Douglas Butler, State Bar No. 059194
Jay F. Golida, State Bar No. 183691
28441 Highridge Road, Suite 303
Rolling Hills Estates, CA 90274-4872
Tel. (310) 265-9999
Fax. (310) 265-4995
Attorneys for Petitioner
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
RANCHO PALOS VERDES NEIGHBORS FOR COMMUNITY COMPATIBILITY, an unincorporated California association
Petitioner,
v.
CITY OF RANCHO PALOS VERDES, a municipal corporation; RANCHO PALOS VERDES CITY COUNCIL; THE ARCHDIOCESE OF LOS ANGELES, and DOES 1-50, inclusive,
Respondents and Real Parties in Interest
CASE NO.:
PETITION FOR WRIT OF MANDATE
[CCP §§ 1094.5, 1085 and Pub. Res. Code §21000 et seq.]
Petitioners RANCHO PALOS VERDES NEIGHBORS FOR COMMUNITY COMPATIBILITY, an unincorporated California association and its members (hereinafter “Petitioner”) file this Petition for Writ of Mandate pursuant to California Public Resources Code Sections 21168 and 21168.9 and the California Code of Civil Procedure Section 1085 and 1094.5, based on the following allegations:
INTRODUCTION
1. Petitioner is filing this lawsuit against the City of Rancho Palos Verdes (“City”) and the Rancho Palos Verdes City Council (“City Council”) (collectively “Respondents”) and the Archdiocese of Los Angeles (“Archdiocese”) Real Party in Interest for failure to comply with the California Environmental Quality Act (“CEQA”) Public Resources Code Sections 21000, et. seq., and the CEQA Guidelines, 14 Cal. Code regs. Sections 15000, et seq., (“CEQA Guidelines”) in approving a mitigated negative declaration (“MND”) for the St. John Fisher Master Plan project and adopting Resolution No. 2009-09 and Resolution 2009-10.
2. On or about February 17, 2009, Respondents approved Resolution 2009-09 that adopted an MND for the St. John Fisher Master Plan project located at 5448 Crest Road, Rancho Palos Verdes, California (“Project”) and approved Case No. ZON2007-00492 (Conditional Use Permit #96 – Revision “D”, Grading Permit, Minor Exception Permit, Sign Permit and Environmental Assessment). On or about February 17, 2009, Respondents also adopted Resolution 2009-10 that denied Petitioner’s appeal of the Planning Commission’s decision approving Case No. ZON2007-00492.
3. The MND adopted by Respondents approves a master plan submitted by the St. John Fisher Roman Catholic Church (“SJF”), a parish located within the Archdiocese of Los Angeles at 5448 Crest Road, Rancho Palos Verdes California. The Project includes 32,426 square feet of new building area for various facilities including a new sanctuary, pre-school, administration building, library, art room, storage area, storage garage and offices. The Project results in a 33% increase of existing facilities.
4. Petitioner is challenging the MND for the Project and is also challenging the Resolution approving Case No. ZON2007-00492 and the entitlements contained therein. Petitioner alleges that these actions violate provisions of the CEQA. Petitioner seeks a writ of mandate, inter alia, invalidating and setting aside the above described City approvals and compelling City to comply with CEQA and to prepare an Environmental Impact Report (“EIR”) prior to consideration of any resolutions, permits or approvals concerning the Project.
PARTIES
5. The Petitioner in this matter is the Rancho Palos Verdes Neighbors for Community Compatibility, an unincorporated California association consisting of homeowners, property owners and residents who will be affected by the Project and who represent over seventy percent of those expressing concerns at the Planning Commission hearings.
6. Petitioner has a substantial interest in assuring that City’s decisions are in conformity with the requirements of law, and in having those requirements properly executed and the public duties of City enforced. Petitioner will be adversely affected by impacts resulting from City’s actions and approval described herein and is aggrieved by the acts, decisions and omissions of City as alleged in this Petition. Petitioner is suing on its behalf and on behalf of others who will be affected in the immediate area.
7. Petitioner is informed and believes, and based thereon alleges that Respondent, City, is a political subdivision of the State of California and a municipal corporation, duly incorporated and existing pursuant to the Constitution and general laws of the State of California.
8. Petitioner is informed and believes, and based thereon alleges that Respondent, Rancho Palos Verdes City Council (“City Council” is the governing body of City, and, as such, is empowered to enact ordinances, resolutions, and orders necessary for governing the affairs of City. Respondent Rancho Palos Verdes City Council is a public agency authorized and required by law to certify compliance and determine the adequacy of environmental documents that come before it for review and consideration under CEQA.
9. Petitioner is informed and believes and based thereon alleges that the real property on which the Project will be constructed is owned by the Archdiocese of Los Angeles, Archdiocese Catholic Center, 3424 Wilshire Boulevard, Los Angeles, California, 90010 and because of this ownership is the Real Party in Interest in this litigation.
GENERAL ALLEGATIONS
10. On or about February 18, 2009, City approved the MND for the SJF Master Plan. Despite the requirements of CEQA Guidelines § 15075, a Notice of Determination (“NOD”) was not filed until March 3, 2009, well over the statutory time required to file the NOD.
11. Petitioner, individuals and other agencies made oral and written comments in opposition to numerous aspects of the Project. By commenting on the MND, the staff reports and participating in all the public hearings, Petitioner has exhausted all administrative remedies available to them. There are no additional administrative remedies available to the Petitioner and is thus seeking judicial relief in this action.
12. Petitioner has performed all conditions imposed by law precedent to filing this action, including complying with the requirements of Public Resources Code § 21167.5 by mailing notice to City and the Archdiocese that this action would be filed. A true and correct copy of such notices (together with the original proof of service) is attached hereto as Exhibit A and incorporated by reference into this Petition.
13. Concurrently with the filing of this Petition, Petitioner shall serve a copy of this Petition on the California Attorney General’s office as required by law under Public Resources Code § 21167.7. A true and correct copy of such notice (together with the original proof of service) is attached hereto as Exhibit B and incorporated by reference into this Petition.
14. Petitioner has elected to prepare the record of proceedings in this matter pursuant to Public Resources Code Section 21167.6(b)(2). A true and correct copy of such notice (together with the original proof of service) is attached hereto as Exhibit C and incorporated by reference into this Petition.
15. Petitioner has no plain, speedy or adequate remedy available to it in the ordinary course of law to redress the claims alleged in this petition. Petitioner and the surrounding residents will suffer irreparable harm if City is not required to comply with CEQA and its municipal code and have this Court vacate and set aside the above described approvals related to the Project.
HISTORICAL BACKGROUND
16. The City requirements for new construction require the erection of a silhouette so the project can be evaluated. With respect to SJF, these requirements are set forth in a document entitled: Non-Single-Family Silhouette Construction Criteria. The criteria provide: “If a non-single-family-residential development project requires a Conditional Use Permit application, the property owner/applicant will be required to construct a certified silhouette that depicts the proposed project some time prior to the hearing on the proposed project....The silhouette shall be constructed exactly as these guidelines describe unless the applicant can demonstrate to the Director that strict adherence to these guidelines will adversely impact the operation of the existing non-residential use and/or public safety. The Director has authority to allow deviations from these criteria, so long as the intent of providing the silhouette to assist, Staff, the general public, and decision makers is reasonably satisfied…..The silhouette must remain in place and be maintained in good condition througout the required 15-day public notice period for the Conditional Use Permit, the decision process and, if necessary, any appeal periods.
17. In lieu of this strict and long period of maintaining the silhouette in place during the deliberations process, the City allowed the silhouette to be removed after 14 days without any justification whatsoever. As a result, the general public, Staff, Planning Commissioners, and the City Council were all deprived of witnessing the silhouette of the massive and intrusive sanctuary building prior to final approval. There is no doubt that if the silhouette remained in place for the duration of the review process, opposition from the public would have been even more vocal. Furthermore, the fact that the City Council members were deprived of viewing the silhouette from the local neighborhoods during the appeal process was a travesty and a blatant violation of the City’s own legal requirements.
First Planning Commission Hearing, June 24, 2008
18. On June 24, 2008, the Planning Commission held a public hearing at which time all interested members of the public were given an opportunity to comment on the Project. Prior to the Planning Commission hearing, the City released its Staff Report indicating several concerns about the Project including the height, bulk and mass of the proposed sanctuary building.
19. Prior to and during this first meeting, Petitioner and others members of the public filed numerous comments and provided testimony, including but not limited to, concerns raised regarding the height, bulk and mass of the sanctuary, the noise from the ringing of the proposed bells several times every day, the parking and traffic impacts created both during construction and after Project completion, and the impact of the proposed lighting on surrounding neighborhoods.
20. Members of the public also expressed their concerns about the manner in which the silhouette outlining the frame of the sanctuary building and steeple were constructed and questioned whether it was in accordance with City requirements. For example, the steeple and cross were depicted by inflated balloons that lost their helium several times during the 2-week period and often winds would wrap the balloons around the poles that held them in place. In addition, balloons on strings do not properly characterize the mass of a large steeple that, in this case, has an unusually wide and deep footprint. Furthermore, the silhouette was in place for only 2 weeks prior to the date of the first Planning Commission hearing; then it was taken down even though there were additional Planning Commission hearings and City Council hearings that went on for months. None of City Staff, Planning Commissioners and City Council members who had to vote on the project and make an informed decision based on the evidence in the record, could possibly have formed an accurate depiction of height, bulk and mass of the sanctuary building and steeple without, at a minimum, a silhouette. All of these conditions impeded an objective analysis of the true impact of the size and location of the sanctuary.
21. At the conclusion of this first hearing, the Planning Commission conducted a straw vote regarding the height of the building. Four Commissioners voted that the structure was too high; one Commissioner voted in favor of the height and one Commissioner abstained. Much to everyone’s surprise, SJF, at the conclusion of proceeding, offered to submit revised plans immediately that evening The Planning Commission continued the public hearing to July 22, 2008 to allow time for SJF to address concerns about the height of the proposed sanctuary steeple and provide clarification on the methodology used to determine the number of parking spaces that would be provided on site.
22. On July 2, 2008, SJF submitted revised plans that included a reduction in the overall height and footprint of the structure, additional articulation to the design of the structure, and an increase in the setbacks of the sanctuary from Crest Road and Crenshaw Boulevard. The revised plan reduced the height of the steeple by 14", thereby resulting in a design that ranges in height from 15' at the northeast end of the structure to 60' at the top of the steeple and 74' at the top of the cross at the southwest end of the structure. The applicant also reduced the overall height of the sanctuary by reducing the heights of the architectural "fins" and foyer by 3 to 6 feet.
23. After receiving revised plans from SJF, the City made no attempt to revise or modify the MND prior to the second Planning Commission meeting.
Second Planning Commission Hearing, July 22, 2008
24. Petitioner once again submitted written comments prior to the July 22. 2008 hearing and provided testimony at the hearing objecting to SJF’s revised plans for the sanctuary because they did not meet the concerns expressed by Petitioner and others during the first hearing, including the height, bulk and mass of the sanctuary, excessive nuisance noise from the ringing of bells several times a day – every day, insufficient parking and the lack of an adequate traffic study.
25. In its report to the Planning Commission, City staff stated that the revised plan was an improvement because it had reduced the height of the sanctuary and its steeple and had increased the setback of the structure. Staff requested direction from the Planning Commission as to whether the revised plan met the Commissioners’ concerns.
26. The Planning Commission continued the public hearing to September 23, 2008 to allow time for the applicant to consider providing a sound study to determine if any significant impacts would result from the proposed bells, a shadow study to determine if the height and/or scale of the sanctuary and steeple would create any significant impacts to surrounding properties, a copy of SJF’s recent parking counts, further clarification of applicant’s parking analysis and whether the applicant is willing to provide additional parking on days when the demand for parking is the greatest due to activities at the site.
Third Planning Commission Hearing, September 23, 2008
27. Several studies requested by the Planning Commission at the July 22, 2008 hearing were submitted to staff prior to the September 23, 2008 hearing. These included a shade and shadow analysis as well as a carillon bell study
28. In its Staff Report, City staff opined that because of the reduction of the sanctuary height and set back, the sanctuary would not result in a significant impact on adjacent properties. However, the Staff Report did not address the environmental impacts considered in the original MND. The staff in its initial report on the original plan noted: “the proposed height of the steeple, which is essentially an architectural element, would create an overly dramatic element of the proposed sanctuary, thereby magnifying its presence relative to the public right-of-way and neighboring properties. Thus rather than blending in with the surrounding area, in Staff’s opinion, the height of the steeple affects the overall appearance of the structure by accentuating its mass, thereby departing from the appearance of other structures, landscaping and topography in the area.” The Staff Report did not explain how or why the environmental impact had been eliminated since the analysis in the initial staff report.
29. Petitioner as well as other members of the community filed written comments and testimony at this hearing. Additionally, several residents caused an architect to prepare renderings of the proposed revised structure so that its massive size and height could be visualized by the Planning Commission and City staff.
30. The written comments and testimony argued that an EIR and not a MND should have been prepared due to the obvious existence of a significant visual impact by the sanctuary building. In addition, issues of inadequate parking, an inadequate traffic study, the impact of bells ringing 365 days a year, and the impact of lighting the steeple 365 days a year were again raised by Petitioners and other members of the community.
31. At the conclusion of this hearing, the Planning Commission “conceptually” approved the Project by a 3-2 vote and ordered that appropriate resolutions with Conditions of Approval be prepared at the next Planning Commission meeting. Two commissioners voting against approval of the Project cited concerns over the height, bulk and mass of the sanctuary, over the fact that alternative sites had not been considered and over the ringing of the bells.
Planning Commission Meeting, October 14, 2008
32. At the October 14, 2008 hearing, the Planning Commission adopted PC Resolution No. 2004-34, adopting the MND and PC Resolution No. 2008-35, approving the SJF Master Plan. As part of its findings from the MND, the Planning Commission found that: “There will be no significant adverse effect on adjacent property or the permitted use thereof because mitigation measures have been incorporated that reduce the potential impacts of the Project on Aesthetics, Air Quality, Geology and Soils, Hydrology and Water Quality and Noise to an insignificant level.”
33. The Planning Commission did not make any additional findings, or conduct any further studies or analysis, or consider the potentially significant impacts caused by the Project to biological resources or to the community and other sensitive receptors from hazardous materials that will be released into the environment from the demolition of buildings as part of the Project.
Appeal by the Petitioners, October 29, 2008
34. On or about October 29, 2008, Petitioners filed a timely appeal to the City Council. In its appeal, Petitioners asserted, inter alia:
(a) The MND approved by the Planning Commission did not comply with CEQA and the City was required to prepare an EIR to determine the levels of significant adverse impacts such a massive project would have on the surrounding neighborhoods and the community at large.
(b) The sanctuary building violated the basic City standards of neighborhood compatibility with respect to design, height, bulk, size, and mass. Neighborhood compatibility for residential development is determined on the basis of scale of surrounding residences, architectural styles and materials, and property line setbacks. The City does not have a corresponding section of the Code that applies to commercial or institutional development. However, according to the General Plan, neighborhood character and compatibility are important aspects that must be considered when evaluating all development, including institutional development. So, in the absence of guidance that applies specifically to institutional development, it seems reasonable to apply the same parameters to this project.
(c) The proposed sanctuary building would create significant adverse impacts on the surrounding residential neighborhoods and violated City Municipal Code § 17.60.050.3. The Planning Commission’s finding that the proposed structure will not have a significant adverse effect on any adjacent property was not supported by the record.
(d) The parking spaces were inadequate and additional parking spaces were required pursuant to applicable City code requirements.
(e) The increased noise levels caused by bells ringing for 90 second intervals several times a day, approximately 1300 times a year is a significant impact to the residents living adjacent to SJF and surrounding neighborhoods and violates the requirements of the General Plan which requires the City to maintain “a quiet and serene residential community.”
(f) The lighting analysis was flawed and failed to properly evaluate the impacts from lighting the sanctuary building and steeple.
First City Council Hearing, November 16, 2008
35. The appeal to the City Council was to be considered de novo. The Appellants, in a coordinated presentation, discussed all of the issues raised in its appeal. Additional architectural renderings were also prepared for several residents and were included in written and oral presentations. These renderings once again showed the massive visual impact the sanctuary building and steeple would have on the Petitioners and other community members.
36. Given that the height, bulk and mass of the Project was such a significant issue in the appeal, the City Council determined that an extraordinary Saturday on-site visit to the Project site should be held because of the inadequacy of the silhouetting process. The on-site visit was scheduled for November 22, 2008, even in spite of the objection by one City Council member who opined that enough time had already been spent on the Project in the Planning Commission and advocated a vote on the project immediately.
Second City Council Hearing, November 22, 2008
37. On November 22, 2008, the City Council conducted the continued public hearing at the Project site. Much to the surprise of the Petitioners, only one of the City Council members even wanted to hear what the neighbors and surrounding communities would hear when the bells were rung. Due to this lack of interest by the decision-makers to actually witness what would amount to the best evidence available to evaluate the impact from the bells, no bell demonstration was conducted at the site visit. It is believed that at a later time, SJF conducted a private demonstration for the one City Council member who did comment he was surprised at the way the sound carried.
38. During the site visit, due to the fact that the silhouette had been removed after only 14 days, a 60 foot cherry picker had to be brought in by SJF. The cherry picker was not adequate to demonstrate the height of the proposed building and a 14 foot attachment had to be added so that the City Council could “visualize” the height, bulk and mass of the proposed structure. The height of the cherry picker did not even attempt to extend to the height of the cross on the building. It only attempted to depict the height of the building itself.
39. After the site visit, City staff required the architects of the appellants (Petitioner) and SJF to provide further rendering of the proposed sanctuary, all of which showed that the imposing height, bulk and mass of the sanctuary and steeple had not been reduced to a level of environmental insignificance. Interestingly, before the renderings could be produced, the height and location of the cherry picker had to be certified and during this process it was determined to be different than the height and location of the cherry picker as it was placed for the site visit.
40. During the visit to the SJF site by the City Council members it was suggested that trees be planted, not on the applicants’ property but, on the public right-of-way near the most severely impacted adjacent residents to shield these residences from the recognized impact of the structure. Not only does this proposed solution not solve the impact from the sanctuary which as proposed will substantially degrade the existing visual character or quality of the site and its surroundings, but planting the trees may only transfer the source and extent of the shade and shadow impact from the sanctuary to the trees. The proposed tree planting mitigation was not studied by the City or evaluated in the MND but nevertheless was recommended as mitigation. If allowed to be implemented, it is likely that the trees will result in adding another impact to the surrounding neighbors rather than mitigating the height, bulk and mass impact.
Third City Council Meeting, December 16, 2008
41. On December 16, 2008, the City Council conducted the continued public hearing on the Petitioner’s Appeal. At this meeting the City Council adopted the MND, approved the Project and denied the Appeal by Petitioners (although two of the five City Council members were absent for the hearing.) The conclusion expressed by one of the City Council members was that a private property owner had the right to develop their property the way they wanted to. Importantly, the City Council ignored, among other things, evidence submitted by the Petitioners prepared by a real estate expert that the negative aesthetic impacts of the plan and the negative impact of the noise of the bells would decrease property values in the surrounding area. City Council member Long indicated such evidence could not be considered, not only ignoring authorities provided by the neighbors that such consideration was appropriate and required, but also over the City Attorney’s opinion that such evidence should be considered under CEQA.
42. The MND as adopted by the City Council attempts to mitigate the environmental impacts from the Project with band-aids and not realistic and proven mitigation measures. The problems starts with the fact the proper analysis and studies were never adequately conducted to evaluate the impacts from this massive project. Furthermore, the City Council and City Staff are content to defer the design of those mitigation measures intended to address some of the most significant impacts on the Petitioner and adjoining communities such as height, bulk and mass, noise, light, parking and traffic to well after the Project is already under way. Such deferred mitigation violates CEQA.
43. Most importantly throughout the evaluation of this master plan from the Planning Commission through the City Council Appeal, no attempt was made to analyze why the structure needed to be so tall and so close to the property line in light of the aesthetic impacts on the surrounding neighborhoods. There was no attempt by the City to determine or explain why the bells needed to sound over 1300 times a year in light of neighborhood objections given that most parishioners who wanted to hear the bells lived too far away to hear them on a daily basis, and would only hear them on Sunday when they attended Mass. There was no attempt to analyze the parking requirements for the plan given the square footage and potential uses of the space, but rather parking was determined by tables submitted by the Church allegedly showing current parking space requirements and extrapolating that use forward. There was no attempt to supplement the traffic study to include the area south of the Crenshaw Crest Intersection, even though one of the two Church entrances is south of the intersection and the vast majority of the neighbors expressing concern lived south of the intersection, and the entrance to the Portuguese Bend Nature Preserve (a popular weekend destination for people living on and off the Peninsula) is south of that intersection. Further there was no attempt to study the lighting plan or landscaping plan prospectively to determine environmental impacts (the effect of upward pointing lights into the night sky on migratory birds and the water usage of the landscaping). In fact the current photometric lighting plan demonstrates spillover beyond the property line, but neighbors are apparently to be reassured by the fact that the Planning Department will evaluate this all at some later point in time. Another example of deferred mitigation, In addition as set forth below, the Planning Commission, and ultimately the City Council ignored various aspects of the General Plan and Development Code in approving the project, also in violation of CEQA.
FIRST CAUSE OF ACTION
(Petition for Writ of Mandate Pursuant to Code of Civil Procedure Sections 1094.5 and 1085 and Public Resources Code Sections 21168 and 21168.5 by Petitioner against Respondents and Real Party in Interest for Violation of CEQA and Failure to Prepare an Environmental Impact Report)
44. Petitioner refers to, repleads and realleges Paragraphs 1 through 43, inclusive, of the Petition and by this reference incorporate the same herein as though set forth in full in this cause of action.
45. Public Resources Code Section 21168.9 provides that a writ of mandate is the proper remedy for the City’s failure to comply with CEQA before adopting Resolutions 2009-09 and 2009-10.
46. Public Resources Code Section 21168.5 governs this action.
47. Respondents’ actions in approving the MND and adopting associated findings that the Project will not have a significant impact on the environment were a prejudicial abuse of discretion in that Respondents failed to proceed in the manner required by law and made findings that were not supported by the evidence. The MND also failed to use, evaluate and consider proper thresholds of significance for determining impacts as required under by CEQA Guidelines Section 15064.
48. Compliance with CEQA serves the important function of enabling the public to make an independent and reasoned judgment about a proposed project. These purposes were not served by the process followed at the hearing of the Planning Commission or the City Council.
49. During early consultation on the Project, the public review period on the proposed mitigated negative declaration, and the public hearings, the Petitioner and other agencies, interested groups and individuals submitted into the record substantial evidence upon which a fair argument was made that the Project may have a significant effect on the environment and that under CEQA an EIR must be prepared. This evidence includes, but is not limited to the following:
(a) Project Description. Petitioners and other interested parties have provided substantial evidence into the record to support a fair argument that the project description does not provide details regarding the operational changes to the facilities that are implied by the physical changes described for the Project. For example, the hours of operation of the proposed pre-school are not identified and it is not clear whether these hours are different from school uses currently operated at the site. It is also not discussed, for example, whether the new art and library facilities will have expanded hours of operation. Without providing such details, the impact analysis may or may not be sufficiently robust. Further, no schedule is provided for the proposed construction. Such information is critical to the analysis of other impacts throughout the MND such as air quality and noise. Without this inquiry and subsequent discussion in the MND, it is impossible for the Planning Commissioners and City Council to make the necessary finding that there will be no impact from the Project or for the public to be adequately informed and required under CEQA.
(b) Aesthetics. Petitioners and other interested parties have provided substantial evidence into the record to support a fair argument that the height, bulk and mass of the proposed sanctuary, along with the light and glare impacts, and shade and shadow impacts from the Project may have a significant adverse impact on the environment and substantially degrade the existing visual character or quality of the site and its surroundings, including, but not limited to the surrounding community.
Prior to the second Planning Commission hearing, SJF submitted revised plans which reduced the height of the cross to 74 feet and the height of the sanctuary to 60 feet without taking into consideration that the construction site sits on a pad which is over 20 feet above the street closest to the sanctuary, thus presenting a building almost 100 feet above the street with a set back of only approximately 60 feet. The City’s development code requires a set back of 25 feet for a building that is 16 feet tall. City staff recommended and the Planning Commission and the City Council later agreed that this modification had reduced the height, bulk and mass of the building to a level of insignificant environmental impact.
Prior to the third Planning Commission hearing, residents adjacent to the proposed structure were required to hire an architect to show the impact of the revised structure because of the lack of adequate silhouetting. The renderings of the architect were presented at the third Planning Commission hearing and demonstrated that the visual effect of the building had not been reduced to a level of insignificant environmental impact. Two of the five planning commissioners who voted agreed with the residents’ contentions and voted not to approve the plan.
At the first City Council hearing, appellants continued to demonstrate that the height, bulk and mass of the building had not been reduced to a level of insignificant environmental impact. These assertions forced the City Council to hold an onsite review of the project where a 60 foot cherry picker brought in by the applicant was not adequate to demonstrate the height of the proposed building and a 14 foot attachment had to be added to the cherry picker so that the council could “visualize” the height, bulk and mass of the proposed structure.
City staff then required the respective architects of the appellants and applicant to provide further rendering of the propose structure all of which showed the imposing height, bulk and mass of the building and not that it had been reduced to a level of environmental insignificance.
If the revised plans had truly been able to reduce the height, bulk and mass of the building to a level of insignificance, residents would not have been able to present renderings which showed the dramatic impact of the structure on surrounding neighborhoods. If the revised plans had truly been able to reduce the height, bulk and mass of the building to a level of insignificance, City Council would not have been forced to call an extraordinary onsite hearing. If the revised plans had truly been able to reduce the height, bulk and mass of the building to a level of insignificance, it would not have been necessary to hire a 60 foot cherry picker – and later require an additional 14 foot extension - to show the height, bulk and mass of the proposed structure. If the revised plans had truly been able to reduce the height, bulk and mass of the building to a level of insignificance, City staff would not have needed to require the respective architects to submit numerous additional renderings.
During the onsite City Council meeting on November 22, 2008, the City Council suggested that trees be planted, not on the applicants’ property, but on the public right-of-way near the most severely impacted adjacent residents to shield these residences from the recognized impact of the structure. This extraordinary measure demonstrates that the Council conceded that the mitigation measures approved by the Planning Commission had not rendered the structure to a level of environmental insignificance. If the revised plans had truly been able to reduce the height, bulk and mass of the building to a level of insignificance, this extraordinary act by the council would not have been necessary. Furthermore, this proposed solution does not solve the impact, but may instead change the source and extent of the shade and shadow impact. The City can not make a finding of insignificance without conducting the correct study and analysis. The MND does not address whether the planting of trees will reduce the impact to a level of insignificance.
As noted at Paragraph 28, the City set forth the theory as to why a large building such as the proposed sanctuary can have a significant detrimental impact on the environment. It is clear from the record that a fair argument can be made that the City-admitted environmental impacts described at Pararaph 28 continue to exist with respect to the revised plan.
There is also no legitimate study, data or analysis to support the finding that the upward lighting of the steeple will not have a significant impact on the surrounding neighborhoods and no legitimate study, data or analysis to support the finding that shade and shadow from the Project will not have a significant impact on the surrounding neighborhoods. Any studies that were conducted for these issues were technically flawed and incomplete.
Without conducting the appropriate studies and analysis and then including this information into the MND, it is impossible for the Planning Commissioners and City Council to make the necessary finding that there will be no impact from the Project or for the public to be adequately informed of the potential impacts as required under CEQA.
(c) Air Quality. Petitioners and other interested parties have provided substantial evidence into the record to support a fair argument that there may be a significant adverse impact on air quality.
The air quality analysis for impacts b), c), d) and e) of the MND is completely void of data. Federal, State and Regional regulations have specific thresholds for various air contaminants and many tools are available to quantify and model emissions for proposed projects and compare the project-related emissions to the relevant thresholds. Without such analysis, evaluation of potential air quality impacts for the Project is subjective and virtually meaningless. In addition to being lacking in data, no schedule is provided for the duration of the construction required for the Project. Therefore, it is impossible to understand how long acknowledged and undisclosed air quality impacts will be imposed on young school children on-site as well as to other sensitive receptors including school children just down the road.
There is also no discussion of operational air quality impacts. According to the Draft Traffic Impact Report, the proposed project will generate 251 new trips on weekdays and 424 trips on weekends. Each new trip associated with operation of the proposed project adds hazardous constituents to the air and must be analyzed. Finally, the MND does not include any discussion of the Project’s contribution to the creation of Greenhouse Gas Emissions. Assembly Bill 32 requires such an analysis and discussion for projects proposed in California.
Without this inquiry and subsequent discussion in the MND, it is impossible for the Planning Commissioners and City Council to make the necessary finding that there will be no impact from the Project or for the public to be adequately informed of the potential impacts as required under CEQA.
(d) Biological Resources. Petitioners and other interested parties including the Audobon Society have provided substantial evidence into the record to support a fair argument that there may be a significant adverse impact on biological resources. In the analysis for Biological Resources, impact d) of the MND, there is no consideration given for potential impacts to avian species associated with a lighted cross up to 74 feet high or to a new structure with significant glass surfaces up to 60 feet high. Without conducting an appropriate inquiry and studying this issue in the MND, it is impossible for the Planning Commissioners and City Council to make the finding that there will be no impact from the Project or for the public to be adequately informed of the potential impacts as required under CEQA.
(e) Cultural Resources. Petitioners and other interested parties have provided substantial evidence into the record to support a fair argument that there may be a significant adverse impact on cultural resources. The MND is void of any discussion on whether the Native American Heritage Commission was contacted regarding potential for degradation of Native American resources in the vicinity of the Project. Without this inquiry and subsequent discussion in the MND, it is impossible for the Planning Commissioners and City Council to make the finding that there will be no impact from the Project or for the public to be adequately informed of the potential impacts as required under CEQA.
(f) Hazards and Hazardous Materials. Petitioners and other interested parties have provided substantial evidence into the record to support a fair argument that there may be a significant adverse impact caused by hazards and hazardous materials generated by the Project. The Project is located within several hundred feet of the school on site and within ¼ mile of the Ranch Del Mar School and there is no discussion regarding the potential for asbestos and lead to be released during the demolition of existing structures on site or the air emissions during project-related grading. There is also no discussion in the MND of whether an analysis has been conducted regarding the existence of hazardous materials in soil or structures on site. Without this information and subsequent discussion in the MND, it is impossible for the Planning Commissioners and City Council to make the finding that there will be no impact from the Project and for the public to be adequately informed of the potential impacts as required under CEQA.
(g) Noise. Petitioners and other interested parties have provided substantial evidence into the record to support a fair argument that there may be a significant adverse impact caused by noise generated by the construction and operation of the Project. The Noise section is completely void of data. Noise modeling is a well-established practice and the State and County of Los Angeles have quantitative noise thresholds that are applicable to this proposed project. Again, without a schedule for the construction of the proposed project, the ability to understand potential impacts is severely compromised. Once again, operational impacts are ignored. According to the Draft Traffic Impact Report, the proposed project will generate 251 new trips on weekdays and 424 trips on weekends. Each new trip associated with operation of the proposed project adds noise to the vicinity and must be analyzed. Finally, the analysis of the carillon is deficient in that it does not consider the Los Angeles County Noise Ordinance which is applicable in the absence of a City of Rancho Palos Verdes regulation. The noise study was done one day in August without any analysis of sound frequency and weather characteristics that affect the way the sound carries.
During operation of the sanctuary building, it is proposed that carillon bells will ring over 1,300 times per year. There is no legitimate study, data or analysis to support the finding that the ringing of the bells will not have a significant impact on the surrounding neighborhoods. Any studies that were conducted were technically flawed and incomplete.
Without this information and subsequent discussion in the MND, it is impossible for the Planning Commissioners and City Council to make the finding that there will be no impact from the Project or for the public to be adequately informed of the potential impacts as required under CEQA.
(h) Transportation and Traffic. Petitioners and other interested parties have provided substantial evidence into the record to support a fair argument that there may be a significant adverse impact caused by transportation and traffic generated by the construction and operation of the Project. Under Transportation and Traffic impact d), no consideration is given to potential hazards generated by operating a pre-school on site. Pre-school pick up and drop off patterns ands requirements (e.g., parents/guardians must accompany pre-school students into the facility). (Exhibit A, pp. 26-28). While the proposed facility may be designed to accommodate this new use, specific design features must be disclosed in order for the public and the City Council to understand how this issue is addressed. Under Transportation and Traffic impact f) of the MND, no useful analysis is provided to support the conclusion that 331 parking spaces will be adequate to accommodate all parking associated with the expanded uses at the site. For example, what is the baseline parking need for the existing facility during the peak hours. It does not make sense that a 28 space reduction in capacity will accommodate a project that will have 250 additional sanctuary seats to accommodate parishioners on Sundays. (Id.)
In addition, the traffic analysis that was conducted by the City did not take into account the traffic impacts from the other projects that have recently been approved by the City, as well as the adjoining city of Rolling Hills Estates and also did not study or consider the traffic impacts from the Project south of Crest Road on Crenshaw Boulevard at the main SJF entrance off of Crenshaw Boulevard as cars pile up and try to turn into the SJF parking lot.
Without this information and subsequent discussion in the MND, it is impossible for the Planning Commissioners and City Council to make the finding that there will be no impact from the Project or for the public to be adequately informed of the potential impacts as required under CEQA.
50. Petitioners have commenced this action in accordance with the provisions of CEQA, Public Resources Code § 21167(b).
PRAYER FOR RELIEF
WHEREFORE, Petitioner, Rancho Palos Verdes Neighbors for Community Compatibility, pray judgment as follows:
AS THE FIRST CAUSE OF ACTION
1. For issuance of a peremptory writ of mandate directing:
a. Respondents to void, vacate and set aside their approval of the Mitigated Negative Declaration for the SJF Project
b. Respondents to void, vacate and set aside their approval of Resolution 2009-09 and Resolution 2009-10 and send them back to the Planning Commission for reconsideration.
c. Respondents to prepare, circulate and certify a legally adequate Environmental Impact Report and otherwise comply with CEQA prior to taking any further or subsequent action related to the Project including its approval.
d. Comply with the Court’s Order made pursuant to Public Resources Code § 21168.9
2. For their costs of suit;
3. For an award of their attorneys’ fees, including but not limited to fees authorized under Code of Civil Procedure § 1021.5; and,
4. For such other equitable or legal relief that the Court finds just and proper.
DATED: April 1, 2009 By
Douglas Butler
Attorneys for Petitioner
Rancho Palos Verdes Neighbors for Community Compatibility
VERIFICATION
I declare that I am a member of the Rancho Palos Verdes Neighbors for Community Compatibility, Petitioner in the above-entitled action, that I have read the foregoing PETITION FOR WRIT OF MANDATE and know its contents, and I declare that the matters stated in the foregoing document are true of my own knowledge, except as to matters which are 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 to the best of my knowledge.
Executed on April 1, 2009 at Rancho Palos Verdes, California.
_________________________E. BRUCE BUTLER