14, § 15162.) To evaluate the draft EID in conjunction with the final EID in this case would only countenance the practice of releasing a re ort for public PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 (' r . consumption that hedges on important environmental issues while deferring a more detailed analysis to the final EID that is insulated from public review Id. at 1052 (emphasis added). 3 The Court of Appeals was particularly concerned because the agency deprived an interested publi of the opportunity to comment on the cumulative impacts issue: It was impossible for the public, which had actively asserted a keen and sophisticated interest in the proposed mountain lion hunt, to fully participate in the assessment of the cumulative impacts associated with this project -- the draft EID overlooked the significant environmental issues that had been brought to appellants' attention through the 1987 commentary process and the writ of mandate. Id. at 1051 (emphasis added). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The circulated EIR in the instant case precluded "meaningful public review and comment" (14 CCR 15088.5(a)(4)) on the toxic soil issue, because, as the Court found, the circulated EIR did not identify pesticide contamination in the soil as "as even a potentially significant environmental concern. March 2011 Order at 6:25 -28. The circulated EIR was further "fundamentally and basically inadequate and conclusory in nature" because the February 26, 2009 Initial Study in Appendix A of the circulated EIR contained factually incorrect information about the potential for agricultural chemicals in the soil. It stated that the January 9, 2007 ERAS Report "indicates that since these chemicals biodegrade over time and were not used after 1974, the potential for these chemicals to occur on the site does not appear to be a significant environmental concern. (Source VII.7 -- ERAS Environmental, June' 2007)." The February 2007 Initial Study also attributes this same statement to the January 9, 2007 ESA Report. (AR2:0667 -668) Yet the 2007 ESA Report makes no mention of chemical biodegradation; makes no statement regarding the use of agricultural chemicals [pre or post 1974]; and contains no data, analysis, or conclusions regarding the potential for toxic -soil from the Site's agricultural history. (Petitioners Request for Judicial Notice ( "RJN "), Ex. 1). Thus, the administrative record contains no source for this statement. The circulated EIR's entire assessment of the potential for toxic soil on the site was apparently made up by the author of the Initial Study. The author's false attributions apparently sought to lull the public, hide the truth, and preclude meaningful public review and comment. In the present case, as in Mountain Lion Coalition, the Court's findings regarding the circulated EIR and the absolute lack of support for the key hazardous chemical conclusion in the circulated EIR demonstrate that the circulated EIR was "fundamentally and basically inadequate and conclusory in nature." See March 2011 Order at 6:20 -7:4. Thus, as in Mountian Lion Coalition, the Town cannot rely PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on an amended EIR —that has not been circulated to the public —to cure the fundamental inadequacy of the EIR that it did actually circulate. See 214 Cal. App. 3d at 1049. The requirement of public review has been called "the strongest assurance of the adequacy of the EIR." Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 823. An EIR "must present information in such a manner that the foreseeable impacts of pursuing the project can actually be understood and weighed, and the public must be given an adequate opportunity to comment that presentation before the decision to go forward is made." Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 ( "Vineyard Area Citizens "). In this case, the Town robbed the interested public of the ability to comment on the amended EIR. Accordingly, as in Mountain Lion Coalition, the Court should not consider the amended EIR. 2. The Town Added Significant New Information to the Amended EIR "If, subsequent to the period of public and interagency review, the lead agency adds `significant new information' to an EIR, the agency must issue new notice and must `recirculate' the revised EIR, or portions thereof, for additional commentary and consultation. Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal. App. 4th 99, at 130 (citing Pub. Resources Code § 21092.1; Guidelines, § 15088.5, subd. (a)). "`Significant new information' requiring recirculation include, for example, a disclosure showing that:... (1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented." 14 CCR 15088.5(a)(4). The Court has already found that the 2010 Circulated EIR "did not identify the [pesticide contamination in soils] issue as even a potentially significant environmental concern." March 2011 Order at 6:25 -28. The Court went on to provide guidance to the Town on what should be done to address "significant environmental issues raised" in comments by a public agency. Id. at 5:27 -6:3 (citing CEQA Regulations § 15088(b) & (c)). Thus, the March 2011 Order raised a "new significant environmental impact [potentially resulting] from the project" and the Town was required to circulate the 2011 Amended EIR. Furthermore, the 2011 Amended EIR indisputably contains "significant new information" — though its authors attempted to obscure that fact. The 2010 Circulated EIR relied entirely on a 2007 ERAS Report for its analysis of hazardous chemicals. (AR:D0179) The 2011 Amendment, in turn, relies entirely on the 2011 ERAS Letter for its analysis of hazardous chemicals. (SSAR0024 -29.) Thus, by 1 No "June 2007" ERAS Environmental document can be located in the Administrative Record. This citation appears to be a transcription error that should read "January 2007 ". PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 ��' comparing the 2011 ERAS letter to the 2007 ERAS report, the Court can determine what new i the Town added to the 2011 Amendment. 3 The 2011 ERAS letter attributes whole reams of data and analysis to the 2007 ESA report that are not in that report. For example, with respect to orchards and agricultural pesticides, the 2007 ESA report includes only the following four sentences: "In the maps dated 1943, 1947, 1953 and 1955 the Property was indicated to be part of an orchard. In 1968, 1973 -and 1980, the Property was indicated to be of urban land use with no individual building definition shown. "... Application of Pesticides, Herbicides or Fertilizers No evidence of the application of pesticides, herbicides, or fertilizers was indicated during the on -site reconnaissance. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Property included part of an orchard from approximately 1955 to at least as long ago as 1943. ESA Report at 11, 14, 15. The 2011 ERAS letter, nonetheless, states that the 2007 ERAS (or ESA) reached the following "[ conclusions." Conclusions of Phase I ESA The previous ESA indicated that part of the Property was used as an orchard from prior to 1943 until approximately 1955. However, the Property also appeared to contain a residence in 1948 and ERAS concluded it was unlikely the Property was still an operating orchard after the current residential buildings were constructed on the Property in 1948. ERAS indicated it had been almost 60 years since any pesticides would have been used - if they were used at all at the Property. ERAS also concluded that pesticides would have affected, primarily the upper surface and would have undergone significant degradation, through soil disturbance, attenuation, dilution, biodegradation and other natural processes. In addition, there was no indication from historical research that buildings where pesticides would have been stored were located on the Property. ERAS concluded that based on the period of time since the Property was agricultural land, and the degradation processes that had apparently occurred, there is unlikely to be a risk to future occupants from residual pesticides in soil at the Property or to the environment The entire area surrounding the site was also used for orchards, then developed for residential use by approximately 1960 (later than the Property itself), and nearly all the orchards and trees in the area were removed by that time. There have been no documented environmental impacts or concerns related to past pesticide use in the many residences that surround the Property, there has been no documented impact of past pesticide use on the current environment in the area including that on the Property, and ERAS does not consider there to be cause for concern that the development project itself will cause any impact to the environment as a result of past pesticide usage on the Property or in the surrounding area." (SSAR0034 -35.) PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The information referenced by the 2011 ESA letter does not exist in the 2007 ESA Report, so the entire section is significant new information. Accordingly, the Town was required to circulate the Amendment or the EIR. See 87 Cal. App. 4th 99, at 130. It did not. In addition, the DTSC's Interim Guidance for Sampling Agricultural Properties (DISC Guidance) has never been applied to the Project site prior to the 2011 EIR Amendment. The existence and application of this important policy document is significant new information regarding the possibility of toxic soil on the Site. The circulated EIR and the.ESA Report made no mention of this guidance document and the Town applies it extensively, for the first time, in the 2011 Amendment. Introducing and applying this document in the Amendment has deprived the public of referencing additional information, much of it in DTSC Guidance itself, which refutes the Town's position and would have provided for informed decision making. For example, while the Town contends that "disking operations" (SSAR0036), also referred to as "routine mowing" (AR:D0054 -55), in the northeastern and western quadrants (Cite project maps) exempt the Property from the DTSC Guidance, public comment could have pointed out that the DTSC Guidance itself states that "normal agricultural practices, such as disking and plowing" provide no exemption from soil testing. (RJN Ex. 2 at 2.) The 2011 EIR Amendment contains significant new information precisely because the Town has been forced to abandon their factually incorrect prior conclusion: that while past use of agricultural chemicals is probable, soil testing is not necessary because agricultural chemicals degrade over time. (AR:D0179.) The Amendment introduces significant new suppositions, significant new analysis, and reaches a significant new conclusion: that either no agricultural chemicals were used on the property, or that an unknown method of tree removal and normal disking have disbursed the agricultural chemicals. (SSAR0036 -37.) The potential "significance" of toxins in soil that is slated for acknowledged grading, hauling, dust generation, and ultimate residential use (AR:D0169) is clear given the Court's March 2011 Order, the DTSC Guidance on the subject, the DTSC's March 23, 2010 letter (SSAR0031), the responsibilities of a CEQA Responsible Agency (CCR 15366(c)), and HSC 25320- 25321. Yet the Town argues that the DTSC's March 29, 2011 Letter stating that the "DTSC will not require analysis of soil or groundwater at this site" (SSAR0039) releases it from its responsibility to correctly apply the DTSC Guidance document the Town, itself, selected as the threshold of significance. (SSAR0027.) The DTSC's Guidance states "[t]his [document] applies to proposed new and /or expanded school sites or other project where new land use could result in increased human exposure, especially residential use." (RJN, Ex. 2.) "An activity which may not be significant in an urban area may be significant in a rural area." (Protect the Historic PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 Amador Waterways v. Amador Water Agency; CCR 15064(b)) Here, an activity which may not be significant in a rural area [normal application of agricultural chemicals] becomes significant when the area is slated to become urban [increasing exposure to the public]. The DTSC's recommendation that the soil be tested stands (SSAR0031, Engin Dec. Ex. 2). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents have argued that "[r]ecirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR." (Respondent's April 1, 2011 Letter Brief at 3.) Marin Municipal Water District v. KG Land (1991) 235 Cal.App.3d 1652 provides clarifying punctuation stating "[ r]ecirculation is not required if a revision simply clarifies, amplifies, or makes insignificant modifications to an adequate EIR." Here, the Court has already held that the Town's circulated EIR was "inadequate" (March 2011 Order at 4:24 -26) so CCR 15088.5(b) does not apply. Further, the Amendment does not clarify or amplify the circulated EIR because the 2007 ERAS Report referenced in the circulated EIR contains no analysis of the potential impact of toxins in the soil, and the Initial Study referenced in the circulated EIR contains only false attributions to the 2007 ESA Report. Accordingly, the Town should have circulated the Amended EIR. B. The Town Has Ignored the Court's and DTSC's Guidance And Has Made Findings Directly in Conflict with that Guidance Despite the fact that, as the Court explicitly found, "the DTSC disagreed with the factual premise for the Initial Study's conclusion ( the claimed rate of biodegradability of such chemicals over time and stated its position that such a conclusion could not be reached without soil and possibly groundwater sampling being done at the site (March 2011 Order at 7:1 -4), The Town to this day has not followed DTSC's recommendation to test the site to see if toxic chemicals were present. Indeed the Town and its environmental consultant are still clinging to the notion "that pesticides " would have undergone significant degradation through soil disturbance, attenuation, dilution, biodegradation and other natural processes." (SSAR0034 (emphasis added).) The conclusion that hazardous chemicals degrade with time is the exact conclusion that DTSC has now rejected twice and that the Court, itself, has rejected. Moreover, despite the Court's March 2011 Order explicitly noting that DTSC recommended soil sampling (March 2011 Order at 5:8 -13), the Town pretends that DTSC never recommended testing; when approving the amended EIR, the Town found that "DTSC continue[s] to recommend no further testing at this time." (Return at 5:25 -27; see also SSAR0026 (added information "provides additional support for the conclusion in the Final EIR that soil or groundwater sampling for pesticides was not recommended or deemed necessary ") (emphasis added).) To the contrary, DTSC did (as the Court, itself, noted) and does recommend soil testing for chemicals at the site from past agricultural operations and recommends that PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the sampling be discussed in an EIR. (Engin Dec. Ex. 2 (May 20, 2011 correspondence stating: "However, our March 29, 2011 letter was not intended to withdraw the recommendation made in our March 23, 2010 letter "); SSAR0031 (March 23, 2010 letter stating: "DTSC recommends that soil, and possibly groundwater, sampling be_performed at this site for chemicals from past agricultural operations. The sampling results should be discussed in the EIR and any screening levels or criteria that are used in making a determination whether detected contaminants are found at concentrations that pose a risk to human health or the environment should be identified. ").) Because Respondents have not done any soil testing, soil testing results are not discussed in the EIR, and, once again, the Town has not meaningfully responded to a sister agency's feedback. Moreover, while Respondents' Return and the Towns' approval are premised on the notion that "DTSC's Guidance documents" do not "suggest[]" that testing should be done (Return at 5:23 -25), DTSC disagrees. Specifically, even though DTSC had in its possession ERAS' April 13, 2011 letter which essentially states that DTSC's guidelines do not apply to the subject property, DTSC stated that its guidance document entitled "Interim Guidance for Sampling Agricultural Properties (Third Revision) dated August 7, 2008" does apply: [T]his document is the most applicable DTSC guidance document for making a determination on the sampling that should be performed at former agricultural sites It specifically outlines the sampling strate ies and procedures and human health risk assessment methodologies for sites where pesticides and /or fertilizers were presumably applied uniformly. foragricultural purposes consistent with normal application practices. (Engin Dec., Ex. 2.) Once again, DTSC has specifically disagreed with the Town's interpretation of DTSC's guidance. Nonetheless, the Amended EIR relies only on distinguishing the guidelines that DTSC explicitly said apply. (SSAR0026.) The Town has made no attempt to actually comply with the guidelines that DTSC said apply and does not argue that it has. And when the Town tried to distinguish DTSC's guidelines —as opposed to following them —its environmental consultant applied DTSC's 2000 guidelines and not the operative August 2008 guidelines. (SSAR0036.) Moreover, the ERAS April 13, 2011 letter is a conclusory document that does not provide substantial evidence for its conclusions. For example, the letter concludes (without any record citation other than what the developer told him) that "there has been no documented impact of past pesticide use on the current environment or in the area..." (SSAR0035.) In fact, DTSC is aware of sites in the South Bay were farmers used arsenic and DDT. (Engin Dec. ¶ 9.) That is not surprising given that long time PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 C\ A resident Pauline Sprock commented about "old- timers" using arsenic and lead in local orchards. (AR:J0020:22 ( "And also, I wanted to know if they did a soil test for arsenic, or lead, as this was a former 3 orchard, and that's what the old - timers used to spray with all the time. ").) Nonetheless, the Town has not provided any analysis of arsenic, lead, or DDT levels. It has not provided any analysis of how these dangerous chemicals will or will not be released with the significant dust - causing grading and offhaul of soil contemplated by the project. The Town's result - driven analysis is not good faith reasoned analysis supported by record evidence. See March 2011 Order at 3:4 -15. The Town has not complied with CEQA. C. The EIR's Conclusory Statements Unsupported by References to Supporting Evidence Have Not Provided Reasoned Analysis of Conflicting Expert Opinion 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "When experts disagree about data or methodology, the EIR should summarize the main points of disagreement. CEQA Regs § 15151. See Browning- Ferris Indus. v. City Council (1986) 181 Cal App 3d 852 (agency may choose among differing expert opinions as long as EIR identities arguments correctly and in responsive manner). If comments on the draft EIR from experts or other agencies indicate that the EIR's analysis of an impact has relied on incorrect data or a flawed methodology, the EIR must provide a good faith reasoned analysis in response. Conclusory statements unsupported by references to supporting evidence are not sufficient. CEQA Regs. § 15088(c)... When the EIR's discussion and analysis is not modified to incorporate the suggestions made in comments on the draft, the EIR must acknowledge the conflicting opinions and explain why they have been rejected, supporting its statements with relevant data, Berkeley Keep Jets Over the Bay Comm, v. Board of Port Commis (2001) 91 Cal 15 App 4th 1344, 1367." March 2011 Order at 3:4 -15. "`The ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision - makers, and the public, with the information about the project that is required by CEQA.' [Citation.] The error is prejudicial `if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. "'' (San Joaquin Raptor /Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th at pp. 721 -722; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Ca1.App.4th 1109, 1117; County of Amador v. El Dorado County Water Agency, supra, 76 Cal.App.4th at p. 946.) Here, the hazardous materials analysis in the Amended EIR is fundamentally flawed because the core analysis document on which the Amended' EIR relies does not contain the discussion or conclusions that the document is purported to contain; the analysis of hazardous materials excludes important information necessary for a reasoned analysis of this significant environmental impact. Despite the PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acknowledged conflict in the Town's conclusion with the experts at DTSC, the Town has provided only conclusory statements unsupported by references to supporting evidence. By certifying an EIR that fails to adequately describe the setting and the possible significant effects of toxic soil, the Town failed to proceed in the manner required by law. The conclusory statements unsupported by references to supporting evidence in the Amended EIR are summarized below: (A) ERAS Environmental, Inc has submitted two documents to the Town regarding the Project Site: the 2007 ERAS Report and the 2011 ERAS Letter. Both documents were prepared by the same author. The 2007 ERAS Report was not included in the 2011 Amendment or the 2010 circulated EIR so it can only be found by the public by searching through seven volumes of documents in the Town's Planning Department. (See AR2:0523 -81.). The 2011 ERAS Letter, on the other hand, is attached as Exhibit B in the 2011 Amendment. The 2011 ERAS Letter begins with a section entitled "Conclusions of Phase 1 ESA" that purports to be a summary of the conclusions reached in the 2007 ERAS Report. The first sentence in that section states that the 2007 ERAS Report "indicated that part of the Property was used as an orchard from prior to 1943 until approximately 1955 ". This statement does in fact find support in the 2007 ERAS Report on page 11 where the report states: "In the maps dated 1943, 1947, 1953 and 1955 the Property was indicated to be part of an orchard. In 1968, 1973 and 1980, the Property was indicated to be of urban land use with no individual building definition shown." (AR2:0523 at Sec. 4.1) However, this is where the correlation between the two documents ends. The remainder of the "conclusions" attributed to the 2007 ERAS Report are actually not found in that document. The 2011 ERAS Letter misleads the public and decision makers by references to data, analysis,'and conclusions that do not exist. The 2011 ERAS Letter attributes at least five conclusions to a document that contains no support for those I conclusions: 1. "ERAS concluded it was unlikely the property was still an operating orchard after the current residential buildings were constructed." (SSAR0034) 2. "ERAS indicated it had been almost 60 years since any pesticides would have been used — if they were used at all at the property." (SSAR0034) 3. "ERAS also concluded that pesticides would have affected primarily the upper surface and would have undergone significant degradation, through soil disturbance, attenuation, dilution, biodegradation and other natural processes." (SSAR0034) 4. "ERAS concluded that based on the period of time since the Property was agricultural land, and the degradation processes that had apparently occurred, there is unlikely to be a risk to future occupants PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 1 2 3 4 from residual pesticides in the soil at the Property or to the environment as a result of the proposed development." (SSAR0034) 5. "The entire area surrounding the site was also used for orchards, then developed for residential use by approximately 1960 (later than the Property itself), and nearly all the orchards and trees in the area were removed by that time." (SSAR0035) This is not a mere citation error. It is a pervasive failure to support conclusions with factual data 5 6 7 8 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 and reasoned analysis, The Amended EIR misleads the reader into assuming that a research report found outside the Amendment supports the conclusion that soil testing is unnecessary. To the contrary, the 200 ERAS Report contains no information that supports the 2011 ERAS Letter's conclusion that soil- testing should not be performed. (See AR2:0523 -81.) Without factual data to support its, conclusions, the 2007 ERAS Report is a conclusory document unsupported by factual data. In yet another example, the 2011 ERAS Letter states: "There have been no documented environmental impacts of concern related to past pesticide use in the many residences that surround the Property, there has been no documented impact of past pesticide use on the current environment in the area, including that on the Property, and ERAS does not consider there to be cause for concern that the development project itself will cause any impact to the environment as a result of past pesticide usage on the Property or in the surrounding area." (SSAR0035.) Incredibly, the exclusive source for this sweeping conclusion is an "interview" with the Real Party. (AR2:0580 at Question 17) Far from being an informative document, the Amended EIR's toxic soil impact analysis is conclusory, subjective, misleading, and evasive in nature. "The conclusory and evasive nature of the response to comments is pervasive, with the EIR failing to support its many conclusory statements by scientific`'or objective data" See Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4` 1344,1371. "The decision makers and general public should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis." San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Ca1.App.4th 645, 659. (B) The Amendment, the 2011 ERAS Letter, the 2007 ERAS Report, and the 2009 IS all analyze and draw significant conclusions from historic aerial photographs [ "Aerial photography indicates that all of the orchard trees where gone from the project site by 1974" (AR:D0179), "In the maps dated 1943, 1947, 1953 and 1955 the Property was indicated to be part of an orchard." (RJN Ex. 1 at 11.), "Subsequent aerial photographs indicated the continued presence of a few residual orchard trees on the eastern portion of the Property, none of which appeared to be of commercial use." (SSAR0035), "Additionally, no physical drainages or irrigation water conveyance features were apparent on the 1948 and 1956 aerial PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 photos." (SSAR0028)]; yet no historic aerial photos are included anywhere in the administrative record. The Amendment's core position is that these photos and orchard maps show things that exclude the property from the DTSC's Guidance and the recommendations of the DTSC's March 23, 2010 letter, both of which recommend soil - sampling. The historic aerial photos are purported to show: when commercial operations stopped, the absence of irrigation, the type of trees on the Site, and other information; yet no historic aerial photographs are in the EIR or the Amendment which was prepared specifically to address the topic of historic agricultural use. In yet another misleading inaccuracy, the 2011 ERAS Letter incorrectly states that "[m]ost of these [aerial] photographs were included in the [2007 ERAS Report]" when none were. (SSAR0035) Rather than embracing the opportunity to introduce new information that supports a reasoned analysis of the historic use of agricultural chemicals on the site the Town has chosen to keep the core data, on which their position relies, out of public view. "An expert's opinion `concerning matters within [his or her] expertise is of obvious value, but the public and decision - makers, for whom the EIR is prepared, should also have before them the basis for that opinion so as to enable them to make an independent, reasoned judgment.' Santiago[], 118 Ca1.App.3d at p. 831. If [Respondents'] position becomes the rule - -that a project proponent can pick and choose who sees pertinent data - -then a stake is driven into the `heart of CEQA' by preventing the information necessary for an informed decision from reaching the decision makers and the public. See [Laurel Heights lI]." See Communities for a Better Environment v. City of Richmond (2010) 184 Cal. App. 4th 70, 88. (C) The Town has excluded important DTSC Guidance information from the Amended EIR. The Amendment and the 2011 ERAS Letter both quote Section 2.2 of the DTSC Guidance entitled "Properties Not Covered By This Guidance ", however they both exclude the last sentence of the section, which says: "These areas may require biased, discrete sampling as opposed to the sampling for agricultural properties discussed in this document." (RJN Ex. 2 at 2.) Excluding the last sentence of the section makes it appear that graded properties should receive no testing when the true import of the section is that disturbed properties may be better sampled using a different sampling protocol. And the decision makers and the public would have no way of knowing about the Amended EIR's misleading analysis because the Amended EIR did not even include the DTSC Guidance that it attempted to distinguish. The Amendment and the 2011 ERAS Letter also misled decision makers and the public in their reliance on Section 2.3.2 of the DTSC Guidance entitled "Dry -Land Farmed Agricultural Soils." (SSAR28, 36.) Both documents exclude the last sentence of the first paragraph, which says: "For properties where there is uncertainty regarding dry -land farming, limited sampling may be conducted at a PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 ( I Ni rate of four discrete samples per site, with one sample collected in each quadrant." (See id; see also RJN Ex. 2 at 3.) Here, too, excluding the last sentence skews the meaning of the section to the benefit of Real Parties but to the detriment of informed public decision making. Both documents also exclude the second paragraph of Section 2.3.2 which goes on to say: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Some production crops such as winter wheat and barley can be grown under dry -land farming conditions. If the site has been planted in a dry -land farming production crop, every assurance should be made to determine that the crop was not irrigated and pesticides were not applied. This information may be obtained from interviews with farmers in the area, records that the County Agricultural Commissioner may have, and information the Commissioner may have about the irrigation practices for that crop in the specific county. If it cannot be clearly shown that irrigation did not take place and pesticides were not applied, limited sampling for organochlorine pesticides (OCPs) and arsenic may be necessary. At a minimum, this should include four samples per site, one sample per quadrant. (RJN Ex. 2.) The 2011 ERAS Letter notes that much of the Site has been disked for weed - control and suggest, therefore, that the DTSC Guidance would exclude the Site from recommended soil- testing. (SSAR0036.). In an omitted section, the DTSC Guidance states just the opposite: "[this guidance] is also applicable to fallow and former agricultural properties that are no longer in production and have not been disturbed beyond normal disking and plowing practices. (RJN Ex. 2. at 2) Other than the, site of the existing driveway, home, and detached cottage on a small portion of the Project Site, the site is substantively undisturbed. (Crites Dec. ¶ 7) When read as a whole, the DTSC Guidance is the threshold document for determining when and how to perform soil testing on agricultural properties "where new land use could result in increased human exposure, especially residential use." See RJN Ex. 2. at 1. When considered as a whole —and not selectively —the document recommends that soil - sampling be performed on the Project site. The DTSC Guidance document, which is only 18 pages, is not incorporated into the EIR Amendment. Excluding the DTSC Guidance from the Amendment only gives the reader glimpses of the Threshold of Significance document the Town has selected to assess the Project's impacts due to hazardous materials. Instead of simply including the whole document and fairly and in good faith analyzing its contents, the Town has pick and chose sentences in order to manipulate the conclusion. All the while keeping the DTSC Guidance hidden from decision makers and the public. "The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project." Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 1 2 I 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cordova, 40 Cal.4th at p. 442. The Town's analysis of DTSC's Guidance was calculated to mislead the public and decision makers and it should be corrected. (D) The Amended EIR still states that "since these [agricultural] chemicals biodegrade over time and were not used after 1974, the potential for these chemicals to occur on the site does not appear to be a significant environmental concern." (AR:D0179.) This statement about biodegradation is actually not in the 2007 ERAS Report, so it appears it was introduced, without a factual basis, by the author of the 2007 IS. It was debunked by the 2010 DTSC Letter yet it remains in the Amended EIR. Rather than revise and recirculate the EIR, the Town has retained these conclusory and unsupported statements in the Amended EIR. (E) The Amendment uses several presumptive leaps to reach the conclusion that the Site was a dry -farm, where the "lack of water" precludes most agricultural pests (SSAR028; RJN Ex. 2 at 3.), yet fails to square that position with the on -site perennial creek and pests such as mosquitoes in the area (AR2 :0583). Instead of providing "a good faith reasoned analysis" for not following DTSC's recommendations, the Town provided results driven and "[c]onclusory statements unsupported by references to [actual] supporting evidence." See March 2011 Order at 3:4 -15. Accordingly, the Amended EIR is inadequate and should be revised. D. The Town Did Not Consider the Final EIR Before Approving The Project 1. Resolution 2010 -092 and Ordinance 2193 In Laurel Heights 11, the California Supreme Court held that "[t]he lead agency is required to certify that the final EIR has been completed in compliance with CEQA, and that it reviewed and considered the information in the final EIR prior to approving the project." 6 Cal. 4 th 12 (emphasis added). CCR 15090(a)(2) also provides that "[pjrior to approving a project the lead agency shall certify that:... [t]he final EIR was presented to the decisionmaking body of the lead agency and that the decisionmaking body reviewed and considered the information contained in the final EIR prior to approving the project." Here, the Town never set aside its prior approvals that were based on its inadequate EIR. Therefore, the Town did not certify that it considered the Amended (and final) EIR before approving the project and did not proceed in the manner required by law. The project approval at issue is specifically the PD zoning ordinance set forth in Resolution 2010- 092 and Ordinance 2193. Town of Los Gatos Resolution 2011 ( "2011 Resolution ") (SSAR0015) states: 9. Based on the forgoing, the Town Council hereby recertifies the Final EIR, as amended, finding PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 C (� '. 1, that it has been completed in compliance with CEQA, that the Final EIR, as amended, was presented to the Town Council as the final decision - making body, which reviewed and considered the information contained in the Final EIR, as amended, prior to rating and reaffirming the prior approval of the Linda Court Project, and that the Final EIR, as amended, reflects the independent judgment of the Town. 10. The Town Council hereby ratifies and reaffirms the prior approval of the Linda Court Project, as fully set forth in Resolution 2010 -092 and Ordinance 2193, adopted September 20, 2010, and incorporated by reference. (Emphasis added.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CEQA Guidelines section 15352(a) provides: "`Approval' means the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person. The exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances. Legislative action in regard to a project often constitutes approval." Town Ordinance 2193 titled "Ordinance of the Town of Los Gatos Amending the Zoning Ordinance Effecting a Zone Change From R -1:8 To R -1:8PD at 15881 Linda Avenue and a Portion of 15950 Stephenie Lane" states in Section VI that "[t]his Ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on September 7, 2010, and adopted by the following vote as an ordinance, of the Town of Los Gatos at a meeting of the Town Council of the Town of Los Gatos on September 20, 2010 and becomes effective 30 days after it is adopted." (SSAR0020.) Given the ordinance's adoption date of September 20, 2010, its effective date 30 days after it is adopted, and the fact that the Town never withdrew Town Ordinance 2193, the "decision by [the Town] which commits the [Town] to a definite course of action in regard to [the] project" (15352(a)) is no later than October 20, 2010. Furthermore, 2011 Resolution item 10 precludes any alteration of the adopted, approval, and effective dates by ratifying and reaffirming "the prior approval of the Linda Court Project, as filly set forth in Resolution 2010 -092 and Ordinance 2193, adopted September 20, 2010, and incorporated by reference." (2011 Resolution, italics added.) In Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal. App. 4th 877, the Court of Appeals held that Planning and Zoning Law requires legislative bodies to remand to the planning commission any modification of a proposed zoning ordinance or amendment not previously considered by the planning commission and receive the planning commission's written report and recommendation: In the usual case, the Planning and Zoning Law establishes a two -stage process for a proposed zoning ordinance or amendment to a zoning ordinance. (See §§ 65854, 65855.) In the first stage, the planning commission holds a noticed public hearing on the proposed zoning ordinance or amendment to a zoning ordinance. (§ 65854.) After the hearing, the planning commission must make and transmit a written recommendation to the legislative body that includes "the reasons for PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 t the recommendation, [and] the relationship of the proposed ordinance or amendment to applicable general and specific plans." (§ 65855.) In the second stage, the legislative body, "[u]pon receipt of the recommendation of the planning commission" holds a public hearing. 6 (§ 65856.) At that point, the legislative body "may approve, modify or disapprove the recommendation of the planning commission." 7 (§ 65857.) [Footnote] 7: If the legislative body makes "any modification of the proposed ordinance or amendment ... not previously considered by the planning commission during its hearing, " the modification "shall first be referred to the planning commission for repor and recommendation, but the planning commission shall not be required to hold a public hearing thereon." § ( 65857.) In the instant case, the Town did not want to send the Resolution back to the Planning 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commission because the Planning Commission had already voted against this project. However, Gov Code 65857 requires remand upon "any modification" of the adopted, approval, or effective date of Ordinance 2193. The Los Gatos Planning Commission did not approve any modified Resolution and last considered the Project on August 11, 2010, prior to the September 20, 2010 adoption date of Ordinance 2193. CCR 15090(a)(2) withstands the verbal gymnastics of 2011 Resolution item 9. The clear intent of the subsection is to void "approvals ", including adopted zoning ordinances, made "prior" to the certification of the corresponding EIR. To find otherwise would allow project construction to proceed without a certified EIR. "If post - approval environmental review were allowed, EIR's would likely become nothing more than post hoc rationalizations to support action already taken." Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal.3d 376, 394. The Court has retained jurisdiction "confirming compliance with CEQA" (March 2011 Order at 7:13.). The Zoning Ordinance Approval does not comply with CEQA and must be set aside. 2. The Subdivision Approval Similarly, The Town approved the applicable subdivision application before it reviewed and considered the final EIR. Nonetheless, the Town never withdrew its prior approval of the subdivision. The project approval at issue is specifically the Subdivision Application M -10 -008 approved on October 19, 2010 (Subdivision Approval). (RJN Ex. 3.) The Town's own approval states: "REQUIRED FINDINGS: For Approval: 1. An Environmental Impact Report has been certified for this project..." (RJN Ex. 3.) The 2011 Resolution does not certify that the information in the final EIR has been reviewed and considered prior to the Subdivision Approval. Items 9 and 10 in 2011 Resolution (Supra.) do not even address the Subdivision Approval. Further, neither Resolution 2010 -092 nor Ordinance 2193, as fully set forth and adopted on September 20, 2010, address or approve Subdivision Application M -10 -008. PETITIONERS' OPPOSITION TO RESPONDENTS' SECOND SUPP. RETURN TO WRIT OF MANDATE Case No. 108 -CV- 106461 3. 4 5 M At its May 2, 2011 hearing, the Town Council. made no certification that the Final tIR was reviewed and considered prior to the Subdivision Approval. (SSAR0084 -86; DVD' of May Z; 2011 Hearing.) The Town could not . have certified that the final'EIR was reviewed and considered prior to approving the Subdivision Approval because the approval in,qupstion_was heard and decided on October 19, 2010, , prior to the T6wn'•s May 2, 2011 EIR certification. (RJN Ex. 3.) The Court retained jurisdiction until it had "confirmjedj compliance with 'CEQA." March 2011 Order at 7:12 -13. 'The Subdivision Approval does not comply with CEQA and must be set aside. CONCLUSION DTSC provided the Town with specific comments and recommendations. Respondents have ignored them and have refused to circulate the Amended PlR in contraveritio i do the jaw. The Amended Ea is conclusion driven and is not good faith, reasoned analysis supported by record evidence. Accordingly, the Court should deny the Return. Dated: May, 2011 21 22 23 24 25 26 27 28 i •r •: Y,L�"1'111Vl vrrva L V 1 1u 6J1 V1.�/... By �'f'II!riUR 1N By RACHEL.HOWLETT Attorneys for Petitioners `fl i . . . ...... .. ...... ...... . ...... No. H036927 IN MEDIATE (TEMPORAR-1-1 STAY REQUESTED, IN THE COURT OF APPEAL OF THE STATE OF 'FOR'ff E-CEWED SIXTH APPELLATE DISTRICT 1 2 2011 ROSS CREEK NEIGHBORS, COMMITTEE FOR GREEN FOOT" OF LOS GATOS DOUGLAS V. OWNBEY, Appellants, PLANNING DMISION V0 TOWN OF LOS GATOS, ITS TOWN COUNCIL, and SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA Respondents. LMWCbV't aft Oat M0 P. MaL LINDA COURT PARTNERS LL C et al, Real Parties in interest. ON APPEAL FROM THE COURT OF SANTA CLARA C HONORABLE LESL1E C. NICHOLS, RETIRED, 408-882-2100 DEPARTMENT 21; CASE NO, 1:08 -CV- 106461 PETITION FOR WRIT OF SUPERSEDEAS AND MANDATE AND RENIE'WED REQUEST FOR TEMPOItA. RY STAY STAY REQUESTED OF THE TRIAL COUAT'S MAY 26, 2011 DISCHARGE OF A WRIT OF MANDAMUS; IRREPARABLE RACHEL MANSFIELD-HOWLETT CA STATE BAR NO.248809 PROVENCHER & FLATT, LLP 823 Sonorna Avenue Santa Rosa, CA 95404 Tel: (707) 284-2380 Fax: (707) 284-2387 Attorney f ©r Appellants Douglas V. qwnbey, Committee for Green Foothills TIMUR ENGIN C.A. STATE BARNO. 229944 15841 Loma Vista Avenue. Los Gatos, CA'95032 Tel (408) 356-0716 Fax: (707) 284-2387 Attorney for Appellant - Ross Creek Neighbors EXHIBIT 1 0 TABLE OF CONTENTS i Page INTRODUCTION I STATEMENT OF THE CASE 3 PETITION FOR WRIT OF S tJ PERSEDEAS AND MANDATE .5 'Wby Extraordinary Relief Is Warranted 8 Absence of Other Remedies ...8 PRAYER Verification 11 DLECLARATION OF TIMUR ENGIN RELATING TO HEAWNGS C)i NIA 26, 2011 AND JUNE 10, 2011 12 NIEMORAN,DUM OF POINTS AND AUTHORITIES 14 I. The Trial Court Excecded its Jurisdiction and Ignored zn Automatic Stay 14 A. The Trial Court's March 8, 2011 Order Is Appealable 17 .13. Respondents Improperly* Are Attempting to Divest This Coact of Jurisdiction 19 C. An Automatic Stay Does Not Require a Bond 20 11. Substantial Issues Will Be Raised on Appeal 21 i A. The Town Tried To Made the Fact that It Added SigniPicant New Inibrmation to Its Amended EIR B. The Town May Not Rely on an Uncirculated EIR, to Correct a F'undanientally Inadequate EIR C. The Town Did Not Consider the Final EIR Before Approving The .Project D. The EIR Fails as an Informational Document I. The EIR Failed to Analyze Impacts to and Mitigation for Special Status Species 2. Inadequate Analysis of Hydrology and Flooding Impacts 3. The EIR Failed to Analyze a Reasonable Range of Alternatives a. The Project Violates the Town's OWn Tree Conservation Ordinance 4. The Town Ignored the Trial.Court's and DTSC's Guidance And Made Findings Directly in Conflict * that Guidance 5, The_ EIR Impermissibly Relies on Undisclosed Data CONCLUSION ii 22 25 26 28 28 32 34 36 37 40 41 TABLE OF AUTHORITIES Cases C .1 page(s) Academy of Cali, fornia Optometrists, Inc. v. Superior Courtfor Sacramento County (1975) 51 Cal.App.3d 999 19 Bakersfield btizens for Local Control v. City of Bakersfield (2004) 124 Cal.AppAth 1184 27 Banks v..Manos (1991) 232 Cal. App. 3 d 123 20 Berkeley Keep Jets Over the Bay Comm. v. Bd. of Port Comrs. (2001).9.1 Cal. ,App, 4" 1344 14, 15,16, 17 ,Betz v. Pankow (1993) 15 Cal. App. 4th 931 19 Chapala Mgmt. Corp, v. Stanton (2010) 186 CA4th 1532 8 Chawanakee Unified School District v. County of llfl'adera (June 21, 2.011) 2011 Cal. App. LEXIS 794 28 Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal. App.3d 1167 34 City of Pasadena v. City of Alhambra (1946) 75 Cal.App.2d 91 21 Cleary v. County of Stani,slaus (1981) 118 Cal.App.3d 348 33 Copley v. Copley, 125 Cal. App. 3d 248 16 Communities for a Better ,Environment v. City of .Richmond (2010) 1.84 Cal. App. 4" 70 40 Dowling v. Zimmerman (2001) 85 CA4th 1400 8 Estate of.Dabney (1951) 37 C2d 402 8 Friends of kfammoth v. Board of Supervisors (1972) 8 Ca1.3d 247 21 Friends of the Earth v..Brinegar (9th Cir.1975) 518 F.2d 322 21 Gallardo v. Specialty .Restaurants Corp. (2000) 84 CA4th 463 8 i Grant v, Board of Medical Examiners (1965) 232 Cal.App.2d 820 18 Hayworth v. City of Oakland (1982) 129 Cal. App, 3d 723 15,16 Husky v. Berini (1955) 135 Cal. App. 2d 614 16 .Kinard v. Jordan, 175 Cal. 13 14 .Kings County Bann Bureau (1990) 221 Cal.App.3d 692 35 Laurel heights .Improvement Assn. v. Regents of Univ. of Cal (1993) 6 Cal. 4tb 1112 26, 40 Lerner v. Superior Court (1952) 38 Ca1.2d 676 1 Los Angeles Unified School Dist. v. City of jos Angeles (1997) 58 Ca1.A.pp.4th at 1019 gp Mountain Lion Coalition v. Fish & Game Corm. (1989) 25,26 214 Cal. App. 3d 1:043 µ '___ National Parks & Conservation ,Assn, _ v County of Riverside (1999) 71 Cal. App. 4th. 1341 17,18 Natural Resources Defense Council, Inc. v. Morton. (D.D.C. 1971) _ 337 F.Supp. 167 21 People ex re'l. San Francisco Bay _ v. Town of Emeryville ('1968) 59 Cal.2d 533 3 Protect the Historic Amador Waterways V. _ Amador Water Agency (2004) 116 Cal.App.e 1099 33 Rodgers v. Superior Q. of Riverside (1:899) 126 Cal, 183 16 San Francisco Ecology Center v. City and County of `.dart Francisco (1975) 48 Cal.App.3d 584 33 Santiago County Water Dist: V. County of Orange (1981) 118 Cal.App.3d 818 40 ii N Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal. App. 4th 99 Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437 Sierra Club v. County of Napa (2004) 121 Cal.AppAth 1490 Triumph Precision Prods. v. Ins. Co. of North Am. (1979) 91 Cal, App. 3d 362 Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 Wildlife Alive v. Chickering (1976) 1.8 Ca13d 190 Wisconsin Heritages, Inc. v. Harris (E.D. 'Wis.1979) 476 F.Supp, 300 Statutes Cal. Code of Civ. Proc. § 904.1(a)(1) Cal. Code of Civ. Proc. § 904.1(a) (2) Cal. Cade of Civ. Proc. § 916(a) . Cal. Cade of Civ. Proc. § 917.1 Cal. Code of Civ. Proc. § 1013(a)(4) Public Resources Code § 21000(e) Public Resources Code § 21002 Pub, Resources Code §§ 21602.1(a) Public Resources Code § 21061 Public Re sources Code § 21461.1 Public Resources Code § 2108 1(a) C, � �. 22,24 35 35 19 26,33 34 21 Page(s) 17 2, 17, 18 ' 1, 14,1 5,15, 20 20 19 2 0 29, 32, 34 32 28 29,34 32 M Public Resources Code § 21092.1 Public Resources Code § 21100(b)(3) Public Resources Code § 21161.1(a) 14 Cal. Code of Regulations § 15088.5 14 Cal. Code of Regulations § 15090(a)(2) 14 Cal. Code of Regulations § 15126.4(a)(1) 14 Cal.. Code af'Regulations § 15126.4(a)( . 2) 14 Cat. Code of Regulations § 15151 14 Cal. Code of Regulations § 15126,6(b) 14 Cal. Code of Regulations § 15358(a)(2) 14 Cal. Code of Regulations § 15364 Other Eisenberg, Horvitz &"Weiner, CAT,. PR.AC, GUIDE: CIVIL APPEALS & WRITS (The Rutter Group 2010), p.7.55, § 7.272 2.1, 22, 24 32 4 22, 24, 25 26 28 32 40 34 29 29 34 Page(s) EV iv INTRODUCTION Acting without jurisdiction—and in a five sentence opinion --on May 26, 2011, the trial court discharged a Writ of Mandamus that prohibited Los Gatos from approving a. residential project beside Ross Creek in Los Gatos. Seizing the opportunity, developers have already destroyed by their own admission -- -"all but [two] of the 26 trees that they had a permit to remove" and that are protected by Los Gatos' laws. The developers are demolishing structures, destroying nests of and potentially. killing special status species, and grading the project site.. All of the twenty -six trees and the impacts on the special status species and the environment more generally were embraced by Appellants' appeal of a prior appealable order of the trial court, and thus, the trial court did not have sufficient jurisdiction to discharge the writ. The developers, nonetheless, are trying quickly to moot as many of Appellants' appellate issues as possible. Appellants have "an absolute right to supersedeas" because both the trial court and Respondents simply refuse to acknowledge the existence of an automatic stay under California Code of Civil Procedure 916(a). On November 6, 2008, the trial court issued a writ of mandamus and ordered Los Gatos to void all project approvals and refrain from issuing further approvals for the residential project. Two years later, Respondents claimed that they had complied with the California Environmental Quality Act ( "CEQ.A!) anal sought a discharge of the writ. On March 8, 2011, however, the trial court again found that Respondents had not complied with CEQA and refused to discharge its writ. While the trial court did not discharge its writ, it did overrule many of Appellants' objections to the return to writ. Appellants, therefore, appealed. Once Appellants appealed the trial court's March 8, 2011 Order, 1 unambiguous California law provides that the trial court was without i jurisdiction to act on matters embraced by or affected by the appeal, Whether Los Gatos had complied with CEQA and whether the trial court should discharge the writ were indisputably embraced by the appealed from order. On May 26, 2011, despite not have jurisdiction to do so, the trial court discharged the writ. Respondents contend that the Marcb 8, 2011 Order was "a nonappealable order" for two principal reasons; (l) it was not final and (2) the Order did not "aggrieve Appellants. Both arguments have no meant. p'irst, the March 8, 2011 (Order follows a judgment that Respondents admit was appealable. California Cade of Civil Procedure Section 904.1(a)(2), thus, provides that the March 8, 2011 Order is also appealable. Second, contrary to Respondents' argument, a party does not have to lose every single one of the arguments that it presents to a vial court in order to be "aggrieved" and to appeal a trial court's order.. Indeed, this Court has decided an association's appeal from a judgment that granted the association's petition for a writ of mandamus in a CEQA case. In any event, Appellants are also entitled to a discretionary stay because of the strength of their appeals and the fact that Respondents are doing everything in their poorer to assure that appellants will not enjoy the fruits of successful appeal Even though CEQA required Los Gatos to circulate its amended environmental impact report CUR!) because the amendment added significant new information about a significant new environmental impact, Los Gatos never circulated its amended EIR. Instead of permitting the public the opportunity to comment on the significant new information, the EIR authors attempted to hide the fact that the EIR contained significant new analysis. Specifically, the authors claimed that pa:ccxisting analysis 2 trade all sorts of findings and reached all sorts of conclusions that it did not. Moreover, the trial court explicitly found that the only EIR that Los Gatos circulated to the public was fundamentally and basically inadequate. California law mandates that a lead: agency may not rely on a fundamentally inadequate EIR to comply with CEQA's circulation requirement, and then rely on a later EIR that is not circulated to cure the deficiencies iu tlxe .earlier EIR. Otherwise, lead agencies always would release a report for .public consumption that hedges on important environmental issues while deferring a more detailed analysis to the final EIR. that is insulated from - public review. CEQA. also requires a lead agency to certify a Final EIR. before it grants project approvals, Undeterred by the law, Los Gatos approved the project's subdivision application half year before it certified the dal EIR. More fundamentally, the final EIR fails as an informational document because it does not: (1) analyze impacts to a special. status species and (2) analyze a reasonable range of alternatives. Los Gatos also refuses to fallow the California Department of Toxic Substances Control's recommendation to test the soil for chemicals and to analyze the results in an EIR. Finally, the EIR impermissibly relies on undisclosed data. As in People ex rel. Sato Francisco Bay v. Town q f Bmeryville (1968) 69 Cal.2d 533, 537, a writ is warranted; the "fruits of a reversal would be irrevocably lost unless the status quo is maintained." STATEMENT OF THE CASK The Project. The project is located on two parcels in Los Gatos adjacent to 'Ross Creep. (Ex. I at D0021, 22.) It involves a zone change from R -1:8 to R- 1 :8:Planned Development ("PD "), the removal of protected trees, and the creation of a seven -lot subdivision of multi -story single- family residences. (Id.) 3 Dense riparian habitat occurs on the site's western boundary. (rd.) There are 104 trees located in the immediate vicinity of the proposed construction. (Ex. i at A0034.) The banks of Ross Creek on the site support a mature canopy of indigenous t rees .and shrubs. (Ex. 1 at DO 173.) 'I'rees on the interior of the site and on the riparian corridor include arroyo willow, coast live oak, coast redwood, valley oak, blue oak, and California buckeye. (Ex. 1 at D0041, DO 173.) On the site, 71 trees were identified as protected under Town's tree protection ordinance. (Ex. 1 at ID0036.) Supersedeas and Stay. 'This petition seeks to stay all clearing and construction activities at the project site while this public-interest appeal is pending in light of the significant environmental impacts of those activities. Briefing should conclude by September and the appeal is entitled to preference to the extent judicially practicable. (Public Resources Code § 21167.1(x).) Supersedeas, therefore, should not slow the project onset appreciably, while being essential to protect the Court's jurisdiction and Appellants' appeal. Appellants do not seek to stop Linda Court Partners .from developing the property. However, there is wide community concern and related insistence on consideration of alternatives and environmental review of the project's toxic soil, special status species, biological, hydrologic, water _Reality, and land use ordinance violations.. Adequate environmental review should precede approval and implementation ofthe project --from which no retreat is possible. Appellants seek a remand to require the environmental review mandated by CEQA and to address and appropriately mitigate the impacts of this riparian project. The equities favor retaining the status quo while the merits of this Public interest action are heard, and supersedeas should issue. Appellants pledge full cooperation in any expedited briefing schedule that the Court 4 may set to minimize delay while protecting its jurisdiction and remedy. PETITION FOR WRIT OF SUPERSEDEAS AND.MANDATE Petitioners allege: l . Ross Creek Neighbors is an unincorporated association of concerned residents, created to preserve environmental resources in the Town of Los Gatos ( "Torun' �. 2, Committee for Green Foothills is a California non -profit corporation formcd in 1962 which consists of individuals dedicated to .protecting and preserving the .hills, forests, creeks, wetlands, and coastal lands of the San Francisco Peninsula through grassroots education, planning, and legislative advocacy and to assure compliance with environmental and land use regulatiohs in the County of Santa Clara, the County of San Mateo and the Mate of California, by participating in local environmental and land use policy application and decision making. 3, Petitioner Douglas Ownbey is a member of Ross Creek Neighbors and resides at 155 Wooded View Drive, Los Gatos. 4. Ross Creek Neighbors, Douglas Qwnbey, and Committee for Green Foothills, repeatedly objected to the approval of the project and exhausted administrative remedies. 5. Dozens of citizens, as well as representatives from local environmental organizations, including the Guadalupe- Coyote Resource Conservation District and the Santa Clara County Audubon Society, ;:lave spoken out against the project at public meetings of the Planning Commission and Town Council, and in comments submitted in response to the draft environmental impact report. On August 11, 2010, the Town's own Planning Commission voted four to one against approval of this project. That was the last time that the .Planning Commission substantively considered tine project. E 6. Respondent the Town of Los Gatos and its Town Council are the town and its elected legislative body that took the role of the lead agency under CEQA and approved the project adjacent to Ross Creek. 7. Real Parties in Interest are Linda Court Partners, the named applicant and owners who sought and received Town approvals for the project. 8. Respondent Court is the Superior Court of California, County of Santa Clara, Honorable Judge Leslie Nichols, who retired within days of discharging the writ referenced in paragraph 1,3 below. 9. The project involved a zone change from R -1;8 to R- 1:8 -.PDPI the removal of trees, and the creation of a seven -lot subdivision of single - family residences. 10. On February 21, 2008, :Petitioners filed a petition for a peremptory writ of mandamus. On November 6, 2008, the trial court entered judgment granting Petitioners' petition for a writ of mandamus and ordered the Town_ to void all approvals and refrain from issuing further approvals for a residential project in Los Gatos adjoining Ross Creek. (Ex. 2 at E0293.) The trial court went on to state that: `.`this Court will retain jurisdiction over Respondent Town's proceedings by way of a return to the peremptory until this Court has determined that Respondent has complied with CEQA" (Ex. 2 at E0302.) 11. The 2009 Draft EIR found potentially significant impacts in the areas of aesthetics, air quality, biological resources, hazards and hazardous materials, hvdrology and water quality, cultural resources, noise, special status species, and geology and soils but found that all potential impacts could be mitigated to a level of insignificance. (Ex.1 at D0011 -19.) A.,.pqblic hearing was conducted and the project was approved in September 2010. 6 t k � 12. In late 2010, Respondents claimed that they had complied with CEQA and sought a discharge of the writ. On March 8, 2011, however, the trial court again .found that Respondents had not complied with CEQA and refused to discharge the writ. (Ex. 3 at E0311.) ( "Respondent's request to discharge the writ is DENIED pending further return, and order of this Court, canfirming compliance with CEQA. "),) 13. Wile the trial court did not discharge'its writ, it did overrule many of Petitioners' objections to the return. On March 18, 2011, Petitioners filed a notice of entry of order of the trial court's March 8, 2011 order, (Ex. 3 at E4313 -316.) And on May 13, 2011, Petitioners Filed a timely appeal of the trial court's March 8, 2011 Order. (Ex. 4 at .E0317.) 14. The Town amended its EIR, but did not circulate either the amendment or the amended EIR to the public. After the Town approved the EIR, Respondents returned to the trial court and requested that it discharge the writ. On May 26, 2011, the trial court issued a five sentence opinion that discharged the writ and that also addressed a motion to tai costs, (Ex. 5 at E0323.) 15, On June 10, 2011 Petitioners timely amended their May 13, 2011 notice of appeal to appeal from. the May 25, 2011 order discharging the writ, (Ex. 4 at E0320.) 16, On June 9, 2011, Respondents began destroying trees that were embraced by Petitioners' pending appeals.. 17. June 10, 2011 Petitioners filed an ex parte application in Santa Clara Superior Court requesting the trial court issue an immediate stay and that it recognize that its May 26, 2011 discharge of the writ was void. (Ex. 6 at E0326.) On June 13, 2011, the trial court denied the ex parte application stating that "[w] hether Petitioners' appeal to the Court's earlier March 7, 2011 order denying a discharge of the writ `pending further return, 7 and order of this Court, confirming compliance with CEQA,' constitutes a challenge to an almealable order is a matter for the Court of A eal." (Ex. 9 at E0352.) (emphasis added). Why Extraordinary Relief Is-Warranted 18. This Petition seeks a Writ of Supersedeas and/or Mandate. A Writ of Supersedeas under Code of Civil Procedure section 923 is "appropriate to override the trial court's enforcement of an order or judgment that is automatically stayed... or where a party simply refuses to acknowledge an automatic stay. Indeed, in these circumstances, appellant has an absolute right to supersedeas " (See Eisenberg, Horvitz &'Wei -Der, CAL.PRAC. GUIDE: CIVIL APPEALS & WRITS (The Rutter Group 2010), p.7 -55, § 7:272 {citing Estate of Dabney (1951) 37 C2d 402 2 408; Chapala Mgmt. Corp. v. Stanton (2010) 186 CA4th 1532, 1542, fn. 8; Dowling v. Zimmerman (2001) 85 CA4th 1400,1405, fn. 6; Gallardo v. Specialty ,restaurants Corp. (2000) 84 CA4th 463, 467).) 19. All exhibits accompanying this Petition are true copies of original documents on file with Respondent Court. The exhibits are paginated consecutively from page D0001 through page G0727 and page references in this Petition are to consecutive pagination. Exhibits are cited in the farm "Ex. # at Vpppp" where `V' is the exhibit number, 'V' is the volume letter, and "pppp" is the page number. Absence of tither Remedies 20. Petitioners have no adequate remedy to correct the trial court's refusal to apply established law and acknowledge the automatic stay imposed by the perfection of the appeal, other than this Petition. The appeal on the merits of the judgment and other orders, which may have some impact on these issues will not be resolved for months. 'Therefore, a "Writ of Supersedeas is the only speedy review available, 8 U4.A.YF,R: WHEREFORE, Petitioners pray that the Court: 1. Immediately stay' any and all construction., grading, deconstruction, demolition, pre - demolition., tree or vegetation removal, and -other physical activities other than site maintenance at 15881 Linda Avenue and 15950 Stephenie Lane in Los Gatos•, 2. Issue a writ of supersedeas or other appropriate stay ordering the Town of Los Gatos, Linda Court Partners, and their employees, contractors, agents, and other persons acting in concert with, them, to refrain from allowing, engaging, or participating in any construction, grading, deconstruction, demolition, pre demolition, tree or vegetation removal, or other physical activities other than site maintenance at 15881 Linda Avenue and 15950 Stephenie Lane in Los Gatos while this appeal is pending or until further order of this Court; 3. Issue a Peremptory Writ of Mandate directing the Superior Court to vacate its order of May 26, 2011; 4. Award Petitioners the cost of this Petition, including reasonable attorneys' fees and casts; and 1 On Tune 17, 2011, Petitioners filed a motion requesting that the Court grant a temporary stay. The parties have filly briefed that motion, Accordingly, Petitioners renew their request for an immediate, temporary stay. 6 . Grant such other and f rther relief as the Court may deem just ( and proper. June 24, 2011 Respectfully submitted, Timur En SK a L& 4- Rachel Mansfield- Howlett .A.ttormeys for Petitioners 10 l Verification T, Timur Engin, am an attorney for Ross Creek Neighbors. I leave read the foregoing Petition for Writ of Supersedeas and Mandate and I lwow its contents and alleged facts are tree of any own howledge exceut as to matters stated on information and belief, and as to those matters I believe them to be true. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. This Verification was executed on this 2e day of June, 2011, . at Los Gatos, California. W Timar gin 11 I DECLARATION Or TIMUR..ENGIN RE' LATING TO HEARINGS ON MAY 26,, 2011 AND JUNE 10, 2011 I, Timur Engin, declare as follows: 1. I am an attorney for Petitioner Ross Creek Neighbors. 2. Cn May 26, 2011,: the Honorable Leslie C: Nichols held a hearing for approximately thirty minutes on Respondents' Second Supplemental Return to Writ of Mandate, which was filed on May 5, 2011. Respondents sought to have the trial court discharge its November 6, 2008 writ of mandamus. I appeared on behalf of Petitioners, who opposed the requested discharge. 3. Judge Nichols did not issue a tentative ruling either before or during the hearing. Accordingly, he did not issue any "oral statements supporting [his] rulings." 4. On June 10, 2011, on behalf of Petitioners, I presented an ex parte application requesting that the trial court stay its May 26, 2011 discharge of the writ of mandate and that it enforce its November 6, 2008 writ of mandate. Respondents appeared and opposed the application. 5. The parties appeared before the Honorable Joseph H. Iluber.. Judge Huber listened to the parties' arguments, which lasted approxi=tely 15 minutes. 6. Respondents requested the opportunity to provide a written opposition brief. Judge Huber granted the request. Later that day, Respondents submitted their opposition brief. 7. The parties' arguments during the hearing largely tracked the arguments presented in Petitioners' ex parte application and in Respondents' opposition brief that was submitted later. 8. Judge Huber graciously agreed to rule on the ex parte application quickly and he did. 12 9. ,Judge Huber did not issue a tentative ruling at the hearing and, thus, did not issue any oral statements that suppoited the order that he later issued on June 13; 2011. I declare tinder penalty of per ury, under the laws of the State of California, that the foregoing is true and correct. This Declaration was e cecuted on June 24, 2411, at Los Gatos, California. T' Engin 13 MEMORANDUM OF POINTS AND AUTHORITIES The jurisdictional issue before the Court is whether the trial court acted without jurisdiction when it decided issues that were embraced by Appellants' prior. appeal, The substantive issues on appeal are whether the Towns failed to proceed in the manner required by law by: (1) refusing to circulate the 2011 EIR Amendment so that the public could comment on it; (2) approving the project prior to certification of the final EIR; (3) certifying an EIR that failed to disclose information about the project's significant toxic soil, top- o£ -benk, and special status species impacts; (4) approving a project that does not comply with the Town's owns code; and (5) failing to analyze a reasonable range of alternatives. I, The Trial Court Exceeded its Jurisdiction and Ignored an Automatic Stay Once Appellants appealed the trial court's March 8, 2011 Order, that court was without jurisdiction to act on matters embraced by or affected by the appeal anti only retained jurisdiction on collateral matters. As the Court has held, a citizens organizations' appeal of a prior ruling of the trial court, like the one at issue in this case, di vested the trial court of jurisdiction to later discharge its writ of mandate, Berkeley Keep Jets Over the Bay Comm. v. Bd. of Fart Comrs. (2001) 91 Cal. App, 0 1344,1353,1383-84. Indeed, "[t]he loss of jurisdiction is so complete that even the consent of the parties is ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal," See Lerner v Superior Court (1952) 38 Cal.2d 676, 680 (citing Kinard v. Jordan, 1 75 Cal. 13,16), Appellants' "appeal stayed] proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order..." See Cal. Code of Civ. Proc, § 916(a). As the Court has explicitly held, Section 14 C CCP 916 subdivision (a) applies to proceedings on a writ of mandate, like this action. gayworth v. City of Oakland (1982) 129 Cal. App. 3d 723, 727 ( "[CCP Section 916(x)] is applicable to proceedings on a writ of mandate.'). The trial court's March 8, 2011 Order embraced and affected, inter alia: (1) whether the writ had been fully satisfied (Ex. 3 at E0306:4 -10); (2) Appellants' "objections to the Writ return" (id. at E0306 :11-.13); (3) the "adequacy of the [Town's] EIk" (id, at 10306:14 -28); (4) "Whe adequacy of the lead agency's responses to comments on the Draft EIR by sister agencies" (id. at E0308 :5 -6); (5) "whether pesticides or herbicides are in fact present in the soil or water at the project site at all or at concentrations that pose a risk to human health" (id, at E0310 :20 -22); (6) whether the Town had "compli[ed] with CEQA'; and, most importantly, (7) whether the writ should be discharged (id. at E0311 :12 -13). Given Appellants' existing appeal, the trial court was without jurisdiction to address any of these tissues in subsequent proceedings. Yet that is exactly what the trial court did on May 26, 2011, when it issued a five sentence opinion that discharged the writ (and that also addressed a motion to tax costs). (Ex. 5 at E0323.) The Berkeley ,Keep .lets Over the Bay case demonstrates that the trial court was powerless to discharge the writ. In that case, as in this one, the trial court issued a preemptory writ of mandate ordering the lead agency to prepare an environmental impact report (``EIR ") that complied with CEQA. 91 Cal. App. 4th at 1350. As in this case, citizen organizations appealed the trial court's decision, because they felt that the trial count's decision did not correctly recognize many other significant inadequacies of the EIR at issue. Id. at 1353. Despite the Appellants' appeal, the trial court later went on to discharge the preemptory writ of mandate. Id, The Court reversed the trial court, because the citizen organizations' 15 appeal of the trial court's prior ruling divested the trial court ofjurisdiction to discharge its writ of mandate. Id. at 1353, 1383. Thus, the Court ordered the trial court to order the lead agency to vacate its later certification of a supplemental EIR and not to approve the project until it had a legally sufficient EIR. 91 Cal. App. 4`" at 1383-84; see also, Hayworth v.. City of Oakland (1982) 129 Cal. App. 3d 723, 727 (citing CCP 916 and holding that the trial court erred when it concluded that its proceedings were not automatically stayed by writ of mandamus proceedings that had been appealed); Copley v, Copley, 126 Cal. App. 3d 248, 298 (1981) (citing CCP 916 and holdixrg that "jdjuring the pendency of an appeal, the trial court is without poorer to hear a motion to vacate judgment from which an appeal has been taken "); Rodgers v. Superior Ct. (1899) 126 Cal. 183 (appeal divested trial court of jurisdiction to decide whether defendant had complied with judgment's prescribed conditions for dissolution of injunction).' a While Respondents relied on Husky v. 8erzni (1955)135 Cal. App. 2d 614 in trial court proceedings, that case actually supports Appellants' position.. The .:Musky Court held that "if the trial court's jurisdiction was suspended in regard to the matter with which the present order appeared from is concerned then appellants herein are correct in asserting that such order is void." 135 Cal App.2d at 616. The Court went on to hold, though, that trial courts retain jurisdiction over "collateral matters" not embraced by the appeal, Id. at 6:17. Thus, even though the appellants, personal injury plaintiffs attorneys, argued that the trial court's order divvying up attorneys' fees was invalid as a result of the personal injury defendants' prior appeal of the trial court's liability deteimiination, the Court held that the trial. court could properly enter a judgment stating that defendants had satisfied the liability judgment by paying the personal injury plaintiff. Id. at 617 -18. Here, the Court is not presented with collateral matters; it is presented with the exact matters that are embraced by Appellants' appeal. See Ex. 6 at E0327:17 -25. 10 t -,A r A. The Trial Court's March 8, 2011 Order Is Appealable Appellants have already asked the trial court to vacate its May 26, 2011 discharge of the writ or to stay the discharge. Respondents, however, opposed and contended that the trial court's March 8, 2011.Order was ``a noaappealable order for two reasons: (1) it was not final and (2) Appellants were not aggrieved parties. (Ex. 7 at E0337:19- E0338:8.) Both of Respondents' reasons are unsupported by California taw. The trial court, nonetheless punted: "Whether A eltants' a at to the Court's earlier March 7, 2011 order denying a discharge of the writ `pending further return, and order of this Count, confirming compliance with CEQA,' .constitutes a challen a to an appealable order is a matter for the Court of A cal (Ex. 9 at E0352 (omphasis added).) The March 8, 2011 Order followed the trial court's November 6, 2008 judgment issuing a writ of mandamus. Because the November 6, 2008 judgment was appealable (Berkeley Keep .lets Over the Bay Comm, V. Bd. of Port Corms. (2001) 91 Cal. App. 4 1344,1353 (deciding appeal from the grant of a preemptory writ of mandate in a CEQA, case)), the March 8, 2011 order fallowing that judgment was also appealable. See CCP § 904.1(a)(1) -(2) ( "An appeal, other than in a limited civil case, may be taken from any of the following: (1) From a judgment.... (2) From an order made after a judgment made appealable by paragraph (1) "); see also, National Parks & Conservation ,assn. v. County of Riverside (1999) 71 Cal. All cites in this Petition are to the published Berkeley Keep_ ,lets Over the Bay decision. While Respondents have asserted that the Court of Appeal's "reasoning" is in an unpublished portion of the opinion (Ex. 6 at 5:24 -26), they do not dispute that the Court held in the published decision tha t he trial court's discharge of its writ of mandamus after one of its prior rulings was appealed was. rendered invalid "by the court's lack of jurisdiction to enter an order discharging the writ." 91 Cal. App. 4" at 1353,1383. 17 App. 4th 1341, 1348 (deciding appeal from an order on a return to writ that did not discharge the writ in a CEQA case). Indeed, Respondents admitted in the trial court proceedings that the November 6, 2008 judgment was appealable. Ex. 7 at E0338:18 -21. Thus, the Court's :March S, 2011 Order following that judgment is also appealable. CCP § 904.1(a)(2). Respondents also cited one case regarding an "aggrieved party" and asserted. that that case hold that "a party is not aggrieved by, and cannot appeal from, a judgment which is in his favor (Ex. 7 at E0337:25 E03338 :2 (citing Grant v. ward ofUedical Examiners (1965) 232 Cal.App.2d 820, 827) (emphasis added).) That is not what the Grant Court held: Rather, the Grcint Court Noted "that a pai ty is not aggrieved by, and carin©t appeal from, a judgment which. is entirely in his fava t," 232. Cal. App.2d. at 827 (emphasis added); see also id. at 828 ( "[T]he findings anal determination of which appellant [doctor] complains [on appeal] no longer have legal. existence although obviously they cannot be erased from the paper on which they were written. Since the situation is as though no [disciplinary] proceeding had been brought, it is also as though no [challenged) findings or determination had been made!) Unlike the Grant case, the trial court's March 8, 2011.Order finally decided five issues against Appellants that the court never addressed again. (Ex. 3 at E0307:26- E0308:4.) The Court certainly did not "expunge" its adverse railings on these issues from the record by deciding those issues in Appellants' favor. See Grant, 232 Cal. App.2d at 828 (medical board "expunged" its findings from the record). Thus, the Court's March 8, 2011 Order is appealable. See National Parks & Conservation Assn. v. Couniy of - Riuorerdo (t 406) A? C xl Ann 4th i i0i 1 509 (hivirinsr enmervation association's appeal of a iudment granting; the conservation association's petition. for a writ of mandate because trial court had found two of the 18 association's challenges unmeritorious). Particularly where the operative facts are undisputed, and the sole question is one of law, a writ will issue to compel a correct order if discretion can legally be exercised .ire only one way. (aee Acade, )� of California Optometrists, Inc, v. Superior Court for,Saeramento Cozmty (1975) 51 Cal.App.3d 999.) Here, the trial court acted without jurisdiction and the Court should issue a writ. JR. Respondents Improperly Are Attempting to Divest This Court of Jurisdiction Appellants'. May 13, 2011 notice of appeal `prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it Betz v. Pankow (1993) 16 Cal. App. 4th 931, 938 (emphasis added and citation omitted). "The purpose of the rule depriving the trial court of jurisdiction in a case during a pending appeal is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided." Id Operating under the trial court's invalid discharge of its writ, Respondents have no interest in maintaining the status quo. Rather, they are zipping protected trees out of the ground, demolishing existing structures, potentially killing woodrats, and moving soil despite the fact that 4 In apposing Appellants' motion for a temporary stay while the Court decides this Petition, Respondents asserted that an unsigned "Proof of Service" that did not have a date stamp and that did not comply with CCP 1013(x)(4) rendered Appellants' May 13, 2011 notice of appeal untimely. For all of the reasons discussed in Appellants' Reply Brief in support of their temporary stay motion., the Clerk's unsigned "Proof of Service" did not comply with CCP 1013(a)(4) and t° it is as though notice were never mailed by the clerk." .(Triumph Precision Prods. v. Ins. Co. of North Am. (1979) 91 Cal, App. 3d 362, 365 (finding notice of appeal tirnely filed due to ineffectiveness of clerk notice); see also, Appellants' ;Tune 2.1, 2011 Reply Brief In Support of Appellants' Motion For a Temporary Stay to 19 Appellants' appeal challenges the destruction of protected trees and habitats on the property and the discharge of soil and debris that no one has tested for pesticides despite the fact that the subject property used to be a commercial orchard. The developers have already destroyed ---by their own admission all but two of the 26 trees that they had a permit to remove." (OOP- to Motion t4 Stay at 2.) Without a stay, Respondents will irreparably harm Appellants and the environment. And with a stay, Respondents will. not be irreparably harmed. If they win on appeal, they would be free to resume the project anew. C. An ,Automatic Stay Does Not Require a Boxed In opposing Appellants' .motion for a stay in this Count, Respondents requested "a hearing for the setting of a bond." (June 20, 201.1 Respondents' and Real Parties Opposition to Request for Immediate Stay at 2.) Because Appellants are entitled to an automatic stay under CCP 916(a), no bond is required. Furthermore, an order that does not impose damages need not be bonded, because it "would essentially negate the automatic stay provisions of Code of Civil Procedure section 916." Cf. Banb v. Manos (1991) 232 Cal. App. 3d 123, 126 -127 (holding of'Banks v. Minos regarding judgment for costs superseded by amendment to CCP § 917.1) Indeed, Respondents do not contend that an. applicable exception to Section 916(x) exists in CCP 917.1 -.8 that would require the posting of abond. Moreover, even if the Court were to issue a discretionary stay instead of enforcing the automatic stays the Legislature has made it clear that citizens, as well as environmental groups, should assist in enforcing CEQA's mandate: "Every citizen has a responsibility to contribute to the preservation and enhancement of the environment." (Pub. Resources Code § 21000(e).) Imposition of a substantial bond requirement on grassroots, Enforce Automatic Stay Under CCP 916(a) at 3 -6.) 20 C C environmental groups and an individual citizen, like appellants, would frustrate the policy of citizen enforcement of CEQA, Federal courts have recognized that imposing hefty bonds would contravene policy encouraging private enforcement of federal laws to protect the environment. (Wisconsin Heritages, Inc. v. Harris (E.D, Wis. 1979) 476 F.Supp. 300; Friends of the,Earth v. Brrinegar (9th Cir. 1975) 518 F.2d 322, 323 (reduced a $4,500,000 undertaking to $1,000), Natural Resources Defense Council, Inc, v. Morton .(D.D.C.197.1) 337 F.Supp. 167, 168 -169 ("requirement of more than a nominal amount. as security would . stifle the intent of the Act ").) The same reasoning applies to the California statutory scheme. (See Friends of Mammoth v. Board of Supervisors (1972) 8 Ca1.3d 247, 261 (Since CEQA is modeled on the National Environmental Policy Act (NEPA), federal authority construing NEPA is persuasive.).) 11. Substantial Issues Will Be Raised on Appeal .Apart from the fact that an automatic stay should be in place, Appellants are entitled to a discretionary stay. Appellants will raise substantial issues on appeal (as summarized below), and without a stay, Appellants will be irreparably harmed (as explained in the preceding section). Writ of Supersedcas may issue on any conditions which the reviewing court deems just and will normally be granted upon a showing that, (1) the appellant will suffer irreparable harm absent a stay of the proeeedin.gs, and (2) substantial issues will be raised on appeal. (City of Pasadena v. City ofAlnambra (1946) 75 Cal.App2d 91, 98.) 21 A. The Town Tried To hide the Fact that it Added Significant New Information to Its Amended EIR The Town was required to circulate its amended EIR.because the amendment added significant new information about a significant now environmental impact. hazardous pesticides. While the 2011 Amended EIR contains significant new information; and analysis,, its authors attempted to obscure that fact. Specifically, the authors claimed that preexisting analysis made all. sorts of findings and reached all sorts of conclusions that it did not. "If, subsequent to the period of public and interagency review, the lead agency adds `significant new information" to an EIR, the agency must issue new notice and must `recirculate" the revised EIR, or portions thereof, for additional commentary and consultation. (Save Our Penint ula Committee v, Monterey County Bd. of Supervisors (2001) 87 Cal. App. 4th 99, 130 (citing Pub, Rcsources Code § 21092.1; Guidelines, § 15088.S(a ),) The 2011 Amended EIR indisputably contains "significant new infbnnation "--- though its authors attempted to obscure that fact. The 2011 Amendment relies entirely on the 2011 ERAS setter for its analysis of hazardous chemicals. (Ex, 10 at E0378 -382.) The 2011 ERAS Letter attributes whole reams of data and analysis to a pre- existing 2007 ERAS Report that are not in that report. For example, with respect to orchards and agricultural pesticides, the 2007 ERAS Report includes only the following four sentences: "In the maps dated 1943, 1947, 1953 and 1955 the Property was indicated to be part of an orchard. In 1968, 1973 and 1980, the Property was indicated to be of Tian land use with no individual building definition shown ".... Application of Pesticides, Herbicides or Fertilizers No evidence of the application of pesticides, herbicides, or _fertilizers was indicated during the on -site reconnaissance. 22 The Property included part of an orchard from approximately 1955 to at least as long ago as 1943, (Ex. 11 at E0443, 446, 447.) The 2011 ERAS Letter, nonetheless, states that the 2007 ERAS (or ESA) report reached all of the following <`Monclusions" regarding orchards and agricultural pesticides: Conclusions of Phase I ESA The previous ESA indicated that part of the Property was used as an orchard from prior to 1943 until: approximately 1955. Howevcr, the Property also appeared to contain a residence in 1948 and ERAS concluded it was unlikely the property was still au operating orchard after the current residential buildings were constructed on the Property in 1948. ERAS indicated it had been almost 64 ,years since any pesticides would have been used -if they were used at all at the Property. ERAS also concluded that pesticides would have affected, primarily the upper surface and would have undergone significant degradation, through soil disturbance, attenuation, dilution, biodegradation and other natural processes..In addition, there was no indication fiom historical research that buildings where pesticides would have been stored were located on the Property. EI1AS concluded that based on the period of time since the Property was agricultural land, and the degradation processes that had apparently occurred, there is unlikely to be a risk to future occupants from residual pesticides in, soil at the Property or to the environment The entire area surrounding the site was also used for orchards,, then developed for residential use by approximately 1960 (later than the Property itself), and nearly all the orchards and trees in the area were removed by tl-,at time. There have been no documented environmental impacts or concerns related to past pesticide use in the many residences that surround the Property,'there has been no documented impact of past pesticide use on the current environment in the area including that on the Property, and.ERAS does not consider there to be, cause for concern that the development project itself will cause any impact to the environment as a 23 result of past pesticide usage on the property or in the surrounding area." (Ex. 10 at E0388, 389.) The information referenced b the 2011 ERAS Letter does not exisi in the 2007 ERAS Report. Indeed, Respondents never contested this fact in the trial court procecdings. Since the entire section on the threat of pesticides in the 2011 ERAS letter is significant new information,, the Town was required to circulate the Amendment or the EIR. (See 87 Cal. App. 4th 99, at 130.) It did not, And the Town argued extensively in the trial court it did not have to. Ex. 13 at E0494. Moreover, "`[slignificant new information' re€luiring recirculation include, for example, a disclosure showing that:... (1) A new significant environmental impact would result_from the,project or from a new mitigation measure proposed to be implemented." 14 CCR 15088.5(a )(4). The trial court explicitly found that the 2010 Circulated EIR "did not identify the [pesticide contamination in soils] issue as even a potentially significant environmental concern." (Ex. 3 at E0310:25 -2$.) The trial court went on to provide guidance to the Town on what should be done to address "significant environmental issues raised" in comments by a sister public agency, the California Department of Toxic Substances Control. C DISC "). Id. at E0309:27- E0310 :3. Thus, the March 20.11 Order and the resulting amended EIR raised a "new significant environmental impact [potentially 5 For the Court's convenience, Appellants attach word searchable electronic versions cif the 2011 ERAS Letter and the 2007 ERAS Report (Ex. 12). 6 Even if Respondents were to argue now that they did circulate the amended EIR to D the Town did not circulate the amended EIR to the public. (Ex. 10 at E0426, E0368). Because the public had extensively commented on the original EIR, the Town was required to circulate the amended EIR to the interested public. (14 CCR 15088:5(f)(3) ("As part of providing notice of recirculation as required by public Resources Code Section 21092.1, the lead agency shall send a notice of recirculation. to 24 resulting} from the project" and the Town was required to circulate the 2411 Amended EIR. E. The Town May Not Rely on an Uncirculated EIR to .Correct a Fundamentally Inadequate EIR Lead agencies may not satisfy the circulation requirement with an EIR that is "fundamentally and basically inadequate and concluso y in naturre" and then amend that EIR without re- eirculatin, it, (Mountain Lion Coalition v. Fish & Came Corry. (1989) 214 Cal. App. 3d 1443, 1049; 14 CCR 15088.5(a)(4) (Circulation required when "The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded "),) . The circulated EIR in the instant case precluded "meaningful public .review and comment" on the toxic soil issue, because, as the trial court found, the circulated EIR did not identify pesticide contamination in the soil "as even a potentially significant environmental concern. (Ex. 3 at E0310.25 -28.) Even though the express purpose of the 2011 amended EIR was to address the significant environmental concern—toxic soil—tbe Town never circulated the amended EIR. In Mountain Lion Coalition, the trial court found a draft EIR. (which had been circulated) insufficient in its cumulative impacts analysis and refused to consider the adequacy of a more robust, final EIR that was NOT circulated to the public. 214 Cal'. App. 3d 1043, 1049. This Court affirmed and refused to permit the final, uncirculated EIR, to cure the cumulative .- imuacts deficiencies in the circulated EIR: The cumulative impact analysis contained in the final EID has never been subjected to public review and criticism. If we were to allow the deficient analysis in the draft EID to be bolstered by a document that was never circulated for public every agency, person or organization that commented on the prior OR.").) 25 comment, we would not only be allowing appellants to follow a procedure which deviated substantially from the terms of the writ, but we would be subvet tin g the imi2ortant uhlk P=oses of CEOA Only at the stage when the draft ETD is circulated can the public and outside'agencies have the opportunity to analyze a proposal and submit comment. No such right exists upon issuance of a final EiD unless the project is substantially modified or new information becomes available. (See Cal.Code Regs., tit. 14, § 15162.) To evaluate the draft EID in coniunction with the final ETD in this case would countenance the practice of releasing a report for public consixnttion that hedges on im i�rtant environmental . issues while deferring a more detailed analysis to the final ETD that is insulated fmm public review Id. at 1052 (emphasis added), An EIR "must present information in such a manner that the foreseeable impacts of pursuing the project can actually be understood and weighed, and the public must be given an adequate opportunity to comment on that presentation before the decision to go forward is made." Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 449 -50. The flown robbed the interested public of the agility to comment on the amended MR. Accordingly, art in Mountain r nn Coalition, the Town did not comply with CEQA. C. The Town Did Not Consider the Final EIR Before Approving The Project "The lead agency is required to certify that the final EIR has been completed in compliance with CEQA, and that it reviewed and considered the information in the final EIR prior to approving the project." (Lau Heights Improvement Assn., v. .Regents of Univ. of Cal. (1 993) b Cal. 4th 1112 see also CCR 15090(x)(2) ( "Lplrior to approving a project the lead agency shall certify that:.. , (t]he final EIR was presented to the decisionmaking body of the lead agency and that the decisionmaking body 26 �NVr \\ 19 reviewed and considered the information contained in the final EIR prior to approving the project. ").) The Town approved the applicable subdivision application before it reviewed and considered the fnal EIR. (Ex. 14 at E049 Nonetheless, the Town never withdrew its prior approval of the subdivision. (Ex. 10 at H0423 -29,) On October 19, 2010, the Town. approved Subdivision Application M -10 -008. (Ex. 14 at E0498.) The Town's own approval states: "REQUIRED FINDINGS, For Approval: 1. An Environmental Impact Report has been certified for this project..." (Id. at B0501 :} The 2011 Resolution approving; the project does not certify that the information in the final EIR had been reviewed and considered prior to the 2010 subdivision approval. Items 9 and 10 in 2011 Resolution do not even address the Subdivision Approval. (Ex. 10 at E0428.) The Town could not have certified that the final EIR was reviewed . and considered prior to approving the Subdivision Approval, because the approval in question was heard and decided on October 19, 2010, prior to the Town's May 2, 2011 EIR certification. (Ex. 14 at E0498.) The Town never voided the subdivision application that it approved on the basis of an inadequate EIR. "[T)lle ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision - .makers, and the public, with the information about the project that is required by CEQA." See .Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1221 (citation omitted). The Town did not comply with CEQA. See id. (Because existing EIR did not comply with CEQA, "the project approvals and associated land use entitlements also must be voided.") 27 D. The EIR Falls as an Informational Document 1. The EIR Failed to Analyze Impacts to and Mitigation for Special Status Species The San Francisco dusky- footed woodrat ( "woodrat") is a California Department of Fish ,& Game ( "F &G") species of special concern: "taxa given special consideration because they axe biologically rare, very restricted in distribution, declining throughout their range, or at a critical stage in their life cycle when residing in California ar taxa. that are closely associated with a habitat that is declining in California." (Ex. 1 at D0217) In 2007, the Town's consultants concluded that woodrats were not expected to occur within the project area. (Id. at D0058.) In 2009, nonetheless, the Town's consultants actually observed two active woodrat nests within the project vicinity. (1d at D0058, 216.) The body of the 2410 draft EIR erroneously stated that the Town's consultants identified only one active dusky - footed woodrat nest. (Id. at D0058.) When the public pointed out this error, the Town. conceded that the second nest was identified as being in the southwest corner adjacent to the project, but claimed that the second nest is outside the project boundary, (Ex.. 16 at F0522 -23; 545 -46.) The Town also conceded that " [ilt is possible that additional [nest) structures may be present at the time that project activities are initiated." (Id. at F:0545.) The final EIR did not include any other information or analysis about the second nest, much less any "additional structures" that might be present on the site. (Id. at F:0545 -46.) "The purpose of an environmental impact report is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment ...' —nest just the project site. (Pub. Resources Code § 21061; Chawanakee UnIJI'eed 0 School District v. County of Madera (June 21, 2011) 2011 Cal. App. LEXIS 794, at *21 ( "the project's indirect impacts on parts of the physical environment that are not school facilities are not excused from being considered and mitigated" in an Ell,); 14 CCR § 15358(a)(2) ( "Effects include: —(2) Indirect or secondary ettects which are caused by the project and are later in time or farther removed in distance, but are still reasonably foreseeable." ).) The Town's consultant admitted that both nests are "within [the] project vicinity. (Ex. 1 atAO?16.) Indeed, the second nest vas included in the survey conducted for the project. (Id.) By excluding information, analysis, and mitigation measures for the second nest simply because the Town asserted that the nest fell just outside the project property lines, the Town failed to proceed in a nxanner required by law. The 2008 project plans found that the western treeline of the property contained significant riparian habitat as defined by F &G. (Ex. 15 at FO512; Ex. 30 at GO727.) 'Yet contrary to the F &G analysis, the 2010 project plans no longer identify the western border of the project as riparian habitat and, thus, no required setback exists even though a special status species' nest was identified in this area. (Ex. 1 at DO 146, Ex. 1' 5 at F0512.) The 2011 Amended EIR. states in a conclusory fashion that the F &G analysis is "mistaken j" (Ex. 16 at F0554), but when Appellants wrote to F&G and asked if it intended the western dripline to be part of the protected riparian zone, F&G wrote back and said: "Yes." (Ex. 17 at F0559,. Ex. 18 at FOS62.) On the one hand, thus, the Town relies on F&G's determination of what the riparian zone is, because it provides a purportedly adequate buffer for the woodrat nest on the northeast portion of the property. (Ex. 16 at F0545 -46 ("Based on conversations with D. Johnston of [F&G} (2010), the 29 protective exclusion zone for any woodrat nest/structures should follow the riparian. dripline and associated buffer. The existing nest/structure lies within the riparian habitat where no disturbance will occur. "); see also Ex. 17 at F0556 (Town responding that " twoodrat m]itigatioris for this project were developed in consultation with Dave Johnston and are included in the DEIR. , . .') (emphasis in original).) On the other hand, when F &G's determination of what the riparian. zone is conflicted with where the developer wanted to stick houses, the Town concluded that F&G.was "mistaken[]" in its determination. (Ex. 16 at F0554.) The EIR is not "a good Faith effort at t'ull disclosure." (See 14 CCR 15151,) The EIR.:does not "provide decisi,annaakers r?sritlt itifarriaatiari which enables them to make a decision which intelligently takes account of environmental coffisequences." (Se, rd.) zt is co cluision- oriented, self contradictory "analysis" that does rtcit comply with CE A. Regardless of whether the area is classified as riparian, the 2011 Amended EIR is not an adequate informational document bee adse it does not analyze the irripact or discuss feasible mitigation measures for the second nest of special status species; it certainly did not respond to specific suggestions for rrnitigatian< (Ear. 16 at F0522 -23; Etc. 30 at G0721 ;14 CCR" § 15126.4(a)(1); L& Angeles United School - Dist. v. City of `,Los Angeles (1907) 58 Cal.App.4th at 1019 (An Elk must respond to specific suggestions for mitigation of :a significant impact unless facially infeasible.) One obvious mitigation included using the setbacks that the Town itself formerly proscribed along the western boundary, (Ex, 15 at F0512 ; Ex. 30 at G0727.) The 2011 ,Amended EIR. and F &G concede that individuals die during relocation attempts and thus relocation of the dusky - footed woodrat is not considered an effective mitigation measure. (Ex. 16 at F0546; Ex. 18 WEI .. .. , . ...` : fully enforceable. (Pub. Resources Code §§ 21002.1(a), 21100(b)(3), Guidelines, § 15126.4(a)(1) -(2); see also Pub. resources Code §§ 21002, 21081(a).) There is no evidence that either mitigation zniniXnizes, reduces, or avoids the impact. Rather than stating without supporting evidence that the impact is mitigated to insignificance (Ex. 1 at b0078 -9) the EIR should have disclosed and fully analyzed the impact. 2. ,Inadequate Analysis of Hydrology and Flooding Impacts The project's top of bank delineation was made in 2006 prior to the Town's adoption of the Guidelines & Standards (G &S) for Land. Use and Strearris. (Ex. 23 at F0624; Ex, 24 at F0659.) The G &S establish setback requirements for structures built near streams order to protect bank stability (Ex. 25 at F0691 -94.) The setback is measured from the "top of bank," which is defined to contain "the active stream channel, active floodplain, and their associated banks." (Id. at F0689, F0703.) The 2006 top -of -bank that was delineated by the W estfall Engineering, a residential civil engineering firm with no expertise in either hydrology or fluvial geomorphology, "appears to be the top of the active channel bank." (See Ex. 16 at F0555a.) Only three specialists with expertise in the field of geomorphology have studied the project site and all three advised the Town that the tap -of- bank is incorrect because it does not adequately incorporate the active floodplain. (Ex. 23 at F0624 (Watershed Systems, Robert Curry, Ph.D., F.G., Registered Professional Geologist and Hydrologist); Ex. 24 at F0659 (NewFields River Basins Services, LLC, Mark Thompson, Ph.D., P.E., principal engineering geomorphologist and ecological engineer, Anthony Falzone, lvl.L.A., senior fluvial geomorphologist), Ex. 26 at F0717 (Guadalupe- Coyote Resource Conservation District, Lawrence Johmann, 32 ( M , P.E., President).) Dr. Tompkins of NewFields River Basins Services explains the importance of the top of bank designation with regard to impacts analysis. "[.Flailure to utilize all available features to identify top of bank could result in negative impacts on fixture channel stability, flood control, and creek corridor habitat." :(Ex. 24 at F0665.) In response, the Town has stood by its outdated top -of- -bank delineation that conflicts with its own guidelines. Neither Westfall nor the Town, has provided any data or analysis in the EIR showing how the top-of- bank was delineated, what flows it will contain, or why it does not appear to include the active floodplain. (Ex. .1 at D0447.) " [W here comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored: There must be goodfaith, reasoned analysis in respons ." (Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 357 (emphasis in original; citations omitted).) In addition, an E1R's analysis of environmental impacts must be sufficient to provide lead agencies with information that will enable them to make a decision that "intelligently takes account of environmental consequences." (San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App:36 584.) If an BIR fails to disclose information about a possible simifiaant environmental effect. this constitutes a failure to proceed in the manner required by law. (Vineyard d rop tiQrrr at C"iP+1 n-f Arin�l�n C`medn In OA( t1() rnl tlth AO Xl — r Protect the Historic A.nmdor Waterways v. Amador Water Agency (2004) 116 Cal.App.4 h 1099, 11.08 -1109. The EIR lacks any data or analysis regarding the delineation of the top of bank, which is a necessary component of any meaningful analysis of 33 the hydrological impacts of the Proposed project. Therefore, the MR fails to disclose information about the possible significant effects of the project. 3. The EIR bailed to Analyze a Reasonable Range of Alternatives A critical flaw in the EIR. is the failure to adequately evaluate a reasonable range of alternatives. As the California Supreme Court has explained, "One of [an EIR's] major functions... is to ensure that all reasonable alternatives to proposed projects are thoroughly assessed by the responsible official." (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190 197.) An Ella for any project must consider a reasonable range of altemativcs, which (l) offer substantial environmental advantages over the project proposal (Pub.Resources Code, § 21002) and (2) may be "feasibly accomplished in a successful mariner" considering the economic, environmental, social and technological Factors involved. (Pub. Resources Cade, § 21061.1; 14 CCR § 15364; Citizens r�, f Goleta Valley v. Board of Supervisors (198 8) 197 Cal. App.3d 1167,1181.) Thus, "... the discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly. (14 CCR § 15126k(b).) In discussing the range of alternatives required in an EIR, the EIR in this rase states. `°The guidelines further require that the discussion focus on alternatives capable of eliminating significant adverse impacts of the project, or reducing therm to a level of insignificance even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly." (Ex. 1 at D0117.) The EIR there proceeds to discuss only two substantive alternatives to the project, a 5- 34 home and a 6 -home alternative, yet admits that neither alternative would reduce the identified significant project impacts to the San Francisco dusky- footed woodrat, special status bat species, damage to retained trees, erosion and sedimentation into Ross Creek, construction emissions, sails constraints, and construction noise. (Id. at DO 120-23. Although the EIR concludes that both alternatives would slightly reduce the.potential impacts to the San Francisco dusky - footed woodrat, "[n]either Alternative 2 nor 3 would substantially reduce the other identified significant impacts."' (Id. at D0011.) The EIR contained no alternatives that offer substantial environmental advantages over the proposed project, even.though two alternatives — a three or four -home development — were identified as potentially feasible and environmentally superior alternatives. (Ex. 16 at F05231 F0531 -32; Ex. 25 at F0695 -97; Ex. 27 at F0721.) And despite the fact that the Town admits that if all of the Town's code and regulations were followed, only one house could be built on the property (Ex. F4359.), the Town never analyzed a one home alternative. If an alternative is identified as at least potentially feasible, an'in- depth discussion is required. (Save Round Valley Alliance v. County co, f `Inyo (2007) 157 Cal.App.4th 1437,1457; Sierra Club v. County of Napa (2040 121 CaLAnoAth 1490. 1504 -1505. fn. 5,1 As the court in Kinzs County Farm :bureau (1990) 221 Cal.A.pp.3d 692, stated "[a] legally adequate EIR 'must produce information sufficient to permit a reasonable choice of Alternatives so fair as environmental aspects are concerned. "' (Id. at 733 (citation omitted).) The EIR in this case fails as an informatioxial document because the EIR completely lacked any discussion of any identified potentially feasible alternatives that offer substantial environmental advantages over the project proposal. i a. The Project Violates the Town's Own Tree Conservation Ordinance The Town's awn tree ordinance states; In connection with a proposed subdivision of land into two (2) or more parcels, NO PROTECTED TREE SHALL BE REMOVED UNLESS REMOVAL IS UNAVOIDABLE due to restricted access to the property or deemed necessary to repair a geologic hazard. (landslide, repairs, etc.) The tree removed shall be replaced in accordance with the standards in section 29.10.0985 of this Code. Tree preservation and protection measures for any lot that is created by a proposed subdivision of land shall comply with the regulations of this Code. (Ex. 19 at F0567-68.) (emphasis added).) The Town, nonetheless, has approved the project, which contemplates reimving 26 protected trees. The 2011 Amended. EIR never even purports to establish that the removal of the protected trees was "unavoidable," Moreover, the 2011 Amended EIR never even addresses a project —much less analyzes ----a project that would comply with the Tree Ordinance, The EIS. states that there, are 75 ordinance -size trees on the site:. (Ex. _t at D0036,) The Town approved the destruction of 45 trees on the project site, including 8 coast live oak trees, I redwood tree, / large eucalyptus tree, 35 non- native horticultural and/or fruit trees, and 26 trees protected by the Town's tree ordinance. (Id. at 10039.) "Most of the trees would be removed to accommodate site driveways and residences" ---not due to "restricted access to the property or [because] deemed necessary to repair a geologic hazard." (Td.; Ex. 19 at F0567W68..) The project indisputably requires the subdivision of land into more _.than two narcels and the trees listed for removal do not meet the "unavoidable" requirements of the tree ordinance. (Ex. 1 at D0009; Esc. 19 at F0567-68.) 36 » `A The Town asserts that it does not have to follow its own laws. (Ex. 10 at E0419 -20.) Specifically, the Town contends that since the project is in a Planned Development zone, none of the Town's laws need to be followed. Id. But the Town's Code states: "The provisions of sections 29.10.070 through 29.10.295 apply to all zones. (Ex. 28 at F0723 (emphasis added).) The tree ordinance, section 29.10.0990 falls within this range. The EIP. offers no alternative construction of this plain language and never analyzes a.project that would comply with the tree ordinance in its range of alternatives. (Ex. 1 at D0083.) 4. The Town Rynored the Trial Court's and DTSC's Guidance And Made Findings Directly in Conflict with that Guidance Despite the fact that, as trial court explicitly found, "the DTSC disagreed with the factual premise for the Initial Study's conclusion (the claimed rate_ of biodegradability of such chemicals over time) and stated its position that such a conclusion could not be reached without soil and possibly groundwater sampling being done at the site" (Ex. 3 at E0311:7:1- 4), The Town to this day has not followed DTSC's recommendation to test the site to see if toxic chemicals are present, Indeed the Town and its environmental consultant are still clinging to the notion "that pesticides "would. have undergone significant degradation, through soil disturbance, attenuation, dilution, biodegradation and other natural processes." (Ex. 10 at E0388 (emphasis added).) The conclusion that hazardous chemicals degrade with time is the exact conclusion that DTSC has now rejected twice and that the trial court also rejected. Moreover, despite the trial court's March 2011 Order explicitly noted that DTSC recommended soil. sampling (Ex. 3 at E0309:8 -13), the Town pretends that DTSC never recommended testing; when approving the 37 e amended EIR, the Town found that "DTSC continue[s] to recommend no further testing at this time (Ex. 13 at E0494:25 -27; see also Ex. 10 at E0380 (added in formation "provides additional support for the conclusion in the Final MR that soil or groundwater sampling for pesticides was not recommended or deemed necessar)') (emphasis added).) To the contrary, DTSC did (as the trial court noted) and does recommend soil testing for chemicals at the site from past agricultural operations and recommends that the sampling be discussed in an EIR. (Ex. 21 at F0617 -18 (Ml ay 20, 2011 correspondence stating: "However, our March 29, 2011 letter was not intended to withdraw the recommendation made in our March. 23,2010 letter "); Ex, 10 at E0385 (March 23, 2010 letter stating: "DTSC recommends that soil, and possibly groundwater, sampling be performed at this site for chemicals from past agricultural operations. The sampling results should be discussed in the EIR and any screening levels or criteria that are used in making a determination whether detected contaminants are found at concentrations that pose a risk to human health or the environment should be identified.').) Because Respondents have not done any soil testing, soil testing results are not discussed in the MR, and, once again, the Town has not meaningfully responded to a sister agency's feedback,. Moreover, while the Towns' approval is premised on the notion that "DTSC's Guidance documents'* do not "suggest[] " that testing should be done (Ex. 13 at E0494:23 -25), DTSC disagrees. Specifically, even though DTSC had in its possession ERAS' April 13, 2011 letter which essentially states that DTSC's guidelines do not apply to the subject property, DTSC stated that its guidance document entitled "Interim Guidance for Sampling Agricultural. Properties (Third Revision) dated'August'7, 2008" does apply: [T]his document is the most applicable DTSC guidance document for making a determination on the sampling that should be performed at former agricultural sites. It 38 .,., .�' .� •y': ?a %`tile.. .. ( " specifically outlines the sampling strategies and procedures and human health risk assessment methodologies for sites where pesticides and/or fertilizers were presumably applied uniformly, for agricultural purposes consistent with normal application practices. (Ex. 21 at P0617-18.} Once again, DISC has specifically disagreed with the Town's interpretation of DTSC's guidance, Nonetheless, the Amended EIR relies only on distinguishing the guidelines that DTSC explicitly said apply. (Ex. 10 at E0380.) The Town has made no attempt to actually comply with the guidelines that DTSC said apply and does not argue that it has. And when the Town tried to distinguish DTSC's guidelines as opposed to following them—its environmental consultant applied DTSC's 2000 guidelines and not the operative August 2008 guidelines. (Ex. 10 at E0390.) Moreover, the ERAS April 13, 2011 letter is a conclusory document that does not provide substantial evidence for its conclusions. For example, the letter concludes (without any record, citation other than what the developer told him) that "there has been no documented impact of past pesticide use on the current environment or in the area..." (Ex. 10 at E0389.) In fact, UTS'C is aware of sites in the South Bay were farmers used arsenic and DDT. (Ex. 21 at F0596.) That is not surprising given that long time resident Pauline Sprock conmmented about "old- tuners" using arsen e and lead in local orchards. (Ex. 22 at F0621 ("And also, I wanted to know if they did a soil test for arsenic, or lead, as this was a former orchard, and that's what the old - timers used to spray with all the time. ").) Nonetheless, the Town has not provided any analysis of arsenic, lead, or DDT levels. It has not provided any analysis of how these dangerous chemicals will or will not be released with the significant dust - causing grading and offhaul of soil contemplated by the project. (Ex. 10 at EWU -91; Ex.. I at D0170 -71.) 39 I The Town's result - driven analysis is not good faith reasoned analysis supported by record evidence. (See 14 CCR 15151.) The Town has not complied with CEQA. 5. The EIR Impermissibly Relies on Undisclosed Data "An expert's opinion `concerning matters within [his or her] expertise is of obvious value, but the public and decision - makers, for whom the EIR is prepared, should also have before them the basis for that opinion so as to enable them to make an independent,. reasoned judgment.' Santiago[],118 Cal.App.3d. at p. 831. t kcspondents'] position becomes the rule- -that a project proponent can pick and choose who sees pertinent data —then a stake is driven into the `heart of CEQA' by preventing the information necessary for an. informed decision from reaching the decision makers and the public. See [Laurel Heights I]]." See Communities°, for a Better Environment v. City of Richmond (2010) 184 Cal. App, 4" 70, 88. The EIR and the 2007 ERAS Report analyze and draw significant conclusions from historic aerial photographs and orchard. maps. (See Ex. 1 at DO 179 ("Aerial photography indicates that all of the orchard tunes where gone from the project sits by 1074 "); Ex. 11 at E0443 ( "In the maps dated 1943, 1947, 1953 and 1955 the Property was indicated to be part of an orchard. "); Ex. 10 at B0389 ( "Subsequent aerial photographs indicated the continued presence of a few residual orchard trees on the eastern portion of the Property, none of which appeared to be of commercial use."); Id. at E0382 ("Additionally, no physical drainages or irrigation water conveyance features were apparent on the 1948 and 1956 aerial photos. ").) Yet no historic aerial photos or orchard reaps are included anywhere in the administrative record or the 2011 Amendment (even though the Town prepared the Amendment for the express purpose of addressing the topic of historic agricultural use). (See Ex. 10 at'E0378 -429) Crt The Amendment's core position is that these photos and orchard maps show things that exclude the property from the DTSC's Guidance and the recommendations of the DTSC's March 23, 2010 letter, both of which recommend soil - sampling. (Ex. 10 at E0385; Ex. 21 110598 -99.) The historic aerial.photos purport to show: when commercial operations stopped, the absence of irrigation, and the type of trees on the site. The 2011 ERAS Letter incorrectly states that "f most of these [aerial] photographs were included in. the [2007 ERAS Report]" when vane were. (Ex. E0389; Ex. 11) Rather than embracing the opporhmity to introduce new information that supports a reasoned analysis of the historic use of agricultural chemicals on the site, the Town has chosen to keep the core data, on which their position relies, out of public view. That decision does not comply with CEQA. CONCLUSION Without the Court's intervention, Respondents will have free reign to violate an automatic stay. They will attempt to irreparably harm Appellants and erode the Court's ,jurisdiction by trying to moot as many issues on appeal as possible. Accordingly, Appellants respectfully request that the Court grant the Petition. 41 CERTIFICATE OF WORD COUNT The text of this petition consists of 11,373 wards as counted by the Microsoft Office -lord word- processing program used to generate the petition. June 24, 2011 Respectfully submitted, Tirnur En Rachel 1Vlansfzeld- Howlett Attorneys for Appellants 42 Ross Creek Neighbors v. Town of Los Gatos, et al, COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT Case No. H036927 PROOF OF SERVICE I am a citizen of the United States and a resident of the County of Santa.. Clara. I am over the age of eightem years and not a party to the within entitled action. My home address is 3784 Cadwallader Avenue, San lose, CA 9512 1. On rune 24, 2011, I served one true copy of the following documents and any exlubits attached thereto: 1. PETITION FOR WRIT OF SUPERSEDEAS AND MANDATE AND RENEWED REQUEST FOR TEMPORARY STAY 2, EXHIBITS TO PETITION FOR WRIT OF SUPERSEDERS AND MANDATE AND RENEWED REQUEST FOR TEMPORARY STAY VOLUME D, PAGES DOOOI -DO290 3. EXHIBITS TO PETITION FOR WRIT OF SUPERSEDERS AND REQUEST FOR TEMPORARY STAY VOLUME E, PAGES E0291 -EOSOS 4. EXHIBITS TO PETITION FOR WRIT OF SUFERSEDE:A.S AND REQUEST FOR TEMPORARY STAY VOLUME F, PAGES F0509 -FO722 EX ll10 I 15 10 PETI 101 RA WZri bI✓ 5��' .5.�c/`� VOLUME X by placing a true copy thereof enclosed in a sealed envelope ani# "postage themorihilly prepaid, in the United States mail at San Jose, California addressed to the persons listed below. Andrew L. Faber Attorneys for Respondents and Julie Houston Real Parties in Interest Berliner & Cohen 10 Almaden Blvd. Eleventh Floor San lose, CA 95113 I declare under penalty of perjury that the foregoing is true and correct. Executed on June 24, 2011, at Los Gatos, California.. L' Donald Parks Ross Creek Neighbors, et: a[, V. Town of Los Gatos, et al. COURT OF APPEAL OF THE STATE OF CALIFORNIA. SIXTH APPELLATE DISTRICT Case No. H036927 SUPPLEMENTAL AFFIDAVIT OF SERVICE .I am a citizen of the United States and a resident of the County of Santa Clara. I am over the age of eighteen years and not a party to the within entitled action, My home address. is 3784 Cadwallader Avenue, San Jose, CA 95121. On June 27, 2011, 1 served one true copy of the following documents: 1. PETITION FOR "tiV1UT OF SUPERSEDEAS AND MANDATE AND RENEWED REQUEST FOR TEMPORARY STAY X by placing a true copy thereof enclosed . in a scaled envelope and postage thereon fully prepaid, in the United States mail at San Jose, California addressed to the persons listed below. X by causing a true copy thereof to be sent by electronic mail to ` ro pSa�,lossiatosca gov andrew :faber�lberliner.GOna 'olie,houstoriCa?berliner cam miles Bolin �bertiner com Andrew L. Faber Jolie Houston Miles J, Aolinger Berliner & Cohen 10 Almaden Blvd, Eleventh Floor San Jose, CA 95113 (408) 286 - 5800 Attorneys for R.esporidmts and Deal Parties in Interest Judith Propp Town Attorney `Town of Los Gatos 110 E. Main Street Los Gatos, CA 95031 (408) 354 -6880 I declare under penalty of per ury that the foregoing is true and correct. Executed oh June 27, 2011, at San Jose, California. _ --- Donald Parks ................. t "IN t Ross Creep Neighbors et. n1. v. Town of Los Catos, et al. COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT Case No. M036927 SUPPLEMENTAL AVVIDAVIT OF SERVICE I am a citizen of the United States and a resident of the County of Santa Clara. I am over the age of eighteen years and not a party to the within entitled action. My home address is 3784 Cadwallader Avenue, San Jose, CA '95121. On June 27,2011, 1 served one true copy of the following documents: 1. PETITION FOR WRIT OF SUPERSEDEA.S AND MANDATE AND RENEWED REQUEST FOR TEMPORARY STAY X by placing a true copy thereof enclosed in a sealed envelope and postage thereon fully prepaid, in the United States mail at San Jose, California. addressed to the persons listed below. Office of the Attorney General 1300 " I" Street Sacramento, CA 95814 -2919 .(916) 445 -9555 Clerk of Superior Court 191 North First Street San Jose, CA 95113 (408) 882 -2470 Public resources Code § 21167.7 I declare under penalty of per ury that the foregoing is true and correct. Executed on June 27, 2011, at San Jose, California. Donald Parks RECEIVED No. H036927 TOWN OF LOS OATOS PLANNING DIVISION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT ROSS CREEK NEIGHBORS, COMMITTEE FOR GREEN FOOTHILLS, DOUGLAS V. OWENBY, . Appellants, V. TOWN OF LOS GATOS and ITS TOWN COUNCIL, Respondents. LINDA COURT PARTNERS LLC et al. Real Parties in Interest. ON APPEAL FROM THE SUPERIOR COURT OF SANTA CLARA COUNTY; HONORABLE LESLIE C. NICHOLS, RETIRED, 408 -882- 2100; DEPARTMENT 21; CASE NO. 108 -CV- 106461; HONORABLE JOSEPH H. HUBER PARTICIPATING PETITIONERS' REPLY IN SUPPORT OF PETITION FOR WRIT OF SUPERSEDERS AND MANDATE AND RENEWED REQUEST FOR TEMPORARY STAY STAY REQUESTED OF THE TRIAL COURT'S MAY 26, 2011 DISCHARGE OF A WRIT OF MANDAMUS; IRREPARABLE DAMAGE; RESIDENTIAL DEVELOPMENT UNDERWAY RACHEL MANSFIELD - HOWLETT CA STATE BAR NO. 248809 PROVENCHER & FLATT, LLP 823 Sonoma Avenue Santa Rosa, CA 95404 Tel: (707) 284 -2380 Fax: (707) 284 -2387 Attorney for all Petitioners (listed above) TIMUR ENGIN CA STATE BAR NO. 229944 15841 Loma Vista Avenue Los Gatos, CA 95032 Tel: (408) 356 -0716 Fax: (707) 284 -2387 Attorney for Petitioner Ross Creek Neighbors c: 12 EXHISST 1I rl.\ Respondents' opposition brief makes a number of superficially- appealing arguments that are, nonetheless, unsound.._ Petitioners, therefore, request leave to file this reply brief in support of their Petition for Writ of Supersedeas and Mandate and Renewed Request for Temporary Stay ( "Petition ") to address these unsound arguments. INTRODUCTION Respondents rely on an invalid, unsigned "Proof of Service" —that is not even file stamped —as the basis to deny the Petitioners the opportunity to have their appeal heard on the merits. Strict compliance with statutory requirements is required in order for a clerk's purported service to start the clock ticking on the time to appeal. The relevant "Proof of Service" from the clerk in this case: (1) was unsigned; (2) was not file stamped; (3) did not provide a date of execution; (4) was not a certificate of service; (5) did not set forth that the preparer "is not a party to the case "; and (6) was not even addressed to Rachel Mansfield- Howlett (Appellants' only attorney of record at the time) —all in violation of the California Code of Civil Procedure. Because the unsigned and undated "Proof of Service" did not strictly comply with the statutory requirements, "it is as though notice were never mailed by the clerk." Respondents do not contend that Petitioners' notice of appeal was not filed within 60 days of Petitioners' Notice of Entry of Order —the operative notice of entry in this case. Accordingly, Petitioners' appeal was timely. In another attempt to defeat the automatic stay that should be in place, Respondents contend that the March 8, 2011 Order was "a nonappealable order" for two principal reasons: (1) the Order did not "aggrieve" Appellants and (2) it did not "affect the [November 2008 Judgment granting a writ] or relate to its enforcement." Both arguments have no merit. First, contrary to Respondents' argument, California law does not require CEQA petitioners (and later appellants) to have a "pecuniary," "immediate," and "substantial" interest in order to bring a CEQA cause of action. Indeed, a CEQA "plaintiff is not required to have any legal or special interest in the result; it is sufficient that as a citizen he is interested in having [a] public duty enforced." Second, the March 8, 2011 Order indisputably relates to the enforcement of the 2008 Judgment, and is, therefore, appealable. The March 8, 2011 Order, itself: (1) explicitly noted that the trial court could issue any orders necessary for enforcement of the 2008 Judgment and (2) then went on to refuse to discharge the writ granted by the 2008 Judgment — leaving it in force. Because the March 8, 2011 Order relates to the enforcement of the 2008 Judgment, it is appealable. . While Respondents contend that Petitioners did not exhaust their 2 r administrative remedies, Respondents are wrong as a matter of fact and as a matter of law. First, Petitioners did exhaust their administrative remedies. While Respondents assert, for example, that Petitioners "failed to raise [the Town's failure to vacate project approvals] with the Town," Petitioners specifically informed the Town that "premising a Project approval upon a faulty EIR is a violation of CEQA, thus the current Project approvals must be set aside until the Town complies with CEQA." In any event, because Respondents did not comply with CEQA's notice requirements, California law provides that there was no duty to exhaust administrative remedies. While Respondents spend most of their opposition brief arguing that certain issues are not appealable because of a purported failure to timely appeal or to exhaust administrative remedies, they do not truly contest the substance of the substantial issues that will be raised on appeal. Moreover, they do not contest the fact that they will not be harmed by a stay. And while Respondents contend that Petitioners have not demonstrated irreparable harm absent a stay, the Court has recognized that permitting a project to gain momentum after an inadequate environmental review would drive a stake into the heart of CEQA and the environment surrounding a project. Accordingly, the Court should grant the Petition. I. RESPONDENTS HAVE NOT DEFEATED THE AUTOMATIC STAY A. Petitioners' Appeal Was Timely ._ The Clerk's unsigned "Proof of Service" —which is not file stamped —that accompanied the trial court's March 8, 2011 Order does not comply with California Code of Civil Procedure Section 1013(a)(4). Accordingly, "it is as though notice were never mailed by the clerk." (Triumph Precision Prods. v. Ins. Co. of North Am. (1979) 91 Cal. App. 3d 362, 365 (finding notice of appeal timely filed due to ineffectiveness of clerk notice).) That is precisely why Petitioners, themselves, filed a notice of entry of order on March 18, 2011 (Petition Ex. 3 at E0313 -14), even after they received the Clerk's unsigned "Proof of Service." (Id. at E0312.) And that is why Petitioners' May 13, 2011 Notice of Appeal beat the deadline for appealing by several days. CCP Section 1013 subdivision (a) "is applicable to the mailing by a court clerk of notice announcing the entry of an appealable judgment or order." (Triumph, 91 Cal. App. 3d at 365.) "Successful service by mail requires strict compliance with all statutory requirements, including those set forth in section 1013." (Lee v. Placer Title Co. (1994) 28 Cal. App. 4th 503, 509.) Courts routinely find service by mail insufficient when even minor defects occur in the service. (See Triumph Precision Prods. v. Ins. Co. of North Am. (1979) 91 Cal. App. 3d 362, 364 -65 (clerk's notice that F ""`�\ had been "addressed to Triumph's attorney at the correct street address, but [that] had omitted the name of his law firm" ineffective; appeal timely); Moghaddam v. Bone (2006) 142 Cal. App. 4th 283, 288 (service of notice of order was ineffective because it contained the wrong ZIP code; appeal timely); Valley Vista Land Co. v. Nipomo Water & Sewer Co., 255 Cal. App. 2d 172, 173 -74 (clerk's notice sent to "11801/4 Wilshire Boulevard" instead of "11803 1/4 Wilshire Boulevard" invalid; appeal timely).) The Clerk's "Proof of Service" in the instant case did not "strict[ly] compl[y]" with the statutory requirements. It is unsigned. (Petition Ex. 3 at E0312; CCP 1013(a)(4) (compliant certificate of service "sufficient for service of process in which the clerk or deputy clerk signing the certificate... ").) It does not have a date stamp on it. (Petition Ex. 3 at E0312.) It does not have a date of execution. (Id.; CCP 1013(a)(4) ( "This form of proof is sufficient for service of process in which the clerk or deputy clerk signing the certificate places the document for collection and mailing on the date shown thereon...").) The "Proof of Service" is not a certificate of service and makes no certifications. (Petition Ex. 3 at E0312; CCP 1013(a)(4) (requiring a "certificate by that [serving] clerk "; requiring the deputy clerk to sign the "certificate "; referencing "the date of deposit for mailing contained in the certificate "); compare Declaration of Miles J. Dolinger in Support of Respondents' and Real Parties' Motion ( "Dolinger 5 1.. _ _ _ Dec. ") Ex. D at 3 ( "CLERK'S CERTIFICATE OF SERVICE ").) Moreover, the clerk's unsigned "Proof of Service" does not "set[] forth... that he or she is not a party to the cause." (Petition Ex. 3 at E0312; CCP 1013(a)(4).) Importantly, the unsigned "Proof of Service" was not correctly addressed to Rachel Mansfield- Howlett. The unsigned "Proof of Service" was directed to "Rachel Howlett." (Petition Ex. 3 at E0312.) Ms. Mansfield - Howlett's professional name is Rachel Mansfield- Howlett and that is the name that appeared on the briefing that preceded the Court's March 8, 2011 Order.' Because the Clerk's unsigned "Proof of Service" did not strictly comply with the statutory requirements, "it is as though notice were never mailed by the clerk." (See Triumph, 91 Cal. App. 3d at 365 (clerk's notice that had been "addressed to Triumph's attorney at the correct street address, but [that] had omitted the name of his law firm" 1 Respondents refer to the trial court's March 8, 2011 Order as the March 7, 2011 Order — presumably because the Honorable Judge Nichols signed the order on March 7, 2011. (See Dolinger Dec. Ex. A at 7.) In this opposition, and in prior briefing in this Court, Appellants refer to the March 8, 2011 order as the March 8, 2011 Order, because that is the date the clerk filed the order. (Id. Ex. A at 1.) Nonetheless, neither side's arguments are affected by this difference in nomenclature. ineffective; appeal timely).) 2 While Respondents rely on a "Proof of Service" that the clerk sent "TO: FILE COPY" (see Dolinger Dec. Ex. A at 8), that is not the relevant "Proof of Service" that was sent to Petitioners. (See Insyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal. App. 4th 1129, 1135 ( "It is the initial mailing or service of a triggering document that commences the running of the time to appeal. ").) The clerk's putting a copy of a "Proof of Service" in a file is not service upon Petitioners and it does not commence the running of the time to appeal. Moreover, with the exception of being signed, the "TO: FILE COPY" version suffers from all the other deficiencies delineated above. Despite the fact that Petitioners presented all of this authority regarding the deficient clerk's "Proof of Service ": (1) in trial court proceedings and (2) in this Court in support of their Motion for a Temporary Stay (which was explicitly referenced by the Petition (Petition at 19, n.4)), Respondents' And Real Parties' Opposition to Appellants' 2 Despite Respondents' protests to the contrary (see Motion at 5), given the ineffectiveness of the Clerk's unsigned "Proof of Service," Appellants correctly identified March 18, 2011 as the date the March 8, 2011 order was served "by the clerk or by a party." (See Dolinger Dec. Ex. G at 1; see also Ex. 2.) 3 Appellants' June 17, 2011 Motion For a Temporary Stay To Enforce Automatic Stay Under CCP 916(a) at Ex. 9, 1:24 -3:3. 4 June 21, 2011 Reply Brief in Support of Motion For a Temporary Stay to Enforce Automatic Stay Under CCP 916(a) at 3 -6. 7 Petition for Writ of Supersedeas and Renewed Request for Stay -- I ( "Opposition ") does not even address it. Petitioners' notice of appeal, filed within 60 days of Petitioners' notice of entry of order, was timely. B. The Trial Court's March 8, 2011 Order Is Appealable Respondents contend that the trial court's March 8, 2011 Order was a "nonappealable" order for two reasons: (1) Petitioners were not aggrieved parties and (2) the order was not final. (Opposition at 7 -9.) Both of Respondents' reasons are unsupported by California law. 1. California Law Does Not Require CEQA Litigants to Have a Financial Stake in the Outcome of a Case Respondents cite California Civil Procedure ( "CCP ") Code Section 902 and one case and argue that Petitioners may not appeal the March 8, I 2011 Order, because "Appellants were not a party [sic] aggrieved by it..." (Opposition at 6.) CCP Section 902 is largely directed to entities that were not parties to the underlying litigation. The first sentence of the California Code Commission Notes states: "1. Who May Appeal. - -One not a party to the record may appeal, if aggrieved by the judgment." (Code Com. Notes, reprinted at West's Ann. Cal. Civil Proc. Code (2011) foll. § 902.) Petitioners were all parties to the trial court proceedings and — absent certain extraordinary circumstances set forth by case law —may appeal the Court's March 8, 2011 Order. While Respondents apparently have abandoned their reliance on the N . 1. Grant case (See Petition at 18), the Opposition does cite one new "aggrieved party case concerning a will contest: Crook v. Contreras (2002) 95 Cal. App. 4th 1 194, 1201. (Opposition at 7.) Respondents' reliance on Crook is misplaced because it evinces a fundamental misunderstanding of standing in CEQA cases. First, while Respondents assert that "Appellant's interests must be immediate, pecuniary, and substantial and not nominal or a remote consequence on the judgment" (id. (citing Crook)), a party does not need such interests to bring a CEQA case much less to appeal an order in a CEQA case: where a public right is involved, and the object of the writ of mandate is to procure enforcement of a public duty, the plaintiff is not required to have any legal or special interest in the result it is sufficient that as a citizen he is interested in having the public duty enforced. Accordingly, in a writ of mandate against a municipal entity based on alleged violations of CEQA, a property owner, taxpayer, or elector who establishes a geographical nexus with the site of the challenged project has standing. (Burrtec Waste Indus. v. City of Colton (2002) 97 Cal. App. 4th 1133, 1137 (emphasis added) .) "Every citizen has a responsibility to contribute to the preservation and enhancement of the environment" (Pub. Resources Code § 5 With respect to "geographical nexus with the site," Respondents admit that at least two of the members of Appellant Ross Creek Neighbors own property that "borders" the project site. (Opposition at 2.) M 21000(e).) --not just those with a pecuniary interest in a project. If a party were required to have a "pecuniary," "immediate," and "substantial" interest in order to bring a CEQA action or to appeal a CEQA decision —as Respondents urge —only developers with a financial stake in the outcome of CEQA litigation could appeal. That is not the law. That is not what happens in CEQA litigation. (See, e.g., National Parks & Conservation Assn. v. County of Riverside (1996) 42 Cal. App. 4th 1505, 1509 (hearing conservation association's appeal of a CEQA judgment); Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th 1099 (hearing citizens group's appeal of a CEQA judgment); Lincoln Place Tenants Assoc. v. City of Los Angeles (2005) 130 Cal. App. 4th 1491, { 1502 -3 (hearing a tenants association and historic preservation organizations' appeals in a CEQA case).) The Crook case involved an objector seeking to change the way a trust (Trust B) was handled even though the objector was "neither a beneficiary of Trust B nor a devisee under the will." (95 Cal. App. 4th at 1201.) The Court found that even if the objector were able to successfully challenge the trust, that success "would not have produced any pecuniary benefit to [the objector]." (Id.) Thus, the Court found that the objector was not "aggrieved" and lacked standing to appeal. (Id. ( "And as to the question who is the party aggrieved, the test ... seems to be the most clear a and simple that could be conceived. Would the party have had the thing, if the erroneous judgment had not been given? If the answer be yea, then the person is the `party aggrieved. "') (citing Adams v. Woods (1857) 8 Cal. 306, 315).) In the context of a will contest, it makes sense to make sure that the parties, at a minimum, have some "pecuniary benefit" at issue. This is not a will contest. As explained in the preceding three paragraphs, California law does not require the Petitioners —a neighborhood association and a non- profit corporation —to have a "pecuniary," "immediate," and "substantial" interest in order to bring a CEQA action or to appeal a CEQA decision. Respondents also argue that the trial court's March 8, 2011 Order "denied the Town's motion to discharge the November 2008 writ" and, thus, Petitioners "suffered no immediate and substantial injury as a result of that Order. (Opposition at 7.) This argument is a variation of arguments that Respondents have already made to this Court. (See Respondents' And Real Parties' Opposition to Request for Immediate Stay (filed June 20, 2011) at 3 (arguing that "the aggrieved parties with respect to the March 7, 2011 Order were the Respondents, not the Petitioners, who prevailed on the Order ").) But despite the fact that the trial court did not discharge its writ, Respondents contend that the court based its decision on "the inadequacy of 11 one response to a single comment letter in the Final Environmental Impact - - - - Report ( "EIR ")." (Opposition at 25, 18.) Thus, even under Respondents' view of the March 8, 2011 Order, the trial court overruled all of Petitioners' objections save for one. Under those circumstances, Petitioners could appeal the order. (See National Parks & Conservation Assn. v. County of Riverside (1996) 42 Cal. App. 4th 1505, 1509 (hearing conservation association's appeal of a judgment granting the conservation association's petition for a writ of mandate, because the trial court had found two of the association's CEQA challenges unmeritorious).) Petitioners have cited in trial court proceedings and in this Court the National Parks case regarding an associations' appeal of a judgment that the association "won." (See, e.g., Appellants' June 17, 2011 Motion For a Temporary Stay To Enforce Automatic Stay Under CCP 916(a) at 9.) Rather than address this CEQA authority head on, Respondents ignore it and cite an inapposite will contest case. Because California law does not require CEQA appellants to have "pecuniary," "immediate," and "substantial" interests in order to appeal, Petitioners' appeal was proper. 2. The March 8, 2011 Order Related to the Enforcement of the November 2008 Judgment First, Respondents contend that the March 8, 2011 Order: was essentially interlocutory, which is a type of order that is expressly excluded from the types of orders or judgments that are appealable. Civ. Proc. Code § 904.1(a)(1). 12 (Opposition at 8.) CCP Section 904.1(a)(1), however, does not address interlocutory orders. It addresses interlocutory judgments. (CCP § 904.1(a)(1) ( "[A]n appeal, other than in a limited civil case, may be taken from any of the following: (1) From a judgment, except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), or (B) a judgment of contempt that is made final and conclusive by Section 1222.").) Second, Respondents argue that the March 8, 2011 Order did not "affect the [November 2008] judgment or relate to its enforcement." (Opposition at 7 (citing Lakin v. Watkins Assoc. Indus. (1993) 6 Cal. 4th 644, 651 -52).) That is not true. The November 2008 Judgment explicitly ordered that the "Town shall set aside its approvals of the Project ... and shall refrain from further approval of the Project unless and until it certifies an adequate EIR in compliance with CEQA." (Petition Ex. 2 at E0293.) In the November 2008 Judgment, the trial court ordered that, "A Return to Writ shall be filed with the Court upon the Town's final action taken to comply with the Writ... (Id.) Following the directive of the November 2008 Judgment, Respondents filed a return to writ on November 24, 2010. (Declaration of Timur Engin In Support of Petitioners' Reply In Support of Petition for 13 Writ of Supersedeas And Mandate And Renewed Request For Temporary - - - Stay ( "Engin Dec. ") Ex. 2.) In their return, Respondents stated, "In compliance with the Writ, the Town made findings in compliance with CEQA." (Id. Ex. 2 at 4:25 -26.) Because of the Town's purported compliance with CEQA, "Respondents request[ed] that the court discharge the Writ..." (Id. Ex. 2 at 5:2 -3.) In its March 8, 2011 Order concerning Respondents' November 24, 2010 return to writ, the trial court explicitly noted that it "ha[d] continuing jurisdiction over this matter until its writ is fully satisfied and may issue `any orders necessary and proper for the complete enforcement of the writ. "' (Dolinger Dec. Ex. A at 2:4 -5 (citations omitted).) The trial court ( went on to find that the Town still had not complied with CEQA. (Id. at 4:24-7:11.) Accordingly, the Court ruled that "Respondent's request to discharge the writ is DENIED pending further return, and order of this Court, confirming compliance with CEQA." (Id. at 7:12 -13.) It is hard to understand how Respondents can contend that the March 8, 2011 Order did not "affect the [November 20081 judgment or relate to its enforcement" (Opposition at 8) despite the fact that in the March 8, 2011 Order, the trial court: (1) explicitly held it could issue any orders necessary for enforcement of the November 2008 Judgment and (2) and then went on to issue an order that refused to discharge the writ and left it in force, 14 rd C because Respondents still had not complied with CEQA. "[T]here can be no question that the order affects the judgment or relates to it." (See Bates v. Rubio's Restaurants (2010) 179 Cal. App: 4th 1125, 1131.) "The order has to do with the interpretation and implementation of the judgment, and the manner in which it is to be enforced." (See id.) While Respondents repeatedly contend that the order "neither added to nor subtracted from the relief granted in the judgment (Opposition at 8), in Lakin, the California Supreme Court expressly held that while "the `neither adds nor subtracts' standard" "can be useful in some circumstances, the effect on, or relationship to, the judgment required to make a postjudgment order appealable is not limited to a simple mathematical calculation. (6 Cal. 4th at 653.) Indeed, the Supreme Court held that "postjudgment orders that neither literally add to nor subtract from the judgment can nevertheless be appealable, as long as they affect the judgment or relate to its enforcement." (Id. at 654.) The Supreme Court noted that a "nonappealable postjudgment order" is one that "in no manner affected the judgment, or bore any relation to it, either by way of enforcing it or staying its operation." (Id. (citing Kaltschmidt v. Weber (1902) 136 Cal. 675, 676.) As explained above, it cannot be argued credibly that the March 8, 2011 Order bore no relation to the November 2008 Judgment or to its enforcement. Accordingly, the 15 March 8, 2011 Order was appealable. (See National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal. App. 4th 1341, 1348 (deciding appeal from an order on a return to writ that did not discharge the writ in a CEQA case).) Finally, Respondents argue that because "Judge Nichols expressly anticipated a further return that he retained jurisdiction to hear," the March 8, 2011 Order "lacked finality and anticipated further proceedings." (Opposition at 8.) While the trial court may have "anticipated further proceedings," once Petitioners appealed, the trial court was without jurisdiction to act on matters embraced by or affected by the appeal and only retained jurisdiction on collateral matters. (Petition at 14 -16.) Had the trial court recognized the automatic stay under CCP 916(a) —as Petitioners urged it to do —the March 8, 2011 Order would "not [have] become subject to appeal after a future judgment," because the trial court would not have gone on to later discharge the writ. (See Lakin, 6. Cal. 4th at 654.) Nonetheless, considering whether the March 8, 2011 Order was preparatory for further proceedings is just one means of ascertaining whether that order "affect[s] the judgment or relate[s] to it by enforcing it or staying its execution." (Lakin, 6 Cal. 4th at 651 -52, 653.) As explained above, "there can be no question that the order affects the judgment or relates to it," because "[t]he order has to do with the interpretation and implementation of 16 the judgment, and the manner in which it is to be enforced." (See Bates v. Rubio's Restaurants (2010) 179 Cal. App: 4th 1125, 1131.) The March 8, 2011 Order was appealable. 3. Without the Invalid Discharge of the Writ, Respondents Would Not Have Been Able to Approve the Project Curiously, Respondents argue that after the trial court refused to discharge its Writ, there "were no other trial court orders then in effect on March 7, 2011 that enjoined the Real Parties from continuing with construction activities or that enjoined the Town from re- certifying the Project EIR unless CEQA was complied with." (Opposition at 4.) But Respondents admit that "the March 7, 2011 Order denied the Town's request to discharge the writ and left the November 2008 writ intact until CEQA was fully complied with. (Opposition at 8.) The November 2008 Writ explicitly provided that "the Town shall set aside its approvals of the Project ... and shall refrain from further approval of the Project unless and until it certifies an adequate EIR in compliance with CEQA." (Petition Ex. 2 at E0293.) The Writ also provided that the trial "[c]ourt will retain jurisdiction over Respondent Town's proceedings by way of a return to the peremptory until this Court has determined that Respondent has complied with CEQA." (Id. at E0302.) Respondents' argument that they could ignore the writ prior to its discharge is demonstrably wrong. Had the trial 17 court enforced the automatic stay of further proceedings, it would not have discharged the writ and Respondents would not have been able to approve the project. II. RESPONDENTS DO NOT GENUINELY CONTEST THAT SUBSTANTIAL ISSUES WILL BE RAISED ON APPEAL Respondents gloss over the substance of the substantial issues that Petitioners delineated in their Petition. Respondents' principal argument is that Petitioners did not exhaust their administrative remedies. That argument, however, is wrong as a matter of fact and as a matter of law. A. Despite Not Being Required to Exhaust Their Administrative Remedies, Petitioners Did So Respondents contend that "prior to the close of the Town's May 2, 2011 public hearing ... no person or entity raised the issue that the law required the [EIR] Amendment to be circulated to assure meaningful public review and comment." (Opposition at 14.) To the contrary, on April 11, 2011, Petitioners sent a 3 page letter —and fifteen pages of attachments —to the trial court and to the Town and the Town Council's attorneys that stated: 6 A CEQA action may be brought so long as "the alleged grounds for noncompliance with [CEQA] were presented to the public agency orally or in writing by any person ... prior to the close of the public hearing on the project before the issuance of the notice of determination." (Pub. Resources Code § 21177.) IN ('ar;'-\ I" The Court's [March 8, 2011 ] Order noted that the Draft EIR did not identify the toxics issues as even a potentially significant environmental concern. (Order at 6.) Thus the public has had no opportunity to fully review and comment upon this potential environmental hazard. For this reason, the EIR should be revised and recirculated to adequately serve as a public disclosure document ... The only possible cure for [the Town's failing to adequately respond to DTSC's comments] is for the public and decision makers to be afforded the opportunity to review and comment on a revised EIR that addresses these toxics questions. (Engin Dec. Ex. 3 at 2 -3.) Likewise, Respondents contend that "Appellants also failed to raise [the Town's failure to vacate project approvals] with the Town prior to the close of the May 2, 2011 hearing." (Opposition at 14.) Once again, Respondents are incorrect. Petitioners' April 11, 2011 letter, which was sent to the Town and the Town Council's attorneys, stated: Further, premising a Project approval upon a faulty EIR is a violation of CEQA, thus the current Project approvals must be set aside until the Town complies with CEQA. (Pub. Res. Code §§ 21002, 21002.1, 21081.) (Engin Dec. Ex. 3 at 2.) Similarly, Respondents claim that Petitioners failed to "exhaust administrative remedies" on the issue of "the adequacy of the [EIR] Amendment's response to the DTSC letter..." (Opposition at 19.) Indeed, Respondents submitted a sworn declaration that stated that "at the May 2, 2011 public hearing," "[n]o representative of Petitioner Ross Creek 19 Neighbors, or any other person, presented any written or oral comments I concerning... the adequacy of the Town's revised response to the March 23, 2010 DTSC comment letter..." (Opposition at 67, 15.) To the contrary, a member of Ross Creek Neighbors specifically commented that the Town's decision not to test the Property for toxic soil and not to discuss the results of that testing in an amended EIR —as recommended by DTSC's March 23, 2010 letter —was inappropriate: So I want to talk about the California Department of Toxic Substances. They gave the Town their unvarnished opinion on toxic substances on this property. And that was in their March 23` 2010 letter to the town. And in it, they said, and I'll quote, "The level of residual chemicals in the soil and/or groundwater is unknown unless an environmental assessment is done. Therefore, DTSC recommends that soil, and possibly groundwater, sampling be performed at this site for chemicals from past agricultural operations. The sampling results should be discussed in the EIR and any screening levels or criteria that are used in making a determination whether detected contaminants are found at concentrations that pose a risk to human health or the environment should be identified." That's what they said. Here we are, the second day of Building Safety Month[], and what the [Town] Staff is proposing is that for this multi - million dollar project, we send new residents to Los Gatos to live in a place the California Department has already said contains chemicals. And we are not going to spend $300 or $400 to test to see if those chemicals are present. I don't think that that is appropriate in May 2011, Building Safety Month. 7 At the beginning of the May 2, 2011 Town meeting, the Town proclaimed that the month of May 2011 was Building Safety Month. 20 2 , l (Engin Dec. 914.) Indeed, the Town's own minutes of the May 2, 2011 meeting admit that a member of Ross,_Creek Neighbors; "[c]ommented that the level of contaminated soil is unknown and should be identified and tested before moving forward with approval of the project." (Id. Ex. 4 at SSAR0084.) That is the exact issue that is the focus of the DTSC's March 23, 2010 letter and the Town's Amended EIR. Respondents' principal exhaustion case, Coalition for Student Action v. City of Fullerton (1984) 153 Cal. App. 3d 1194 (see Opposition at 12- 14), is not only inapposite, but it demonstrates how fundamentally unsound Respondents' exhaustion arguments are. In Coalition for Student Action, there were two, noticed public hearings concerning a proposed hotel. (153 Cal. App. 3d at 1196.) At the first public hearing, "no member of the public objected to the project or the environmental data." (Id.) At the second public hearing, "Again, no one criticized the recommendation to prepare negative declarations [and thus, forego the preparation of an EIR] or claimed EIR's were required." (Id.) Because the "Petitioners [had] claimed no CEQA violation at the administrative level," the Court held that they could "not do so for the first time in a petition for writ of mandate." (Id.) The Coalition for Student Action Court noted that "[t]he essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are 21 subjected to judicial review." (Id. at 1198.) In this case, not only did Petitioners specifically identify all of the Town's violations of CEQA that Respondents claim that they did not (as explained above), it is surprising that Respondents would argue that they were caught off guard by Petitioners' violation of CEQA arguments given that: (1) at Petitioners' urging, on two separate occasions the.trial court held that the Town had violated CEQA in relation to this Project (2) Respondents were operating under a writ of mandate requiring them to comply with CEQA; and (3) Respondents contend that at least two members of Ross Creek Neighbors "have been fighting the Project tooth and nail since 2008." (See Opposition at 2.) B. Because Respondents Did Not Give the Notice Required By Law, Petitioners Were Not Required to Exhaust Anything There was no requirement to exhaust administrative remedies in this case, because the Town failed to comply with CEQA's notice requirements. The exhaustion code section on which Respondents rely, Public Resources Code Section 21177, explicitly provides that "[t]his section does not apply to any alleged grounds for noncompliance with this division ... if the public agency failed to give the notice required by law." (Pub. Resources Code § 21177(e).) Because CEQA required Respondents to re- circulate the Amended EIR to the public (see Petition at 22 -26), The Town was required 22 to give the public notice of a 30 day - review period. (See 14 CCR § 15105(a) ( "The public review period for a draft EIR shall not be less than 30 days. "); 14 CCR § 15087(e); see also Sutter Sensible Planning, Inc. v. Board of Supervisors of Sutter County (1981) 122 Cal. App. 3d 813, 821, 823 (EIR found to be inadequate must be re- circulated; providing the public only 12 days to review revised EIR did not comply with 30 day notice requirement).) In this case, despite operating under a writ of mandate to comply with CEQA, the Town gave the public only one business day to review and comment on the draft EIR. (Engin Dec. Ex. 1 at 15.) It posted the Amended EIR on a Friday and then held its final public hearing the following Monday. (Id.) Because the Town did not provide the notice required by law—or hardly any notice at all— Petitioners were not required to exhaust administrative remedies. C. Respondents Do Not Scratch Even the Surface of Petitioners' Substantial Arguments Rather than meaningfully address the substance of Petitioners' substantial arguments, Respondents spend most of their time trying to convince the Court that it should not hear those arguments. Respondents do not contest the meat of any of Respondents' substantial arguments. 23 1. Respondents Do Not Contest That Their Toxic Soils "Expert" Fabricated Prior Analysis The Petition explained how the Town's toxic soils "expert" completely made up all sorts of supposedly pre- existing analysis in order to try to hide the fact that the Amended EIR contained significant new information. (Petition at 22 -24.) Respondents never contest this point. (Opposition at 11 -13.) Respondents also never contest that (1) pesticide contamination in the soils was "a new significant environmental impact" that was not addressed by any prior EIR (Petition at 24) or (2) that the Town did not circulate the Amended EIR (id.). (Opposition at 11 -13.) For all of these undisputed reasons —not to mention the fact that the Amended EIR applied for the first time DTSC's 18 -page guidelines for testing former agricultural properties (Petition Ex. 10 at E0381 -83, E0390 -91; Engin Dec. Ex. 5) —the Amended EIR contained "significant new information" and the Town's failure to circulate it violated CEQA. (Petition at 22 -25.) 2. Respondents Do Not Dispute that the Project Will Destroy Active Woodrat Nests Respondents contend that the Amended EIR "concluded [that] there would not be any impacts because no rats were discovered on the project 8 Respondents assert that "DISC did not submit any additional comments on the Final EIR as amended by the Amendment." (Opposition at 13.) DTSC did, however, submit new comments on the toxic soils issue after Judge Nichols found that the Town's 2010 EIR was inadequate. (Petition Ex. 10 at E0393.) The Town analyzed this new DTSC March 2011 letter EI site..." (Opposition at 16.) To the contrary, the Amended EIR specifically found that there was one "active" woodrat nest on the site and another "active" nest "within project vicinity." (Petition Ex. l at D0216.) Respondents also claim that "there would not be any impacts" on the rat because they would be "remove[d]" from the project site. (Opposition at 16.) Respondents never contest, however, that the Amended EIR, .itself, admits that "individuals die during relocation attempts and thus relocation of the dusky- footed woodrat is not considered an effective mitigation measure." (Petition at 30; Opposition at 16.) Respondents admit they adopt the lethal "mitigation measure" of "relocating" the special status species. (See Opposition at 16.) Respondents do not dispute that the EIR does not address the second active nest or provide any analysis of how to avoid or lessen the impact on T the woodrats in the second active nest. (See Petition at 28; Opposition at 16.) Respondents also never dispute that impacts on the project vicinity "are not excused from being considered and mitigated in an EIR" merely because those impacts are to areas just outside the properties' boundaries. (See Petition at 28 -29; Opposition at 16.) Similarly, Respondents do not contest that the Amended EIR did not address feasible and specific suggestions for mitigation —such as using a different set back along the for the first time in the Amended EIR. (Petition Ex. 10 at E0383.) 25 Western side of the property to mitigate the impact to the woodrats living in the second active nest. (See Petition at 30; Opposition at 16.) The Amended EIR violates CEQA because it does not reduce or avoid the impact on the woodrats living in first active nest —much less even analyze the impacts to the woodrats living in the second active nest. (Petition at 31- 32.) 3. The Town Has No Geomorphology Expert Respondents characterize the dispute concerning the delineation of the top of the creek bank as "a disagreement amongst experts." (Opposition at 16.) The Town, however, has no expert. The Town's own guidelines state that the top of bank determination (which is used in slope stability analysis) is based on geomorphic and hydrologic conditions. (Petition Ex. 25 at F0691 ( "Slope stability requirements for watercourses will be determined based on geomorphic and hydrologic conditions... "; id. at F0694 (Size of "Slope Stability Protection Area" is "measured from Top of Bank ").) Respondents do not contest that the Town had no geomorphic or hydrologic experts. (See Petition at 32 -33; Opposition at 16 -17.) Petitioners, on the other hand, rely on three geomorphology experts who all advised the town that its top of bank delineation was wrong. (Petition at 32 -33.) You can't have a battle of the experts when the opponent does not field an army. PC (0 a Respondents also contend that "Appellants have made no showing of irreparable harm that will be caused to the creek ... or to anything else..." (Opposition at 17.) Not only did Petitioners do so (Petition at 33), but the Town's own Guidelines do as well: Structures built near streams may negatively affect streams and streamside resources as well as the structure itself. Some potential issues include: 1. Adverse effects on streamside slopes, including effects on slope stability and erosion, and related hazards to structures built on streamside properties 2. Adverse effects on flood control facilities and related infrastructure 3. Adverse effects on local drainage facilities and related infrastructure 4. Adverse effects on riparian corridors and associated vegetation and related erosion impacts 5. Adverse effects to streams, including the effects of down - slope sedimentation and altered stream hydrology, and related impacts to water quality in streams 6. The structure itself can be undermined over time as the streambank erodes due to the dynamic nature of the stream resulting in health and safety hazards (Petition Ex. 25 at F0692.) More fundamentally, Respondents never deny that the Amended EIR "lacks any data or analysis regarding the delineation of the top of bank, which is a necessary component of any meaningful analysis of the 27 hydrological impacts of the proposed project." (See Petition at 33 -34; Opposition at 16 -17.) Respondents did not comply with CEQA. 4. The Town Does not Dispute that It Approved the Project Without an Adequate EIR The only argument that Respondents present concerning the Town's failure to vacate prior project approvals that were based on an inadequate EIR is that Petitioners failed to exhaust administrative remedies. (Opposition at 14.) That argument has no merit. (See Sections ILA-B, supra.) Respondents do not contest the fact that the Town "approved the applicable subdivision application before it reviewed and considered the final EIR." (Petition at 27; Opposition at 14.) Respondents, thus, violated CEQA. (Petition at 26 -27.) 5. The Amended EIR Did Not Analyze Any Environmentally Superior Alternatives Respondents do not contest the fact that the 5 and 6 home alternatives considered by the Amended EIR (1) "do not offer substantial environmental advantages over the project proposal" (Petition at 34 -35) and (2) do not "reduce the identified significant project impacts to the San Francisco dusky- footed woodrat, special status bat species, damage to retained trees, erosion and sedimentation into Ross Creek, construction emissions, soils constraints, and construction noise." (Id.; Opposition at 17- 18.) They also do not dispute the fact that the `EIR contained no alternatives that offer substantial environmental advantages over the proposed project, even though two alternatives —a three or four -home development —were identified as potentially feasible and environmentally superior alternatives." (Petition at 35; Opposition at 17 -18.) The Amended EIR, itself, specifically states "The [CEQA] guidelines further require that the discussion focus on alternatives capable of eliminating significant adverse impacts of the project, or reducing them to a level of insignificance even if these alternatives would impede to some degree the attainment of the project objectives or would be more costly." (Petition at 34 (emphasis added).) Nonetheless, Respondents now contend that the principal reason that one and two home alternatives were not considered was "because those could not attain most of the basic objectives of the project..." (See Opposition at 18 (emphasis added) (citing CEQA Guidelines § 1516.6(f).) But Section 15126.6(f) does not state that as an unqualified matter of principle, an alternative need not be considered if it "could not attain most of the basic objectives of the project." Instead it specifically requires an agency to consider alternatives that avoid or substantially lessen any of the significant effects of the project: The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project. Of those alternatives the EIR need examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the project. 29 (14 CCR 15126.6(f) (emphasis added).) This is not a case where Respondents considered an alternative "that would avoid or substantially lessen any of the significant effects of the project." Accordingly, there is no subset "[off those alternatives" that can be ignored because they do not "attain most of the basic objectives of the project." (Id.) Respondents never dispute that the Amended EIR completely lacked any discussion of any identified potentially feasible alternatives that offer substantial environmental advantages over the project proposal. The Amended EIR does not comply with CEQA. a. Respondents Do Not Contest That the EIR Failed to Analyze an Alternative that Would Not Violate the Tree Ordinance With respect to the Town's violation of its own tree ordinance, Respondents maintain that Petitioners' argument "is not a CEQA challenge to the adequacy of the Project EIR." (Opposition at 18.) To the contrary, Petitioners explicitly explained that the Amended EIR does not comply with CEQA, because it: (1) did not "analyze[] a project that would comply with the Tree Ordinance" and (2) "never even purports to establish that the removal of the protected trees was 'unavoidable "'—a requirement for the destruction of the trees under the Town's tree protection ordinance. (Petition at 36.) KES C N While Respondents imply that the trial court found that the Town complied with its Tree Ordinance (Opposition at 18) in what Respondents maintain was an unrelated case (id. at 3), in fact, the Town argued to the trial court that it did not have to comply with its own Tree Ordinance. (Engin Dec. Ex. 6 at 17 (arguing that the "the tree ordinances cited by Petitioner are inapplicable to subdivisions created by [planned development] zoning" such as the challenged planned development at issue in the unrelated case).) Respondents certainly do not contend that the trial court found that Respondents had complied with the tree ordinance even. though Respondents did not—and could not — demonstrate that the removal of 26 protected trees was "unavoidable." (Petition at 36 -37; Opposition at 18.) The Amended EIR's failure to analyze a project that complies with the Town's own tree protection ordinance does not comply with CEQA. 6. Respondents Did Not Test the Soil For Arsenic, Lead, or DDT Respondents do not meaningfully contest that: (1) DTSC recommended soil testing; (2) Respondents have done no soil testing; (3) DTSC disagrees with the Town's strained interpretation of DTSC's guidance; (4) arsenic, lead, and DDT were used on commercial orchards in the South Bay; or (5) the Amended EIR contains no soil testing results, much less any analysis of arsenic, lead, and DDT levels (Petition at 37 -40; 31 Opposition at 19); rather, the only non - exhaustion argument that Respondents present is that "the Town's decision to remedy the Final EIR with the Amendment and the Town's findings with regard to the Amendment were proper..." (Opposition at 19.) Because of the five uncontested reasons stated immediately above, they were not. 7. Respondents Do Not Deny That the Amended EIR Relied on Undisclosed Data Respondents do not dispute that the Amended EIR analyzes and draws significant conclusions from historic aerial photographs and orchard maps, which are not included in the Amended EIR —or that relying on such undisclosed data violates CEQA (Petition at 40; Opposition at 19.) Rather, Respondents repeat their failure to exhaust administrative remedies argument. (Opposition at 19.) Because Petitioners exhausted administrative remedies on the inadequacy of the Town's response to the March 23, 2010 DTSC letter —even though they did not have to (see Sections II.A -B, supra), the sub - argument of whether the Town properly relied on undisclosed data to combat the March 23, 2010 DTSC letter is properly before the Court. (See Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal. App. 4th 1385, 1395 (noting that "`less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding' because, although not the case 32 �.xn here, parties in such proceedings generally are not represented by counsel ") (citation omitted).) D. While Petitioners Will Be Irreparably Harmed Absent a Stay, Respondents Would Not be Harmed by a Stay First, Respondents never contest that Petitioners have "an absolute right to supersedeas if the trial court and Respondents refused to acknowledge an automatic stay. (Compare Petition at 8 with Opposition.) Thus, no showing of irreparable harm is necessary to the enforcement of an automatic stay. To the extent that the Court does reach the irreparable harm question, Petitioners pointed out that Respondents would not be irreparably harmed by a stay. (Petition at 20.) Respondents' Opposition never contested this point. Respondents did argue, though, that there "is simply no evidence that any of Real Parties' construction - related activities at the Project Site will cause irreparable harm to any environmentally sensitive resources." (Opposition at 11.) Fundamentally, however, as the Court has recognized, permitting a project to gain momentum after an inadequate environmental could drive a stake into the heart of CEQA and the environment surrounding Ross Creek: Here, injunctive relief is necessary both to protect the site from adverse and possibly irreparable alteration prior to full and accurate assessment and disclosure of the scope and 33 environmental impacts of the development project and to ensure adequate consideration of alternative sites and additional mitigation measures which may be identified in the revised EIR... It is all too likely that if such [construction] activities proceed pending preparation of an adequate EIR, momentum will build and the project will be approved, no matter how severe the environmental consequences identified in the new EIR. Consideration of alternative sites or density or additional mitigation measures, such as a larger buffer zone or different location or configuration of the proposed park site will be prejudiced, for the development project will have proceeded well beyond the planning stages and change will be both more difficult to effect and less likely to occur. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal. App. 4th 713, 741 -42.) In this case, Respondents never dispute that they are: (1) destroying protected trees and habitats along the riparian corridor (see Petition at 20); (2) discharging into the environment soil and debris that no one has tested for pesticides despite the fact that the property used to be a commercial orchard (see id.); and (3) destroying active nests of a special status species (id. at 1). "Without relief, the site [and the surrounding environment] may be damaged and the important purposes of CEQA will be subverted." (See San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal. App. 4th at 742.) Given Respondents' disregard of CEQA and their failure to identify any prejudice should the Court issue a stay, the Court should issue a stay. 34 ,, E. The Town's Own Planning Commission Opposes The Project Respondents' characterization of the opposition to the project as the work of just "[t]wo neighbors" (Opposition at 2) is not only inaccurate, but irrelevant to: (1) the substantive issues addressed in the Petition and (2) the substantive issues that are on appeal. Dozens of citizens, as well as representatives from local environmental organizations, including the Guadalupe- Coyote Resource Conservation District and the Santa Clara County Audubon Society, have spoken out against the project at public meetings of the Planning Commission and Town Council, and in comments submitted in response to the draft environmental impact report. On August 11, 2010, the Town's own Planning Commission voted four to one against approval of this project. That was the last time that the Planning Commission substantively considered the project. CONCLUSION This is not a run of the mill case. The trial court and the Respondents ignored an automatic stay, and Respondents do not genuinely dispute any of the Petition's substantial issues that will be raised on appeal. Respondents do not claim any harm if the Court grants the stay. Without a stay, the riparian corridor, special status species, protected trees, Ross Creek and its surrounding environment will all be irreparably harmed. Accordingly, the Court should grant the Petition. 35 CERTIFICATE OF WORD COUNT The text of this reply brief consists of 7,742 words, as counted by the Microsoft Office -Word word- processing program used to generate the brief. Dated: July 26, 2011 Respectfully submitted, By: Timur Engin By: Rachel Mansfield - Howlett Attorneys for Petitioners 36 This Page Intentionally Left Blank ATT9RNEY OR PARTY WIT QpQuTT ATT FY (Nome, � 3 W Gr 8arnumbar end Tunur En�1n, 229 44,154 Loma Vista Av Los tiatos, CA 95032 mn couRT use ONLY ENDORSED RECEIVED Q Uninsured motorist (48) - TF.U PNONE NO- (408) 356 - 0716 FAx No,: 408 241-0602 R oss Creek Neighbors 7 1 2 011 A'iToRNEV FCR 0,. r� — L 20 1 1 UPERtOR COURTOF CAUFORNIA,.COUNTY OF Santa Clara !STREET ADDRESS. 191 N. First Stre D74f}h, }aYk;a. ^� • TOWN OF LOS GA1 MA41NGAdDREBS N. First Street PLANNING DIMS? �i91 CiTYANoziPCODE San Jose, CA. 95113 Q Securities litigation {28} Q BRANCH NAME: Downtown Superior Court 0lGL4y S �m Environmentalfi'oxic tort (30) Q insurance coverage claims arising from the CASE NAME Q Wrongful eviction (33) Ross Creek Nei hbors v. Town of Lc s Gatos, et, al. Business tortiunfalr business practice (07) CIVIL CASE..COVER.MEET ✓Q unlimited Q Limited Cotnptex Case tYesignatton M N , e '�,�, '�• �.+ � � 0,854 (Amount (Amount Q Countor Q JvWar Q Defamation (13) Q Fraud Commerdal (31) Q demanded demanded is Filed with first appearance by defendant '' exceeds $25,000) $25,MO or less) (Cal, Rules of Court, rule 3,402) CtEPT OS ) N ntrr r —o mnyw musr De compietea (see instructions on page 2), , 1. Check one box below for the case type that best describes this case: Auto Tart Q Auto (22) Contract Breach of oontractlwarranly (06) Provisionally Complex Civil Litigation ical. Rules of Court, rules 3.400 3.403) Q Uninsured motorist (48) t Q — � Q Rule 3,740 collections (09) Q AntitrustlTrade mgulation (03) Other PWDM . D (Personal InjuryJProperty Other collections (09) Q Construction defect (16) Damagaftengful Death) fort © Asbestos (04) rj1 L_. i Insurance coverage (18) Q Q Mass tort (40) Product liability (24) Other contract (37) veal Property Q Securities litigation {28} Q Medical rmatpractfce (45), Q other PItPDMl.D Q F..m[rantdomalrVinverse condemnation (14) Environmentalfi'oxic tort (30) Q insurance coverage claims arising from the (23) Non- PilPDiWD (0thar) Tort Q Wrongful eviction (33) above listed provisionally complex case types (41) Business tortiunfalr business practice (07) other real property (26) of Judgment Q Civil rights (08) Unlawful Dotalner r�Enn-f--otyrcement i_.) Enforcement of judgment (20) Q Defamation (13) Q Fraud Commerdal (31) Q Miscellaneous Civil Complaint (16) Q Intellectual 19 Property i ) Residential (32) ® s, 38 oru g ( ) RICO (27) rI Q • other not Complaint P f speafied above} (a2) Q Professional. m*ligenca (25) Q Other non- PIlPOM tort (35) Judicial Review Q Asset forfeiture (05) Mlecgltatneout.Clvll Pekttian Q Partnership and corRorate Employment Q Wrongful termination ' Q Petitionrs: arbitration award (11) governance (21) Other petition (not apea�ted above} (43) (36) ® Witt of mandate (02} 2. This case L_._I is k,U Is not complex under rule 3.400 of the California Rules of Court. If the Case is Complex, mark the favors requiring exceptional judicial-management: a, Q Large number of separately represented parties cl Q Large number of witnesses b. Q Extensive motion practice raising difficult or novel g, Coordination with related actions pending in one or more courts Issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court Q Q Substantial amount of documentary evidence f. 'Q Substantial posf)udgment judicial supervision 3. Remedies sought (check all that apply): a.[Z monetary b. © no nmonetery; declaratory or'injunctive relief 0. Q punitive 4. Number of causes of action (specify }' Three 5, This case Q is ® Is not a class action suit. 8, if there: are any known related cases, file and serve a notice of related case. (You may use form CM Of5,) oate: September 2, 2011 Timur EnEin * Plaintiff must file this cover sheet with the flcst paper filed lit the action or pmeeeding.(except small Claims caases. or Cases flied under. the Probate Code, Family Code,. or Welfare and Institutiona,Code). (Cal, Rules of Court, rule 3,220.) Failure to file may result in sanctions, * File this Cover sheet in addition to any Cover sheet required by local Court rule, • if this case Is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. * Unless this Is a Collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only, PO" Adopt«! for Mob" U: Aft CO Ica ofCafHorwa C"10 )Frey. July 1, 2007) CiVIL. CASE 3tOndords 2i 3 4 5 ; 6 a 10 1z 13 14 15 1.s 17 is 19 20 21 22 23 24 25 25 27 25 TIMUR ENGIN, CA STATE BAR NO. 229944 -' AHD O U S E D' 15841 Loma Vista Avenue L E D Los Gatos, CA 95032 SEP — 2 Tel: (408) 356 -0716 - Fax: (40$) 241 0602 `Jr Cc;j,' c � / µ.C alh rarColl ATTORNEY FOR PETITIONER ^ P�Riters SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLAD. ROSS CREEK NEIGHBORS, an unincorporated association; Petitioner, v . TOWN OF LOS GATOS, its TOWN COUNCIL, and Does 1 to 10; Respondents; MISSION WAY PARTNERS LLC, HBO LLC, STITEGARNMAC LLC, SARDAN LLC, DANIEL BLUE, SANFORD HAVENS, and Does 11 to 20; Real Parties in. Interest. 1 Case No. 111C-V208541 PETITION FOR WRIT OF ADMINISTRA'L:IVE MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF CCP §1094.5 Subdivision Map Act PETITION FOR WMIT OF ADMINISTRATIVE MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF a 2 s 4 s 7 s 5 10 12 12 13 14 is 16 17 Is 19 2Q 21 22 23 24 25 26 27 28 Ross Creek Neighbors, petitions the Court for a Writ of Mandate under California Code of Civil Procedure Section 1094.5 and Government Code Section 66499.37, directed to Respondent i Town of Los Gatos and its Town Council, and by this verified. petition alleges: INTRODUCTION Ross Creek Neighbors, an unincorporated association, brings this administrative mandamus action in the public interest to enforce mandates of the California Subdivision. Map Act and the Los Gatos Town Code. Petitioner challenges the actions of the Town of Los Gatos and its Town Council to approve the proposed project ( "Project'), a subdivision application that violates the Town's street width, right-of-way, sidewalk, lot size, density, and tree conservation I ordinances, By approving the Project, the Town has abused its discretion and failed to proceed in a manner required by law, because the Project does not comply with the California Subdivision Map Act and subdivision provisions of the Los Gatos Town Code. Respondents further failed 1 proceed in a manner required by law and abused their discretion by approving the Project without public access to the on -site public creek as required by the California Subdivision Map Act. Moreover, Respondents did not hold a fair trial and did not adequately consider the subdivision approval because the Tentative Map was not considered or approved by the Los Gatos Planning Commission, as required by Town Code, The Court should issue the peremptory writ to enforce the mandates of state and local law. The writ should. require the Town to set aside the project approvals until they are made to comply with the California Subdivision Map Act and the Los Gatos Town Code. JURISDICTION AND STANDARD OF REVIEW 1. This Court has jurisdiction tinder Code of Civil Procedure Section 1094.5 and Government Code Section 66499.37. The scope of review is provided by Code of Civil Procedure Section 1094.5, The parties and the site are located within the County of Santa PE 11TION FOR WRIT OF ADMINISTRATIVE MANDATE AND cmiP AINT poR LWiUNC -rIVE I�L3EF 2 1 2 s 4 5 6 . 7 e 9 �.4 11 12 13 x4 ,; 16 17 15 22 21 24 25 2s 27 25 PARTIES ( 2. Petitioner, Ross Creek Neibhbo.rs, a unincorporated associatioaa, is a p ublic service organizat formed in 2004 to promote environmental protection in the Los Gatos area for the benefit of the people of Los Gatos and Santa Clara County, R.oss Creep, Neighbors' members include conm residents wbo enjoy and appreciate the cnvironrnetatal reSources Of Los Garos, desire consistency and regulatory compliance in Los Gatos subdivisions, and bring this petition on behalf of all others similarly situated who are too numerous to be named and brought before this Court as petitioners. As local property owners directly affected. by the subdivision approval, Petitioner and the class that it rgprese�n.ts are ben.efxcially interested in and a grieved by the 'town Council docision to approve the subdivision. Petitioner repeatedly objected to the smbdivision approwl and has exhausted administrative: remedies. 3. Respondents, Town of Los Gatos and its Tovvn Council are the governmental bodies who are responsible for implementing the Town's land use policies. The Town of Los Gatos and. its Tow -n Council approved the project. Does I to 20 ate Respondents whose true na.nles a.tid capacities arc currently unknown to Petitioner. It" their true names acid capacities are revealed, Petitioner will amend this petition to assert theta. 4. Petitioner is informed., and on that basis alleges, that Real Party in Interest, Mission Way Partners LLC ", tinder its name or the name of a former entity, Linda Court Partners LLC is: (a) the Project applicant, having submitted the application for. the Project; (b) 6.0 recipient of the Project approvals, and /or (C) the owner of till or a portion of the Project site. 5. Petitioner is informed, and on that basis alleges, that Real Party in Interest Daniel Blue is (,,) the Project applicant; having submitted the application for the Project; (b) tho recipient of the Project approvals, and /or (c) the owaler of all or a portion of the Project site. t, Petitioner is inforttted, and on that basis alleges, that Real Patty in Interest HBO LLC is (a) the Project applicant, having submitted the application for the Project; (b) the recipient of the Project approvals, and /or (c) the owner of all or a portion of the Project site. 7. Petitioner is informed, and on that basis alleges, that Real Party in Interest Stitegaramac LLC is (a) the Project applicant, having submitted the application for the project; PETMON FOR WPUT OF ADMINISTRA'T'IVE ID'S ANDATE Ai D C:ONIPLA.T•NT FOR INSUNIC'TWE RELIEF 1 � (b) the recipient of the Project approvals, and /or (c) the owner of all or a portion of the Projecl site. 6 8. Petitioner is informed, and on that basis alleges, that Real Party in Interest Sardas LLC is (a) the Project applicant, having submitted the application for the Project; (b) the recipient of the Project approvals, and /or (c) the owner of all or a portion of the Project site. 9. Petitioner is informed, and on that basis alleges, that Real Party in Interest Sani`"' Havens is (a) the Project applicant, having submitted the application for the Project; (b) the recipient of the Project approvals, and/or (c) the owner of all or a portion of the Project site. 10. Does 11 to 20 are Real Parties in Interest whose true names and capacities are currently unknown to Petitioner. If their true names and capacities are known, Petitioner will amend this petition to assert them. 11. The paragraphs below refer to and rely on information in documents relating tc this action, all of which will be filed with this Court as part of the record of proceedings and which are here incorporated by reference, GENERAL ALLEGATIONS 12, In approximately March of 2005, the Real Parties in Interest submitted their 21 i2 23 24 25 2e 27 28 original applications for the project located on two parcels at 15881 Linda Avenue and 15950 Stephenie Lane ( "Project " ). Both parcels are adjacent to Ross Creek. The Project involves a Planned Development ( "PD ") application, an Architecture and Site application, a zone change from R -1:8 to R- 1:8PD, the removal of trees, a lot line adjustment between the two parcels zoned R -1:8, an application to demolish a single family residence, and an application for a seven -lot subdivision of single - family residences. The Project site is bounded on the north by Ross Creek and its associated riparian habitat. Dense riparian habitat also occurs on the site's western boundary. 13. In March of 2007, the Town published an Initial Study and Mitigated Negative Declaration ( "MND ") for the project. 14. On January 22, 2008, the Town Council held a public hearing, adopted the MND, PF11TION li OR. WRIT OR ADi'.virNIS'I'I2ATIVE; J Ar: i- NDA'rf AND COMPLATNT FOR I NJ UN4C;TIV L. RT:LIHI 4 I CN and approved the PI) Ordinance and zoning change;. 2 '15. On February 21:, 2008, ]:toss Creek Neighbors tiled a Petition for Writ of Niandamus. 16. On or about March 6, 2008, an attorney for the Real Parties seat a letter to -in attorney for Ross Creek Neighbors stating: 10 11 12 13 14 15 1 6 17 18 19 20 21 22 23 24 25 26 27 28 If this groundless suit is not in metl:iatciy dismissed with prejudice, our Clients will, upon disposing of it, sue you, your firm and each and every one ofyoux clica:ts for malicious prosecution. Make no mistake, this is not an idle threat. Your clients, including every individual member of the "Ross Creek Neighbors" and "Committee for Green Foothills" will be sued and will be charged for all damages caused by their n spirited actions, including punitive damages in excess of one - million dollars. We will vigorously pursue collection of these damages against you, your firni, and your clients individually, including garnishing wages and sellbag hom.es... Having yourself verified the complaint, you rM:ght want to check on the adequacy of your errors and omissions coverage.. Having gotten on the train, it is time for you, too, to get off unless you wish, along with your clients, to be involved in a train wreck otlawsuits, damages awarded, ,wages garnished, hoi es sold and the price of justice exacted. 17. On or about March 13, 2008, Terry McElroy of McElroy Prop., Inc. (the acrd who, upon information and belief, is a member of one or more of the Real Parties) sent a letter to approximately 1.5 households in the Los Gatos area stating* Inforniation and records obtained by the owners of the Linda Court property indicates that you are a member of the Ross Creek Neiglbors' Association ... ff your lawsuit is not immediately dismissed without prejudice, yau. will be served With malicious prosecution and charged with our existing damages plus punitive damages for over $ 1,000,000. Further, unless dismissed, your mean - spirited and baseless action is likely to bear more lawsuits, counter - lawsuits, rttturney's fees, depositions, production of records and evidence, personal attacks, public bunailiation, financial disclosures, awards of damages, property liens, garnished Avages, and untold anguish for you and your family. 18. On Tune 21, .2008, demolition began on the project site. On Tune 22, 2008, the Court granted an inrrnediate temporary restraining order preserving the status quo on the Project site. 19. On Tune 24, 2008, the Real. Parties signed a stipulation and proposed order F':ETIT Ox I'UR vJRI "I' OF All viTI�tIS "rRAT'IVE MANDATE AND COMPLAIINT FOR INJUNCTIVE RE,L S 1 2 3 - 4 5 6 7 e .g 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agreeing to preserve the status quo on the Project site until ;preliminary injunction hearing on August 8, 2008. 20. On August 8, 2008, the Court issued an order granting Petitioners' request for f stay, which protected the site pending further order of the Court and stayed the operation of tnc Town's approvals. The Court stated: "This stay order will not work great hardship on respondent or real parties in interest. It is in the public interest to issue this stay." 21. On September 5, 2008, the Court granted Petitioner's February 21, 2008 Petition for Writ of Mandate. On November d, 2008, the Court ordered The Town to set aside and voic all project approvals and to refrain from further ` nr(•' Tn r.l' l.L... ,. Uw•r. � or.+ .,.,4: Y al: rl''r,. : ..... ....... +.� .F= �. A an adequate Environmental Impact Report ( "EIR ") and made findings in compliance with the California Environmental Quality Act ( "CEQA "). The Court ordered Respondents to file a Return to the Court upon taking final action setting forth their compliance with the Writ. lfit) , ,.�+,.d.«!•.. �91. 3 ., ..42..1 Y7n +,,. -r- 1.. f.J the Town had taken the necessary actions to set aside and void all Project apprc -- Resolution 2009 -012. 23. On or about May 17, 2009, Respondents and Real Parties signed a stipulation to pay Petitioners' attorneys' fees and costs in the amount of $200,000. 24. Real Parties in Interest submitted a new application for a slightly revised project which was similar to the previous project approved in 2007: a 7 -lot residential in -fill subdivision, PD application, rezoning, Architecture and Site application, demolition, lot -line adjustment, and EIR. - "_ -,.. < - - - -- -- - -- I. � _- ,_ - . - . 1.- . 2010. Petitioner and others commented on the inadequacy of the EIR including the Project's inconsistency with the Town Code. 25. On August 11, 2010, the Town Planning Commission held a public hearing recommending certification of the EIR for the Project by the Town Council and denial,, e 'i.; r .I application and rezoning on the basis that the site was not suitable for the proposed density oy floor area ratios. The Commission determined that the proposed parcel and house sizes anc heights were not consistent or compatible with the neighborhood. Vice -Chair Sayoc anc ':TT <rrn \T T±/1ri tT rr, r-r (', t� ♦ r"k I an tT" "'I A R'7r rr; It 9 A N)" t m1: X , "'�•..-....•..••- _......... -... r'.l1> .((,r l rr.'r7+ C.^ 'M1lYfS' R..rrmT[ rT: ri �.i 3 6 7 8 9 14 is 16 17 is 19 20 21 22 23 .24 25 26 27 28 C ih Commissioners Jensen and Talesfore noted the lot area, floor &rca ratios, and street width did not comply with the Town Code, Town staff noted that the Prc j)ect site did not have sufficient a on, Linda Avenue to allow a subdivisi(xi with a street or right-o width in conformance with Town Code. 26. Ross Creek Neighbors and other concerned citizens objected to the certification of'{ the EER and approval of the Project, because the developer sought to violate the law by building too many limises in too small 6 space. The developer proposed a sub-standard street size, substandard sidewalk and right -of wary widths, substandard lot sizes, and above inaxinnurn density of homes, Further evidence of overbuilding includes the necessity to remove trees in violation of the 'Town's tree conservation code and the intensity of - use, Which is out of chaxacter with the surrounding neighborhood. 27, On September 7, 2010, the Town. Council held a public hearing and certified the EIR. On September 21, 2010, the Town Council approved the Project PD application and rezoning by adopting Ordinance 2193 ("PD Ordinance") and Resolution No. 2010-092. Petitioner and others reiterated their concerns and objected to the certification. and the Project on 1 the bases stated above. 28. On October 19, 2010, the Town's Design Review Conunittee met purportedly to tVPT Ma .ove"tbePrc)jcct',5tentativotiiapfoi p"). The Project's Tentative Map was not reviewed or approved by the Los Gatos Planning Cominission or the Town Council. 29. On Deceniber 20, 2010, Ross Creek Neighbors again petitioned the Court for a Peremptory Writ of Mandamus, separately from the operative ("'.EQA Writ, alleging that the Project's PD Ordinance was inconsistent with To Code ("PD Petition"). 30. In their opposition to the petit Respondents conceded - that: the Project's street width is 22 feet while m1nor subdivision streets are required to be 36 feet; the area of lot 7 listed on the final map is less than 8000 square feet (even. without adjusting the lot area. for the slope of the lot); acid the project's sidewalk is 5.0 feet white the Town Code requires 5.5 fuel. 31. Los Gatos Town Code Section 20.1.0.020 provides: ".Lot area means the total PETITION.VOK WRF-FV1'A1-)1V1INIb 1 KA I MLIWANDA U! AND f-UNU'LAIN I. PUK IINJ ufqk,. I IV Ef K-L" L, ILI I, 1 2 3 4 5 s 7 s a 10 11 12 13 14 15 1& 17 1s 19 20 21 22 23 24 2s 26 27 2s horizontal area included within lot lines, except as otherwise provided in the chapter, ana excluding land required for public dedication and any land determined to be riparian habiiai. (Emphasis added). In their opposition to the PD Petition, Respondents did not dispute the fact that the lot areas listed on the Project's maps are sloped areas, not horizontal areas. 32. Los Gatos Town Code Section 29,10.0990(5) provides: "In connection with a proposed subdivision of land into two (2) or more parcels, no protected tree shall be removed unless removal is unavoidable due to restricted access to the property or deemed necessary to repair a geologic hazard (landslide, repairs, etc) In their opposition to the PD Petition, Respondents did not dispute that the Project's removal of numerous protected trees was not necessary to access the property or to repair a geologic hazard. 33. On February 10, 2011, tho Court heard Respondent's Return to the Writ of Mandate regarding CEQA compliance. On March 8, 2011, the Court issued an Order finding that the EIR was inadequate, denying Respondent's request to discharge the writ of mandate, and again retaining jurisdiction pending further return confirming compliance with CEQA. 34. While the Court did not discharge its writ, it did overrule many of Ross Creek Neighbors' objections to the return, including assertions that the Project failed to consider alternatives that did not violate local land use ordinances. Ross Creek Neighbors, therefore, Q,, May 13, 2011, filed a timely appeal of the Court's March 8, 2011 CEQA Order, 35. In a separate March 8, 2011 Order, the Court denied Ross Creek Neighbors' December 20, 2010 Petition challenging the Project's PD Ordinance stating that "[t]his non - CEQA area is not one where the Court is authorized to exercise its own indeper. It-.r+ !-i 4ampr+ i . "4 .11 rl M ,,_ f 17 "Petitioner has the burden of proof," and "an abuse of discretion should only be found if the Court determines that the findings are not supported by substantial evidence in light of the whole record." 36. On June 20, 2011, the Town Council met and approved the Project's final w►ar Tract 10012 ( "Final Map "). At the public hearing, Petitioner submitted a letter, exhibits, and a video documenting Petitioner's objections to the Final Map approval and reiterating concerns which had been submitted at previous Town Council hearings. .:��n urn rT �-•r: n-- mne, ,....�._ — ........,_.._ m» ,i •'r•*s rr� P. A 7+iTl { 7`e'; �'ki7l r''P16 rnY ti t*rrt i':nrr rr,r** n r +nr rrri I 3, 14 z1 12 i3 37, Petitioners timely filed this Petition, 38. Dt=fiticnn has no main, sX1f'r -oil orlr•1nuatt+ tht t. nreliyinry wMTNCf* of tllr- law, The Town has the capacity to correct its violations of law but refuses to do so CQt ante nd a peremptory writ is needed to avoid the Project's immediate, severe, and irreparable harm to Petitioner, Los Gatos residents, and the environment. 39, Imposition of a stay under Code of Civil Procedure Section 1094.5(8) is not against the public interest because the public has an interest in California and Los Gatos laws being applied fairly to all citizens. Tree removal, grading, paving, and construction of the subdivision improvements has commenced. (lousing construction is eminent, A short stay to ensure that the Project complies with California and Los Gatos law will not cause a great hardship on Real Parties or the Respondents. FIRST CAUSE OF ACTION VIOLATIONS OF SUBDIVISION MAP ACT 40. Petitioner incorporates all previous and subsequent paragraphs as if fully set forth herein. 41. Respondents abused their discretion and failed to proceed in the manner required by law in approving the Final Map in violation of the California Subdivision Map Act. The Project violates local subdivision ordinances as farther explained below ' rnt -r6n Code Section 66473 provides: 23 24 25 26 27 2s 1 lnral agency shall disapprove a map for : fai i -r-A tr , M - ^t or perforrll any of the P,quirements or conditions imposed by this division or local ordinance emicted pursuant hl�r-f— n that a final map shall be disapproved only for failure to .meet or )erf -, — 1 eats or conditions w hich w ere applic-able to the subdi vision at the time of the tentative map; and provided further that such disapproval shall be rccompa7�ied by a finding identil`ying the requirements or conditiom which have not —.et or performed. Such local ordinance shall include, but need not be limited •ro, P :rocedure for waiver of the provisions of this section When the failu •e of the map i- fh, emit nP n f,—I rtinat lA .inadverte:nt error which, in flip rt�tar,rttt�afirl,i of ilip lnt-1 rfe'nrtl. flnF�c r,nl maiteri�alcr �ffrrt filt� Y-ali�itt7 '- F+hE. ma't•�, 42. Furthermore, California Goverriment Code Section 66453(a) provides: IRTVTTC1N FC1P Ci7TJ1`T' nV A I'VIM1'N! - r 7 A'Y' 1111 A',,nA'F'r. At�rt� I'DT A MIT F nl? �17 rh'f('`T111P R FT TV I 4 The legislative body shall, at the meeting at which it receives the map or, at its next regular meeting after the meeting at which it receives the map, approve the map if it conforms to all the requirements of this chapter and any local subdivision ordinance applicable at the time of approval or conditional approval of the tentative map and any rulings made thereunder. If the map does not conform, the legislative body shall disapprove the map. 43. Despite the fact that neither the Tentative Map nor the Final Map complied with 9 10 11 12 13 14 is 16 17 1s 19 20 21 22 23 24 25 26 27 28 California or Los Gatos law, Respondents approved both maps. SECOND CAUSE OF ACTION VIOLATIONS OF LOCAL SUBDIVISION PROVISIONS 44. Petitioner incorporates all previous and subsequent paragraphs as if fully set fo&j herein. 45. Respondents failed to proceed in the manner Arlant;na fop. 'F+i.nal Map in violation of the Town Code that pertains to street width and right -of -way width. 46. Los Gatos Town Code Section 24.50.015(3) provides; s lidth of right-of-way for 1 MIRMt-r l.tc etlall be 'lot less tha:tl. fifty -six (56) with a paved roadway width of not less thtin tbi - Ily -six (36) :feet, excluding :Y,r11 '% -tid sidewalk; except, that in. mountainous or hillside areas the width of tlw )aved roadway may be reduced from. thirty -six: (36) to thirty (30) feet if par' is Y )r hibited along one (1) side n-f i }.sue et rppt or ItixrPriix /.rrn7r` f24) fif-i' ifY��YYI -inq �e )rn h tl ')itr. >rl nn 1lnth eielae of aw.- etrpr -t 47, Respondents concede that the Project street width is twenty -two (22) feet—not thirty -six (36) feet, and that the right -of -way width is 27 feet —not 56 feet. 48. Town Code Section 29.80.095 states that compliance with the provisions of the Planned Development Division of the Code does not relieve the applicant from having to comply with the subdivision ordinance or any other applicable ordinance of the Town. 49. The Town Respondents failed to proceed in the manner required by law in adopting the Final Map in violation of the Los Gatos Code Section 24.50.065 and Engineering Standards Section 2.16 (D)(1), which pertain to sidewalk construction. 50. Town Code Section 24.50.65 provides: QTT'6TTnNJW W P rr rtir. Ar)XATr PQW A TTNf*P'Anct�Tln °T'T: �liltt rn�ATyT ATIv`I' TnF rntYT TT�rC t `l�T T T'Y YL ^F n 1 4 s 10 11 12 13 14 15 16 17 27 2 s 51, '52. face of curb. 53. 54, Sidewalks shall be constructed on all streets and highways within a subdivision; except, that in land being subdivided into lots twenty thousand (20,000) square feet or more in size, sidewalks may be omitted. In hillside subdivisions, a walkway or path shall be constructed on one (1) side of the street or highway, subject to the of the Town Engineer and the advisory agency, The Town of Los Gatos Engineering Standards Section 2.15(D)(1) provides: All sidewalks shall be a minimum of five (5) feet wide measured frond back of curb or 5 -1 /2 feet measured from the face of curb when directly attached to the curb. �a�il��. �_ 1�xtif�_ r'• r•. �_ �t�_+ �. a1: �Xa��_T�.rt�i,�;cf.��xu �% �_ ��ieleYars• 7k ._tric�.£hrS�.,�'�a�t.frl.�v. � The proposed lots are much smaller than 20,000 square feet. Respondents abused their discretion and failed to proceed in the manner required law in approving the Final Map in violation of the Tree Protection Code sections, 55. Los Gatos Town Code Section 29.10.0990(5) provides: :n connection with a p.roposod subdivision of land into two (2) or niore parcels, r^ E 3rnfaVrtP(i ?ran hull I,r:' rt.�t +,ncsa+r� � „ 1< , oc , Y•r.v�l 4o 1— trn4 - able due t o restr pro nerty (r ;a ��t „pcl necessary to repair a geologic hazard Apairs, etc.) The tree removed shall be replaced in accordance wit' '-k� rstandards � >,tio 29 b y this Code. Tr(-,Q preservation and protection :measurer � Nt7 j 7t th a t 1.7 crea `] r 4�•rnr� .i fY711l�it ash» h r�iY't� L+4, !l F� nntvtt�lc! t r 4 +bA PrrtY1 at;,�v�o t'rt1,10 OnA 56, Sec. 29.10.050 states "[t]he provisions of sections 29.10.070 through 29,10.295 apply to all zones.” Section 29,10.0990 falls within this range. 57. The Ross Creek Project involves the subdivision of land into more than two parcels. 58. The trees slated for removal. (and those that have already been removed) do not meet the requirements of Section 29.10.0990. 59. Respondents abused their discretion and failed to proceed in the manner required by law in approving the Final Map in violation of the Town. Code Sections 29,50.135 and 24.10.015. '1'rT'T'cr'YrT L'f1T] ts,'O Y'i' !'1L A n \Ji' A TT"t /t: AT h T rr't n'r`i7 A \t7t "r1A,t'13T A'f *+'Y' L`f't Ti(Ti rhTe"1 +itt'C 'U 7 "Y YY.,'G I 1 2 3 4 9 10 11 12 13 14 is 25 26 27 28 60. Town Code Sections 29.50,135 and 24.10.015 togletber provide that all tots in. a I subdivision must confonm. to the lot area requirements n. Chapter 29 of the Town. Code, 61, Respondents concede that the mininium lot area. for newly created subdivision 1C)ts within the underlying Rl -:8 zone is 8,000 sq. ft. and` bey Project's proposed Lot 7 is 7,835 sq ft. 1 62. Respondents abused their discretion and failed to proceed in the maimer required by law by approving the Final Map in violation of Town Code Section. 29.10.020 regarding lot i area, 63. Town Code Section 29,10.020 provides: "Lot area means the total horizontal included within loi lines, except as otherwise provided in the chapter, and excluding land x required for public dedication and any land determined to be riparian habitat." (Emphasiq added.) 64. The Project's listed subdivision lot areas are sloped areas, not horizontal ar 65. Thus, the Project's sloped areas overstate the true lot areas. Thus, the proposed lots do not comply with the required minimurn lot area, 66. Respondents failed to provide a fair hearing, proceeded without or in excess of their jurisdiction, and failed to proceed in the manner required by law in approving the Final Map, bC . 08LISe the Tentative Nlap was not reviewed or approved by either the Planning Commission or the Town Council as required by Town Code Sections 24,10.020 and 24,20,050. 67, Respondents abused their discretion and failed to proceed in the manner recIiii by law in approving the Final Map in violation of Town of Los Gatos Code Section 24.20,080. Upon information and belief, the developer did liot make the required, irrevocable offer of dedication of land used for tlic Project's access rights, drainage, public utility casements, and I streets and sidewalks. THIRD CAUSE OF ACTION VIOLATIONS OF THE WATERWAY ACCESS PROVISIONS OF THE SUBDIVISION N11AP ACT 68, Petitioner incorporates all previous and subsequent paragraphs as if fully set forth PETITION FOR WRIT' OF ADMINISTRATIVE MANDATE AND COMPLAINT FOR 12 I z 3 4 5 c 7 s s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 nerein. t 69. Respondents abused their discretion and failed to proceed in the manner required by law in approving the Final Map in violation of the California Subdivision Map Act, because the Project fails to provide public access to the public creek that Fronts the Project, 70. California Government Code Section 66478.4(a) provides: No local agency shall approve either a tentative or a final map of any proposed subdivision to be fronted upon a public waterway, river, or stream which does not provide, or have available, reasonable public access by fee or easement from a public highway to that portion of the bank of the river or stream bordering or lying, within the proposed subdivision. WHEREFORE, Petitioner prays: I . That the Court issue a peremptory writ of administrative mandamus ordering the Town of Los Gatos and its Town Council to: (1) set aside and void all approvals related to the proposed project and to refrain from further consideration of the project until they fully comply with the Subdivision Map Act and the Los Gatos Town Code; (2) reverse the Project's physical effects that violate the law, including grading, tree removal, and construction; and (3) take any other action as otherwise required by law; 2. That the Court issue an administrative stay order, temporary restraining order, and/or preliminary injunction enjoining the Town and its agents and employees from any approvals or actions in furtherance of the project while this Petition is pending, including but no limited to issuing or extending grading permits, tree removal permits, demolition permits, and/oi construction permits; 3. That the Court issue an administrative stay order, temporary restraining order, and/or preliminary injunction enjoining Real Parties in Interest and their agents and employees from any physical actions in furtherance of the project while this Petition is pending, including but not limited to grading, tree removal, demolition, construction, paving, disturbance of the soil, or off haul of soil or debris; 4. For Petitioner's costs and attorney fees; and PETrrION FOR WRIT OF ADMINISTRATIVE MANDATE AND COMPLAINT FOR INJUNCTIVE RE i 13 1 I 5. For such- other and further relief as the Court finds just and proper, 2 i 3 .t.l`i7.bk.t.L. 1.?V�.1Wi1iU4t �, LLJ.A i i By �._� .Pimur Er in M w Attorney for Petitioner � 7 VERIFICATION 8 i I, David Crites, am a founder of Ross Creek Neighbors and so I verify this petition on s their behalf, I have read the Petition for Writ of Administrative Mandate and Complaint for Injunctive Relief and know its contents. The matters stated in it are true and correct based on I my knowledge, except as to the matters which are stated on information and belief, and as to 12 those matters, I believe them to be true, I de(+`_:_ 1 J 1 s and correct. Executed this 2nd day of September 2011, in Los Gatos, California. _ David Crites j 17 18 i 1s I 20 21 l 22. 23 24 2 2'0 27 I 20 IC; lii lJiV vm, vy1" LI ti✓ tYtlltt vANA YI JAINI,) 111G VLi%- v1v1r1..Pii1`1I rum INJU!I IYrm;.;Ar. 14 i i 1 This Page Intentionally Left Blank MAY 2 7 2011 BERLINER COHEN NIAY 2 7 2011 n133 �ENDARED t�Y 4 Tt4R EY 6.RLINE E MAY Z6 2011 DA ac K ` A ;v)A$AKI Chief 've ()tflcer /Clark Superior Court o ounty of Santa Clare BY DEPUTY 5� ' 1 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA ROSS CREEK NEIGHBORS, et al., PETITIONERS v. TOWN OF LOS GATOS et al RESPONDENTS; LINDA COURT PARTNERS et al. REAL PARTIES IN INTEREST CASE N0. 1- 08- CV- 106461 Two matters were fully heard, argued, and submitted for decision this day. The court carefully considered all submissions and arguments. GOOD CAUSE APPEARING: The motion to strike or tax costs is denied. The second supplemental return to writ of mandate is granted. The writ is hereby discharged. May 26, 2011 Leslie C. Nichols LESLIE C. NICHOLS JUDGE OF THE SUPERIOR COURT EXHIBIT (i ND SED) F L E D i 13 This Page Intentionally Left Blank SEP 12 2011 t opy IN THE COURT OF APPEAL OF THE ST. DATES ENTERED SIXTH APPELLATE DISTRICT ROSS CREEK NEIGHBORS, et al., Petitioners, V. THE TOWN OF LOS GATOS, et al., Respondents; LINDA COURT PARTNERS, LLC, et al., Real Parties in Interest. SEP 1 H036927 CALENDARS (Santa Clara County BgY� RNEY Super. Ct. Nos 108 -CV - 106 O ,, yBERLINER COHE 110 -CV- 189381) D T 5 ENTERED Coui i } ; ,... • _u„ ,app. Dist. An� SL SEP 12 7 p 1� S EA" ,q ~ 2011 BY CALENDARFyQ MICHAEL J.YFRLY,CIarh ATTORNEY J BERLI R COHEN Y oEPury BY THE COURT: The motion for a stay is denied. The petition for writ of supersedeas is denied. (Premo, Acting P.J., Bamattre- Manoukian, J., and Duffy, J., participated in this decision.) Dated SEP 9 - 2011 PREMO, 7. Acting P.J. EXHIBIT 14 This Page Intentionally Left Blank BERLINER dlkt " ATTORNEYS AT LAW SANFORD A. BERLINER KATHLEEN K SIPLE THOMAS P. MURPHY ANDREW L. FABER KEVIN F. KELLEY MILES 1. DOLINGER FORREST W..HANSEN RALPH J. SWANSON MARK MAKIEWICZ TEN ALMADEN BOULEVARD CHRISTIAN E PICONE KATHLEEN F. SHERMAN L. S AY A S. I ELEVENTH FLOOR THOMAS D. MORELL ALAN D. NIEBEL SANDRA G. SEPULVEDA JOSEP JOSEPWORA H E. D WORA K SAMUEL L. FARB JEFFRE JEFFREAUFMA Y S. K AUFMA N JOLIE HOUSTON SAN JOSE, CALIFORNIA 95113 -2233. SETH J. COHEN COH AZZG MARCO M. CAMPAGNA ALAN L P IN NER BRIAN L. SHETLER LAURA KA L. ALAZZO LO DEBBIE Y. BAL• LINDA A. CALLON JOHN F. DOMINGUE TELEPHONE: (408) 286 -5800 ANDREW J. G UELLO NNI MARY.KATHARINE WILSON JAMES P. CASH MAN HARRY A LOPEZ FACSIMILE; 408 998 -5388 ( MATTI� W A. TAYLOR LISA STEVEN 1. CASAD CHARLES W. VOLPE HEATHER H. MUNOZ TYLER R A A. . SHFFiEWWi EY NANCY J. JOHNSON MICHAEL VIOLANT( �Yww.berliner,com JEROLD A. REITON CHRISTINE H. LONG ROBERT L. CHORTEK AARON M. VALENTI JONATHAN D. WOLF RETIRED SAMUEL J. COH EN OF COUNSEL ROBERT W. HUMPHREYS HUGH L. ISOLA TERRY L. ALLEN STEVEN L. HALLORIMSON Branch Office - Merced, CA FRANK R. UBHAUS ERIC WONG PHILIP GOLDEN NANCY L. BRANDT May 2, 2011 Mayor :foe Pirzynski and Members of the Town Council Town of Los Gatos 110 East Main Street Los Gatos, CA 95031 Re: May 2, 2011, Agenda Items 7 -8, Linda Court Project Our File No.: 17938 -001 Dear Mayor Pirzynski and Members of the Council : The purpose of this letter is to respond to materials that have been presented to the Town by David Crites in opposition to the requested action tonight. This office represents both the applicant for the project as well as (in the two lawsuits filed against the project) the Town itself. Tonight's Agenda Item It is important to note that the issue in front of the Council tonight is narrow. After very extensive litigation, the only defect found by Judge Nichols in the EIR that was done for the project and in the zoning approval itself was one response to a comment by the DTSC, The Court found that that response was not adequate. The item in front of the Town tonight is recertification of the FEIR based upon the addendum - amendment to the FEIR prepared by Strelow Consulting, which amplifies the response to the comment in compliance with the Court decision, rendered on March 8, 2011. Because the Court determined that it was not necessary for the Town to vacate the prior approval of the project, the staff recommendation is to recertify the FEIR and to ratify and reaffirm the former project approvals. VALF1847696.1 050211- 17938001 ma 1 5 Mayor Joe Pirzynski and Members of the Town Council May 2, 2011 Please note that there has been no change to the project, no change to the circumstances under which the project is being undertaken, and no change in the relevant law or the circumstances of the project. The only document change is the addendum - amendment to the FEIR incorporating the revised response to the DTSC's comment. The Issues Raised by Mr. Crites Are Not New The issues raised by Mr. Crites in his various correspondence have all been raised and answered in one or more of four manners: (1) In the FEIR itself by responses to comments; (2) in discussion in front of the Town Council at public hearings for the approval of the project pursuant to the FEIR; (3) in the original CEQA lawsuit in which on behalf of the Town we presented the final EIR approved in September 2011 to the Court, and as previously noted, the Court accepted everything in the FEIR as being adequate and in compliance with CEQA, with the sole exception of the response to the one DTSC letter; and (4) finally, in the opponents' second lawsuit, Ross Creek Neighbors v. Town of Los Gatos, et al. filed in December 2010. In the second lawsuit, Mr. Crites challenged the PD zoning and compliance with Town ordinances, including the Town's subdivision code. All of the various arguments that he now raises regarding alleged inconsistency with the PD zoning with the subdivision code were raised in that lawsuit and rejected by the Court. Judge Nichols stated in his order dated March 7, 2011: "The record viewed as a whole contains sufficient evidence that the Town correctly applied its local codes, in particular its PD zoning provisions, as interpreted by the Town and found them consistent with its General Plan. The fact that reasonable minds can differ on the interpretation of any particular language in a local code or ordinance is not a ground for finding an abuse of discretion." The Court also relied on a declaration that was submitted on behalf of the Town, signed by Bud Lortz. In that declaration, Mr. Lortz noted that the Town had consistently interpreted its PD ordinance and subdivision code in the past to allow such variations, including reduced street widths, sidewalks, and lot sizes, in such subdivisions as the Villa Filice subdivision, the Highlands of Los Gatos subdivision, the Roberts Road subdivision, and the Rinconada Hills development. Specific Issues 1. Crites's letter of May y2, 2011 In this letter, Mr. Crites alleges that the PD zoning approved by the Town is inconsistent with the Town's subdivision ordinance. He cites two cases, both of which in fact stand for the proposition that planned development zoning is legal and in compliance with state law. Mr. Crites raised this issue (in part) in his March 25, 2010 comment letter in the EIR proceedings. (Comment 8 -12; ARD0491.) The FEIR response stated: "With a PD overlay in conjunction with the provision of open space, FARs, setbacks, street width, lot coverage and lots sizes do not need to conform to the underlying zone district regulations." (ARD0514) KR847696A -2- 050211- 17938001 Mayor Joe Pirzynski and Members of the Town Council May 2, 2011 This exact issue was raised by Petitioners and fully litigated in the Zoning Lawsuit. The court rejected Petitioners' arguments and agreed with the Town's, which were essentially these: a) PD ordinances contain a general development plan which takes precedence over any fixed requirement of another code with which it is inconsistent (e.g., street widths in the subdivision code). (Town Code §§ 29.80.080, 29.80.085); b) the street is a private road that was approved by the Los Gatos Fire Department, and thus, the street raises no public safety concerns; and c) the Town interprets its PD Ordinance to allow PDs with variations from standard development standards. Once again, Judge Nichols squarely rejected the arguments made by the opponents in the zoning lawsuit to the effect that the PD zoning violated other Town codes, including the subdivision ordinance. There is no question that the development must obtain a tentative subdivision map (as it has) because it is indeed a subdivision of property. However, the development plan approved by the Council as part of the PD ordinance is the standard by which the subdivision is to be measured, and that is consistently how the Town has interpreted these codes. 2. Alleged Non - Compliance with Various Town Codes (Crites Email — April 30 2011) • The project does not comply with the Town's subdivision ordinance with respect to street width, right -of -way width, sidewalk width, lot area, cul -de -sac design, and others. • The project does not comply with zoning regulations with respect to tree conservation, CDWR and FEMA consultation for floodplain management, definition of lot area, density, neighborhood consistency, the legislative intent of the PD zone, and others. • The project does not comply with the Subdivision Map Act with respect to access to navigable streams, compliance with local subdivision regulations, and others. These are mostly answered by the above discussion. In addition, flood plain management was responded to in the Final EIR. Access to navigable streams was an issue discussed at the September hearing and decided in front of the Town Council. With respect to trees, these issues were raised in Mr. Crites's email of April 30, 2011. Mr. Crites raised this issue in his March 25, 2010 comment letter in the EIR proceedings. (Comment 8 -37; ARD0499.) The FEIR response stated, in pertinent part, that the proposed tree removal was found to be in compliance with the Town's regulations except for specified trees that were later retained on revised project plans.... \ALF1847896.1 -3- 050211- 17938001 Mayor Joe Pirzynski and Members of the Town Council May 2, 2011 ¶ Further, this is a Planned Development application rather than a Subdivision application. It has been the interpretation and past practice of the Community Development Department, supported by the Town Council that the referenced ordinance section does not apply to projects of this nature [i.e., PD projects]. (ARD0523.) This exact issue was also raised by Petitioners and fully litigated in the Zoning Lawsuit. The court rejected Petitioners' arguments and agreed with the Town's, which were essentially these: a) PD ordinances are not required to comply with the Town's other ordinances (Town Code §§ 29.80.080, 29.80.085); and b) The Town's tree ordinances do not apply to subdivisions created by PD zoning. 3. Alleged Non - Compliance with CEQA (Crites email, April 30, 2011 The project does not comply with CEQA as enumerated elsewhere, including Condition 111 (Maintenance Access). The location, materials, and impacts of this public easement should be assessed and the EIR amended prior to certification. CEQA compliance was decided adversely to Crites by Judge Nichols at the hearing on the Return to the Writ. In Judge Nichols's Order of March 7, 2011•, he rejected all challenges raised to the Final EIR with the sole exception of the response to the DTSC comment. 4. General Plan Argument (Crites email, April 30, 2011) The project does not comply with the 'General Plan with respect to density, appropriate intensity for flood prone property, public access to open space, and others. These issues again were raised in the zoning lawsuit, and Judge Nichols concluded that the Town properly. found the project to be consistent with the General Plan. 5. Guidelines for Land Use Near Streams (Crites email, April 30, 201 1) The project does not comply with the Guidelines and Standards for Land Use Near Streams with respect to, among other things, the top of bank delineation, the width of the riparian buffer, the riparian zone delineation, and others. Issues regarding compliance with streamside guidelines, delineation of top of bank, etc., were extensively raised in comments on the FEIR. The Town's consultants responded at length. The adequacy of the responses was challenged in the CEQA litigation, and Judge Nichols rejected all such challenges. 1ALR847696.1 -4- 050211- 17938001 Mayor Joe Pirzynski and Members of the Town Council May 2, 2011 j 6. Height and Stga Pole Requirements Crites email April 30 2011 These issues were raised in front of the City Council, as well as in the final EIR. In summary, Crites raises no new arguments and none that are responsive to the very narrow issue in front of the City Council at this hearing. Very truly yours, BE4 ANDREW L. FABER E -Mail: andrew.faber@berliner.com ALF :cem cc: Town Clerk Sandy Bailey Judith Propp, Esq. Wendie Rooney XF1847696,1 -5- 050211- 17938001 This Page Intentionally Left Blank r'ILINU VLE6 e6c.k- $32j.00 Residential 4f $ U5,00 per Commercial, Multi - r PnTij Nt-ap A l OCT 2 1 201 TE OF PLANNING COMMISSION TOWN OF LOS GATOS DJECT /�l13I1>i�t: ADDRESS LOCATION: Office of the " , )wn Cberl& W 1 110 E. Main St., Loj Gatos C � 95030 I APPEAL OF PLANNING COMMI � IONQ6TEdI §I 1, I, the undersigned, do hereby appeal a decision of the tanning Commission as OWN OF LOS GATOS. T follows: (PLEASE TYPE OR PRINT NEATLY) i - I : - r.De.RTMPNT SION: +Obe' !' (Z zo [ - 100 Con- 94,��nCe s 6�1Vt r f 100 Con54�,16e -5 Get C + (A k A �i'l\d o Ave Laf 1 Pursuant to the Town Code, the Town Council may only grant an appeal of a Planning Commission decision in most matters if the Council finds that one of three (3) reasons exist for granting the appeal by a vote of at least three (3) Council members. Therefore, please specify how one of those reasons exists in the appeal: �1 l I. The Planning Commission erred or abused its discretion because Fed tn. LCe O la,� o leW PD 6r��C2 r s r��, �II r ��. F I� end 5�k Si�n �r2 Govtr { �C'.c? cd . -- OR that was not reasonably available at the time of the Planning Commission decision, which is Db1 J G&T 24- TOWN OF LOS GATOS (please attach the new information if possible): OR 3, The Planning Commission did not have discretion to modify or address the following policy or issue that is vested in the Town Council: IF MORE SPACE IS NEEDED, PLEASE ATTACH ADDITIONAL SHEETS. IMPORTANT: 1. Appellant is responsible for fees for transcription of minutes. A $500.00 deposit is required at the time of filing. 6 4'pckk2 1; 2. Appeal must be filed within ten (10) calendar days of Planning Commission Decision accompanied by the required filing fee. Deadline is 5:00 p.m. on the 10` day following the decision. If the 10` day is a Saturday, Sunday, or Town holiday, then it may be filed on the workday immediately following the 10 day, usually a Monday. 3, The Town Clerk will set the hearing within 56 days of the date of the Planning Commission Decision (Town Ordinance No. 1967) 4. An appeal regarding a Change of Zone application or a subdivision map only must be filed within the time limit specified in the Zoning or Subdivision Code, as applicable, which is different from other appeals. 5. Once filed, the appeal will be heard by the Town Council. 6. If the reason for granting an appeal is the receipt of new information, the application will usually be returned to the Planning Commission for reconsideration. PRINT NAME: V t� C r[+ S DATE: PHONE: O ct 2-t , ?,o l t SIGNATURE: ADDRESS: L Sg U D 2vc "A f rr') CC_ �{ 0 S -- 0 9 7 3 -Lo O - 0 3 Z * * * OFFICIAL USE ONLY DATE OF PUBLIC HEARING: Pending Planning Department Confirmation ,SATE TO SEND PUBLICATION: .WDMFORMSIFIu i,S- 1011.12 Fo 'A.1•KJu' CONFIRMATION LETTER SENT: Date: TO APPLICANT & APPELLANT BY: DATE OF PUBLICATION: Rln(nl ATTACHMENT NT 3 This Page Intentionally Left Blank 9� David Crites Ross Creek Neighbors 15900 Rochin Terrace Los Gatos, CA 95032 October 21, 2011 Town Council Town of Los Gatos 110 E. Main Street Los Gatos, CA 95030 D U OCT 21 2911 TOWN OF LOS GATOS CLERK DEPARTMENT Re: 100 Constances Court (AKA Linda Ave Lot 1) A &S Application S -11 -054 Dear Town Council Members: The Town of Los Gatos violated the California Map Act by approving a project that, inter alia, violates the Town's own street width requirements, has sidewalks that violate the Town's Engineering standards, has lots that violate the Town's minimum lot area requirements, and that does not provide public access to the creek that abuts the project site. Ross Creek Neighbors ( "RCN ") brought an action in Santa Clara Superior Court challenging the subdivision approval for this project. If RCN prevails in that action, the subdivision map will be void and lot 1 would no longer exist. The Town Council and the Town should withhold further project approvals until the validity of the subdivision is adjudicated. We've entered into the administrative record a copy of the September 2, 2011 Petition for a Writ of Administrative Mandate that RCN filed in Santa Clara Superior Court. RCN incorporates by reference as if set forth fully herein that Petition and all of the papers filed in that Superior Court action, all of which set forth in detail why the Town has violated California law and its own laws by approving the project. The proposed changes to the project plans require the preparation of an environmental impact report ( "EIR ") amendment to determine what environmental impacts the proposed changes would have. As the Town knows, RCN contends that the existing EIR is inadequate and violates California law. Amending the project with no consideration of the changed environmental impacts of the amended project only further violates the law. Also entered into the administrative record are the briefs that RCN filed in the Santa Clara Superior Court and in the California Court of Appeal that explain in detail why the Town has violated California law and why the Town may not rely on an out of date and inadequate EIR to approve any aspect of this project, including the current Architecture and Site application. RCN incorporates by reference as if set forth fully herein those two briefs and all of the papers filed in that Superior Court action and the California Court of Appeal. The Town Council should deny the Architecture and Site application until an EIR amendment that complies with California law is prepared. The PD Ordinance for the project (PD Ordinance 2193) requires that the project conform to the September 20, 2010 project plans. Specifically, item 3 of section V states that the "footprint, square footage and height of each house shall be consistent with the Development Plans as shown in Exhibit B." Thus, if the Town Council, or the Town more generally, changes the footprint, square footage, or the height of any house — including the lot on proposed lot 1, then a new PD Ordinance must be prepared and ratified. The staff report and minutes of the September 22, 2010 Planning Commission meeting regarding the A &S applications for the project reflect that the Town Council, Town Staff, and Planning Commission were in agreement that the "proposed square footages, FAR, building footprints, and heights" were fixed by the PD process and the Town's A &S consideration only "has discretion in reviewing architectural detailing which includes window and door placement." The minutes indicate that the findings regarding the environmental impact of the project (neighborhood compatibility, aesthetic, biological, hydrological, riparian habitat, and species of concern) were made using the footprints, square footages, and heights specified in the September 20, 2010 project plans. As a result, the requested modifications to the project plans exceed the Town's discretion, would be in violation of PD Ordinance 2193, and would require an EIR amendment to consider the environmental impacts of the proposed changes, Sincerely, iw David Crites (on behalf of Ross Creek Neighbors) 2 O p N O X ro a) H m m ri C• W r U) O +) a Cl q .[ q bi ri ur ti N +i m +J m m 44 q ri 0 4 m p, H m a) O U (d •rl m U .q 0 q +) b qq b ri o H r N H 41 ro N A a.) 4 x U 3 N ° o 0 a u -P m q A .0 u o ro w N 4-) m G m o 3 N w m q ro q N rt ri u H P 10 N N a) m q A 4 � m •� ,q F.. 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The California Codes are based on Model Codes, 2009 International Building Code and Fire Code and 2009 Uniform Plumbing and Mechanical Codes and the 2008 National Electrical Code. Note: No building code issues have been reviewed for this project as part of the Development Review Committee process. Plan check review will be part of the separate building permit application process. Once the Development Review Committee and /or Planning Commission approvals have been obtained, submit complete sets of construction drawings to the Building Counter. No construction work can be commenced without an appropriate building permit. TO THE SATISFACTION OF THE BUILDING DEPARTMENT: 1. PERMITS REQUIRED: A building permit shall be required for the demolition of the existing single family residence and the construction of the new single family residence or the alteration and addition to the existing single family residence. Separate permits are required for electrical, mechanical, and plumbing work as necessary. 2, CONDITIONS OF APPROVAL: The Conditions of Approval must be blue -lined in full on the cover sheet of the construction plans. A Compliance Memorandum shall be prepared and submitted with the building permit application detailing how the Conditions of Approval will be addressed. 3, SIZE OF PLANS: Four sets of construction plans, maximum size 24" x 36 ". 4. SOILS REPORT: A Soils Report, prepared to the satisfaction of the Building Official, containing foundation and retaining wall design recommendations, shall be submitted with the Building Permit Application. This report shall be prepared by a licensed civil engineer specializing in soils mechanics. 5. FOUNDATION INSPECTIONS: A pad certificate prepared by a licensed civil engineer or land surveyor shall be submitted to the project building inspector at foundation inspection. This certificate shall certify compliance with the recommendations as specified in the soils report, and that the building pad elevation and on -site retaining wall locations and elevations have been prepared according to the approved plans. Horizontal and vertical controls shall be set and certified by a licensed surveyor `or registered civil engineer for the following items: a. Building pad elevation b. Finish floor elevation c. Foundation corner locations d, Retaining Walls 6, RESIDENTIAL TOWN ACCESSIBILITY STANDARDS: The residence shall be designed with adaptability features for single family residences per Town Resolution 1994 -61: a. Wood backing (2" x 8" minimum) shall be provided in all bathroom walls at water closets, showers, and bathtubs, located 34- inches from the floor to the center of the backing, suitable for the installation of grab bars. b. All passage doors shall be at least 32- inches wide on the accessible floor. c. Primary entrance shall be a 36 -inch wide door including a 5'x5' level landing, no more than 1/2 -inch out of plane with the immediate interior floor level with an 18 -inch clearance at interior strike edge. d. Door buzzer, bell or chime shall be hard wired at primary entrance. 7. TITLE 24 ENERGY COMPLIANCE: All required California Title 24 Energy Compliance Forms must be blue- lined, i.e. directly printed, onto a plan sheet. 8. BACKWATER VALVE: The scope of this project may require the installation of a sanitary sewer backwater valve per Town Ordinance 6.50.025. Please provide information on the plans if a backwater valve is required and the location of the installation. The Town of Los Gatos Ordinance and West Valley Sanitation District (WVSD) requires backwater valves on drainage piping serving fixtures that have flood level rims less than 12- inches above the elevation of the next upstream manhole. 9. TOWN FIREPLACE STANDARDS: New wood burning fireplaces shall be an EPA Phase II approved appliance as per Town Ordinance 1905. Tree limbs shall be cut within 10 -feet of Chimney. 10, HAZARDOUS FIRE ZONE: The project requires a Class A Roof assembly. 11, PROVIDE DEFENSIBLE SPACE /FIRE BREAK LANDSCAPING PLAN: Prepared by a California licensed Architect or Landscape Architect in conformance with California Public Resources Code 4291 and California Government Code Section 51182, 12, PRIOR TO FINAL INSPECTION: Provide a letter from a California licensed Architect or Landscape Architect certifying that the landscaping and vegetation clearance requirements have been completed per the California Public Resources Code 4291 and Government Code Section 51182. N ADEVNIKEOROConstancesCt100rev. doc 13. SPECIAL INSPECTIONS: When a special inspection is required by CBC Section 1704, the architect or engineer of record shall prepare an inspection program that shall be submitted to the Building Official for approval prior to issuance of the building permit. The Town Special Inspection form must be completely filled -out and signed by all requested parties prior to permit issuance. Special Inspection forms are available from the Building Division Service Counter or online at www.losgatosca.aov /building 14. BLUE PRINT FOR A CLEAN BAY SHEET: The Town standard Santa Clara County Valley Nonpoint Source Pollution Control Program Sheet (2406) shall be part of the plan submittal as the second page. The specification sheet is available at the Building Division Service Counter for a fee of $2 or at San Jose Blue Print for a fee or online at www.losgatosea.gov/building 15. NPDES -C.3 DATA FORM: A copy of the NPDES C.3 Data Form (updated based on the final construction drawings) must be blue -lined (i.e. sticky- backed) in full onto the plans. In the event that this data differs significantly from any Planning approvals, the Town may require recertification of the project's storm water treatment facilities prior to release of the Building Permit. 16. PLANS: The construction plans shall be prepared under the direct supervision of the licensed architect or engineer. (Business and Professionals Code Section 5538) 17. APPROVALS REQUIRED: The project requires the following departments and agencies approval before issuing a building permit: a. Community Development— Planning Division: Marni Moseley at (408) 354-6802 b. Engineering /Parks & Public Works Department: Trang Tu- Nguyen at (408) 354 -5236 c. Santa Clara County Fire Department: (408) 378 -4010 d. West Valley Sanitation District: (408) 378 -2407 e. Local School District: The Town will forward the paperwork to the appropriate school district(s) for processing. A copy of the paid receipt is required prior to permit issuance. f. Bay Area Air Quality Management District: (415) 771 -6000 18. ADVISORY COMMENTS: This new single family residence must be designed and built in compliance with the 2010 California Residential Code and the Mandatory Measures of the 2010 California Green Building Standards Code, Michael M. Machado, CB O Building Official (408) 354 -6815 N ADEV \MIKE \DRC \Constances Ct 100rev. doc This Page Intentionally Left Blank TOWN OF LOS G ATOS PARKS & PUBLIC WORKS DEPARTMENT SERVICE CENTER ENGINEERING DIVISION 41 MILES AVENUE PHONE (408) 399 -5771 Los GATOS, CA FAx (408) 399 -5763 95031 PUBLIC WORKS COMMENTS STAFF TECHNICAL REVIEW COMMITTEE August 24, 2011 ITEM No. 3 100 Constances Court (AKA 15881 Linda Ave Lot 1) Architecture and Site Application S -11 -054 Requesting approval of a modification to an approved Architecture and Site Application to construct a new residence on property zoned R -1:8 PD. APN: 523 -25 -052 PROPERTY OWNER: Mission Way LLC APPLICANT: Sanford Homes PLANNER: Marni Moseley DEFICIENCIES (GENERAL) 1. Show existing easements. 2. Label setbacks. 3. Show proposed utilities. 4. Dash in approved grading per Westfall A &S drawings on architectural elevations /sections. 5. Show proposed rear deck stair in plan view. DRAFT CONDITIONS TO THE SATISFACTION OF THE DIRECTOR OF PARKS AND PUBLIC WORKS: (Engineering Division) Same Conditions of Approval as were approved for S08 -014 through S08 -020. Fletcher Parsons Parks and Public Works Department 41 Miles Avenue Los Gatos, CA 95031 C:\ Users \fparsons\AppData \Local \Microsoft \Windows \Temporary Internet Files\ Content. Outlook \B20JDBYQ \ConstancesCt -100 STR Comments 082411 (2).docx Incorporated August 10, 1887 ATTACHMENT 6 This Page Intentionally Left Blank TOWN OF LOS GATOS ITEM 3 PLANNING COMMENTS STAFF TECHNICAL REVIEW FOR AUGUST 24, 2011 MEETING 100 Constances Court (AKA 15881 Linda Ave Lot 1) Architecture and Site Application S -11 -054 CHIC CENTER 110 E. MAIN STREET P.O. Box 949 Los GATo$, CA 95031 Requesting approval of a modification to an approved Architecture and Site Application to construct anew residence on property zoned R -1:8 PD. APN: 523 -25- 052 PROPERTY OWNER: Mission Way LLC APPLICANT: Sanford Homes PROJECT PLANNER: Marni Moseley LAST REVIEWED BY STAFF ON: FIRST REVIEW DEFICIENCIES As the application is a modification request, please show clearly the previously approved site plan and floor plans (preferable overlayed with dashed lines of some type). In addition the following items should be clearly labeled on the site plan: a. Creek and riparian boundaries as discussed in the EIR b. All required setback dimensions C. Required garage backup 2. Please show the maximum allowed height continuously along the existing or proposed grade whichever is lower. 3. The elevations and the floorplan do not always match, please review for inconsistencies and correct. All dimensions on the floor plan must be labeled, quite a few are missing. 4. The proposed bay window along the west side of the residence must be a minimum of 36" above finished floor in order to encroach into the required setback, otherwise it is not considered a bay window. Also note that any proposed "bay windows" that do not qualify must be included in floor area. 5. It is unclear what is occurring on or around the proposed deck, neither the floor plan nor the site plan show the trellis element. Staff is concerned about neighbor privacy with the height of the proposed deck. Please consider ways to step the deck down to reduce the height of the deck and potential impact to the neighbors. GENERAL COMMENTS Staff is still determining if the application can be processed by the Development Review Committee (DRC). If it is determined that Planning Commission review is necessary then INCORPORATED AUGUST 1 1887 #W A A�vH N 8 7 Planning Comments August 24, 2011 Page 2 of 2 additional fees will be required. 2. Pursuant to the adopted fee schedule, in the event additional processing services by the Town are required due to changes, modifications, additions, errors, omissions; or discrepancies caused by the applicant or his /her agents or representatives, the applicant shall pay an additional fee as determined by the Director of Community Development to cover the actual cost. 3. Pursuant to the adopted fee schedule, if the requested information from any of the Tech Review Staff is not submitted within 180 days of this meeting, the applicant will be required to pay a fee of 10% of the current application fee at the time the requested information is submitted. Any resubmittal after one year will be processed as a new application, subj ect to new fees. ' 4. Pursuant to the adopted fee schedule, if after three meetings, any additional review is required by the Technical review Committee and /or PC, there will be an additional fee based on time and material cost. Marni F. Moseley, AICP Associate Planner NADEV\MARN1\r\ &S \143 Spring \Tech comments -IDOC 4� 5(i;194Y,. FIRE 6 l ♦ 1. � ; C 14700 Winchester Blvd,, Los Gatos, CA 95032 -1818 (408) 378 -4010 • (408) 378 -9342 (fax) • www,sccfd.org PLAN REVIEW No. 11 2421 BLDG DEVELOPMENTAL REVIEW COMMENTS PERMIT No. Proposed new 3,120 square -foot two -story single - family residence with attached garage. Comment #1: Review of this Developmental proposal is limited to acceptability of site access and water supply as they pertain to fire department operations, and shall not be construed as a substitute for formal plan review to determine compliance with adopted model codes. Prior to performing any work the applicant shall make application to, and receive from, the Building Department all applicable construction permits. Comment #2: Fire Sprinklers Required: An automatic residential fire sprinkler system shall be installed in one- and two- family dwellings as follows: In all new one- and two- family dwellings and in existing one- and two - family dwellings when additions are made that increase the building area to more than 3,600 square feet. Exception: A one -time addition to an existing building that does not total more than 1,000 square feet of building area. NOTE: The owner(s), occupant(s) and any contractor(s) or subcontractor(s) are responsible for consulting with the water purveyor of record in order to determine if any modification or upgrade of the existing water service is required. NOTE: Covered porches, patios, balconies, and attic spaces may require fire sprinkler coverage. A State of California licensed (C -16) Fire Protection Contractor shall submit plans, calculations, a completed permit application and appropriate fees to this department for review and approval prior to beginning their work. Section R313.2 as adopted and amended SMC Comment #3: Potable water supplies shall be protected from contamination caused by fire protection water supplies. It is the responsibility of the applicant and any contractors and subcontractors to contact the water purveyor supplying the site of such project, and to comply with the requirements of that purveyor. Such requirements shall be incorporated into the design of any water -based fire protection systems, and/or fire suppression water supply systems or storage containers that may be physically connected in any manner to an appliance capable of causing contamination of the potable water supply of the purveyor of record. Final approval of the system(s) under consideration will not be granted by this office until compliance with the requirements of the water purveyor of record are documented by that purveyor as having been met by the applicant(s). 2007 CFC Sec. 903.3.5 and Health and Safety Code 131147 City PLANS SPECS NEW RMDL AS LGA ® ❑ ® ❑ ❑ OCCUPANCY SFR CONST. TYPE V -B ApplicantName Summers & Novick DATE 08/19/201 PAGE 1 OF 2 SECOND FLO 2 story FAREA 3120 LOAD PROJECT DESCRIPTION Residential Development PROJECT TYPE OR SYSTEM Design Review NAME OF PROJECT SFR LOCATION 15881 Linda Av Los Gatos TABULAR FIRE FLOW 1000 REDUCTION FOR FIRE SPRINKLERS REQUIRED FIRE FLOW @ 20 PSI 1000 BY Harding, Doug 1 50% zed as the Santa Clara County Central Fire Protection District Serving Santa Clara County and the communities of Campbell, Cupertino, Los Altos, Los Altos Hills, Los Gatos, Monte Sereno, Morgan Hill, and Saratoga - -- — — — - -- - - - - - -- — - - - -- ATTACH T s f i`;`■``■��__�rr t [ It T EST�,1907 } FIDE DEPARTMENT SANTA CLARA COUNTY IN 14700 Winchester Blvd., Los Gatos, CA 95032 -1818 (408) 378 -4010 • (408) 378 -9342 (fax) • www.sccfd.org DEVELOPMENTAL REVIEW COMMENTS PLAN REVIEW No. BLDG PERMIT No. 11 2421 Comment #4: Premises Identification: Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Numbers shall contrast with their background. CFC Sec. 505 To prevent plan review and inspection delays, the above noted Developmental Review Conditions shall be addressed as "notes" on all pending and future plan submittals and any referenced diagrams to be reproduced onto the future plan submittal, City PLANS SPECS NEW RMDL AS OCCUPANCY CONST. TYPE AppllcantName DATE I PAGE LGA ® ❑ ® ❑ ❑ SFR V -B Summers & Novick 08/19/201 2 OF 2 SECOND FLO FAREA LOAD PROJECT DESCRIPTION PROJECT TYPE OR SYSTEM 2 story 3120 Residential Development Design Review NAME OF PROJECT LOCATION SFR 15881 Linda Av Los Gatos TABULAR FIRE FLOW 1000 REDUCTION FOR FIRE SPRINKLERS REQUIRED FIRE FLOW @ 20 PSI 1000 BY Harding, Doug r- 50% O rganized as the Santa Cl County Central Fire Protecti Distric Serving Santa Clara County and the communities of Campbell, Cupertino, Los Altos, Los Altos Hills, Los Gatos, Monte Sereno, Morgan Hill and Saratoga TOWN OF LOS GATOS COMMUNITY DEVELOPMENT DEPARTMENT NAME OF APPLICANT ADDRESS ZIP CODE TELEPHONE /aaoa APPLICANT'S SIGNATURE SITE AREA i �® � a P�151',�AIC� C � � 2"3.2.07 • C2� 1 '�. -° I " S ' 1?Ta ADDRESS OR LOCATION OF PROJECT SITE PARCEL NUMBER 7nmim F, APPLICANT SUBMITTAL CHECKLIST NOTE TO APPLICANTS A Development Application must include certain minimum information before a project will be accepted as complete and processed for review as the submittal begins a legal time limit. The applicant is responsible for submitting the general information listed below as well as the specific application requirements indicated on the attached sheets. All information, including plans, must be clear, legible and easily readable. Incomplete, inaccurate, or illegible information will be accepted and will delay processing your application. LETTER OF JUSTIFICATION - For all applications except a single family residence with no demolition. 3. ENVIRONMENTAL CHECKLIST FORM - When applicable, form must be completely filled out. Available online at www.losgatosca.gov /planning. 2 4.. HAZARDOUS MATERIALS /AIR QUALITY CHECKLIST -Form must be completely filled out. -. WRITTEN DESCRIPTION OF PROPOSED PROJECT - A complete written description of the proposal. 6. APPLICATION FILING FEE - Fee for proposed application based on Planning fee schedule. 7. STRUCTURE CONDITION REPORT - For demolition of any residential structure. 8.� VE IFICAT,IOIV OF :- tOp�ERTX OWNERSH P A�1D IEq�S MENTS r OnMe "c�Qpy ofra t deed,�of „subject gtg! pro f ,.erty Two copjesprelirnina ry� eport of s�ubjectrperty f devel �riew �'ii'r F"D� `"fe113 5 ?. Y t-r tit ,r c r < r t 1' ! ,� i'' ' Y constr ct” additions ,. radiri u ivis ons etc ' is p rop osec : 0 4 4 ' gt9P5.a: P p 9. BUIL[) TT GREE GREENPOIf�JT`RATED CHECKLIST — For residential projects. There is a list for remodels, new single family residential, and new multi - family residential. Available at www.builditgreen.org. 10. HILLSIDE DEVELOPMENT STANDARDS & GUIDELINES COMPLIANCE CHECKLIST — For hillside projects. or HOW TO READ YOUR NEIGHBORHOOD WORKBOOK — For non - hillside residential projects. 11. WELL QUESTIONNAIRE 12. C.3 DATA FORM 13. PHOTOS OF PROPERTY - Photos of the subject property from each side and photos of adjacent properties. 14. MINIMUM SIX (6) SETS OF COMPLETE DEVELOPMENT PLANS - if the application is for a Planned Development of 5 or more lots or if the application is for a subdivision of 5 or more lots that is not a PD -16 sets of the map is also required. AUTHORIZATION AND CERTIFICA OF PROPERTY OWNER I/We certify that, as the property owner(s), I /we authorize the filing of this application. I/We understand that pursuant to the Code of the Town of Los Gatos, cpoltions of approval are binding upon both the applicant and landowner(s). I/We agree to implement the condition the best of my /our ability (subject only to the right to object at the hearing on the appli ation(s). l 9 Nam se pint) 3,1 (plea M I. Signature Address (with zip code) Telephone R -�z - ,/ NA0ENF0RMSWIannng\ 2011 -12 FotmsMRC App RaO- SUBAPPCK 1Ju1y2010.LST.docm Date July 1. 2011 A7TACHMENT 9 A This Page Intentionally Left Blank TOWN OF LOS GATOS DEVELOPMENT APPLICATION SUPPLEMENT HAZARDOUS WASTES AND SUBSTANCES STATEMENT California Government Code Section 65962.5 requires that "before a lead agency accepts as complete an application for any development project ... the applicant shall consult the lists" contained in this section which identify sites determined to contain hazardous wastes or contamination, as reported by the Secretary for Environmental Protection. These lists are available in the Community Development Department. The form, properly completed and signed, must accompany the development application submitted to the Town Community Development Department. Please complete the following information: Site Address: I t) p (, A3gA-vL 00ot - Zip Code Assess'or's Parcel Number (APN): APPLICANT PROPERTY OWNER Name /Company Name /Company PA( Mailing Address Mailing Address 6 j a alp lizq a 1 c( A- 1 ystt4,t �,4 4t t A �� 64 9 J t 6, a:0 Telephone 276 Telephone I hereby acknowledge that I have reviewed these lists and declare that the project site: V--_ Is not included on any Hazardous Wastes and Substances Sites List. Is included on the following list pursuant to Section 65962,5 of the Government Code: Regulator identification number: Date of Lis Applicant Si ature Dat Note: State of California /Hazardous Waste & Substances Sites List for Los Gatos is attached. NADEV\FORMSTIanning\2011 -12 Forms \DRC App Files \4 - HAZDWASTE.docx 7/1/2011 C ATTACHMENT 1 This Page Intentionally Left Blank THIS NOTICE IS SENT TO( YOU THAT THE PLANNI � COMMISSION WILL HOLD A PUBLIC HEARING ON WEDNESDAY, OCTOBER 12, 201 1, AT 7:0 P.M. IN THE COUNCIL CHAMBERS, 110 EAST MAIN STREET, LOS GAT08", O CONSIDER: 100 Constances Court (AKA Linda Ave Lot 1) - Architecture and Site on S -11 -054. Requesting approval of a modification to an approved Architecture and Site Applicatiori 16.- construct a new residence on property zoned R -1:8 PD. An Environmental Impact Report was previously_ certified for this proposal. APN: 523 -25 -052. PROPERTY OWNER: Mission Way,x LLC APPLICANT: Sanford Homes. PROJECT PLANNER: Marni Moseley. ,. You received this notice because you either reside or own property close b"the subject property. All files, plans, and technical reports concerning this matter are available for public review from 8 ap., o 1 p R , Mohday,� Friday, in the Community Development Department, 110 E Main Street, (408) 354 -6874. Staff report to the Planning Commission on this matter is available for public review three days prior to the meeting in the Community Development Department ToA,Llbrary', Town Clerk's Department during regular business hours, and on the Town's website at www.losgatosca.gov. 4011* 1 4f , I0, All persons interested in this appl If anyone wishes to challenge the act[ raised at the public meeting described Mailed on or before Septem cou rage d to appear at the public hearing and be heard. )Iicatioh irleourt they may be limited to raising only those issues they or anyone else or in written correspondence delivered to the Town at, or prior to, the public hearing. This Page Intentionally Left Blank CERTIFICATE OF THE MAILING OF NOTICES FOR PUBLIC HEARING ❑ PC Consent ❑ TC Consent ❑ DRC PC Non - Consent ❑ TC Non - Consent Address of Property; /C�L� L?i�t�_;., r�_ /(- F e 6 File Number(s): APN Number: r`i. Date to be Heard: This is to certify that the attached notice of public hearing was delivered to the Los Gatos Post Office concerning a public hearing on the above referenced development application. Number of Notices Sent: See Attached List Delivered to Post Office on or before: 9 tt 5!� l // Previously Noticed: See attached list. Assessor's Book Page Number: (Radius: 300 ft Town/500 ft Hillside) Preparer's Name: & I e ,} e-, 1 lrn be 'e--- Title: 141- M i?. As�,S t She_ P Planner: lqa 1 i /gll.s�' Planner's Signature: ROEVTublic Hearing Notices \pc- tc -dre cert of mailing.docx This Page Intentionally Left Blank 100 Constances Court - Final List PARCEL OWNER 523 27 011 Akbar & Parvin Abdollahi 523 27 036 OCCUPANT 523 27 027 OCCUPANT 523 27 035 OCCUPANT 523 27 042 OCCUPANT 523 27 028 523 27 022 523 27 011 523 27 051 523 27 034 523 27 029 523 27 021 523 27 020 523 27 012 523 27 033 523 27 030 523 27 019 523 27 013 523 27 050 523 27 031 523 27 018 523 27 014 523 27 005 523 27 017 523 27 015 523 27 004 523 27 016 523 27 003 523 14 008 523 27 002 1 523 14 009 523 27 001 523 25 046 523 25 041 523 25 007 523 26 044 523 25 045 523 25 042 523 25 040 ,523 25 008 1 523 25 043 523 25 038 1 523 25 021 523 25 044 52326043 523 25 022 1 523 25 009 523 26 042 523 25 010 OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT MAILADDRES MAILLINE2 1151 Volti Ln 15770 Linda Ave 15771 Linda Ave 15784 Linda Ave 15785 El Gato Ln 15785 Linda Ave 15790 Loma Vista Ave 15791 Loma Vista Ave 15795 El Gato Ln 15798 Linda Ave 15799 Linda Ave 15800 Loma Vista Ave 15810 Loma Vista Ave 15811 Loma Vista Ave 15812 Linda Ave 15813 Linda Ave 15820 Lorna Vista Ave 15821 Loma Vista Ave 15826 Linda Ave 15827 Linda Ave 15830 Loma Vista Ave 15831 Loma Vista Ave 15832 Longwood Dr 15840 Loma Vista Ave 15841 Loma Vista Ave 15846 Longwood Dr 15850 Loma Vista Ave 15860 Longwood Dr 15865 Longwood Dr 15874 Longwood Dr 15881 LINDA AVE APT A 15881 Longwood Dr 15888 Longwood Dr 15900 Rochin Ter 15901 Rochin Ct 15901 Rochin Ter 15902 Longwood Dr 15902 Rochin Ter 15903 Rochin Ct 15904 Rochin Ct 15905 Rochin Ter 15906 ROCHIN CT 15907 Rochin Ct 15908 Rochin Ct 15909 1/2 LINDA AVE 15909 Linda Ave 15911 Rochin Ct 15916 Longwood Dr 15921 Linda Ave 15921 LINDA AVE APT A 15921 Rochin Ter 15930 Longwood Dr 15931 Rochin Ter Los Altos Ca 94024 Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032' Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032' Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032^ Los Gatos Ca 95032 Los Gatos Ca 95032' Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032• Los Gatos Ca 95032, Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032: - LOS GATOS CA 95032 4818 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032. Los Gatos Ca 95032• Los Gatos Ca 95032• Los Gatos Ca 95032• Los Gatos Ca 95032• Los Gatos Ca 95032 Los Gatos Ca 95032; Los Gatos Ca 95032 < LOS GATOS CA 95032 4837 Los Gatos Ca 95032 Los Gatos Ca 95032 LOS GATOS CA 95032 4815 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 LOS GATOS CA 95032 4815 Los Gatos Ca 95032. Los Gatos Ca 95032. Los Gatos Ca 95032 523 25 023 523 25 006 523 25 024 523 25 011 523 25 051 523 25 025 523 26 001 523 25 035 523 26 002 523 25 034 523 27 026 523 26 003 523 26 017 523 14 007 523 25 052 523 26 017 523 25 037 523 27 051 523 25 007 100 Constances Court - Final List OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT Mission Way Parts LLC Karl R & Nellie C Heiman. Santa Clara Valley Water Dist. Patrick & Margaret Copley Kenneth S & Adrienne Y Lee 15933 Linda Ave 15936 Linda Ave 15941 Linda Ave 15941 Rochin Ter 15950 Stephenie Ln 15951 Linda Ave 15955 Stephenie Ln 15960 Stephenie Ln 15971 Stephenie Ln 15974 Stephenie Ln 15980 Escobar Ave 15981 Stephenie Ln 16010 Winterbrook Rd 16100 Jasmine Way 214 Almendra Ave 501 Palisades Ave 5750 Almaden Expy 788 Edale Dr Po Box 320823 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032. Los Gatos Ca 95032, Los Gatos Ca 95032. Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 950327 Los Gatos Ca 95032. Los Gatos Ca 95032. Los Gatos Ca 95032 - Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032 - Los Gatos Ca 95030 - Santa Cruz Ca 95062 - San Jose Ca 95118;_ Sunnyvale Ca 94087 Los Gatos Ca 95032 - �ti 100 Constances Court - Owner List PARCEL OWNER 523 25 007 Kenneth S & Adrienne Y Lee 523 25 037 C V W D S 523 25 052 Mission Way Parts LLC 523 26 017 Karl R & Nellie C Heiman 523 27 011 Akbar & Parvin Abdollahi 523 27 051 Patrick & Margaret Copley MAILADDRES Po Box 320823 5750 Almaden Expy 214 Almendra Ave 501 Palisades Ave 1151 Volti Ln 788 Edale Dr u MAILLINE2 Los Gatos Ca 95032 San Jose Ca 95118 - Los Gatos Ca 95030 Santa Cruz Ca 95062 Los Altos Ca 94024 Sunnyvale Ca 94087 100 Constances Court - Site List PARCEL 523 14 007 523 14 008 523 14 009 523 25 006 523 25 007 523 25 008 523 25 009 523 25 010 523 25 011 523 25 021 523 25 022 . 52325023 523,25024 523 25 025 523 25 034 523 25 035 523 25 038 523 25 040 523 25 041 523 25 042 523 25 043 523 25 044 523 25 045 523 25 046 523 25 051 523 26 001 523 26 002 523 26 003 523 26 017 523 26 042 523 26 043 523 26 044 523 27 001 523 27 002 523 27 003 523 27 004 523 27 005 523 27 011 523 27 012 523 27 013 523 27 014 523 27 015 523 27 016 523 27 017 523 27 018 523 27 019 OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT SITEADDRES 16100 Jasmine Way 15865 Longwood Dr 15881 Longwood Dr 15936 Linda Ave 15901 Rochin Ter 15905 Rochin Ter 15921 Rochin Ter 15931 Rochin Ter 15941 Rochin Ter 15909 Linda Ave 15921 Linda Ave 15933 Linda Ave 15941 Linda Ave 15951 Linda Ave 15974 Stephenie Ln 15960 Stephenie Ln 15908 Rochin Ct 15904 Rochin Ct 15901 Rochin Ct 15903 Rochin Ct 15907 Rochin Ct 15911 Rochin Ct 15902 Rochin Ter 15900 Rochin Ter 15950 Stephenie Ln 15955 Stephenie Ln 15971 Stephenie Ln 15981 Stephenie Ln 16010 Winterbrook Rd 15930 Longwood Dr 15916 Longwood Dr 15902 Longwood Dr 15888 Longwood Dr 15874 Longwood Dr 15860 Longwood Dr 15846 Longwood Dr 15832 Longwood Dr 15791 Loma Vista Ave 15811 Loma Vista Ave 15821 Loma Vista Ave 15831 Loma Vista Ave 15841 Loma Vista Ave 15850 Loma Vista Ave 15840 Loma Vista Ave 15830 Loma Vista Ave 15820 Loma Vista Ave SITELINE2 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 . Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032^ Los Gatos Ca 95032• Los Gatos Ca 95032. Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032. Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032^ Los Gatos Ca 95032 Los Gatos Ca 95032 ' Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032` Los Gatos Ca 95032• Los Gatos Ca 95032 • Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032• Los Gatos Ca 95032' Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 ` 523 27 020 523 27 021 523 27 022 523 27 026 523 27 027 523 27 028 523 27 029 523 27 030 523 27 031 523 27 033 523 27 034 523 27 035 523 27 036 523 27 042 523 27 050 523 27 051 OCCUPANT OCCUPANT OCCUPANT ,OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT 100 Constances Court - Site List 15810 Loma Vista Ave 15800 Loma Vista Ave 15790 Loma Vista Ave 15980 Escobar Ave 15771 Linda Ave 15785 Linda Ave 15799 Linda Ave 15813 Linda Ave 15827 Linda Ave 15812 Linda Ave 15798 Linda Ave 15784 Linda Ave 15770 Linda Ave 15785 El Gato Ln 15826 Linda Ave 15795 El Gato Ln Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 . Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032 - Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032 Los Gatos Ca 95032 . Los Gatos Ca 95032 - Los Gatos Ca 95032 Los Gatos Ca 95032 - Los Gatos Ca 95032 O(A J y-+ N .J (0 O (L 0 U a` ) U C c O U O O OO LO LO Imo. .- Cl) 00000 V' It It It w � M M M Z to o mLOo J O O O O U U U U U) U) U) co 0000 QQQQ C� C7 C9 C9 N U U N 0000 J J J J co w re 0 C) �a a w ¢Q¢ wa�U a �J 1)U z N Z 0 J •— J � �— O r (O a0 O N O co O O CY) LO LO LO LO ry w Z O t- I- 1- I- zzzz 99n a » » U U U U U U U U 0000 J w U a 0 4. PLANNING COMMISSION NOTICE OF PUBLIC HEARING DATE: WEDNESDAY, OCTOBER 12, 2011 TIME: 7:00 P.M. LOCATION: COUNCIL CHAMBERS, 110 EAST MAIN STREET 1) 339 & 341 Bella Vista Avenue - Architecture and Site Applications S -06 -46 and S -06- 64, Subdivision Application M- 06 -09, Variance Application V -11 -001, and Mitigated Negative Declarations ND -08 -02 and ND- 08 -03. 'Requesting approval of a lot line adjustment, a variance to allow reduced driveway length, and to construct two new single family residences with reduced setbacks and that exceed the allowable Floor Area Ratio on property zoned R -1:8. No significant environmental impacts have been identified as a result of this project and Mitigated Negative Declarations are recommended. APN 529 -23 015 & 016. PROPERTY OWNER/APPLICANT: Jake Peters; Dan Ross respectively. PROJECT PLANNER: Suzanne Davis. 2) 800 Blossom Hill Road - Planned Development Application PD -11 -004, Planned Development Application PD -11 -001, Mitigated Negative Declaration ND -11 -005. Requesting approval of a modification of an existing Planned Development to construct a new memory services and assisted living building on a site that currently contains assisted living and skilled nursing facilities (The Terraces of Los Gatos) on a property zoned RM- 12:20:PD. No significant environmental impacts have been identified as a result of this project, and a Mitigated Negative Declaration is recommended. APN 523 -05 -001. PROPERTY OWNER: ABHOW, Russell Mauk. APPLICANT: Dan Schneider, Boulder Associates Architects. PROJECT PLANNER: Suzanne Davis. 3) 100 Constances Court (AKA Linda Ave Lot 1) - Architecture and Site Application S- 11 -054. Requesting approval of a modification to an approved Architecture and Site Application to construct a new residence on property zoned R -1 :8 PD. An Environmental Impact Report has been previously certified for this proposal. APN: 523 -25 -052. PROPERTY OWNER: Mission Way, LLC. APPLICANT: Sanford Homes. PROJECT PLANNER: Marni Moseley. 4) 264 Old Adobe Road - Architecture and Site Application S -11 -022. Requesting approval to construct a single family residence on property zoned R -1:10. APN 407 -09- 019. APPLICANT: Minerva Abad, PROPERTY OWNER: Yiming Li & Fang Lin. PROJECT PLANNER: Marni Moseley. Information concerning the above applications, including the recommendation of the Development Review Committee, is on file in the Community Development Department and the Town Library at 110 East Main Street, and available for public inspection during regular business hours. All persons interested in said applications are encouraged to appear at the public hearing and be heard. If anyone wishes to challenge the action on the above applications in court, they may be limited to raising only those issues they or anyone else raised at the public hearing described in this notice, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. TOWN OF LOS GATOS PLANNING COMMISSION /s/Wendie Rooney, Secretary/ Pub 9/27/11 ATTACHMENT 1 � pp , Legal Notice I Legal Notice I Legal Notice - ORDER TO SHOW CAUSE V- 11.001, and ' Mitigated this proposal. 'AF FOR CHANGE OF NAME NO Declarations 25.052. PROPERT' CASE NO. 111CV209326 ND -OS -02 and ND- 08 -03. ER: Mission Wa,, SUPERIOR COURT OF Requesting approval of APPLICANT:: CALIFORNIA, COUNTY OF a lot line adjustment, a Homes, PROJECT SANTA CLARA, 191 variance to allow re- NER: Marnl Mose NORTH FIRST STREET, duced driveway length, 4) 264 Old Adobe SAN JOSE, CA 95113 IN and to construct 'two Architecture an THE MATTER OF THE PE- new single family rest- Application S- TITION OF CLIFFORD dances with reduced Requesting appr HAROLD RAYNES setbacks and that ex- construct a singl( THE COURT FINDS that teed the allowable Floor residence on p PetitiQner(s) CLIFFORD Area Ratio on property zoned R -1:10. At HAROLD RAYNES zoned R -1:8. No signifi- 09.019. APPL has /have filed for a de- cant environmental !m - Minerva Abaci. P tree changing name(s) pacts' have been identi- TY OWNER: Yimi ,asfollows: fied as a result of this Fang Lin. P Present name: CLIFFORD project and Mitigated PLANNER: HAROLD RAYNES Negative Declarations Moseley. Proposed name: CLIF- are recommended. APN FORD ROCKANDROLL 529.23 -015 & 016. PROP- Information con RAYNES E R T Y the above appll, THE COURT ORDERS that OWNER /APPLICANT: including the all persons interested in Jake Peters; Dan Ross mendation of the this matter shall appear respectively. PROJECT opment Review C before this court at the PLANNER: Suzanne Da- tee, is on file In tt hearing indicated below vis. munityDeveloprr to _show cause, if. any, 2) 800 Blossom Hill Road ,partment and th why the petition for Planned Development Library at 110 Ea change of name should 'Applica PD- 11.004. Street, and avail; P anyone wishes to allenge - either ' of ese matters in courk, ey may be limited to ising only those Issues ey or anyone else ised in the public raring described In Is notice, or in written rrespondence delty- ed to the Clerk Depart- ant at, or prior to, the September 19, 2011, Town Council adopt - an ordinance amend - article VIII of Chap - 14 of The Town of Gatos Town Code. a ordinance was in- not be granted. Panne Development public inspe°tron "' iy Puu naariny. , . Notice of Hearing on N0= Application PD- 11.001, regular business hours, . • i (Pub: LG 09/27/11) VEMBER 22, 2011 at 8:45 Mitigated Negative Dec- Complete records 'con- LOS. GATOS UP a.m. in ROOM 107 locat- laration ND -11 -005. Re- All persons interested in cerning these matters SCHOOL DISTRICT ed at 191. North First questing approval of a said applications are en- are on file for public in- PUBLIC HEARING Street, San Jose, CA modification of an.exist- couraged to appear at spection in the Clerk De- 95113. ' ing . Planned Develop- the public hearing and partment at 110 East The Los Gatos U A COPY of this order to ment to construct a new be Heard. If anyone Main Street, Los Gatos. School District will show cause shall be memory ..services and wishes to challenge the INTERESTED PERSONS a public hearing on l i t b fill h b d t Legal Notice Legal Notice Le Ivings bank specifiedwhen'the loan became and section 5102 of the Fl- delinquent. [ ] The loan bust anclal Code and au- was made, purchased or will iorized to do business serviced by (1)'a Califor polo this state. Sale will be nia state or local public sale aid by the duly ap- housing agency or .au- with ointed trustee as thority. including state ,wan town below, of all or local housing finance im I ght, title, and Interest agencies established os; mveyed to and now under Division 31 of the Dar aid by the trustee in Cal, Health & Safety mail ie hereinafter descrl- Code' and Chapter 6 of of t ed property under and the Cal, Military & Veter- b ursuant to the Deed of ans Code, oe (2) the loan with rust, The sale will be is collateral for securl- char lade, but Without ties purchased by any vide Dnvenant or warranty, such California state or van( kpressed or implied, local public housing of tl agardinp title, agency or authority. [ ] tere ossesssron, or encum- ,The borrower has sur -_ char rances, to pay the re- rendered the property of ti, raining principal sum as evidenced by either a ta! •i f'the notes (s) secured letter confirming the of ti y the Deed of Trust, in- surrender or delivery of of t a rest thereon, estimat- the keys to the property re- d fees, charges and ex- to the Mortgagee, trust- b < arises ',Of the Trustee'ee, beneficiary -or au. )r the total amount (at thorized agent. C. , The on t to time of the initial borrower Etas contract- on t ublication of the Notice ed. with. someone whose BID f Sale reasonably estl- primary business. is ad- TAD sated to be set forth vising people who have TAL elow. The. amount may decided to leave their Tru e greater on the, day of homes on how to extend DIAL ale. Place of •Sale: At the foreclosure process BAN 1e gated North Market and avoid their loan ob- ,ed: treat Entrance, Supers- Iigations. C ] The borrow- mer r Courthouse 190 N. er has flied ,for bank- boo iarket Street San Jose, ruptcy, and the bank- ()ffl, published at least once asst ste I v ng u ng action on t e a ove ap- are encourage o ap- resolution regarding the ' y °' "G" "N "" each week for four suc- on a site that currently plicatlons in court, they pear and be ; heard at sufficiency of pupil text- tion: ' AS MORE FULLY DE- tel cessive weeks prior *to contains assisted living may be limited to rats- this public hearing. SCRIBED IN SAID DEED or the date set -for books an or hearing and .skilled nursing fa- ing only 'those Issues d Instructional OF TRUST Amount of un- ru materials the tha - on. the petition In the gllitles Terraces of .they' or anyone else TOWN OF LOS GATOS sfstent With the State Paid balance and other re SEPTEMBER 16, ias Wm. Cain/ of the Superior LG 9/27, 10/4, PLANNING COMMISSION NOTICE OF 'PUBLIC P1 HEARING DATE: WEDNESDAY, OC- 3i TOBER 12, 2011 (/ TIME: 7:00 P.M. LOCATION: COUNCIL A CHAMBERS, 110 .EAST R MAIN STREET :, a 1) 339& -341 Bella,Vista :S Avenue - Architecture si and Site Applications S- e 06.46 and S- 06 -64, Subdi- 'P vision.Application M -06- .Ir 09, Variance Application p d as a result or ject, and a Miti- egative Declara- recommended. 1- 05.001. PROP- WNER: ABHOW, Mauk. APPLI- Dan Schneider, Associates Ar- PROJECT R: ' Suzanne Da- onstances Court Legal Notice Legal Notice V: 523• .appeal of a decision of TOWN OF LOS GA' OWN- the Planning Comm is- ADOPTING ORD LLC, slon approving the dem• 2202 OF THE TO anfor'd olition of an existing sin- LOS GATOS PLAN- ggle family residence and AMENDING ARTK ey. to construct a new sin- I OF CHAPTER 14 u an ap= hearing meeting On PAI re and MONDAY, OCTOBER 17, 'FOF o con= 2011, at 7:00 p.m, in the DE) o tom' Council Chambers, Civic On J ence Center, "11 East Main the nental Street, Los Gatos, to: ed s been sue ed for Request to consider an saf 1411 I J - It f e a Legal advertising in Los Gatos Weeldy-Tlmes Is so cost effective, you'll feel like you're getting away with something! Call 408.2oo -1o2q to find out how to place fictitious business name statements and other legal ads at one of two convenient Silicon Valley Community Newspapers offices. 183 raised at t e public /s /Mazarm Vakharra, ch . curriculum framework. hearing described in Clerk Administrator Thi The hearing will be held this notice, n e written Pub 9/27/11 . on Tuesday, October 4, oft correspondence deliv - u TOWN OF LOS GATOS .2011 in the R. J. Fisher. eyed to the Planning ADOPTING AN ORDI- Middle School Library, put Commission at, or prior NANCE 2201 .OF THE 19195 Fisher Ave:, Los, PA to; the public hearing. TOWN OF LOS GATOS Gatos - 6:00 P.M. GA ENACTED PURSUANT TO (Pub LG 9/27,10/4) Nu TOWN.OF LOS GATOS De HEALTH. AND -SAFETY PLANNING COMMISSION CODE SECTION 34193 TO - Trustee ... ,:Sale ` No. by Se creta ry / /s / Rooney, CONDITIONALLY .ELECT 16690CA Title.Orde• No. Sei AND AMPLEMENT "PAR- 100527999- CA -MAI ':NO- ed Pub LG 9/27/11 TICE OF TRUSTEE'S SALE pal TICI N OF • BY THE YOU "ARE 'IN DEFAULT FO TOWN OF LOS GAT . TOWN OF LOS GATOS UNDER A DEED ^ OF�TRUST TIC NOTICE OF "'PUBLIC AND THE TOWN OF LOS .,,,,,.�„ ry r( gram 1.9 to health °'and FORECLOSU code section f /k /a MTDS to conditionally FORNIA C and implement DBA MERI ation by '`The DEED SERVI f LOS Gatos and Iy appointe Los Gatos Rede- ded ant Agency in Deed r and Tri - rnative volunta- Deed 2005, welopment pro- Instrument ursuant to ^part and as mo )rdtnance was in- 2006, Book ed on September strument 18 L at a regular Town fictal record :il meeting held at SA NTA A CLA the Main Street, Los SA CA 95030. California,' E )y of the adopted HAROLD Vince is available in AND SAP .clerk Department, MCCAFFREY Main Street, Los AND WIFE f CA 95030. TY PROF /s /: Mazarin Trustor, IND Iria, Clerk Adminis- RS.B„ as will sell at LG 09/27/11 tion sale to wa,,,.- — ion as required other >rnla Civil Code tion, if 2923,54, attach- in.•ThE to and made a •fore d eof. CALIFORNIA sold )SURE ,PREVEN. 2011 T DECLARATION CLOSU IPLIANCE (Cali- MTDS, Civil Code § NIA C I))• The - under- MERID mortgage loan SERVI( hereby declares SAN )enalty of per- STE . iU, '•YOU,, as follows: L ] The mort 5 (TACT' A gage loan.servicer has P 10.18.2011 not obtained' a final or A MERIDIAN temporary order of ex- P SERVICE emption pursuant to tv C„ A CALI- Cal. Civ. Code § 2923.53 S PORATION that is current and valid T N TRUST as of the date that the C as the du- Notice of Trustee's: Sale A rustee un- was filed::. or . given.: •T 'R , Page ,, an additional 90 q 196302 before giving notice cl by the sale as required by Deed of Civ. Code § 2923.52 on 06.08• [X] The mortggage I age , In- servicer has obtaine 111 of of- final or temporary or ri the Of- of exemption pursu :order of to Cal. Civ. Code 'County, 2923.53 that is curr * -d b n Iid as f th a trar Cou Mar rA ^+ any C., A CALIFOR- p rol 'ORATION DBA er c I TRUST DEED If a As Trustee '3. no* aQUIN -PLAZA, oth, 5, NEWPORT tior A 92660 Sales far 573.1965 (702) gal 'POSTING COM eve 'ION ERNA LEAD dre. I FORECLOSURE Boo 'IS ASSISTING tlor NEFICIARY TO the A DEBT AND tair DRMATION OB- the WILL BE USED tior IAT' PURPOSE. Sal, 9/27, 10/4, ten 1 ' Bar OF TRUSTEE'S Mei S #: CA -11- CO Order #: Cal L- CA -LPI YOU 292 y. a va o e cu,. IT MAY BE SOLD AT A ser ;FREY that the Notice of Trust. PUBLIC SALE. IF YOU froi LEE ee's Sale was filed or NEED AN.EXPLANATION a fl BAND given. [ ] The t e o f f sale e OF THE NATURE OF THE der ✓tUNI• for givin notice e o sale AGAINST sue as specified In Cal, Civ. YOU, YOU SHOULD CON. tha 3ANK, Code § 2923.52(1) does TACT A LAWYER. A pub- on cart', not apply because: [ ] Tic auction sale to the sat auc• The loan was not 're- highest bidder for cash, tim ghest corded between January cashier's check drawn tic( cash. 1, 2003 and January .1, on a state or national suk by a 2008. [ 7 The loan is not bank, check drawn by liar Ink, a secured by residential state or federal credit ply raven real property. [ ] The union, or a check d' - 292 deral loan is not secured by a by a state or + uni cash. first priority mortgage savin s and loan' for Hiring? Emall Us edit union, or a ter's check draw For Rates! state or federal s VCha@ and loan assn community- newspapers.com savings associati n by a or deed of trust. [ ] T e ation9or savings a % ce <- avings borrower did not occupy ation, or savings bank an( elation, the property as his /her specified in Section 5102 shz on, or principal residence r +i A FlnanriaD rnria mo SEPTEMBER 27, 2011 SILICON VALL TOWN OF LOS GAT 'S - COMMUNITY DEVELOPIV DEPARTMENT CIVIC CENTER: 110 E. MAIN STREET LOS GATOS, CA 95030 (408) 354 -6874 FAX (408) 354 -7593 • • ' ® • ' (PLEASE TYPE OR PRINT CLEARLY) 1. APPLICANT REQUEST: (Check appropriate boxes) 2. PROPERTY DETAIL: ❑ Architecture & Site ❑ Variance Lot Size ❑ Conditional Use Permit ❑ Subdivision Average Slope ❑ Environmental Impact Assessment ❑ Other Existing or Last Previous Use: ❑ Zone Change (Rezone from to ) T j (7f P 3. o PROPERTY Address subject property: � � �r1 C�°S 014a Zoning Assessor's Parcel Number(s) (2f 4. REQUESTED ACTION: (Attach separate sheet if necessary) Description of requested action 5. APPLICANT: NAME �� f . PHONE 66.2 ` o 7 6 7 ADDRESS CITY STATE ZIP -T SIGNATURE OF APPLICANT ems/ &5 - DATE ^ ^ do t t 6. PROPERTY OWNER: (If same as above ch ck here) Fl y�� NAME / " !(SS ( , D��' C L (_ PHONE ADDRESS � I � ��`� - CITY STATE _ ZIP 'tl�� V I hereby certify that I am owner of record of the property described in Item #3 above, and that I approve of t action re ues d herein. SIGNATURE OF OWNER DATE 7. OTHERS INVOLVED: (WILL NOT GET COPY OF AGENDA OR CORRESPONDENCE) (Architect, engineer, planner, landscape architect, etc.; attached addition sheet if necessary) CAPACITY NAME (Please print) FIRM & ADDRESS (include ZIP Code) PHONE 1 6 %Fk IMF- -c'T X144 I 'm r-- �BUIt", Lo (=tkslps, r 9. 0 8. RECEIVED BY _1"1 STAFF MEETING PV U HPC AGENDA APPLICATION NO. te a° lI ®n Please Note: The information contained in this application is considered PLPERMIT $ part of the public record. Therefore, it will appear in both the public PLTRACK $ '�R - 'I , a -' record file for the site address, which is available upon request, and on PLANAP $ '7_ Z- 3- 3 • z C the permitting system on the official Town of Los Gatos website at ENGDEV $ -7 5 ?2!� $ L) www:losgatosca.00y TOTAL $ @ . Z'3 PA!® / , * If site is located wthin Route 85 Study Plan Area *PLRTE85 $ 2� S 7 TOTAL $ AUG 0 92011 ** If site is located within North 40Study Plan Area * *PLN40 $ TOWN OF LOS GATOS TOTAL $ NA ,\ - orms\DRC App Files\2 - DEVELOP.APP.doc B 71112011 ATTACHMENT 1 3 This Page Intentionally Left Blank RESOLUTION 2011- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DENYING AN APPEAL OF A PLANNING COMMISSION DECISION APPROVING A MODIFICATION OF AN APPROVED ARCHITECTURE AND SITE APPLICATION TO CONSTRUCT A NEW SINGLE FAMILY RESIDENCE ON PROPERTY ZONED R- 1:8:PD. APN: 523 -25 -052 ARCHITECTURE AND SITE APPLICATION: S -11 -054 PROPERTY LOCATION: 100 COSTANCES COURT PROPERTY OWNER: MISSION WAY PARTNERS LLC APPLICANT: SANFORD HAVENS APPELLANT: DAVID CRITES WHEREAS, this matter came before the Town Council for public hearing on December 5, 2011, and was regularly noticed in conformance with State and Town law. WHEREAS, the appellant seeks an appeal of a Planning Commission decision approving a modification of an approved Architecture and Site application to construct a new single family residence on property zoned R- 1:8:PD. WHEREAS, the Planning Commission considered the request on October 12, 2011, voted 7 -0 to approve the modification to the Architecture and Site application with the conclusion that changes were consistent with the approved Linda Avenue Planned Development. WHEREAS, Council received testimony and documentary evidence from the applicant and all interested persons who wished to testify or submit documents. Council considered all testimony and materials submitted, including the record of the Planning Commission proceedings and the packet of material contained in the Council agenda for December 5, 2011, along with any and all subsequent reports and materials prepared concerning this application. WHEREAS, Council finds as follows: 1. The Planning Commission did not err in its decision. NOW, THEREFORE, BE IT RESOLVED THAT the appeal of a Planning Commission decision for modification of Architecture and Site application S -11 -054 is denied. BE IT FURTHER RESOLVED the decision constitutes a final administrative decision pursuant to Code of Civil Procedure section 1094.6 as adopted by section 1.10.085 of the Town Code of the Town of Los Gatos. Any application for judicial relief from this decision must be sought within the time limits and pursuant to the procedures established by Code of Civil Procedure section 1094.6, or such shorter time as required by State and Federal Law. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California on the 5 th day of December 2011, by the following vote: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA RESOLUTION 2011- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS GRANTING AN APPEAL OF A PLANNING COMMISSION DECISION APPROVING A MODIFICATION OF AN APPROVED ARCHITECTURE AND SITE APPLICATIONON TO CONSTRUCT A NEW SINGLE FAMILY RESIDENCE ON PROPERTY ZONED R- 1:S:PD. APN: 523 -25 -052 ARCHITECTURE AND SITE APPLICATION: 5 -11 -054 PROPERTY LOCATION: 100 COSTANCES COURT PROPERTY OWNER: MISSION WAY PARTNERS LLC APPLICANT: SANFORD HAVENS APPELLANT: DAVID CRITES WHEREAS, this matter came before the Town Council for public hearing on December 5, 2011, and was regularly noticed in confonnance with State and Town law. WHEREAS, the appellant seeks an appeal of a Planning Commission decision approving a modification of, an approved Architecture and Site application to construct a single family residence on property zoned R-1:8: PD. WHEREAS, the Planning Commission considered the request on October 12, 2011, and voted 7 -0 to approve the modification to the Architecture and Site application with the conclusion that all the changes were consistent with the approved Linda Avenue Planned Development. WHEREAS, Council received testimony and documentary evidence from the applicant and all interested persons who wished to testify or submit documents. Council considered all testimony and materials submitted, including the record of the Planning Commission proceedings and the packet of material contained in the Council agenda for December 5, 2011, along with any and all subsequent reports and materials prepared concerning this application. TT AMC ti 's 1 5 WHEREAS, Council finds as follows: 1. Architecture and Site application S -11 -054 shall be remanded to the Planning Commission for further review. NOW, THEREFORE, BE IT RESOLVED THAT the appeal of a Planning Commission decision for Modification of Architecture and Site application S -11 -054 is granted. The applicant shall address the issues of concern, and the revised application shall be remanded to the Planning Commission for further consideration. BE IT FURTHER RESOLVED the decision constitutes a final administrative decision pursuant to Code of Civil Procedure section 1094.6 as adopted by section 1.10.085 of the Town Code of the Town of Los Gatos. Any application for judicial relief from this decision must be sought within the time limits and pursuant to the procedures established by Code of Civil Procedure section 1094.6, or such shorter time as required by State and Federal Law. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California on the 5th day of December 2011, by the following vote. COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA