Petition for Writ of Mandate 1 2 3 4 5 6 7 8 9 10 11 12 ... - Nossaman

123456789101112131415161718192021222324252627Jonathan Evans (SBN 247376)CENTER FOR BIOLOGICAL DIVERSITYPMB 447, 8033 Sunset Blvd.Los Angeles, CA 90046Telephone: (213) 598-1466Email: jevans@biologicaldiversity.orgJohn Buse (SBN 163156)CENTER FOR BIOLOGICAL DIVERSITY5656 S. Dorchester Ave., No. 3Chicago, IL 60637Telephone: (323) 533-4416Email: jbuse@biologicaldiversity.orgAttorneys for PetitionersCENTER FOR BIOLOGICALDIVERSITY and SIERRA CLUB,Petitioners,vs.RIVERSIDE LOCAL AGENCYFORMATION COMMISSION, andDOES 1-20,Respondents.SUPERIOR COURT OF THE STATE OF CALIFORNIACITY OF DESERT HOT SPRINGS,LANDMARK PROPERTIES US INC,MICHAEL CROSBY, and DOES 21-50,Real Parties in Interest.IN AND FOR THE COUNTY OF RIVERSIDE)))))))))))))))))))))))))Case No.PETITION FOR WRIT OF MANDATE[Code Civ. Proc. §§ 1085; Pub. Res. Code § 21000,et seq. (California Environmental Quality Act);Govt. Code § 56000 et seq. (Cortese-Knox-Hertzberg Local Government Reorganization Act of2000)].Petition for Writ of Mandate

123456789101112131415161718192021222324252627INTRODUCTION1. In this action, Petitioners Center for Biological Diversity and Sierra Club (the“Petitioners”) challenge the approvals of Respondents Riverside Local Agency FormationCommission (“LAFCO”) in connection with the Palmwood Sphere of Influence Amendment(addition) to the City of Desert Hot Springs and Reorganization to Include ConcurrentAnnexation 30 to the City of Desert Hot Springs and Detachment from the Riverside CountyWaste Resources Management District (LAFCO 2006-152-5) (the “Annexation Project”). TheAnnexation Project constitutes the annexation of 2,114 acres to the City of Desert Hot Springsfrom Riverside County at the intersection of Indian Avenue and Highway 62 on the farnorthwestern fringe of the Coachella Valley. The stated purpose of the Annexation Project isto allow the conversion of virtually undeveloped fragile desert open space to thousands ofresidential units, 2 golf courses, over one million square feet of commercial development, a400 room hotel, and a commercial multi-use amphitheater (“underlying project” or “Palmwoodproject”) approved by the City of Desert Hot Springs on December 22, 2006. Real Party inInterest Michael Crosby proposed the Annexation of the site on behalf of the City of DesertHot Springs to provide the City with jurisdiction of lands that were located within RiversideCounty.2. The Annexation Project jeopardizes the Coachella Valley Multiple SpeciesHabitat Conservation Plan (“MSHCP”) because it would result in the destruction of importantconservation areas and wildlife habitat relied upon by the Coachella Valley MSHCP. In theplanning stages since 1994, the Coachella Valley MSHCP provides a tool to help balanceconservation of irreplaceable natural wildlife habitat with economic development, streamlinespermitting and development of private development and public infrastructure within the region,and creates a regional development blueprint for the Coachella Valley. The ecologicalimportance of the site for the Coachella Valley MSHCP is demonstrated by the evidence ofseven California species of special concern, a federally endangered plant, and the federallyendangered desert tortoise found on the site.Petition for Writ of Mandate2

1234567891011121314151617181920212223242526273. The Annexation Project does not provide for the adequate provision ofmunicipal services to the City for police, fire, roads, library, recreation and park, and streetmaintenance services. The Annexation Project creates a disjointed service provision patternwhich would serve to increase the cost of services for the Annexation Project withoutproviding adequate fiscal resources for a financially troubled City. In 2004 the City emergedfrom Chapter 9 bankruptcy, which was filed in December 2001. In August 2006, the CityCouncil approved a reduction in force by 20% in order to reduce expenditures byapproximately $2.5 million. These staff reductions included service provision personnel andfive police officers. Even with this change, the FY 2007 General Fund budget is still showinga deficit of approximately $1.2 million, covered through undesignated reserves. Evidencepresented to LAFCO demonstrates that the Annexation Project only worsens this deficit.4. On May 3, 2007, LAFCO filed a “Notice of Determination” for LAFCO 2006-152-5, stating that the annexation was approved by LAFCO as a Responsible Agency based onthe Environmental Impact Report prepared by the City of Desert Hot Springs as Lead Agency.5. As described in detail below, LAFCO’s actions in approving the AnnexationProject violated provisions of California Environmental Quality Act (“CEQA”) (PublicResources Code §§ 21000 et seq.) and the CEQA Guidelines (California Code of Regulations,title 14, §§ 15000 et seq.), as well as the Cortese-Knox-Hertzberg Local GovernmentReorganization Act of 2000 (“Cortese-Knox-Hertzberg Act” or “Act”), (Government Codesection §§ 56000, et seq.), which requires that LAFCO’s actions comply with CEQA.Petitioners seek a determination from this Court that the Annexation Project as approved isinvalid and void under CEQA and the Cortese-Knox-Hertzberg Act.6. LAFCO’s approval of the Annexation Project constituted a prejudicial abuse ofdiscretion in that LAFCO failed to proceed in the manner required by law and failed to act onthe basis of substantial evidence. In particular, the findings and statement of overridingconsiderations are not supported by substantial evidence in light of the significantenvironmental effects in the record including the EIR’s failure to adequately disclose andPetition for Writ of Mandate3

123456789101112131415161718192021222324252627analyze environmental impacts, the existing environment, mitigation measures, alternatives,and properly conform to public disclosure process. In addition, a subsequent or supplementalEIR must be prepared because new information and changed circumstances has been submittedafter the EIR was certified. Thus, LAFCO relied on inadequate environmental reviewdocuments when approving the Annexation Project. Because LAFCO is responsible forconsidering the effects of approving the annexation, its reliance on an EIR that does notevaluate the significant environmental impacts of the Annexation Project violates CEQA.Public Resources Code § 21002.1(d). The Petitioners accordingly request that this Court issuea writ of mandate under Code of Civil Procedure sections 1085 directing LAFCO to vacate andset aside its approval of the Annexation Project. These claims are based on the followingallegations:JURISDICTION AND VENUE7. This Court has jurisdiction over this action pursuant to sections 1085, 187, and526 of the California Code of Civil Procedure, sections 21168.5 of the Public Resources Code,and sections 56000 et seq. of the California Government Code.8. Jurisdiction pursuant to section 1085 of the California Code of Civil Procedureis mandated because a LAFCO annexation determination is quasi-legislative. Sierra Club v.San Joaquin Local Agency Formation Com. (1999) 21 Cal. 4th 489, 495. Mandamus will lie tochallenge an annexation before it is completed and final. Bozung v. Local Agency FormationCom. (1975) 13 Cal. 3d 263, 271-272.9. Venue for this action properly lies in the Riverside County Superior Courtbecause Respondent City of Desert Hot Springs and the proposed site of the AnnexationProject are located in Riverside County. Respondent LAFCO is the local agency formationcommission for the County of Riverside.THE PARTIES10. Petitioner CENTER FOR BIOLOGICAL DIVERSITY is a non-profit, publicinterest corporation with over 32,000 members and offices in Joshua Tree, San Francisco, LosPetition for Writ of Mandate4

123456789101112131415161718192021222324252627Angeles and San Diego, California; Tucson and Phoenix, Arizona; Pinos Altos, New Mexico;Portland, Oregon; and Washington, D.C. The Center and its members are dedicated toprotecting the diverse native species and habitats of western North America through science,policy, education, and environmental law. Recognizing that global warming from society’semission of greenhouse gases is one of the foremost threats to the Center’s members and theirrecreational, spiritual, vocational, aesthetic and other interests in the earth’s environment,biodiversity, and public health, the Center’s Climate, Air, and Energy Program works to reduceUnited States greenhouse gas emissions and promote sound conservation strategies in order toprotect these interests. Center members and staff reside and own property in Riverside County,and use publicly accessible portions of the Annexation Project site and surrounding areas forrecreational, wildlife viewing, scientific, and educational purposes. Center members presentedboth oral and written comments during the administrative hearings on the matters beingchallenged in this petition. The Center and its members are directly, adversely and irreparablyaffected, and will continue to be prejudiced by the Annexation Project and its components, asdescribed herein, until and unless this Court provides the relief prayed for in this petition.Petitioner SIERRA CLUB is a national nonprofit organization of over 732,000members dedicated to exploring, enjoying, and protecting the wild places of the earth; topracticing and promoting the responsible use of the earth’s ecosystems and resources; toeducating and enlisting humanity to protect and restore the quality of the natural and humanenvironment; and to using all lawful means to carry out these objectives. Over 193,500 SierraClub members reside in California. The Sierra Club has an interest in calling attention to urbansprawl and its impacts when such development threatens our environment, our health, and ourquality of life. Members of the Sierra Club presented both oral and written comments duringthe administrative hearings on the matters being challenged in this petition. Individual SierraClub members use and enjoy publicly accessible lands in and adjacent to the AnnexationProject area for environmental, recreational, and aesthetic purposes. In addition, the SierraClub and its members would derive environmental, recreational, health, and aesthetic benefitPetition for Writ of Mandate5

123456789101112131415161718192021222324252627from alternative uses of the Annexation Project area. These interests of the Sierra Club and itsmembers have been, are, and will be directly, adversely, and irreparably affected byRespondents’ failure to comply with the requirements of CEQA and other applicable laws incertifying the EIR and approving the Annexation Project, and will continue to be prejudiced byRespondents’ unlawful actions until and unless this Court provides the relief prayed for in thispetition.11. Respondent RIVERSIDE LOCAL AGENCY FORMATION COMMISSIONis the quasi-legislative body that is statutorily authorized to regulate, through approval ordenial, the boundary changes proposed by other public agencies or individuals. Any proposalto add land to a city or special district (annexations), create a new city or special district(incorporation or formation), remove land from a city or special district (detachment),consolidate, merge, or dissolve cities or special district in Riverside County must be reviewedand approved by LAFCO.12. Real Party CITY OF DESERT HOT SPRINGS is a local governmental agencyand political subdivision of the State of California charged with the authority to regulate andadminister land use activities within its boundaries, subject at all times to the obligations andlimitations of all applicable state, federal, and other laws, including CEQA and the CEQAGuidelines. The City also has the authority to approve land use development in and “pre-zone”areas that it intends to annex. The City is the CEQA lead agency for the EIR prepared for theAnnexation Project.13. Real Party in Interest LANDMARK PROPERTIES US INC is the applicant forthe entitlements that constitute the underlying project and Annexation Project. LANDMARKPROPERTIES US INC has been indicated as a recipient of an approval by the City andRespondent on Annexation Project approvals.14. Real Party in Interest MICHAEL CROSBY is the named applicant for theAnnexation Project. He is also President, Secretary, and Director of LANDMARKPROPERTIES US, INC.Petition for Writ of Mandate6

12345678910111213141516171819202122232425262715. Based on the Real Parties’ status as the identified applicant and developer, andon Petitioner’s information and belief, Real Parties adequately represent the interests of anyand all other non-joined parties in the Project.16. The Petitioners are currently unaware of the true names and capacities ofRespondents Does 1 through 20, inclusive, and therefore sue those parties by such fictitiousnames. Does 1 through 20, inclusive, are agents of the LAFCO, City, state, or federalgovernment who are responsible in some manner for the conduct described in this petition, orother persons or entities presently unknown to the Petitioners who claim some legal orequitable interest in the Annexation Project that is the subject of this action. The Petitionerswill amend this petition to show the true names and capacities of Does 1 through 20 when suchnames and capacities become known.17. The Petitioners are currently unaware of the true names and capacities of RealParties in Interest, Does 21 through 50, inclusive. Does 21 through 50, inclusive, are personsor entities presently unknown to the Petitioners who claim some legal or equitable interest inthe Annexation Project that is the subject of this action. The Petitioners will amend thispetition to show the true names and capacities of Does 21 through 50 when such names andcapacities become known.GENERAL ALLEGATIONS18. The Annexation consists of 2,114 acres of mostly undeveloped open space atthe southern base of the Little San Bernardino Mountains on the far northwestern fringe of theCoachella Valley. The Palmwood Annexation Project consists of the Palmwood Sphere ofInfluence Amendment (addition) to the City of Desert Hot Springs and Reorganization toInclude Concurrent Annexation 30 to the City of Desert Hot Springs and Detachment from theRiverside County Waste Resources Management District (LAFCO 2006-152-5).19. The site abuts public lands held by the Bureau of Land Management to thenorth and northeast and is largely disconnected from existing developed areas within the Cityof Desert Hot Springs. Surrounding land uses include the following: undeveloped open spacePetition for Writ of Mandate7

123456789101112131415161718192021222324252627in the Bureau of Land Management Big Morongo Canyon Area of Critical EnvironmentalConcern to the north and northeast that is adjacent to Joshua Tree National Park; undevelopedland and low density residential development to the west in the jurisdiction of RiversideCounty; and residential development to the southeast and undeveloped open space to the southwithin City’s jurisdiction.20. The underlying project includes the combined Palmwood Specific Plan andPalmwood Outparcels project, which together propose 2,694 homes, over 1,000,000 squarefeet of commercial space, a 400 room hotel, a commercial amphitheater, and 2 golf courses.At completion, the underlying project would add over 6,800 new residents to Desert HotSprings, increasing the population of the city by 40% based on 2000 census data.21. Specifically, the underlying project includes a Specific Plan, proposedamendments to the City’s Sphere of Influence, the proposed annexation of 1,926 acres into theCity, amendments to the City’s General Plan and Zoning Map to provide for the PalmwoodSpecific Plan and Palmwood Outparcels land uses, approval of Vesting Tentative Tract Maps34182, 34183 and 34184 to subdivide the Specific Plan site, approval of the conceptual gradingplan, and approval of roadway plans, park facilities, and water facilities. The underlyingproject itself proposes up to 2,694 residential dwelling units, 130 acres of GeneralCommercial/Mixed Use Residential to include a multiple-use amphitheater, 28 acres ofCommercial Resort Visitor to include a proposed 400 unit hotel, 544 acres of golf courses, 47acres of Public Utility as floodway designations, or water district property, and 713 acres ofundeveloped open space in the mountainous portion of the property.Coachella Valley MSHCP22. The underlying project proposes development on substantial portions of areasdesignated for conservation under the Coachella Valley MSHCP. The project will limit theallowed take by other jurisdictions of species covered by the Coachella Valley MSHCP andthreatens the viability of the Coachella Valley MSHCP. In the planning stages since 1994, theCoachella Valley MSHCP provides a tool to help balance conservation of irreplaceable naturalPetition for Writ of Mandate8

123456789101112131415161718192021222324252627habitat and wildlife with economic development, streamlines permitting and development ofprivate development and public infrastructure within the region, and creates a regionaldevelopment blueprint for the Coachella Valley. The Coachella Valley MSHCP wasdeveloped by federal, state, regional, and local agencies to grant incidental take of threatenedor endangered species under the federal Endangered Species Act and State CaliforniaEndangered Species Act.23. Between February and June of 2006 14 of 15 Permittees approved theCoachella Valley MSHCP. The City of Desert Hot Springs City Council was the solejurisdiction to reject take authority under the Coachella Valley MSHCP. By a letter datedNovember 20, 2006, the City of Desert Hot Springs withdrew its permit application as apotential participant in the Coachella Valley MSHCP.24. A recirculated Coachella Valley MSHCP removing Desert Hot Springs hasbeen completed and is currently undergoing environmental review and public comment. Therecirculated Coachella Valley MSHCP has already cost approximately $1 million dollars inplanning and consulting and threatens to impact the viability and success of the MSHCP.Letters from agencies that developed the Coachella Valley MSHCP concluded that the impactsof the underlying project and Annexation Project, as proposed, would adversely affect theimplementation of the Coachella Valley MSHCP and recommended denial of the AnnexationProject.Palmwood Environmental Impact Report25. The City prepared a Draft Environmental Impact Report (“EIR”) for theunderlying project and circulated it for public review and comment for 45 daysbeginning on October 24, 2006 and ending on December 8, 2006. According to theDraft EIR, the underlying project would result in significant unavoidable environmentalimpacts to air quality, aesthetics, and biological resources. Following circulation of theDraft EIR, other agencies, including the U.S. Fish and Wildlife Service, CaliforniaDepartment of Fish and Game and County of Riverside, and members of the public,Petition for Writ of Mandate9

123456789101112131415161718192021222324252627including Petitioners, provided comments on the Draft EIR. These commentscontained, among other things, objections to the inadequate mitigation proposed forbiological impacts, the failure to adopt feasible mitigation measures for biological,aesthetic, and traffic impacts, the failure to consider feasible alternatives, and theunderlying project’s inconsistency with the Coachella Valley MSHCP.26. Biological surveys found a number of protected animals and plants including:Nelsons Bighorn sheep, burrowing owls, Palm Springs pocket mouse, Palm Springs/roundtailedGround Squirrel, Le Conte's thrasher, loggerhead shrike (California designated speciesof special concern); Triple-ribbed milk vetch (federally endangered species); and Little SanBernardino Mountains linanthus (federal species of special concern under the Coachella ValleyMSHCP). The site is also habitat for the desert tortoise (federally endangered species) andevidence of the tortoise was found on the site. The underlying project will also result insignificant indirect impacts to natural communities that rely on the groundwater aquifer for theunderlying project, especially mesquite hummocks and desert fan palm oasis.27. Substantial portions of the site have been designated for conservation byfederal, state, and local agencies. The underlying project will develop areas adjacent andwithin portions of the Big Morongo Canyon Area of Critical Environmental Concerndesignated by the BLM, and Upper Mission Creek – Big Morongo Conservation area under theCoachella Valley MSHCP.28. Four different natural washes, Big Morongo, Dry Morongo, Mission Creek,and Midway Canyon, flow across the property. While dry under most conditions, the washescan carry large flows and sand sources after major storm events; the 100-year flood plain forthese washes covers substantial portions of the site. The development footprint will placehabitable structures within the existing 100-year flood hazard area as mapped by the FederalEmergency Management Agency.29. The underlying project will generate 61,000 daily automobile trips and wouldresult in significant air quality impacts even if the air mitigation measures proposed in the EIRPetition for Writ of Mandate10

123456789101112131415161718192021222324252627and adopted by the City are implemented.30. Due to the significant impacts to aesthetic, biological, and air quality resourcesnumerous federal, state and local organizations, and citizens expressed grave concerns over theunderlying project and encouraged further mitigation. Despite the permanent and cumulativeimpacts, the City rushed the EIR through the CEQA process. Correspondence in City files onthe underlying project show that the developer, Landmark Properties US, Inc, worked with theCity to hasten approval of the underlying project. Desert Hot Springs officials admitted atpublic meetings to placing the underlying project on a fact track in order to approve theunderlying project before a revised version of the Coachella Valley MSHCP could beapproved. The City responded to over 125 pages of comments from 16 different federal, state,and local agencies on the DEIR over the weekend between Friday December 8th and MondayDecember 11th. Revisions were made to responses after December 11th and final responses tocomments were completed on December 13, 2006.31. The City scheduled special meetings of the Planning Commission and CityCouncil to consider the underlying project after the City offices were closed for the Christmasholiday. On December 21, 2006, the City scheduled back-to-back special meetings by thePlanning Commission and City Council regarding the underlying project. The publicpresented testimony that was opposed to the underlying project because of its significantenvironmental impacts, the haste of underlying project review and approval, and the City’sdecision to schedule the meeting on the eve of the Christmas holiday. The City Councilcontinued the meeting until Friday December 22, 2006 at 5:00 P.M.32. On December 22, 2006 the City Council by a vote of four to one approved theunderlying project, certified that the Final EIR for the underlying project had been prepared incompliance with CEQA, adopted findings in support of the underlying project, adopted aMitigation Monitoring and Reporting Program for the underlying project, approved a requestfor the Riverside Local Agency Formation Commission to approve annexation of theunderlying project, and approved an ordinance of pre-zoning in accordance with the PalmwoodPetition for Writ of Mandate11

123456789101112131415161718192021222324252627Specific Plan.33. In comments at City meetings and to the public, City officials stressed that theCity hoped to approve the underlying project, obtain LAFCO approval of the annexation, andsign the accompanying agreements with developers in advance of implementation of theCoachella Valley MSHCP. On or about December 22, 2006 Mayor Pro Tem Mary Stephenspublicly stated the following regarding the underlying project: "We should have taken moretime, but we don't have time. This land may be taken by the MSHCP." In coverage of the voteby the Press Enterprise, Mayor Alex Bias stated that he voted against the approval because hewas concerned about the City’s haste in approving the underlying project without fullyaddressing certain issues before it was sent to LAFCO.34. Notably, although under the CEQA Guidelines, a responsible agency shouldreview and comment on environmental review documents for projects that the responsibleagency will later be asked to approve, CEQA Guidelines § 15096, LAFCO did not comment onthe EIR for the underlying project during the comment period and no comments from LAFCOwere included in the Response to Comments. Petitioners are informed, and on that basisallege, that LAFCO did not provide comments on the underlying project or on theenvironmental review documents for the underlying project to the City at any time.35. On December 26, 2006, the City filed a Notice of Determination for theunderlying project stating that the underlying project will have a significant effect on theenvironment, that an EIR was prepared for the underlying project pursuant to CEQA, thatmitigation measures were made a condition of approval for the underlying project, that aStatement of Overriding Considerations was adopted for the underlying project, and thatfindings were made pursuant to CEQA.36. On January 24, 2007, the Center for Biological Diversity and the Sierra Clubfiled a petition for writ of mandate against the City in Riverside County Superior Court,challenging the City’s certification of the Environmental Impact Report and approval of theunderlying project. Center for Biological Diversity et al. v. City of Desert Hot Springs, et al.,Petition for Writ of Mandate12

123456789101112131415161718192021222324252627Case No. RIC 464585. This action is currently pending.Palmwood LAFCO Annexation37. The Palmwood Annexation consists of the Palmwood Sphere of InfluenceAmendment (addition) to the City of Desert Hot Springs and Reorganization to IncludeConcurrent Annexation 30 to the City of Desert Hot Springs and Detachment from theRiverside County Waste Resources Management District (LAFCO 2006-152-5). TheAnnexation Project provides for the annexation of 2,114 acres to the City of Desert HotSprings from Riverside County at the intersection of Indian Avenue and Highway 62. Thestated purpose of the Annexation is to permit the development of the underlying projectapproved by the City of Desert Hot Springs including 2,694 residential units, 2 golf courses,over one million square feet of commercial development, commercial multi-use amphitheater,and a 400 room hotel. Real Party Michael Crosby proposed the Annexation of the site onbehalf of the City of Desert Hot Springs to provide the City with jurisdiction of lands that werelocated within Riverside County.38. On or about February 9, 2007 LAFCO sent a notice of the opportunity tocomment on the Palmwood annexation to federal, state, and local organizations.39. LAFCO received numerous comments from public agencies, environmentaland citizens’ organizations, and individual citizens critical of the Annexation Project andunderlying environmental analysis. The agencies and organizations that overwhelminglyrecommended denial of the Annexation Project because of its impacts on the environment andrecognized regional conservation plans included U.S. Fish and Wildlife Service, CaliforniaDepartment of Fish and Game, Coachella Valley MSHCP Core Scientific AdvisoryCommittee, Center for Biological Diversity, Sierra Club, Endangered Habitats League, andFriends of Big Morongo Canyon Preserve. LAFCO received comments from several agenciescritical of the Annexation Project because it was out of compliance with Coachella ValleyMSHCP including the County of Riverside-Environmental Programs Department, and theCoachella Valley Conservation Commission. Several agencies submitted comments notingPetition for Writ of Mandate13

123456789101112131415161718192021222324252627that the environmental review and analysis of the Annexation Project was inadequate includingthe County of Riverside-Transportation Department & Planning Department, and the Bureau ofLand Management.40. LAFCO staff, Riverside County Board of Supervisors, and environmentalorganizations noted that the Annexation cannot provide for the adequate provision ofmunicipal services for police, fire, roads, library, recreation and park, and street maintenanceservices provided by the City. The Annexation Project creates a disjointed service provisionpattern which would serve to increase the cost of services for the Annexation Project withoutproviding adequate fiscal resources for the City to serve the needs required by the AnnexationProject. In 2004 the City emerged from Chapter 9 bankruptcy, which was filed in December2001. In August 2006, the City Council approved a reduction in force by 20% in order toreduce expenditures by approximately $2.5 million. These staff reductions included serviceprovision personnel and five police officers. Even with this change, the FY 2007 General Fundbudget is still showing a deficit of approximately $1.2 million, covered through undesignatedreserves.41. The Staff Report prepared by LAFCO for the Annexation Projectrecommended denial of the project “[b]ased on concerns on service provision for this projectand upon concerns on the regional impact upon the Coachella Valley Multi Species HabitatConservation Plan (CVMSHCP or HCP).” Specifically, the Staff Report recognized that there“are some significant service concerns associated with this proposal especially in regards toPolice, Roads, Library and Recreation services provided by the City. The annexation creates adis-jointed service provision pattern which would only serve to increase cost of serviceprovision.” Additionally, the Staff Report emphasized the negative costs associated with theAnnexation Project’s impacts on the Coachella Valley MSHCP that were not analyzed duringthe approval process for the underlying project or the Annexation Project including “delayedprojects, federal and state grant monies, impact fees and loss of habitat which may not be ableto be mitigated in any other location.” The Staff Report also emphasized the costs associatedPetition for Writ of Mandate14

123456789101112131415161718192021222324252627with “time consuming revisions” of the Coachella Valley MSHCP resulting from theAnnexation Project.42. The underlying project and Annexation Project have the potential to negativelyimpact the federally and state listed Coachella Valley fringe-toed lizard (“fringe-toed lizard”)and its associated habitat. Comments submitted by the California Department of Fish andGame and the U.S. Fish and Wildlife Service noted that the Annexation will impact the sandtransport system relied upon by the fringe-toed lizard. Prior to approval of the AnnexationLAFCO produced a staff report on the Annexation Project recognizing that “species not foundwithin the Palmwood and out parcels annexation could be affected by the proposeddevelopment. One such species is the Coachella Valley Fringed-Toed Lizard which inhabitssand dunes located in the Willow Hole Conservation area… [T]he source of sand sediments(mountain areas) and the sand transport system (Mission Creek and Little Morongo washes) isfound within the Palmwood project area. Disruption of the source materials or the sandtransport through the washes could have severe impacts upon the habitat of the lizard.” Theunderlying project would result in the conversion of washes through development,channelization, and placement of soil cement along washes altering the necessary transport ofsand sources downstream to existing reserves relied upon by the fringe-toed lizard. Impacts tothe fringe-toed lizard, its habitat, or ecological processes supporting the fringe-toed lizard,however, were not analyzed during the CEQA process for the underlying project orAnnexation Project.43. On April 26, 2007 LAFCO approved the annexation of the subject propertyfrom the County of Riverside to the City based upon the CEQA review for the Palmwoodproject and pre-annexation performed by the City. LAFCO has sole and final approvalauthority over aspects of the Annexation Project necessary for the Annexation Project toproceed including the sphere of influence amendment, concurrent annexation, and detachmentfrom the Riverside County Waste Resources Management District.44. On May 3, 2007, LAFCO filed a Notice of Determination (“NOD”) forPetition for Writ of Mandate15

123456789101112131415161718192021222324252627LAFCO 2006-152-5, stating that the annexation was approved by LAFCO as a ResponsibleAgency based on the Environmental Impact Report prepared by the City of Desert Hot Springsas Lead Agency. The NOD found that the Annexation Project will have a significant effect onthe environment, that an EIR has been prepared for the underlying project, that mitigationmeasures were adopted and made a condition of approval of the underlying project, and that aStatement of Overriding Considerations was adopted for the underlying project. Notably, theNOD did not find that all “potentially significant effects(a) [sic] have been adequately analyzedin an earlier EIR” and did not find that “NOTHING FURTHER IS REQUIRED” for theAnnexation Project and underlying project (emphasis in original).45. On May 4, 2007 the California Department of Fish and Game submitted a letterto the Coachella Valley Association of Governments stating that the Palmwood Annexation tothe City of Desert Hot Springs approved by LAFCO may result in the expiration of the fringetoedlizard consistency determination—permitting incidental take of the fringe-toed lizard—because of delays encountered in the implementation of the Coachella Valley MSHCP. As aresult of expiration of the fringe-toed lizard consistency determination and failure to implementthe Coachella Valley MSHCP, individual projects that may result in take of Coachella Valleyfringe-toed lizards would need to apply for a California Endangered Species Act (CESA)Incidental Take Permit.46. Petitioners are informed, and on that basis allege, that on May 25, 2007 theCoachella Valley Conservation Commission and County of Riverside both independently filedrequests for reconsideration of the April 26, 2007 Palmwood Annexation approval by LAFCO.LAFCO is scheduled to hear the request for reconsideration on July 12, 2007. Petitioners areinformed, and on that basis allege, that LAFCO has not yet approved findings or executedresolutions approving the Palmwood Annexation. The resolutions cannot become completedor final until the July 12, 2007 reconsideration hearing is completed. Nonetheless, the LAFCONOD filed on May 3, 2007 commenced the CEQA statute of limitations for the LAFCO action.In addition, Petitioners are informed based on telephonic conversation with LAFCO legalPetition for Writ of Mandate16

123456789101112131415161718192021222324252627counsel on May 17, 2007, and on that basis allege that the requests for reconsideration do notautomatically toll the statute of limitations for this action. Petitioners therefore file this actionto preserve any legal rights and remedies.47. As a result of LAFCO’s approval of the Annexation Project, the Petitionerswill suffer great and irreparable environmental harm as described herein. Petitioners have noadequate remedy at law for this irreparable harm.48. The Petitioners have exhausted all administrative remedies by submittingwritten comments to LAFCO prior to the Annexation Project’s approval and appearing at thepublic hearings on the Annexation Project to request compliance with CEQA and the Cortese-Knox-Hertzberg Act. All issues raised in this petition were raised before Respondents by thePetitioners, other members of the public, or public agencies.49. The Petitioners have complied with Public Resources Code section 21167.5 byprior service of a notice upon Respondents indicating its intent to file this Petition. Proof ofService of this notification, with the notification, is attached as Exhibit A.50. Petitioners have complied with the requirements of Public Resources Codesection 21167.6 by concurrently filing a request concerning preparation of the record ofadministrative proceedings relating to this action.51. This petition is timely filed in accordance with Public Resources Code section21167 and CEQA Guidelines section 15112.52. Respondents have abused their discretion and failed to act as required by law inthe following ways:FIRST CAUSE OF ACTIONVIOLATION OF CEQA (Public Resources Code § 21000, et seq.) Failure to Proceed inthe Manner Required by Law and Failure to Act on the Basis of Substantial Evidence53. Petitioners hereby incorporate by reference each and every allegation set forthabove.54. CEQA is designed to ensure that the long-term protection of the environmentPetition for Writ of Mandate17

123456789101112131415161718192021222324252627be the guiding criterion in public decisions. CEQA accomplishes its purpose by requiringpublic agencies to determine and to disclose to the public detailed information about the effectthat the proposed project is likely to have on the environment, to list ways in which the effectsof the project might be minimized and to indicate alternatives to the project. The term“project” applies to the “whole of an action” which has the potential for resulting in a direct orreasonably foreseeable indirect change in the environment, including, for example, bothactivities undertaken directly by a public agency and activities undertaken by private personswith public agency approval. The CEQA analysis should be prepared as early in the planningprocess as possible in order to enable environmental considerations to influence project andprogram design.55. The Cortese-Knox-Hertzberg Act requires that LAFCO comply with CEQA.See e.g. Government Code section 56428(b). The Act also states that it is LAFCO’s purpose todiscourage sprawl, protect open space and prime agricultural lands, and promote orderly andefficient planning and growth. See e.g. Gov. Code § 56001, 56301 and 56425.56. CEQA requires that each public agency shall mitigate or avoid the significanteffects on the environment that it approves whenever feasible, including the responsibleagency’s requirement to mitigate and avoid the effects of those activities it is required by lawto approve. Public Resources Code § 21092. Each public agency, including responsibleagencies, are required to adopt necessary findings if a project has significant effects on theenvironment that can be mitigated, avoided, or such mitigation or avoidance measures areinfeasible. Public Resources Code § 21081, CEQA Guidelines 15096. Findings made by eachpublic agency must be based on substantial evidence in the record. Public Resources Code §21081.5, CEQA Guidelines 15096. In approving the project LAFCO did not make findingsrelated to the Annexation Project or the significant effects on the environment. LAFCO’sfailure to make findings under CEQA in approving the Annexation Project with significanteffects on the environment that could have been mitigated or avoided through its statutoryauthority is a prejudicial abuse of discretion and cannot be supported by substantial evidence inPetition for Writ of Mandate18

123456789101112131415161718192021222324252627the record.57. LAFCO’s approvals of the Annexation is invalid under CEQA and the CEQAGuidelines and constitutes a prejudicial abuse of discretion in that LAFCO failed to proceed inthe manner required by law and failed to act on the basis of substantial evidence. LAFCO’sactions are invalid because the agency relied upon an EIR when there is substantial evidence inthe record to demonstrate that the Annexation Project will have significant impacts on theenvironment that have not been adequately analyzed or mitigated. Specifically, LAFCO’sapprovals constitute a prejudicial abuse of discretion in light of the following EIR and CEQAdeficiencies:a) Failure to adequately disclose and analyze the project’s impacts to entire categoriesof environmental impacts including, but not limited to: Biological Resources suchas the Coachella Valley fringe-toed lizard, its habitat, and adopted conservationplans; Hydrology and Water Quality; Water Supply; Energy Conservation; PublicServices; Transportation and Traffic; Air Quality; Global Warming; Population andHousing, and Growth Inducement; Aesthetics; Recreation; Cumulative Impacts;conflicts with the Coachella Valley MSHCP and Coachella Valley fringe-toedlizard HCP; and General Plan inconsistencies. LAFCO’s environmental reviewfails to analyze the impacts of additional areas of annexation not included in theEIR; the LAFCO application, 2,114 acres, contradicts the 1,926 acre site descriptioncontained in the EIR and as approved by the City of Desert Hot Springs.b) Failure to adequately analyze mitigation measures to reduce impacts to biologicalresources, air quality, hydrology and water quality, groundwater availability, publicservices, transportation and traffic, population and housing, and growth inducement,aesthetics, energy conservation, recreation, growth-inducing and cumulativeimpacts. The EIR fails to adopt feasible and reasonable mitigation measuresproposed by public agencies during the review and approval of the project,including those proposed by the USFWS, CDFG, BLM, South Coast Air QualityPetition for Writ of Mandate19

123456789101112131415161718192021222324252627Management District, National Park Service, California Department of ToxicSubstances Control, County of Riverside Transportation and Land ManagementAgency, and Riverside County Flood.c) In approving the Project, Respondents failed to consider alternatives to the Projectthat could eliminate or substantially lessen significant impacts.d) Adoption of a statement of overriding considerations that is not supported bysubstantial evidence including a finding that specific considerations make infeasiblethe mitigation measures or alternatives identified in the EIR for the Project’sunavoidable significant impacts.e) Failure to revise and recirculate the EIR for further review and comment whensignificant new information within the meaning of Public Resources Code §21092.1 and State CEQA Guidelines § 15088.5 was submitted including, but notlimited to, biological resources, aesthetics, air quality, hydrology and water quality,groundwater availability, public services, transportation and traffic, population andhousing, and growth inducement, aesthetics, and recreation.f) Inadequate response to comments in the EIR to Petitioners, other members of thepublic, and other agencies. The responses given to numerous comments regardingthe Project’s biological resources impacts, aesthetic impacts, traffic impacts, watersupply, hydrology and water quality, cumulative and growth inducing impacts,consistency with General Plan policies and standards, public services, transportationand traffic, population and housing, recreation, adequacy of mitigation measures,and alternatives are conclusory, evasive, confusing, or otherwise non-responsive,contrary to the requirements of CEQA.g) Inadequate project description and description of the existing environmentincluding, inter alia, the Big Morongo Canyon Area of Critical EnvironmentalConcern, operation and management of the golf course component of the Project inorder to determine the Project’s full range of impacts on biological resources,Petition for Writ of Mandate20

123456789101112131415161718192021222324252627existing conservation areas, water quality, hydrology, traffic, air quality, and waterresources.58. LAFCO’s NOD for the Annexation Project that the EIR, mitigation, andstatement of overriding considerations comply with CEQA is not supported by substantialevidence and represent a failure to proceed in the manner required by law.SECOND CAUSE OF ACTIONVIOLATION OF CEQA (Public Resources Code § 21000, et seq.) – Failure to Require aSupplemental or Subsequent EIR59. Petitioners hereby incorporate by reference each and every allegation set forthabove.60. CEQA requires that changes to a project or its surrounding circumstancessubsequent to the certification of an initial EIR necessitate the preparation of either asubsequent EIR or supplemental EIR. CEQA Guidelines 15162, 15163. As a ResponsibleAgency LAFCO has the discretion to require environmental review or analysis of factors thatwere not considered as part of the Lead Agency’s environmental review. This permits Leadand Responsible agencies to prepare documents that allow projects to be modified in responseto changed circumstances and new information without requiring that an entirely new CEQAprocess.61. A subsequent or supplemental EIR must be prepared because new informationor changed circumstances has been submitted after the EIR was certified by the City including:impacts on the fringe-toed lizard, its habitat, HCP, and ecological processes supporting thefringe-toed lizard and the fringe-toed lizard HCP; impacts to the Coachella Valley MSHCP;impacts to surrounding jurisdictions such as negative economic impacts and impacts uponadopted Habitat Conservation Plans; the viability of the City and the underlying project toprovide adequate municipal services for the project including police, fire, roads, library,recreation, and street maintenance services; and changes in Annexation Project from theunderlying project approved by the City such as the addition of annexation areas included inPetition for Writ of Mandate21

123456789101112131415the EIR. The LAFCO application, 2,114 acres, contradicts the 1,926 acre site descriptioncontained in the EIR and as approved by the City of Desert Hot Springs. Numerous publicagencies raised new information or changed circumstances after the certification of the City’sEIR during the LAFCO annexation proceedings and reconsideration requests such asinformation submitted by Petitioners, the U.S Fish and Wildlife Service, California Departmentof Fish and Game, County of Riverside, the Coachella Valley Conservation Commission, andother environmental groups. Additionally, information submitted by the California Departmentof Fish and Game on May 4, 2007 regarding the Annexation’s impacts on the consistencydetermination for the fringe-toed lizard must be analyzed in a subsequent or supplemental EIR.62. LAFCO’s failure to require environmental review for information triggering asubsequent or supplemental EIR is not supported by substantial evidence and represents afailure to proceed in the manner required by law.PRAYER FOR RELIEFWHEREFORE, Petitioners pray for relief as follows:1. For alternative and peremptory writs of mandate, commanding Respondents:16(A)to vacate and set aside approval of the Annexation Project, including the171819Palmwood Sphere of Influence Amendment (addition) to the City of Desert Hot Springs andReorganization to Include Concurrent Annexation 30 to the City of Desert Hot Springs andDetachment from the Riverside County Waste Resources Management District;20(B)to vacate and set aside the Notice of Determination of the EIR for the21Annexation Project;22(C)to require the preparation and certification of a legally adequate EIR for the23Annexation Project;24(D)to suspend any and all activity pursuant to Respondent’s approval of the252627Annexation Project that could result in an adverse change or alteration to the physicalenvironment until Respondent has complied with all requirements of CEQA and all otherapplicable state and local laws, policies, ordinances, and regulations as are directed by thisPetition for Writ of Mandate22

123456789l0Court pursuant to Public Resources Code section 21168.9.2. For a stay, temporary restraining order, preliminary injunction, and permanentinjunction prohibiting any actions by Respondent pursuant to Respondent's approval of theAnnexation Project and certification of the EIR for the Annexation Project until Respondentshave fully complied with all requirements of CEQA, and all other applicable state and locallaws, policies, ordinances, and regulations;3. For a declaration that the Annexation Project is inconsistent with CEQA;4. For costs of the suiu5. For attorney's fees pursuant to the Code of Civil Procedure section I 02 I .5; and6. For such other and further relief as the Court deems just and proper.1lt213t4DATED: May 31., 2007 Jonathan EvansJohn BuseCENTER FOR BIOLOGICAL DIVERSITY15t6r718rgnathan EvansAttorneys for PetitionersCENTER FOR BIOLOGICAL DIVERSITYSIERRA CLIJB202r222324252627Petition for Writ of Mandate23

123456789101112131415161718192021222324252627Jonathan Evans (247376)CENTER FOR BIOLOGICAL DIVERSITYPMB 447, 8033 Sunset Blvd.Los Angeles, CA 90046Tel: (213) 598-1466Fax: (213) 652-1940Email: jevans@biologicaldiversity.orgJohn Buse (SBN 163156)CENTER FOR BIOLOGICAL DIVERSITY5656 S. Dorchester Ave., No. 3Chicago, IL 60637Tel: (323) 533-4416Email: jbuse@biologicaldiversity.orgAttorneys for PetitionersCENTER FOR BIOLOGICALDIVERSITY and SIERRA CLUBPetitioners,vs.RIVERSIDE LOCAL AGENCYFORMATION COMMISSION, andDOES 1-20,Respondents.Notice of Commencement of CEQA ActionSUPERIOR COURT OF THE STATE OF CALIFORNIACITY OF DESERT HOT SPRINGS,CITY COUNCIL OF THE CITY OFDESERT HOT SPRINGS,LANDMARK PROPERTIES US INC,LANDMARK MIDWEST LTD.,COYOTE CANYON GROUP LLC,PALMWOOD COMMERCIAL LLC,MICHAEL CROSBY, and DOES 21-50,Real Parties in Interest.IN AND FOR THE COUNTY OF RIVERSIDE))))))))))))))))))))))))Case No.NOTICE OF COMMENCEMENT OF CEQAACTION[Pub. Res. Code § 21167.5]EXHIBIT A1

12345678910TO RESPONDENTS RIVERSIDE LOCAL AGENCY FORMATION COMMISSION:Please take notice, pursuant to Pub. Res. Code S 21167 .5, that on May 3I,2007,Petitioners Center for Biological Diversity and Sierra Club intend to commence an action forvalidation to review, overtum, set aside, void, and annul the Riverside Local Agency FormationCommission's decisions approving LAFCO 2006-152-5- SPHERE OF INFLUENCEAMENDMENT (addition) TO THE CITY OF DESERT HOT SPRINGS ANDREORGANIZTION TO INCLUDE CONCURRENT ANNEXATION 30 TO THE CITY OFDESERT HOT SPRINGS AND DETACHMENT FROM THE RIVERSIDE COUNTYWASTE RESOURCES MANAGEMENT DISTRICT (the "Project") and relying uponEnvironmental Impact Report SCH #2005121013. This action is based on Respondents' failurel112to comply with the Califomia Environmental Quality Act (Public Resources Code $ 21000 etseq.,) and the Cortese-Knox-Hertzberg Local Govemment Reorganization Act of 200013(Government Code $ 56000 et seq.) in approving the Project.t415r6r7DATED: May 29.2007Jonathan EvansJohn BuseCENTER F'OR BIOLOGICAL DIVERSITYl8r9202l222324252627By:ATHAN E,VANSttornevs for PetitionersCENTER F'OR BIOLOGICAL DIVERSITYSItrRRA CLTJBNotice of Commencement of CEQA Action

I234567PROOF OF SERVICESTATE OF CALIFORNIA, COLINTY OF LOS ANGELESI am employed in the County of Los Angeles, Califomia. I am over the age of 18 andnot a party to the foregoing action. My business address is PMB 447,8033 Sunset Blvd. LosAngeles, CA. 90046.On May 29,2007,I served a true and correct copy of the NOTICE OFCOMMENCEMENT OF CEQA ACTION on Respondent Riverside Local Agency FormationCommission in this action as follows:891011Xl1213l4l5r6t718I9I It IBY MAIL Such envelope was sealed and placed for collection and mailing followingordinary business practices addressed to:BY PERSONAL SERVICE by personally delivering such envelope by hand to theoffrces of the addressee(s).BY OVERNIGHT DELIVERY SERVICE via Federal Express to the offices of theaddressee(s). In accordance with Code of Civil Procedure $ 1013(c) as follows: I amreadily familiar with this firm's practice of collection and processing correspondence formailing with the Federal Express. Under that practice the correspondence would bedeposited with Federal Express on that same day in the ordinary course of business withpostage thereon fully prepaid at Los Angeles, California. Such envelope was sealed andplaced for collection and mailing following ordinary business practices addressed to:George Spiliotis, Executive OfficerRiverside Local Agency FormationCommission3850 Vine St, Suite 110Riverside, CA. 92507 -4277202l222324t IBY FACSIMILE. A true copy thereof was transmitted by facsimile and the transmissionreported complete and without effor.Executed on May 30,2007 in Los Angeles, California.txl STATE I declare under penalty of perjury under the law of California that theforegoing is true and correct.252627Jonathan EvansType or Print NameSignatureNotice of Commencement of CEQA Action