Richard L. Francis, Esq. (BAR # 70884)

LAW OFFICES OF FRANCIS & ASSOCIATES

711 South "A" Street

Oxnard, CA 93030

(805) 486-5898

Attorney for Petitioner/Plaintiff

THE ENVIRONMENTAL COALITION

OF VENTURA COUNTY

 

 

 

 

SUPERIOR COURT OF CALIFORNIA

IN AND FOR THE COUNTY OF VENTURA

 

 

THE ENVIRONMENTAL COALITION OF VENTURA COUNTY,

Petitioner/Plaintiff,

vs.

CITY OF MOORPARK; the CITY COUNCIL OF THE CITY OF MOORPARK; and VENTURA LOCAL AGENCY FORMATION COMMISSION,

Respondents/Defendants.

________________________________________

VENTURA COUNTY RESOURCE CONSERVATION DISTRICT; MESSENGER INVESTMENT COMPANY; HIDDEN CREEK RANCH PARTNERS, LP.; STRATHEARN VENTURA PARTNERS; NUEVO ENERGY, INC.; RAMONA PARKINSON TRUST; JPR INVESTMENTS; KENNETH L. SCRIBNER; SHARON L. SCRIBNER; TAYLOR WOODROW HOMES, CA; BRAD M. STRATHEARN, TRUST; GEORGIA MAHAN; RALPH D. MAHAN; RANCHO MARGARET; LARRY L. HINES, TRUSTEE of V.P. LUNDQUIST TRUST; WILLIAM J. O’BRIEN, Jr.; VENTURA PACIFIC CAPITAL I; VENTURA COMMUNITY COLLEGE DISTRICT; VENTURA PACIFIC CAPITAL IV; SUNSHINE RANCH; and DOES 1-10, inclusive,

Real Parties in Interest.

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Case No. SC 021825

 

 

 

PLAINTIFF’S

OPENING TRIAL BRIEF

 

 

 

 

Trial Date: June 24, 1999

Time: 1:30 p.m.

Ctrm: S-5

INTRODUCTION

Like an apparition, one document will haunt virtually every aspect of the sphere of influence expansion and annexation proceedings presently under challenge before the Court. At first appearing to be of substance, upon cursory inspection the document reveals itself as nothing but a gossamer pretender. The document, Resolution 98-1487, is impressively titled:

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, APPROVING GENERAL PLAN AMENDMENT NO. 93-1; SPECIFIC PLAN NO. 93-1/ SPECIFIC PLAN 8 – HIDDEN CREEK RANCH SPECIFIC PLAN; ADOPTING A MITIGATION MONITORING PROGRAM; ADOPTING A STATEMENT OF OVERRIDING CONSIDERATIONS FOR SPECIFIC PLAN 93-1/ SPECIFIC PLAN 8 – THE HIDDEN CREEK RANCH PROJECT (APPLICANT: HIDDEN CREEK RANCH PARTNERS.)

But its substance, wraith-like, disappears:

Section 11: This Resolution shall not become effective until the date that both the Ordinance adopting zoning and the ordinance adopting a Development Agreement between the City of Moorpark and Hidden Creek Ranch Partners shall become effective.

Although the Resolution is by its very terms contingent, all of the actions of the respective agencies, the City of Moorpark, and the Local Agency Formation Commission, pursuant to CEQA and Cortese-Knox that are before the Court today relied, in whole or in part, upon the efficacy of the measure as though it were not contingent, but accomplished.

Certainly, the agencies expected the contingencies to be fulfilled, but they never had any basis – any substantial evidence – that they had been fulfilled. Expectations are ephemeral evidence. Neither an Ordinance adopting zoning nor an ordinance adopting a Development Agreement between the City of Moorpark and Hidden Creek Ranch Partners was ever submitted to LAFCO.

More importantly, LAFCO and the City knew that the contingency of a development agreement had not occurred. To this date it still has not occurred.

Nonetheless, the agencies proceeded as though the hearings were a seance, where the decision-makers through the delirium induced by the dollars to be derived from development could delude themselves into believing the phantasm was fact.

To wend our way through this house of horrors, this brief will attempt to obtain guidance by first reviewing an historical perspective taken from the Record, and then to address the two major decisions under scrutiny, the Sphere of Influence Amendment of September 19, 1998, and the Annexation Decision of November 4, 1998, both with reference to the legal duties under the California Environmental Quality Act (CEQA) and the Cortese-Knox Local Government Reorganization Act (Cortese-Knox).

FACTUAL BACKGROUND

In 1991, the City of Moorpark (The City) determined that it would entertain development proposals for an area outside of the City limits. The City undertook a very general Environmental Impact Report, completing its CEQA requirements of a mitigation monitoring plan and a statement of overriding considerations, and ultimately amending its Land Use Element to focus on one area outside of the City, comprising approximately 4,321 acres. That area, referred to as "Specific Plan Area 8", now variously known as the Messenger Project, the Hidden Creek Ranch, or just "SP8". is identified at RWP; Vol. 2, pgs. 329 and 561. Of more than just passing interest, the 1992 EIR recognized that by amending the General Plan’s Land Use and Circulation elements, inherent internal inconsistencies with other elements of the General Plan were being created, by definition a significant impact needing attention. CEQA Guidelines § 15125(d); CEQA Guidelines App. "G", subd.(a). The mitigation monitoring program, attempting to address that concern, set out specific dates by which those inconsistencies would be obviated. See, RWP; Vol. 6, pg. 1547; see also RWP; Vol. 9, pg. 2410.

For the next 6 years, the City considered the proposals to develop SP8. The City ultimately decided that it wanted to pursue the development with HCR, and an environmental impact report for the specific project was undertaken, being certified in January, 1998. The development could not be approved, however, until the sphere of influence was amended and annexation of the area to the City of Moorpark was approved by LAFCO.

In the meantime, however, the local community organizations opposed to the project had created an alliance with a county-wide organization attempting to confine cities within more restrictive boundaries than proposed for this project, called SOAR. SOAR posed a real danger to the project, and the City and HCR made great effort to have the project approved and all of its entitlements vest before the SOAR proposed urban limit line, "City Urban Restriction Boundary" (CURB), could become law. RWP; Vol. 6, pg. 1483. In no small measure, the haste engendered by the fear of SOAR is probably the source of many errors that now have substantial legal consequences for the City, LAFCO and Real Parties.

The following dates and events have significance:

LEGAL ARGUMENT

I. LAFCO’s RESPONSIBILITIES UNDER CORTESE-KNOX

A. ENABLING LEGISLATION.

Local Agency Formation Commissions, "LAFCOs" are the spawn of the Knox-Nisbet Act of 1965, repealed and replaced by the Cortese-Knox Local Gov. Reorganization Act. Gov. Code 56000 et seq. Each LAFCO is composed, at least, of two officials from county government, two officials from city government, and an appointed member representing the general public. Gov. Code § 56325. Each county has a LAFCO; Ventura County’s is called the Ventura Local Agency Formation Commission (hereinafter "LAFCO").

    1. FUNCTION.

      2. LAFCOs were created by the Legislature to "establish policies and exercise its powers pursuant to this part in a manner that encourages and provides planned, well ordered, efficient urban development patterns with appropriate consideration of preserving open-space lands within those patterns." Gov. Code §56300. All decisions made by LAFCO must conform to Gov. Code §56301 which provides:

      "Among the purposes of [LAFCO] are the discouragement of urban sprawl and the encouragement of the orderly formation and development of local agencies based upon local conditions and circumstances. One of the objects of [LAFCO] is to make studies and to obtain and furnish information which will contribute to the logical and reasonable development of local agencies . . ."

      LAFCO has two primary functions by which it is to achieve that purpose. First, LAFCO is vested with the authority to "develop and determine the sphere of influence of each local governmental agency within the county." Gov.Code § 56425(a). LAFCO may also amend or revise an adopted sphere of influence. Gov. Code §§ 56427 and 56428. A sphere of influence is a theoretical "probable boundary line" for the City. Gov.Code §56076.

      Second, LAFCO has the authority to permit the annexation of land into a city’s jurisdiction consistent with adopted spheres of influence. Gov. Code § 56375. All actions taken by LAFCO must conform to the purposes of its enabling statute enunciated in Gov. Code §§ 56300 and 56301 and any statutory requirements applicable to sphere of influence determinations or annexations.

      Furthermore, LAFCO has adopted general policies and written standards in the Commissioner’s Handbook (Handbook) [a certified copy of the Handbook is attached hereto and filed herewith as Exhibit "A"] for making sphere of influence determinations and analyzing annexation proposals.

    LAFCO must comply with procedures or standards it adopts. See McBail & Co. v. Solano County Local Agency Formation Commission (1998) 62 Cal.App.4th 1223, 1228, and, Resource Defense Fund v. Local Agency Formation Commission of Santa Cruz (1983) 138 Cal.App.3d 987, 993

    C. STANDARD OF REVIEW UNDER CORTESE-KNOX.

    LAFCO decisions are quasi-legislative in nature and judicial review of those decisions is by ordinary mandamus under Code of Civil Procedure § 1085. City of Santa Clara v. Local Agency Formation Commission (1983) 139 Cal.App.3d 923, 927. The applicable standard of review is found in Gov. Code § 56107 which recognizes the judiciary's authority to independently review a LAFCO decision. McBail supra at 1228. The statute, in relevant part, provides:

    "All determinations made by [LAFCO] under, and pursuant to, this division shall be final and conclusive in the absence of fraud or prejudicial abuse of discretion.

    Prejudicial abuse of discretion is established if the court finds that any determination of [LAFCO] or a legislative body was not supported by substantial evidence in light of the whole record." (Emphasis added). Gov. Code § 56107.

    The substantial evidence test does not exist in a vacuum; it serves as a substantive threshold for public agency decision-making, and it is enhanced by the requirement of findings. As the California Supreme Court stated:

    "[r]equiring an administrative agency to articulate publicly its reasons for adopting a particular order, rule, regulation, or policy induces agency action that is reasonable, rather than arbitrary, capricious, or lacking in evidentiary support . . . [B]y publicizing the policies, considerations and facts that the agency finds significant, the agency introduces an element of predictability into the administrative process. This enables the regulated public to anticipate agency action and to shape its conduct accordingly. [citations omitted]. . . [R]equiring an agency to justify its orders, rules, regulations, and policies stimulates public confidence in agency actions by promoting both the reality and appearance of rational decisionmaking in Gov.." California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 212.

    Thus, a sphere of influence amendment or annexation approved by LAFCO cannot be upheld if it is not supported by substantial evidence in the record, or if the record fails to reveal any cognitive reasoning to support the decision. McBail, supra, at 1228. Furthermore, "[a] court must ensure that an agency has adequately considered all relevant factors, the choice made, and the purposes of the enabling statute." Id. (citing California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 212).

    Here, the Court is called upon to measure not only the substantiality of the evidence, but whether the evidence even exists. LAFCO, for the SP8 issues, had a tendency to rely on material that had form, but no substance.

    II. THE AGENCIES’ RESPONSIBILITIES UNDER CEQA

  1. CEQA GENERALLY.

    2. The California Environmental Quality Act, "CEQA", Pub.Res.Code §21000, et seq., is conceived to require public agencies to document and consider the environmental implications of their actions. Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 246, 254-256. To effectuate this goal, "CEQA contains substantive provisions with which agencies must comply." Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 41. These provisions must be construed so "as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." Friends of Mammoth supra 8 Cal.3d at 262.

    CEQA has three major procedural components. First, the "Pre-EIR" stage, including "initial study" to determine whether an EIR is necessary. CEQA Guidelines §§15060, 15063, 15102, 15365. A Notice of Preparation "NOP" is circulated if it is. CEQA Guidelines §§15082, 15375.

    Next, the Environmental Impact Report is prepared, with full public participation through comment on drafts and response. Pub.Res.Code §21100, 21091(d)(2).

    Finally, the "post-EIR" procedures occur. Those include requires findings; Pub. Res. Code §21081(a); CEQA Guidelines §§ 15091, 15096(h), and 15273; a mitigation reporting or monitoring program; Pub. Res. Code §§ 21081.6(a)(1), 21081.7; and, for any unmitigated significant environmental impacts identified in the EIR, a statement of overriding considerations; Pub. Res. Code §21081(b); CEQA Guidelines § 15093. The EIR is an informational document that gives an agency the basis to make findings regarding the significant impacts a proposed project may engender. Sierra Club v. State Board of Forestry (1994) 7 Cal.4th 1215, 1233. Many of those impacts can be mitigated, but a program is required to ensure that the mitigation measures are carried out. Pub. Res. Code § 21081.6(a)(1). And, surprising to many, even if it would mean catastrophic environmental impacts, an agency may approve a project if it determines in its discretion that the public policy benefits outweigh the impact on the environment. That determination is articulated through the "Statement of Overriding Considerations." Pub. Res. Code § 21081(b); CEQA Guidelines § 15093.

    With findings, a mitigation monitoring program and a statement of overriding considerations the public is assured the agency complied with the law by considering the environmental impacts. Lacking such documentation, there is no such assurance, and any approval in their absence is without legal foundation.

    This sentiment has been echoed by the Court of Appeals.

    "[w]hen a project is approved that will significantly affect the environment, CEQA places the burden on the approving agency to affirmatively show that it has considered the identified means of lessening or avoiding the project’s significant effects and to explain its decision allowing those adverse changes to occur." Village of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1034 (in accordance with City of Poway v. City of San Diego (1984) 155 Cal.App.3d 1037).

    Otherwise, "[t]he writing of a perfect EIR becomes a futile action if that EIR is not adequately considered by the public agency responsible for approving the project. Id.

    It is the missing post-EIR procedural assurances that most egregiously affect this case.

  2. LEAD/RESPONSIBLE AGENCIES.

    3. Making an imminently sensible distinction, the CEQA Guidelines avoid redundant EIR preparations by distinguishing between a "Lead" agency, which must prepare the EIR, and a "Responsible" agency which relied upon it.

    Where a project is to be carried out or approved by more than one public agency, one public agency shall be responsible for preparing an EIR or Negative Declaration for the project. This agency shall be called the Lead Agency. CEQA Guidelines §15050(a).

    Here, because the project required two agencies, they worked in concert, the City taking the role of the Lead Agency, and LAFCO acting as the Responsible Agency. Once the EIR was prepared and certified, however, each agency had an independent duty to exercise its respective discretion with respect to the "post-EIR" requirements.

    After an EIR has been certified by a lead agency, as was done here, see RWP; Vol. 3, pg. 603, LAFCO as a responsible agency was required to exercise its independent judgment in deciding to approve or disapprove a project.

    "(a) General. A responsible agency complies with CEQA by considering the EIR or negative declaration prepared by the lead agency and by reaching its own conclusions on whether and how to approve the project involved.. . ." CEQA Guidelines § 15096.

     

    Additionally, a responsible agency must make findings for each significant environmental effect of the project. CEQA Guidelines § 15096(h). Responsible agencies cannot rely on a lead agency’s findings, but must make their own. Resource Defense Fund v. Local Agency Formation Commission of Santa Cruz County (1987) 191 Cal.App.3d 886, 896. To be legally adequate, findings must have three required elements; (1) the agency must make the ultimate finding called for in Pub. Res. Code § 21081; (2) each finding must be supported by substantial evidence in the record; and (3) the agency must present some explanation to supply the logical step between the ultimate finding and the facts in the record. CEQA Guidelines § 15091. Conclusory statements are inadequate. Village Laguna of Laguna Beach v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1034-1035.

    And, LAFCO was required to adopt a mitigation monitoring program to mitigate or avoid significant environmental effects. CEQA Guidelines § 15096(g); see also Remy, Thomas, Moose and Manley, Guide to the Environmental Quality Act (CEQA) (1996, Ninth Ed.) Ch. VIII, at pg. 207

    ("Thus, where a ‘responsible agency’ approves findings pursuant to section 21081, such a agency must adopt a reporting or monitoring program . . .").

    Finally, LAFCO, even though only a Responsible Agency was required to issue a statement of overriding considerations because it purported to approve the project despite its significant environmental effects. See CEQA Guidelines § 15093(b).

    Here, an EIR was done and LAFCO relied upon it, filing an "NOD", RWP; Vol. 4, 1128. See, also, Resolution of LAFCO, at pg. 1139, and particularly ¶(5) on pg. 1141. But, POOF! The findings, mitigation monitoring plan, and the statement of overriding considerations to which those documents refer are nonexistent. The spirit was willing, but . . . .

    / / /

    / / /

    III. THE SUBSTANTIVE APPROVALS WERE FLAWED.

  3. THE SPHERE OF INFLUENCE AMENDMENT FAILED TO COMPLY WITH EITHER CORTESE KNOX, OR CEQA.
    1. LAFCO Failed to Comply with Cortese Knox.

 

Greater sound and flurry of documents signifying less can scarcely be imagined. Occupying no less than 4 volumes, the application for the sphere of influence amendment, save the EIR, contained nothing of substance. Volume 1, Pg. 2 of the Record of Written Proceedings contains the list of the materials submitted to LAFCO for the Sphere of Influence Amendment, and a description of the format in which it was submitted. The most important document listed there is at Tab 6, "Resolution 98-1487 City Council of Moorpark Approving Specific Plan". There are 4 attachments to that Tab, lettered A-D. The documents attached there form the substantive basis of the application: Findings and Statement of Overriding Considerations; Mitigation Monitoring Program; General Plan Exhibits; and, most importantly, the reason for the application, the Hidden Creek Ranch Specific Plan.

Because 98-1487 was contingent, none of the documentation meant anything.

Perusing down the list of tabs on pg. 2, RWP; Vol. 1, Tab 6 meant that there was nothing to consider; Tab 7 was an Executive Summary of a Specific Plan that did not exist; and Tab 8 was of a Land Use Plan Map that had not been adopted. Volume 2, Tabs 9 and 10, was OK. It outlined the significant impacts of a proposed project for which there were no findings, no statements of overriding considerations, and no mitigation monitoring plan.

While the Land Use Element and the Circulation Element of the Moorpark General Plan, insufficient themselves, were submitted for the second hearing on the annexation (See RWP; Vol. 6, pg. 1584, indicating a submittal date of October 23, 1998), even they were not available to the Commission on September 19, 1998, the date of the hearing for the sphere of influence amendment.

Stripping away the documents disembodied by never-fulfilled contingencies, one is left with precious little. There is nothing of sufficient substance that would allow the Commission to make a determination about anything. The resolution approving the sphere amendment, set forth at RWP; Vol. 4, pg. 1139 recites, in typical boilerplate fashion:

Whereas the Commission heard, discussed and considered . . Spheres of Influence and applicable General and Specific Plans . . .

 

Query: "Precisely which Spheres of Influence, applicable General and Specific Plans were considered?"

And, addressing the findings at pg. 1140: (2) "the need for public facilities and services in the area are provided for in the Development Agreement approved by the City and the developer" and (3) "The future capacity and need for public services are provided for by the Development Agreement approved by the City and the developer" one can equally wonder, "Precisely which development agreement was that?"

Adding insult to absurdity, the Development Agreement was never even submitted to LAFCO. Even assuming it was valid, there was no way for LAFCO to determine whether it did any of the things it thought it did without having the document to review. Sleight of document is a new governmental approach.

Petitioner’s concern with LAFCOs procedures with respect to the Sphere Amendment foreshadows its concerns with LAFCO’s procedures with respect to the Annexation approval. But at least by the time of the Annexation hearings, the agencies had learned enough that they could scramble around and attempt to submit real, if ineffective documents. At the Sphere stage, however, there was nothing.

Petitioner invites the Court to consider the arguments, infra at 17. There, it is pointed out that 2 elements do not a General Plan make. But at least, at the annexation stage, they had two elements!

At the sphere stage, despite clear requirements that LAFCO consider General Plan consistency with respect to the Sphere amendment proposal, there were no elements of the General Plan presented. Clearly, LAFCO was relying upon the Specific Plan. But it didn’t exist, either.

At the sphere hearing speaker Francis indicated to the Commission that because of the contingency of 98-1487 what it was seeing is not what it was getting. ROP; pg.16:18-27. His comments were ignored.

Then, at the next hearing, the issue began to sink in. Counsel Klebaum recognized that without a General Plan update, there could be real inconsistencies between the existing (1992) land use element and the proposed development.

And since the General Plan and Specific Plan which the City of Moorpark relied upon in submitting this application are not effective until the development agreement is effective, the General Plan, Specific Plan and EIR on which the application is predicated cannot be relied upon. ROP; pg. 40:11-15.

But, nonetheless, Mr. Klebaum attempted to distinguish between the lack of a response to the same issue raised at the Sphere hearing in September with his then present advice regarding annexations:

With regard to the Sphere Amendment it is not legally required that the Commission consider General and Specific Plan consistency with the application. However, with regard to annexation, the law does require that the Commission consider that. ROP; pg. 43:27 — 44:3.

 

Executive Director Dowdy echoed those sentiments: "And that falls to any Application; They’re two separate and distinct items. As County Counsel has indicated, with different threshold of criteria required by Cortese-Knox." ROP; pg. 44:10-12.

But, the Handbook by which the Commissioners are to abide, holds the standards to be the same.

The following are the general policies and substantive standards that will apply to all LAFCo considerations of application for changes of organization or reorganizations and spheres of influence determinations. [emphasis added] [Handbook; pg. 20].

 

Those general policies are then applied to require internal consistency in the applicable agencies general plan:

For the purposes of this standard, the proposal shall be deemed consistent if the proposed use is consistent with the applicable General Plan designation and text, the applicable general plan is legally adequate and internally consistent, and the anticipated types of services to be provided are appropriate to the land use designated for the area. [Handbook, XV. C., pg. 22][emphasis added].

 

That LAFCO would want to establish such a level of inquiry at the Sphere stage is consistent with LAFCO’s apparent acknowledgment that annexations, as here, generally follow on the heels of sphere amendments. Accordingly, Sphere amendment requests receive heightened scrutiny:

Sphere of Influence amendments will ordinarily take longer to process than applications for change of organization or reorganization and will generally require more detailed information." [Handbook; pg. 27,"C"].

 

Violation of the Handbook created under the auspices of Cortese-Knox is a violation of Cortese-Knox. McBail, supra, 62 Cal.App.4th at pg. 1228.

The Handbook mandates that:

"[a]ny area to be considered for inclusion in an amended sphere of influence must be part of the requesting agency’s adopted general plan, and/or adopted specific area plan. General/Specific plan references must include policy identification in all of the seven (7) mandated elements, as required by Title 7, Chapter 65000 of the Gov. Code. HOWEVER, CONSISTENCY WITH AGENCY GENERAL PLANS DOES NOT GUARANTEE APPROVAL FOR A SPHERE OF INFLUENCE AMENDMENT BY LAFCO." [Handbook, XXIV at pg. 36, bolded emphasis added; caps in original].

The import of this provision is twofold. First, LAFCO was required to consider the policies identified in all seven elements of a general plan. Second, the Handbook indicates that LAFCO must make a determination that a city’s general and/or specific plan is consistent with the proposed sphere of influence amendment. Although general plan consistency will not guarantee sphere approval, it is a prerequisite for approval. One can surmise that no element of the General Plan was provided because the "and/or" clause allowed reliance on the Specific Plan. But, as has been clearly established, 98-1487 eliminated the Specific Plan. Shazzaam!

2. LAFCO’s Failure to Adopt Findings, a Mitigation Monitoring Program and a Statement of Overriding Considerations is a Violation of CEQA

Amendments to a sphere of influence must comply with CEQA. Gov. Code § 56428(b). The Handbook also requires that "the Sphere of Influence Plan [must be] accompanied by environmental documentation that complies with the requirements of CEQA." [Handbook; XXIII. B. pg 33].

The City, as the lead agency, submitted the 1998 EIR, for the sphere of influence amendment, as required by CEQA. RWP; Vol. 3, pg. 607. Petitioner does not challenge or contest the validity of the 1998 EIR. In fact, under Pub. Res. Code § 21167.3, as Real Parties repeatedly assert, LAFCO was required to assume that the 1998 EIR and its environmental analysis was valid. Rather, at issue here, is LAFCO’s blatant failure to fulfill its "Post-EIR" duties as "Responsible agency" after the 1998 EIR was certified.

In a classic instance of legerdemain, LAFCo purported to fulfill its responsibilities as a responsible agency: LAFCO’s "NOD" for the 1998 EIR, filed on September 21, 1998, RWP; Vol. 4, pg. 1128, states LAFCO "adopted Lead Agency’s Statements of Overriding Considerations and Mitigation Monitoring Program." Moreover, the resolution approving the sphere amendment asserts that LAFCO "adopts the lead agency’s findings of impact, mitigation measures, and statement of overriding considerations and makes a specific determination that the significant issues and mitigation measures as adopted by the lead agency adequately address the project." RWP; Vol. 4, pg. 1139-1141. Oops. Slippery devil is gone again. The lead agency didn’t adopt any and neither could LAFCO.

By unrefuted testimony LAFCO was informed that the development agreement upon which the house of cards was built had been submitted to a referendum:

"The City adopted a Development Agreement that would not become effective at least until Friday of this week. In fact, what has happened instead is the citizens of Moorpark stood up and said ‘it’s not becoming effective even then, until we as a City have an opportunity to vote on it.’ Yesterday afternoon at about 4 o’clock the citizens of Moorpark turned in a referendum that challenges the City Council action. . . ." ROP; pg. 16:10-16.

That testimony was corroborated by Dr. Roseann Mikos:

I would like to piggyback on what Mr. Francis said about the incompleteness of the application that you have before you. I won’t reiterate all the things that he said, but I support what he said because the day that we turned in the petition signatures to require a vote of the people for the development agreement froze the Hidden Creek project at this point in time. ROP; pg. 17:19-26.

 

It is sometimes contended that a referendum "undoes" an ordinance. Such a loose assertion is not technically correct. The ordinance, if submitted to a referendum election, is not effective until approved by the voters. That is, it is never "done" to be "undone" until the voters approve it .

Despite uncontradicted evidence that by virtue of the referendum on the Development Agreement Resolution 94-1487 was not legally effective, LAFCO approved the Moorpark Sphere of Influence Amendment on September 16, 1998. By this action, LAFCO violated CEQA by:

 

LAFCO’s wholesale violation of its duties as a "responsible agency" clearly establishes a prejudicial abuse of discretion for failing to comply with the procedures required by CEQA.

    1. LAFCO’S APPROVAL OF THE MOORPARK ANNEXATION OF SPECIFIC PLAN NO. 8 FAILED TO COMPLY WITH THE REQUIREMENTS OF CORTESE-KNOX AND CEQA
    1. Violation of Cortese-Knox Act

For purposes of this section it is important to recall that violations of standards set by an agency pursuant to statutory authority are tantamount to a violation of the statute.

/ / /

    1. Annexation Inconsistent With the Sphere is a Violation of Cortese Knox

The house of cards continues to tumble. Because LAFCO failed to properly adopt the Sphere Amendment, the annexation is not valid. According to statute and the Handbook, all Annexations must be consistent with the sphere. Gov. Code § 56375; Handbook, XXXB(1), at p. 40; City of Agoura Hills v. Local Agency Formation Commission of County of Los Angeles (1988) 198 Cal.App.3d 480, 490 ("Annexation . . . cannot be approved until LAFCO has established and duly considered spheres of influence.").

b) Consistent General Plan is Required for Compliance with Cortese Knox.

 

For annexation proposals, LAFCO is required to consider eight factors prescribed by Gov. Code § 56841. Most pertinent to this litigation is the requirement that LAFCO consider an annexation proposal’s "[c]onsistency with city or county general and specific general plans." Gov. Code § 56841(g);

Additionally, the Handbook requires that "[p]rior to consideration of the proposal by LAFCO, the governing body of the applicable planning jurisdiction shall advise LAFCO by resolution whether the proposal meets all applicable consistency requirements of state law, including internal consistency." [Handbook XV. D, pg 22]. The City of Moorpark did submit Moorpark City Council Resolution No. 98-1487, submitted with the application for annexation which stated:

"(4) That the General Plan Amendment is consistent with the City General Plan requirements and state law.

(5) Specific Plan 8/Specific Plan 93-1 is consistent with the requirements of California Gov. Code section 65450 et. seq." RWP; Vol. 1, pg. 152.

 

Unfortunately, that pesky Resolution 94-1487, was written in disappearing ink. Once the referendum came into play, it vanished.

Even if the resolution were sound, however, LAFCO had a duty to "independently determine consistency" and "require additional information if necessary, particularly where the proposal involves an amendment to the general plan" [Handbook; XV.D. pg. 22], efforts it never undertook. Because the Moorpark Annexation involved a general plan amendment and no "effective" resolution was ever submitted by the City of Moorpark, LAFCO was under a heightened duty to request the other missing elements of the City of Moorpark General Plan. It didn’t.

As the Court of Appeals stated in Resource Defense Fund v. Local Agency Formation Commission of Santa Cruz (1983) 138 Cal.App.3d 987, 992, "general plans serve as an essential planning tool to combat urban sprawl and provide well-planned, efficient, urban development patters, giving appropriate consideration to preserving prime agricultural and other open-space lands."

During the November 4, 1999 annexation hearing, LAFCO was advised by its own counsel, "[LAFCO] do[es] not review an entire General Plan to determine whether there are any internal inconsistencies within that General Plan." ROP; pg. 76: 12-14. The statement was incorrect.

On the contrary, the Handbook prohibits LAFCO from approving an annexation if it is inconsistent with a city's general plan.

"LAFCO will approve changes in organization and reorganization only if the proposal is consistent with the General Plan and relevant Specific Plans of the applicable planning jurisdiction." [Handbook; XV. at pg. 21] (Emphasis added).

The Handbook also provides:

"For purposes of this standard, the proposal shall be deemed consistent if the proposed use is consistent with the applicable General Plan designation and text, the applicable general plan is legally adequate and internally consistent, and the anticipated types of services to be provided are appropriate to the land use designated for the area." [Handbook; XV. at pg. 22].

Furthermore, LAFCO "shall retain jurisdiction to independently determine consistency and may require additional information if necessary, particularly where the proposal involves an amendment of the general plan of the applicable planning jurisdiction." [Handbook; pg. 22].

In summary, LAFCO must determine: (1) whether the proposed use is consistent with an applicable general plan designation and text; (2) whether the general plan is internally consistent; and (3) whether the anticipated types of services to be provided are appropriate to the land use designated for the area. Each of these determinations must be supported by substantial evidence in the record. Gov. Code § 56107.

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c) Access to Complete Plan is Necessary to Determine Consistency.

 

Of course, the effectiveness of Gov. Code § 56481(g) in achieving consistency between proposed annexations and a city's general plan is predicated upon LAFCO having a complete general plan to review and LAFCO actually reviewing the general plan.

A complete general plan includes a land use element, circulation element, housing element, conservation element, open space element, noise element and safety element. Gov. Code §65302. The elements of a general plan are like pieces of a puzzle that fit together to provide a complete picture of the current and future development of a city. The absence of any piece of the puzzle leaves a gaping hole in the picture and makes the general plan incomplete. It is for this reason that Gov. Code § 56841(g) requires LAFCO to consider consistency with a city's "general plan" as a whole. An individual element or elements of a general plan are not a "general plan."

Although Gov. Code § 56841(g) only requires LAFCO to "consider" an annexation proposal’s consistency with a city’s general plan, the adopted standards for evaluation of annexation proposals in the Handbook requires much more to satisfy the consistency requirement.

The RWP included only the Land Use Element and the Circulation Element of the General Plan. RWP; Vol. 6, pgs. 1585-1672. With only two elements out of a total of seven elements that make up a general plan, it was impossible for LAFCO to consider that the proposed annexation was consistent with the City General Plan. With only two out of a total of seven elements that make up a general plan, it was impossible for LAFCO to make the determination, as required by the Handbook, that the proposed annexation was consistent with the applicable General Plan designation and text. And finally, with only two elements out of a total of seven elements that make up a general plan, it was impossible for LAFCO to make the determination, as required by the Handbook, that the City of Moorpark General Plan was legally adequate and internally consistent.

In a comment more revealing than she probably intended, Commissioner Mikels observed:

". . .by the way, I do have the full Moorpark General Plan in my office, and probably am one of the two up here who have read the entire plan, and I don’t find internal inconsistencies in relation to the Commission." ROP; pg. 78:8-11.

If she had only shared her information the commission as a whole would have had the benefit of the entire plan, which, if her comments are to be believed, the commission had never seen, let alone, read.

And, despite Ms. Mikel’s comments, LAFCO knew, or should have known, that the proposal was inconsistent with other elements of the General Plan, not just because it was unrefutedly told so by public speakers, but because it was admitted by the City’s representative in a rambling double-speak response to the question by Commissioner Scott. ROP, pg. 72:1-17.

And, the 1992 EIR, submitted as part of the revised annexation application, noted that an update of the Land Use Element would result in inconsistencies between the Land Use Element and the remaining elements of the General Plan. The EIR called for updates of the remaining elements of the General Plan to achieve consistency with the Land Use Element . RWP; Vol. 6, pg. 1684-85; last para., pg. 1729.

The Mitigation Monitoring Program for the 1992 EIR, Exhibit "C" to Resolution 92-855, RWP; Vol. 6, pg. 1545; Vol.9, 2408, submitted as part of the revised, revised, annexation proposal, and which were purportedly adopted by LAFCO, established a timetable for updates of the remaining general plan elements. Specifically, "Mitigation No. 4", called for the update of the Noise Element by December 1992, the Open Space Element by June 1993, the Housing Element by June 1993, and the Safety Element to be updated in "conjunction with Specific Plan No. 8 preparation." RWP; Vol. 6, pg. 1547; Vol. 9, pg. 2410. Again, with unrefuted testimony, the Commission was informed that the critical update for the Open Space element (OSCAR in Moorpark parlance) had never been updated as promised. RWP; Vol. 6, pg.s 1578-1579.

LAFCO adopted the Mitigation Monitoring Program for the 1992 EIR, in resolution LAFCO 98-09, RWP 1275, ¶(5). Presumably, LAFCO, by adopting a mitigation measure understood the significant effect it was addressing. In this case, the mitigation measure was designed to address the fact there were inconsistencies in the General Plan. With uncanny foresight, then, LAFCO demanded by the mitigation measure to see that the inconsistencies in the General Plan are brought into consistency by at least 1993.

". . . as for the substantial evidence prong, it has been said that the determination of general plan consistency will be reversed only if, based on the evidence before the local governing body, ‘a reasonably person could not have

reached the same conclusion.’" Families Unafraid to Uphold Rural El Dorado County v. El Dorado County Bd. Of Sup’rs (1998) 62 Cal.App.4th 1332, 1338, citing No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 243.

Uncontradicted evidence was submitted to LAFCO indicating the a lack of important elements of the General Plan. But the evidence went further. It pointed out that if the Commission had the critical elements it would see internal inconsistencies precluding approval. No reasonable person could conclude that the General Plan was consistent without looking at it. If they had looked at it they would have seen what the EIR told them: The other elements of the General Plan are not consistent.

    1. CEQA Violations in the Annexation Process.

Reminiscent of a bad game of three card monte, the two agencies in this case determined that because the 98-1487 with respect to the 1998 EIR had failed them, they would shift EIRs and make the public and the Court guess what was going on. At various points in the record, they purport to rely upon the 1998 EIR; at other places the 1992 EIR; in some places, it is both. Callously flaunting the form of compliance, neither agency substantively complied with CEQA. The balance of this brief will dedicated to peeking under each shell. The court will learn that the game was a hoax from the beginning. The pea isn’t under any of them.

a) The City of Moorpark Violated CEQA by Using the 1992 EIR.

 

In a classic symbiotic relationship, the City operates as the Lead Agency, and LAFCO is the responsible agency. This portion of the brief analyzes the Lead Agencies defalcations with respect to its use of the 1992 EIR. LAFCO’s determination in reliance upon the 1992 EIR is necessarily infected if the pre-EIR or the post-EIR process is invalid. Here, both fail to withstand scrutiny.

Again, lest there be any confusion, it is not the EIR under attack. In this case, it is the "pre-EIR" steps that the City failed to undertake with respect to a new project. And, as will be seen, LAFCO’s post-EIR duties were likewise infirm.

The starting point for determining the scope of the environmental analysis and documentation in an EIR is the project description. "An accurate, stable project description is the sine qua non of an informative and legally sufficient EIR." County of Inyo v. Los Angeles (1977). The validity of the analysis of the significant effects on the environment, analysis of alternatives to the proposed project and the analysis of which significant effects can be mitigated and those for which a statement of overriding consideration is required is entirely predicated upon the project description.

"A curtailed or distorted project description may stultify the objectives of the reporting process. Only through an accurate view of the project may affected outsiders and public decision makers balance the proposal’s benefit against its environmental costs, consider mitigation measures, assess the advantage of terminating the proposal and weigh alternative in the balance." County of Inyo supra at 192-193.

It is for these very reasons, that an EIR and its accompanying project description must address the proposed project that is before the public agency for consideration. To require otherwise would eviscerate the "heart of CEQA" and permit the use of any EIR for any project. Unbelievably, this is exactly what the City did when it dusted of a dated 1992 EIR for the annexation regardless of the fact that a current 1998 and certified EIR for the Hidden Creek Ranch Project had already been prepared and submitted to LAFCO.

While 1991 EIR may be a valid document for the purposes for which it was intended, the Land Use Element and Circulation Element Update and Sphere of Influence study in 1992, the 1992 EIR did not discuss the City Project before LAFCO, nor did it contemplate in its own Project Description being used for annexation proceedings. RWP; Vol. 6, pg. 1681-2.

Certainly, a lead agency can only rely on a previously prepared and certified EIR for a later project, but only when the two projects are essentially the same.

(a) The lead agency may employ a single EIR to describe more than one project, if such projects are essentially the same in terms of environmental impact. Further, the lead agency may use an earlier EIR prepared in connection with an earlier project to apply to a later project, if the circumstances of the projects are essentially the same. Guidelines, § 15153. "Use of an EIR from an Earlier Project."

It is difficult to imagine that anyone could credibly argue that the "circumstances of the projects are essentially the same" But let us assume that they are. That determination and the EIR must be allowed to undergo the scrutiny afforded all initial determinations regarding whether an EIR is appropriate and the depth of the required analysis:

(1) The lead agency shall review the proposed project with an initial study, using incorporation by reference if necessary, to determine whether the EIR would adequately describe:

(A) The general environmental setting of the project,

(B) The significant environmental impacts of the project, and

(C) Alternatives and mitigation measures related to each significant effect.

(2) If the lead agency believes that the EIR would meet the requirements of Subsection (1), it shall provide public review as provided in Section 15087 stating that it plans to use the previously prepared EIR as the draft EIR for this project. Guidelines, § 15153. "Use of an EIR from an Earlier Project."

Many more detailed requirements regarding the contents of the notice for public review, necessity of comments and responses, etc. are contained in the Guidelines. But the gist of it all is that one can use an earlier EIR. But one must make it accessible to the public in a fashion that tells the public that it is going to be used for a purpose not previously contemplated, with all of the attendant EIR safeguards concerning circulation of the document, public comment and response. Additionally, It must tie together multiple EIR’s in a single format, something not even attempted, here.

CEQA Guidelines establish that an agency "may use an earlier EIR prepared in connection with an earlier project to apply to a later project, if the circumstances of the projects are essentially the same.... [H]owever, it must find that the environmental effects of the projects are similar enough to warrant the same treatment...." (Cal.Admin.Code, tit. 14, § 15068.)

* * *

. Assuming arguendo that respondents were entitled to rely on existing environmental documentation, at a very minimum they should have compiled "all the relevant environmental data into a single format report, a procedure which would facilitate both public input and the decision making process." (Russian Hill Improvement Assn. v. Board of Permit Appeals (1974) 44 Cal.App.3d 158, 168, 118 Cal.Rptr. 490; see also Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171-172, 217 Cal.Rptr. 893.) Emmington v. Solano County Redevelopment Agency (1987) Cal.App.3d 491, 501-502, 237 Cal.Rptr. 636, 643.

Of course, none of that was done. The 1992 EIR was thrown into the annexation process in desperation at the last hour as a subterfuge. Superficial cover for the pre-ordained decisions of public agencies are not among the stated statutory purposes of CEQA.

LAFCO’s decision, being predicated on the faulty Lead Agency approach, is flawed, as well.

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    1. LAFCO violated the post-EIR requirements of CEQA with respect to both EIRs.

 

It is late, time is short and page limits approach. So, it is sufficient to note the following.

The willing suspension of disbelief is not a good approach to governmental decisions. Here, only if one were willing to suspend all critical faculties could one reasonably accept that LAFCO meant to adopt the time warp necessary to achieve the mitigation measures for the 1992 EIR. Only if time really is a constant could we accept that mitigation measures will be adopted in the future that is now past.

Most problematically, however, there being no findings, no mitigation monitoring program, and no statements of overriding considerations for the major environmental impacts identified in the 1998 EIR sitting in front of LAFCO, the agency, the approval must fail. That is because LAFCO, as all public agencies, must address the environmental impacts presented to them. There were two sets of identified significant impacts. Compare, Vol. 3, pg. 627 through 641, with Vol. 6, pg. 1684 through 1697. Both sets must be addressed, precisely because, as Real Parties are wont to note, the EIRs are presumed valid. Pub.Res. Code §§21167.2 and 21167.3. They cannot be ignored.

LAFCO cannot attempt to use an old EIR’s findings, mitigation monitoring plan and statements of overriding considerations to stretch to cover the new and major impacts identified in a new EIR. They just don’t fit. Convenient compartmentalization doesn’t work, either. Both sets of impacts are revealed. Both must be addressed.

CONCLUSION

While there are smaller and more peripheral reasons that the Court should set aside the approval of the Sphere of Influence amendment, and the annexation addressed in this proceeding, fundamentally, the issues boil down to credibility in the process. The governmental pretense of the existence of substance by the mere appearance of procedure is an affront to the democratic process.

If agencies are allowed to pretend that whole general plans have been considered when they don’t have the elements before them; if they are allowed to pretend that resolutions that have not passed are to be treated as though they have; if they are allowed to shift EIRs at the last minute with no public review of the appropriateness of a dated EIR, post-date, pre-date or pretend date mitigations, stretch old post-EIR findings, mitigation monitoring plans and statements of overriding considerations to address newly detailed significant environmental impacts; if Casper is to be conceived as a corporal entity more real than his celluloid character, we have all been slimed.

Respectfully submitted.

May 10, 1999

___________________________

Richard L. Francis, Attorney for

Petitioner/Plaintiff