CENTER FOR BIOLOGICAL DIVERSITY

Verified Petition for Writ of Mandate

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

CENTER FOR BIOLOGICAL DIVERSITY Matthew D. Vespa (State Bar No. 222265) Jonathan Evans (State Bar No. 247376) 351 California St., Suite 600 San Francisco, California 94104 Telephone: (415) 436-9682 Facsimile: (415) 436-9683 Email: [email protected] [email protected] Attorneys for Petitioner CENTER FOR BIOLOGICAL DIVERSITY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN BERNARDINO CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, vs. TOWN OF YUCCA VALLEY, TOWN COUNCIL OF YUCCA VALLEY, and DOES 1-20, Respondents, _________________________________ WAL-MART STORES, INC.; NASLAND ENGINEERING; GDC & H PARTNERSHIP; and DOES 21-50, Real Parties in Interest.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. VERIFIED PETITION FOR WRIT OF MANDATE

[CCP § 1094.5 (§ 1085); Public Resources Code § 21000 et seq. (California Environmental Quality Act); Government Code § 65300 et seq. (State Planning and Zoning Law)]

2 Verified Petition for Writ of Mandate

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

INTRODUCTION

1. This action challenges the June 25, 2008 decision of the Town of Yucca

Valley (“Town”) and the Town Council of the Town of Yucca Valley (collectively

“Respondents”) to approve the Yucca Valley Retail Specific Plan (“Project”) and certify the

Environmental Impact Report (“EIR”) for the Project. The Project would allow the

development of a 184,146 square foot Wal-Mart Supercenter with 920 parking spaces, 3,500

square feet of additional retail use, and a 4,000 square foot fast food restaurant on an

undeveloped parcel of land peppered with Joshua trees located at the outskirts of the Town of

Yucca Valley. Respondents’ approval was in violation of the California Environmental

Quality Act (“CEQA”), Public Resources Code § 21000 et seq., the CEQA Guidelines, title

14 California Code of Regulations, § 15000 et seq., and the State Planning and Zoning Law,

Government Code § 65300 et seq.

2. Respondents prepared and relied on an EIR that falls well below CEQA’s

minimum standards. Senate Bill 97 (2007) confirmed that the analysis of impacts to global

warming from a project’s generation of greenhouse gas emissions is required under CEQA.

Construction and operation of the Project would generate significant amounts of greenhouse

gas emissions. Ignoring analysis and methodologies set forth by the California Air Pollution

Control Officers Association (“CAPCOA”) for determining the significance of a project’s

global warming impacts, Respondents arbitrarily concluded that the Project’s global

warming impacts were less than significant. Respondents’ determination that the Project’s

global warming impacts were less than significant foreclosed the obligation to consider the

many feasible mitigation measures that would substantially reduce Project emissions. For

example, although Wal-Mart is the largest private purchaser of electricity in the United

States and has repeatedly stated publicly that its goal is to be supplied by 100% renewable

energy, Respondents refused to consider reducing Project emissions by incorporating on-site

renewable energy generation, such as a solar paneled rooftop, into the Project design.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

3. The EIR also failed to adequately analyze the significant impacts to a range

of environmental resources including water supply, hydrology and water quality, urban

decay, transportation and traffic, air quality, public services, and biological resources. In

particular, although the Wal-Mart Supercenter could potentially result in closures of existing

businesses and lead to urban blight, the EIR dismissed the Project’s impacts on urban blight

in a cursory fashion based upon flawed and outdated information that was not supported by

substantial evidence.

4. Petitioners request that this Court vacate and set aside the Project and related

approvals and the certification of the EIR because Respondents failed to comply with CEQA

and applicable State Planning and Zoning Laws.

JURISDICTION AND VENUE

5. This Court has jurisdiction over this action pursuant to California Code of

Civil Procedure sections 1085, 1094.5, 187, and 526 of the California Code of Civil

Procedure, and Public Resources Code sections 21168 and 21168.5. This Court has the

authority to issue a writ of mandate directing the Town to vacate and set aside its approval of

the Project and certification of the EIR for the Project under the Code of Civil Procedure

sections 1085 and 1094.5.

6. Venue for this action properly lies in the San Bernardino Superior Court

because Respondents and the Project are located in San Bernardino County.

THE PARTIES

7. Petitioner CENTER FOR BIOLOGICAL DIVERSITY (“Center”) is a non-

profit, public interest corporation with over 40,000 members and offices in Joshua Tree, San

Francisco, Los Angeles and San Diego, California; as well as offices in Arizona, New

Mexico, Oregon, Vermont, and Washington, D.C. The Center and its members are dedicated

to protecting diverse native species and habitats through science, policy, education, and

environmental law. Recognizing that global warming from society’s emission of greenhouse

gases is one of the foremost threats to the Center’s members and their recreational, spiritual,


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

vocational, educational, aesthetic and other interests in the earth’s environment, biodiversity,

and public health, the Center’s Climate, Air, and Energy Program works to reduce United

States greenhouse gas emissions and promote sound conservation strategies in order to

protect these interests. Center members and staff reside and own property in San Bernardino

County, and use publicly accessible portions of the Project area and surrounding areas for

recreational, wildlife viewing, scientific, and educational purposes.

8. The Center and its members would be directly, adversely and irreparably

affected by the Project and its components, as described herein, until and unless this Court

provides the relief prayed for in this petition.

9. Respondent TOWN OF YUCCA VALLEY is a local governmental agency

and political subdivision of the State of California charged with the authority to regulate and

administer land use activities within its boundaries, subject at all times to the obligations and

limitations of all applicable state, federal, and other laws, including CEQA and the CEQA

Guidelines and Planning and Zoning Laws. The Respondent also has the authority to

legislate changes to land use and policy within its jurisdiction. The Respondent is the lead

agency under CEQA for the preparation of the EIR and for the approval of the Project.

10. Respondent TOWN COUNCIL OF THE TOWN OF YUCCA VALLEY

(“Town Council”) is the legislative body for the Town.

11. Real Party in Interest NASLAND ENGINEERING (“Applicant”) is the

applicant for the entitlements that constitute the Project. Based on the Applicant’s status as

the sole identified applicant and developer for the Project, and on Petitioner’s information

and belief, Applicant adequately represents the interests of any and all other non-joined

parties in the Project.

12. Real Party in Interest GDC & H PARTNERSHIP has been listed as the

property owner of the Project site in filings before the Town of Yucca Valley.

13. Real Party in Interest WAL-MART STORES, INC. (“Wal-Mart”) is slated to

occupy the retail space with a Wal-Mart Supercenter and was represented as a Project


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

proponent and landowner representative before the Town of Yucca Valley during public

hearings.

14. The Petitioner is currently unaware of the true names and capacities of Does

1 through 20, inclusive, and therefore sues those parties by such fictitious names. Does 1

through 20, inclusive, are agents of the Town, state, or federal government who are

responsible in some manner for the conduct described in this petition, or other persons or

entities presently unknown to the Petitioner who claim some legal or equitable interest in the

Project that is the subject of this action. The Petitioner will amend this petition to show the

true names and capacities of Does 1 through 20 when such names and capacities become

known.

15. The Petitioner is currently unaware of the true names and capacities of Real

Parties in Interest, Does 21 through 50, inclusive. Does 21 through 50, inclusive, are persons

or entities presently unknown to the Petitioner who claim some legal or equitable interest in

the Project that is the subject of this action. The Petitioner will amend this petition to show

the true names and capacities of Does 21 through 50 when such names and capacities

become known.

STATEMENT OF FACTS

Background: The Analysis of Greenhouse Gas Emissions Under CEQA

16. An analysis of impacts from a Project’s generation of greenhouse gases is

required under CEQA. In passing Senate Bill 97 (2007), the State of California explicitly

recognized that greenhouse gas emissions are an important environmental issue that requires

analysis under CEQA. SB 97 requires the Office of Planning and Research to prepare

guidelines “for the mitigation of greenhouse gas emissions or the effects of greenhouse gas

emissions as required by [CEQA], including, but not limited to, effects associated with

transportation or energy consumption.” (SB 97, codified as Pub. Res. Code § 21083.05)

(emphasis added).) SB 97 “confirm[s] that GHG emissions are a significant adverse effect

under” CEQA. (Senate Bill Analysis for SB 97). As recognized in the Senate Bill Analysis


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

for SB 97, “[t]he analysis of GHG impacts under laws like CEQA, and its federal counterpart

NEPA, is not new, nor did it commence with the passage of the California Global Warming

Solutions Act of 2006.” (Id.)

17. California is not only extremely vulnerable to the impacts of global warming,

but is also responsible for a significant portion of the U.S. and global emissions of

greenhouse gases. Because most global warming emissions remain in the atmosphere for

decades or centuries, the quality of life our children and grandchildren experience depends on

if and how rapidly California and the rest of the world reduce greenhouse gas emissions.

Although research indicates that some climactic changes are now unavoidable, aggressive

reductions in emissions can avoid drastic global warming impacts predicted for the end of the

century, including temperature rises between 8 and 10.5° F, 90% loss of the Sierra snowpack,

22-30 inches of sea level rise, and 4-6 times as many heat-related deaths in major urban

centers.

18. California has set emission reduction targets in order to combat global

warming. Under the California Global Warming Solutions Act of 2006 (“AB 32”), State

emissions levels must be reduced to 1990 levels by 2020. Under Executive Order S-3-05,

emission levels must be reduced to 80% below 1990 levels by 2050. At the time they were

passed, the emission reduction targets set by AB 32 and Executive Order S-3-05 roughly

corresponded to the level of reduction scientists deemed necessary to stabilize the climate.

However, based on the alarming and unpredicted rate of loss of Arctic sea ice and other

recent climate change observations, leading scientists have now concluded that deeper

reductions are necessary to stabilize the climate at a level that would avoid truly devastating

impacts.

19. In January 2008, CAPCOA released a white paper titled “Evaluating and

Addressing Greenhouse Gas Emissions from Projects Subject to the California

Environmental Quality Act.” CAPCOA is an association of air pollution control officers

representing all thirty-five local air quality agencies and air districts throughout California.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

In its white paper, CAPCOA described and analyzed a range of approaches to determining

the significance of the impacts from a project’s greenhouse gas emissions. Under

CAPCOA’s analysis, the only two thresholds that were both highly effective at reducing

greenhouse gas emissions and highly compliant with AB 32 and Executive Order S-3-05

emission reduction targets were a threshold of zero or a 900-ton CO2 eq. threshold.

20. On June 17, 2008, the Office of Planning and Research (“OPR”) issued a

technical advisory titled “CEQA AND CLIMATE CHANGE: Addressing Climate Change

Through California Environmental Quality Act (CEQA) Review.” The technical advisory

noted that “[l]ead agencies should make a good-faith effort, based on available information,

to calculate, model, or estimate the amount of CO2 and other GHG emissions from a project,

including the emissions associated with vehicular traffic, energy consumption, water usage,

and construction activities.” The technical advisory also stated that “[l]ead agencies should

not dismiss a proposed project’s direct and/or indirect climate change impacts without careful

consideration, supported by substantial evidence.”

Project Background, Environmental Review, and Approval

21. The subject of this action is the Yucca Valley Specific Plan, a 191,646 square

foot commercial and retail project located southeast of the intersection of Avalon Avenue

and State Highway 62 in the Town of Yucca Valley. The Project contemplates the

development of a 184,146 square foot Wal-Mart Supercenter with 920 parking spaces, 3,500

square feet of additional retail use, and a 4,000 square foot fast food restaurant. The Project

site is located on the eastern edge of the town limits. The Project site is undeveloped and is

home to numerous Joshua trees and other native plants and animals.

22. The Notice of Preparation (“NOP”) for the Project was issued on July 23,

2004.

23. The Draft EIR was released on July 9, 2007 with the corresponding public

comment period ending August 23, 2007. The Draft EIR contemplated a Project involving

the construction and operation of a 229,000-square foot Wal-Mart Supercenter, a twelve


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

position gas station, a 4,000-square foot fast food restaurant, a 1.82-acre retention basin, and

10,000 gallon on-site wastewater treatment plant. The EIR concluded Project impacts to air

quality and noise would remain significant after all feasible mitigation was adopted.

24. The EIR also determined that the impacts to aesthetics, biological resources,

cultural resources, geology and soils, public services, and traffic were potentially significant

but could be mitigated below a level of significance. Despite substantial evidence to the

contrary, the EIR found no other impacts potentially significant, including impacts resulting

from the Project’s greenhouse gas emissions.

25. Petitioner submitted extensive written comments on the Draft EIR identifying

the legal inadequacies of the document. These comments included, but were not limited to,

the following:

a. The Draft EIR failed to identify and adequately analyze and

mitigate impacts resulting from the Project’s generation of greenhouse gas emissions.

b. The Draft EIR failed to adequately analyze and mitigate Project

impacts to biological resources.

c. The Draft EIR failed to adequately analyze Project impacts to

water supply and water quality.

d. The Draft EIR was so fundamentally flawed as to preclude

meaningful public review, and thus should have been revised and recirculated.

26. Respondents did not recirculate a revised Draft EIR. Instead, Respondents

prepared responses to comments and published a Final EIR on or around April 1, 2008.

27. The Final EIR determined that the Project would generate approximately

7,500 tons of CO2 Eq. per year. The EIR concluded that this impact was less than significant

based on purported compliance with prospective and general strategies for reducing

greenhouse gas emissions set forth in a March 2006 report by the Climate Action Team

(“CAT Report”). The Climate Action Team is an entity established by California EPA to

identify measures the state could pursue to reduce climate change emissions. The CAT


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Report does not assess the significance of project-level greenhouse gas impacts under CEQA

or even address how specific strategies might be implemented at the project level.

Unsurprisingly, compliance with CAT Report emission reduction strategies was not among

the methods for determining significance under CEQA identified by CAPCOA or the

California OPR. The EIR’s reliance on the CAT Report to determine that Project’s

greenhouse gas emissions were less than significant was arbitrary and not supported by

substantial evidence.

28. Petitioner submitted comments on the FEIR which again pointed to the EIR’s

inadequate analysis of the Project’s greenhouse gas impacts and the failure to adopt feasible

mitigation measures to reduce Project impacts.

29. On April 15, 2008 the Town of Yucca Valley Planning Commission held a

hearing regarding the Project and recommended approval of the Project to the Town Council.

On May 22, 2008 the Town Council held a public hearing to consider the Project and

continued the hearing until June 25, 2008.

30. Prior to the June 25, 2008, Petitioner alerted Respondents to the June 17,

2008 technical guidance on the analysis of greenhouse gas emissions under CEQA issued by

OPR and again asked that Respondents properly evaluate the Project’s greenhouse gas

emissions. At the June 25, 2008 Town Council meeting the Project was approved. The

approved Project was smaller than that contemplated under the EIR and included an

additional retail component not addressed in the EIR. The Notice of Determination for the

Project was filed on June 30, 2008 with the San Bernardino County Clerk.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

31. The Center has exhausted all administrative remedies by submitting written

comments on the Project to Respondents to request compliance with CEQA including the

completion of full and adequate environmental review, and compliance with Planning and

Zoning Law. All issues raised in this petition were raised before Respondents by the Center,

other members of the public, or public agencies prior to approval of the Project.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

32. The Petitioners have complied with Public Resources Code section 21167.5

by prior service of a notice upon the Town indicating their intent to file this Petition. Proof

of Service of this notification, with the notification, is attached as Exhibit A.

33. The Petitioners have elected to prepare the record of proceedings in the

above-captioned proceeding or to pursue an alternative method of record preparation

pursuant to Public Resources Code Section 21167.6(b)(2). Notification of the Election to

Prepare the Administrative Record is attached as Exhibit B.

34. This petition is timely filed in accordance with Public Resources Code

section 21167 and CEQA Guidelines section 15112.

35. Respondents have abused their discretion and failed to act as required by law

in the following ways:

FIRST CAUSE OF ACTION

(VIOLATION OF CEQA; EIR Does Not Comply With CEQA)

36. Petitioners hereby incorporate by reference each and every allegation set

forth above.

37. CEQA requires a lead agency for a project to prepare an EIR that complies

with the requirements of the statute. The lead agency must also provide for public review

and comment on the project and associated environmental documentation. An EIR must

provide sufficient environmental analysis such that decision-makers can intelligently

consider environmental consequences when acting on proposed projects.

38. Respondents violated CEQA by certifying an EIR for the Project that is

inadequate and fails to comply with CEQA. Among other things, Respondents:

a. Failed to adequately disclose or analyze the Project’s significant

impacts on the environment, including but not limited to, the Project’s impacts on global

warming, urban decay, water supply, hydrology and water quality, biological resources,

traffic, air quality, aesthetics and public services and utilities;

b. Failed to provide a stable and consistent description of the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Project;

c. Failed to adopt a consistent and appropriate environmental

“baseline” for analysis of the Project’s environmental impacts;

d. Failed to adequately analyze the significant cumulative and

growth-inducing impacts of the Project;

e. Improperly deferred impact analysis and mitigation measures;

f. Failed to adequately mitigate Project impacts;

g. Failed to adequately analyze and mitigate the Project’s energy

consumption; and

h. Failed to consider a reasonable range of alternatives.

39. As a result of the foregoing defects, Respondents prejudicially abused their

discretion by certifying an EIR that does not comply with CEQA and by approving the

Project in reliance thereon. Accordingly, Resondents’ certification of the EIR and approval

of the Project must be set aside.

SECOND CAUSE OF ACTION

(VIOLATIONS OF CEQA; Inadequate Findings)


forth above.

41. CEQA requires that a lead agency’s findings for the approval of a project be

supported by substantial evidence in the administrative record. CEQA further requires that a

lead agency provide an explanation of how evidence in the record supports the conclusions it

has reached.

42. Respondents violated CEQA by adopting findings that are inadequate as a

matter of law in that they are not supported by substantial evidence in the record, including,

but not limited to, the following.

a. The determination that certain impacts would be less than

significant and/or that adopted mitigation measures would avoid or lessen the Project’s


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

significant effects on the environment;

b. The determination that alternatives to the Project and proposed

mitigation measures that would have avoided or lessened the significant impacts of the

Project were infeasible;

c. The determination that overriding economic, legal, social,

technological, or other benefits of the Project outweighed its significant impacts on the

environment.

43. As a result of the foregoing defects, Respondents prejudicially abused their

discretion by adopting findings that do not comply with the requirements of CEQA and

approving the Project in reliance thereon. Accordingly, Respondents’ certification of the EIR

and approval of the Project must be set aside.

THIRD CAUSE OF ACTION

(VIOLATION OF CEQA; Failure to Recirculate EIR)


forth above.

45. CEQA requires that if significant new information is added to an EIR after a

draft EIR is prepared, but before certification of the final EIR, the EIR must be recirculated

for public review and comment.

46. Comments submitted to Respondents after the Draft EIR was circulated

provided significant new information within the meaning of Public Resources Code section

21092.1 and CEQA Guidelines section 15088.5 including, but not limited to, information

about greenhouse gas emissions and global warming, biological resources, urban decay,

economic impacts, air quality, hydrology and water quality, and water supply.

47. Despite the availability of this significant new information, including a

changed project, Respondents failed to recirculate the EIR, or any portion of the EIR. As a

result of Respondents’ failure to recirculate the EIR, the public and other public agencies

were deprived of any meaningful opportunity to review and comment on the Project, its


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

substantial adverse environmental consequences, and the new information regarding other

unanalyzed environmental effects of the Project.

48. Respondents’ failure to recirculate the EIR is not supported by substantial

evidence and represents a failure to proceed in the manner required by law.

FOURTH CAUSE OF ACTION

(VIOLATION OF CEQA; Inadequate Response to Comments)


forth above.

50. Respondents failed to respond adequately to comments submitted by the

Petitioners, other members of the public, and other agencies. Instead, the responses given to

numerous comments regarding the Project’s impacts to biological resources, urban decay, air

quality, global warming and greenhouse gas emissions, aesthetics, traffic, water supply,

hydrology and water quality, cumulative and growth inducing impacts, public services,

transportation and traffic, population and housing, and regarding the adequacy of the EIR’s

treatment of mitigation measures and alternatives are conclusory, evasive, confusing, or

otherwise non-responsive, contrary to the requirements of CEQA.

51. By failing to provide adequate responses to public comments and proposed

alternatives, Respondents failed to proceed in the manner required by law. Moreover,

Respondents’ finding that adequate responses to comments were provided is not supported

by substantial evidence.

FIFTH CAUSE OF ACTION

(Violations of State Planning and Zoning Law)

52. Petitioners hereby incorporate by reference each and every allegation set forth

above.

53. Government Code section 65300 requires the legislative body of a city to adopt

a general plan for the physical development of the city. The general plan is often called a

“constitution” for future development to which all other land use decisions must conform.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Accordingly, any decision of the County affecting land use and development, including

issuance of a conditional use permit, must be consistent with the general plan. See

Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1182-86.

54. The Project is inconsistent with the Town of Yucca Valley General Plan

because the proposed commercial component will conflict with General Plan policies

including, but not limited to, programs and policies that address the following: requiring the

mitigation of significant impacts to air quality, especially those related to vehicle and diesel

emissions; provision of adequate water supply and availability; controlled and regulating

low growth and rural setting as a priority; provision of an adequate housing base; and

provision of fair share mitigation for impacts to public services.

55. As a result of the foregoing defects, Respondents did not proceed in the manner

required by law, and their decision to approve the Project was not supported by substantial

evidence. Accordingly, approval of the Project must be set aside.

SIXTH CAUSE OF ACTION

(Violations of Native Plant Protection and Management Ordinance and Outdoor Lighting and Night Sky Protection Ordinance)

56. Petitioners hereby incorporate by reference each and every allegation set forth

above.

57. The Project is subject to the Town Native Plant Protection and Management

Ordinance (Ordinance 90, Town of Yucca Valley Dev. Code 89.0101 et seq.) and Ordinance

relating to Regulations for Outdoor Lighting and Night Sky Protection (Ordinance 140,

Town of Yucca Valley Dev. Code 8.70.010 et seq.).

58. The Native Plant Protection and Management ordinance authorizes the removal

of native plants only when findings can be made that the removal of the native trees or

plants does not have a significant adverse impact on any proposed mitigation measures, soil

retention, soil erosion and sediment control measures, scenic routes, flood and surface

runoff and wildlife habitats. Dev. Code 89.0120(a). The approval of the Project by the

Town Council constitutes a prejudicial abuse of discretion because the Town Council’s


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

findings that native tree or plant removal will not have significant impacts on mitigation

measures related to flood and surface runoff, scenic routes, and wildlife habitat cannot be

supported by substantial evidence. Respondents also failed to require documentation of the

applicant’s “best efforts” to retain and preserve all Joshua Trees within the limits of the

development in its native location. Dev. Code 89.0133(b). Adequate documentation of

alternative lot configuration, building envelopes, circulation and physical constraints has not

been provided. Dev. Code 89.0133(b). Respondents’ findings related to the Native Plant

Protection and Management ordinance, Dev. Code 89.0101 et seq., constitute a prejudicial

abuse of discretion.

59. The Town of Yucca Valley Regulations for Outdoor Lighting and Night Sky

Protection (Ordinance 140, Town of Yucca Valley Dev. Code 8.70.010 et seq.) were

established to assist in substantially reducing light pollution which can be generated from

commercial lighting fixtures and devices in order to minimize light pollution, and

unnecessary illumination of adjacent properties. Dev. Code 8.70.010. Any new

construction located in any commercial or industrial land use district intended for

commercial and industrial purposes shall be fully shielded or recessed in such a manner as

to preclude adverse impacts to adjacent property as a result of light trespass, or to any

member of the public who may be traveling on adjacent roadways or right-of-ways. Dev.

Code. 8.70.030(b)(2). The approval of the Project by Respondents constitutes a prejudicial

abuse of discretion because the Respondents’ findings regarding fully shielded or recessed

lighting that precludes adverse impacts cannot be supported by substantial evidence.

PRAYER FOR RELIEF

WHEREFORE, the Petitioners pray for relief as follows:

1. For alternative and peremptory writs of mandate, commanding Respondents:

(A) to vacate and set aside approval of the Project, including the Conditional Use

Permit, Specific Plan, and associated approvals;

(B) to vacate and set aside certification of the Final EIR for the Project;

(C) to prepare and certify a legally adequate EIR for the Project;

I

2

1J

4

5

6

7

I

I

1{)

1 1

1 2

l 3

l 4

1 5

1 6

1 7

1 8

t 9

20

2 1

22

23

21

25

26

27

(D) to suspend any and all activity pursuant to Respondents' approval of the Project

that could result in an adverse change or alteration to the physical environment until

Respondents have cornplied with all requirements of CEQA and all other applicable state and

local laws, policies. ordinances" and regulations as are directed by this Court pursuant to Public

Resources Code section 21 168.9.

2. F'or a stay, temporary restraining order. preliminary iniunction, and permanent

iniunction prohibiting any actions by Respondents purslrant to Respondents' approval of the

Project and certification of the EIR for the Project until Respondents have f'ully complied with

all requirements of CEQA. Planning and 7-.oning Laws. and all other applicable state and local

larvs, policies, ordinances, and regulations;

3 .

5 .

6.

For costs of the suit;

For attorney's tbes pursuant to the Code of Civil Procedure section 1021.5; and

For such other and further relief as the Court deems just and proper.

.Tonathan l:valtsDA'fliD: Julv 29" 2008

By:

,TMattherv Vespa/

Attorne,vs for PetitionerCENTER FOR BIOI,OGICAI- DIVERSITY

Jqhathall Hvans

Verified Petition fbr Writ of Mandate

t 6


EXHIBIT A

Notice of Commencement of CEQA Action - 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

CENTER FOR BIOLOGICAL DIVERSITY Jonathan Evans , SBN 247376 PMB 447, 8033 Sunset Blvd. Los Angeles, CA 90046 (213) 598-1466; Fax: (213) 652-1940 Email: [email protected] Attorney for the Petitioner

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN BERNARDINO

CENTER FOR BIOLOGICAL DIVERSITY,

Petitioner,

vs.

TOWN OF YUCCA VALLEY, TOWN

COUNCIL OF YUCCA VALLEY,

Respondents.

) ) ) ) ) ) ) ) ) )

Case No.: NOTICE OF COMMENCEMENT OF CEQA ACTION [California Environmental Quality Act Pub. Res. Code § 21167.5]

TO RESPONDENTS TOWN OF YUCCA VALLEY, and TOWN COUNCIL OF YUCCA

VALLEY:

Please take notice, pursuant to Pub. Res. Code § 21167.5, that on July 29, 2008,

Petitioner Center for Biological Diversity intends to commence an action for writ of mandate to

review, overturn, set aside, void, and annul the Town of Yucca Valley and Town Council of

Yucca Valley’s decisions approving the Yucca Valley Specific Plan to authorize development of

a commercial retail center that includes an approximately 184,146 square foot Wal-Mart

Supercenter, a 3,500 square foot retail building, and a 4,000 square foot fast-food restaurant with

drive-through on a 28 acre site (the “Project”) and certifying an Environmental Impact Report for

the Project (SCH #2004071127). This action is based on Respondents’ failure to comply with the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

California Environmental Quality Act (Public Resources Code §2100 et seq.,) in approving the

Project and adopting the Environmental Impact Report.

DATED: July 28, 2008 Jonathan Evans

CENTER FOR BIOLOGICAL DIVERSITY

By: JONATHAN EVANS Attorney for Petitioner

CENTER FOR BIOLOGICAL DIVERSITY


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, California. I am over the age of 18 and not a party to the foregoing action. My business address is PMB 447, 8033 Sunset Blvd. Los Angeles, CA. 90046.

On July 28, 2008 I served a true and correct copy of the

NOTICE OF COMMENCEMENT OF CEQA ACTION on the parties in this action by placing a true copy thereof in a sealed envelop, addressed as shown below: Town of Yucca Valley 57090 Twentynine Palms Highway Yucca Valley, CA 92284 Attn: Janet M. "Jamie" Anderson, MMC, Town Clerk [X] BY OVERNIGHT DELIVERY SERVICE via Express Mail to the offices of the

addressee(s). In accordance with Code of Civil Procedure § 1013(c) as follows: I am readily familiar with this firm's practice of collection and processing correspondence for mailing with Express Mail. Under that practice the correspondence will be deposited with Express Mail on that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. Such envelope was sealed and placed for collection and mailing following ordinary business practices addressed to:

Executed on July 28, 2008 in Los Angeles, California. [X] STATE I declare under penalty of perjury under the law of California that the foregoing is true and correct.

Jonathan Evans


EXHIBIT B

Notice of Election to Prepare Administrative Record - 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

CENTER FOR BIOLOGICAL DIVERSITY Jonathan Evans , SBN 247376 PMB 447, 8033 Sunset Blvd. Los Angeles, CA 90046 (213) 598-1466; Fax: (213) 652-1940 Email: [email protected] Attorney for the Petitioner

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN BERNARDINO

CENTER FOR BIOLOGICAL DIVERSITY,

Petitioner,

vs.

TOWN OF YUCCA VALLEY, TOWN

COUNCIL OF YUCCA VALLEY,

Respondents.

) ) ) ) ) ) ) ) ) )

Case No.: NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD California Environmental Quality Act (CEQA) [Pub. Res. Code § 21167.6]

Petitioner, Center for Biological Diversity, elects to prepare the record of proceedings in

the above-captioned proceeding, or alternatively, to pursue an alternative method of record

preparation pursuant to Public Resources Code Section 21167.6(b)(2).

DATED: July 28, 2008 By:

Jonathan Evans Attorney for Petitioner CENTER FOR BIOLOGICAL DIVERSITY

CENTER FOR BIOLOGICAL DIVERSITY

Documents

Transcript of CENTER FOR BIOLOGICAL DIVERSITY