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ENDORSED
1 BRIGIT S. BARNES & ASSOCIATES, INC.
BRIGIT S. BARNES, ESQ. CSB #122673 2 ^ t i m \ l AHII: 50
2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591
3 3262 Penryn Road, Suite 200 GDSSC C0URTHOn«5r:
Loomis, CA 95650 SUPERIOR COORT
_^ OF CALiFORfJiA
4 Telephone: (916)660-9555 SACRAMENTOCOUNTY
Facsimile: (916)660-9554
5
Attomeys for PETITIONERS
6 And Plaintiffs
7 PATTY JOHNSON;
JOE TEIXEIRA; OMAR
8 AHMED, JR.; XIN GUO
and CAROLYN SOARES
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SUPERIOR COURT OF CALIFORNIA
10
11 COUNTY OF SACRAMENTO
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13 PATTY JOHNSON, JOE TEIXEIRA, CASE NO. 34-2016-80002493
OMAR AHMED, JR., XIN GUO
14 And CAROLYN SOARES
NOTICE TO ATTORNEY GENERAL
15 Petitioners and Plaintiffs, (AMENDED PETITION-COMPLAINT)
16
17 CITY OF ELK GROVE
18 Respondents and Defendants.
19
ELK GROVE TOWN CENTER, LP;
20 HOWARD HUGHES CORPORATION; and
DOES 1-20,
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Real Parties in Interest and
22 Defendants.
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26 TO THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA:
27 PLEASE TAKE NOTICE, under Public Resources Code § 21167.7 and Code ofCivil
28 Procediure § 388, that on March 13, 2017, Petitioners and Plaintiffs Patty Johnson, Joe Teixeira,
NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT) - I
1 Omar Ahmed, Jr., Xin Guo, and Carolyn Scares filed a Verified Amended Petition for Writ of
2 Mandate and Complaint for Declaratory Relief against the City of Elk Grove, Elk Grove Town
3 Center, LP, and Howard Hughes Corporation in the Sacramento County Superior Court. The
4 Amended Petition and Complaint alleges that since thefilingof the Petition on November 23,
5 2016, City has been forced to recognize the Referendum to repeal the 1*' Amendment to
6 Development Agreement, and then repealed the Amendment. During that same timeframe,
7 however. City and Real Parties in Interests removed the Mandatory Mitigation Measures
8 affecting the parcel at issue as required by the Lent Ranch SPA EIR, without notice to the public
9 or hearing as required by the Public Resources Code, and took several actions in favor of Real
10 Parties in Interest in violation ofthe Lent Ranch SPA and the Development Agreement of 2014
11 entered into between City and Real Parties in Interest, all to the detriment of the public.
12 A copy of the Amended Petition and Complaint is attached to this notice.
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Dated: March 16, 2017 BRIGIT S. BARNES & ASSOCL\.TES, INC.,
14 A CALIFORNIA LAW CORPORATION
15
16
James, Apiomey for Petitioners
17 and Pl^ntiffs
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NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT) - 2
1 Matter: Patty Johnson, et al. v. Citv of Elk Grove, et ai.
Sacramento County Superior Court, Case No. 34-2016-80002493
2
3 PROOF OF SERVICE
4 I am a citizen of the United States, over the age of eighteen years, and not a party to or
interested in the within entitled cause. I am an employee of Brigit S. Barnes & Associates, IQC,
5 A Law Corporation, located at 3262 Penryn Road, Suite 200, Loomis, California, 95650. On this
date I served the following document:
6
7
> NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT)
8
9 [X] BY U.S. MAIL [ C C P . §1013(a)] by enclosing one copy thereof in a sealed
envelope, with postage thereon fiilly prepaid. I am readily familiar with this
10 fum's practice for the collection and processing of correspondence for mailing
11 with the United States Postal Service, and that said correspondence is deposited
with the United States Postal Service on the same day in the ordinary course of
12 business. Said correspondence was addressed as set forth below.
13
PARTY(S) SERVED:
14
15 Office ofthe Attomey General
1300 " I " Street
16 Sacramento, CA 95814-2919
(916)445-9555
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18 I declare, under penalty ofpeijury under the laws of the State of California, that the
19 foregoing is tme and correct.
20 Executed on March 16, 2017, at Loomis, Califomia.
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Noreen Patrignani 0
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NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT) - 3
ENDORSED
1 BRIGIT S. BARNES & ASSOCIATES, INC.
BRIGIT S. BARNES, ESQ. CSB #122673 20nHARl3 PH3:k8
2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591
3 3262 Peairyn Road, Suite 200 • GDSSC COURTHOOji
SUP6RI0RC0URT
Loomis, CA 95650 .. OF CAL FORNIA^, ^
4 Telephone: (916) 660-9555 : SACRAMENTO COUN rV
Facsimile: (916) 660-9554
5
Attomeys for PETTriONERS
6
and PlaintiSi PA:TTY JOHNSON;
7 JOE TEKEIRA; OMAR AHMED, JR.;
Xn^ GUO; and CAROLYN SOARES
8.
9 SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SACRAMENTO. .
ll-
12
PATTY JOHNSON; JOE TEIXEIRA; CASB m , 34-2016-80002493
13 OMAR AHMED, JR.; XIN GUO;
and CAROLYN SOARES, VERIFffiDAMENDEb^BiTnON.F.OR
14 WRIT OF MANDATE AND COMPLAINT
FORDECLARATOlRYRBLIEF-FOR; .
Petitioneis and Plaintifis,
15
(1) BREACH OF CJIY Z O i ^ G f
16 ORDINANCE (GOVERJ4MENT. CODE
CITY OF ELK GROVE, §65860]; ..
17' (2) BREACH 6FtkE^2014. •
Respondents and Defendants. DEVELOPMENT AGREEMENT;
18
ELK GROVE TOWN CENTER, LP; (3) BREACH OP PIJBUC REiSOUR^
19 CODE P108l.^ and ENFORCEMENT
HOWARD HUGHES CORPORATION; and
20" DOES 1-20, inclusive,
PER §§211^6. and 21167;.. . .'\•
(4) BREACH ^FGCXV^Ri^^BNTrC^^ '••
21 , RealPaitids in ]bterest aiid . HEARING A I ^ NCtoCE PROVISlOiNS
Defendants. and PROCEDURAL DUE PRQGESS
22 RIGHTS (QOVERNMBNT CODE
665020(b); U;S. CONSTTTUtldN:
23 AMENDMENTS VahdXIV; y
CALIFORNIA CON3mUtlON .
24 .. ARTICLE 1, iSECIJON J.]; and
25, (5) DEGXARATORY RELIEF'
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VERTFIED.AMBNDED PEXrnON FOR WIUT OF MANDATE AND OOMPlAOfT. -1 :
1 Petitioners and Plaintiffs PATTY JOHNSON, JOE TEIXEIRA, OMAR AHMED, JR.,
2 XIN GUO and CAROLYN SOARES C'Petitioners"), in support of their Verified Amended
3 Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief, state and
4 allege in this amended petition and complaint ("Amended Petition") as follows:
5 INTRODUCTION
6 1. This Amended Petition challenges Respondent and Defendant CITY OF ELK
7 GROVE (the "City") and Real Parties in Interest ELK GROVE TOWN CENTER, LP
8 ("EGTC") and HOWARD HUGHES CORPORATION (the City and Real Parties in Interest are
9 collectively referred to herein as "Defendants") with: 1)fiuhireto comply widi and enforce the
10 City's zoning ordinances with respect to the 2001 Lent Ranch Special Planning Area as amended
11 in 2014 (the "2014 SPA"); 2) removal of the Mandatory Mitigation Measiues contained in the
12 Mitigation Measure Reporting Program adopted concutient with the 2001 SPA EIR in violation
13 of law; 3)fiiilureto comply witii and enforce the 2014 Development Agreement (tiie "2014
14 DA") between the City and EGTC; and 4) &ilure to comply with statutory notice requirements
15 and the United States and California Constitutions' due process requirements, all to the detriment
16 of Petitioners and all residents of the City.
17 2. The City at all times relevant hereto has acted to the detriment of Petitioners and
18 the residents and taxpayers of Elk Grove by breaching its obligations, as more particularly pled
19 )elow.
20 3. The Real Parties in Interest have benefitted from the actions of the City, as more
21 )articularly pled below.
22 PARTIES AND VENUE
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4. All of the Petitioners are residents and taxpayers oftiieCity of Elk Grove and
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lave a clear and presentrightto and beneficial interest intiieCity's perfonnance of its duties as
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alleged in this Amended Petition. Petitioners bring this action ontiieirown behalves, and on
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)ehalf of all otiier citizens and taxpayers in the City of Elk Grove.
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5. Prior petitioner "Stand Up for California" [sic "Stand Up California!"] has
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withdrawnfromthis action.
VERIFIED AMENDED PETmON FOR WRFF OF MANDATE AND COMPLAINT - 2
1 6. Original Petitioners and Plaintiffs Patty Johnson, Joe Teixeira, and additional
2 Petitioners and PlaintLSs Omar Ahmed, Jr., Xin Guo and Carolyn Scares are individuals,
3 registered voters, and taxpayers who reside in Elk Grove, California and pay propeity taxes to
4 the City of Elk Grove. They are concemed citizens who will be affected by the environmental,
5 physical, and social impacts oftiieproposed casino and hotel project as set fortii in detail below,
6 have repeatedly publicly objected to City's actions on multiple occasions, and have been denied
7 adequate review of the environmental andfiscalarrangements between Respondents.
8 7. Respondent and Defendant City of Elk Grove is, on information and belief a
9 general law city organized and existing under the laws of the State of California. The City is
10 obligated to comply with laws, regulations, and ordinances, including, but not limited to, the
11 United States and Califomia Constitutions; the 2001 Lent Ranch SPA and the approved
12 Mitigation Measures and Reporting Plan thereto; all zoning ordinances, and general and specific
13 plans of the City of Elk Grove;tiie2014 DA; and the Public Resources Code.
14 8. Real Party in Interest and Defendant Howard Hughes Corporation has been
15 identified by the City as the owner of the property that is the site of a regional mall project.
16 Based upon that information. Petitioners are informed and believe, and on that ground allege tiiat
17 Howard Hughes Corporation wastiieowner of the Regional Mall Property imtil it was
18 transferred in January 2017, and may still have a beneficial interest inti^ieproperty.
19 9. Petitioners are further informed and believetiiatReal Party in Interest EGTC is a
20 wholly owned subsidiary of Howard Hughes Corporation, and istiiesuccessor in interest to the
21 Regional Mall Property v^ich was acquired sometime in 2008 after bankruptcy oftiie prior
22 owner. General Growth Properties, Inc. Petitioners are informed and believe that EGTC was the
23 party responsible for development oftiieRegional Mall Property from 2008 until at least Januaiy
24 2017, when the northern portion ofthe Mall Property sometimes referred to as 'Thase 2" was
25 transferred, and possibly continuing.
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10. Petitioners do not knowtiietrae names and identities of Real Parties in Interest
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and Defendants DOES 1-20, andtiiereforesue them by thesefictitiousnames. Petitioners are
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informed and believe, and on that basis allege that Does 1-20 have an actual and substantial
VERIFIED AMENDED PETTnON FOR WRIT OF MANDATE AND COMPLAINT - 3
1 interest in the subject matter of the action, and stand to be benefitted or injured bytiiejudgment.
2 Petitioners will seek to amend this Amended Petition to insert the tme names and ci^acities of
3 these Doe Defendants when ascertained.
4 11. Petitioners and Stand Up Califomia!filedthe original Petition on November 23,
5 2016. Sincefilingthe original Petition, the City repealed the First Amendment to the 2014 DA
6 which was a subject of that Petition, after certifying the results ofthe referendum brought to
7 force compliance by the City and EGTC on the terms, covenants, and conditions contained in the
8 2014 DA. Respondents and Real Party in Interest have notfiledany responsive pleadings.
9 12. The sole purpose of the First Amendment totiie2014 DA was to permit the
10 development of a casino/hotel within Zone A of the Lent Ranch SPA, which SPA prevented any
11 type of use on Zone A except a shopping center. Since the First Amendment was challenged by
12 referendum andtiieinstant Petition, the City has continued to take multiple actions to pemiit and
13 enable sucb violations of existing zoning ordinances and the 2014 DA, and in doing so continues
14 to violate federal, state, and local law. This Amoided Petition flowsfiomthe same conduct of
15 the City as alleged in the original Petition in taking unlawfiil actions to allow such precluded
16 uses as a casino/hotel withm the Lent Ranch SPA, subject to the 2014 DA, totiiedetriment of
17 Petitioners. Petitioners provided notice oftiiisAmended Petition to the City prior tofiling,and
18 will serve a copy ofthis Amended Petition upon the Attomey General as required by law.
19 BACKGROUND
20 13. Petitioners are informed and believe, and on that ground allege the facts stated in
21 tills background section supplement the allegations contained in the original Petition, as
22 information has been obtained. On June 27,2001, the City approved the 2001 Lent Ranch
23 Maiketplace Special Planning Area ("2001 SPA"), which is comprised of approximately 295
24 acres and includes a portion known as the Regional Mall Property, which isreferredto as "2^ne
25 A" in the SPA and related planning documents. The Regional Mall Property is comprised of
26 approximately 106 acres. The Regional Mall Property was planned and originally approved in
27 2001 as a traditional, high-end retail shopping center, to include three brand name large anchor
28 tenants. The balance of the 2001 SPA includedresidential,commercial, and retail uses. An
VERIFIED AMENDED PETmON FOR WRIF OF MANDATE AND COMPLAINT - 4
1 ravironmental impact report (the "2001 EIR") approved bytiieCity supported the approvals of
2 the SPA and the 2001 Development Agreement
3 14. The 2001 EIR evaluated fhe impacts oftiieproposed uses ofthe Regional Mall
4 Property and included Mandatory Mitigation Measures. The Mandatory Mitigation Measures
5 imposed detailed fmancial and environmental mitigations on the Regional Mall Property,
6 including thoserelatedtofinancing,traffic, visual effects, sewer, and water, among other
7 impacts. The purpose of these Mandatory Mitigation Measures as adopted by the City was to
8 provide assurances totiieCity's residents that development within the 2001 SPA would mitigate
9 its impacts to the community.
10 15. On November 19,2003, the landowners of the Regional Mall Property, Zone A,
11 recorded a license agreement, agreeing to mutual and contiguous paridng within Zone A so that
12 all paridng would be shared withintiieRegional MalL
13 16. On August 4,2004, the City prepared an addendum to the 2001 EIR addressing
14 impacts to agriculturalresourcesas well as a Mitigation Monitoring and Reporting Program
15 ("MMRP"). There has been no supplemental or subsequent environmental review for any
16 development on the Regional Mall Property in the dozen years since, and each development and
17 amendment has explicitiy relied upontibie2001 EIR and MMRP.
18 17. On May 21,2007, the Wilton Rancheriafileda lawsuit against Department of tiie
19 Interior, Bureau of Indian A£&irs ("BIA") to restore its tribal status.
20 18. On July 11,2007, the Elk Grove City Council held a public meeting regarding a
21 development planreviewto build the Regional Mall, which was to be known as the "Elk Grove
22 Promenade."
23 19. On November 14,2007, the City and Elk Grove Promenade developer, General
24 Growth Properties, Inc., entered into an "Agreement Regarding Mall Fees and Infirastmcture".
25 20. On December 9,2008, General Growtii Properties, Lie.filedfor bankruptcy and
26 all process on the Elk Grove Promoiade halted. Petitioneis are informed and believe tiiat
27 Gen^l Growth Properties, Inc. is an entity \^olly owned by Real Party in Interest Howard
28 Hughes Corporation.
VERIFIED AMENDED PETmON FOR WIUT OF MANDATE AND COMPLAINT - 5
1 21. On Jime 8,2009, the Wilton Rancheria Tribe was restored to its federal
2 recognition status as a result ofa setdement of the lawsuit described in Para. 16 above. On
3 August 4,2009, the City of Elk Grove, along with Sacramento County,fileda motion to obtain
4 intervenor status as necessary parties in the lawsuit between the Wilton Rancheria and the BIA.
5 22. Sometime in 2009, Howard Hughes CorporationreplacedGeneral Growth
6 Properties, Inc. and its wholly owned subsidiary. Elk Grove Town Center, LP ["EGTC"],
7 assumed control of the Regional Mall Property.
8 23. On June 16,2011, the City, the County, and the Wilton Rancheria entered into a
9 Memorandum of Understanding (the "2011 MOU"), settlingtiiemotion to intervene. Hie MOU
10 was establishedregarding"mutually respectful govemment-to-govemment relationship
11 regarding potential off-trast impacts of Tribal Lands in Sacramento Coimty." The 2011 MOU
12 deemed that the proposed casino/hotel would be compatible with the General Plan if it was tiie
13 least intensive use permitted by the General Plan.
14 24. On July 24,2012, Boyd Gaming and the Wilton Rancheria enter into a private
15 agreement for the development of a casino/hotel, and sometime in 2012tiieWilton Rancheria
16 opened its business development ofRce in Elk Grove.
17 25. On November 12,2013, the Wilton Rancheria submitted aresolutionto initiate
18 the NEPA process for a fee-to-tnist and casino/hotel, comprising 282 acres. The resolution
19 proposed a preferred site called the 'Twin Cities Site" in tbe City of Gait (between Highway 99
20 andtiieUnion Pacific Railroad tracks). No other site was identified. The Twin Cities Site was
21 the prefeired sitefiximNovember 12,2013 until June 9,2016. Prior to Jime 9,2016, Petitioners
22 had noreasonto believe that the casino/hotel was actually proposed and would be built in the
23 City of EUc Grove. All public notices indicated that the Gah site wastiiepreferred site, and all
24 public hearings and opportunities for the public to comment were held in Gait
25 26. On January 24,2014, the City Attomey for EUc Grove wrote an e-mailtothe BIA:
26 "We are hearing rumors thattiieGait site may no longer be the preferred location of the casino.
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27. On February 2014, the Department of the Interior, Bureau of Indian Affoirs
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Released the Wilton Ranchdria Fee-to Trust Environmehtal Impact Statement ("EIS") Scoping
VERIFIED AMENDED PETITION FOR WRTT OF MANDATE AND COMPLAINT - 6
1 Report indicating that the City of Gait was the preferred site. In addition to the proposed Twin
2 Cities Site (including areducedintensity casino/hotel version on this site), the EIS discussed two
3 other project altemative sites, the Tribal Rancheria Site in Wilton (the "Historic Rancheria Site")
4 andtiieCity of Elk Grove, Regional Mall Site,referredto as Altemative F (tiie "Mall Site"). The
5 Twin Cities Site proposal was 282 acres and 376,500 square feet; the Historic Rancheria Site
6 proposal was 75 acres and 376,500 square feet;tiieMall Site proposal was 28 acres and 381,000
7 square feet
8 28. On February 27,2014, Keitii Gellerman of Summit Engineering, Inc., who
9 Petitioners are informed and believe and thereon allege represented the gaming interests, wrote
10 an e-mailtoStephen Moore, Sacramento Area Sewer District "Re: Wastewater Feasibility Study
11 for a Proposed Project". Tbe e-mail described the project as a casino/hotel project (commercial),
12 on 28 acres (about 14 for building and 14 for paridng), that, "This is 'Alternative F', so disregard
13 the proposed development in the City of Gait" which email was acknowledged by Darren
14 Wilson oftiie City of Elk Grove.
15 29. On March 3,2014, an e-mail was sentfi^omKimley Hom, the casino/hotel EIS
16 traffic consultant totiieCity of Elk Grove,regardingthe EIS traffic study, which identified
17 Altemative F,tiieMall Site.
18 30. On March 11,2014, Keith Gelleiman sent e-mailstothe Sacramento Area Sewer
19 District: "I am working on a wastewater feasibility study for a proposed casino/hotel site near
20 Elk Grove. I needtoknow if the existing sewer main can handle the capacityfiomthe proposed
21 site and an [sic] the estimated connection and monthlyfoes.This is for a casino/hotel with
22 projected peakflowsof320,000 gpd, witii 250,000 gpd average...."
23 31. On March 14,2014, Brett Long of Sacramento Area Sewer District responded,
24 calculating the estimated impacts of the casino/hotel: "Using these factors, the uses other than
25 the Casino would have a calculated estimated impact of238.065 ESDs, leaving the remaining
26 Casino areas on water usage."
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32. On March 4,2014, the City responded to the Kimley Hom e-mail, scheduling a
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conference call regarding the traffic study memorandum of assumptions involving the Elk Grove
VERIFIED AMENDED PETmON FOR WRIT OF MANDATE AND COMPLAINT - 7
1 Mall Site. On March 18,2014, a conference call was held withtiieEIS consultingfirmand the
2 City of Elk Groveregardingthe casino/hotel traffic study memorandum of assumptions.
3 33. On March 19,2014, an employee of the Sacramento Area Sewer District also
4 responded to Keith Gellerman, stating "the planned development [casino/hotel] would generate
5 moreflowthan we anticipated and would likely require some capacity improvements".
6 34. On April 11,2014, EGTCfiledan ^plication witiitiieCity of Elk Grove
7 requesting an amendmenttoZone A in the Lent Ranch SPA, the Regional Mall Property. The
8 stated purpose of this amendment was to convert Zone Afiroma traditional high-end retail mall
9 to an outiet mall concept referredtoas "The Outiet Collection at Elk Grove."
10 35. On August 15,2014, EGTC was served witii a Notice ofDefault oftiie 2001
11 Development Agreement byflieCity of Elk Grove.
12 36. On Sq)tember 16,2014, counsel for M & H Realty Partaers, who were owners of
13 other propeity witiiin the 2001 SPA, wrote a letter to the City objectingtothe City's proposed
14 ordinancetoamend the 2001 SPA to permit an outiet center and enter into a new development
15 agreement affecting only the Regional Mall Property. M & H Realty Partners wrote, in relevant
16 part that they objectedto1) the conspiracy between tbe City and EGTC to circumvent the [2001
17 Development] Agreement and the [2001] SPA; 2) the improper process proposedtodefault
18 EGTC for the sole puipose of allowing EGTC to circumvent their obligations under the 2001
19 DA; 3) the disraption oftiiecareful balance of land uses intiie2001 SPA; and lastiy 4) alleged
20 that the City approval process violated CEQA
21 37. On October 8,2014, the City adopted Ordinance 28-2014, amending the 2001
22 SPA, approving an amendmenttothe District Development Plan, and a Conditional Use Permit
23 1 br the Outiet Collection at Elk Grove. Although changes in Zone A were enacted as requested
24 by Real Property in Interest EGTC, notiiing intiierevisedzoning removed the "Shopping Center
25 Designation" on the entire property, ortiieheight restrictions. The shopping mall designation in
26 the amended 2014 SPA has no provisionforgaming, tribal or otherwise, or hotel development
27 and requires that all of Zone A is to be used for shopping mall purposes. The City also adopted
28 the Amended and Restated Agreeinent Regarding Regional Mall, Fees, and Infiastmcture. A
VERIFIED AMENDED PETmON FOR WRIT OF MANDATE AND COMPLAINT - 8
1 tme and correct copy of Ordinance 28-2014 (without its exhibits) is attached hereto and
2 incoiporated herein as Exhibit '^A".
3 38. On October 22,2014,tiieCity adopted Ordinance 29-2014, approvingtiie2014
4 DA. In itsfindings,the City found that no further CEQA analysis wasrequiredfortiiischange,
5 claiming that development plans for Phase 2 were unknown. Thefindingsas part of the
6 Resolution exphcitiy acknowledged that the 2014 DA relied upon the approvals contained in fhe
7 2001 EIR, and found that the 2014 DA remained consistent with the Lent Ranch SPA. A tme
8 and coirect copy of Ordinance 29-2014 is attached hereto and incoiporated herein as Exhibit
9 "B".
10 39. As part of the 2014 SPA amendmoit and DA, Zone A - the Regional Mall - was
11 informally divided into two sections, referred to as "Phase 1" and 'Thase 2". Phase 1 was to be
12 tiie Outiet Collection at Elk Grove. Despite the multiple coordinated environmental review
13 efforts involving the City described above, the City stated in itsfindingsof fact that Phase 2 had
14 not been proposed for development as part of the project description, and the characteristics of
15 Phase 2 are "undefined and subjecttospeculation", and therefore the 2014 DA was exempt fcom
16 review imder CEQA. Petitioners are informed and believe, and thereon allege thattiieCity staff
17 was actively engaged in providing data to gaming consultantsrelatedto the Draft EIS, which
18 identified Phase 2 as an alternative casino/hotel site Altemative F, and thus were aware that tiiis
\ 19 property was planned for a casino/hotel use. The 2014revisedDA and the amendments to the
20 Lent Ranch SPA encumbered all of Zone A, including Phase 1 "the Outiet Mall" and Phase 2 of
21 the property.
22 40. On October 29,2014, M & H Realty Partnersfileda Verified Petition for Writ of
23 Mandate againsttiieCity and Real Parties in Interest Elk Grove Town Center, LP, a Delaware
24 limited paitnership; Elk Grove Town Center, L.L.C., a Delaware limited liability conq>any; the
25 Howard Research and Development Corporation, a Maryland corporation; and Howard Hughes
26 Corporation, a Delaware corporation, for CEQA violations and breach ofthe 2001 DA.
27 41. In April 2015, the Elk Grove City Assistant Attomeyrequestedthat the Bureau
28 of Indiab Affairs said all notices regardingtiieEIS for the casino/hotel to the City.
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 9
1 42. Between May and November, 2015, the application and plans for Outlook
2 Collection, Phase 1 of 2k>ne A, went out forreviewto all agencies, including Sacramento County
3 Water Agency, Sacramento Sewer District and Elk Grove Water District. Phase 2 on the maps
4 was shown as blank, and there was no indication in the submitted plans that Phase 2 is planned
5 for a casino/hotel, or that the Real Parties in Interest were actively engaging with the City
6 regarding a casino/hotel on the Phase 2 property.
7 43. On September 5,2015, a Joint Status Report on Conditional Settiement was filed
8 by the partiestothe Petition for Writ of Mandatefiledby M & H Realty Partners, indicating that
9 the parties had reached a conditional settlement that included, in part, arevisionto the
10 development agreement which amendment was scheduledtobe heard by the City and County
11 on September 9,2015. Based thereon. Petitioners believe that this lawsuit was settied sometime
12 in Sqitember 2015.
13 44. As summarized above in paragr^hs 25 through 33, whiletiiedraft EIS was being
14 prepared and public indications were that the preferred site was the Twin Cities Site, documents
15 obtained sincefilingthe original Petition show that actions were being taken by the Real Parties
16 in Merest and the Citytopermit the casmo/hotel in Elk Grove on Phase 2 Zone A without
17 review by the public.
18 45. Petitioners are now informed and believe that City and Real Parties in Mterest
19 intended, by denying knowledge of plans to use Phase 2,toprevent the citizens of Elk Grove
20 tmm meaningful participation in the City's hearingstoamend the Lent Ranch SPA and approve
21 the 2014 DA, and to encourage public belieftiiatReal Parties in Intoest's preferred location
22 remained as Gait Petitioners had noreasontobe aware of the level of anticipated planning for
23 Phase 2 of the Regional Mall Property Zone A, or simultaneous planning of Phase 2 for a
24 casino/hotel until after thefilmgof the initial Petition.
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46. On January 5,2016, the casino/hotel EIS wasreviewedby die Sacramento County
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Water Agency. The water agency notedtiiatfacilities might needtochange duetoinclusion of a
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12-story hotel.
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VHUFIED AMENDED PETTnON FOR WRIT OF MANDATE AND COMPLAINT - 10
1 47. On January 29,2016, a public EIS meeting was held in the Chabolla Community
2 Center in Gaitregardingthe casino/hotel project and discussions focused on Gait as the
3 preferred location.
4 48. On March 10,2016, the County of Sacramento submitted a comment letter
5 regarding the Draft EIS, statrog thattiieDraft EIS does not apply Califomia or local standards.
6 49. On March 23,2016,tiieTribal Chairman fortiieWilton Rancheria informed
7 Sacramento County in an e-mail: "... After several montiis of review, the Elk Grove site has the
8 least environmental effects", and on March 30,2016, a meeting was held with the Wilton
9 Rancheria, the City of Elk Grove, and County representatives. The citizens of EUc Grove were
10 not informed of these communications and meetings.
11 50. Petitioners are infoimed and believe that beginnmg at least by April 2016, Boyd
12 Gaming arranged for special meetings in Las VegasforElk Grove Economic Development
13 Director and then Mayor Gary Davis and the Wilton Rancheria Tribal Chairmantomake sure
14 they all knew of City's support as stated in intemal eniails.
15 51. On May 31,2016, Real Party m Interest EGTC, Boyd Gammg, andtiieWilton
16 Rancheria entered into an option agreementtosell Phase 2 of die Regional Mall Property to the
17 Wilton Rancheria. The Memorandum of Option Agreement was recorded on Jime 7,2016, in
18 Sacramento County Official Records, as Document No. 20160607, at page 0666.
19 52. On June 8,2016, Sacramento County held a hearingregardinga new MOU with
20 the Wilton Rancheria, which provided, among other things, for various fimding payments,
21 especiallyrelatedtotraffic, and expressly provided that iftiieCounty discovers other impacts
22 and notifies the Wilton Rancheria, that they will address such impacts.
23 53. On June 9,2016, the Wilton Rancheria announced at their tribal offices in Elk
24 Grove that instead of proceeding with Alternatives A, B, C, D, or E ofthe Draft EIS, Phase 2 of
25 tiie Regional Mall Property, Altemative F - the Mall Site - oftiie Draft EIS, was now the
26 preferred location for its proposed tribal gaming casino/hotel and entertainment center. No
27 )ublic hearing was held by the City or the Bureau of hidian Af&irs in Elk Grove or anywhere
28 elseregardingthe change of location.' No public hearing noticed bytiieCity addressed the
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 11
1 impacts of a tribal casino and hotel on the Regional Mall Site. This was a sudden shift, as all
2 prior public notices and environmental documents prepared for the casino/hotel as part of the
3 Draft EIS, which commenced in 2013, emphasized the casino/hotel being developed intiieCity
4 of Gait and public meetings and hearings regardingtiieWilton Rancheria's plans for its
5 casino/hotel were held in Gait
6 54. From June 9,2016totiiepresent the City, the Real Parties in Literest and BIA
7 for the Wilton Rancheriaragagedin swift actiontoensure that the Phase 2 Property would
8 transitionfi-oman Outiet Mall to a casino/hotel and gaming facility. All of this was done
9 suddenly and without any meaningful noticetothe Petitioners andresidentsof the City of Elk
10 Grove.
11 55. On June 14,2016, a new Memorandum of Understanding was signed between the
12 County of Sacramento and the Wilton Rancheria This new MOU indicated that it would cover
13 either the Twin Cities Site or the Regional Mall Site.
14 56. On June 30,2016,21 days after the Wilton Rancheria announced the shift in
15 location, the Wilton Rancheriafiledthe fee-to-tiiist application, with the BIAregardingtiie
16 Phase 2 property. The Regional Mall Site is identified as 28 acres in the EIS documents;
17 however, subsequent conveyance documentsregardingthe fee-to-trust application identify a 35-
18 acre site. The actual site conveyed into Trust does not match that area id»itified in the EIS
19 documents, as it contains 7 extra acres.
20 57. In August 2016, tiie Sacramento County Water Agency ["SCWA"] reviewed tiie
21 Draft EIS and indicated that it would perfonn a detailed environmental analysis at the tune of
22 water improvement plan submittal. As offilingtiiisAmended Petition, Petitioners have found
/ ' •
23 no indicationtiiatcapadty improvements as previously requested bytiieSewer District and
24 Sacramento County Water Agency were incorporated intotiieFinal EIS for the Elk Grove MaU
25 location. These concerns expressed by the sewer and water agencies were not called out in tiie
26 DEIS or FEIS and confirmtiiatwato* and sewer servicetothe proposed hotel/casino was not
27 reviewed by SCWA at the tune the DEIS or FEIS wasreleasedtotiiepublic.
28
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 12
1 58. On August 16,2016, the Elk Grove Planning Conunission considered a First
2 Amendmenttothe 2014 DA, and diuing the pubUc hearing stated thattiiepuipose oftiie
3 Amendment was to allowtitletoPhase 2 to be taken into Trast
4 59. On September 28,2016,tiieCity of Elk Grove passed Resohition No. 2016-183,
5 approving a new Memorandum of Understanding (the "2016 MOU") with the Wilton Rancheria,
6 and claimed the 2016 MOU was CEQA exempt The 2016 MOU provided for various cash
7 payments as mitigation, especially for traffic and tax loss. No public meetings were held to
8 review the basis of mitigation, or to provide detailsregardinghow the cash pa3nnents may relate
9 to any mitigation ostensibly identified by the City. The Resolution acknowledged that the
10 puipose ofthe 2016 MOU was so that the Regional Mall property could be put into Trust for
11 purposes of building a casino/hotel. The Resolutionreferencedthe Draft EIS which focused on
12 Gait aiid in whichtiieElk Grove Mall site was only Alternative F, and did not acknowledge tiiat
13 Gait was the preferred location at alltimesrelevantduring the publicreviewprocess, and that the
14 City of Elk Grove was not identified as the preferred site until the Final EIS stage in December,
15 2016. The Resolution statedtiiattiiecasino/hotel is anticipated to include a 608,756 square foot
16 casino-resort and a 12-story and approximately 302roomhotel tower, including a convention
17 center, witii on-site parkmg, as described in the draft EIS. This casino/hotel facility is an
18 unprecedented and drastic changefixtmtheregionaloutlet mall submissions with the 2014 DA,
19 and amendments to the Lent Ranch SPA, which was to include 775,000 total square feet of outiet
20 mall building, with 689,000 being gross leasable area with a maximum height of 100 feet At tiie
21 time the 2016 MOU was adopted by the City of Elk Grove,tiiecasinp/hbtel property had not
22 leen placed into Trust Bxtd thusremainedsubjecttothe City'sfoiljurisdiction and control.
23 60. The 2016 MOU included botii non-recuirihg and recurring payment plans, but
24 there is no public economic analysis associated with these payments, and it is unclear how the
25 pajnnents arerelatedto the actual expenses and costs ofthe casino/hoteltotiieCity. There is
26 also no analysis of what the additional trafQc impactsrelatedtoexpanded use ofthe Regional
27
; vlall Site over shopping center by the proposed casino/hotel may be, and whether planned
28
mitigation payments adequately addressed such impacts. There i's likewise no explanation ofthe
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 13
1 Wilton Rancheria's compliance with air quality management plans.
2 61. On September 29,2016, in e-mails with Sacramento Area Sewer District and the
3 Cityregardingthe casino/hotel proposal,fivemonths before the proposed property was taken
4 into Trust the City emailed that "we have no land use or approval authority. Per the EIS, the
5 Wilton Rancheria is requiredtoenter into contract with Sac Area Sewer District May ask for
6 improvements to the pump station because the outflow exceeds the designflowfor the property."
7 62. On October 26,2016, the City passed Ordinance 23-2016,tiieFirst Amendment
8 to the 2014 DA, at the purported request of EGTC, toreleasethe 2014 DA as an encumbrance to
9 Phase 2, the casino/hotel property. The only stated purpose fortiiiswas to allow the Department
10 ofthe Interiortotake the property into Trasttoallow for the casino/hoteltobe built The
11 Ordinance would have become official 30 days after passage.
12 63. On November 9,2016, the First Amendment to the 2014 DA was recorded, prior
13 to die passage of 30 days.
14 64. On November 17,2016 - also prior to the 30-day effective date for the Fkst
15 Amendmenttotiie2014 DA - BIA issued a Notice of Land Applicationtotake Casino site into
16 tiust fbr benefit of the Wilton Rancheria.
17 65. On November 21,2016, areferendumpetition wasfiledwith the City Qerk. The
18 effect of the referendum was to suspend the First Amendment to the 2014 DA, meaning that the
19 2014 DA was still in full force and effect against all of Zone Ai including Phase 2, the proposed
20 casino/hotel property.
21 66. On November 23,2016,tiieinstant Petition wasfiledby STAND UP
22 CALIFORNIA! and residents of Elk Grove challenging Ordinance 23-2016, First Amendment to
23 the 2014 DA, and seeking to compel repeal of the First Amendment to the 2014 DA. Petitioners
24 contend thatfix>mand after the filing of thereferendumpetition the effect of the First
25 Amendment was suspended, andtiiatCity's efifortstoremovethe 2014 Development Agreement
26 fi-om Phase 2 were ineffective.
27
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28
III ' ^ ^
VERIFIED AMENDED PBTmON FOR WRIT OF MANDATE AND COMPLAINT - 14
1 67. On December 16,2016, Notice of Final EIS for Casino identifyingtiieElk Grove
2 Regional Mall Site was filed intiieFederal Register-BIA Notice 81 Fed. Reg. 90379; EPA
3 Notice 81 Fed. Reg. 91169,
4 68. On December 23,2016, Real Party in Interest EGTC, with the concurrence oftiie
5 City of Elk Grove, recorded a series of lot line adjustments, the apparent effect of which was to
6 define Phase 2 as a specific lot or lots in prqiaration for transfer to Boyd Gaming and the Wilton
7 Rancheria. This action was authorized bytiieCity without public notice or hearing.
8 69. On January 9,2017, the City recorded a notice ofreleaseof recorded Notice of
9 Conditional Partial Release of Recorded Mitigation Monitoring and Reporting Program for the
10 Lent Ranch Maiketplace. The effect of thisreleasewastoremove the Mandatoiy Mitigation
11 Measures approved as part of the 2001 SPA EIR fiom the Phase 2 casino/hotel property. Again,
12 fhis action was taken by the City without a hearing and without any public notice. Petitioners
13 contend that at all times priortoFebruary 10,2017, Phase 2 remamed property subjecttotiie
14 jurisdiction ofthe City and County, subject totiie2001 SPA EIR and its MMRPrestrictions,tiie
15 2014 AmendmentstotiieLent Ranch SPA, and the 2014 DA A trae and correct copy of tiiis
16 release is attached hereto and incorporated herein as Exliibit "C".
17 70. On January 9,2017, a grant deedfiomEGTCtothemselves wasfiled,apparentiy
18 to consummate the lot line adjustmentsrecordedon December 23,2016.
19 71. On January 9,2017, a Covenant/Agreement Access-Parking Agreement between
20 EGTC and tbe City of Elk Grove was filed, indicatingtiiatall fees for paiking will be paid fixnn
21 Phase 1 piroperty, the Outlet Mall, instead of all portions of Zone A, effecting a release of Phase
22 2 propertyfromthe payment of parking feestothe City. No hearing or public notice of the City's
23 decision toreleaseall fees for parkingtobe collected against the Phase 2 property was held.
24 72. On January 11,2017, a First Amendmenttothe Paiking License Agreement was
25 recorded, removing the casino/hotel propertyfix>mthe Paiking License Agreement recorded in
26 2003 and amended in 2014. No hearing or public notice oftiieCity's decision toreleasethe
27 Paiking License AgreementfromPhase 2 was held, and no public discussion of the financial
28 iroplicifitions of eithertiieCovenant or the Release was held.
VERIFIED AMENDED PEimON FOR WRIT OF MANDATE AND COMPLAINT • 15
1 73. On January 11,2017, thereferendumtorepeal Ordinance 23-2016, fhe First
2 Amendmenttothe 2014 DA, was certified by the City Council upon recommendation ofthe City
3 Clerk.
4 74. On January 19,2017,tiieRecord of Decision ("ROD") was signed by Principal
5 Deputy Assistant Secretary - Indian AfEairs of the Department of Interior, Biu-eau of Indian
6 Afifairs, approving taking the land described as Phase 2 into Trust This approval was not
7 published in the Federal Register, and wasreleasedafter houra in Washington D.C.
8 75. Earlier on the same day, on January 19,2017, EGTC recorded the conveyance of
9 the Phase 2 property to Boyd Gaming and the Wilton Rancheria. The deed was executed on
10 January 12,2017.
11 76. On Febraary 5,2017,tiiefirstreading oftiie repeal of Ordinance 23-2016, tiie
12 First Amendmenttothe 2014 DA, was held in the City of Elk Grove, and adopted.
13 77. On February 10,2017, The Department of Interior accepted the conveyance of tiie
14 Phase 2 property &om Boyd Gaming andtiieWilton Rancheria, placing the property into Trust
15 78. On Febraary 21,2017, Stand Up for California!, Patty Johnson, Joe Teixeira, and
16 others (collectively, "Citizens")filedan administirative appeal ofthe ROD witiitiieInterior
17 Board of Indian Appeals ("Board"). Citizens requests that the Board grant preliminaryreliefon
18 an expedited basis, ordering BIA to removetitietothe propertyfixnntrust pending the
19 administrative appeal, on the grounds that BIA violated its own regulations by acquiringtitleto
20 tiie property in trast on the basis ofa non-final agency decision, without coiiq>lying witii notice
21 requirements and without waiting the mandatory 30-day periodtoallow Citizenstofiletiieir
22 administrative appeal.
23 79. On February 22,2017, Ordinance 23-2016,tiieFirst Amendmenttotiie2014 DA,
24 was formerly repealed by the City Council as a result of the certified referendum.
25 80. By Order dated February 24,2Q17, the Board ordered briefing on whether the
26 ROD isfinalfor the Department of the Interior. That proofing will conclude on or before March
27 31,2017.
28
///
VERIFIED AMENDED PETmON FOR WRIT OF MANDATE AND COMPLAINT - 16
1 81. From and at all times after 2001, Petitioners and the residents bf Elk Grove were
2 led to expect a shopping mall, and then later an outlet mall, and all detailed environmental
3 processes commencing in 2001 identified shopping center uses for Zone A. The City has now
4 permitted a planned substitution of a more intense use - a casino/hotel use on the northern
5 portion of the site [Phase 2] - with little notice to the public, and witii no environmental or
6 economic review or analysis conducted by the City of the comparative impacts of a casino/hotel
7 as to that anticipated by the 2001 EIR, all to the detriment of Petitioners and theresidentsand
8 taxpayers of the City of Elk Grove.
9 82. The City of Elk Grove provided no details in any kind of setting which provided
10 Petitioners andtiiieresidents of Elk Grove any type of assurance that the environmental analysis
11 prepared in the Final EIS adequately addressed impacts as required by California law. Two
12 yeara of environmentalreviewwent into the site analysis in Gait andfivemonths elapsed
13 betwen the Tribe's notice of change of location andreleaseofthe Final EIS December 16,2016
14 with the Elk Grove site as the substitoted Preferred Alternative. There are no assurances to
15 Petitioners and the residents and taxpayera:
16 a) That either the identified traffic impacts ortiiesurrounding traffic infi^stracture can
17 supporttiieincreased traffic burdens created by the casino/hotel;
18 b) Thattimeis sufficient water or sewer capacity fortfiecasino/botel without creating a
19 burdentotiieresidents, astiieFinal EIS contains no assurancetiiatthe facilities for
20 the proposed casino/hotel are readily available;
21 c) That there are sufficient sources and revenue idoitified in the 2016 MOUtomitigate
22 tbe negative social impacts of a casino/hotel, such as problem gambling;
23 d) That ±ere will be adequate paiking for the casino/hotel, and that overflow parking
24 will not be a burden on suirounding neighboihoods and business; and
25 e) Uiat the Tribal contributions idmtified as mitigation intiieSeptember 29,2016 MOU
26 are sufficienttoadequately address any mitigations reasonably necessaiy to respond
27 to any ofthe in^acts such unplanned develop may cause.
28 ///
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 17
1 83. Petitioneis are all active community members \^o are concemed about the
2 casino/hotel impacts, and were all denied notice and opportunity to participate in the casino/hotel
3 approval process described above. The actions complained of in this Amended Petition were
4 participated in or permitted by the City of Elk Grove priortothe Febraary 10,2017 fee-to-tinst
5 approval process, when the City still had fiill jurisdiction control over the casino/hotel property.
6 FIRST CAUSE OF ACTION - CITY BREACH OF ZONING ORDINANCE
rCOVERNMENT CODE 8658601
7
8 84. Petitioners and Plaintiff re-state andre-pleadall alle^tions set forth a
Preview
ENDORSED 1 BRIGIT S. BARNES & ASSOCIATES, INC. BRIGIT S. BARNES, ESQ. CSB #122673 2 ^ t i m \ l AHII: 50 2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 3 3262 Penryn Road, Suite 200 GDSSC C0URTHOn«5r: Loomis, CA 95650 SUPERIOR COORT _^ OF CALiFORfJiA 4 Telephone: (916)660-9555 SACRAMENTOCOUNTY Facsimile: (916)660-9554 5 Attomeys for PETITIONERS 6 And Plaintiffs 7 PATTY JOHNSON; JOE TEIXEIRA; OMAR 8 AHMED, JR.; XIN GUO and CAROLYN SOARES 9 SUPERIOR COURT OF CALIFORNIA 10 11 COUNTY OF SACRAMENTO 12 13 PATTY JOHNSON, JOE TEIXEIRA, CASE NO. 34-2016-80002493 OMAR AHMED, JR., XIN GUO 14 And CAROLYN SOARES NOTICE TO ATTORNEY GENERAL 15 Petitioners and Plaintiffs, (AMENDED PETITION-COMPLAINT) 16 17 CITY OF ELK GROVE 18 Respondents and Defendants. 19 ELK GROVE TOWN CENTER, LP; 20 HOWARD HUGHES CORPORATION; and DOES 1-20, 21 Real Parties in Interest and 22 Defendants. 23 24 J 25 26 TO THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA: 27 PLEASE TAKE NOTICE, under Public Resources Code § 21167.7 and Code ofCivil 28 Procediure § 388, that on March 13, 2017, Petitioners and Plaintiffs Patty Johnson, Joe Teixeira, NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT) - I 1 Omar Ahmed, Jr., Xin Guo, and Carolyn Scares filed a Verified Amended Petition for Writ of 2 Mandate and Complaint for Declaratory Relief against the City of Elk Grove, Elk Grove Town 3 Center, LP, and Howard Hughes Corporation in the Sacramento County Superior Court. The 4 Amended Petition and Complaint alleges that since thefilingof the Petition on November 23, 5 2016, City has been forced to recognize the Referendum to repeal the 1*' Amendment to 6 Development Agreement, and then repealed the Amendment. During that same timeframe, 7 however. City and Real Parties in Interests removed the Mandatory Mitigation Measures 8 affecting the parcel at issue as required by the Lent Ranch SPA EIR, without notice to the public 9 or hearing as required by the Public Resources Code, and took several actions in favor of Real 10 Parties in Interest in violation ofthe Lent Ranch SPA and the Development Agreement of 2014 11 entered into between City and Real Parties in Interest, all to the detriment of the public. 12 A copy of the Amended Petition and Complaint is attached to this notice. 13 Dated: March 16, 2017 BRIGIT S. BARNES & ASSOCL\.TES, INC., 14 A CALIFORNIA LAW CORPORATION 15 16 James, Apiomey for Petitioners 17 and Pl^ntiffs 18 19 20 21 22 23 24 25 26 27 28 NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT) - 2 1 Matter: Patty Johnson, et al. v. Citv of Elk Grove, et ai. Sacramento County Superior Court, Case No. 34-2016-80002493 2 3 PROOF OF SERVICE 4 I am a citizen of the United States, over the age of eighteen years, and not a party to or interested in the within entitled cause. I am an employee of Brigit S. Barnes & Associates, IQC, 5 A Law Corporation, located at 3262 Penryn Road, Suite 200, Loomis, California, 95650. On this date I served the following document: 6 7 > NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT) 8 9 [X] BY U.S. MAIL [ C C P . §1013(a)] by enclosing one copy thereof in a sealed envelope, with postage thereon fiilly prepaid. I am readily familiar with this 10 fum's practice for the collection and processing of correspondence for mailing 11 with the United States Postal Service, and that said correspondence is deposited with the United States Postal Service on the same day in the ordinary course of 12 business. Said correspondence was addressed as set forth below. 13 PARTY(S) SERVED: 14 15 Office ofthe Attomey General 1300 " I " Street 16 Sacramento, CA 95814-2919 (916)445-9555 17 18 I declare, under penalty ofpeijury under the laws of the State of California, that the 19 foregoing is tme and correct. 20 Executed on March 16, 2017, at Loomis, Califomia. 21 Noreen Patrignani 0 22 23 24 25 26 27 28 NOTICE TO ATTORNEY GENERAL (AMENDED PETITION-COMPLAINT) - 3 ENDORSED 1 BRIGIT S. BARNES & ASSOCIATES, INC. BRIGIT S. BARNES, ESQ. CSB #122673 20nHARl3 PH3:k8 2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 3 3262 Peairyn Road, Suite 200 • GDSSC COURTHOOji SUP6RI0RC0URT Loomis, CA 95650 .. OF CAL FORNIA^, ^ 4 Telephone: (916) 660-9555 : SACRAMENTO COUN rV Facsimile: (916) 660-9554 5 Attomeys for PETTriONERS 6 and PlaintiSi PA:TTY JOHNSON; 7 JOE TEKEIRA; OMAR AHMED, JR.; Xn^ GUO; and CAROLYN SOARES 8. 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO. . ll- 12 PATTY JOHNSON; JOE TEIXEIRA; CASB m , 34-2016-80002493 13 OMAR AHMED, JR.; XIN GUO; and CAROLYN SOARES, VERIFffiDAMENDEb^BiTnON.F.OR 14 WRIT OF MANDATE AND COMPLAINT FORDECLARATOlRYRBLIEF-FOR; . Petitioneis and Plaintifis, 15 (1) BREACH OF CJIY Z O i ^ G f 16 ORDINANCE (GOVERJ4MENT. CODE CITY OF ELK GROVE, §65860]; .. 17' (2) BREACH 6FtkE^2014. • Respondents and Defendants. DEVELOPMENT AGREEMENT; 18 ELK GROVE TOWN CENTER, LP; (3) BREACH OP PIJBUC REiSOUR^ 19 CODE P108l.^ and ENFORCEMENT HOWARD HUGHES CORPORATION; and 20" DOES 1-20, inclusive, PER §§211^6. and 21167;.. . .'\• (4) BREACH ^FGCXV^Ri^^BNTrC^^ '•• 21 , RealPaitids in ]bterest aiid . HEARING A I ^ NCtoCE PROVISlOiNS Defendants. and PROCEDURAL DUE PRQGESS 22 RIGHTS (QOVERNMBNT CODE 665020(b); U;S. CONSTTTUtldN: 23 AMENDMENTS VahdXIV; y CALIFORNIA CON3mUtlON . 24 .. ARTICLE 1, iSECIJON J.]; and 25, (5) DEGXARATORY RELIEF' 26 27 26 VERTFIED.AMBNDED PEXrnON FOR WIUT OF MANDATE AND OOMPlAOfT. -1 : 1 Petitioners and Plaintiffs PATTY JOHNSON, JOE TEIXEIRA, OMAR AHMED, JR., 2 XIN GUO and CAROLYN SOARES C'Petitioners"), in support of their Verified Amended 3 Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief, state and 4 allege in this amended petition and complaint ("Amended Petition") as follows: 5 INTRODUCTION 6 1. This Amended Petition challenges Respondent and Defendant CITY OF ELK 7 GROVE (the "City") and Real Parties in Interest ELK GROVE TOWN CENTER, LP 8 ("EGTC") and HOWARD HUGHES CORPORATION (the City and Real Parties in Interest are 9 collectively referred to herein as "Defendants") with: 1)fiuhireto comply widi and enforce the 10 City's zoning ordinances with respect to the 2001 Lent Ranch Special Planning Area as amended 11 in 2014 (the "2014 SPA"); 2) removal of the Mandatory Mitigation Measiues contained in the 12 Mitigation Measure Reporting Program adopted concutient with the 2001 SPA EIR in violation 13 of law; 3)fiiilureto comply witii and enforce the 2014 Development Agreement (tiie "2014 14 DA") between the City and EGTC; and 4) &ilure to comply with statutory notice requirements 15 and the United States and California Constitutions' due process requirements, all to the detriment 16 of Petitioners and all residents of the City. 17 2. The City at all times relevant hereto has acted to the detriment of Petitioners and 18 the residents and taxpayers of Elk Grove by breaching its obligations, as more particularly pled 19 )elow. 20 3. The Real Parties in Interest have benefitted from the actions of the City, as more 21 )articularly pled below. 22 PARTIES AND VENUE 23 4. All of the Petitioners are residents and taxpayers oftiieCity of Elk Grove and 24 lave a clear and presentrightto and beneficial interest intiieCity's perfonnance of its duties as 25 alleged in this Amended Petition. Petitioners bring this action ontiieirown behalves, and on 26 )ehalf of all otiier citizens and taxpayers in the City of Elk Grove. 27 5. Prior petitioner "Stand Up for California" [sic "Stand Up California!"] has 28 withdrawnfromthis action. VERIFIED AMENDED PETmON FOR WRFF OF MANDATE AND COMPLAINT - 2 1 6. Original Petitioners and Plaintiffs Patty Johnson, Joe Teixeira, and additional 2 Petitioners and PlaintLSs Omar Ahmed, Jr., Xin Guo and Carolyn Scares are individuals, 3 registered voters, and taxpayers who reside in Elk Grove, California and pay propeity taxes to 4 the City of Elk Grove. They are concemed citizens who will be affected by the environmental, 5 physical, and social impacts oftiieproposed casino and hotel project as set fortii in detail below, 6 have repeatedly publicly objected to City's actions on multiple occasions, and have been denied 7 adequate review of the environmental andfiscalarrangements between Respondents. 8 7. Respondent and Defendant City of Elk Grove is, on information and belief a 9 general law city organized and existing under the laws of the State of California. The City is 10 obligated to comply with laws, regulations, and ordinances, including, but not limited to, the 11 United States and Califomia Constitutions; the 2001 Lent Ranch SPA and the approved 12 Mitigation Measures and Reporting Plan thereto; all zoning ordinances, and general and specific 13 plans of the City of Elk Grove;tiie2014 DA; and the Public Resources Code. 14 8. Real Party in Interest and Defendant Howard Hughes Corporation has been 15 identified by the City as the owner of the property that is the site of a regional mall project. 16 Based upon that information. Petitioners are informed and believe, and on that ground allege tiiat 17 Howard Hughes Corporation wastiieowner of the Regional Mall Property imtil it was 18 transferred in January 2017, and may still have a beneficial interest inti^ieproperty. 19 9. Petitioners are further informed and believetiiatReal Party in Interest EGTC is a 20 wholly owned subsidiary of Howard Hughes Corporation, and istiiesuccessor in interest to the 21 Regional Mall Property v^ich was acquired sometime in 2008 after bankruptcy oftiie prior 22 owner. General Growth Properties, Inc. Petitioners are informed and believe that EGTC was the 23 party responsible for development oftiieRegional Mall Property from 2008 until at least Januaiy 24 2017, when the northern portion ofthe Mall Property sometimes referred to as 'Thase 2" was 25 transferred, and possibly continuing. 26 10. Petitioners do not knowtiietrae names and identities of Real Parties in Interest 27 and Defendants DOES 1-20, andtiiereforesue them by thesefictitiousnames. Petitioners are 28 informed and believe, and on that basis allege that Does 1-20 have an actual and substantial VERIFIED AMENDED PETTnON FOR WRIT OF MANDATE AND COMPLAINT - 3 1 interest in the subject matter of the action, and stand to be benefitted or injured bytiiejudgment. 2 Petitioners will seek to amend this Amended Petition to insert the tme names and ci^acities of 3 these Doe Defendants when ascertained. 4 11. Petitioners and Stand Up Califomia!filedthe original Petition on November 23, 5 2016. Sincefilingthe original Petition, the City repealed the First Amendment to the 2014 DA 6 which was a subject of that Petition, after certifying the results ofthe referendum brought to 7 force compliance by the City and EGTC on the terms, covenants, and conditions contained in the 8 2014 DA. Respondents and Real Party in Interest have notfiledany responsive pleadings. 9 12. The sole purpose of the First Amendment totiie2014 DA was to permit the 10 development of a casino/hotel within Zone A of the Lent Ranch SPA, which SPA prevented any 11 type of use on Zone A except a shopping center. Since the First Amendment was challenged by 12 referendum andtiieinstant Petition, the City has continued to take multiple actions to pemiit and 13 enable sucb violations of existing zoning ordinances and the 2014 DA, and in doing so continues 14 to violate federal, state, and local law. This Amoided Petition flowsfiomthe same conduct of 15 the City as alleged in the original Petition in taking unlawfiil actions to allow such precluded 16 uses as a casino/hotel withm the Lent Ranch SPA, subject to the 2014 DA, totiiedetriment of 17 Petitioners. Petitioners provided notice oftiiisAmended Petition to the City prior tofiling,and 18 will serve a copy ofthis Amended Petition upon the Attomey General as required by law. 19 BACKGROUND 20 13. Petitioners are informed and believe, and on that ground allege the facts stated in 21 tills background section supplement the allegations contained in the original Petition, as 22 information has been obtained. On June 27,2001, the City approved the 2001 Lent Ranch 23 Maiketplace Special Planning Area ("2001 SPA"), which is comprised of approximately 295 24 acres and includes a portion known as the Regional Mall Property, which isreferredto as "2^ne 25 A" in the SPA and related planning documents. The Regional Mall Property is comprised of 26 approximately 106 acres. The Regional Mall Property was planned and originally approved in 27 2001 as a traditional, high-end retail shopping center, to include three brand name large anchor 28 tenants. The balance of the 2001 SPA includedresidential,commercial, and retail uses. An VERIFIED AMENDED PETmON FOR WRIF OF MANDATE AND COMPLAINT - 4 1 ravironmental impact report (the "2001 EIR") approved bytiieCity supported the approvals of 2 the SPA and the 2001 Development Agreement 3 14. The 2001 EIR evaluated fhe impacts oftiieproposed uses ofthe Regional Mall 4 Property and included Mandatory Mitigation Measures. The Mandatory Mitigation Measures 5 imposed detailed fmancial and environmental mitigations on the Regional Mall Property, 6 including thoserelatedtofinancing,traffic, visual effects, sewer, and water, among other 7 impacts. The purpose of these Mandatory Mitigation Measures as adopted by the City was to 8 provide assurances totiieCity's residents that development within the 2001 SPA would mitigate 9 its impacts to the community. 10 15. On November 19,2003, the landowners of the Regional Mall Property, Zone A, 11 recorded a license agreement, agreeing to mutual and contiguous paridng within Zone A so that 12 all paridng would be shared withintiieRegional MalL 13 16. On August 4,2004, the City prepared an addendum to the 2001 EIR addressing 14 impacts to agriculturalresourcesas well as a Mitigation Monitoring and Reporting Program 15 ("MMRP"). There has been no supplemental or subsequent environmental review for any 16 development on the Regional Mall Property in the dozen years since, and each development and 17 amendment has explicitiy relied upontibie2001 EIR and MMRP. 18 17. On May 21,2007, the Wilton Rancheriafileda lawsuit against Department of tiie 19 Interior, Bureau of Indian A£&irs ("BIA") to restore its tribal status. 20 18. On July 11,2007, the Elk Grove City Council held a public meeting regarding a 21 development planreviewto build the Regional Mall, which was to be known as the "Elk Grove 22 Promenade." 23 19. On November 14,2007, the City and Elk Grove Promenade developer, General 24 Growth Properties, Inc., entered into an "Agreement Regarding Mall Fees and Infirastmcture". 25 20. On December 9,2008, General Growtii Properties, Lie.filedfor bankruptcy and 26 all process on the Elk Grove Promoiade halted. Petitioneis are informed and believe tiiat 27 Gen^l Growth Properties, Inc. is an entity \^olly owned by Real Party in Interest Howard 28 Hughes Corporation. VERIFIED AMENDED PETmON FOR WIUT OF MANDATE AND COMPLAINT - 5 1 21. On Jime 8,2009, the Wilton Rancheria Tribe was restored to its federal 2 recognition status as a result ofa setdement of the lawsuit described in Para. 16 above. On 3 August 4,2009, the City of Elk Grove, along with Sacramento County,fileda motion to obtain 4 intervenor status as necessary parties in the lawsuit between the Wilton Rancheria and the BIA. 5 22. Sometime in 2009, Howard Hughes CorporationreplacedGeneral Growth 6 Properties, Inc. and its wholly owned subsidiary. Elk Grove Town Center, LP ["EGTC"], 7 assumed control of the Regional Mall Property. 8 23. On June 16,2011, the City, the County, and the Wilton Rancheria entered into a 9 Memorandum of Understanding (the "2011 MOU"), settlingtiiemotion to intervene. Hie MOU 10 was establishedregarding"mutually respectful govemment-to-govemment relationship 11 regarding potential off-trast impacts of Tribal Lands in Sacramento Coimty." The 2011 MOU 12 deemed that the proposed casino/hotel would be compatible with the General Plan if it was tiie 13 least intensive use permitted by the General Plan. 14 24. On July 24,2012, Boyd Gaming and the Wilton Rancheria enter into a private 15 agreement for the development of a casino/hotel, and sometime in 2012tiieWilton Rancheria 16 opened its business development ofRce in Elk Grove. 17 25. On November 12,2013, the Wilton Rancheria submitted aresolutionto initiate 18 the NEPA process for a fee-to-tnist and casino/hotel, comprising 282 acres. The resolution 19 proposed a preferred site called the 'Twin Cities Site" in tbe City of Gait (between Highway 99 20 andtiieUnion Pacific Railroad tracks). No other site was identified. The Twin Cities Site was 21 the prefeired sitefiximNovember 12,2013 until June 9,2016. Prior to Jime 9,2016, Petitioners 22 had noreasonto believe that the casino/hotel was actually proposed and would be built in the 23 City of EUc Grove. All public notices indicated that the Gah site wastiiepreferred site, and all 24 public hearings and opportunities for the public to comment were held in Gait 25 26. On January 24,2014, the City Attomey for EUc Grove wrote an e-mailtothe BIA: 26 "We are hearing rumors thattiieGait site may no longer be the preferred location of the casino. 27 27. On February 2014, the Department of the Interior, Bureau of Indian Affoirs 28 Released the Wilton Ranchdria Fee-to Trust Environmehtal Impact Statement ("EIS") Scoping VERIFIED AMENDED PETITION FOR WRTT OF MANDATE AND COMPLAINT - 6 1 Report indicating that the City of Gait was the preferred site. In addition to the proposed Twin 2 Cities Site (including areducedintensity casino/hotel version on this site), the EIS discussed two 3 other project altemative sites, the Tribal Rancheria Site in Wilton (the "Historic Rancheria Site") 4 andtiieCity of Elk Grove, Regional Mall Site,referredto as Altemative F (tiie "Mall Site"). The 5 Twin Cities Site proposal was 282 acres and 376,500 square feet; the Historic Rancheria Site 6 proposal was 75 acres and 376,500 square feet;tiieMall Site proposal was 28 acres and 381,000 7 square feet 8 28. On February 27,2014, Keitii Gellerman of Summit Engineering, Inc., who 9 Petitioners are informed and believe and thereon allege represented the gaming interests, wrote 10 an e-mailtoStephen Moore, Sacramento Area Sewer District "Re: Wastewater Feasibility Study 11 for a Proposed Project". Tbe e-mail described the project as a casino/hotel project (commercial), 12 on 28 acres (about 14 for building and 14 for paridng), that, "This is 'Alternative F', so disregard 13 the proposed development in the City of Gait" which email was acknowledged by Darren 14 Wilson oftiie City of Elk Grove. 15 29. On March 3,2014, an e-mail was sentfi^omKimley Hom, the casino/hotel EIS 16 traffic consultant totiieCity of Elk Grove,regardingthe EIS traffic study, which identified 17 Altemative F,tiieMall Site. 18 30. On March 11,2014, Keith Gelleiman sent e-mailstothe Sacramento Area Sewer 19 District: "I am working on a wastewater feasibility study for a proposed casino/hotel site near 20 Elk Grove. I needtoknow if the existing sewer main can handle the capacityfiomthe proposed 21 site and an [sic] the estimated connection and monthlyfoes.This is for a casino/hotel with 22 projected peakflowsof320,000 gpd, witii 250,000 gpd average...." 23 31. On March 14,2014, Brett Long of Sacramento Area Sewer District responded, 24 calculating the estimated impacts of the casino/hotel: "Using these factors, the uses other than 25 the Casino would have a calculated estimated impact of238.065 ESDs, leaving the remaining 26 Casino areas on water usage." 27 32. On March 4,2014, the City responded to the Kimley Hom e-mail, scheduling a 28 conference call regarding the traffic study memorandum of assumptions involving the Elk Grove VERIFIED AMENDED PETmON FOR WRIT OF MANDATE AND COMPLAINT - 7 1 Mall Site. On March 18,2014, a conference call was held withtiieEIS consultingfirmand the 2 City of Elk Groveregardingthe casino/hotel traffic study memorandum of assumptions. 3 33. On March 19,2014, an employee of the Sacramento Area Sewer District also 4 responded to Keith Gellerman, stating "the planned development [casino/hotel] would generate 5 moreflowthan we anticipated and would likely require some capacity improvements". 6 34. On April 11,2014, EGTCfiledan ^plication witiitiieCity of Elk Grove 7 requesting an amendmenttoZone A in the Lent Ranch SPA, the Regional Mall Property. The 8 stated purpose of this amendment was to convert Zone Afiroma traditional high-end retail mall 9 to an outiet mall concept referredtoas "The Outiet Collection at Elk Grove." 10 35. On August 15,2014, EGTC was served witii a Notice ofDefault oftiie 2001 11 Development Agreement byflieCity of Elk Grove. 12 36. On Sq)tember 16,2014, counsel for M & H Realty Partaers, who were owners of 13 other propeity witiiin the 2001 SPA, wrote a letter to the City objectingtothe City's proposed 14 ordinancetoamend the 2001 SPA to permit an outiet center and enter into a new development 15 agreement affecting only the Regional Mall Property. M & H Realty Partners wrote, in relevant 16 part that they objectedto1) the conspiracy between tbe City and EGTC to circumvent the [2001 17 Development] Agreement and the [2001] SPA; 2) the improper process proposedtodefault 18 EGTC for the sole puipose of allowing EGTC to circumvent their obligations under the 2001 19 DA; 3) the disraption oftiiecareful balance of land uses intiie2001 SPA; and lastiy 4) alleged 20 that the City approval process violated CEQA 21 37. On October 8,2014, the City adopted Ordinance 28-2014, amending the 2001 22 SPA, approving an amendmenttothe District Development Plan, and a Conditional Use Permit 23 1 br the Outiet Collection at Elk Grove. Although changes in Zone A were enacted as requested 24 by Real Property in Interest EGTC, notiiing intiierevisedzoning removed the "Shopping Center 25 Designation" on the entire property, ortiieheight restrictions. The shopping mall designation in 26 the amended 2014 SPA has no provisionforgaming, tribal or otherwise, or hotel development 27 and requires that all of Zone A is to be used for shopping mall purposes. The City also adopted 28 the Amended and Restated Agreeinent Regarding Regional Mall, Fees, and Infiastmcture. A VERIFIED AMENDED PETmON FOR WRIT OF MANDATE AND COMPLAINT - 8 1 tme and correct copy of Ordinance 28-2014 (without its exhibits) is attached hereto and 2 incoiporated herein as Exhibit '^A". 3 38. On October 22,2014,tiieCity adopted Ordinance 29-2014, approvingtiie2014 4 DA. In itsfindings,the City found that no further CEQA analysis wasrequiredfortiiischange, 5 claiming that development plans for Phase 2 were unknown. Thefindingsas part of the 6 Resolution exphcitiy acknowledged that the 2014 DA relied upon the approvals contained in fhe 7 2001 EIR, and found that the 2014 DA remained consistent with the Lent Ranch SPA. A tme 8 and coirect copy of Ordinance 29-2014 is attached hereto and incoiporated herein as Exhibit 9 "B". 10 39. As part of the 2014 SPA amendmoit and DA, Zone A - the Regional Mall - was 11 informally divided into two sections, referred to as "Phase 1" and 'Thase 2". Phase 1 was to be 12 tiie Outiet Collection at Elk Grove. Despite the multiple coordinated environmental review 13 efforts involving the City described above, the City stated in itsfindingsof fact that Phase 2 had 14 not been proposed for development as part of the project description, and the characteristics of 15 Phase 2 are "undefined and subjecttospeculation", and therefore the 2014 DA was exempt fcom 16 review imder CEQA. Petitioners are informed and believe, and thereon allege thattiieCity staff 17 was actively engaged in providing data to gaming consultantsrelatedto the Draft EIS, which 18 identified Phase 2 as an alternative casino/hotel site Altemative F, and thus were aware that tiiis \ 19 property was planned for a casino/hotel use. The 2014revisedDA and the amendments to the 20 Lent Ranch SPA encumbered all of Zone A, including Phase 1 "the Outiet Mall" and Phase 2 of 21 the property. 22 40. On October 29,2014, M & H Realty Partnersfileda Verified Petition for Writ of 23 Mandate againsttiieCity and Real Parties in Interest Elk Grove Town Center, LP, a Delaware 24 limited paitnership; Elk Grove Town Center, L.L.C., a Delaware limited liability conq>any; the 25 Howard Research and Development Corporation, a Maryland corporation; and Howard Hughes 26 Corporation, a Delaware corporation, for CEQA violations and breach ofthe 2001 DA. 27 41. In April 2015, the Elk Grove City Assistant Attomeyrequestedthat the Bureau 28 of Indiab Affairs said all notices regardingtiieEIS for the casino/hotel to the City. VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 9 1 42. Between May and November, 2015, the application and plans for Outlook 2 Collection, Phase 1 of 2k>ne A, went out forreviewto all agencies, including Sacramento County 3 Water Agency, Sacramento Sewer District and Elk Grove Water District. Phase 2 on the maps 4 was shown as blank, and there was no indication in the submitted plans that Phase 2 is planned 5 for a casino/hotel, or that the Real Parties in Interest were actively engaging with the City 6 regarding a casino/hotel on the Phase 2 property. 7 43. On September 5,2015, a Joint Status Report on Conditional Settiement was filed 8 by the partiestothe Petition for Writ of Mandatefiledby M & H Realty Partners, indicating that 9 the parties had reached a conditional settlement that included, in part, arevisionto the 10 development agreement which amendment was scheduledtobe heard by the City and County 11 on September 9,2015. Based thereon. Petitioners believe that this lawsuit was settied sometime 12 in Sqitember 2015. 13 44. As summarized above in paragr^hs 25 through 33, whiletiiedraft EIS was being 14 prepared and public indications were that the preferred site was the Twin Cities Site, documents 15 obtained sincefilingthe original Petition show that actions were being taken by the Real Parties 16 in Merest and the Citytopermit the casmo/hotel in Elk Grove on Phase 2 Zone A without 17 review by the public. 18 45. Petitioners are now informed and believe that City and Real Parties in Mterest 19 intended, by denying knowledge of plans to use Phase 2,toprevent the citizens of Elk Grove 20 tmm meaningful participation in the City's hearingstoamend the Lent Ranch SPA and approve 21 the 2014 DA, and to encourage public belieftiiatReal Parties in Intoest's preferred location 22 remained as Gait Petitioners had noreasontobe aware of the level of anticipated planning for 23 Phase 2 of the Regional Mall Property Zone A, or simultaneous planning of Phase 2 for a 24 casino/hotel until after thefilmgof the initial Petition. 25 46. On January 5,2016, the casino/hotel EIS wasreviewedby die Sacramento County 26 Water Agency. The water agency notedtiiatfacilities might needtochange duetoinclusion of a 27 12-story hotel. 28 /// VHUFIED AMENDED PETTnON FOR WRIT OF MANDATE AND COMPLAINT - 10 1 47. On January 29,2016, a public EIS meeting was held in the Chabolla Community 2 Center in Gaitregardingthe casino/hotel project and discussions focused on Gait as the 3 preferred location. 4 48. On March 10,2016, the County of Sacramento submitted a comment letter 5 regarding the Draft EIS, statrog thattiieDraft EIS does not apply Califomia or local standards. 6 49. On March 23,2016,tiieTribal Chairman fortiieWilton Rancheria informed 7 Sacramento County in an e-mail: "... After several montiis of review, the Elk Grove site has the 8 least environmental effects", and on March 30,2016, a meeting was held with the Wilton 9 Rancheria, the City of Elk Grove, and County representatives. The citizens of EUc Grove were 10 not informed of these communications and meetings. 11 50. Petitioners are infoimed and believe that beginnmg at least by April 2016, Boyd 12 Gaming arranged for special meetings in Las VegasforElk Grove Economic Development 13 Director and then Mayor Gary Davis and the Wilton Rancheria Tribal Chairmantomake sure 14 they all knew of City's support as stated in intemal eniails. 15 51. On May 31,2016, Real Party m Interest EGTC, Boyd Gammg, andtiieWilton 16 Rancheria entered into an option agreementtosell Phase 2 of die Regional Mall Property to the 17 Wilton Rancheria. The Memorandum of Option Agreement was recorded on Jime 7,2016, in 18 Sacramento County Official Records, as Document No. 20160607, at page 0666. 19 52. On June 8,2016, Sacramento County held a hearingregardinga new MOU with 20 the Wilton Rancheria, which provided, among other things, for various fimding payments, 21 especiallyrelatedtotraffic, and expressly provided that iftiieCounty discovers other impacts 22 and notifies the Wilton Rancheria, that they will address such impacts. 23 53. On June 9,2016, the Wilton Rancheria announced at their tribal offices in Elk 24 Grove that instead of proceeding with Alternatives A, B, C, D, or E ofthe Draft EIS, Phase 2 of 25 tiie Regional Mall Property, Altemative F - the Mall Site - oftiie Draft EIS, was now the 26 preferred location for its proposed tribal gaming casino/hotel and entertainment center. No 27 )ublic hearing was held by the City or the Bureau of hidian Af&irs in Elk Grove or anywhere 28 elseregardingthe change of location.' No public hearing noticed bytiieCity addressed the VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 11 1 impacts of a tribal casino and hotel on the Regional Mall Site. This was a sudden shift, as all 2 prior public notices and environmental documents prepared for the casino/hotel as part of the 3 Draft EIS, which commenced in 2013, emphasized the casino/hotel being developed intiieCity 4 of Gait and public meetings and hearings regardingtiieWilton Rancheria's plans for its 5 casino/hotel were held in Gait 6 54. From June 9,2016totiiepresent the City, the Real Parties in Literest and BIA 7 for the Wilton Rancheriaragagedin swift actiontoensure that the Phase 2 Property would 8 transitionfi-oman Outiet Mall to a casino/hotel and gaming facility. All of this was done 9 suddenly and without any meaningful noticetothe Petitioners andresidentsof the City of Elk 10 Grove. 11 55. On June 14,2016, a new Memorandum of Understanding was signed between the 12 County of Sacramento and the Wilton Rancheria This new MOU indicated that it would cover 13 either the Twin Cities Site or the Regional Mall Site. 14 56. On June 30,2016,21 days after the Wilton Rancheria announced the shift in 15 location, the Wilton Rancheriafiledthe fee-to-tiiist application, with the BIAregardingtiie 16 Phase 2 property. The Regional Mall Site is identified as 28 acres in the EIS documents; 17 however, subsequent conveyance documentsregardingthe fee-to-trust application identify a 35- 18 acre site. The actual site conveyed into Trust does not match that area id»itified in the EIS 19 documents, as it contains 7 extra acres. 20 57. In August 2016, tiie Sacramento County Water Agency ["SCWA"] reviewed tiie 21 Draft EIS and indicated that it would perfonn a detailed environmental analysis at the tune of 22 water improvement plan submittal. As offilingtiiisAmended Petition, Petitioners have found / ' • 23 no indicationtiiatcapadty improvements as previously requested bytiieSewer District and 24 Sacramento County Water Agency were incorporated intotiieFinal EIS for the Elk Grove MaU 25 location. These concerns expressed by the sewer and water agencies were not called out in tiie 26 DEIS or FEIS and confirmtiiatwato* and sewer servicetothe proposed hotel/casino was not 27 reviewed by SCWA at the tune the DEIS or FEIS wasreleasedtotiiepublic. 28 VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 12 1 58. On August 16,2016, the Elk Grove Planning Conunission considered a First 2 Amendmenttothe 2014 DA, and diuing the pubUc hearing stated thattiiepuipose oftiie 3 Amendment was to allowtitletoPhase 2 to be taken into Trast 4 59. On September 28,2016,tiieCity of Elk Grove passed Resohition No. 2016-183, 5 approving a new Memorandum of Understanding (the "2016 MOU") with the Wilton Rancheria, 6 and claimed the 2016 MOU was CEQA exempt The 2016 MOU provided for various cash 7 payments as mitigation, especially for traffic and tax loss. No public meetings were held to 8 review the basis of mitigation, or to provide detailsregardinghow the cash pa3nnents may relate 9 to any mitigation ostensibly identified by the City. The Resolution acknowledged that the 10 puipose ofthe 2016 MOU was so that the Regional Mall property could be put into Trust for 11 purposes of building a casino/hotel. The Resolutionreferencedthe Draft EIS which focused on 12 Gait aiid in whichtiieElk Grove Mall site was only Alternative F, and did not acknowledge tiiat 13 Gait was the preferred location at alltimesrelevantduring the publicreviewprocess, and that the 14 City of Elk Grove was not identified as the preferred site until the Final EIS stage in December, 15 2016. The Resolution statedtiiattiiecasino/hotel is anticipated to include a 608,756 square foot 16 casino-resort and a 12-story and approximately 302roomhotel tower, including a convention 17 center, witii on-site parkmg, as described in the draft EIS. This casino/hotel facility is an 18 unprecedented and drastic changefixtmtheregionaloutlet mall submissions with the 2014 DA, 19 and amendments to the Lent Ranch SPA, which was to include 775,000 total square feet of outiet 20 mall building, with 689,000 being gross leasable area with a maximum height of 100 feet At tiie 21 time the 2016 MOU was adopted by the City of Elk Grove,tiiecasinp/hbtel property had not 22 leen placed into Trust Bxtd thusremainedsubjecttothe City'sfoiljurisdiction and control. 23 60. The 2016 MOU included botii non-recuirihg and recurring payment plans, but 24 there is no public economic analysis associated with these payments, and it is unclear how the 25 pajnnents arerelatedto the actual expenses and costs ofthe casino/hoteltotiieCity. There is 26 also no analysis of what the additional trafQc impactsrelatedtoexpanded use ofthe Regional 27 ; vlall Site over shopping center by the proposed casino/hotel may be, and whether planned 28 mitigation payments adequately addressed such impacts. There i's likewise no explanation ofthe VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 13 1 Wilton Rancheria's compliance with air quality management plans. 2 61. On September 29,2016, in e-mails with Sacramento Area Sewer District and the 3 Cityregardingthe casino/hotel proposal,fivemonths before the proposed property was taken 4 into Trust the City emailed that "we have no land use or approval authority. Per the EIS, the 5 Wilton Rancheria is requiredtoenter into contract with Sac Area Sewer District May ask for 6 improvements to the pump station because the outflow exceeds the designflowfor the property." 7 62. On October 26,2016, the City passed Ordinance 23-2016,tiieFirst Amendment 8 to the 2014 DA, at the purported request of EGTC, toreleasethe 2014 DA as an encumbrance to 9 Phase 2, the casino/hotel property. The only stated purpose fortiiiswas to allow the Department 10 ofthe Interiortotake the property into Trasttoallow for the casino/hoteltobe built The 11 Ordinance would have become official 30 days after passage. 12 63. On November 9,2016, the First Amendment to the 2014 DA was recorded, prior 13 to die passage of 30 days. 14 64. On November 17,2016 - also prior to the 30-day effective date for the Fkst 15 Amendmenttotiie2014 DA - BIA issued a Notice of Land Applicationtotake Casino site into 16 tiust fbr benefit of the Wilton Rancheria. 17 65. On November 21,2016, areferendumpetition wasfiledwith the City Qerk. The 18 effect of the referendum was to suspend the First Amendment to the 2014 DA, meaning that the 19 2014 DA was still in full force and effect against all of Zone Ai including Phase 2, the proposed 20 casino/hotel property. 21 66. On November 23,2016,tiieinstant Petition wasfiledby STAND UP 22 CALIFORNIA! and residents of Elk Grove challenging Ordinance 23-2016, First Amendment to 23 the 2014 DA, and seeking to compel repeal of the First Amendment to the 2014 DA. Petitioners 24 contend thatfix>mand after the filing of thereferendumpetition the effect of the First 25 Amendment was suspended, andtiiatCity's efifortstoremovethe 2014 Development Agreement 26 fi-om Phase 2 were ineffective. 27 /// 28 III ' ^ ^ VERIFIED AMENDED PBTmON FOR WRIT OF MANDATE AND COMPLAINT - 14 1 67. On December 16,2016, Notice of Final EIS for Casino identifyingtiieElk Grove 2 Regional Mall Site was filed intiieFederal Register-BIA Notice 81 Fed. Reg. 90379; EPA 3 Notice 81 Fed. Reg. 91169, 4 68. On December 23,2016, Real Party in Interest EGTC, with the concurrence oftiie 5 City of Elk Grove, recorded a series of lot line adjustments, the apparent effect of which was to 6 define Phase 2 as a specific lot or lots in prqiaration for transfer to Boyd Gaming and the Wilton 7 Rancheria. This action was authorized bytiieCity without public notice or hearing. 8 69. On January 9,2017, the City recorded a notice ofreleaseof recorded Notice of 9 Conditional Partial Release of Recorded Mitigation Monitoring and Reporting Program for the 10 Lent Ranch Maiketplace. The effect of thisreleasewastoremove the Mandatoiy Mitigation 11 Measures approved as part of the 2001 SPA EIR fiom the Phase 2 casino/hotel property. Again, 12 fhis action was taken by the City without a hearing and without any public notice. Petitioners 13 contend that at all times priortoFebruary 10,2017, Phase 2 remamed property subjecttotiie 14 jurisdiction ofthe City and County, subject totiie2001 SPA EIR and its MMRPrestrictions,tiie 15 2014 AmendmentstotiieLent Ranch SPA, and the 2014 DA A trae and correct copy of tiiis 16 release is attached hereto and incorporated herein as Exliibit "C". 17 70. On January 9,2017, a grant deedfiomEGTCtothemselves wasfiled,apparentiy 18 to consummate the lot line adjustmentsrecordedon December 23,2016. 19 71. On January 9,2017, a Covenant/Agreement Access-Parking Agreement between 20 EGTC and tbe City of Elk Grove was filed, indicatingtiiatall fees for paiking will be paid fixnn 21 Phase 1 piroperty, the Outlet Mall, instead of all portions of Zone A, effecting a release of Phase 22 2 propertyfromthe payment of parking feestothe City. No hearing or public notice of the City's 23 decision toreleaseall fees for parkingtobe collected against the Phase 2 property was held. 24 72. On January 11,2017, a First Amendmenttothe Paiking License Agreement was 25 recorded, removing the casino/hotel propertyfix>mthe Paiking License Agreement recorded in 26 2003 and amended in 2014. No hearing or public notice oftiieCity's decision toreleasethe 27 Paiking License AgreementfromPhase 2 was held, and no public discussion of the financial 28 iroplicifitions of eithertiieCovenant or the Release was held. VERIFIED AMENDED PEimON FOR WRIT OF MANDATE AND COMPLAINT • 15 1 73. On January 11,2017, thereferendumtorepeal Ordinance 23-2016, fhe First 2 Amendmenttothe 2014 DA, was certified by the City Council upon recommendation ofthe City 3 Clerk. 4 74. On January 19,2017,tiieRecord of Decision ("ROD") was signed by Principal 5 Deputy Assistant Secretary - Indian AfEairs of the Department of Interior, Biu-eau of Indian 6 Afifairs, approving taking the land described as Phase 2 into Trust This approval was not 7 published in the Federal Register, and wasreleasedafter houra in Washington D.C. 8 75. Earlier on the same day, on January 19,2017, EGTC recorded the conveyance of 9 the Phase 2 property to Boyd Gaming and the Wilton Rancheria. The deed was executed on 10 January 12,2017. 11 76. On Febraary 5,2017,tiiefirstreading oftiie repeal of Ordinance 23-2016, tiie 12 First Amendmenttothe 2014 DA, was held in the City of Elk Grove, and adopted. 13 77. On February 10,2017, The Department of Interior accepted the conveyance of tiie 14 Phase 2 property &om Boyd Gaming andtiieWilton Rancheria, placing the property into Trust 15 78. On Febraary 21,2017, Stand Up for California!, Patty Johnson, Joe Teixeira, and 16 others (collectively, "Citizens")filedan administirative appeal ofthe ROD witiitiieInterior 17 Board of Indian Appeals ("Board"). Citizens requests that the Board grant preliminaryreliefon 18 an expedited basis, ordering BIA to removetitietothe propertyfixnntrust pending the 19 administrative appeal, on the grounds that BIA violated its own regulations by acquiringtitleto 20 tiie property in trast on the basis ofa non-final agency decision, without coiiq>lying witii notice 21 requirements and without waiting the mandatory 30-day periodtoallow Citizenstofiletiieir 22 administrative appeal. 23 79. On February 22,2017, Ordinance 23-2016,tiieFirst Amendmenttotiie2014 DA, 24 was formerly repealed by the City Council as a result of the certified referendum. 25 80. By Order dated February 24,2Q17, the Board ordered briefing on whether the 26 ROD isfinalfor the Department of the Interior. That proofing will conclude on or before March 27 31,2017. 28 /// VERIFIED AMENDED PETmON FOR WRIT OF MANDATE AND COMPLAINT - 16 1 81. From and at all times after 2001, Petitioners and the residents bf Elk Grove were 2 led to expect a shopping mall, and then later an outlet mall, and all detailed environmental 3 processes commencing in 2001 identified shopping center uses for Zone A. The City has now 4 permitted a planned substitution of a more intense use - a casino/hotel use on the northern 5 portion of the site [Phase 2] - with little notice to the public, and witii no environmental or 6 economic review or analysis conducted by the City of the comparative impacts of a casino/hotel 7 as to that anticipated by the 2001 EIR, all to the detriment of Petitioners and theresidentsand 8 taxpayers of the City of Elk Grove. 9 82. The City of Elk Grove provided no details in any kind of setting which provided 10 Petitioners andtiiieresidents of Elk Grove any type of assurance that the environmental analysis 11 prepared in the Final EIS adequately addressed impacts as required by California law. Two 12 yeara of environmentalreviewwent into the site analysis in Gait andfivemonths elapsed 13 betwen the Tribe's notice of change of location andreleaseofthe Final EIS December 16,2016 14 with the Elk Grove site as the substitoted Preferred Alternative. There are no assurances to 15 Petitioners and the residents and taxpayera: 16 a) That either the identified traffic impacts ortiiesurrounding traffic infi^stracture can 17 supporttiieincreased traffic burdens created by the casino/hotel; 18 b) Thattimeis sufficient water or sewer capacity fortfiecasino/botel without creating a 19 burdentotiieresidents, astiieFinal EIS contains no assurancetiiatthe facilities for 20 the proposed casino/hotel are readily available; 21 c) That there are sufficient sources and revenue idoitified in the 2016 MOUtomitigate 22 tbe negative social impacts of a casino/hotel, such as problem gambling; 23 d) That ±ere will be adequate paiking for the casino/hotel, and that overflow parking 24 will not be a burden on suirounding neighboihoods and business; and 25 e) Uiat the Tribal contributions idmtified as mitigation intiieSeptember 29,2016 MOU 26 are sufficienttoadequately address any mitigations reasonably necessaiy to respond 27 to any ofthe in^acts such unplanned develop may cause. 28 /// VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 17 1 83. Petitioneis are all active community members \^o are concemed about the 2 casino/hotel impacts, and were all denied notice and opportunity to participate in the casino/hotel 3 approval process described above. The actions complained of in this Amended Petition were 4 participated in or permitted by the City of Elk Grove priortothe Febraary 10,2017 fee-to-tinst 5 approval process, when the City still had fiill jurisdiction control over the casino/hotel property. 6 FIRST CAUSE OF ACTION - CITY BREACH OF ZONING ORDINANCE rCOVERNMENT CODE 8658601 7 8 84. Petitioners and Plaintiff re-state andre-pleadall alle^tions set forth a