Petition for Writ of Mandate

7/28/2019 Petition for Writ of Mandate

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LIPPEOAFFtiEVVMOriEft LIPSi-iFtix'io.CA

Brian Gaffney, SBN 168778Keith G. Wagner, SBM 210042Henry A. Steinberg, SBN 284998LIPPE GAFFNEY WAGNER LLP329 Bryant St., Suite 3DSan Francisco, California 94107Tel: (415) 777-5600Fax:(415)777-9809

F I L E D , . .Superior Court Of Cahflorni0S/ i4 /20l3By , DeputC a s B Numbei".34-2013-80001531

Attorneys for Pctitionei"CITIZENS AGAINST ALCOHOL MANUFACTURING IN MIDTOWTM; EILEEN DOWNES

IN TH E SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF SACRAMENTO

CITIZENS AGAINST ALCOHOLMANUFACTURING IN MIDTOWN; EILEENDOWNES, and DOES l-IO,Petitioners and Plaintiffs,

vs.CITY OF SACRAMENTO, PLANNING ANDDESIGN COMMISSION OF THE CITY OFSACRAMENTO and DOES 11 through 20,

Respondents and Defendants,TIM QUESSENBERRY; MILL SUPPLY LLC;ALLISON OTTO; RICH HAN NA; MIKEBRUCE; KYLE TAMBORINI; MATT EASON;SONNY MAY UGB A; JIM CULLETON;LOCKDOWN BREWERY; TWO RIVERSCIDER; and DOES 21 through 30,

Real Parties in Interest and Defendants

Case No.PETITION FOR WRIT OF M ANDAT E ANDCOMPLAINT FOR INJUNCTIVE RELIEF[CALIFORNIA E N V I R O N M E N T A LQ UAL I T Y ACT]


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BY THIS PETITION AND COMPLAINT ('Tetition"), Petitioners and Plaintiffs allege;INTRODUCTION

1. Petitioners and Plaintiffs Citizens Against Alcohol Manufacturing in Midtown and Eileen Downes("Petitioners") seek to establish lhat Respondents and Defendants City of Sacramento and the Planning andDesign Commission of the City of Sacramento ("Respondents") violated CEQA (the CaliforniaEnvironmental Quality Act, Public Resources Code 21000 et .seq.), and the CEQA Guidelines (14California Code of Regulations 15000 etseq.) and in other ways abused their discretion and violated thelaw in taking actions hereinafter specified related to approval of the Mill Supply Building Project af 2533R Street in the Midtown area of the City ofSacramenlo (the "Project").2. Respondents prejudicially abused their discretion in violation of CEQA by issuing a CategoricalExemption for the Project despite substantial evidence presented to Respondents of a reasonable possibilitythe Project will have significant environmental effects due to unusual circumstances. The Project will result,iiUev alia, in significant effects relating to traffic, noise, water quality, and air quality, as well as cumulativeimpacts. Respondents also violated CEQA by failing lo consider thai tlie Project may have significanteiwironmental impacts due the particularly sensitive environment of nearby schools and school age cliildren.In addition, a Categorical Exemption was improper because the Project is inconsistent with Respondents'general plan as well as applicable zoning.3. Respondents also prejudicially abused their discretion in violation of CEQA by failing to accuratelydescribe the Project as includingon-site alcohol manufacturing, and by failing to analyze the impacts of lhatportion of the whole project. Respondentsalso failed to accurately describe the environmental setting asincluding children and children's schools within close proximity.4. Respondents further prejudicially abused their discretion in violation of CEQA by filing a Noticeof Exemption vvilh the Sacramento County Clerk on May 10,2013 despite that their agency action was notfinal, and by failing to withdraw their Notice of Exemption upon the timely filing of an administrativeappeal oflhc Project to the City Council.

PARTIES5. Petitioner CITIZENS AGAINST ALCOHOL MANUFACTURING IN MIDTOWN ("Citizens")is an unincorporated association of individuals dedicated to protecting the quality ofthe environment, andthe unique character, ofthe Midtown area oftheCity ofSacramenlo. Citizens include residents oflhcCityofSacramenlo, many of whom live inclose proximity lolhe proposed Project andwill be adversely affected

Pclitioii for Writ ofMniulatc; CnseNo (TBA).


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by Respondents violations of law. Members of Citizens participated in the administrative process bysubmitting written and verbal comments objecting to the Project and Respondents' lack of properenvironmental review of the Project. Citizens was founded afler Respondents approved the Project. Citizensbring this action both on behalf of itself and its adversely affected members.6. Petitioner EILEEN DOWNES participated in tiie administrative process by submitting written andverbal comments objecting to the Project and Respondents' lack of proper environmental review of theProject. Eileen Downes is a member of Citizens. Eileen Downes is concerned with protecting the qualityofthe environment, and the unique character, ofthe Midtown area of the City ofSacramenlo.7. Petitioners and their members rely on Respondents to comply fully with the CaliforniaEnvironmenlal Quality Act, which assures that projects will be subject to the environmental protection andpublic participation. Petitioners and their members live in and/or spend tiine in the Midtown area adverselyaffected by Respondents' use of an improper categorical exemption and adoption ofthe Project in relianceIhereon. The proposed Project directly affects tlie environmental values with which Petitioners areconcerned. Petitioners and their members have been, are being, and unless the relief requested is granted,will continue to be directly adversely affected by the Project.8. Respondent CITY OF SACRAMENTO is the lead agency for the Project under CEQA, and is thusresponsible for analyzing, disclosing, and mitigating the Project's environmental impacts and for followingthe proceduresoutlined by CEQA. The Cit)''s address is 915 I Street, Sacramento, California 95814.9. Respondent PLANNING AND DESIGN COMMISSION OF THE CITY OF SACRAMENTO("Commission") is the governmental body which approved the Categorical Exemption, Special Permit, andDesign Review at the Commission's May 9, 2013 public hearing. The Commission is located in thePlanning and Building Department, Planning Division, 1231 I Slreel, Room 300, in Sacramento, California95814.10. Real parlies in interest, JIM QUESSENBERRY; MILL SUPPLY LLC; ALLISON OTTO; RICHHANNA; MIKE BRUCE; KYLE TAMBORINI; M A I T EASON; SONNY MAYUGBA; and JIMCULLETON, are identified in the May 9,2013Commission Staff Report as the "Applicant/Owner" forlheProject. The May 9,2013 Commission Staff Report lists the address for these individualsand entity as: 400S Street, Sacramcnto, CA 95811. Petitioners are informed and believe, and on lhat ground allege, thatresolution ofthis action in Petitioners' favor may affect the rights and interests ofthe foregoing named RealParties in Interesl in a manner lhat would indicate that they should be allowed to participate as parties to this

-2-PelKion for Wril of Mandate; Case No (TBA).


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l i t igation.11. Real parties in Interest LOC KD O W N BREW ERY and T W O RIVER S C IDER are the prospectivebeer and wine lenanis for the Project and intend to brew and serve wine and beer at Ihc Project site.Petitioners are informed and believe, and on that ground allege, that resolution of th is action in P etitioners'favor may affect the rights and interests of the foregoing named Real Parties in Interest in a manner lhatwo uld indicate lha l they should be allowed to participate as parties to this litiga tion .12. Petitioners do not kno w the true names and capacities of Petitioners fictitiously named herein asDOES 1 through 10, inclusive . Petitioners are informed and believe, and thereon allege, lhat suchfictitiously named Petitioners are ben efic ially interested in Respondents' compliance wi th their mandalorylegal duties, and that such Petitioners adequately pa rticipated in Respondents' adm inistrative review processfor the Project to have standing to be joine d as Petitioners in this proceeding. Petitioners w il l amend thisPetition to allege the fictitiously named Pe titioners' true names and capacities when ascertained.13. Petitioners do not kno w the true names and capacities of Respondents fictit iou sly named herein asDOE S 11 through 20 , inclusive. Petitioners are informed and believe, and thereon allege, that suchfictitiously named Respondents are responsible in some manner for the acts or omissions co mpla ined o f orpending herein. Petitioners wi ll amend this Petition to allege the fictitio usly named Respondents' truenames and capacities when ascertained.14. Petitioners do not know the true names and capacities of Real Parties in Interest fictitiously namedherein as DOES 21 through 30 , inclusive . Petitioners are inform ed and believe, and thereon allege, that anyresolution of this matter in Petitioners' fav or may affect the rights and interests oft he fictitiously namedReal Parties in a manner lhal would indicate lhal they should be allowed lo participate as parlies to thislit igation. Petitioners w il l amend their P etition to allege the fictitiously named Real Parties' true names andcapacities when ascertained.

F AC T UAL B AC KGR OUND15. On May 9, 2013, the Commission held a public hearing on the Project, I lem N o. 4, "P12-040 M il lSupply Building." Al this hearing, the Commission was charged with approving or disapproving anEnvironmenlal Determination of C EQA Exemp tion, an Alcohol Special Permit, and a Design Review forExterior Modifications.16. Sp ecific ally , the Project proposes to establish beer and wine (cide r) tasting rooms, and retail alcoiio isales, in a m ulliple tenant space w ith in the former Fred Rader M il l Supply b uildi ng , located in the

-3 -Petition for Writ of Mandate; Case No (T BA ).


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Residetitial Mi.xed Use R Street Corridor Special Platiniiig District (RMX SPD) zone, ll is unclear fromthe project description i f Ihe Project includes manufacturing facililies (beer and cider breweries), where suchfacilities will be localed or their cnvironmetital itnpacts. The address of the Project where the proposedbreweries atid tastitig rootiiswould be built is 2533 R Street, Sacramento, CA.17. The Staff Report for the Project contained several errors atid omissions regarditig the effects of theProject on the largely residential neighborhood. Forexatnplc, the Staff Report stated there were no schoolswithin 500 feet of the Project site, bul in fact there is a pre-school wilh enrollment of over 70 childrenlocated withiti 380 feel ofthe proposed brewery Project. Also, there is a children's French languageeducatiotial facility directly adjacent lo the proposed brewery facility. The children al these schools wouldbe exposed to the strong unpleasatit odor of Iwo nearby breweries on a regular basis. Additionally, the StaffReport did not adequately address the significant effects relating to traffic, noise, water quality, atid airquality, as well as cumulative impacts, that will result frotii the Project.18. At the May 9,2013Comtnission hearing, Petitioners and their members comtneiited regarding thethe absence of proper environtnenlal review, inconsistency with applicable zoning and the General Plan,and urged the Cotnmission therefore not to approve the Project. Many ofthe members of Citizens whoeomtnetited at the hearing had also previously submitted writien objections to the Project.19. Despite Petitioners' objections, the Cotnmission approved all three items before it, iticluding: theEnvirotituenlal Determinatioti lo Exempt the Project per CEQA Guidelines Sectioti 15332, the SpecialPermit to allow beer atid wine retail sales inconjunction with beer and wine tastitig in two laslitig rootnson roughly .59 acres iti the (RK'IX SPD) zotic, atid the Desigti Review for exterior modifications lo anexistitig retailAvarehouse building in the R Street Corridor Design Review District.20. Without waiting for the time for adtiiinistrative appeal of the Comtiiission's May 9,2013 approvalslo elapse, Respondents issued a Class 32 Notice of Exemption forlhe Project. Respotidents filed the Noticeof Exctnption with the County of Sacratiietito on May 10,2013, and posted the Notice of Exemptionon May11,2013.

NOTICE REQUIREMENTS21 . Inaccordance with Public Resources Code section 21167.5, Petitioners .served Respondents withwritten notice of comtnencement of this action on .Utne 12, 2013 and Jutic 13, 2013. The June 13, 2013notice, and proof of service by tiiail thereof are attached hereto as Exhibil 1.22. In accordatice with Publ ic Resources Code section 21167.7 and Codeof Civi I Proceduie section 388,

Petition for Writ of Mandate; Case No (TBA).


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Petitioners have provided a copy of this pleading lo the Attorney General's office. Proof of service by mailof this Petition on the Attorney General is attached herelo as Exhibit 2.

J U R I S D I C T I O N AND V E N U E23. Petitioners britig this action as a Petition for Writ of Mandate pursuant to Code of Civil Proceduresections 1094.5, andPubl ic Resources Code sections 21167,21168 and 21168.5, The Court has jurisdictionover these claims.24. Venue is proper iti Sacratnenlo Coutity under Code of Civil Procedure section 394, subdivision (a),because Respondent City ofSacramenlo is situated therein.25. Venue is also proper in Sacratnetito County under Code of Civil Piocedure section 393, subdivision(b), because Respotidents are comprised of public officers especially appointed to execute the duties of apublic officer, and this suit challenges acts done by Respondents and their members in virtue ofthe office.

S TAN D IN G26. Petitiotiers atid their metnbers are beneficially interested in Respondents' ful l cotnpliancc withCEQA, and State and local zoning and General Plan coiisisteticy law, before Respondetits approve theProject. Respondetits owed a tnandalory duty lo co tiiply wilh CEQA and State and local law land use lawbefore approving the Project. Petitioners have the righl to enforce the mandatory duties that the law itnposeson Respondents.

E X H A U S T I O N O F A D M I N I S T R A T I V E R E M E D I E S27. Petiliotiers have exhausted all available administrative remedies. In accord wilh Public ResourcesCode section 21 177, subdivision (b), Petitioner objected to the approval ofthe Project orally and in writingduring the public cotntnenl period or prior to the close of the May 9, 2013 Cotnmission public hearing onthe Project before Respondetits filed the May 10, 2013 Notice of Exemption.28. In accordatice with Public ResourcesCode section 21177, subdivision (a),.all alleged grounds fornon-compliance with CEQA that are alleged hereiti were presetited lo Respondents during the public-comment period for, or prior to the close of the public hearing on, the Project.29. Iti the alternative, there was no opportunity for members of the public lo raise the grounds oftioncotnpliatice alleged in this Petitioti and Cotnplaint prior to Respondents' adoptioti of the Project.

P R I V A T E A T T O R N E Y G E N E R A L D O C T R I N E30. Petitionersbring this action as a private attortiey general pursuant toCode of Civil Procedure section1021.5, and atiy other applicable legal theory, to enforce itnportant rightsaffectitigthe public interest.

-5-Pctition for Wril of Mandate; Case No (TBA).


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LIPPE OAFf MEVWAOriER LIPSnFrtv'wi.CAtnotri'-.AWJ7.K,V3

Issuance of the relief requested in this Petitioti will confer a significant benefilon a large class of personsby ensuring that Respondetits not adopt the Project without cotnplyiiig with the law.

FIRST CAUSE OF AC T I ONFILING OF AN I N V A L I D NOTICE OF EXEMPTION

Public Resource Code 21152(b); CEQA Giiidcliiie 1506231. Petitioners incorporate the preceding paragraphs of this Petition as if fully set forth herein.32. Petitioners allege this cause ofactionagainst all Respondents.33. Respotidents prejudicially abused their discretion in violation of CEQA by filing a Noiice ofExemption wilh the Sacrainento County Clerk on May 10, 2013 despite that their ageticy action was notfinal, and by failing to withdraw their Noiice of Exemplioti upon the timely filing of an administrativeappeal ofthe Project to the Cily Council.34. Petitioners have no other plain, speedy, and adequate remedy in the orditiary course of law and willsuffer irreparable injury unless this Court issues the relief requested in this Petition.

SECOND CAUSE OF AC T I ONIMPROPER EN V I RO N M EN TA L REVIEW

35. Petitioner incorporate the preceding paragraphs of this Petition as if fully set forth hereiti.36. Petitioners allege this cause ofaction against all Respondents.37. Respondetits' action in approving the Project in reliance on improper envirotimental reviewconstitutes prejudicial abuses of discretion in that Respondents fail to proceed in the mantier required bylaw as sel forlh below.38. Petitioners have no other plain, speedy, and adequate remedy in the ordinary course of law atid willsuffer irreparable injury unless this Court issues the relief requested in this Petition.Claim O ne - Project Approval Througli Categorical Exemption from CEQA39. Respondetits prejudicially abused their discretion iti violation of CEQA by issuing a CategoricalExemption for the Project despite substatitial evidence presented to Respondetits of a reasonable possibilitythe Project will have significant environmental effects due to unusual circutnstatices. The Project will resultinsignificant effects relalitig to, interalia, traffic, noise, water quality, atid air quality, as well as significantadverse cumulative impacts.40. Respondents prejudicially abused their discretion in violatioti of CEQA by failitig to consider thatthe Project may have significant enviionmental impacts due the particularlysensitive environment of nearby

-6-Petition for Wril of Mandate; Case No (TBA).


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schools and school age children.41 . Respondents prejudiciallyabused their discretion in violafion of CEQA by determinitig that theProject was categorically exempt from CEQA despite lhat the Project is inconsistent with Respondents'General Plan and applicable zoning.Claim Two - Improper Project Description42. Respondents prejudicially abused their discretion in violation of CEQA by failing lo accuratelydescribe the Project as including on-site alcohol manufacturing, and by failing to analyze the impacts of lhalportion of the whole project.Claim Three - Improper Description of the Project's Environmental Setting43. Respondents prejudicially abused their discrefion in violation of CEQA by failing lo accuratelydescribe the environmental setting in the vicinity ofthe Project as iticluding children and children's schoolswithin close proximity.

P R A Y E R F O R R E L I E FWHEREFORE, Petitioners pray for the following reliefFor a peremptory wril of mandate pursuant lo Public Resources Code section 21168.9 ordering:1. Respondetits and their agencies and departments to set aside and void the Notice of

Exemption dated May 9,2013, filed on May 10, 2013 and posted commencing on May 11,2013.

2. Respondents to fully comply with CEQA by selling aside their Categorical Exemption,preparing an Initial Study to determine whether toprepare either an Environmental ImpactReport or a Negative Declaration for the Project, and proj erly describing the Project and theenvironmenlal setting of the Project.

3. Respondents lo comply with local and State zoning and General Plan law.4. Upon Petitioners filing a request. Respondents and Real Parties in Interest to suspendall

physical activities in furtherance ofthe Project until Respondents have compliedwith CEQAatid applicable local and State zoning laws;

5. Upon a determination on the merits, permanently enjoin Respondents and Real Paities inInterest from taking any actions with respect to the Projccl unlil Respondents have fullycomplied wilh CEQA and local and Slate zoning laws;

6. Respondents lo take any other actions the Court finds necessary lo bring Respondents'determinations, findings, and decisions into compliance with CEQA and local and State

Petition for Writ of Mandate; CnseNo (TBA).


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zoning laws.7. For an order retaining the Court's jurisdiction over this matter unlil Respondents comply

with the peremptory writ;8. Respondetits and Reai Parties in Ititeresl to pay Petitioners' costs of suit;9. Respondents and Real Parties in Inlerest to pay Petitioners' reasonable attorneys fees related

lo these proceedings pursuant to Code of Civil Procedure 1021.5; and10. For such other relief as the Court may deemproper.

DATED: June 14, 2013 LII PE GAFFNEY WAGNER LLB

Brian GaffiieyAttorneys for Petitioner wry

CiAS.icraincmo l}rcwei)-VI"rialVI'lc.idiiigs\P001 Pclilion SP.NT.wpd

Petition for Writ of Mandate; Case No (TBA).


10/23

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VERIFICATIONCit izens Agairist Alcohol Manufacturing i7t Midtown, etal. v. City ofSacramento, etal,

Sacrainento Countj' Superior CourtI , Eileen Downes, declare tliat;

1. I am a Plaintiff herein and a member- of Plaintiff Citizens Against Alcohol ManufactMring InMidtown, and am authorized to sign this verification.2. I have read the foregoingVerified Petition for Writ ofMandate and Complaint for InjunctiveRelief,and know the contents thereof; the factual allegations therein are true of my own knowledge, except as tothosematters which are therein stated upon my infonnation or belief, and as to those matters I believe themto be true.

I declaie imderpenalty ofperjury, under the laws ofthe State ofCalifomia, that the foregoing is hueand con-ect. Executed on Jnne 14, 2013 at Sacramento, Caiifomia.

Eileen Downes

Petition for Writ of Mandate - Verification, CaseNo. (TBA)

10/10 3^ 6 S3NM0a 90306Se9T6 Hd0E:90 ET03/SI/90 D


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EXHIBIT 1


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s S 3 ! j Thomas N. LIppeL i p p O l l l l T r n O y V V a g r ' ^ C );/' \ \ . A ww w.lgwlawyers.com Brian GaffneyKeith G. Wagner

SAN FRAN CISCO 329 Bryant St. , Ste. 3D, San Francisco, CA 9-1107 T -115.777.5600 F -115.777.9809 j^^ ny ^ GrangerSACRAIVIENTO 9333 Sparks Way, Sacramento, CA 95827 T916.361.3887 F 916.361.3897 ,, . ^. . ,Henry A. Steinberg

June 13, 2013V ia Email & FacsimileMr. Jeffrey HeerenCity of SacrainentoSenior Deputy Cily Attorney916-808-7455 [email protected]: Notifying County Clerk of Withdrawal of Noiice of Exemption

Mill Supply Building ProjectDear Mr. Heeren,This office represents Citizens Against Alcohol iManufacturing in Midtown in regards to theproposed Mill Supply Building Project.We request that Sacramcnto write to the County Clerk on Thursday with a one sentence notice ofwithdrawal of the Project Notice of Exemption. The NOE (attached) vvas filed May 10. Thus, aCEQA 35-day statute of limitations expires this Friday, June 14. CEQA Guideline 15112, subd. (c).I f this office receives a copy of Sacramento's withdrawal by close of business June 13, we willrefrain from filing suit on Friday.' Graham v. DainilerChrysler Corp. (2004) 34 Cal.4th 553, 577.

Sacrainento .should have no qualms about withdrawing the NOE, as we discussed, because of theMay 20 appeal (atiached) of the Planning Commission's Project approval. PRC 21151, subd. (c).The appeal was timely filed and paid for. By definition, the Project is not final. A NOE can be filedand posted only once there is fina l agency action, and thus this Project's NOE must be withdrawji.PRC 21152(b); CEQA Guideline 15062.Litigation unfortunately can be expensive and we seek to avoid it. We ask for your assistance in thisregard. Ifyou decide not to issue the requested withdrawal, please consider this the notice of intentto file CEQA action. PRC 21167.5; Graham v. Dainilei Clv'y.sler Corp. (2004) 34 Cal.4th 553.

Thankyou,/S/Briaii GaffneyBrian Gaffneycc: Citizens Against Alcohol Manufacturing in Midtown

' Litigation, iffiled,will allege CEQA violalions for improper NOE issuance, and use of acategorical exemption despite a reasonable possibility that the Project will have significantenvironmental effects, and inconsistencies wilh zoning and geiieral plan.^May 19"'was a Sunday.


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' f O : X County ClerkCounty oi'-SncinnicnioOfiice ol'Pliiniiinj; .ind Rcsearclil.'IOn lOili Stvcci, Room 121-Siicraniento, CA 9 . 5 S I - I

I \ O I K ; I : O I ' K X K I M I ' I ' I O I N

I ' l tOM; Cily (il'S;icranieiiioCoiiiiniiniiy l^cvolopniciit l.lepi..linvironnicntal Plunnini; Services300 Kidiiird-; Mlvil., . ^ r i i l- lofirSiicriMncnlo. CAO^Sil

A C r i V I TY / l ' l l Q . J I ' C I ' '1 ITLl-:: Mill Supply liuiUlini; (I ' l^-f l l t l lAC'nvi'i\7i'iu;ui':cf LOCATION; 2.11.1 R sr. fAPNS: 007-o.r-i-o 11 vCri 'V; .S;icriniienlii CO ll N 'r V : SiicranicMloDliSCll l l 'TIOiN 01' AC I ' lVITV/l ' l iO.lKCrr: Spccinl I'eniiil fbr ; i beer tn-sling moni : I I K I n wine tiLslliu- room (nlcoliol .sales) InIhc Kcsiilciitiiil MixocI i.hc R Sircct Corridor .Special I'kinniMg D islri ci (RiVIX-Si'O) /one. Do.'iiLjn Roviow thr c.vtcriorliiodificntioiis lo i i i i cxisiini; commercial hnililing in the R Street Corridor Design ReviuwDislrici.NAMIi; Ol'- I 'Ul f f . lC AGKNCV At ' l 'UOVINC ACI I V r i V/t^llO.lt 'Xrr: CilvorSaeraiiienloNAMK. OK l>KRS0^7AG^ iNCV CAUUYI.NG ODT AC riV rrY /l'R O. JI'X 'T: .lim Oucssciiherrv. -100 S .Slroel. SiK-r:nnento.CA'j.SSI I . Telephone: ';i(;--|:l2-lir.3r)-TKIi; CITVOI'-.SACRAiMliNTO ITiNIXSTIlAT TIlK A C l I V r i V/PltO.IK.C 1' IS KXKiMI'T.li.vcmpi .Sialiis: (Check One)

[ ] Activity is not n project as delincd in Section 15:?7f< [.Section l.')Or>l(l))(I)][ j Aelivily has no iiolciilini Ibr causing a sitinincant clled on lite cnviroinueni |.Sect in n 1506i('h)('')l[ ] SlaUilorial l-.ve nipt ion [.Scciion '210S()(l>X S)l[ I .Vlinisle'rial l:.\emplioii fScelion I.S368I[ ] Declared I'lnerijeMcy llxcniplion [Section l.')269(n)J[ ) tiniergcncyProject fSection l.^:?l')|){l)) and (o)I[ X J Calcijorical li.veniplion-Siale Class 22 f nd Section Niinil)er(s) l.V.1.12

KKASON'S WIIV ACTIVIT'SYi'KO.I KCT IS K X I M M I ' T : ihc project i.s consistent with the appiicahle general plan desigiiaiioiiand policicii and /.oiiing, occnr.s willn'n cily h'niits on a project site o f no more than live acres suhslaniially siu'ronndcd hy urbanuses, and approval would luit rcsull in any sijinilicanl clVccis rclalinii. lo noise, Irallic, air or UMier quality, 'Iho |)rojcci has nohabitat value liirendangered, rare, nr Ihrealencflspecies,andean bc ade


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Community Development Department300 Richards Boulevard 3rd flo o r ^Sa ramento/CA pSSI 1 U ^ ^ f

H d p Line: (916)264-5011 ', . v - ^ ^ ^

Date: . S r L ^ g " ^ RTo the Planning Director:I do hereby malte application to appeal the decloion of th Cliy Planning Commission on. C - ^ - y-? (hearing date), for project numbsr P _iz .jz-D .lf O -

(dnio)Special Penviit forVariance fof"R" Review forOthr __c&Q4=

^ y Granted by the City Planning CommiaalonDenied by the City Planning Commi88ionProperty Location: ^y.^^f^ ^ .sttrx?pf s.r.


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Reoson for Appealfnnppiopiiate Locdtion for iPublic Alcohol UsesTJie Mill Supply bnilcling site is located in an almost completely residential area. The site issiinoimdedby housing to the north, east and south. There ate many homes located well within a100' radius of the site (something of great concern (o ABC, particularly inligJitof fhe 'undueconcentration' of nlcoliol Iicciise.s already existing in Midtown). Tliere isa longeslablishedpreschool/childcare cenier just 380 feet away (again of great concern to ABC). There is also nschool which offers Frencli clas.ses for cliildren located in (he established arts center directlybehind the buildingjust a few feet away (again an ABC concern). I f this were new constmction,eighty (80) percent of it wouldhave to be residenfial.Alcoiioi venues such as fhishave; led topublic nuisance problemsns well ns public safety andwelfare concerns due to noise, crime (as docniTicnted in the problemstatement fhe policeDepartment submitted aa part of its 2012/13 apph'cation for ABC's Grant Assistance to LocalLaw enforcement program) nnd public dnmkenness in of Iter areas of Midtown. There is no waythat any business that sells alcohol to the public con bc conditioned so fhat surrounding residents(the nearest 25 feet away) are protectedand their 'right to quiet enjoyment of property' ispresei-ved.The sireetparking in the area wil! be adversely affected making it impossible for residents to parknear their homes and creating a safety ond welfare issue for residents reliiminghome after dork.The January 14,2010 meeting ofthe then Planning, now Planning and Design Commission, wasan orientation for comnu'ssioners. That orientation included the following guideline forcomniis.'iioners:

A Special Use Permit cannot be detrimental to the public health,safety or welfare or result in fhe creation of a nuisance.Because the area around fhe Mill Supply site is so strongly residential nnd flic impacts arepotentially sosevere, approval ofthe Special Use Permit allowingpublicalcohol sales violatesthe above guidelineUnnnswered Enviioninciitnl Questions and Inappropriate Location for Alcohol Mfl"foc^m''"gIn order for a project lo be exempted from GEQA. Section 15300.2 states lhat it. .sha ll NOT beused for an activity where there is a rensouable )[io.


16/23

StaffHrrora and Onii.?sionsBoth the staff-report and .staffpresentation containedsignificant errors and omissions that mayhave affected the Planning and Design Commission vole. And there is an additionalenvironmental-health concern and that is the historical use of the i>roperty aa an industrial gradeequipment nnd hardware diafribution center in what was an industrial corridor. What kind ofcontaminates are already there? We don't know and neitherdocs the city i f staff is not willing toconduct nn environmental .study, Do wc really want people consuming alcohol lhat may havebeen made in a pofenfially contaminated enviroimient?


17/23

COMMUNITY DEVELOPMENTDEPARTMENTOITY OF SACRAMENT Ov/'.w/.cllyofsacfaniento.OfgHelp Una; 311 (Cily Residents) OR 1-91G-26'1-5011Inspedion Request; 1-91Q-808-7622

300 RICHARDS BOULEVARD, 3rd FLOORSACRAMENTO. CA BS811-0210

Recort i Nuinbar;

Current Status: In ProgressParcel No: 007-0331-011 -QOOOsue Address: 2533 R ST

Print Dale: Mny 20, 2013Project No.: P1510Q001 (I'W)

ConTRACTOR OWNERMILL SUPPLY LLC400 S STSACRAMENTO CA 950)1

APPLICANTMill Supply LLCJin) Quessenberry400 S StreetSacramenio. CA 95811

FEE DETAIL CASHIER FEE SUMMARVClass U Fco D flscrlpllon Balitnco Duo Claao it Balanco Duo

230 Appeal-City Council-Third Paily - 236 S298.00 236 S 298.00$ 290.00 $ 290.00


18/23

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UPPE OAFFNEVVVAONER LLP

i r , v t Bt . V . I 3JTtl J I S - Z ^ W J

TROOF OFSERVICE1. ama citizen ofthe United States, eniployed in the City and County of San Francisco, California.

My business address is 329 Bryant St., Suite 3D, San Francisco, CA 94107. 1 am over the age of 18 yearsand not a party lo the above entitled action. On .Tune 13, 2013,1 served the following document:

LETTER 1 ^ : NOTICE OF INTENT TO FILE CEQA ACTIONon the parlies designated on the attached service list by placing said document into a sealed envelopeaddressed to the parlies designated on the atiached service list; and

MANNER OFSERVICE(check all that apply)

[ J By First Class Mail

I X ] By Overnight FedEx

[ X ] By Facsimile

In the ordinary course of business, I caused each such envelope tobe placed in the custody of the United States Postal Service, withfirst-class postage thereon fully prepaid in a sealed envelope.I caused such envelope to bc placed in a box or other facilityregularly maintained by the express service carrier or delivered toan authorized courier or driver authorized by the express servicecarrier to receive documents, in an enveloi)e or package designatedby the express service carrier with deliveryfeespaid or provided.I caused such document to be served via facsimile electronicequipment transmission (fax)on the parties in this action bytransmitting a true copy to the follovving fax numbers listed undereach addressee below.1 caused such document to be served via electronic equipmenttransmission (email) on the parlies in this action listed on theattached service list by transmitting a true copy lo the emailaddresses listed on the attached service list. The transmission wasreported as complete and without error on June 13, 2013.

1 declare under penalty of perjury under the laws ofthe State of California that the foregoing is trueand correct. Executed on June 14, 2013, in the City and County of San Francisco, California.

[ X J By ElectronicMail

^ Amelia Mooney / /

Proof of Service; Case No (TBA).


19/23

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LIPPE GAFFNEYWAONERLLP3 ? 7 l J r , l M S t . S ; i 3J$S.- f r rB iX :uo.CA0J |D7Fj.. t\^1Jf\i.'}

Mr. Jeffrey HeerenCity ofSacramenloSenior Deputy City AttorneyFax:[email protected]:\Sacraiiieiito BrcweriCorrXCoimscKCOOl POS re Notice to AG CliQA suit .wpd

Proof of Seivice; CaseNo (TBA).


20/23

E X H I B I T


21/23

i p P O S l i l ' t l S y W S Q f l S i f L L P www.lgwlawyers.com Thomas N. LIppeBrian GaffneyKeith G. WagnerKelly A. FrangerHenry A. Steinberg

SAN FRANCISCO 329 Bryant St., Ste. 3D, San Francisco, CA 94107 T415.777.5600 F 415.777.9809S A C RA WIE N T O 9333 Sparks Way, Sacramento, CA 95827 T 916.361.3887 F 916.361.3897

June 14,2013

Via U.S. MailHon. Kamala D. HarrisAttorney GeneralState of California Office of the AttorneyGeneral13001 Sireet, l l l h FloorSacramento, CA 95814Re: Notice of Intent to Bring Action as Private Attorney General: Cilizens Against AlcoholMainifactiii'ing in Micilown, el al. v. Cily of Sacramenio, et a l , (Mill Supply, PI 2-040)Dear Attorney General Harris:

Puisuant to section 21167.7 ofthe Public Resources Code, 1 am furnishing your officewith a copy ofthe Petition for Writ of Mandate and Complaint for Injunctive Relief in the abovereferenced case. I f necessary, any subsequent supplemental or amended pleadings will beforwarded.

Please note that Petitioner is bringing this action as a private attorney general pursuant tosection 1021.5 of the Code of Civil Procedure and any other applicable laws.

Thankyou for your attention to this matter.

Sincerely,

Brian Gaffney

\\t.g\v-seivcr\bB\Siicraiucmo Bio\very\Coir\Coiinsel\COOIaNotice to AC CEQA siiil.wpd


22/23

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UPPE GAFFNEYWAONER LLPIt ! 4I5.T)7.M


23/23

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LIPPE OAFFMEVWAONER LLPTt l ^lt.T7(.ML-J

Hon. Kamala D. HarrisAttorney GeneralState of California Office of the AttorneyGeneral13001. SlreelSacramento, CA 95814G.XSacrimicnto Urcwcry\Corr\Co(insel\COOI POS rc Noiice lo AG CI-.QA suit .wpd

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Documents

Petition for Writ of Mandate