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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28INTRODUCTION 1. Petitioner, Endangered Habitats League, a California non-profit corporation, respectfully requests issuance of a peremptory writ of mandate setting aside the decision of the City of Murrieta (“City”) taken on or about May 1, 2012 to adopt a resolution establishing a policy regarding the City’s application of the Western Riverside County Multiple Species Habitat Conservation Plan (“MSHCP”) (“the Policy” o
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-2- PETITION FOR WRIT OF MANDATE
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INTRODUCTION
1. Petitioner, Endangered Habitats League, a California non-profit corporation,
respectfully requests issuance of a peremptory writ of mandate setting aside the
decision of the City of Murrieta (“City”) taken on or about May 1, 2012 to adopt a
resolution establishing a policy regarding the City’s application of the Western
Riverside County Multiple Species Habitat Conservation Plan (“MSHCP”) (“the
Policy” or “the Project”).
2. The Policy was adopted as a purported “clarification” of the conservation requirements
of the MSHCP as they relate to single-family homes and development of four parcels or
less on parcels of 30 acres or less located with Criteria Cell Areas under the MSHCP. In
practice, the Policy exempts parcels of 30 acres or less involving four parcels or less
from contributing to the critically-important land dedication requirements of the
MSHCP, and in so doing, creates biological and land use impacts that have not been
evaluated pursuant to CEQA. In fact, the City failed to conduct any CEQA review
whatsoever in connection with its adoption of the Policy.
3. Furthermore, the Policy undermines the effectiveness of the MSHCP as it relates to
conservation of lands. The MSHCP’s dedication requirements and provisions apply to
all development, albeit with significant exceptions for single-family homes on existing
parcels. The City unilaterally approved the Policy to excuse parcels of four or less on
30 acres or less—i.e., small subdivisions—from the Plan’s conservation requirements.
4. In essence, the City took away the mechanism whereby local jurisdictions, through the
land use development process, acquire reserve lands for the assembly of the MSHCP’s
overall conservation goals. Specifically, the MSHCP relies on the acquisition of over
41,000 acres of land through dedication of land as part of the local development review
process, but the Policy exempts subdivisions of four parcels or less on 30 acres or less
from any obligation to dedicate land. As the Policy applies to dozens of parcels
including a significant amount of undeveloped land in the City—lands specifically
identified as important for reserve assembly because of their biological value—the
-3- PETITION FOR WRIT OF MANDATE
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Policy has grave consequences in terms of environmental impacts as well as the
MSHCP’s conservation goals.
5. The MSHCP is a comprehensive, multi-jurisdictional Habitat Conservation Plan (HCP)
focusing on conservation of species and their associated habitats in Western Riverside
County. Multiple jurisdictions are signatories to the MSHCP including the City of
Murrieta. The MSHCP seeks to achieve its overall conservation goal of 500,000
reserve acres by the assembly of conservation lands. The MSHCP planning area
contains “Criteria Areas” representing the areas within which MSHCP Criteria will be
applied and from which 153,000 acres of new conservation will be achieved to
contribute toward assembly of the overall MSHCP Conservation Area. The City of
Murrieta has “Criteria Areas” within its jurisdiction.
6. In adopting the Policy which changes the manner in which the MSHCP is applied to
development projects, the City failed to make any findings under or otherwise subject
the Policy to the review provisions of California Environmental Quality Act (Public
Resources Code § 21000 et seq.) (CEQA).
7. The City violated the provisions of CEQA by failing to conduct CEQA review for the
Project when the Policy presents the reasonable possibility of direct and indirect
adverse environmental effects. The Project weakens the provisions of the MSHCP to
allow certain parcels with important biological resources to be excused from the
dedication or conservation requirements of the MSHCP, thereby resulting in land use
and biological impacts, among others.
8. Similarly, the Policy must be set aside because it is inconsistent with the City’s newly-
adopted General Plan 2035. The MSHCP and its Implementing Agreement require
local jurisdictions to amend their general plans to incorporate the MSHCP. The City
recently adopted a new general plan which purports to affirm its commitment to fully
implement the MSHCP. The Policy changes the manner in which the MSHCP is
applied to development projects and it is therefore contrary to the MSHCP and the
City’s General Plan.
-4- PETITION FOR WRIT OF MANDATE
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9. This Project, if allowed to stand, would significantly affect the environment.
10. By this verified Petition, Petitioner alleges the following:
PARTIES
11. Petitioner, Endangered Habitats League (EHL), is a California non-profit corporation
dedicated to the protection of the diverse ecosystems of Southern California and to
sensitive and sustainable land use for the benefit of all the region's inhabitants.
Petitioner has members living in Western Riverside County, and Petitioner’s members
use and enjoy the resources of Western Riverside County. Petitioner and its members
are directly, adversely, and irreparably harmed by the environmental harms associated
with the Policy until and unless this Court grants the relief prayed for in this Petition.
Petitioner’s members are beneficially interested in this action pursuant to Code Civ.
Proc. § 1086.
12. Respondent, City of Murrieta, is a local government agency charged with the authority
of regulating and administering land use and development within its territory in
compliance with the provisions of state law including CEQA. The City is the lead
agency for the Project and is therefore charged with the duty of ensuring compliance
with these applicable laws. The City is also a signatory to the MSHCP and the
MSHCP’s Implementing Agreement and is charged with compliance with its
provisions.
13. DOES 1 through 100 are individuals or entities that may have an ownership interest in
the property, were project applicants, or claim an interest in the Project approvals at the
subject of this lawsuit. Petitioner is unaware of the true names or capacities of the
Respondents or Real Parties in Interest identified herein under the fictitious names
DOES through 100 inclusive.
STATEMENT OF FACTS
The MSHCP Background
14. The 2004 Western Riverside County Multiple Species Habitat Conservation Plan
(MSHCP) is a comprehensive, multi-jurisdictional Habitat Conservation Plan (HCP)
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focusing on conservation of species and their associated habitats in Western Riverside
County. The overall goal of the Plan is to assemble 500,000 acres of conservation lands
over time and to protect 150 species. Lands comprising the conservation area will
consist of existing Conserved Lands, “Core Areas” (blocks of habitat) and “Linkages”
(lands between Core Areas to provide “live in” habitat for and promote movement of
species).
15. The MSHCP Plan Area encompasses approximately 1.26 million acres (1,966 square
miles); it includes all unincorporated Riverside County land west of the crest of the San
Jacinto Mountains to the Orange County line, as well as the jurisdictional areas of the
Cities of Temecula, Murrieta, Lake Elsinore, Canyon Lake, Norco, Corona, Riverside,
Moreno Valley, Banning, Beaumont, Calimesa, Perris, Hemet, and San Jacinto.
16. According to the MSHCP, it is one of the largest and most ambitious HCPs ever
attempted. The MSHCP describes that it covers multiple species and multiple habitats
within a diverse landscape, from urban centers to undeveloped foothills and montane
forests, all under multiple jurisdictions; it extends across many bioregions, including the
Santa Ana Mountains, Riverside Lowlands, San Jacinto Foothills, San Jacinto Mountains,
Agua Tibia Mountains, Desert Transition, and San Bernardino Mountains; and it provides
a coordinated MSHCP Conservation Area and implementation program to preserve
biological diversity and maintain the region's quality of life.
17. The MSHCP serves as an HCP pursuant to Section 10(a)(1)(B) of the federal Endangered
Species Act of 1973 (FESA), as well as a Natural Communities Conservation Plan
(NCCP) under the NCCP Act of 2001. The MSHCP allows participating jurisdictions to
authorize “Take” of plant and wildlife species identified within the Plan Area.
18. The MSHCP delineates a 310,000-acre “Criteria Area” which constitutes the area within
which the MSHCP Criteria will be applied and from which 153,000 acres of new
conservation will be achieved to contribute toward assembly of the overall MSHCP
Conservation Area.
19. MSHCP procedures and requirements are triggered by all discretionary actions by local
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jurisdictions.
20. As is relevant here, the MSHCP relies on the acquisition of over 41,000 acres of land for
conservation through dedication of land as part of the local development review process.
(MSHCP § 8.4.1)
21. Depending on a project’s location, requirements for MSHCP compliance vary. If a
project is located within a Criteria Area, MSHCP reserve assembly is required. Any
project within a Criteria Area requires review by the Western Riverside Regional
Conservation Authority (RCA) in the form of a Joint Project Review (JPR). The RCA is a
joint powers authority established to assist local Permitees with MSHCP implementation.
During the JPR, conservation requirements for a development project are identified.
22. Regardless of whether a project is within a Criteria Area, “Other Plan” requirements such
as compliance with the Riparian/Riverine Guidelines, species survey requirements, etc.
may apply.
23. A single family home or mobile home is not subject to MSHCP reserve assembly or
“Other Plan” requirements if it is to be built on an existing legal parcel. A single-family
home on an existing parcel is considered a “covered” activity and can be processed via
the Expedited Review Provision (EPR) of the MSHCP. (MSHCP § 7.3.2) To utilize the
ERP, the project must be located on the least environmentally sensitive portion of the
parcel, and a habitat assessment may be required to determine the project’s appropriate
location.
24. All other types of private development are subject to the provisions of the MSHCP. Land
use development for land use projects within the 310,000 acre MSHCP Criteria Area
requires compliance with the Property Owner Initiated Habitat Evaluation and
Acquisition Negotiation Strategy (HANS) and project level consistency with other
elements of the MSHCP.
25. Under the MSHCP, every subdivision application within a Criteria Area must be
reviewed by the City under the HANS program. The HANS program allows the City to
identify lands for conservations purposes. When appropriate lands are identified, the
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HANS program further enables the City to obtain a dedication of land through
negotiation with the landowner. The MSHCP provides that various incentives may be
available to the property owner in lieu of or in addition to monetary incentives in
exchange for a conveyance of property. (MSHCP § 6.1.1) These incentives include the
waiver or reduction of certain development fees, monetary compensation for entering into
an option agreement, fast track processing, density bonuses, clustering, and density
transfers. (MSHCP § 6.1.1)
26. The City of Murrieta approved the MSHCP on September 16, 2003 by Resolution No.
03-1245, and the City is a local Permittee under the MSHCP.
27. As a local Permittee, the City is responsible for ensuring that all development proposed is
consistent with the MSHCP dedication requirements and other provisions.
28. The MSHCP’s Implementing Agreement, to which the City is a party, requires local
jurisdictions to amend their general plan to implement the requirements of the MSHCP,
and to meet the local Reserve Assembly contribution obligations through the HANS
process for private development projects. (MSHCP § 6.1.1)
29. The City of Murrieta adopted a new general plan in 2011. The City’s General Plan 2035
purports to affirm its commitment to fully implement the MSHCP.
The City of Murrieta Adopts the Policy Implementing the MSHCP
30. On or about May 1, 2012, the City Council of the City of Murrieta voted to adopt a
resolution approving the “Murrieta Multiple Species Habitat Conservation Plan Policy”
(“the Policy”).
31. The Policy is described as one to “clarify” the provisions of the MSHCP as they apply
to development of four parcels or less on parcels of 30 acres or less in the City of
Murrieta.
32. The Policy, as proposed, stated that: It is the Policy of the City of Murrieta that development of individual single-family homes and residential parcels of twenty-acres of less that are located in MSHCP Criteria Cells can occur, subject to the following: A. Individual Single-Family Homes. Development of an individual single-family
home will follow the Expedited Review process as contemplated by the MSHCP, with development occurring on the least sensitive portions of the
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property and no dedication is required. B. Residential Parcel Maps. Residential parcel maps creating four parcels or less
a. Will not be required to dedicate property for Reserve Assembly conservation, but will be subject to MSHCP “other plan” requirements.
b. Will be required to provide dedications for purposes consistent with the types of dedications (e.g., street frontages, utilities, fault zones, etc.) required in other areas of the City.
c. Will be reviewed for compliance with all other local development regulations and state and federal laws, including the CEQA.
C. Conservation. If it is determined property is needed for conservation and owners are willing to negotiate, they will be referred to the Regional Conservation Authority (RCA) for acquisition negotiations through and appraisal and acquisition process that is consistent with accepted State and federal practices and consistent with the MSHCP.
33. Petitioner is informed, believes, and thereon alleges that the Policy was introduced as
one to “clarify” the provisions of the MSHCP as they relate to parcels of 20 acres or
less, but that the Policy was approved as applying to parcels of 30 acres or less as a
result of discussion at the City Council meeting.
34. Petitioner is informed, believes, and thereon alleges that the City through the adoption
of the Policy has excused dozens of parcels including a significant amount of
undeveloped land in the City from compliance with the MSHCP’s dedication
requirements and provisions.
35. The maintenance of this action is for the purpose of enforcing important public policies
of the State of California with respect to the protection of the environment under CEQA
and compliance with State and local planning law. The maintenance and prosecution of
this action will confer a substantial benefit upon the public by protecting the public
from environmental harms and other harms alleged in this Petition. Petitioner is acting
as a private attorney general to enforce these public policies and prevent such harm.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
36. On May 1, 2012, Petitioner submitted a detailed comment letter objecting to the
approval of the Policy and has exhausted all available administrative remedies for the
maintenance of this action. (Public Resources Code § 21177)
37. Petitioner has performed all conditions precedent to filing the action by complying with
the requirements of Public Resources Code § 21167.5, in notifying Respondent of the
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filing of this action (attached hereto as Exhibit “A”), and by complying with the
requirements of Public Resources Code § 21167.6, in notifying Respondent of
Petitioner’s election to prepare the record of Respondent proceedings in connection
with this action (attached hereto as Exhibit “B”).
FIRST CAUSE OF ACTION
(Writ of Mandate)
(Violation of CEQA.)
38. Petitioner hereby realleges and incorporates paragraphs 1 though 37.
39. One of the “basic purposes” of CEQA is to “inform governmental decision makers and
the public about the potential, significant environmental effects of proposed activities.”
(Cal. Code of Regulations Title 14, “State CEQA Guidelines” § 15002 (a)(1).)
40. CEQA applies to governmental actions to include activities directly undertaken by a
governmental agency. (State CEQA Guidelines § 15002 (b)(1).)
41. A lead agency must conduct a preliminary review to determine whether CEQA applies
to a particular activity. (State CEQA Guidelines §§ 15060, 15061; Davidon Homes v.
City of San Jose (1997) 54 Cal.App.4th 106, 116-117.)
42. CEQA applies to an activity deemed to be a “project”. Under CEQA, “The term
‘project’ has been interpreted to mean far more than the ordinary dictionary definition
of the term.” (State CEQA Guidelines § 15002 (d).) The term “project” is “given a
broad interpretation … to maximize protection of the environment.” (RiverWatch v.
Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1203.)
43. A “project” is defined as “the whole of an action, which has the potential for resulting
in either a direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment.” (State CEQA Guidelines § 15378 (a).)
44. Thus, in conducting the preliminary review, a lead agency considers whether an activity
is a project to the extent that it may have a direct or indirect effect on the environment.
(State CEQA Guidelines § 15378 (a).)
45. Indirect effects on the environment are those “caused by the project and are later in
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time or farther removed in distance, but are still reasonably foreseeable.” (State CEQA
Guidelines § 15358 (a)(2).)
46. If there is a reasonable possibility that a proposed project may have a significant direct
or indirect effect on the environment, the lead agency must prepare an initial study to
consider whether the project may have a significant effect on the environment. (Wildlife
Alive v. Chickering (1976) 18 Cal.3d 190, 206.)
47. Petitioner is informed, believes and thereon alleges that the City failed to conduct a
preliminary review in order to determine whether CEQA applied to the proposed
Policy.
48. Petitioner is informed, believes and thereon alleges that the City failed to make any
findings pursuant to CEQA in connection with its approval of the Policy.
49. Petitioner is informed, believes, and thereon alleges that the City failed to complete an
Initial Study to consider whether the Policy may have a significant effect on the
environment.
50. The Policy presents a reasonable possibility of significant direct and indirect
environmental effects in that, among other things, it exempts parcels of four or less on
30 acres or less in the City from complying with the land dedication requirements and
provisions of the MSHCP. This results in indirect land use and biological impacts that
have not been evaluated or mitigated pursuant to CEQA, among other impacts.
51. By failing to conduct CEQA review, by failing to make any findings pursuant to
CEQA, and by failing to prepare an Initial Study for the Policy, the City abused its
discretion and the Policy must be set aside. (Public Resources Code § 21168.5; Code of
Civil Procedure §§ 1085, 1094.5.)
SECOND CAUSE OF ACTION
(Writ of Mandate)
(The Policy is Inconsistent with the City’s General Plan 2035)
52. Petitioner hereby realleges and incorporates paragraphs 1 through 51.
53. The City of Murrieta is a signatory to the MSHCP and the MSHCP’s Implementing
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Agreement, and, as such, the City is required to comply with the local reserve assembly
obligations and other provisions set forth therein.
54. The MSHCP and its Implementing Agreement require local jurisdictions to amend their
general plan to implement the requirements of the MSHCP for public and private
development projects.
55. On July 19, 2011, the City adopted a new general plan (General Plan 2035) and certified
a Final Environmental Impact Report (EIR) for the general plan.
56. A general plan is a policy document required by the State of California that guides
development in the City. Under Government Code § 65300, each county and city shall
adopt a comprehensive, long-term general plan for the physical development of the
county or city.
57. Land use decisions in the City must be consistent with the general plan. (Families
Unafraid to Uphold Rural El Dorado County (1998) 62 Cal.App.4th 1332, 1336.)
58. The General Plan 2035 Final EIR states that it “includes goals and policies to ensure that
the City remains compliant with the [MSHCP] and Implementing Agreement.”
59. The General Plan 2035 Draft EIR provides that the City’s obligations under the MSHCP
include to “Meet the local Reserve Assembly contribution obligations through the
[HANS] for private development projects (MSHCP Section 6.1.1).”
60. The Policy exempts parcels of four or less on 30 acres or less from having to dedicate any
land for conservation, contrary to the MSHCP and the General Plan 2035.
61. By adopting the Policy which is inconsistent with the City’s General Plan 2035, the City
abused its discretion or otherwise failed to comply with its duties under the law for which
the Policy must be set aside. (Code Civ. Proc. §§ 1085, 1094.5.)
WHEREFORE, Petitioner prays for the following relief on all causes of action:
62. For the Court’s peremptory writ of mandate requiring Respondent City to set aside its
decision approving the Policy. (CCP §§ 1085, 1094.5).
63. For the Court’s peremptory writ of mandate requiring Respondent City to fully comply
with the requirements of CEQA prior to any future approval of the Policy.
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1 64. For the Court's peremptory writ of mandate requiring Respondent City to fully comply
2 with the requirements and policies of the City's General Plan prior to any reapproval of
3 the Policy.
4 65. For costs of this suit, including attorney's fees pursuant to Code Civ. Proc. § 1021.5.
66. For such other and further relief, including preliminary and permanent injunctive relief as
6 may be appropriate.
7
8 DATED: May 31, 2012 JOHNSON & SEDLACK
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12 Abigai A. roedling II Kimberly Foy
13 Attorneys for Petitioner EHL
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By:~~~~~~~~____________ Raymo
-12PETITION FOR WRIT OF MANDATE
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State of Califomia
County or Riverside
VERIFICATION
)
) SS.
)
I, the undersigned, certify and declare that I have read the foregoing Petition for Writ of
Mandate and know its contents. Jhe statement following the box checked is applicable.
( ) I am a party to this action. The matters stated in the document described above are
true of my own knowledge and belief except as to those matters stated on information and belief,
and a5 to .those matters I believe them to be true.
1am 0<> an officer () a partner ( ) a member ofENDA.1\1GERED HABITATS LEAGUE,
party to this action, and am authorized to make this verification for and on its behalf, and I make
this verification for that reason. I run informed and believe and on that ground allege that the
matters stated in the document described above are true.
I declare undar penalty of perjury of the laws of the State of California that the foregoing
is true and correct.
Dated: May ..sO ,2012
Verification
Exhibit A
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Exhibit "A"
Exhibit B
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Exhibit "B"
-1- NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD
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MICHAEL D. FITTS (SBN 145114) ENDANGERED HABITATS LEAGUE 702 Pearl Street Redondo Beach, CA 90277 (310) 316-5053
JOHNSON & SEDLACK Raymond W. Johnson SBN 192708 Abigail A. Broedling SBN 228087 Kimberly Foy SBN 26785 Camino Seco Temecula, CA 92590 Tel: 951-506-9925 Fax: 951-506-9725 Email: [email protected] Attorneys for Petitioner
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
ENDANGERED HABITATS LEAGUE, a California non-profit corporation,
Petitioner, vs.
CITY OF MURRIETA, Respondent and Real
Party in Interest, and DOES 1 through 100, inclusive, Respondents and Real
Parties in Interest.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
CASE NO.: ASSIGNED FOR ALL PURPOSES TO JUDGE: DEPARTMENT: ACTION FILED: PETITIONER’S NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD (Pub. Res. C. § 21167.6) CASE DESIGNATION: CEQA
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TO ALL PARTIES:
Pursuant to California Public Resources Code § 21167.6, Petitioner ENDANGERED
HABITATS LEAGUE hereby notifies Respondent CITY OF MURRIETA of Petitioner's
election to prepare the Administrative Record of proceedings relating to this action.
DATED: May 31, 2012 JOHNSON & SEDLACK
By:~~~~~~~~____________ Ra 0 W. Johnson Abigail A. Broedling Kimberly Foy Attorneys for Petitioner EHL
-1NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD