Case No. G045732

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HUNTINGTON BEACH NEIGHBORS (H.B. NEIGHBORS),

Petitioner and Appellant,

v.

THE CITY OF HUNTINGTON BEACH; HUNTINGTON BEACH CITY COUNCIL,

Respondents and Appellees.

,Appeal From The Orange County Superior Court Honorable Nancy Wieben Stock

COURT OF APPEAL-4TH DIST DIV 3

FILED

FEB 2 7 2012

Deputy Clerk ____ ~

Orange County Superior Court, 30-2009-00325686

APPELLANTS' OPENING BRIEF

GERAL YN L. SKAPIK, ESQ. MARK C. ALLEN III, ESQ.

SKAPIK LAW GROUP 250 W. First Street, Suite 330

Claremont, CA 91711 Tel: (909) 398-4404; Fax: (909) 398-1883

gskapik@skapiklaw .com mark@mcallen3 .com

Attorneys for Petitioner and Appellant HUNTINGTON BEACH NEIGHBORS

(H.B. NEIGHBORS)

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TO BE FILED IN THE COURT OF APPEAL APP-008

FOURTH APPELLATE DISTRICT, DIVISION THREE Court of Appeal Case Number:

COURT OF APPEAL, 0045732

n ATIORNEY OR PARTY WITHOUT ATIORNEY (Name, State Bar number, and address): Superior Court Case Number. Geralyn L. Skapik (SBN 145055)

30-2009-00325686 - SKAPIK LAW GROUP 250 W. First Street, Suite 330 FOR COURT USE ONLY

Claremont, CA 91711 TELEPHONE NO.: (909) 398-4404 FAX NO. (Optional): (909) 398-}883

E-MAIL ADDRESS (Optional): gskapik@skapiklaW.COill AnoRNEY FOR (NameJ: Petitioner/ Appellant, Huntington Beach Neighbors

APPELLANT/PETITIONER: HUNTINGTON BEACH NEIGHBORS

RESPONDENT/REAL PARTY IN INTEREST: CITY OF HUNTINGTON BEACH,

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): [l] INITIAL CERTIFICATE 0 SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.

·1. This form is being submitted on behalf of the following party (name): Huntington Beach Neighbors

2. a. [l] There are no interested entities or persons that must be listed in this certificate under rule 8.208.

0 b. 0 Interested entities or persons required to be listed under rule 8.208 are as follows:

(1)

(2)

(3)

(4)

Full name of interested entity or person

Nature of interest (Explain):

() (5)

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D Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: February 27, 2012

Geralyn L. Skapik, Esq. ~ '····· (TYPE OR PRINT NAME)

Fonn Approved for Optional Use Judicial Council of California

APP-008 [Rev. January 1, 2009] CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Page 1 of 1

Cal. Rules of Court, rules 8.208, 8.488 www.courtinfo.ca.gov

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STATEMENT OF APPEALABILITY

HB Neighbors ("Petitioners") appeal from the judgment and order

entered in this case on July 5, 2011. (CT 2:387)1 The judgment, which

disposes of all issues between the parties, is appealable under Code of Civil

Procedures, Section 904.1, subdivision (a)(l).

This appeal addresses the Environmental Impact Report ("EIR") for

the Specific Plan for the Downtown area (Downtown Specific Plan (DTSP)

Update or "Project") of the City of Huntington Beach. The new Specific

Plan, designed to update the existing Specific Plan, would allow much more

intense development of the beachside downtown area. A local citizens

group, Petitioner/Appellant Huntington Beach Neighbors (hereinafter

"Petitioners ·or Appellant"), challenged the Environmental Impact Report

that was used to justify the new Specific Plan. Appellants, and many others,

challenged the EIR on numerous bases, which are addressed more fully

below.

The gist of all the objections was that the EIR drastically understated

or ignored significant impacts, such as, traffic and parking, noise, cumulative

project impacts, and cultural impacts. Further, the certified EIR relied upon

and referenced documents that were never made available to the decision

maker or the public. In fact, these documents were never made available

until Respondents introduced them in the trial court proceedings, during the

hearing on the merits. After certifying the EIR, the City of Huntington Beach

("City" or "Respondent") adopted a Specific Plan with major changes that

were never discussed in the EIR and never subject to any public discussion,

review and analysis.

The City admits that the EIR understated traffic impacts and further

admits that the City Council adopted a Specific Plan that was different from

1 For purposes of this brief, references to Clerks Transcript will be "CT" followed by the Volume Number, colon, then by the Page Number ( CT _:_).

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any alternative discussed in the EIR. The City argued below that these

decisions were within the discretion of the agency. The trial court agreed

and this appeal followed.

QUESTIONS PRESENTED

1. May a Program EIR, refuse to consider identifiable and

quantifiable impacts of the proposed Project?

2. Where there is a major area of controversy regarding a

Proposed Project's impacts on traffic and parking, and noise, is it within the

City Council's discretion to certify an EIR that intentionally understates

these impacts and fails to analyze or address these impacts during the hours

of operation for the Proposed Project?

3. Where the analysis of an EIR is admittedly inadequate, may the

public agency "fix" the deficiency by providing the trial court judge, at the

trial court hearing on the merits, with documents that were not included in

the administrative record, not included in the EIR, were not made available

to the public and were never considered by the public or decision makers?

4. ·Where a public agency has adopted and certified an EIR, may

the agency adopt a project significantly different from any considered in the

EIR without further environmental review or opportunity for public

comment?

5. In order to exhaust its administrative remedies, were

Appellants required to orally restate comments previously raised in comment

letters by Appellants, the general public or by state officials at the public

hearing for the EIR?

6. Is the trial court's Written Statement of Decision deficient?

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TABLE OF CONTENTS

APPELLANTS' OPENING BRIEF

I.

II.

III.

IV.

v. VI.

Page(s)

STATEMENT OF FACTS ....................................................................... 1

A. PROJECT BACKGROUND ............................................................ 1

PROJECT SETTING ............................................................................... 2

CITY APPROVAL HISTORY ................................................................ 2

PROCEDURAL HISTORY ..................................................................... 3

STANDARD OF REVIEW ...................................................................... 3

QUESTIONS PRESENTED .................................................................... 7

QUESTION 1 .......................................................................................... 7

A. PROGRAM EIR .............................................................................. 7

QUESTION 2 .......................................................................................... 9

A. TRAFFIC ......................................................................................... 9

1.

2.

(a)

Weekday Traffic ................................................................... 9

Weekend Traffic ................................................................. 13

The EIR drafter acknowledges that peak pedestrian and

vehicular demand periods are summer weekends and

special events. [AR 8:405; AR 15:1722](CT 2:286) ..... 13

B. PARKING ...................................................................................... 16

1. Downtown Parking Master Plan ......................................... 17

2. The Kimley-Horn Parking Master Plan .............................. 19

3. In-Lieu Parking ................................................................... 20

(a) Current inventory, and the future in-lieu

Parking Program ............................................................ 20

C. NOISE ....................................................................................... 23

1

QUESTION 3. .. ..................................................................................... 25

C' A. SOLID WASTE ANALYSIS ........................................................ 25

1. ADMINISTRATIVE RECORD ......................................... 25

QUESTION 4. . ...................................................................................... 30

A. BUILDING HEIGHT AND BUILDING FOOTPRINT/

LOT SIZE ........................................................................... 30

QUESTION 5 ........................................................................................ 33

A. EXHAUSTION OF ADMINISTRATIVE REMEDIES .. ; ............ 33

1. Cumulative Effects .............................................................. 3 3

(a) Trial Court Ruling ............................................................... 33

(b) Cumulative Project Impacts ................................................ 3 6

c~ (c) Cumulative Traffic Section ................................................. 3 7

(d) Cultural/Performing Arts Center ("Performing Arts

Center") ......................................................................... 40

(! (e) Public Service ..................................................................... 41

QUESTION 6. . ...................................................................................... 42

A. FURTHER RULINGS REQUESTED ........................................... 42

1. Water Supply ...................................................................... 43

2. Hazards and Hazardous Waste ........................................... .43

3. Air Quality and Global Warming ...................................... .44

4. Incomplete Analysis of the No-Project Alternative ............ 44

5. Unreasonable Range and Description of Alternatives ........ 44

6. Cultural Resources .............................................................. 44

VII. CONCLUSION ...................................................................................... 4 7

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TABLE OF AUTHORITIES

Page(s) CALIFORNIA CASES

Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383 ................................................................................. 6

Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 ..................................................................... 5, 28, 39

Citizens ofGoleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 ("Goleta If') ...................................................................... 31

Communities for a Better Environment v. City of Richmond (20 1 0) 184 Cal.App.4th 70 ("Communities") ........................................................ 6

Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985 ("Corona-Norco") .................................................... 31

Dry Creek Citizens Coalition v. County ofTulare (1999) 70 Cal.App.4th 20 ....................................................................................... 5

Federation of Hillside and Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180 ............................................................................... 31

Koster v. County of San Joaquin (1996) 47 Cal.App.4 29, 38 .................................................................................... 8

Laurel Heights Improvement Association of San Francisco v. Regents of the Universities of California ( 1988) 47 Cal.3d 376 ("Laurel Heights!'') ........................................... .4, 7, 13, 40

Marriage of Sellers (2003) 110 CA4th 1007, 1010 .............................................................................. 43

Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 ................................................................................. 5

Reid v. Moskovitz (1989) 208 CA3d 29, 32 ....................................................................................... 43

Riverwatch v. Olivehain Municipal Water District (2009) 170 Cal.App.4th 1186 ................................................................................. 6

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Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715 ............................................................................ .-...... 4

Slavin v. Borinstein (1994) 25 CA4th 713, 718-719 ............................................................................ 43

Social Service Union, Local 535, SEIU, AFL-CIO v. County of Monterey (1989) 208 CA3d 676, 681.. ...................................................................... 43

Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.App.4th 412 ................................... :' ............................................. 5, 6

CALIFORNIA STATUTES

Cal.CodeRegs., Title 14, § 15152, subd. (b) ................................................... 7

OTHER STATUTES

Gov. Code,§§ 65300 ...................................................................................... 31

Pub. Res. Code§§ 21000-21177 .................................................... 3, 15, 27, 33

Pub. Res. Code§ 21002(a) ............................................................................. 25

Pub. Res. Code§ 21002.1 ........................................................................... 7, 25

Pub. Res. Code§ 21002.1(a) ............................................................................ 6

Pub. Resources Code § 21060 ........................................................................ 29

Pub. Res. Code§§ 21061, 21100(a) ................................................................ .4

Pub. Res. Code, § 21093, subd. (a) ................................................................... 8

Pub. Res.Code § 21066 ............................................................................. 34, 35

Pub. Res. Code § 211 OO(b )(1) ........................................................................ 15

Pub. Res. Code§ 21168.5 ................................................................................. 6

Pub. Res. Code§ 21177(a) ............................................................................. 33

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OTHER AUTHORITIES

CEQA Guidelines§ 15003(a) ........................................................................... 4

CEQA Guidelines § 15064.5(a)(2) .......................................................... .45, 46

CEQA Guidelines § 15064.5(a)(3) .......................................................... .45, 46

CEQA Guidelines§ 15126.6 ......................................................................... .44

CEQA Guideline§ 15150 ............................................................................... 29

CEQA Guidelines§ 15152 .............................................................................. 41

CEQA Guidelines§ 15152(b) ....................................................................... .41

CEQA Guidelines § 15152, subd. (c) ............................................................... 8

CEQA Guidelines§ 15168, subd. (a) ............................................................... 7

CEQA Guidelines§ 15355 ............................................... ~ ............................ 37

CEQA Guidelines§ 15358 (a)(1) ....................................................... 10, 11, 12

CEQA Guidelines§ 15358 (b) .......................... ; ...................................... 10, 11

CEQA Guidelines § 15385 ............................................................................... 8

CEQA Guidelines§ 15385, subd. (b) ............................................................... 8

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APPELLANTS' OPENING BRIEF

I. STATEMENT OF FACTS

A. PROJECT BACKGROUND

The Project site, Downtown Specific Plan area, consists of

approximately 336 acres in the traditional historic heart of the City. [AR

8: 152f (CT 1:135) The Downtown Specific Plan area ("Project Area")

extends from the intersection of Goldenwest Street with Pacific Coast

Highway and curves around the coastline, including the Huntington Beach

Pier, down to Beach Boulevard. [AR l:l](CT 1:135) The City has an area

of 28.5 miles, including 8.5 miles of coastline and is the home to

approximately 200,000 residents. [AR 8:152](CT1:135) Huntington Beach

has a variety of residential, commercial and recreational uses surrounding an

older Downtown core with a Municipal Pier at a focal point.

The Project area is being developed with a range of uses including

large scale visitors-serving commercial uses, hotels, offices, mixed-use and

neighborhood-serving commercial uses, and residential, as well as streets,

beach and pier. [AR 8:152](CT 1:13"5) The Downtown Specific Plan

boundaries have not changed since its initial adoption in 1983. Within the

existing DTSP are 11 districts, each with separate development standards

and permitted uses. [AR 8:157](CT 1 :135)

The Project will result in the potential for development of approx.

1,330,483 sq. ft. of additional retail, restaurant, office and visitor-serving

uses, as well as new residential development. [AR 24:4143](CT 1: 133) This

net new development does not include the development of the permitted

Pacific City Project, a 958,700 sq. ft. project. The construction of the DTSP

Update and Pacific City will increase the size of permitted development in

2 For purposes of this brief, references to the Administrative Record begins with "AR," followed by Tab Index Number, colon, and page number [" AR _: _"].

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the Downtown area by almost 3.75 times or 375%. [AR 24:4143](CT 1 :133)

This equates to a total of3,128,683 sq. ft. of net development in the

Downtown area. [AR 24:4143](CT 1:133) As noted below, implementation

of this Project will have numerous and substantial impacts on the

environment.

II. PROJECT SETTING

Downtown Huntington Beach experiences different issues depending

on the time of year. Peak season for Downtown is Memorial Day weekend

through Labor Day weekend, during which the City sees the highest volume

of visitors from tourists and residents. Weekends during the non-peak

season may also experience increased patronage. Weekdays during the non­

peak season show only moderate visitor volumes. [AR 8:158](CT 1:135)

Development within the DTSP areas are currently subject to several

City documents: the Downtown Specific Plan, the Huntington Beach Zoning

and Subdivision Ordinance, and the Huntington Beach Design Guidelines .

. The current DTSP also includes a Downtown Parking Master Plan. The

DTSP Update proposes to eliminate the Downtown Parking Master Plan

from the DTSP and incorporate revised standard into a new section of the

DTSP U:pdate. [AR 8:160](CT 1:136) The City approved elimination ofthe

Downtown Parking Master Plan because implementation of the DTSP

Update would grossly violate the Parking Master Plan. [AR 8:159](CT

1:136) Most ofthe changes to development standards in the proposed DTSP

Update are a result ofreconfiguration of 11 districts in the DTSP to 7

districts.

III. CITY APPROVAL HISTORY

On or about October 6, 2009, the Planning Commission certified the

EIR. On October 12,2009, the Planning Commission approved the CEQA

Findings of Facts in a Statement of Overriding Consideration. The decisions

were appealed to the City Council. [AR 25:4257-4259](CT 1:137)

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On November 2, 2009, Council denied the appeal of the Planning

Commission's decision. On November 6, 2009, the City filed a Notice of

Determination with the County Clerk. [AR 1:2](CT 1: 137) On November

16, 2009, the City Council voted to reconsider the Project. On January 19,

2010, the City Council reapproved the entitlements approved on November

2, 2009 with revisions. (CT 1:137)

IV. PROCEDURAL HISTORY

The Appellants timely filed their Petition and Complaint

("Complaint") on February 10, 2010. After extensive briefing, trial was held

on March 17, 2011 before Judge Wieben Stock. A Statement of Decision

was requested at the close of the trial. (CT1:242) At trial, the City sought to

"supplement" the Administrate Record to add other documents. The trial

court took all matters under submission. On May 5, 2011, the trial court

granted the City's request to supplement the administrative record and

denied Petitioners' writ of mandate (relying heavily on the City's late

submittal of documents). That same day, May 5, the trial court issued an

"Order on Petition for Writ of Mandate/Tentative Statement of Decision"

("Tentative SOD") citing CRC Sec. 3.1590(a)(c)(l). (CT 1:244)

Petitioners' filed objection to the Tentative SOD raising numerous

objections and pointing out deficiencies in SOD. (CT 2:259) These

objections include all the objections raised in this appeal. The trial court

never ruled on the Petitioners' objections, but ultimately adopted the

Tentative SOD as the final Statement of Decision ("SOD") without change

by Minute Order on June 27, 2011. (CT 2:370) After Entry of Judgment,

this appeal followed.

V. STANDARD OF REVIEW

In 1970, the California Environmental Quality Act (Pub. Res. Code

§§21000-21177, referred to as CEQA) was adopted. CEQA is one of

California's most comprehensive and important environmental laws ever to

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be adopted. CEQA applies to public decision-makers who carry out,

authorize or approve projects that could have an adverse effect on the

environment.

CEQA requires full disclosure of a project's significant environmental

effects so that decision-makers and the public are informed of the

consequences before the project is approved and to ensure that governmental

officials are held accountable for those consequences (Laurel Heights

Improvement Association of San Francisco v. Regents of the Universities of

California (1988) 47 Cal.3d 376, 392 ("Laurel Heights I"). Any public

agency proposing to carry out or approve a project that may have a

significant effect on the environment must prepare an Environmental Impact

Report or an EIR (Pub. Res. Code §§21061, 21100(a); CEQA Guidelines

§15003(a). Environmental protection is a guiding concept in interpreting

CEQA. "The foremost principle under CEQA is that the legislature intended

the Act to be interpreted in such a manner as to afford the fullest possible

protection to the environment within the reasonable scope of the statutory

· language." (Laurel Heights I, 47 CaL3d at 390.)

With this appeal, Petitioner seeks review of the City's actions and

approvals in conjunction with this Project. In reviewing a public agency's . ' .

CEQA determination under traditional mandamus or administrative

mandamus, a court must determine whether the agency prejudicially abused

its discretion. Abuse of discretion occurs when the agency has not

proceeded in a manner required by law or its decision that the EIR is

adequate is not supported by substantial evidence contained within the

administrative record prepared for the Project. (Santa Clarita Organization

·for Planning the Environment v. County of Los Angeles (2003) 106

Cal.App.4th 715.)

.· On the other hand, when the challenge is to an agency's failure to

proceed in the manner required by law, such as the failure to address a

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subject required to be covered in an EIR or to disclose information about a

project's environmental effects, the agency's decisions are not subject to

deference. (Vineyard Area Citizens for Responsible Growth v. City of

Rancho Cordova (2007) 40 Cal.App.4th 412, 435.) In review of these types

of matters, the court must "determine de novo whether the agency has

employed the correct procedures, 'scrupulously enforce[ing] all legislatively

mandated CEQA requirements'." (Ibid., quoting Citizens of Goleta Valley v.

Board of Supervisors (1990) 52 Cal.3d 553, 564 ("Goleta If').)

In reviewing whether the agency proceeded in the manner required by

CEQA, the court must determine whether the EIR is sufficient as an

informational document. (Dry Creek Citizens Coalition v. County of Tulare

(1999) 70 Cal.App.4th 20, 26.) "A prejudicial abuse of discretion occurs if

the failure to include relevant information precludes informed

decisionmaking and informed public participation, thereby thwarting the

statutory goals of the EIR Process." (Ibid.) When an agency fails to proceed

as required by CEQA, harmless error analysis is inapplicable. "The failure

to comply with the law subverts the purpose of CEQA if it omits material

necessary to informed decisiomnaking and informed public participation."

(Protect the Historic Amador .Waterways v. Amador Water Agency (2004)

116 Cal.App.4th 1099, 1106.)

Therefore, the degree of deference afforded the City's decisions

depends on the nature of the CEQA claim in question. "In evaluating an EIR

for CEQA compliance ... a reviewing court must adjust its scrutiny to the

nature of the alleged defect, depending on whether the claim is

predominantly one of the improper procedure or a dispute over the facts.''

(Vineyard Area Citizens, supra, 40 Cal.4th at 435; see also Bakersfield

Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th

1184, 1207-1208 [rejected argument that substantial evidence standard

applied to agency's failure to proceed as required by CEQA].)

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The law mandates that an environmental impact report identify the

significant effects a project will have on the environment, identify

alternatives to the·project, and indicate the manner in which those significant

effects can be mitig:ated or avoided (PRC §21002·.l(a)).

In reviewing an EIR, the· court must focus on adequacy, completeness

and a good faith effort at full disclosure {PRC §21168.5). In Communities

for a Better Environment v; City of Richmond (20 1 0) 184 Cal.App.4th 70

("Communities"), the Court held,

"On appeal, 'the existence of substantial evidence supporting the. ag~ncy' s. ultimate decision. on a disputed issue is not relevant when one is assessing: a violation· of the information

' disclo:Sur~ provision. of CEQA ·(Association oflrritated . · ·.JJ.es."idints v. County ofMadera(2003) 107 Cal.App.4th 1383,

1392). . . . .

If a rtnal environmental impact report (EIR) does not adeqiately appraise all interested parties of the true scope of the project for intelligent-weighing of the environmental· consequence.s of the project, informed decisionmaking caimot occur under CEQA and the final EIR is inadequate as a niatteroflaw. [citation]:Riverwatch v. Olivehain Municipal Water Districi (2009) 170 Cal.App.4th 1186, 1201 . (Riverwatch)." (emphais added) (Communities at 487.)

· An appellate court's review of the administrative record for legal error cmd substantial evidence in a CEQA case, as in other :mandamus cases,. is the same as the trial court's: the

· · · appellate court review's the agency's action, not the trial court's ··· decision; in that sense appellatejudicial review under CEQA is

4e.:~o:Vo." (Vineyard Are~ Citizens for Responsible Gr.owthv . . City of Rancho Cordova (2007) 7!-0 Cal.App.4th 412, 427 .)

. The EIR approved by City failed as arr informational document

because the EIR failed to adequately analyze the impacts the project would.

· ·. have_ -o~ the envirornnent and failed tq adequately address and discuss·

· alternatives. As more fully discussed below,-Huntington Beach City Council

("City") failed to analyze certain known Project impacts, thus violating

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CEQA, Public Resource Code §21 002.1. Because the City violated PRC

§21 002.1, the City failed to proceed in a manner required ·by law and thus

prejudicially abused its discretion when approving this Project.

VI. QUESTIONS PRESENTED

r QUESTION 1. May a Program EIR, refuse to consider

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identifiable and quantifiable impacts of the proposed

"project"?

A. PROGRAMEIR

The trial court ruled that because the DTSP Update is a program EIR,

citizens would be given another opportunity to evaluate future site projects

with a project EIR or environmental document. Ruling, page 3, lns.l0-13

(CT 2:394).

The Court cites Citizens of City of San Diego (2005) 134 Cal.App.4th

598 ("Creed'') to support this conclusion. In fact, the Creed case supports

Petitioners' position that since a program EIR has been prepared, sufficient

evaluation of the proposed projects impacts must occur at this stage. Creed·

holds that, "The program EIR should focus on the 'cumulative' or

'synergistic' impacts of the entire program" (emphasis added) (at pg. 608).

Further, pursuant Cal.Code Regs., tit. 14, §15152, subd.(b)

(hereinafter, CEQA Guidelines"),. "tiering" environmental review "does not

excuse the lead agency from adequately analyzing reasonably foreseeable

significant environmental effects of the project and does not justify deferring

such analysis to a later tier EIR or negative declaration." (emphasis added)

A program EIR, is "an EIR which may be prepared on a series of

actions that can be characterized as one large project" and are related in

specified ways. (CEQA Guidelines §15168, subd. (a).) Program EIR's are

commonly used in conjunction with the process of tiering. (Laurel Heights

Improvement Assn. v. Regents of University of California, (supra 47 Cal.3d,

at p. 399).) Tiering is "the coverage of general matters in broader EIRs (such

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as on general plans or policy statements) with subsequent narrower EIRs .... "

(CEQA Guidelines § 15385.) Tiering is proper "when it helps a public

agency to focus upon the issues ripe for decision at each level of

environmental review and in order to exclude duplicative analysis of

environmental effects examined in previous environmental impact reports."

(Pub. Resources Code, §21093, subd. (a); CEQA Guidelines §15385, subd.

(b).)

In addressing the appropriate amount of detail required at different

stages in the tiering process, the CEQA Guidelines state that "[w]here a lead

agency is using the tiering process in connection with an EIR for a large- ·

scale planning approval, such as a general plan or component thereof ... , the

development of detailed, site-specific information may not be feasible but

can be deferred, in many instances, until such time as the lead agency

prepares a future environmental document in connection with a project of a

more limited geographic scale, as long as deferral does not prevent

adequate identification of significant effects of the planning approval at

band." (CEQA Guidelines §15152, subd. (c).) (emphasis added)

The Legislature has found that "tiering is appropriate when it helps a public agency to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous environmental impact reports." (§21093, subd. (a).) A corollary to this rule is that if a challenge is made to the "first" step in decision making ... -such challenge must be made before the next step, or tier. (emphasis added) Koster v. County of San Joaquin (1996) 47 Cal.App.4 29,. 38.

Petitioners are challenging this action at this "first step," before the

next step or tier, as mandated by law. This first tier environmental document

is woefully deficient in that it fails to adequately analyze the effects this

Project will have on the environment, further the EIR fails as an

informational document, failing to inform the decision maker and the public

of the effects the Project will have on the environment.

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The City, as lead agency, is hiding behind the concept of"tiering" so

as to avoid adequate review of the impacts this Project will have on the

environment. The City cannot feign ignorance and hide behind a Program

EIR in attempt to bury the impact this DTSP Update will have on the

environment. The entire premise behind the Update is because the current

Specific Plan has outlived its purpose and can no longer support the

proposed increases in commercial, retail and visitor serving activities the

City intends to foist upon its citizenry. The City is aware that with the

development of approx. 1,330,483 sq. ft. of additional retail, restaurant,

office and visitor-serving uses, as well as new residential development [ AR

24:4143](CT 1:133), significant impacts will occur in the Project area.

As will be discussed in detail below, the Program EIR for the DTSP

Update fails on a multiple of fronts;· as an informational document, informing

the general public and decision makers of the environmental impacts

associated with this project; fails to adequately analyze reasonably

foreseeable significant environmental effects of the project; and, fails to

focus on the 'cumulative' or'synergistic' impacts ofthe entire program.

QUESTION 2: Where there is a major area of controversy

regarding a Proposed Project's impacts on traffic and

parking, and noise, is it within the City Council's discretion

to certify an EIR that intentionally understates these

impacts and fails to analyze or address these impacts

during the hours of operation for the Proposed Project?

A. TRAFFIC

1. . Weekday Traffic

The Trial Court's ruling addressing traffic concluded:

Not surprisingly, the (traffic) study looked to the morning and evening community patterns that residences would have to contend with and did so during the summer months due to the

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City's "proximity to the beach and its visitors-serving draw." AR 1721. There is nothing to suggest that the analyst's typical selection of peak commuting hours for City occupants was any different than those experienced by drivers throughout Southern California. (CT 2: 398)

When preparing an environmental document, the lead agency

examines the Project Description so it can adequately analyze the whole

action involved and evaluate the effects the Proposed Project will have on

the environment. Effects include the, "Direct or primary effects which are

caused by the project and occur at the same time and place." CEQA

Guidelines §15358 (a)(1). (emphasis added) "Effects analyzed under CEQA

must be related to a physical change." CEQA Guidelines §15358 (b)

(emphasis added). Analyzing "peak commuting hours for City occupants"

which hours are not different then those experienced by drivers throughout

Southern California, is not what CEQA is mandating must be analyzed.

Preparing a traffic analysis during hours that the Proposed Project will not be

operating is meaningless, will not disclose the traffic impacts will have on

the environment and violates the intent and purpose behind environmental

rev1ew.

The Traffic Study for the Propose Project was conducted mid-week

between the hours of7:00- 8:45a.m. and 4:00- 5:45p.m. [AR 14:782-827-

Traffic Count Data Sheets, Appendix A to the Traffic Study.](CT 2:263)

The data utilized in the Traffic Study analysis was based upon the

following assumption:

The Downtown Specific Plan Update project contemplates the potential for over 400,000 square feet of downtown development throughout the core district of the downtown specific plan area. Development is anticipated to take place on a number of key opportunity sites dispersed throughout the downtown area, some representing individual parcels, and some representing larger development areas. Project traffic will approach and depart the development areas via the existing downtown grid street system, similar to current traffic patterns.

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Project trip distribution assumptions for the project area were developed, based on select zone runs of the Huntington Beach Traffic Model (HBTM), and taking into account the proposed mix of uses and the location of area trip producers, such as residential population, tourist population, and employment areas. Trip assignment was conducted taking into account the multiple approach and departure opportunities provided by the downtown grid street system. [AR 14:746 emphasis added] (CT 2:263-4)

The assumption utilized to support the Traffic Study was incorrect.

The Project will result in the potential for development of approximately

1,330,483 sq. ft. of additional retail, restaurant, office and visitor-serving

uses, as well as new residential development [AR 24:4143], not 400,000

square feet as identified and evaluated in the Traffic Study. The number

used in the Traffic Study grossly underestimates (by approximately 900,000

sq. ft.), the potential net new development that will occur in the Downtown

area, thus grossly underestimating and misstating the potential impacts.

Further, the goal of the Project is to bring in additional retail,

restaurants, bars, office and other visitor-serving uses. [AR 24:4143] Given

that most of these visitor serving uses will not be open and operating and

therefore will not be drawing visitor to their establishments between

7:00a.m.- 8:45a.m., the traffic study's conclusions are misleading as it failed

to study the impacts this Proposed Project would have on the environment.

"Effects analyzed under CEQA must be related to a physical change."

CEQA Guidelines §15358(b) (emphasis added). The Program EIR failed to

study the "Direct or primary effects which are caused by the project and

occur at the same time and place." CEQA Guidelines§ 15358(a)(l)

(emphasis added). The Trial Court condoned the EIR drafters' choice to

study the traffic patterns during a time that would not be effected by the

Project.

The trial court went on to state, "There is nothing to suggest that the

analyst's typical selection of peak commuting hours for City occupants was

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any different than those experienced by drivers through Southern

California." (CT 2:398) This may have been an appropriate analysis if this

was a housing development project and the EIR drafters were evaluating the

effects of traffic impacts caused by the housing project during morning and

evening rush hour commuting times, when the homeowners are 1eaving for

and coming home from work. Selection and analysis of peak commuting

hours is not, however, the appropriate analysis, if one is studying the impacts

on traffic created by the operation of restaurants, bars and other visitor

serving activities as these uses are typically closed for business, except for

breakfast cafes which serve locals, and not operating during the morning

commuting hours of7:00a.m.-8:45a.m.

The purpose to the EIR is to evaluate the impacts that a proposed

projects will have on the environment, not to evaluate an environmental

baseline that will· not be affected by the project. Morning and evening

baseline traffic commutes will likely be unaffected by this project as there

will be little, if any, traffic generated by the project during the early morning

hours. So for the City to rely on an EIR that contains a traffic study,

analyzing traffic project impacts during a period of time where the project is

not operating, is an abuse of the agency's discretion as t~e EIR is illusory

and does not identify the, "[ d]irect or primary effects which are caused by

the project and occur at the same time and place." CEQA Guidelines

§15358(a)(l).

As stressed in Petitioners Brief is the traffic study should have been

conducted during times the project would be operating and drawing visitors

to the downtown area so as to identify and provide accurate information to

the decision makers and the public, as to the true traffic impacts this project

will have on the enviromnent.

By grossly underestimating the square footage of net new

development by approximately 900,000 square feet, and by failing to

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perform the traffic study during the time period the visitor serving

establishments will be operating and drawing the visitors to the downtown

area, the Traffic Study not only failed as an informational document, it

provided misleading data, significantly understating and underestimating the

impacts this project will have on the environment. The City must be

required to prepare a traffic study that does in fact identify the impacts this

project will have on the environment. So the lead agency and public will be

adequately informed.

2. Weekend Traffic

The trial court concluded that traffic impacts-were adequately

addressed because it analyzed weekday morning and evening commutes

during summer months. The Court's ruling did not address Petitioners

arguments relating to weekend traffic. As stated above, the Traffic Study

only analyzed morning and evening rush hour commutes, Monday thru

Friday. The EIR and Traffic Study failed to analyze and review the impacts

-this Project would have on weekend traffic.

The EIR drafter cannot pick and choose which impacts they will

evaluate and which impacts they ignore. The EIR and Lead Agency is

required to identify the significant impacts a proposed Project will have on

the environment. (Laurel Heights, supra, 47 Cal.3d at p. 392.)

(a) The EIR drafter acknowledges that peak pedestrian

and vehicular demand periods are summer

weekends and special events. [AR 8:405; AR

15:1722](CT 2:286)

The initial study identifies that Traffic/Transportation will have a

Potentially Significant Impact on the environment. [AR 9:488](CT 1 :282)

The EIR states:

1. Impact Criteria and Thresholds. _ Impacts result from implementation of the project would

be considered significant if the project would:

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• Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (e.g., result in a substantial increase in the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections." [AR 8:377](CT 2:284)

The EIR drafter acknowledges that peak pedestrian and vehicular

demand periods are summer weekends and special events. [AR 8:405;

AR 15:1722](CT 2:286, 287 & 288)

In addition, citizens at City Council meetings voiced their issue about

the large volume of people going to the beach on the weekend. [AR

43:553l](CT 2: 291) Citizens voiced concern during the public comment

period that 'during peak season, March through September weekends,

parking, traffic and transportation was overly taxed. "The area is majorly

impacted and detrimental to the experience ofresidents and visitors ... We

currently have problems on weekends and no solution for now or future plan.

(sic) [AR 9:536](CT 2:293).

Nowhere in the methodology cited by the City or in the EIR is there a

discussion as to why the City failed to analyze the effect this Project would

have on weekend traffic in the Downtown area. The City's traffic analysis

stops at 5:45p.m. Friday evening and resumes at 7:00a.m. Monday morning.

[AR 14:782-827](CT 2: 266) The traffic impacts this Project will have will

not cease at 5:45p.m. on Friday night and promptly resume again at 7:00a.m.

Monday morning.

The fact is the EIR is riddled with statements by the EIR drafter and

community voicing concerns about impacts that weekend traffic currently

has on baseline conditions within the Downtown area, especially during the

weekend summers. The EIR drafters acknowledge repeatedly that there is an

issue with Downtown weekend traffic yet failed to analyze issues.

Interestingly, summer weekend parking was analyzed. Given that cars have

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to drive to the Downtown area to park, it is perplexing why weekend traffic

impacts were blatantly ignored. Evaluating one impact relating to traffic (i.e.

parking) does not give the Lead Agency carte blanche to disregard other

known traffic impacts:

"The purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment." (PRC §21061.)

"The environmental impact report shall include a detailed statement setting forth all ofthe following: (1) all significant effects on the environment of the proposed project." (PRC §211 OO(b )(1 ). )

Though, the EIR drafters acknowledged the impacts that weekend

traffic currently has on the Downtown baseline conditions, the EIR never

analyzed how this Project would impact summer weekend traffic. The traffic

methodology never addressed why summer weekend traffic was ignored.

Nowhere in the legislative intent behind CEQA, the codes and the

regulations governing CEQA, nor case law does it state that impacts a

project will have on traffic is limited to weekday, peak commuter rush hour

review, and weekend traffic need not be evaluated, regardless of the type of

project being implemented. With its decision, the trial court is turning the

legislative intent behind CEQA on its head. The trial courts decision permits

the City to disregard the code, regulations, legislative intent and the laws

governing CEQA and allow a project to move forward without sufficient

information provided to the general public and decision makers so they can

evaluate the true environmental impacts attributed to this project.

Given that the EIR failed to include detailed information setting forth

the significant effects this proposed project would have on the environment, ..

as so mandated by PRC §21100(b)(l), the EIR failed to proceed in a manner

required by law and failed as an informational document.

The City abused its discretion in approving the EIR. The City should

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be mandated to comply with the law, the EIR certification be rescinded and

all approvals be set aside until the City adequately evaluates the impacts this

Project will have on summer weekend traffic.

B. PARKING

The trial court ruled that because the, "Petitioners cite to a single letter

written by Richard J. Plummer as evidence that the primary group inhibiting

the area of DTHB in the latter part of August is young people and so the

study is ineffective because during the study period they would have all left

the area to go back to school." (CT 2:398) The trial court then concluded,

"the proposed parking supply of 4508 spaces is supported by substantial

evidence." (CT 2:398)

Mr. Plummer's letter stated far more then the fact that young people

are headed back to school and therefore having a parking study at the end of

August, when the major population of people that frequent the beach are

back in school, is inadequate.

Mr. Plummer's letter also went into detail and elaborated on the

following issues:

1. New businesses in the Downtown area, such as the Strand mixed use and hotel development ofapprox. 221,744 sq. ft., has opened and occupancy has increased since August 2007. Parking is significantly in higher demand and the parking shortage has gotten worse. [AR 15:1812]

2. The Parking Study did not analyze building occupancy, a basic factor in most parking studies. Many DTHB buildings had significant vacancy that, upon stabilized occupancy, would significantly increase parking demand. [AR 15:1812]

Mr. Plummer was not alone voicing his concern over parking and the

current impacts facing the residents of Huntington Beach. A speaker voiced

concern over parking at the City Council Meeting dated November 16, 2009

by stating: "So every weekend, that's when we have our large volume of

people going to the beach. Uh, also they would have to compete with the

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restaurant and, urn bar patrons and you guys aren't going to give up your

parking lot yet. So therefore, that's where they're all going to try and park.

So these poor little old ladies and men are going to try to find parking and

worse then that they have to compete with the drunk drivers on Main Street."

[AR 45:5531](CT 2:291)

The City along with the trial court completely disregarded Mr.

Plummer's and others, parking concerns and issues and concluded that the

proposed parking plan would be adequate to address the impacted parking

situation. As set forth below, the City's analysis is not supported by

substantial evidence.

1. Downtown Parking Master Plan.

The current Parking Planning Document, the Downtown Parking

Master Plan, provided a strategic approach to parking for development in the

Downtown area. [AR 8:157-158] Currently the development thresholds

identified in the Downtown Parking Master Plan ("DPMP") have been met.

[AR 8:176] The DPMP is based upon a detailed block-by-block analysis of

land uses and development in the Downtown area. [ AR 8: 17 6] The existing

parking demand "greatly exceeds the parking capacity on summer, holidays

and special events," and "at-capacity" conditions occur during peak summer

days, particularly on weekends. [AR 8:413](CT 1:144)

Interestingly, now that the development threshold for the Downtown

area has been met, and the City intends to add an additional net new

Development in the amount of 1,330,483 sq. ft. [AR 24:4143], the City

proposed to eliminate the Downtown Parking Master Plan. The City

rationalized that this was done so as to "eliminate" the "cumbersome

implementation and monitoring" mandated by the DPMP. [ AR 8:17 6] The

City justified its action by claiming that elimination of the DPMP will allow

the City "to adopt a new strategy for parking." [ AR 8: 17 6] Note - the

DPMP was designed to accommodate a development threshold of715,000

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sq. ft. [AR 8:158](CT 1:144)

The EIR states, "the development thresholds identified in the

Downtown Parking Master Plan have been met." [ AR 8: 17 6] Though the

threshold has been met, the City now intends to not only add an additional

net new development of approx. 1,330,483 sq. ft. [AR 24:4143], the City's

new parking plan reduced the ratio of required parking per square foot of

gross floor area in the Downtown Core. [AR 8:176] How the City can now

claim that the reduction of parking space requirements for all development in

the area, including the addition ofapprox. 1,330,483 sq. ft. of net new

development, will not have an impact on parking is truly astonishing!

The City is aware that this proposed project will have gross

environmental impacts on parking that cannot be mitigated to a level of

insignificance if the DPMP was to remain in effect, so the City approved

elimination of the DPMP claiming now, that this Plan is too "cumbersome to

implement," even though the DPMP was adopted in 1995 [AR 8:176] and

not an issue for the past 15 years.

This is a prime example as to how the City is manipulating planning

documents in order to implement this Project. The City changed the

standard as reflected in the parking code requirements to justify this Project's

increased parking demands because any increase in parking demand, would

be deemed significant under the old DPMP as development thresholds have

been met. The Project will allow about 1,330,483 sq. ft. [AR 24:4143] plus

the addition of the permitted, yet to be constructed, Pacific City Project,

which amounts to approx. 958,700 sq. ft. of additional net new development

[AR 24:4143]. This massive growth is accompanied with the reduced ratio

of required parking per square foot of gross floor area, the elimination of on­

street parking along a portion of Main Street, and the reconfiguration of the

parking on 5th Street, which will result in a net loss of 50 on-street parking

spaces. [AR 8:176-177](CT 1:145) Yet, the City states this would, "not

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result in significant parking impacts." [AR 8:420] This conclusion is not

supportable. Again, manipulating Planning Documents to avoid threshold

impacts is an end run around CEQA and violates the intent and purpose

behind the implementation of The Act.

2 . The Kimley-Horn Parking Master Plan.

Section 4.12 of the EIR discusses the impacts to parking caused by the

proposed project. The Kimley-Hom's Parking Master Plan Study dated

March 2009 conducted the parking survey on August 18 and August 23,

2007. It should be noted that, the EIR consultants thought it wise to do

a Parking Study on a Saturday (August 18), but not conduct a weekend

traffic count?? [AR 8:413-414](CT 1:145) However, this 2 day Parking

Study does not adequately analyze the Downtown parking issues for the

following reasons:

a. As stated in Mr. Plummer's letter, the survey was conducted

0 during the second half of August 2007 after many students had

returned to school or were preparing for school. The primary

demographic group populating Downtown Huntington Beach

(_, ("DTHB") in summer is young people (15 to 25 years old).

[AR 15:1812]

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New businesses in the Downtown area, such as the Strand

mixed use and hotel development ofapprox. 221,744 sq. ft.,

has opened and occupancy has increased since August 2007.

Parking is significantly in higher demand. [AR 15:1812]

The Parking Study did not analyze building occupancy, a basic

factor in most parking studies. [AR 15:1812]

The Parking Study does not analyze the effects of certain

proposed projects (the Poseidon, Ocean Breeze, Edinger/Beach

Specific Plan, Performing Arts Center, and the Edison

Community Center Sports Complex) would have in the area

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given that, especially with the sports complex, it is uncertain

whether or not all parking will be within the Sports Complex

Facility. With respect to the Specific Plan for the

Edinger/Beach Corridor Study, a project within one mile of the

Project site, 874,600 sq. ft. of retail, 350 hotel rooms and

112,000 sq. ft. of office space will be added. [ AR 8: 189]

These projects will severely impact the parking in the

Downtown area. ( CT 1: 146)

3. In-Lieu Parking.

The in-lieu Parking Program identified in the DTSP Parking Section

does not adequately describe the number of outstanding in-lieu parking stalls

that the City of Huntington Beach would need to construct or the outstanding

fees needed to fund alternative parking facilities.

(a) Current inventory, and the future in-lieu Parking

Program.

The Parking Study conducted by Kimley-Hom ("KH Parking Study")

identifies that it is difficult to find parking 3 5 days per year and the actual

parking deficiency exists 15 days per year. [AR 8:420](CT 1:146) In

particular, ~he City found that the existing parking demands greatly exceed

the parking capacity during summer, holidays and special events. [AR

8:413]

With the addition of approx. 1,330,483 sq. ft. of net new development

and the proposed reduced ratio of required parking space per square foot of

gross floor area in the Downtown Core, demand for parking will increase

significantly. In fact, the KH Parking Study identifies a need for

approximately 300-400 additional off-site parking spaces. [AR 8:414]

Moreover, the Project proposes to completely eliminate the existing on-street

parking along Main Street from Pacific Coast Highway to Orange and to

reconfigure the parking on Fifth Street that will result in the net loss of 50

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on-street parking spaces. [AR 8:177](CT 1:147)

The increased parking demand will result in a significant, adverse

impact to parking in the Project area. To address this increased demand, the

EIR proposes to implement a number of mitigation measures, none of which

is guaranteed to alleviate the increased demand. The suggested mitigation

measures include the following: implementation of a valet program, adding

bicycle parking, constructing temporary parking lots, forming business to

business agreements, remote parking and shuttle service, apply for

conditional use permit, or payment of in-lieu fees. The EIR concluded that

there would be no significant adverse impacts to parking because parking is

required to meet the minimum code requirement. [AR 8:422] This is

misleading. The EIR fails to explain that the minimum code requirements

are being reduced to accommodate the significant parking demands this

Project will have. (CT 1:147)

Further, any particular development may elect to implement a

mitigation measure that will not result -in additional parking spaces. For

example, a developer could implement a valet service that would merely

shift the parking burden to other parking facilities in the Project area. A

developer can make a payment of in-lieu fees, rather than actually create

additional parking as part of the development. The EIR does not address

how the City will use the in-lieu fees to address the impacted parking

situation or if and where new parking lots will be constructed. ( CT 1: 14 7)

In addition, Section 4.12 of the EIR does not discuss the buses that

will be drawn to the Perfonning Arts Center to transport groups of visitors.

Buses require designated parking areas, which consumes significant amount

of available parking spaces. The impacts associated with designated bus

parking areas should have been analyzed in the EIR. (CT 1:148)

The discretionary implementation of mitigation measures is an

ineffective way to reduce the exorbitant and increasing demand for parking

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in the Project area.

It should be noted that after the trial court hearing on the merits but

before the entry of Judgment, the DTSP Update came before the California

Coastal Commission for approval for its Local Coastal Program Amendment

("LCPA"). Petitioners filed a Request for Judicial Notice of the Coastal

Commissions staff report dated June 3, 2011 recommending denial ofthe

LCPA as submitted. (CT 2:359-360) The trial court never ruled on

Petitioners Request for Judicial Notice.

Interestingly, the Coastal Commission staff came to the same

conclusion as Petitioners and also found that the proposed Parking

mitigations for the Project were inadequate.

"The proposed DSP would retain, and for certain categories of development, actually further reduce, the reduced parking ratios of the DPI\1P. However, the amount of future development would no longer be tied to the amount of parking available within the DPI\1P. Instead, new development would be required to provide the required parking spaces necessary to meet its parking demand. New development would be allowed to provide the required parking spaces in any combination of the following ways: on-site; through shared use agreements; through off-site/remote parking agreements; valet parking; valet and/or remote parking for special events during peak summer season; and by payment of an in-lieu fee. In addition, the proposed DSP identifies, but does not require a number of alternative means of transportation that could be applied within proposed District 1. The City asserts that these measures will also contribute to an overall decrease in parking demand.

The City feels that parking shortages will be avoided under the proposed scenario based on the same parking strategies and concepts that made the DPI\1P successful: shared market and off-set peak demands as well as the reduction in parking demand created by the provision of alternate transportation. Commission staff agrees that parking spaces to meet the full parking demand for new development are always necessary, or desirable. However,

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approval of the proposed DSP would result in even further reductions to already reduced parking standards, while none of the proposed alternate methods of transportation would be required to be implemented. As proposed, the alternate transportation methods are identified and their benefits described, but there is no trigger that would actually cause them to be implemented. Thus, development, with its related impacts to public access, would be allowed while the measures necessary to off-set the impacts may not be implemented. Therefore, staff is recommending denial o{the LCPA as submitted." (emphasis added.) (CT 2:359-360)

The Coastal Commission Staff acknowledged the same issued

Petitioners argued in their brief and during oral argument-there is no trigger

that would actually cause the parking mitigation measures to be implanted­

thus these mitigation measures are nothing more than a smokescreen.

c.

"A public agency must mitigate or avoid the significant environmental effects of a project that it carries out or approves if it is feasible to do so." (Pub. Resources Code, §21002.1, subd. (b); City o[Marina v. Board o[Trustees of California State University (2006) 39 Cal.4th 341, 359, 46 Cal.Rptr.3d 355, 138 P.3d 692 (City o[Marina).) Mitigation measure adopted by the agency must be fully enforceable. "A public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures .... " (Pub. Resources Code, §21081.6, subd. (b).) "Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments .... " (CEQA Guidelines, §15126.4, subd. (a)(2).) The agency must be able to find, based on substantial evidence, that the adopted mitigation measures are "required or incorporated into the project" and that those measures will "mitigate or avoid significant effects on the environment." (Pub. Resources Code, §21081.6, subds. (a)(l),(b).) Tracy First v. City of Tracy (2009), 177 Cal.App.4th 912, 937 (emphasis added).

NOISE

The trial court dismissed Petitioners arguments relating to Noise

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Impacts concluding that Petitioners failed to exhaust their administrative

remedies as the issue was not properly raised at the administrative level or

were inadequately raise. (CT 2:393) This is an incorrect statement.

The Noise Issue was exhausted and clearly and articulately raised in a

comment letter dated September 2, 2009, by Richard Plummer who

specifically asked, "the impact of noise upon this neighborhood was not

adequately address in the DTSP or EIR. The Noise Survey was conducted

on a non-peak, mid-weekday at lunchtime in early December 2008. No

noise monitors were located in the first three blocks of Main Street. [AR

15:1813](CT 2:329-333)

In fact, the City was quite aware of this issue and responded to Mr.

Plummer by stating that the "noise measurements that were performed are·

intended to be a 'snapshot survey of typical noise levels, not a

comprehensive measurement effort.' These measurements are intended to

give an idea of the overall existing noise levels at the specified area. Noise

levels would be expected to vary depending upon a season and the specific

type time of interest." [See AR 15:1859](CT 2:336) The Petitioners clearly

exhausted this issue; the City was aware that the noise impacts would be

significant and prepared a woefully inadequate noise study.

Noise was identified in the Initial Study to have a potentially

significant impact on the environment. [AR 9:495](CT 2:324) Though the

Initial Study identifies that "the project will result in increase in permanent

ambient noise levels in the project vicinity above existing levels and that a

noise study will be conducted to determine the potential noise impacts and

recommended mitigation measures if necessary," (CT 2:324), the City

prepared a noise study that was conducted on December 2, 2008 between the

hours of 10:28 and 2:36 and on December 3, 2008 between the hours of

10:47 and 1:00 p.m. [AR 13:682](CT 2:326-327)

Despite the fact that all the other studies performed for this Project

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occurred within the summertime months, as it was concluded that the Project

would have most significant effects within the project area in the summer

months, the noise study was conducted in the middle of the day in the middle

of the winter in December. It is uncertain how this noise study qualifies to

satisfy the statement that a "noise study will be conducted to determine the

potential noise impacts and recommended mitigation."

This issue was administratively exhausted. The information and

analysis prepared by the City addressing noise impacts of the Project, was

woefully inadequate and violated the law specifically, PRC §21002(a) which

mandates that an EIR must identify the significant effects a project will have

on the environment. The impact of noise this project will have on the

. environment was not adequately reviewed and the mythology utilized does

not state why this non-peak time was chosen to conduct this study.

QUESTION 3. Where the analysis of an EIR is admittedly

inadequate, may the public agency "fix" the deficiency by

providing the trial court judge, at the trial court hearing on

the merits, with documents that were not included in the

administrative record, not included in the EIR, were not

made available to the public and were never considered by

the public or decision makers?

A. SOLID WASTE ANALYSIS

1. ADMINISTRATIVE RECORD

The Court accepted the oral motion at the hearing to augment the

administrative record with two documents: ( 1) an excerpt from the Draft

Subsequent EIR for "The Strand" at Downtown Huntington Beach dated July

2002; and (2) an excerpt from the Final EIR for "Pacific City," Huntington

Beach, a copy of each document was filed with the Court. (CT 2:394)

The Court admitted these documents into the record to support the

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Lead Agency's findings that an adequate analysis was performed on the solid

waste analysis. The trial court's ruling stated, "[t]he court grants the motion

insofar as the record is clear that these two documents were available to the

public and the decisionmaker through the EIR, as evidence by numerous

references to them in the administrative record. See AR 9018, AR 9023, AR

8540, mitigation measure 4.13-1; AR 8660." (CT 2:394 emphasis added.)

The trial court furthered stated, "At AR 128, the EIR incorporates a number

of documents including, in Section 7, "References," [AR 458], The Pacific

City EIR and the Strand Downtown EIR [AR 424]." (CT 2:394)

The trial court also cites CEQA Guidelines ("Guidelines") §15150 to

support its decision that it was proper to include these documents to support

the agency's finding that the City adequately analyzed the impacts on the

solid waste disposal system and capacity associated with the total project.

The Court further stated that even, 'if incorporation by reference is somehow

deemed insufficient, the failure to include them as exhibits in the

administrative record on review is excusable. Citing Bakersfield Citizens for

Local Control v. City of Bakersfield (2004) 24 Cal.App.4th 1184, 1198

("Bakersfield Citizens").' (CT 2:395)

The trial court is correct that failure to include certain documents in

an administrative record is excusable if the administrative record evidences

the fact that these documents complied with Guidelines § 15150 as well as

PRC §21061. In the case before the trial court, the EIR, DID NOT include

references to the excerpts from the EIR for Pacific City and the Draft

Subsequent EIR for "The Stand." CEQA Guidelines §15150 sets forth the

procedure when an EIR or negative declaration seeks to incorporate or

reference other public documents within the EIR:

(a) An EIR or negative declaration may incorporate by reference all or portions of another document which is a matter of public record or is generally available to the public. (emphasis added)

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Section 15150 mandates that if in fact a document is incorporated by

reference in an EIR it must comply with a certain process and procedure:

(b) Where part of another document is incorporated by reference, such other document shall be made available to the public for inspection at a public place or a public building. The EIR or negative declaration shall state where the incorporated document will be available for inspection. (emphasis added)

(c) Where an EIR or negative declaration uses incorporation by reference, the incorporated part of the referenced document shall be briefly summarized where possible or briefly described if the data or information cannot be summarized. The relationship between the incorporated part of the referenced document and the EIR shall be described. (emphasis added)

(d) Where an agency incorporates information for an EIR that has previously been reviewed through the State review system, the State Identification Number of the incorporated document should be included in the summary or designation described in subsection (c).

Public Resources Code §21061 also regulates this issues and

mandates:

"Environmental impact report" means a detailed statement setting forth the matters specified in Sections 21100 and 21100.1; provided that information or data which is relevant to such a statement and is a matter of public record or is generally available to the public need not be repeated in its entirety in such statement, but may be specifically cited as the source for conclusions stated therein; and provided further that such information or data shall be briefly described, that its relationship to the environmental impact report shall be indicated, and that the source thereof shall be reasonably available for inspection at a public place or public building." (emphasis added)

The EIR identified that these two documents were being incorporated

. into the Environmental Impact Report in Section 1.6 of the EIR entitled

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"Incorporation by Reference" which references Section 7 and states, "These

documents and the location where they can be inspected are identified in

Section 7-references of the EIR [AR 128]." (CT 2:302) When one reviews

Section 7, numbers 27 and 31 identify that the Pacific City EIR and The

Strand at Downtown Huntington Beach EIR are referenced document. [ AR

8:458-459](CT 2: 304-306)

Other than this reference, none of the other provisions set forth in

CEQA Guidelines Section 15150 or PRC 21061 have been satisfied. The

EIR does not state where the incorporated documents will be available for

inspection as mandated by Guidelines § 15150(b ). The EIR fails to briefly

summarize where possible or briefly described the data or information

summarized as so mandated by Guidelines §15150(c). Further, the State

Identification Number of the incorporated documents were not included in

the summary, as is required by Guidelines §15150(d). Ifthese documents

are in fact certified EIR's, as proclaimed by the City, they should have State

Identification numbers.

The Administrative Record documents identified by the trial court in

its ruling, to support its decision to grant the City's Request for Judicial

Notice and referenced above, can be found at CT 2:294-306. Upon thorough

examination of all the documents cited by the trial court to support the it's

ruling, one can see that these documents fail to provide the location where

the two documents could be publicly viewed, and fails to proffer a summary

of the pertinent areas that the EIR drafters were relying upon. Further no

State Identification Number was provided for these documents, which the

City proclaimed to be Certified EIR's.

The trial court cites Bakersfield Citizens to support its position that the

failure to exclude or not comply with CEQA infonnation disclosure

requirements is permissible if it does not constitute prejudicial abuse of

discretion. However, the very next sentence following this statement is:

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"Failure to comply with the informational disclosure requirement constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decisionmaking and informed public participation, regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirement." (Citing Bakersfield Citizens, page 1198.)

Clearly, failure to comply with the procedural requirements of the

code and regulations that was created to assist in the informational process,

specifically, CEQA Guideline §15150 and Public Resources Code §21061

would not be condoned by the Bakersfield's court.

The public nor the decision maker should not be forced to track down

documents that were utilized to support conclusions contained within the

environmental document. The information referenced and relied upon to

support the conclusion in an EIR must be made readily available for review

by the general public as well as the decision makers. Given that the City

violated the mandates ofCEQA Guideline Section 15150 and PRC 21061

and the referenced documents were not readily available for review by the

general public and decisions makers nor was a brief summary provided

identifying the pertinent area that the EIR drafter were relying upon, the EIR

not only fails as an informational document it violates the mandates of

CEQA Guidelines and the CEQA regulations and therefore must be set aside.

Therefore, the Trial Court's conclusion that the information provided

in EIR's for The Strand and for Pacific City was made available to the

general public and the Decision maker, was adequately summarized, and

properly identified in the EIR, is incorrect. Given that the Utilities and

Service Systems as well as the Solid Waste Section fails as an informational

document, and was prepared in violations of the procedures mandated in

Guidelines §15150 and PRC §21060, the conclusions contained within this

Section are inadequate and not supported by substantial evidence in the

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record. Pursuant to PRC §21 061 and Guidelines § 15150, the EIR must be

set aside and the Project approvals rescinded until the City complies with the

mandates of CEQA.

QUESTION 4. Where a public agency has adopted and certified

an EIR, may the agency adopt a project significantly

different from any considered in the EIR without further

environmental review or opportunity for public comment?

A. BUILDING HEIGHT AND BUILDING FOOTPRINT/LOT SIZE

The trial court's ruling concluded that because the, "possibility of

building a four-story building on less than 25,000 sq. ft. lot in District 1 [the

Downtown Core] was already in the draft EIR and had been circulated

widely in staff reports, the powerpoint presentations and the like, the public

was informed that a 25,000 sq. ft. or less allowance would allow for a four­

story building to be constructed on a lot of 8,000 sq. ft. in District 1." (CT

2:396, emphasis added) The trial court's ruling is incorrect. The EIR never

addressed, nor analyzed, any impact that could occur if this 11th Hour Plan

was adopted. What the EIR stated is as follows:

"The maximum density for District 1 is proposed to increase to from 25 to 30 dwelling units per acre in most areas to 60 dwelling units per acre. Additional revisions proposed for District 1 include increases in allowable building height up to 55 ft. and five-stories depending on site area, elimination of floor area ratio ("FAR") requirements, modifications to upper story setback requirements, and streamlining the development review by requiring a conditional use permit from the Planning Commission only for new development with 100 ft. or more of street frontage." [AR 8:163](CT 2: 308)

That was the entire discussion with respect to the allowable building

heights. All other discussions were set forth in Planning Commission

meeting. This impact was never analyzed in the EIR as opined by the trial

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court.

Given that the Court based its decision on the misinformation, that the

possibility of constructing a four-story building on an 8000 sq. ft. lot was

identified, evaluated, and its environmental impacts were analyzed in the

EIR and circulated to the decision maker and the public, is incorrect, the

ruling addressing building height limits, building footprint and lot size must

be set aside. Attached for the Appellate Courts reference are the documents

the trial court cited in Section VI of its ruling to support its ruling that

construction of a four-story building on 8000 sq. ft lot was analyzed in the

EIR. (CT 2: 308-316) AR 22:2218 references a staffreport, not the EIR.

The Legislature has required every county and city to adopt "a

comprehensive, long-term general plan for the physical development of the

county or city ... " (Gov.Code, §§65300; 65302.) A general plan provides a

"charter for future development" and sets forth a city or county's

fundamental policy decisions about such development. (Federation of

Hillside and Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th

1180, 1194.) These policies "typically reflect a range of competing

interests." (Ibid.) Nevertheless, a city's land use decisions must be

consistent with the policies expressed in the general plan. (Corona-Norco

Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 994

("Corona-Norco").) " '[T]he propriety of virtually any local decision

affecting land use and development depends upon consistency with the

applicable general plan and its elements.' [Citation.]" (Goleta IL supra, 52

Cal.3d at 553, 570-571.)

The City violated its General Plan when it amended the Downtown

Specific Plan to include the following: "The minimum's net site area for 45

ft./4-story buildings in District 1 (Downtown Core) was reduced from 25,000

sq. ft. to 8,000 sq. ft. [AR 2:4] The Amended General Plan contradicts the

Downtown Specific Plan Amendment. The Amended General Plan

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identifies the Downtown Core density/intensity to be as follows: "Height:

minimum building height is 25ft.; three stories maximum for developments

with less than 25,000 sq. ft. net site area; four stories maximum for net site

area 25,000 sq. ft. or greater." [AR 25:4304](CT 1 :161)

The concept to reduce the minimum net site area from 25,000 sq. ft. to

8,000 sq. ft. for the Downtown Core came at the January 19, 2010, City

Council hearing on the DTSP Update. [AR 161:8240](CT 1:161)

During this hearing, Councilmember Hansen made an alternative

motion which was to do the following: "To adopt the specific plan per the

terms of the recommended staff action with some minor amendments, ... have

within District 1 a maximum building height of 45 ft., not to exceed four

stories on building sites that have a net area of 8,000 sq. ft. So it would have

to have a minimum 8,000 sq. ft. before it could go to the maximum"

(hereinafter referred to as "11th Hour Amendment"). [ AR 4 7:5 594-

5595](CT 1 :161)

Again, the Land Use Element of the Amended General Plan controls

density and intensity. The Downtown Core density/intensity requirement is

"minimum building height is 25 ft.; three stories maximum for developments

with less than 25,000 sq. ft. net site area; four stories maximum for net site

area of25,000 sq. ft. or greater." [AR 25:4304] The 11th Hour Amendment

to the Downtown Specific Plan to not exceed four stories on buildings that

have a net site area of 8,000 sq. ft. is a clear violation of the General Plan.

Because this is a clear violation of the General Plan, the DTSP Update must

be deemed invalid. In addition this planning concept was never analyzed in

the EIR for the Project. (CT 1:161)

The amendment is a significant change in what was evaluated in the

EIR. Again, nowhere in the EIR is there an evaluation of the environmental

impacts that would occur with construction of a four-stories on a building

site of 8,000 sq. ft. Reducing the building site square footage by

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approximately 70% would have an impact on the environment. (CT 1:161-

162) Further, the public was never afforded the opportunity to comment on

this significant 11th hour change to the Project." Councilmember Hansen

slipped in this change during the voting on the Project. [AR 47:5594-5595]

QUESTION 5. In order to exhaust its administrative remedies,

were Appellants required to orally restate comments

previously raised in comment letters by Appellants, the

general public or by state officials at the public hearing for

the EIR?

A. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Public Resources §21177 states as:

"No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public orally or in writing 1?y any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." (emphasis added)

The trial court erred when it ruled that the certain issues were never

exhausted by petitioners, such as cumulat~ve project impacts, noise, public

services, and land use and are therefore waived. (CT 2:376) This is

incorrect. Petitioners properly raised the following issues at the

administrative level as so demonstrated below:

1. Cumulative Effects

(a) Trial Court Ruling

The Court ruled that Petitioners failed to exhaust the issue relating to

cumulative effects at the administrative level and therefore is waived. The

Court stated, "This issue was not raised at the administrative level by any

person [CA Public Resources Code §21177(a)] and since Petitioner did not

exhaust its administrative remedies, the issue is waived." (CT 2:3 82) It is

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uncertain what the trial court means when it states that it was not raised at

the administrative level by any "person." This issue was in fact raised by

Christopher Herre, Branch Chief, Local Developments/ Intergovernmental

Review for Caltrans. [AR 15:1732-1734](CT 2:318) The Cal-Trans letter

states as follows:

"The list of cumulative projects for traffic study (page 4-196) is different from the one found on page 3-38 under "Project Description." Please provide reasons for the discrepancy and explain why project such as Beach!Edinger Specific Plan were not included in the cumulative analysis, as the cumulative effects ofthese projects could be significant." [AR 15:1733]

This issue was raised and the City was adequately aware of what the

issue in fact was. If the Court is stating that Petitioners did not raise this

issue because a state agency raised this comment, and a "state agency" is not

a "person," that position is incorrect. A person is defined in Public

Resources Code §21066 as follows:

"Person" includes any person, firm, association, organization, partnership, business, trust, corporation, limited liability company, company, district, county, city and county, city, town, the state, and any of the agencies and political subdivisions of those entities, and, to the extent permitted by federal law, the United States, or any of its agencies or political subdivisions. (emphasis added)

Caltrans falls within this definition. Therefore, this issue was in fact

exhausted by a "person" at the administrative level and therefore has not

been waived.

The issue raised by Caltrans is the same issue raised by Petitioners in

these proceedings. Caltrans requested that the City provide reasons for the

discrepancies and an explanation why projects such as the Beach/Edinger

Specific Plan Project was not included in the cumulative traffic analysis as

the, "cumulative effects of these projects could be significant." Caltrans is

absolutely correct in their statement, failure to include the projects identified

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under the Projects Cumulative Analysis Section in the Traffic Cumulative

Analysis Study is a serious concern and the cumulative effects of these

projects could be significant.

As set forth in Petitioner briefs, there are nine projects identified as

cumulative projects under the Cumulative Projects Section which were never

evaluated nor discussed in the Cumulative Traffic Section. There are three

projects identified in the Cumulative Traffic Section that were never

discussed or evaluated in the Cumulative Project Section. (CT 1:149) There

is no explanation for the omission as to why these projects were omitted.

The trial court in its analysis only identified one project, the Edinger

Beach Corridor Project, which is located within one mile of the project area

and anticipates the addition of significant new development. It is uncertain

why the trial court concluded that the Corridor Project was too distant to

impact traffic in the DTSP area when other projects within one mile and

outside one mile of the project area were in fact evaluated. The Pacific City

Project was in also evaluated within the Traffic Cumulative Effect Section.

In fact, projects such as the Senior Center, Parkside Estates, Ocean Breeze

Plaza, and Harmony Cove are all located more than one mile from the

Project site and~ evaluated in the Cumulative Project Traffic Section.

[AR 8:190, 387](CT 2:320-322)

Given that the trial court based its decision that the issue was not

raised at the administrative level by any person, and Public Code Resources

§21066 identifies a person as any city or state agency, which the Department

of Transportation qualifies, this issue was in fact raised at the administrative

level and can be relied upon by Petitioners in this action.

Next, the trial court opined that it was permissible to exclude these

other projects and specifically identified the Edinger Beach Corridor Project

because this project and the Corridor Project were "too distant to impact

traffic in the DTSP area." Given that the City actually evaluated four

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projects outside the one mile range of the project area, the Senior Center,

Parkside Estates, Ocean Breeze Plaza, and Harmony Cove, the Trial Court's

rational to support its position is based upon incorrect facts and therefore the

conclusion in Section IX of the ruling must be reversed.

Interestingly enough, the Trial Court' ruling concluded that whether

the Pacific City Project construction will coincide with any development

related to DTSP is "pure speculation" and the EIR is therefore not required

to address such speculation. (CT 2:399) However, the Cumulative Impacts

Section for the Project did in (act evaluate the Pacific City Project,

completely contradicting the trial court's conclusion that such evaluation

would be "pure speculation." This is further evidence that the City acted in

an arbitrary and capricious manner, picking and choosing only the

environmental issues they wish to evaluate, ignoring all others. The City's

blatant disregard of this Project's impacts, is a prime example as to why the

Legislature enacted the CEQA.

(b) Cumulative Project Impacts.

The EIR for the DTSP Update identifies 19 projects that may have

cumulative effects within the vicinity of the proposed Project. These 19

projects are identified in Table 1 attached hereto. [AR 8)89-190](CT 1 :148]

The Traffic Analysis section of the EIR only identifies 13 projects.

Of the 13 projects, 3 projects are not listed in the Cumulative Project Section

ofthe EIR. [AR 8:387](CT 1:148)

The three missing projects not identified in the cumulative effects

section of the EIR are:

Longs Drug;

Fein Medical;

Newland Residential. (See AR 8:189-190)(CT 1:149)

Newland Residential is identified in the Cumulative Traffic Section as

a, 'Single-Family Residential Project which includes 201 dwelling units and

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expects 1,976 average daily trips.' [AR 8:387] This project should have

been analyzed in the Cumulative Project Section given that the Cumulative

Project Section did identify the "Newland Street Widening Project," which is

intended to widen Newland Street between Pacific Coast Highway and

Hamilton Avenue. This project should have been listed and evaluated as this

project may compound the impacts of the Project under review. (CT 1: 149)

The same is true for the Longs Drugs Project and Fein Medical

Project. Both have been identified as projects that could have cumulative

traffic impacts. To ignore and not evaluate these three projects in the

Cumulative Development Section of the EIR violates Section 15355 of

CEQA Guidelines and, thus, constitutes a prejudicial abuse of discretion.

(c) Cumulative Traffic Section.

The projects that were evaluated for potential traffic impacts from

projects that have been approved, pending or future, in the vicinity of the

Project areas are listed in Table 4.12.3 ofthe EIR [AR 8:387; 14:737] as

follows: (CT 1:149)

The Strand; Parkside Estates; Fein Medical; Pacific City; East Ocean Breeze Plaza; Waterfront-3rd Hotel; Senior Center; Harmony Cove; Newland Residential; Bridge Water; Longs Drug; Magnolia Pacific Plan;

Mixed use project.

There are 9 projects that are identified in the Project Cumulative

Effects Section and not identified or analyzed in the Traffic Cumulative

Effects Section. The projects that are missing and not analyzed in the Traffic

Cumulative Effects Section are: (CT 1: 149)

1. The Beach/Edinger Corridor Study;

2. The Newland Street widening; 3. Orange Coast River Park; 4. Huntington Beach Wetland

Conservancy Restoration Plan;

5. Poseidon Seawater Desalination Facility;

6. Edison Community Center; 7. Gun Range; 8. Talbert Lake Water Quality

Project; 9. Rainbow Disposal.

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Of the 9 projects that were not analyzed for their traffic impacts, four of the

more significant projects are listed as follows: (CT 1: 150)

• The Beach!Edinger Corridor Study- this project envisions new zoning and properties along Beach Blvd. and Edinger, located within 1 mile of the Project site. The Specific Plan for the Beach/ Edinger Corridor would allow for the addition of up to 6,400 dwelling units, 874,600 sq. ft. of retail, 350 hotel rooms and 112,000 sq. ft. of office use. [AR 8:189]

• Edison Community Center seeks to convert Edison Community Park into a youth sport complex including soccer fields and a more lighted practice area. The project is located within 1 mile of the Project site and may also include a skate park. [AR 8:189] .

• The Talbert Lake Water Quality Project and the Rainbow Disposal which is a master plan to expand the existing material recovery facility and transfer station. This project is located more than 1 mile from the Project site. [AR 8: 190]

• Gun Range, an EIR is under way evaluating a site located in Central Park. This project is located more than 1 mile from the Project site [AR 8:190]

The omission in the Traffic Cumulative Effects Section of the

Beach!Edinger Corridor Study alone would invalidate the analysis. The

Beach!Edinger Corridor is within one mile of the Project area and

anticipates the addition of significant new development. [ AR 8: 189]

Further, omission of the Edison Community Center Youth Sport Complex

from the Traffic Cumulative Effects Study is also fatal to the study's validity

given the traffic impacts that accompany such facilities. (CT 1:150)

When the City was questioned by the Department of Transportation­

District 12, as to why the list of cumulative projects for the traffic study on

pg. 4-196 was different from the one found on page 3-38 for Cumulative

Development Projects [AR 15:1733], the City simply responded as follows,

"The list of cumulative projects on Table 4.12.3 was provided by the City Planning Department and covers the projects anticipated to contribute traffic through the Downtown study area. Traffic from projects outside the 1

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mile range from Downtown and long-range projects such as the Poseidon, Ocean Breeze, Edinger/Beach Specific Plan are accounted for in the annual compound growth rate applied to develop year 2020 and 2030 forecast." [AR 15:1829](CT 1:150)

However, the response by the City is untrue. The cumulative year

2020 traffic volume without project and cumulative year 2020 plus project

conditions failed to show that the impact of these 9 missing projects are

accounted for and analyzed, as these projects are not identified on page 4-

196 under Table 4.12.3. [AR 8:388] The same is true for cumulative year

2030 projection. The Poseidon, Ocean Breeze, Edinger/Beach Specific Plan

Project, and the Edison Community Park Youth Sport Center are all missing.

[AR 8:392-393] Review of the Kimley-Hom Traffic Analysis, dated June

2009, sets forth the list of projects that were reviewed on Table 2 of the

Traffic Study. [AR 14:736-737] Table 2 of the Traffic Study lists the same

projects identified in Table 4.12.3 ofthe EIR. [AR 8:387] This list does not

include the 9 missing projects. ( CT 1 : 151)

Thus, nine projects identified as Cumulative Projects under the

Cumulative Project Section were never evaluated nor discussed in the

Cumulative Traffic Section; and 3 projects identified in the Cumulative

Traffic Section, were never discussed or evaluated in the Cumulative Project

Section. There is no explanation for the omission of discussion of these

projects. The City Council abused its discretion as it failed to proceed in the

manner required by law. (Bakersfield Citizens, supra, 124 Cal.App.4th at

1197 -98), and failing to provide adequate responses to public comments

(Berkeley Jets, supra, 91 Cal.App.4th at 1371). (CT 1:151)

Here, the EIR omission of information about the Projects impacts on

parking and traffic makes informed review and decision impossible. If an

EIR fails to include relevant information and precludes informed

decisionmaking and public participation, the goals of CEQA are thwarted

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and a prejudicial abuse of discretion has occurred. Laurel Heights L supra,

at 47 Cal.3d 128.

(d) Cultural/Performing Arts Center

("Performing Arts Center")

The City failed to discuss and evaluate, as a cumulative project impact

and cumulative traffic impact, the potential development of a Performing

Arts Center at the north end of Main Street, even though the EIR is filled

with statements relating to the proposed development of a Performing Arts

Center. (Reference cites include but not limited to: [AR 8:213,254, 312,

341, 385; AR 53:5698](CT 1:152)

The DTSP Update includes a Cultural Arts Overlay. This overlay is

provided in District 1 to promote and enhance cultural arts within the City by

allowing the continuation and further enhancement on existing cultural

facilities within the Downtown. [AR 9:479] The overlay would allow for

future development of a Cultural/Performing Arts Venue at the north end of

Main Street. [AR 8:212-213] Though the EIR discusses the, "New

Performing Arts Center," and even addresses the square footage up to 30,000

sq.ft. [AR 8:312] and the parking demands to be 200 spaces [AR 53:5698],

the Performing Arts Center is not ~dentified as a proposed future project.

The EIR does not assess or address any of impacts associated with the

Performing Arts Center, it does not address the amount of visitors that will

be attending events at the Performing Arts Center nor does it address the ·

increased volume and congestion that will be caused due to the construction

and implementation ofthe Performing Arts Center. (CT 1:152)

The trial court ruled, "[t]he EIR makes clear that the DTSP does not

propose the development of any project including the Cultural Arts Center,

and that additional CEQA review will be anticipated if such a project

succeeds. This is sufficient for a Program EIR" (CT 2:399)

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As briefed above, Creed holds that, "The program EIR should focus

on the 'cumulative' or 'synergistic' impacts ofthe entire program."

(emphasis added) (at pg. 608). Further, pursuant CEQA Guidelines

§ 15152(b ), "tiering" environmental review "does not excuse the lead agency

from adequately analyzing reasonably foreseeable significant environmental

effects of the project and does not justify deferring such analysis to a later

tier EIR or negative declaration."

The trial court and the City wish to defer environmental review of the

proposed 30,000 sq. ft New Performing Arts Center. Given that this project

is referenced throughout the EIR, deferral of the environmental impacts this

project would have on the environment is improper and in violation of

CEQA Guidelines § 15152.

(e) Public Service

The trial court ruling holds that Petitioners failed to raise the Public

Services issue at the administrative stage and therefore, the argument is

waived. (CT 2:393) This is an incorrect statement. Petitioners did exhaust

on the issue of Public Service and Police Protection. The issue was raised by

Ron McLin in comments on the Environmental Impact Checklist. [AR

9:536] (CT 2:338) Further, Michael C. Adams listed his concern about

public services in a comment letter dated September 1, 2009. · [ AR 15:17 53]

(CT 2:340)

Mr. Adams comment letter stated, "A true quantitative analysis of the

potential downtown growth is not presented in the EIR, currently the police

services are challenged with the existing supply of bars and restaurants, the

changes to the Specific Plan will allow the current number to nearly double.

The Fire department has expressed their concerns, however there was no

discussion in response to the change in response time with the realigned and

narrower streets through the downtown ... " [AR 15:1753](CT 2:340)

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The City was well aware of issues with respect to public service.

Further, there have been countless newspaper articles about the issues

relating to the Downtown area and the high rate of alcoholism and drunk

driving. Petitioners attempted to introduce such evidence with a Request for

Judicial Notice that was denied. Therefore, as evidenced above, this issue

was exhausted. (CT 2:276)

As to the merits, the DTSP and EIR do not adequately address the

very high concentration of alcohol serving restaurants, and the future impact

of visitor serving facilities on the surrounding neighborhoods and public

services. The Section addressing police services found at AR 8:355 ( CT

2:342) is only three paragraphs and makes no mention how the police will

serve the additional retail, restaurant and bars that will be developed. The

conclusions set forth in the EIR are not supported by substantial evidence in

the record that potential public service impacts would be reduced to levels of

insignificant with the exception of fire.

EIR concluded that population increase will trigger the need for

additional public services. The EIR analysis however, does not address the

visitors that will be descending upon the Downtown area who will be visiting

the newly added retail, restaurant, office, hotel and cultural facilities.

Though the EIR addresses population increase that will be due to residents, it

does not address issues relating to increases of visitors who will be going to

the Downtown area to visit the retail shop, restaurant, office, hotel and

cultural facilities.

QUESTION 6. Is the trial court's Written Statement of Decision

deficient?

A. FURTHER RULINGS REQUESTED

The City requested a Written Statement of Decision at the conclusion

of the trial court's hearing on the merits. (CT 1 :242) The written Statement

of Decision ("SOD") failed to address a number of issues set forth in

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Petitioners' Opening Brief. Here, the trial court used the approach of

converting its tentative decision into a statement of decision by stating the

tentative decision shall be deemed the court's statement of decision absent a

formal request for a statement of decision. (CRC 3.1590)

In such event, the tentative decision effectively operates on appeal as

a CCP §632 statement of decision. Slavin v. Borinstein (1994) 25 CA4th

713, 718-719. Petitioners timely pointed out the problems and omissions in

the SOD and, inter alia, requested that a ruling on each issue listed below be

made. (CT 2:276 et seq.) The trial court failed or refused to rule on those

issues. As the Statement of Decision is incomplete, reversal is required as a

matter oflaw. Social Service Union, Local535, SEIU, AFL-CIO v. County

of Monterey (1989) 208 CA3d 676, 681; Marriage of Sellers (2003) 110

CA4th 1007, 1010. See also, Reid v. Moskovitz (1989) 208 CA3d 29, 32 (no

presumption of findings that the trial court refused to make). The specific

areas of deficiency follow ..

1. Water Supply

The issue of the adequacy ofthe EIR's discussion of water surplus

was not addressed. Petitioner's Opening Brief at Trial ("POB ")(CT 1: 166)

with the SOD (CT 1:211 et seq.; CT 2:370). Briefl>', it is Petitioners position

that the EIR failed to provide information about the environmental

consequences of supplying water to the project. The informational purposes

of the EIR were not satisfied because the decisionmakers were not provided

with enough information to evaluate the pros and cons of supplying the

amount of water that this Project will need.

2. Hazards and Hazardous Waste

This issue, though thoroughly briefed ( CT 1: 166-167), was not

addressed in the SOD. (CT 1:242 et seq., 2:370) The EIR found that the

impact or waste will be less than significant due to the implementation of a

mitigation measure, that only mitigates the impact of removing hazardous

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materials during construction in the project area. This analysis ignored the

second half of the question, or issues after the project is constructed.

3. Air Quality and Global Warming

This issue was also thoroughly briefed (CT 1: 166-167) but not

addressed in the SOD. (CT 1:242 et seq., 2:370) The EIR failed to properly

address these issues. ( CT 1 : 166-16 7)

4. Incomplete Analysis of the No-Project Alternative

The Trial Court did not rule on Petitioners' contention that the no­

project alternative is vague and its impacts are discussed in only general

terms. This issue, though thoroughly briefed ( CT 1: 166-167) is not

addressed in the SOD. (CT 1:242 et seq., 2:370; CT 1: 170-172). Again,

pursuant to CEQA Guidelines § 15126.6, the "purpose of describing and

analyzing a No-Project Alternative is to allow the decisionmakers to

compare the impacts of approving the proposed project with the impacts of

not approving the proposed project."

5. Unreasonable Range and Description of Alternatives

This alternative issue was fully briefed at trial. (CT: 170-171) The

Court failed to address it despite Appellant's request to do so. (CT 1:242 et

seq.; 2:370)

The alternatives are so vague that the City cannot accurately compare

the Project to the Alternatives. The EIR was clearly inadequate but the Court

failed to address the issue (POB, CT 1:153-156 with SOD, CT 1:242 et seq.,

CT 2:370).

6. Cultural Resources

Issues relating to cultural resources, the Library and Land Use and

Planning were exhausted at [AR 15:1781-1805], through a detailed comment

letter by attorney Ryan M. Easter dated September 1, 2009. One of the most

heavily disputed issues was the effect on the Historic City Library. The EIR

identifies four significant historical resources located within the Project

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boundaries. Three of these significant historical resources are listed on the

National Register of Historic Places ("NRHP") and the fourth is listed as

NRHP eligible. All four of these significant historical resources are listed on

the California Register of Historic Resources ("CRHR"). [AR 15:1782](CT

1:153) These issues were raised at trial and were yet ignored in the EIR in

the decision ofthe Trial Court, cf. POB (CT 1:153-156) with SOD (CT

1:242 et seq., 2:370).

CEQA Guidelines §15064.5(a)(2) state that an historical resource

"included in a local register of historical resources ... shall be presumed to be

historically or culturally significant." [AR 15:1785[(CT 1:155)

As explained at Trial, the Library is designated as a local landmark in

the General Plan Historic and Cultural Resources Element. Therefore,

pursuant to CEQA Guidelines §15064.5(a)(2), the Library is presumed to be

an historical resource, and should have been identified as such in the EIR.

[AR 8:253](CT 1:146, 155) This omission is a violation ofCEQA

Guidelines §15064.5(a)(3).

As was further pointed out below, the General Plan Historic and

Cultural Resources Element ("HCR") lists "local landmarks considered to be

of significant importance to the local community," as defined by the Historic

Resources Board ("HRB"), and states that the "intention ofthe HRB [is] to

place these structures and places on a City listing for protection and/or

preservation .... " The City and its consultants were aware that the Library is

listed as a local landmark in the HCR. [AR 8:254]

Regarding the HRB, the DTSP Update went on to eliminate the

HRB's advisory capacity to the Planning Commission to oversee the

selection of local landmarks that are identified in the General Plan, an

advisory capacity for which the current DTSP explicitly provides. The

DTSP Update does not provide for the HRB to retain its advisory role, which

is inconsistent with the General Plan (which also recognizes the Library as a

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landmark), and the EIR fails to analyze the impacts associated with removing

the HRB from providing such advisory role. (CT 1: 162) Further, the EIR

set forth the definition of "historical resource" in CEQA Guidelines

§15064.5(a)(3), but disregarded the definition given in the immediately

preceding sub-subsection, CEQA Guidelines §15064.5(a)(2). The refusal to

address this key issue leads to the question as to whether the City

intentionally avoided analyzing the impacts to the Library.

The EIR must identify the Library as an historical resource and must

analyze impacts to it and the trial court should have addressed the issue.

The EIR states on p. 4-63 [AR 8:254] that "specific development

proposals are not contemplated for the project, including development on the

library site." However, the Project allows for the development of a Cultural

Arts Center on the Library site. The existing library is only 9,034 SF [AR

15: 1786], so the Cultural Arts Center, as proposed, will be approximately

three times the size of the Library. Specifically, the Project requires that the

Cultural Arts Center stand no more than 3 stories and 3 5 feet tall, and span

no more than 30,000 square feet. Furthermore, the Project provides that

there be no net loss of green space on the Library site. [AR 8:312-313]

The EIR fails to explain how this building could be reconstructed

without impacting the library. Thus, construction of the Cultural Performing

Arts Center in strict compliance with the development limits set forth in the

DTSP Update will cause a substantial adverse change in the significance of

the Library.

Ill

Ill

Ill

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VII. CONCLUSION

It is respectfully requested that the Trial Court's ruling be reversed.

Oated: February 27, 2012 .

· .

. ......

,;, .

. . Respectfully submitted,

SKA~ik LAw GROUP . ··· ...

By:J\~.~~~ Geralyn L Ska~ · Mark C. Allen III

Atto~eys for Plaintiffs/ Appellants HUNTINGTON BEACH NEIGHBORS

. . ..

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Table 1.

Proiects within the Project area:

Pacific City;

Pacific View mixed use project;

Waterfront-3rd Hotel;

The Strand.

Projects located within 1 mile of the Project site:

Beach!Edinger Corridor Study;

Newland Street Widening;

Magnolia Pacific Plan also known as

Ascon/Nesi Landfill;

Orange Coast River Park;

Huntington Beach Wetlands Conservatory

Restoration. Plans;

Poseidon Sea Water Desalinization Facility;

Edgewater Community Center.

Projects located more than 1 mile from the Project site:

Gun range;

Senior Center;

Talbert Lake Water Quality Project;

Bridgewater Annexation

Parkside Estates;

Ocean Breeze Plaza;

Rainbow Disposal;

Harmony Cove Residential Development.

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CERTIFICATE OF COMPLIANCE

Counsel of Record hereby certifies that pursuant to Rule 8.204(c)(1)

of the California Rules of Court, the Memorandum of Points and Authorities

is produced using 13-point Times New Roman type including footnotes and

contains approximately 13,941 words, which is less than the total words

permitted by the Rules of Court. Counsel relies on the word count of the

computer program used to prepare this brief.

Dated: February 27, 2012 SKAPIK LAW GROUP

By:JlM~~~M Geralyn L.' Skap1 ' Mark C. Allen

Attorneys for Plaintiff and Appellant HUNTINGTON BEACH NEIGHBORS

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CERTIFICATE OF MAILING

I, the undersigned, whose address is 250 West First Street, Suite 330,

Claremont, California 91711, certify that I am, and at all times hereinafter d-1

mentioned was, more than 18 years of age and that on February ~ 2012, I

served a true copy of the foregoing APPELLANTS' OPENING BRIEF by

U.S. Mail, first class postage pre-paid, addressed as follows:

Jennifer McGrath, City Attorney John M. Fujii, Sr. Deputy City Attorney Scott Field, Asst. City Attorney CITY OF HUNTINGTON BEACH 2000 Main Street Huntington Beach, CA 92648 Tel: (714) 536-5555; Fax: (714) 374-1590 sfield@surfcity-hb.org jfujii@surfcity-hb.org Attorneys for Respondents: City of Huntington Beach and Huntington Beach City Council

Murray 0. Kane, Esq. Donald P. Johnson, Esq. KANE, BALLMER & BERKMAN 515 South Figueroa Street, Suite 1850 Los Angeles, CA 90071 (213) 617-0480; Fax (213) 625-0931 mkane@kbblaw.com don@kbblaw.com Co-Counsel for Respondents: City of Huntington Beach and Huntington Beach City Council

Honorable Judge Nancy Wieben Stock Civil Complex Center Orange County Superior Court 751 West Santa Ana Boulevard Santa Ana, CA 92701

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(1 copy)

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Supreme Court of California 3 50 McAllister Street San Francisco, CA 941 02-4 797

The Attorney General's Office Consumer Law Section 1300 "I" Street Sacramento, CA 95814

(4 copies)

(1 copy) (CEQA)

I certify under penalty of perjury that the foregoing is true and correct.

;)1. Date: February).(,' 2012

MyraRios Print name

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