Roundabout Lawsuit (file 3) - Petitioner's Reply

7/30/2019 Roundabout Lawsuit (file 3) - Petitioner's Reply

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Rachei Mansfi eld-Howlett/ SBN 248 8 09PROVENCHER & FLATT, LLP823 Sonoma AvenueSanta Rosa, CA 954047 A7 .284.2380, fax 7 07 .284.2387Attorney for Petitioner

FRIENDS OF HISTOzuC TIANGTO-WN,Petitioner;

V.CITY OF PLACFI.YILLE et. a/,

Respondents;

CITY OF PLACFI.YT-LE et al.,Real Party in Interest,

RECEIVEDAUG 2 2 20ll

CITY OF PLACERVILLEADMINISTRA|ION DEPT.

SIIPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF EL DORADO

Case No. PC-20Ii0i45PETITIONER'S REPLY BRIEF INSLIPPORT OF WRTT OF MANDAMUSCalifornia Environmental Quality ActtcEQAlDate: August 26,2071Time. 9:00 a.m.Department:9Honorable Nelson K. Brooks

Petitianer's Reply Brief in Support of l4trit of Mandamus


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Table of ContentsPetitioner's Reply Brief in Support of Writ of Mandamus

Table of Contents......... ........iTable of Authorities ......... .......iiStandard of Review ....,.. IEvidence Needed to Support a Fair Argument .....,............2

1. Traffic Impacts .........72. Construction Related Traffic Impacts .......83. Safery Impacts ...................94.ParktngRelated Impacts.... ............... 105. Biological Impacts ..................l2Impacts to Trees ..... .........12

Impacts to Sensitive Habitats .............136. Toxic Impacts .............. 137. Aesthetic and View Impacts ............. 158. Historic Resources Impacts ..... 169. Growth Inducing Impacts ......-...... 1810. Urban Decay Impacts ..... 1911. Inconsistenry with Area Plans and Policies Impacts ......... 20

Conclusion ............. ............20

El Dorado Superior Court Case No. PC-2C\II0I45Page iTable of Contents and Table of Authorities


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Table of AuthoritiesState CasesArchitectural Heritage Assn. v. County of Monterey (2004)

Page

122 Cal.App.4* 1095........ ................5Arviv Enterprises v. South Valley Planning Commission (2440)

101 Cal.App.4* 1333 ...... .................2Bakersfield Citizensfor Local Control v. City of Bakersfeld (2004)

1,24 Cal.App. n' 1184 ....... ................ 4, 19Bowman v. City of Petaluma (1986)

185 Cal.App.3d 1065. .........5Bozung v. Local Agenry Formation Com. (1975)13 Ca1.3d 263 .. ......14

Citizens Associationfor Sensible Development of Bishop Area y. County of Inyo (1985)Il2 Cal.App.3d 151..... ........2,3,4,19Citizens Committee to Save Our Village v. City of Claremont (1995)

37 CaI.App.4thll57..... ...........6Cirizensfor Quality Growth v. City of Mt. Shasta (1988)198 Cal.App.3d 433... ........,....20Citizensfor Responsible and Open Government v. City of Grand Terrace (2008)

160 Cal.App.4th 1323......... .................2Citizensfor Responsible Development v. City of West Hollywood (1995)

39 Cal.App.4h 490 ..............6City of Carmel By-the-Sea v. Board of Supervisors (7986)

183 Cal.App.3d 229 ..... .......,..........2County Sanitation Distria No. 2 v. County ofKern (2005)

127 Cd'.App. n 1544.... ................5,7Enyironmental Defense Fund, Inc. v. Coastside County Water Dist. (1972)

27 Cal.App.3d695... ..............14El Dorado Superior Court Case No. PC-20i 10145Page ii

Table of Contents and Table of Authorities


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Friends of the OId Trees y. Depafiment of Foregry and Fire Protection (1991)52 Cal.App.4ft 1383 ................2

Laurel Heights Improvement Assn. t Regents of the University of California (7988) (Laurel Heights I)47 CaI.3d 316 .. '.-..14

Laurel Heights Improvement Assn. v. Regents of University of Caffirnia (1993) (Laurel Heights II)6 CaL4h 1712 .. ...... 11

Lucas Valley Homeowners Assn. v. County of Marin (1991)233 Cal.App.3d 130....... '.."".'..'..5

Mount Sutro Defense Committee v. Regents of University of California (1978)77 Cat.App.3d2} '..'......'.'. 15

No Oil, Inc. v. City of Los Angeles (1914)13 Ca1.3d 68............ ....'.-."-.-.14

Ocean View Estates Homeowners Assn., Inc. y. Montecito Water Dist, Q0A4) (Ocean View Estates)116 Cal.App. ^ 396.......... ..2,4,76

Oro Fino Gold Mining Corporation v. County of El Dorado (1990) (Oro Fino)225 Cal.App.3d 872..... "---'...2-4

Pala Band of Mission Indians t. County of San Diego (1998)58 Cal.App.4b 556 ........5

Perky v. Board of Superuisors, (1.982)137 CaI.App.3d 424........

Quail Botanical Gardens Foundation v. City of Encinitas, (1994) (Quail Botanica[)29 Cal.App.4b 7597 ...........2,4,5

Siena Club v. County of Sonoma (1992)6 Cal.App.4h 7307 ....-- 5

Siera CIub v. California Department of Forestry and Fire Protection (2007)150 Cal.App. ^ 370 ...... ............-.-..2, 6

Stanislaus Audubon Society, fnc., v. County of Stanislau.s (i995)33 Cal.App.4th 744 ............

Stevens v. City of Glendale (1981)El Dorado Superior Court Case No. PC-20I10145Page iii

Tabie of Contents and Table of Authorities

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125 Cal.App.3d 986......Sundstrom v. County of Mendocino (1988)

202 Cal.App.3d 296.......... 14,15The Pocket Protectors u. City of Sacvamento (2004) (Pocket Protectors)

724 CaLApp. t' 903....... 2, 5,7, 16Valley Advocates v. City ofFresno (2008)

160 Cal.App.A* 94....... .....'.." 16Califoneia Public Resources Code $$21080(e) .'---- 6California Code of Regulations, Title 14 (CEQA Guidelines)15000 etseq. .......' 5r5D6.a@)(1XD) .................1115384 .-.-....-.21538a(a) '- 4, 5

El Dorado Superior Court Case No. PC-20110145Page iv

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Petitioner's Reply Brief in Support of Writ of Mandamus

Respondents' chief avenue of argument is that Petitioner, Friends of Historic Hangtown,has not met the burden of providing "substantial evidence" to support the "fair argument"standard. The City does not really offer much in the way of defense to Friends' substantive claims,instead the City tries to mischaracterize the evidence. In standard boilerplate fashion, the Cityimproperly dismisses relevant first hand evidence made by longlime residents and experienceddowntown local business owners as speculation. The City's assertion runs afoul of a long line ofcases that recogntzelay testimony - including testimony by planning staffand City Councilmembers - as substantial evidence sufficient to support the fat argument standard.

The City asserts the proposed Project has spent years in the planning process. (CitVOpposition Brief at page 72 ("Opp. atpage" hereafter.) Yet, this is the first time environmentalreview has been conducted for the Roundabout Project. In the face of overwhelming substantialevidence, the City should have sirnply prepared an EIR rather than sffuggling to support aninadequate negative declaration. Though the City touts the years of planning for the Project, muchof the information relied upon by the City was withheld from public review until after the mitigatnegative declaration was published, as detailed in the Opening Brief. (Opening Brief at 5-6.)

Friends continue to rely on their Opening Brief in support of the Writ.Standard of Review

The City correctly notes that preparation of a negative declaration constitutes an approprlevel of environmental review only when there is "no substantial evidence" in the record that aproject "may" have an effect on the environment. (Opp. at 4.) The City reviewed a mountain ofevidence and testimony submitted by area residents, experts, and City Council members andcontends there is "no substantial evidence." This bald asserrion plaidy belies the record.

The agenry of course, must review the whole record to determine whether the evidence issubstantial. (Opp. at 6.) Once there is substantiai evidence in the record to support a fa]f argument,the agency shall prepate anEIR even though it may also be presented with other substantialevidence that the Project will not have a significant impact. The agenry, nor the Court may weighthe evidence for and against. The only inquiry is whether the evidence is credible and substantial'

The City falsely claims Friends did not cite to the whoie record. Friends cited to theenvironmental report, the MND, the scant 3-page mitigation monitoringptogram, the City'shistoric reports, ftaffic report, toxics analysis, staff reports, Planningand Council testimony,responses to comments, and the brief findings in support of the agency decision.

El Dorado Superior Court Case No. PC-Z0110145 - Page I


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Petitioner's Reply Brief in Support olWrit of Mandamus

Evidence Needed to SupBor-t e KE air,4.rgument"As the City relies on a misch aracterizatton of the evidence submitted in support of a fait

argument, Friends reiterate this special evidential standard.To raise a fatr argument it is not necessary to bring forth credentialed experts to offer

scientifically irrefutable, site-specific information foretelling certain environmental harm. (Friendsthe Old Trees y. Dep't of Forestry and Fire Protection (1997) 52 Cal.App.4ft 1383, 1402.) The evidencesupporting afatr argument need not be overwhelming, overpowering, or even unconfradicted'(Ibid.) Substantial evidence to support a farr argument means "enough relevant information andreasonable jnferences from this information that a fatr argument can be made to support aconclusion, even though other conclusions might also be reached." (Cal. Code Regs., tit. 14 $15384; The Pocket Protectors v. City of Sauamento Q004) 124 Cal.App.4h 903, 927 , 928 (PocketProtectors.)

Testimony of arearesidents who are not qualified environmental experts qualifi.es assubstantial evidence when based on relevant personal observations. (E.g., City of Carmel By-the-Seav. Board of Superuisors (7986) 183 Cal.App.3d 229 , 246 n.8; Oro Fino Gold Mining Corporation v.County of El Dorado (1990) 225 CaLApp.Sd 872,882; Citizens Associationfor Sensible Detelopment ofBishopAreav. Countyoflnyo (1985) L72Cal.App.3d751,773(Bishop) ["...an adjacentpropertyowner may testi,fli to ffaffic conditions based upon personal knowledge. . . ."]; Quail BotanicalGardens Foundation, rnc. v. city of Encinitas (1994) 29 Cal.App.Ab 7597,1604-1605; Aruiv Enterpr{ses vSouth Valley planning Commission (2000) 101 Cal.App. ^ 1333 [Relevant personal observations ofneighbors regardtngslope, dust, erosion, and access problems supported EIR.]; Ocean View EstatesHomeowner's Association v. Montecito Water District (2004) 116 Cal.App.4b 396 (Ocean View Estates)BIR required based on subjecti',re views of residents regarding potential aesthetic irnpacts ofreservoir project affecting private views and public hiking trail.]; Pocket Protectors, supra 124Cal.App.4* 903 BIR triggered by fair argument of aesthetic impacts of housing project and itsargvable inconsistency with adopted plans.]; Citizensfor Responsible and Open Government v. City ofGrand Tewace (2003) 160 Cal.App.4h 1323 [EIR required based on opinions of residents regarding,aesthetics, noise, and character of the surrounding residential neighborhood, even though Cityadopted various mitigation measures to address concerns.].) Under these cases, input from non-experts can be substantial evidence where such input is credible and does not purport to embodyanalysis requiring special training.

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lylembers of Friends consist of longtime atearesidents and business owners with relevantpersonal knowledge, experience, and observations, whose timely submissions to the City became apart of the official record of proceedings. Courts have long held that such lay testimony oftenconstitutes substantial evidence.

In Oro Fino Gold Mining Cotporation v. County of El Dorado (1990) 225 CaLApp.3d8l2,884(Oro Fino) the court found lay testimony of area residents to be substantial evidence as to matterswithin their personal knowledge, constituting substantial evidence. (Oro Fino, supra,225Cal.App.3'd at882 citing Bishop, supra, I72 CaLApp.3d at 173.)

A person need not be an "expert" in the legai context but may have expertise that allowsthem to make a personal observation.In Oro Fino, aBoard Supervisor with knowledge about therelationship between drilling and groundwater contamination noted that drilling qeates pathwaysfor contaminants to travel to aquifers. Another Board member with drilling experience found itirrcredulous that there were no boring logs from the previous drilling project. (&o Fino, supra,225Cai.App.3d at 883.) Here, Vice Mayor Machado recalled the traffi.c impacts of the Main Streetrenovation and stated he was "... sti1l concerned about the lcurrent Project's] bridge phasing andffaffac." (AR3:753.) Vice Mayor David Machado stated, "The one thing that we have not mitigatis Pacific Street atCedar Ravine. It's a nightnare now, whether you're making artghttum or a leftrurn; but to have a roundabout, especially at peak p,m., that's just feedingtrafftc onto CedarRavine. At least now, you have the yield and you have the stops that buys every so often thoseintermittent gaps that allows the Pacific Street to work. I think once the roundabout is just sendingtrafficup Cedar Ravine, Pacific Street becomes arcal nightmare." (AR3:754-755.)

It's true that mere concem does not constilute admissible evidence. (Perky v. Board ofSupervisors, (1982) 137 Cal.App3d a24.) ln Oro Fino, therewas much pubiic opposition to the Oromining project based upon their experience with a prior mining project. The court found thepublic's concem about Oro's project therefore was not merely subjective speculation. It was basedon their previous personal experience .(Oro Fino, supra,225 CaI.App.3d at 884.) So too here,Friends have direct personal experience with local traffic conditions, previous personal experiencewith simii ar traffic impacts to downtown Ilom the Highway 50 roadway project, personalknowledge of the need for downtown parking, and personal lcrowledge and experience of theaesthetic vantage points of the overiook.

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Similarly, in Bakersfield Citizens v. Bakersfeld (2004) I24 CaI.App. ^ 1184, 1217, the courtfound evidence regarding potential to cause urban decay was substantial because of relevantpersonal observations about area businesses. The court stated:

W6i1e these individuals are not experts in any sense of the word, their fusthand observatiorshould not casually be dismissed ai immaterial because "relevant personal observations areevidence." (quoting Bishop, supra,172 CaLApp.3d at173; see also Ocean View Estates, sl'tpra'116 Ca1.App.4* at402.)

Here, longtime business owners related their own experience with the effect of past sffeet closureson dovmtown businesses and correlated it to similar impacts of the proposed Roundabout Project.

In Bishopthe County approved a shopping center project, split into two approvals and withtwo negativ e deelarutions. The County claimed that all of the public testimony merely representedfearsunsupportedbyanyevidence. (Bishop,supraI72Ca1.App.3datp.l73.)Butthecourtheldthatrelevant persona-l observations are evidence. For exampl.e, an adjacent-propertv owner ma'y testif,ito traffic conditions based upon personal knowledge . (Ibid.) Hete, numerous individuals and Vice-Mayor Machado spoke to their personal knowledge of existing traffic problems on adjacent streetsand the Project's potentiai to worsen this unstudied effea. (Opening Brief at 12; AR2:549, 559;3:66I, 663, 666, 677, 683,70g,754-158,827.) These observations were based upon facts andreasonable as sumptions predicated upon facts.

In Ocean View Estates, supla, alarge aluminum cover was proposed to be put over a resewollThe homeowners argtedthat the reservoir cover would be seen not only from private residencesfrom also from public trails. (Id. at 402.) As here, the Disn"ict argted that expressions of concem'questions or objections do not constitute substantial evidence of an adverse environmental impact.(Ciring CEQA Guidelines, $ 15384, subd. (a).) The District points out that tn Quail Botanical, supra,29 Cal.App.4n at 1605, substantial evidence of view obstnrction was based on photographs withstory poles and the testimony of an expert surveyor'

Although there was no such evidence rn Ocean View Estates, the court determined the mattertn euail Botanicalwas an objective determination of obstruction. Opinions that the cover will not baesthetically pleasing is not the special puwiew of experts. Personal observations on thesenontechnical issues can constifute substantial evidence, like tn Oro Fino, supra,225 CalApp'3d atgg2 where residents' complaints about noise can constitute substantial evidence. Here, Friends andothers showed photogaphs of the existing established trees and habitat proposed for removal andcompared it with the little trees proposed as mitigation planttngto show that the mitigation doesnot reduce the aesthetic impacts of removal to insignificance' (AR2:319')

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F"tltlot't".'t Reply Brief in Support of Writ of Mandamus

In Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal'App'4'h I44' the court

reasonable inferences from this information that afau algument canb^e-m2de to support a-.:^-. -;-1"r atcn horeer-hed " (C.al . Code Rggs., tit. -

Much of the instant dispute stems from the unreasonable definition lespondents appeal togive to the term substantial evidence, equating it withoverwhelming or overpoweringevidence. CEQA does not impose such a moiumental burden on appellant' Rather'substantial evidence is simply evidence which is of " 'ponderablelegal significance ' ' 'reasonable in nature, credibl;, and of solid value .' " (Lucas valley Hwvpv,wr;-&;zt'v-C-q4tqf Main {1997} TJ tal.hpp.id 130,142.\ CEQA Guidelines ( Ca1' Code Regs'' tit' 14' $15000 et seq.) ,tut. thut " iSubstantiuGuid.tt..' "is "enough relevant-information andconciusion, even though other conclusions might also be reached." (-Cal' cocle itegs'S iS:Sa, subd. (a).) Th-us, respondents' attempt to persuade us to consider only "raw., ^-+^klic"Y*nalyt1c i;i;,;,'iirit require quantitativ..nuirorr,nental studies definitively establishing thexisience of the claimed environmentai impacts is unpersuasive.Willms and the County seem to believe appefantbears the burden of providingextensive studies oI expelt t"rii,,'ony definitively iroving the proposed country clttb willhave a growth-inducin! effect on the surroundin garca or to plesent evidence demonstratmgit had already spurred growth in the surroundin { ut"u' To the contlary' appellant is requiredonly to demonsffat. thut the record contains suistantial evidence sufficient to support afairargLmentthat the project mayhave a significant growth-inducing effect'

(stanislaus, sLtpra,33 car.App.4n at 152.) so too here, the City insists that expert testrmony or rawdata is required to establish substantial evidence supporting a fa:r- afgument' Not so'

In Pala Band of Mission Indians v. County of San Diego (1998) 58 Cal'App'4n 556',,[T]he question is one of law, i.e., "the sufficiency of the evidence to support afart argument'"Under this standa rd, deference to the agency's determination is not appropriate and its decision not to requxran EIR can be upheld only when there is no credible evidence to the contrary. (Sjefl* CIub v-, C^auryt|! tfSola-afiq{1992)h f,alApp:4ol 13-0J,1-31f-:1318-, emphasis added; see also Bowman v' City of Petaluma(19s6) 1g5 Cal. App.3d 1065, 1073.) Thus, the applicable standard of review involves a question olaw requiring a certain degree of independent review of the tecord, rathel than the typicalsubstantial evidence standard which usually results in great deference being given to the factuaideterminations of an agency. (Quail Botanical, supra, 29 Cal'App '4n at 160I-l'602' fir' omitted')

Opinions based on the expertise of planning commissioners, city councilmembers, and othpublic offi.cials with expertise in land use and planning also qualify as substantial evidencesupporfing afagalggment. (stanislaus, supra,33 Cal.App.4h atL44; Pocket Protectors' supra' I24Cal.App.4* 903, 934; Architectural Heritage Association v. County of Monterey (2005) 122 Cal'App'4*1095, 1115.) In County Sanitation Distrfct No. 2 v. Counry of Kem (2005) I2l Cal'App'4s. 1544' anEIR was required based on declarations of agency staff that a proposed project would resuit in



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Petitioner's Reply Brief in Support of Writ ol Mandamus

emissions exceeding air pollution thresholds. Here, Vice Mayor Machado expressed that the CedatRavine and Pacific intersection had not been adequately studied or mitigated and he alsoconfirmed the potential for unexamined construction related traffic impacts. (AR3:753-755')Planning Director Randy Pesses stated that a warrant analysis shouid be conducted for the CedarRavine and Pacific intersection. (AR3 : 7 5 6-7 58.)

A conflict in expert opinion over the signifi.cance of an environmental impact normallyrequires preparation of an EIR. (Guideline $ 1506a(g); Sierra Club v. CDF (2007) 150 Cal.App'4ft370.) In Sierra Club v. California Department of Forestry and Fire Protection (2007) 150 Cal.App.4h 3J0,the Court required prepantjon of an EIR based upon evidence that consisted primarily of one lesubmitted by an expert rcgardingpotentiai environmental effects of increased sediment due toerosion and impacts to downstream fish habitat.

Here there was no issue about a conflict in expert opinion regarding: unstudied ffaffic impactsatnearby intersections, construction related impacts, utban decay, or potential impacts of thereplacement parking, as these areas were not analyzed in the MND and the City did not putforward any experts on these issues.

Regarding the lack of analysis of potentially affected history resources on the local level,expert opinion was offered by Milford Wayne Donaldson, State Preservation Offi,cer for theCalifornia Office of Historic Preservation, stating there is no indication in the MND that thepossible significance of the bridge had been addressed. (AR74:4I24.) ,Iennifer M. Gates, FieldServices Director, California Preservation Foundation in partnership with the National Trust forHistoric Preservation, concurred. (AR1 6 :47 27 ; 47 28.)

Further expert testimony was received from Sue Tayor and Ron Clark who expressed safetyconcerns about the Roundabout Project at the proposed location due to site constraints which mayresult in ingress and egress problems and limited sight lines of the yet to be designed pedestrianwalk ways, none of which had been analyzed in the MND. (Opening Brief at2A-21.) PlanningDirector Pesses concurred that there were sight line issues with the Project. (AR3:535.)If afacfiial dispute arises based on the credibility of evidence, the lead agenry has discretionto determine whether the information has adequate foundation, involves an issue within theexpertise of the witness, or entails speculation. (Pub. Res. Code $ 21080(e); Citizens Committee toSaye Our Village v. City of Claremont (1995) 37 Cal.App.4* 1751,1L70-7I; Citizensfor ResponsibleDevelopmenr v. City of Wesr Hollywood (7995) 39 Cal.App.4^ 490.) The credibility problem must befact-based and must have been specificaliy addressed by the lead agenry during the administrative

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Pelitioner's Reply Brief in Support of Writ of Mandamus

process, with an example being an expert shown to have misrepresented credentials: e.g', "neverattendedcollege and his Ph.D. is phony." (Pocket Protectors, supra,124 CaI'App'An at 935') Here,

no such credibility issues arose during the administrative process'l. Traffic ImPactsThe City confirms that the Fehr & Peers ffaffic report only considered two intersections;

those that were actualiy located within the Project boundary, the intersections at Main Street/ClayStreet and Main Street/Cedar Ravine. (Opp. at 8; AR10:2976.) As pointed out, this is insufficient'(Opening Brief at 11-13.) In County Sanitation, supra,I27 CaI.App.4tu 1544, the court provides thatanegative declaration may be defective if it artificially limits the impact area. "CEQA defines therelevant geographical environment as the area where physical conditions will be affectedby theproposed project. Consequently, the project area does not define the relevant environment forpurposes of CEeA when a project's environmental effects will be felt outside of the project atea'"(Id. at 1582; Pub. Resources Code $ 21060.5.)

The City claims it may rely on the expertise of planning staffto determine whether therewill be a signfficant impact. Here however, staff did not have the benefit of a comprehensive studythat took into account ranything more than two intersections. The Cify may not avoid analysis andthen fall back on planning staffs credibility.

Friends and nurnerous cornmunity members requested *re City conduct afiaffic study ofnearby intersections to determine the impact of the roundabout project ofi atea traffi-c. (openingBrief at 12; AR2.549; 3i:661, 154-155 .) Ample evidence was put forward from, not only citizens, buthe Vice Mayor, and p.lanning staff, all of whom have intimate personal experience with the localtraffi.c pafferns. Abundant evidence was submitted to the City that stated the roundabout wouldlead to ffaffi.c congestion at nearby, akeady congested, intersections. (Opening Brief at 11-13')Citizens and others requested the study areabeexpanded to include the nearby intersections' (Ibid'Friends met their burden.

The City againopines that Friends only ci.te to lay opinion; no experts, no "substantialevidence" within the nneaning of CEQA. As explained, lay testimony and testimony ofcommissioners and planning staff constitute substantial evidence if it is based on their directexperience and knowl edge ofarea conditions. The City claims Friends misstate Planning DirectorRandy pesses testimony regardingthe need for a " detaLled warrant analysis" at the Cedar Ravineand pacific street intersection in connection with the Roundabout Project. This intersection wasone of the intersecrions in the adjacent area not included in the traffi.c analysis. (Opp. at 12:25-27',

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9:20-2L) But pesses confirmed the need for av,rarcant analysis at this intersection in relation to thetraffic generated by the Roundabout Project.

The ultimate solution is a three-way stop sign... [o]ut of a roundabout...you're going to havrpeople flowing through the roundatout and then they'll have to come to a stop here. '. ' Oneiuggestion wai we'lljust have a stop going northbound on Cedar Ravine and leave that one1rriiop controlled, but then you have the siruation, as somebody indicated, where somebodyis expecting it to be an all-way stop, but it isn't, and then they wind up getting t-boned at aninteriection. So, you have to be careful with that and it would need a detailed warantanalysis to determine if the all-way stop is the only - only long-term solution there.(AR3:758.)Vice Mayor David Machado confirmed that the Roundabout Project would cause a

worsening of traffic. "The one thing that we have not mitigated is Pacific Street atCedar Ravine.It's a nightmare now, whether you're making a right turn or a left turn; but to have a roundabout,especially at peak p.ffi., that's just feedin gftafftc onto Cedar Ravine. At least now, you have theyield and you have the stops that buys every so often those intermittent gaps that ailows the PacificStreet to work. I think once the roundabout is just sending traffic up Cedar Ravine, Pacific Streetbecomes arealnightmare."(AR3:754-755.)TheevidencesetforthintheOpeningandRepiybriefssupports a fav argument that unanalyzedtraffic impacts remain and an EIR must be prepared toadequately analyze and propose altematives and appropriate mitigation.

2. Constmction Related Traffic ImpactsThe City argues that Friends have not provided any substantial evidence to support a fatrargument that the project will potentially cause ffaffic impacts related to construction other than

the impact past projects have had on t}re arca. Howevet, the City conceded in testimony at theplanning Commission level and atthe Council that the construction Project will shut down andlimit uaffi.c in the area during the several months the Project will demolish the brtdge, overlook,sffeets and parking lots and during consffuction of the new bridge, roundabout, and sffeetalignment. (Opening at 13; ,\R3:126-728.) Friends and others cited to their recent direct experiencewith the Highway 50 roadway project that would similarly consffain access to downtovmmerchants. (Opening Brief at13-14; AR3:650, 653,674,678,684,124-730.) The MND failed toconsider this a potentially significant impact.

The City contends that all consffuction projects are required to allow a least one-way ffafficduring the construction period. (AR3:654.) However the MND did not consider constructionimpacts as potentialiy signific ant and it is clear from testimony that the City has yet to come upwith a plan to handle trafftc during the construction period. Randy Pesses confirmed in his City

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Petitioner's Reply Brief in Support of Writof Mandamus


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Council testimony that Clay Street wi1l be closed during a period of time durrng brrdgeconsffuction.

One of the questions that tr think the City Council will be facedwith when we get furtherinto design is the potential of should Clay Street be closed offto allow the bridge to beconsffucted all at one time or will we try to do it a half of brid ge at a time and try to keep throadway open. When you do it in that fashion, it extends the consffuction periodconsiderablY. (AR3 :65 3.)So even though the city typicallywould require at least one-way ffaffic be kept open during

the construction period, the impact was not identified or studied in the MND and the record doesnot show how the constrained traffic will be handled. The last staffreport states:

fS]taffwould recommend the use of the of a precast concrete structure to shorten the ovtime required for bridge construction. In addition, the City Council should consider thecompleti closure ofClaf Street during bridge construction to further shorten the time,r..-.rrury for bridge construction. If Clay Sneet cannot be closed, the bridge would have tobe constructed one haiiwidth at a ttme, which su'ostantiaily extenris overall constr-rictionduration. " (AR2 : 399- 400 lEmphasis addedl')

pesses recommen ds complete closure of Clay Street to shorten construction time. (AR2:399-400')This directly contradicts the contention that the City policy to keep one lane open duringconsffuction wil1be implemented. The IS/MND failed to consider construction related ffafficimpacts. A fair argument has been established requiring prepalafion of an EIR'

3. Safety ImPactsThe City claims Friends have not met the burden of showing suffi.cient substantial evidence

under the fair argument standard regardingsafety impacts. (Opp. at 1i.) The MND relied onstatistical information compiled about roundabouts that showed they were safer in general thanstandard intersections. But the City has neglected to analyze the safety of this roundabout in thelocatiorr beng proposed. Given the amour-rt oi,iriveways invoLved, ihe f-ine of sight issues and theclose proximately of the buildings, there are specific issues that remain unaddressed in the MND'City Councilmember, Patti Borelli, asked at one of the last public hearings on the Roundaboutproject what the actual roundabout would iook like. (AR3:730-731.) How can one garrlge the safetyof the roundabout in this location when the design has yet to be completed or studied?

As noted, numerous area residents expressed their very serious concerns about the safety ofthis particular roundabout project with the existing site constraints, not roundabouts in general'Their concems were based upon their intimate knowledge of the workings of the ingress and egresspaffems of the downrown area. (Opening brief at 1 i-13.) Citizens noted that because the

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roundabout moves cars more quickiy through the intersection, rather than having to make a fuIlstop at stop signs, there are concerns about driveway access onto the sffeet and the position ofcrosswalks. (AR3:g60.) Building designer, Sue Taylor stated she had studied how crosswalks workin a roundabout. Taylor explained that crosswalks need to be locat ed far enough away from theroundabou t, andgiven the small space for the roundabout in this location, there was concern thatdrivers would not be able to see pedestrians in the cross walk. (AR3:705.) Further, generaiengineering contractor Ron Clark met with staffmember Randy Pesses to discuss potentialpedesffian safety issues. Clark stated Pesses refused to discuss safety concerns. ".. - [T]his thing is adone deal." (AR3:701.)

The City states that Friends imply that the City staffconceded safery concems' stating thatthe pesses admitted the current design for the crosswalk was unsafe due to poor visibility' (Opp. at2I:27-2g.) pesses stated that roundabouts in general do not have pedesffian safety issues but, in thisilstance, there was a problem with visibiliry due to a building on the corner of Cedar Ravine andMain Street. The issue would be analyzed during the design stage.

They're finding that pedestrian safety is not a problem with a roundabout. There is one areahowever, that I think there was a very valid concern raised and I'11try to identify it here'The exhibit shows a crosswalk occuriing right in this location. Because of the building righthere on the corner, there is a concern about lack of site distance when a vehicle is goingnorthbound on Cedar Ravine and then continuing eastbound on Main Street' That sitedistance issue is something that we'll analyze very closely in the design stage and, tf,necessary, the crosswalk can be moved further up the sffeet, to make sure there's adequatesite distance for both motorists and the pedestrian when they're crossing the sffeet'"(AR3:635.

Thus, petitioner did not need to imply staffhad safety concerns, Pesses specifically stated there is "very vaiid concern raised" in spite of all the statisti caI data that he had just pointed out to thecouncil about roundabouts in general. (AR3:634-635.) As pointed out in the Openi;:g Brief, postproject approval sfudy of the issue, is not an adequate remedy, the study and analysis of impactsmust be conducted during ihe time environmental review is conducted' (Opening Brief at 13')

The City also takes issue with the designation of "expert" for Mr. Clark and Ms' Taylor'(Opp. at 12-13.) In CEQA an "expert" is one who has the requisite degree of experience andtechnical expertise in the relevant area to render an opinion. It is not necessary to have a speciailicense to offer an expert opinion- A general engineering contractor has the backgtound andknowledge of sffeet design sufficient to be determined an exper[; similarly, a building designer hasthe requisite knowledge and experience to render an expert option- Regardless, it is not necessary



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for commenters to be deemed expert to consider their testimony as substantial evidence. The MNDfailed to adequately consider the safety issues of the Roundabout Project, sufficient substantialevidence was submitted to trigger gteater review of this issue.

4. Parking Related knPactsThe City claims that admitted parkin grelatedenvironmental impacts have been fully

mitigated. (Opp. at t4.)The Typarking spaces now available at the Ivy House parking lot will be reduced by up to

34 spaces, some say 47 spaces, depending on the precise desigp of the Project. (ARl:I58;2:529l,3:609-610,792.)The numbers seem to vary throughout the record.

The City claims that the Stancil Lot has been definitively selected. (Opp. at 15) However,the locations discussed in the MND are described as "replacement parktngoptions underconsideration." (AR1:I2.)Mitigation measure #6.1 identifies options for consideration, it does notidentiry which relocation sites will be chosen or whether the land in private ownership may beacquired. Further, mitigation may admittedly depend upon a combination of sites to fulfiii the lossof street parking. (ARl: II-L?, 25.)

Nor has the City proceeded in acquiring the lot owned by a privat e paffy - (ARl :II-12; 25 ')The City claims that Friends' comments about the Stancil Lot's unavailability does notacknowledge that the City may condemn the property. The City does not offer any citation to therecord to support this contention and the record is silent on whether the City may acfrrally be ableto pursue ownership of the properfy by eminent domain or condemnation. (ARl: II-12,25,169-170.)

More importantly, the environmental impacts of developing each site have not beenconsidered or discussed in the MND. (AR1 :11.-12,25,169-170.) Environmental impacts of anyproposed mitigation must be subjected to environmental review. (Guideline 515t26-4 (a)(1)(D),citing Stevens v. City of Glendale (1981) 125 Cal.App.3d 986; Lauret Heights Improvement Assn' v'Regents of (Jniversity of California(l993) 6 Cal.Afr IIl2, 1132.) Here, the City has skirted its dutiesunder CEQA.

The City claims that environmental impacts of the proposed parking locations wereconsidered, citing to ARl :7-38;9:2436-2442,2554-2556. (Opp atl4.) AR1-78 is merely a citatronto the whoie of the MND. The MND addresses replacement parking in two instances, neither ofwhich discussed the potential impacts of development of the sites. (ARl:7I-12;25') The citation to,\R9:2436-2442 discuss culrural resources contained in APE but does not identiff or discuss the

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cultural resources located on parking relocation sites nor was this information used in the MND'sanalysis. AR9:2554 -2556 is merely a reference to the 5 locations considered for relocation; noanalysis of potentially signiflcant environmental impacts stemming from the development of thesites was conducted.

As there was no analysis of the potential impacts of the development of alternative sites forreplacement parking in the IVIND, the City canxot affirmatively state, as it must, that the Projectwill not result in any imPacts.

The Ciry claims that lay opinions offered by Friends do not show the requisite fatargument. (Opp. at 15.) Friends provided a comprehensive analysis of the environmental problemsassociated with developing the chosen sites. (Opening Brief atIT-20')

5. tsiological ImPactsImpacts to Trees. The City's primary argument is that there aren't that many ffees planned for

removal and in any event, replacement planting is suffi.cient mitigation. (Opp- at 7.) The Cityconfirms however, that up to 2J matrre ffees will be removed, of those 2I are native, whichcompofts with the uees identified in the MND for removal. (ARl:30;1I:3722-3123') Residentsprovided a comparison of a photograph of existing trees andhabrtat proposed for removal with apicture of proposed mitigation planting. (AR2:319.) Resident Rawyers noted that the mature treesare in excess of forty feet in height. (AR2:318.) The trunk diameters range from 5 inches to 63inches, many with multiple trunks. (AR2:318.) The purpose of,providing the photograph of the sitewas not to quibble with the size of the ffees proposed for repianting, as asserted, but to show thatthe proposed planting cannot reasonably be expected to replace groves of oid trees in theirestablished environs and the City should have aclcrowledgedthatpotentiaily long term significantimpacts remain during the time it takes for the many years it will take for the young plants to growto a commensurate size.

Environmental impacts are adjudgedwithin the context of the existing environment' Thus,even rernoval of one tree could be considered environmentally significant in the right circumstancellere, the City proposes removal of the entire gtove of ffees within the Creekside environs. Further,Clay Street andHangtown Creek are mentioned in the Redevelopment Plan Draft EIR as historicresources. (Motion to Augment Exb. A.) The removal must also be considered in light of thepotential to impact the historic landscape. An analysis that is based upon the full context of theenvironmental attributes of the resources at stake must be conducted and was not.

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The City argues the six valley oaks and one coast redwood (ttee #29-35) slated for removalwillonlyberemovediftheElDoradoTrailparkingaltemativeischosen.(Opp'at2l;AR1:12,29-30;2:317.)The MND does not include this caveat. (AR1 :29-30 L7:32718-3223.) Final mitigationmeasure #7 .2 adopted for the Project does not include this caveat. (ARl:30.) The compensatorymitigation monitoring does not mention this caveat. (ARl1 : 3219,3223 lAppendix I of NES') Asnoted, the City may choose one or more parking relocation sites to replace lost parking' It is notknown what combination of parking relocation sites the City will choos e, and as such, the Citymust count the total trees potentially proposed for removal in its analysis'

Impacts to Sensitive Habitats. The MND concedes that the Project will result in "permanentloss,, of acknowledged sensitive habitats to the Riparian Forest, Montane-Hardwood Forest, andHangtown Creek. (ARl L:3724,31.26,3127.) Proposed mitigation for permanent habitat lossconsists of ffee planting and hydroseeding the area along the creek with grasses, legumes andwildflowers. (Opp. at IT .) Friends assert that the mitigation is not commensurate compensationthe loss and the MND should have admitted that potential impacts remain such that an EIR needsto be prepared to adequately study them. (AR2:311, 318-319;71:32L6-32L9')

6. Toxic ImPactsThe City erroneously states the facts. The City claims the initial site assessment found no

likely toxins in the project area, only potential contaminants in the area of the Ivy House parkinglot. (Opp. at 18.) The City states "The initial site assessment consisted of a thorough review ofknown hazardsin the area andfound that none are likely to have any effect in the Project area withthe possible exceptions ofpotentially contaminated soilsfrom aformer gas station. -.. and a heating otlunderground storage tank... " (Emphasis added.)

To the contrary, the MND states in the affirmative that "Taber found evidence of hazatdsubstances and/ or petrotreurn prodr.rcts 'rithin the project area during the ISA investigation thatqualrfy as recognized environmental conditions (RECs)" and arc "anticipated to be a source likelyto affect the project area." (AR1:32.) The location of underground storage tanks (UST) for theprevious gas station are unknown and some hydrocarbon odors were observed duringprtortrenching in the area. (Ibid.)

As much as the City downplays the possibility of contamination, the MND clearly states,,,Taber concluded that the potential for the proposed consffuction to encounter existingltazatdousmaterials within the project area is generally moderate." (ARi :32.) Thercficre, there is potential ofexisting hazardous materials that has yet to be identified or quantified. Taber's "moderate"

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calculation cannot be substantiated without the further sfudies that have been improperly deferredto a future time. (ARI:32; 10:2749.)

The City quotes Public Works Director, Randy Pesses, about "changing gears" ifcontaminates are accidentally found during consffuction. But the incident he speaks about wassrumbling across contaminates once construction has started. Here the ISA has aheady identifiedpotentiai hazards;the consultants have aheady recommended ageophysical survey and soil borito help identifu and help avoid an"accidental" discovery that could cause significantenvironmental impacts. These are the steps that CEQA requires before the approval of the project,before construction begins. (Laurel Heights Improvement Association v. Regents of the University ofCalifornia(19S8) 47 Cal.3d 31 6 , 3g4 - " a ftndamentai pu{pose of an EIR is to provide decisionmakers with information they can use in deciding whether to approve a proposed project, not toinform them of the environmental effects of projects that they have aheady approved.")

The City emphasizes the extraordinary circumstances in CBE are not analogous to the caseat hand. However, CBE cites Sundstrom v. County of Mendocino (1983) 202 Cal.App'3d 296 tnthat:,,[a] study conducted after approval of a project will inevitably have a diminished influenceon decision making. Even ilitre study is subject to administrative approval, it is analogousto the sort of post ioc rationalization of agenry actions that has been repeatedly condemnedin decisions cbnstruing CEQA." (Id. atp.307; No Oil, Inc. v. City of Los Angeks (I974) 13Cal.3d 68, 81; Environmental Defense Fund, Inc. v. Coastside County Water Dist' (1972) 27Cal.App.3 d 695, 706.)

In Sundstrom, the county approved a ptrvate sewage ffeaffnent plant via negaive declaration'The MND checklist indicated no significant environmental problems would occur if mitigationmeasure were adop ted. Later problems indicated the project would disrurb existing conditions- Thecourt found that the requirement that the applicant adopt mitigation measures recolrunended in afuture sruciy was in ciirect conflict wirh CEQA guicieiines; the use permit improperiy contempiatedthat the project pians could be revised to incorporate needed mitigation measures after the finaladoption of the negative declaration . (Sundstrom, supra, 202 Cal.App'3d at 305-306.)

The City claims avoidance measures incorporated into the Project would lessen impacts toinsigni.ficance. (ARl :32-33,10:2749.) Ilowever, by postponing environmental assessment to afuture date, the mitigation runs counter to CEQA poliry which requires environmental review atthe earliest feasible stage in the pianning process to determine the degree of the impact' CPRC21003; Sundstrom, supra at307 citing No Oil, Inc., supra,13 Ca1.3d at 84.) In Bozung v. Local AgencyFormation Com., (1g75) 13 Ca1.3d 263,282, the Supreme Court approved "the principle that the

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environmental impact should be assessed as eariy as possible in government planning'"Environmental problems should be considered at a point in the planning process "where genuineflexibility remains." (Sundstrom, sLtpra,202 Cal.App.3d at307 citing Mount Sutro Defense Committeev, Regents of University of Caffirnia (L978) 77 CaLApp'3d20,34')

This case is analogo vs to Sundstrom; itis a negative declaration case in which further studieshave been deferred and incorp orctedinto proposed mitigation measures' (AR1.32; Sundstrom,supra,202 Cal.App.3dat 303.) Here, the Taber study found two RECs within the project area thatare ,,anticipated to be a source likely to affect the project atea" with possible environmentalimpacts. (ARl:32.) To defer the study and mitigation of this critical issue to a future time runsafoul of the purpose of CEeA. As fully laid out in the Opening Brief, substantial evidence supportsafau argument such that an EIR needs to be prepared to study the potentially significant impact'(Opening Brief at 22-23 .)

7. A,esthetic and Yiew ImPactsThe City claims Friends have not met the burden of proof relative to the fair argument

standard. (Opp. at 20.) The City has conceded that the project is eliminating a specially designedand landsc aped,handicapped-accessible public viewing area overlooking Historic HangtownCreek. The MND admits the handicapped accessible overlook is an important visual resourcemaintained by the City of piacerville Community Pride organrzatron. (AR1:35.) The City suggeststhat ,,the El Dorado Trail ...would provide handicapped-accessible viewing opportunities of thecreek corridor to offset the loss of the existing viewing area..." (Ibid.) As the City failed to considerthe areaof the brrdgeand creek as historic resources, the City did not analyze the removal of thebridge, the creek landscaping, and the overlook in this context-

The Americans with Disabilities Act (ADA) requires the Crty to make sure that newfacilities used by the public meet certain criteria to provide access to disabled citizens- (AR5:1476')But providing ,,access" does not make up for the impact of the loss of an important visual resourceThe specifically designed handicapped compatible viewing area will bereplaced with abndge andtrail that has constant foot and bike traffic. The design ated "ltandicapped-accessible" viewing area,which was designed for special needs, is a welcome respite for handicapped residents and visitors,not simply afi afea that is "accessible," but a speciatr aesthetic resoulce.

The existing sidewaik system in Placerville is rapidly deteriorating. (AR5:1465) Thisprecludes disabled residents and visitors from freely exploring the Ciry. The Historic HangtownCreek over-look provides atateviewing opportunity where handicapped individuals can safely an

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easily visit and eryoy the incr^edible serenity and history of the area. The city offers no alternativein its place other than a busy foot and bike tr"ail. (AR1:35.)

The City states that the roundabout will "showcase the historical Druid Monument'" (opp'at20;AR1:205, 2I7.)However, the design of the roundabout relocates the Druid Monument mcenter of the roundabout where it is not accessible and precludes visitors from even geffing near it'(AR1:217.) There wi1lbe an "interpretive sign" outside the roundabout adjacent to a sidewalk forpedestrians to read within view of the monume nt. (Ibid.) A resident spoke to the original religiousand academic origins of the Druids and encouragedthe city to provide a contemplative place to sit

when a pilgrimage is made to the monument. (AR3:643.) with the current design, pedestrianswould risk life and limb to try to get close to the monument for viewing. The City says it is notconvenient nor desired for them to do so' (AR3:644')

The City claims that only a few citizens objected to the Project on this basis, in contrast tothe large number of resident s rn ocean View Estates and Pocket Protectors. (ocean View Estates, sLtpra,116 Cal.App.4to 396, Pocket Protectors, supra, 124 Cal.App.4d' 903') On the conffary, over 66individuals objecred to the roundabour Project and the removal of the historic bttdge' (AR3:713-71g.) The comments were not made by a few citizens as the record fully attests. Further, publiccomments regardtngthe aesthetic impacts of the Project were not premised on protecting privateviews of individual nearby property ownels, but were for the pulpose of protecting public views'including tourists who travel to Placerville. The 1849 Gold Rush, with Placerville and OldHangtown at its epicenter, was where the Gold Rush began; it started the largest human migrationin history, and was the most important event in American history, second only to the Civil War' Inthis context and at this location adjacent to locally designated historic districts, the replacement ofthe Clay Street bridge with a modern roundabout and brtdgeis out of place and an intrusion to theaesthefic and historic landscape'

8. Historic ImPactsFriends correctly cited to the holdin gtn Valtey Advocates v. City of Fresno (2008) 160

Cal.App.4* 1039 for the premise that the far argvment standard does not apply to the question ofwhether a property is an historic resource for purposes of CEQA' Valley Advocates also held that anagency cannot rely on the fact that a,property is not listed on an historic register to determine thatis not historic. Qd. at105g.) The City claims they did reiy on this narrow interpretation' however,numerous citations to the record show that Caltrans and the City did just that- (opening Brief at28; AR2:3 J 2, 37 6, 379, 585-586; 4: 1052-1053, 1 i07 ; 14'.40L6, 447 3, 4480')

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neither considers nor analyzes the resoulces as locally historic'2B

Petitioner's Reply Brlef in Support of Writ of Mandamus

The public Resources Code states that a resource that is not listed in or determined to beeligible for listing rn the California Register of Historic Resources, is not included in a local registerof historic resources (pursuant to 5020.1(k), nor deemed significant in a historical resource survey(pursuant to 5024.I(g), may nonetheless be historically significant (Pub. Res. Code $ 27084'I; seealso Guidelines 1506a'5 (a) (a).)

Experts Milford Wayne Donaldson, State Preservation Officer for the California Office ofHistoric preservation, wrote to the City stating there is no indication in the MND that the possiblesignificance of the bridge had been addressed. (ARl4:4r24.) Jennifer M' Gates, Field ServicesDirector, Califomia preservation Foundation in partnership with the National Trust for Historicpreservation, concurred. (AR16 4721; 4725.) Gates recommended that a study be undertaken toprovide facfrialevidence determining the eligibility of the brrdge at a locallevelby a qualifiedhistorian. (,\R76:4729.) Donaldson stated, "We sffongly advise the City to properly evaluate thepotentiai significance of the bridge and adoptfeasible mitigation measures which avoid or reduceall adverse impact to the potential historical lesoulce." (AR14:4125')

Where there is an omission of analysis, as here, the City may not ignore expeft testimonyrecofirmending the analysis be undertaken. Afterall, this is the whole point of environmentalreview. ..fc]omments from responsible experts or sister agencies that disclose new or conflicting dataor opinions that cause concem that the agency may not have fully evaluated the project" may not beignored. (Berketey Keep Jets over the Bay Commiltee v. Board of Port cmr's' (2001) 91 Cal'App'4ft1344,1367 quotingClearyv. Counly of Stanislaus, (1981) 118 Cal'App'3d 348,357')

Further, as pointed out in the Opening Brief the Draft-EIR for the Redevelopment Projectmentions Clay street, Hangtown Creek and the retaining wall as historic resources. (Opening Brieat 30; Request for Judicial Notice Exb. A; Motion to Augment the Record Exb' A') TheRedevelopment plan EIR preparedfor the City of Placerville, encompasses the same physical areaas the proposed project site. (tbid) The Roundabout Project was referenced numerous timesthroughout the Draft ETR.. (Ibid.) The city may not aclcrowiedge historic resources in oneenvironmental study and disregard them in another concufient srudy that encompasses the verysame physical area. Because the project proposes demolition of a historic resoutce and potentialimpacts to the historic creek, an EIR must be prepared to consider retention alternatives that retarnthe overlook, bridge and historic landscape seffing. (Opening Brief at28; Leaguefor Protection ofoakland,s Architectural and Historic Resources t. city of oakland (Igg7) 52 Cal.App. n 896') The MND

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A fafu argument of historic impacts has been established and the Cify must consider theremoval of Clay Sffeet, the Clay Street bridge and the retaining wall in an EIR that fairly looks atadaptive reuse alternatives'

The City asserts mitigation measures proposed by California Preservation Foundation wereabeady incorporated into the mitigation measures for the Project' (Opp. at29-30.) The scant 3-pamitigation monitorin gprogrammerely says that relocation of the Druid monument will follow thesecretary of interior guidelines. (AR14:3957.) CPF reviewed the proposed mitigation in February211l,said it was insufficient, and recommended the incorporation of further mitigation into theproject. (ARI6.4729.) CpF further noted that the National Register historic resource, PearsonWorks, abuts proposed improvements of the Project and addttronal mitigation should beincorporated into the Project to protect this resource. (AR16 :4729.) The mitigation monitoringprogram fails to add this mitigation. (AR14:3957.) A fair argument that impacts to the Druidmonument and the Pearson Soda Works remain, and an EIR shoul dbe prepared to consider theProject's impacts on historic resources.

9. Growth Inducing ImPactsThe Cify agues that Friends do not understand the difference between "growth inducing

impacts" and "cumulative impacts." (opp. at 30.) Friends' statement that "gtowth inducingimpacts are routinely analyzed as part of a cumulative impacts analysis" is taken from the CEQAguidelines themselves, which state:,,Growth-Inducing Impact of the ProposedProject...[d]iscuss the characteristic of some

projects which may encour age andfacilitate other activities that could significantly affectthe environment, .ith.t individually or cumulatively." (Emphasis added' CEQA Guidelines,section I51'26.2(d), also see Guide to CEQA, 11'h Ed', page 460')The review should discuss ways in which the project could directly or indirectly foster

economic or population growth or the construction of new housing in the sulroundingenvironment including "growth accommod ating" impacts that may remove obstacles to growth'(Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App'

h I44,158')In City of Antioch v. City Council of the City of Pixsburg (1986) i87 Cla'App'3d 1325, t}:re

argument that growth-inducing impacts are too "remote" and "speculative" was rejected. There,the appellate court found the adoption of a negative declaration for a proposed road and sewerconsffuction project violated CEQA. Respondents argued thatbecatse their project involved nobuilding construction and it was not known what type of development would occur, preparation oan EIR was not necessary. They also asserted an EIR need not be prepared because "proposals for

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future development will be subject to further environmental review at the time of development ofthe surrounding land." Qd. atp. 1333.) The appetlate court rejected this argument, writing:,,[C]onstruction of the roadway and utilities cannot be considered il isolation frorn thealvetopment it presages. Although the environmental impacts of future development canno

be presently predicteJ, it is very It.ty these impacts will be substantial." Qd' at p' 1336')The City required the developer of the Coffonwood Deveiopment to pay aS65,8Ll

mitigation fee for the Clay Street bridge replacement to compensate for the project's increasedtraffic. (AR2:613-614.) As Friends pointed out in the Opening Brief, the Cottonwood Park FlannedDevelopment Phases 4 & 6 are akeady in progress and the completion of the project at issue willcertainly generate additional traffic in the area. (opening Brief at32; see also AR3:696, 838;4:961'It is reason able andforeseeable that the current project would be a catalyst for future developmentby increasing capacity for traffic in the arca andthe growth inducing impacts of the roadwayProject must be anaiYzed in an EiR.

l0.UrbanDecay:AnalysisofEconomiclmpactsvs.EnvironrnentallmpactsThe City claims that Friends' concems regarding economic and social impacts are outside

the purview of CEeA. (Opp. at 10-11.) The City aiso claims that many of the economic impactsreference the unrelated Highway 50 roadway project. (opp at 11.) The City further claims that theevidence of economic impacts does not ielate to significant environmental impacts.

In Bakersfeld, suprz, 1,24 CaI'App'4tn , the court clarified:,,[I]f the forecasted economic or social effects of a proposed project directly or indirectly willlead to adverse physical changes in the environment, then CEQA requires disclosure andanalysis of these resulting physical impacts." (Id' at p' 1205')The Bakersfeld court further states that case law has established that in approprtate circumstancesCEeA requires urban ciecay or cieterioraiion to be consiciereci as an indirect environj:nerrtai effec-i oa proposed projecr. Qd. atp. 1205-1206 citing Bishop, supra, 172 Cal.App.3d at I7I [The agenryviolated CEeA because it did not consider the impact alargeregional shopping center would haveon downtown shoppin g area and thereby cause business closures and eventual physicaldeterioration of the downtown]-)

In this case, numerous business owners, and Vice Mayor Machado testified to thedevastating traffic impacts businesses suffered during the recent Highway 50 construction project'(AR3:650, 653, 655, 614,678,684, 683, 124-130.)Another construction project thatwouldsimilarly limit traffic to downtown could literally put downtown businesses out of business'

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p"tiiio.r.t't Reply Brief in Support of Writ of Mandamus

(AR3:6g3- 6g4; g36;8a4;852.)The economic effects stem from the closure and iimitation of trafficin the downtown area due to the demolition of existing roadways and Clay Sffeet Bridge, and theconsffuction of the new bridge and realignment. The economic effects are directly related to theenvironmental impacts of traffic.

In Citizensfor Quality Growth v. City of Mt. Shasta(lg8S) 198 Ca1'App'3d 433, the EIR poinout the proposed project may pose a significant economic problem for existing businesses, butoffered little analysis of the issue. The court rejected respondent's justifi-cation that "no analysis ofeconomic effects was requir ed. (Id. atp.445-446 [proposed shopping center's affec-' on centralbusiness areal.)

Here, downtown merchants gave relevant testimony of their own personal observation thatdowntown businesses had barely recovered from the physical impacts of the recent Highway 50consffuction project - resulting in severe physical impacts - when the Cify embarked on yetanother construction project that will similarly impact the business community' The current Projectis located even closer to downtown businesses than the Highway 50 Project, resulting in potentiallygreater impacts to downtown merchants. Further testimony about physical impacts to Town of Folsom'sbusinesses, due to a similar roadway project, was offered in support of the potential for urban decay byresident Lisa collins, (AR3:g52.) The city's claim that local business owners are not knowledgeableabout potential impacts of the roundabout Project are non persuasive' An EIR must be prepared toconsider whether the project "may" result in a sigpificant impact related to urban decay'11. Inconsistency with Area Flans and Policies

The City againasserts that a far argtment has not been made relative to the Project'spotential to affect arealanduse plans and policies. On this issue, Petitioner continues to rely on theOpening Brief, that fully sets forth the potential inconsistencies with area land use plans on thebasis of the substantial evidence offered in support. (Appendix G, X' LandUse Planning')

For the reasons set forth, Petitioner requests the Court issue a peremptory writ of mandateordering the City to vacate and set aside the MND and Project approvals and to refrain fromfurther consideration of approval pending its compliance with CEQA including certification of anEIR that fully analyzes project impacts, mitigations, and alternatives'Respectfully submitted,August 18,2017

Rachel Mansfield-HowlettAttorney for Petitioner, Friends of Historic HangtovmEl Dorado Superior Court Case No. PC-201101'45 - Page20

Provencher & F1att, LLP


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Friends of Histot'ic Hangtown u' City of Placeruill!'^'-t-fl:Ei D;;;;otounty Supeiior Court Case No. PC-20110145PROOF OF SERVICE

I am a citizen of the united states and a resident of the County of sonoma'I am over the age of eighteen years and not a party to the within entitled action'My business address is 823 Sonoma Ave' Santa Rosa' CA'

on August 18, 207!,I served one true coPy of the foliowing documents:PETITIONER'S REPLY BRIEFIN SUPPORT OF WRTT OF MANDAMUS

X by emailing and placing a true copy thereof enclosed in a sealed envelopeand postag? th"rion fuity pr"pui,i,'il al_iY*ted States mail at Santa Rosa,Californiu'udd..tted to ih6 persons listed below'sabrinaTeller/JenniferHolman Attorney\forRespondentO;t, rf't""'t"t, Moose & Manley City of Placeroille455 CaPitol Mall, Suite 210Sacramento, CA 9581'4STeller@rtmmlaw'comJHolman@rtmmlaw'comJoht DriscollCity of Placerviiie310 Center StreetP1acerville, CA 95667j driscoll@cityofplacervill e' org

City AttorneY

I declare under penalty of perjury that the foregoing is true and correct'Executed on August 18, 2011, at Santa Rosa' California'

W- Rachel MansField-Howl ett

Roundabout Lawsuit (file 3) - Petitioner's Reply

Documents

Transcript of Roundabout Lawsuit (file 3) - Petitioner's Reply