Preview
1 Marc R. Bruner, Bar No. 212344 • .ENDORSED
MBruner(^perkinscoie.com
2 Marie A. Cooper, Bar No. 114728 2016 DEC -1 PH 2:Qi
MCooper@perkinscoie. com
3 Christopher A. Chou, Bar No. 293068 GDSSQ COUPJunti^r
CChou(^perkinscoie.com
4 PERKINS COIE LLP '--^CfiAuV.Ets'l 0 CO'
505 Howard Street, Suite 1000 COUNTY
5 San Francisco, CA 94105-3204
Telephone: 415.344.7000
6 Facsimile: 415.344.7050
7 Attomeys for Petitioners and Plaintiffs
STAND UP CALIFORNL\!; PATTY JOHNSON;
8 and JOE TEIXEIRA
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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STAND UP CALIFORNIA!; PATTY No. 34-2016-80002493
13 JOHNSON; and JOE TEIXEIRA,
NOTICE TO ATTORNEY GENERAL
14 Petitioners and
Plaintiffs,
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CITY OF ELK GROVE,
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Respondent and
18 Defendant.
19 ELK GROVE TOWN CENTER, LP;
HOWARD HUGHES CORPORATION;
20 and DOES 1-20,
21 Real Parties in
Interest and
22 Defendants. PAX
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NOTICE TO ATTORNEY GENERAL
1336198S2.I
1 TO THE ATTORIVEY GENERAL OF THE STATE OF CALIFORNIA:
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PLEASE TAKE NOTICE, under Public Resources Code § 21167.7 and Code of Civil
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Procedure § 388, that on November 23,2016, petitioners and plaintiffs Stand Up California!,
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Patty Johnson, and Joe Teixeirafileda verified petition for writ of mandate and complaint for
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declaratory and injunctive relief against the City of Elk Grove in Sacramento Coxmty Superior
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Court. The petition and complaint alleges that the City of Elk Grove violated the Califomia
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Environmental Quality Act by failing to evaluate adequately whether its decision to enact an
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ordinance amending its 2014 development agreement vsdth Elk Grove Town Center, LP would
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cause environmental impacts.
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A copy of the petition and complaint is attached to this notice.
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12 DATED: December 1,2016 PERKINS COIE LLP
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14 ; Omtx^i^
GGhou@perkittscoiiB!i5^
15 Cooper, Bar No. 114728
MCooper(^perkinscoie.com
16 Marc R. Bruner, Bar No. 212344
, MBruner@perkinscoie.com
Attomeys for Petitioners and Plaintiffs
18 i : STAND UP CALIFORNIA!; PATTY
JOHNSON; and JOE TEIXEIRA
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NOTIGETp ATTORNEY GENERi^^L
1336198S2.1
1 PROOF OF SERVICE BY OVERNIGHT DELIVERY
2 I am a citizen of the United States and employed in San Francisco County, Califomia. I
3 am over the age of eighteen years and not a party to the within-entitled action. My business
4 address is 505 Howard Street, Suite 1000, San Francisco, Califomia 94105-3204. On December
5 1,2016,1 deposited with Federal Express, a tme and correct copy of the within documents:
6 NOTICE TO ATTORNEY GENERAL
7 in a sealed envelope, addressed as follows:
8 Office of the Attomey General
1300 " I " Street
9 Sacramento, CA 95814-2919
10 : (916)445-9555
2J ; Following ordinary business practices, the envelope was sealed and placed for collection
j2 ; by Federal Express on this date, and would, in the ordinary course of business, be retrieved by
j3 Federal Express fbr ovemight delivery on this date.
24 I declare imder penalty of perjury imder the laws ofthe State of Califbmia that the above
J5 is tme and correct.
; Executed on December 1, 2016, at San Francisco, Califomia.
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Harewdod
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NOTrCE TO ATTORNEY GENERAL
1336198S2.1
FILED
1 Marc R. Bruner, Bar No. 212344
MBruner@peikinscoie.com Superior Court Of Califonnia,
2 Marie A. Cooper, Bar No. 114728 Sacramento
MGooper(^p!erkinscoie.com 1-1/23/2016
3 eMstpjjher^^^^ Bar No. 293068
GChdu(g;petlcinjSc6ie^
4 pERi:^WS GGlEliLP By- ' j D^i3i|ty
505 Howard Street, Suite 1000 Caisu Numbur:
5 San Francisco, CA 94105-3204
Telephone: 415.344.7000 34-2016-8000249$
6 Facsimile: 415.344.7050
7 Attorneys for Petitioners and Plaintiffs
STAND UP GAEIFORNIAI; PATTY JOHNSON;
8 aiid JOE TEIXEIRA
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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STAND UP CALIFORNIAI; PATTY No.
13 , JOHNSON; and JOE TEIXEIRA,
VERIFIED PETITION FOR WRIT OF
14^ Petitioners and MANDATE A>JD COMPLAINT FOR
Plaintififs, DECLARATORY AND INJUNCTIVE
15 , RELIEF
v..
16 C^iforhia Eiiviro Act (CEQA),
CITY OF ELK GROVE, Goyerrmient .Code, £le<^i>ns .Code, and
17; California Cons^
Respondent and
18 Defendant.
19 ELKGROVE TO?R^fcGENTEKpPr
HOWARD HUGHES CORPORATiON;
20 and DOES 1-20,
21 Real Parties in
Interest and
22 , Defendants.
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VERIFIED PEnTION EOR WRlT OF MANDATE ANIJ^^G^^
FOR DECLARATORY AND INJUNCTIVE RELIH'
1 Petitioners and plaintiffs. Stand up for California!, Patty Johnson, and Joe Teixeira, (the
2 "Petitioners"), in support of their petition for writ of mandate and their claim for declaratory and
3 injunctive relief, state and allege in this petition and complaint ("Petition") as follows:
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INTRODUCTION
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6 1. This Petition challenges a decision by the City of Elk Grove (the "City") to
7 approve an amendment to a development agreement (the "Amendment") goveming certain
8 property that is now proposed for a casino. The City approved the Amendment for the
9 acknowledged and sole purpose of allowing development of the casino by removing an
10 encumbrance on title that would have prevented a casino. Accordingly, the City made a
Hi discretionary decision to remove the casino property from the encumbrance created by the
12 development agreement jfor the acknowledged purpose of facilitating a casino project.
13 2. Despite the fact that the casino was destined to go nowhere in the near future as
14 long as the property remained subject to the development agreement, and despite being in a
15 position to make a discretionary decision whether to stop the casino, the City acted as though it
16 i had no say in whether the casino project could move forward or not. The City refused even to
17 consider whether there would be environmental effects from making the casino possible and
18 refused to study the casino's environmental impacts.
19 , J 3. The City also ignored the reservedrightsof the voters of Elk Grove to referend the
20 i City's decision to approve the Amendment. Though the law is clear that the City's approval of
21 the Amendment caimot take effect for thirty days, the City acted as if its approval was effective
22 ' immediately and signed and recorded the Amendment. The result was to make title appear as
23 though the encumbrance had been lifted, thereby hindering and thwarting therightof the voters to
24 referend the City's decision.
25 PARTIES AND VENUE
26 4. All of the Petitioners have a clear and presentrightto and beneficial interest in the
27 City's performance of its duties as alleged in this Petition.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
1 5. Petitioner and Plaintiff Stand up for Califomia! is a Califomia non-profit, public
2 service corporation with a focus on gambling issues affecting Califomia. Since 1996, it has
3 worked with individuals, community groups, elected officials, members of law enforcement, local
4 public entities, the State of California and state and federal policy makers with respect to gaming.
5 Its goals include addressing the cultural, economic, physical, and political impacts of state and
6 tribal govemment gaming. It has supporters throughout California, including some residing in the
7 area that will be affected by the physical impacts ofthe proposed casino that is at issue in this
8 action.
9 6. Petitioners and Plaintiffs Patty Johnson and Joe Teixeira are individuals who
10 reside in Elk Grove, Califomia. They will be affected by the physical impacts of the proposed
11 casino and are eligible voters in the City of Elk Grove.
12 7. Respondent and Defendant City of Elk Grove is, on information and belief, a
13 general law city organized and existing under the laws of the State of Califomia. The City of Elk
14 Grove is the lead agency under the Califomia Environmental Quality; Act ("CEQA") responsible
15 for evaluating the envirorunental impacts of the Amendment. It is also obligated to comply with
16 \ laws applicable to the effective dates of ordinances and the reservedrightof the citizens of Elk
17 Grove to referend ordinances.
18 8. Real Party in Interest and Defendant Elk Grove Town Center, LP is named as the
19 project applicant in the Notice of Determinationfiledby the City. Based upon that information,
20 Petitioners are informed and believe and on that ground allege that Elk Grove Town Center, LP is
21 the developer and applicant for the development agreement amendment challenged in this action.
22 9. Real Party in Interest and Defendant Howard Hughes Corporation is named in a
23 City staff report prepared for the Amendment as the owner of a property that is the site of a
24 regional mall project ("Regional Mall Property") and that is subject to the 2014 development
25 agreement ("2014 Development Agreement") that was purportedly amended by the Amendment.
26 Based upon that information. Petitioners are informed and believe and on that ground allege that
27 Howard Hughes Corporation is the owner ofthe Regional Mall Property, the title of which is and
28 will be affected by the actions described in this Petition.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
1 10. Petitioners do not know the true names and identities of Real Parties in Interest
2 and Defendants Does 1 through 20 and therefore sue them by these fictitious names. Petitioners
3 are informed and believe and on that basis allege that Does 1 through 20 have an actual and
4 substantial interest in the subject matter of the action and stand to be benefitted or injured by the
5 judgment. Petitioners will seek to amend this Petition to insert the tme name and capacities when
6 ascertained.
7 11. Petitioners have exhausted remedies by presenting their claims to the City Council
8 i prior to bringing this litigation. Petitioners have performed all required prerequisites to bringing
9 suit. Petitioners have provided notice of this Petition to the City prior to filing suit and will serve
10 = a copy of this Petition upon the Attomey General.
11 12. This Petition is brought under CEQA, the Plarming and Zoning Laws, Government
12 ' Code provisions regarding ordinances, the Election Code, and the Califomia Constitution. This
13 Petition concems actions taken by the City of Elk Grove regarding a development project
14 proposed to be constmcted in Elk Grove. Venue is proper in Sacramento County.
15 BACKGROUND
16 13. Petitioners are informed and believe and on that ground allege the facts stated in
17 i this background section. In 2001, the City approved a 295-acre special planning area that
18 includes the Regional Mall Property, based upon an environmental impact report the City had
19 prepared before that approval. That EIR evaluated the impacts of the proposed regional mall uses
20 of the Regional Mall Property. The City prepared an addendum to the EIR addressing impacts to
21 j agricultural resources that it adopted on August 4,2004. There has been no supplemental or
22 i subsequent environmental review for any development on the Regional Mall Property in the
23 dozen years since.
24 14. In 2014, the City enacted Ordinance 29-2014, which approved and authorized the
25 City to enter into the 2014 Development Agreement with Elk Grove Town Center, LP regarding
26 the Regional Mall Property. A development agreement is an agreement between a local
27 jurisdiction and an owner of legal or equitable interest in property that addresses the development
28 ofthe property it affects. It must specify the duration of the agreement, the permitted uses of
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VERJHED PETITION ROR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
1 property, the density or intensity of use, the maximum height and size of proposed building, and
2 provisions for reservation or dedication of land for public purposes.
3 15. A development agreement is a legislative act that must be approved by ordinance
4 and is subject to referendum. After a development agreement is approved by ordinance and the
5 City accordingly is enabled to enter into it, the agreement may be executed and recorded with the
6 county recorder.
7 16. Among other things, the 2014 Development Agreement granted the landowner the
8 • vested right to proceed with development in accordance with the 2001 and subsequent approvals
9 for the regional outlet shopping mall project. Section 4.5 ofthe development agreement
10 expressly reserved to the City the right, subject to the vestedrights,to grant or deny land use
11 approvals; approve, disapprove or revise maps; adopt, increase, and impose regular taxes, utility
12 i charges, and permit processing fees applicable on a city-wide basis; adopt and apply regulations
13 ] necessary to protect public health and safety; adopt increase or decrease fees, charges,
14 assessments, or special taxes; adopt and apply regulations relating to.the temporary use of land,
15 control of traffic, regulation of sewers, water, and similar subjects and abatement of public
16 I ; nuisances; adopt and apply City engineering design standards and constmction specification;
17 11 adopt and apply certeiin building standards code; adopt laws not in conflict with the terms and
18 conditions for development established in prior approvals; and exercise the City's power of
19 eminent domain with respect to any part of the property.
20 17. In May 2016, some or all of the Real Parties in Interest, entered into an option
21 agreement for sale of the northern portion of the Regional Mall Property (the "Casino Property")
22 to the Wilton Rancheria and Boyd Gaming Corporation. The option agreement was intended to
23 result in a transfer of the Casino Property to the Bureau of Indian Affairs (the "BIA") for the
24 benefit of the Wilton Rancheria and development of a casino.
25 18. The 2014 Development Agreement imposes an impediment to moving forward
26 with the plan to develop a casino on the Casino Property. A casino cannot be developed unless
27 the BIA takes the land into tmst and the land qualifies as "Indian lands" under the federal Indian
28 Gaming Regulatory Act, 25 U.S.C. 2703(4). The encumbrance created by the 2014 Development
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
1 Agreement prevents the land from qualifying as "Indian lands" and, thus, from being taken into
2 tmst by the BIA.
3 19. Accordingly, the City and Real Parties in Interest pursued the Amendment to
4 amend the 2014 Development Agreement to change its geographic scope. While the 2014
5 Development Agreement encumbered the entire Regional Mall Property, the Amendment would
6 ; release the encumbrance created by the Development Agreement on the Casino Property for the
7 purpose of making a casino possible.
8 20. The City introduced and enacted an ordinance enabling it to enter into the
9 proposed Amendment. However, the City never evaluated whether a new environmental analysis
10 or a supplement to the 2001 EIR was required to address the impacts of switching from a regional
11 mall project to a casino project. It did so despite evidence that the casino would cause
12 environmental impactstiiiatwould require mitigation and despite the fact that no lead agency has
13 i ever evaluated the impacts of the casino under CEQA.
14 21. Instead of evaluating the impacts of switching from a regional mall project to a
15 casino project, the City determined only that the regional mall project would not generate any
16 new environmental impacts other than those that had been studied in the 2001 EIR. Itfileda
17 Notice of Determination to that effect on October 27,2016. This action is brought within 30 days
18 : ofthefilingof that notice.
19 22. The Amendment was proposed, considered, and approved for the sole purpose of
20 making a casino possible. No other purpose for the Amendment was mentioned in staff reports or
21 at public hearings. The casino project is a direct consequence of the decision to enact the
22 ordinance approving the Amendment. The City made clear in staff reports and statements at
23 public hearings that without the Amendment, the casino project would not be possible. As stated
24 in a City staff report, "the BIA will not allow the [casino property] to be removed firom fee to
25 tmst for the Wilton Rancheria unless the encumbrances such as the Development Agreement are
26 removedfromtitle."
27 23. Section 9 of Article II of the Califomia Constitution defines therightof
28 referendum as the power of the electors to approve or reject legislative actions such as
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- VERIFIED PETITION. FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELliEF ^
1 ordinances. Under Govemment Code section 36937 and Elections Code section 9235.2, an
2 ordinance approving or amending a development agreement does not take effect for thirty days.
3 During that thirty day period, pursuant to Govemment Code sections 65867.5(a) and 65868 and
4 Elections Code sections 9235 and following, the voters of a jurisdiction are entitled to exercise
5 their right of referendum by presenting a petition protesting the ordinance. Despite the fact that
6 the ordinance enabling the City to enter into the Amendment had not yet taken effect, the City
7 i entered into, signed, and recorded the Amendment almost immediately after enacting the
8 ordinance. Moreover, the Amendment states that it was executed "as o f the date of the
9 Council's vote on the ordinance.
10 24. Immediate and irreparable harm will occur if the Amendment is allowed to remain
11 on record in such fashion that the BIA considers titlefreeof the encumbrance created by the
12 development agreement. BIA regulations require the Secretary of Interior to acquire land in tmst
13 ' immediately upon a positive determination of eligibility. The BIA has taken the position in other
14 i cases involving similar acquisitions that there is no clear process for removing landfromtrust and
15 resisted removing landfromtmst on that and other grounds. Further, upon acquisition, tribes can
16 : develop land and because they are immunefromsuit, their activities cannot be
17 enjoined. Accordingly, petitioners are informed and believe that transfer of land into tmst would
18 , prevent plaintiffs from obtaining relief
19 25. A referendum petition was circulated in the City of Elk Grove protesting the
20 ordinance enabling the City to enter into the Amendment. That referendum petition was filed
21 with the City Clerk's office before commencement of this action, i
22 FIRST CAUSE OF ACTION
23 CEQA VIOLATION
24 26. Petitioners incorporate the allegations of all prior paragraphs as though set forth in
25 fiill.
26 27. The City violated CEQA by failing to evaluate adequately whether its decision to
27 enact an ordinance approving the Amendment would cause environmental impacts. Specifically,
28 the City failed to consider whether environmental impacts would result from its decision to .
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""^ ~- ~~ VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARAtbRY AND INJUNCTIVE RiELIEF
1 enable the elimination of its jurisdiction over the casino site, to eliminate therightsexpressly
2 reserved to the City under section 4.5 of the development agreement, and to issue one of several
3 governmental decisions needed to develop a casino at the Casino Property.
4 28. Accordingly, the City prejudicially abused its discretion in enacting an ordinance
5 ' approving the Amendment. The ordinance and the Amendment should be set aside and vacated,
6 and the City should be ordered not to re-enact either absent frill compliance with CEQA.
7 SECOND CAUSE OF ACTION
8 VIOLATION OF GOVERNMENT CODE, ELECTIONS CODE AND CALIFORNIA
CONSTITUTION
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10: 29. Petitioners incorporate the allegations of all prior paragraphs as though set forth in
11 full.
12 , 30. The City violated its legal obligations to recognize that the ordinance approving
13;:: and authorizing the Amendment could not take effect fbr thirty days after its enactment. The City
14 • instead entered into the Amendment without an effective ordinance in place and recorded an
15 Amendment that stated it was executed "as o f the date of its enactment. In taking these actions
16 i the City violated statutory law. It also was and is taking actions that thwart therightreserved to
17 the voters of Elk Grove in the California Constitution to referend the ordinance approving the
18 Amendinent before that ordinance is given effect.
19 31. The referendum petition protesting the ordinance approving the Amendment was
20 filed with the City shortly before this action was commenced. If sufficient signatures on that
21 referendum petition are verified, then the ordinance approving the Amendment will continue to
22 be suspended, and it will not be possible for that ordinance to go into effect unless and until a
23 majority of voters of Elk Grove approve the ordinance. Accordingly, the Amendment is not
24 legally in effect, and may remain ineffective until an election is held.
25 32. By recording the Amendment with language indicating that it was in effect on the
26 date of recordation, the City has unlawfully taken actions that make title appear as though the
27 Casino Property has been cleared of the encumbrance created by the 2014 Development
28 Agreement. However, for the reasons stated above, that decision to clear title is not in effect.
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VERimED PETITrON FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARAtbRY AND INJUNCTIVE RELIEF
1 33. Accordingly, the City's actions entering into and recording an Amendment that
2 purports to be in effect violated law and interfered with the constitutionally reservedrightof
3 ; referendum. Petitioners are entitled to an order directing the City and Real Parties in Interest to
4 maintain the status quo by recognizing and acknowledging the ineffectiveness ofthe ordinance
5 and the Amendment. Petitioners are entitled to an order directing the City and Real Parties in
6 Interest to take such actions as are reasonably necessary to expunge the Amendment by recording
7 ; a quitclaim deed or other appropriate document to release the Amendment. Petitioners are also
8 entitled to an order prohibiting the City and Real Parties in Interestfromrepresenting to any
9 ! person or entity (including the BIA), by express statement or by omission, that title to the Casino
10 Property is free of the encumbrance created by the 2014 Development Agreement.
11 THIRD CAUSE OF ACTION
12 DECLARATORY RELIEF
13 34. Petitioners incorporate the allegations of all prior paragraphs as though set forth in
14 frill.
15 35. An actual controversy has arisen and now exists among the parties in that
16 Petitioners make the contentions alleged above and are informed and believe and on that basis
17 allege that the City and Real Parties in Interest dispute these contentions.
18 36. Petitioners desire a judicial determination and declaration as to the effectiveness of;
19 the ordinance and the validity of the City's actions.
20 37. Ajudicial declaration is necessary and appropriate at this time under the
21 circumstances to clarify and ascertain therightsof the parties and avoid a multiplicity of actions.
22 38, Petitioners are accordingly entitled to ajudicial declaration.
23 PRAYER FOR RELIEF
24 Wherefore, Petitioners pray relief as follows:
25 1. For altemative and peremptory writs of mandate ordering the City:
26 : (a) to set aside and vacate its decisions to adopt the ordinance approving the
27 Amendment, and to enter into the Amendment; and
28 (b) to comply fully with CEQA before taking any similar action to release the
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
1 encumbrance created by the 2014 Development Agreement from the Casino Property; and
2 (c) to recognize and acknowledge the ineffectiveness of the ordinance and the
3 Amendment, by taking such actions as are reasonably necessary to expunge the Amendment by
4 recording a quitclaim deed or other appropriate document to release the Amendment, and by
5 ceasing and refrainingfromrepresenting to any person or entity (including the BIA), by express
6 statement or by omission, that title to the Casino Property isfreeof the encumbrance created by
7 the 2014 Development Agreement.
8 2. For a temporary stay, a temporary restraining order, and preliminary and
9 I permanent injunctions directing the City and/or Real Parties in Interest to take and not take the
10 ; ; actions referenced in the preceding paragraph of this prayer; and
11 : 3. For ajudicial declaration stating the rights and remedies of the parties.
12 ; 4. For costs of suit.
13 i[' 5. For such other legal or equitable relief as the court deems proper,
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DATED: November 23, 2016 PERKINS COIE LLP
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17 ! By: / / / ^ /f,
Ma/c R. Bmner, Bar No. 212344
18 ^ MBrohiBr@p^
;; Marie A, Cooper, Bar No. 114728
1" ' MCooper@perkinscoie.com
Christopher A. Chou, Bar No. 293068
20 ; CChou@perkinscoie.com
21 i Attomeys for Petitioners
STAND UP CALIFORNIA!; PATTY
22 : _ JOHNSON; and JOE TEIXEIRA
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VERIFIEDPETITION FOR WRlTpF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
1 VERIFICATION
2 I, Cheryl Schmit, declare:
3 I am an officer of STAND UP FOR CALIFORNLM, a corporation organized and existing
under dw laws of California, which is a Petitioner in the above^tled action^ and ! have been
4 authorized to make this verificati(^^
5 I have read theforegoingPEimON AND CQMPIiJM^ file herein and know the
Qpnt^ts thereof. The same b true 6i^| ^^^^^ are
6 therein stated on information a n d l ^ ^
7' I declare under penalty of perjury under the laws ofthe State of California that the
foregoing is tnie and Qoire^
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PKllliOW AND COMPLAINT
Preview
1 Marc R. Bruner, Bar No. 212344 • .ENDORSED MBruner(^perkinscoie.com 2 Marie A. Cooper, Bar No. 114728 2016 DEC -1 PH 2:Qi MCooper@perkinscoie. com 3 Christopher A. Chou, Bar No. 293068 GDSSQ COUPJunti^r CChou(^perkinscoie.com 4 PERKINS COIE LLP '--^CfiAuV.Ets'l 0 CO' 505 Howard Street, Suite 1000 COUNTY 5 San Francisco, CA 94105-3204 Telephone: 415.344.7000 6 Facsimile: 415.344.7050 7 Attomeys for Petitioners and Plaintiffs STAND UP CALIFORNL\!; PATTY JOHNSON; 8 and JOE TEIXEIRA 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 STAND UP CALIFORNIA!; PATTY No. 34-2016-80002493 13 JOHNSON; and JOE TEIXEIRA, NOTICE TO ATTORNEY GENERAL 14 Petitioners and Plaintiffs, 15 16 CITY OF ELK GROVE, 17 Respondent and 18 Defendant. 19 ELK GROVE TOWN CENTER, LP; HOWARD HUGHES CORPORATION; 20 and DOES 1-20, 21 Real Parties in Interest and 22 Defendants. PAX 23 24 25 26 27 28 NOTICE TO ATTORNEY GENERAL 1336198S2.I 1 TO THE ATTORIVEY GENERAL OF THE STATE OF CALIFORNIA: 2 PLEASE TAKE NOTICE, under Public Resources Code § 21167.7 and Code of Civil 3 Procedure § 388, that on November 23,2016, petitioners and plaintiffs Stand Up California!, 4 Patty Johnson, and Joe Teixeirafileda verified petition for writ of mandate and complaint for 5 declaratory and injunctive relief against the City of Elk Grove in Sacramento Coxmty Superior 6 Court. The petition and complaint alleges that the City of Elk Grove violated the Califomia 7 Environmental Quality Act by failing to evaluate adequately whether its decision to enact an 8 ordinance amending its 2014 development agreement vsdth Elk Grove Town Center, LP would 9 cause environmental impacts. 10 A copy of the petition and complaint is attached to this notice. 11 12 DATED: December 1,2016 PERKINS COIE LLP 13 14 ; Omtx^i^ GGhou@perkittscoiiB!i5^ 15 Cooper, Bar No. 114728 MCooper(^perkinscoie.com 16 Marc R. Bruner, Bar No. 212344 , MBruner@perkinscoie.com Attomeys for Petitioners and Plaintiffs 18 i : STAND UP CALIFORNIA!; PATTY JOHNSON; and JOE TEIXEIRA 19 20 21 22 23 24 25 26 27 28 -1- NOTIGETp ATTORNEY GENERi^^L 1336198S2.1 1 PROOF OF SERVICE BY OVERNIGHT DELIVERY 2 I am a citizen of the United States and employed in San Francisco County, Califomia. I 3 am over the age of eighteen years and not a party to the within-entitled action. My business 4 address is 505 Howard Street, Suite 1000, San Francisco, Califomia 94105-3204. On December 5 1,2016,1 deposited with Federal Express, a tme and correct copy of the within documents: 6 NOTICE TO ATTORNEY GENERAL 7 in a sealed envelope, addressed as follows: 8 Office of the Attomey General 1300 " I " Street 9 Sacramento, CA 95814-2919 10 : (916)445-9555 2J ; Following ordinary business practices, the envelope was sealed and placed for collection j2 ; by Federal Express on this date, and would, in the ordinary course of business, be retrieved by j3 Federal Express fbr ovemight delivery on this date. 24 I declare imder penalty of perjury imder the laws ofthe State of Califbmia that the above J5 is tme and correct. ; Executed on December 1, 2016, at San Francisco, Califomia. 17 18 Harewdod 19 20 21 22 23 24 25 26 27 28 NOTrCE TO ATTORNEY GENERAL 1336198S2.1 FILED 1 Marc R. Bruner, Bar No. 212344 MBruner@peikinscoie.com Superior Court Of Califonnia, 2 Marie A. Cooper, Bar No. 114728 Sacramento MGooper(^p!erkinscoie.com 1-1/23/2016 3 eMstpjjher^^^^ Bar No. 293068 GChdu(g;petlcinjSc6ie^ 4 pERi:^WS GGlEliLP By- ' j D^i3i|ty 505 Howard Street, Suite 1000 Caisu Numbur: 5 San Francisco, CA 94105-3204 Telephone: 415.344.7000 34-2016-8000249$ 6 Facsimile: 415.344.7050 7 Attorneys for Petitioners and Plaintiffs STAND UP GAEIFORNIAI; PATTY JOHNSON; 8 aiid JOE TEIXEIRA 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 STAND UP CALIFORNIAI; PATTY No. 13 , JOHNSON; and JOE TEIXEIRA, VERIFIED PETITION FOR WRIT OF 14^ Petitioners and MANDATE A>JD COMPLAINT FOR Plaintififs, DECLARATORY AND INJUNCTIVE 15 , RELIEF v.. 16 C^iforhia Eiiviro Act (CEQA), CITY OF ELK GROVE, Goyerrmient .Code, £le<^i>ns .Code, and 17; California Cons^ Respondent and 18 Defendant. 19 ELKGROVE TO?R^fcGENTEKpPr HOWARD HUGHES CORPORATiON; 20 and DOES 1-20, 21 Real Parties in Interest and 22 , Defendants. 23 24 25 26 27 28^ VERIFIED PEnTION EOR WRlT OF MANDATE ANIJ^^G^^ FOR DECLARATORY AND INJUNCTIVE RELIH' 1 Petitioners and plaintiffs. Stand up for California!, Patty Johnson, and Joe Teixeira, (the 2 "Petitioners"), in support of their petition for writ of mandate and their claim for declaratory and 3 injunctive relief, state and allege in this petition and complaint ("Petition") as follows: 4 INTRODUCTION 5 6 1. This Petition challenges a decision by the City of Elk Grove (the "City") to 7 approve an amendment to a development agreement (the "Amendment") goveming certain 8 property that is now proposed for a casino. The City approved the Amendment for the 9 acknowledged and sole purpose of allowing development of the casino by removing an 10 encumbrance on title that would have prevented a casino. Accordingly, the City made a Hi discretionary decision to remove the casino property from the encumbrance created by the 12 development agreement jfor the acknowledged purpose of facilitating a casino project. 13 2. Despite the fact that the casino was destined to go nowhere in the near future as 14 long as the property remained subject to the development agreement, and despite being in a 15 position to make a discretionary decision whether to stop the casino, the City acted as though it 16 i had no say in whether the casino project could move forward or not. The City refused even to 17 consider whether there would be environmental effects from making the casino possible and 18 refused to study the casino's environmental impacts. 19 , J 3. The City also ignored the reservedrightsof the voters of Elk Grove to referend the 20 i City's decision to approve the Amendment. Though the law is clear that the City's approval of 21 the Amendment caimot take effect for thirty days, the City acted as if its approval was effective 22 ' immediately and signed and recorded the Amendment. The result was to make title appear as 23 though the encumbrance had been lifted, thereby hindering and thwarting therightof the voters to 24 referend the City's decision. 25 PARTIES AND VENUE 26 4. All of the Petitioners have a clear and presentrightto and beneficial interest in the 27 City's performance of its duties as alleged in this Petition. 28 -1- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 5. Petitioner and Plaintiff Stand up for Califomia! is a Califomia non-profit, public 2 service corporation with a focus on gambling issues affecting Califomia. Since 1996, it has 3 worked with individuals, community groups, elected officials, members of law enforcement, local 4 public entities, the State of California and state and federal policy makers with respect to gaming. 5 Its goals include addressing the cultural, economic, physical, and political impacts of state and 6 tribal govemment gaming. It has supporters throughout California, including some residing in the 7 area that will be affected by the physical impacts ofthe proposed casino that is at issue in this 8 action. 9 6. Petitioners and Plaintiffs Patty Johnson and Joe Teixeira are individuals who 10 reside in Elk Grove, Califomia. They will be affected by the physical impacts of the proposed 11 casino and are eligible voters in the City of Elk Grove. 12 7. Respondent and Defendant City of Elk Grove is, on information and belief, a 13 general law city organized and existing under the laws of the State of Califomia. The City of Elk 14 Grove is the lead agency under the Califomia Environmental Quality; Act ("CEQA") responsible 15 for evaluating the envirorunental impacts of the Amendment. It is also obligated to comply with 16 \ laws applicable to the effective dates of ordinances and the reservedrightof the citizens of Elk 17 Grove to referend ordinances. 18 8. Real Party in Interest and Defendant Elk Grove Town Center, LP is named as the 19 project applicant in the Notice of Determinationfiledby the City. Based upon that information, 20 Petitioners are informed and believe and on that ground allege that Elk Grove Town Center, LP is 21 the developer and applicant for the development agreement amendment challenged in this action. 22 9. Real Party in Interest and Defendant Howard Hughes Corporation is named in a 23 City staff report prepared for the Amendment as the owner of a property that is the site of a 24 regional mall project ("Regional Mall Property") and that is subject to the 2014 development 25 agreement ("2014 Development Agreement") that was purportedly amended by the Amendment. 26 Based upon that information. Petitioners are informed and believe and on that ground allege that 27 Howard Hughes Corporation is the owner ofthe Regional Mall Property, the title of which is and 28 will be affected by the actions described in this Petition. -2- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 10. Petitioners do not know the true names and identities of Real Parties in Interest 2 and Defendants Does 1 through 20 and therefore sue them by these fictitious names. Petitioners 3 are informed and believe and on that basis allege that Does 1 through 20 have an actual and 4 substantial interest in the subject matter of the action and stand to be benefitted or injured by the 5 judgment. Petitioners will seek to amend this Petition to insert the tme name and capacities when 6 ascertained. 7 11. Petitioners have exhausted remedies by presenting their claims to the City Council 8 i prior to bringing this litigation. Petitioners have performed all required prerequisites to bringing 9 suit. Petitioners have provided notice of this Petition to the City prior to filing suit and will serve 10 = a copy of this Petition upon the Attomey General. 11 12. This Petition is brought under CEQA, the Plarming and Zoning Laws, Government 12 ' Code provisions regarding ordinances, the Election Code, and the Califomia Constitution. This 13 Petition concems actions taken by the City of Elk Grove regarding a development project 14 proposed to be constmcted in Elk Grove. Venue is proper in Sacramento County. 15 BACKGROUND 16 13. Petitioners are informed and believe and on that ground allege the facts stated in 17 i this background section. In 2001, the City approved a 295-acre special planning area that 18 includes the Regional Mall Property, based upon an environmental impact report the City had 19 prepared before that approval. That EIR evaluated the impacts of the proposed regional mall uses 20 of the Regional Mall Property. The City prepared an addendum to the EIR addressing impacts to 21 j agricultural resources that it adopted on August 4,2004. There has been no supplemental or 22 i subsequent environmental review for any development on the Regional Mall Property in the 23 dozen years since. 24 14. In 2014, the City enacted Ordinance 29-2014, which approved and authorized the 25 City to enter into the 2014 Development Agreement with Elk Grove Town Center, LP regarding 26 the Regional Mall Property. A development agreement is an agreement between a local 27 jurisdiction and an owner of legal or equitable interest in property that addresses the development 28 ofthe property it affects. It must specify the duration of the agreement, the permitted uses of -3- VERJHED PETITION ROR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 property, the density or intensity of use, the maximum height and size of proposed building, and 2 provisions for reservation or dedication of land for public purposes. 3 15. A development agreement is a legislative act that must be approved by ordinance 4 and is subject to referendum. After a development agreement is approved by ordinance and the 5 City accordingly is enabled to enter into it, the agreement may be executed and recorded with the 6 county recorder. 7 16. Among other things, the 2014 Development Agreement granted the landowner the 8 • vested right to proceed with development in accordance with the 2001 and subsequent approvals 9 for the regional outlet shopping mall project. Section 4.5 ofthe development agreement 10 expressly reserved to the City the right, subject to the vestedrights,to grant or deny land use 11 approvals; approve, disapprove or revise maps; adopt, increase, and impose regular taxes, utility 12 i charges, and permit processing fees applicable on a city-wide basis; adopt and apply regulations 13 ] necessary to protect public health and safety; adopt increase or decrease fees, charges, 14 assessments, or special taxes; adopt and apply regulations relating to.the temporary use of land, 15 control of traffic, regulation of sewers, water, and similar subjects and abatement of public 16 I ; nuisances; adopt and apply City engineering design standards and constmction specification; 17 11 adopt and apply certeiin building standards code; adopt laws not in conflict with the terms and 18 conditions for development established in prior approvals; and exercise the City's power of 19 eminent domain with respect to any part of the property. 20 17. In May 2016, some or all of the Real Parties in Interest, entered into an option 21 agreement for sale of the northern portion of the Regional Mall Property (the "Casino Property") 22 to the Wilton Rancheria and Boyd Gaming Corporation. The option agreement was intended to 23 result in a transfer of the Casino Property to the Bureau of Indian Affairs (the "BIA") for the 24 benefit of the Wilton Rancheria and development of a casino. 25 18. The 2014 Development Agreement imposes an impediment to moving forward 26 with the plan to develop a casino on the Casino Property. A casino cannot be developed unless 27 the BIA takes the land into tmst and the land qualifies as "Indian lands" under the federal Indian 28 Gaming Regulatory Act, 25 U.S.C. 2703(4). The encumbrance created by the 2014 Development ^4- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Agreement prevents the land from qualifying as "Indian lands" and, thus, from being taken into 2 tmst by the BIA. 3 19. Accordingly, the City and Real Parties in Interest pursued the Amendment to 4 amend the 2014 Development Agreement to change its geographic scope. While the 2014 5 Development Agreement encumbered the entire Regional Mall Property, the Amendment would 6 ; release the encumbrance created by the Development Agreement on the Casino Property for the 7 purpose of making a casino possible. 8 20. The City introduced and enacted an ordinance enabling it to enter into the 9 proposed Amendment. However, the City never evaluated whether a new environmental analysis 10 or a supplement to the 2001 EIR was required to address the impacts of switching from a regional 11 mall project to a casino project. It did so despite evidence that the casino would cause 12 environmental impactstiiiatwould require mitigation and despite the fact that no lead agency has 13 i ever evaluated the impacts of the casino under CEQA. 14 21. Instead of evaluating the impacts of switching from a regional mall project to a 15 casino project, the City determined only that the regional mall project would not generate any 16 new environmental impacts other than those that had been studied in the 2001 EIR. Itfileda 17 Notice of Determination to that effect on October 27,2016. This action is brought within 30 days 18 : ofthefilingof that notice. 19 22. The Amendment was proposed, considered, and approved for the sole purpose of 20 making a casino possible. No other purpose for the Amendment was mentioned in staff reports or 21 at public hearings. The casino project is a direct consequence of the decision to enact the 22 ordinance approving the Amendment. The City made clear in staff reports and statements at 23 public hearings that without the Amendment, the casino project would not be possible. As stated 24 in a City staff report, "the BIA will not allow the [casino property] to be removed firom fee to 25 tmst for the Wilton Rancheria unless the encumbrances such as the Development Agreement are 26 removedfromtitle." 27 23. Section 9 of Article II of the Califomia Constitution defines therightof 28 referendum as the power of the electors to approve or reject legislative actions such as -5-... , - VERIFIED PETITION. FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELliEF ^ 1 ordinances. Under Govemment Code section 36937 and Elections Code section 9235.2, an 2 ordinance approving or amending a development agreement does not take effect for thirty days. 3 During that thirty day period, pursuant to Govemment Code sections 65867.5(a) and 65868 and 4 Elections Code sections 9235 and following, the voters of a jurisdiction are entitled to exercise 5 their right of referendum by presenting a petition protesting the ordinance. Despite the fact that 6 the ordinance enabling the City to enter into the Amendment had not yet taken effect, the City 7 i entered into, signed, and recorded the Amendment almost immediately after enacting the 8 ordinance. Moreover, the Amendment states that it was executed "as o f the date of the 9 Council's vote on the ordinance. 10 24. Immediate and irreparable harm will occur if the Amendment is allowed to remain 11 on record in such fashion that the BIA considers titlefreeof the encumbrance created by the 12 development agreement. BIA regulations require the Secretary of Interior to acquire land in tmst 13 ' immediately upon a positive determination of eligibility. The BIA has taken the position in other 14 i cases involving similar acquisitions that there is no clear process for removing landfromtrust and 15 resisted removing landfromtmst on that and other grounds. Further, upon acquisition, tribes can 16 : develop land and because they are immunefromsuit, their activities cannot be 17 enjoined. Accordingly, petitioners are informed and believe that transfer of land into tmst would 18 , prevent plaintiffs from obtaining relief 19 25. A referendum petition was circulated in the City of Elk Grove protesting the 20 ordinance enabling the City to enter into the Amendment. That referendum petition was filed 21 with the City Clerk's office before commencement of this action, i 22 FIRST CAUSE OF ACTION 23 CEQA VIOLATION 24 26. Petitioners incorporate the allegations of all prior paragraphs as though set forth in 25 fiill. 26 27. The City violated CEQA by failing to evaluate adequately whether its decision to 27 enact an ordinance approving the Amendment would cause environmental impacts. Specifically, 28 the City failed to consider whether environmental impacts would result from its decision to . -6- ""^ ~- ~~ VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARAtbRY AND INJUNCTIVE RiELIEF 1 enable the elimination of its jurisdiction over the casino site, to eliminate therightsexpressly 2 reserved to the City under section 4.5 of the development agreement, and to issue one of several 3 governmental decisions needed to develop a casino at the Casino Property. 4 28. Accordingly, the City prejudicially abused its discretion in enacting an ordinance 5 ' approving the Amendment. The ordinance and the Amendment should be set aside and vacated, 6 and the City should be ordered not to re-enact either absent frill compliance with CEQA. 7 SECOND CAUSE OF ACTION 8 VIOLATION OF GOVERNMENT CODE, ELECTIONS CODE AND CALIFORNIA CONSTITUTION 9 10: 29. Petitioners incorporate the allegations of all prior paragraphs as though set forth in 11 full. 12 , 30. The City violated its legal obligations to recognize that the ordinance approving 13;:: and authorizing the Amendment could not take effect fbr thirty days after its enactment. The City 14 • instead entered into the Amendment without an effective ordinance in place and recorded an 15 Amendment that stated it was executed "as o f the date of its enactment. In taking these actions 16 i the City violated statutory law. It also was and is taking actions that thwart therightreserved to 17 the voters of Elk Grove in the California Constitution to referend the ordinance approving the 18 Amendinent before that ordinance is given effect. 19 31. The referendum petition protesting the ordinance approving the Amendment was 20 filed with the City shortly before this action was commenced. If sufficient signatures on that 21 referendum petition are verified, then the ordinance approving the Amendment will continue to 22 be suspended, and it will not be possible for that ordinance to go into effect unless and until a 23 majority of voters of Elk Grove approve the ordinance. Accordingly, the Amendment is not 24 legally in effect, and may remain ineffective until an election is held. 25 32. By recording the Amendment with language indicating that it was in effect on the 26 date of recordation, the City has unlawfully taken actions that make title appear as though the 27 Casino Property has been cleared of the encumbrance created by the 2014 Development 28 Agreement. However, for the reasons stated above, that decision to clear title is not in effect. ' ,, . -7-.,. I VERimED PETITrON FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARAtbRY AND INJUNCTIVE RELIEF 1 33. Accordingly, the City's actions entering into and recording an Amendment that 2 purports to be in effect violated law and interfered with the constitutionally reservedrightof 3 ; referendum. Petitioners are entitled to an order directing the City and Real Parties in Interest to 4 maintain the status quo by recognizing and acknowledging the ineffectiveness ofthe ordinance 5 and the Amendment. Petitioners are entitled to an order directing the City and Real Parties in 6 Interest to take such actions as are reasonably necessary to expunge the Amendment by recording 7 ; a quitclaim deed or other appropriate document to release the Amendment. Petitioners are also 8 entitled to an order prohibiting the City and Real Parties in Interestfromrepresenting to any 9 ! person or entity (including the BIA), by express statement or by omission, that title to the Casino 10 Property is free of the encumbrance created by the 2014 Development Agreement. 11 THIRD CAUSE OF ACTION 12 DECLARATORY RELIEF 13 34. Petitioners incorporate the allegations of all prior paragraphs as though set forth in 14 frill. 15 35. An actual controversy has arisen and now exists among the parties in that 16 Petitioners make the contentions alleged above and are informed and believe and on that basis 17 allege that the City and Real Parties in Interest dispute these contentions. 18 36. Petitioners desire a judicial determination and declaration as to the effectiveness of; 19 the ordinance and the validity of the City's actions. 20 37. Ajudicial declaration is necessary and appropriate at this time under the 21 circumstances to clarify and ascertain therightsof the parties and avoid a multiplicity of actions. 22 38, Petitioners are accordingly entitled to ajudicial declaration. 23 PRAYER FOR RELIEF 24 Wherefore, Petitioners pray relief as follows: 25 1. For altemative and peremptory writs of mandate ordering the City: 26 : (a) to set aside and vacate its decisions to adopt the ordinance approving the 27 Amendment, and to enter into the Amendment; and 28 (b) to comply fully with CEQA before taking any similar action to release the -8- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 encumbrance created by the 2014 Development Agreement from the Casino Property; and 2 (c) to recognize and acknowledge the ineffectiveness of the ordinance and the 3 Amendment, by taking such actions as are reasonably necessary to expunge the Amendment by 4 recording a quitclaim deed or other appropriate document to release the Amendment, and by 5 ceasing and refrainingfromrepresenting to any person or entity (including the BIA), by express 6 statement or by omission, that title to the Casino Property isfreeof the encumbrance created by 7 the 2014 Development Agreement. 8 2. For a temporary stay, a temporary restraining order, and preliminary and 9 I permanent injunctions directing the City and/or Real Parties in Interest to take and not take the 10 ; ; actions referenced in the preceding paragraph of this prayer; and 11 : 3. For ajudicial declaration stating the rights and remedies of the parties. 12 ; 4. For costs of suit. 13 i[' 5. For such other legal or equitable relief as the court deems proper, 14 15 DATED: November 23, 2016 PERKINS COIE LLP 16 17 ! By: / / / ^ /f, Ma/c R. Bmner, Bar No. 212344 18 ^ MBrohiBr@p^ ;; Marie A, Cooper, Bar No. 114728 1" ' MCooper@perkinscoie.com Christopher A. Chou, Bar No. 293068 20 ; CChou@perkinscoie.com 21 i Attomeys for Petitioners STAND UP CALIFORNIA!; PATTY 22 : _ JOHNSON; and JOE TEIXEIRA 23 24 25. 26 27 28 -9-_ • VERIFIEDPETITION FOR WRlTpF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 VERIFICATION 2 I, Cheryl Schmit, declare: 3 I am an officer of STAND UP FOR CALIFORNLM, a corporation organized and existing under dw laws of California, which is a Petitioner in the above^tled action^ and ! have been 4 authorized to make this verificati(^^ 5 I have read theforegoingPEimON AND CQMPIiJM^ file herein and know the Qpnt^ts thereof. The same b true 6i^| ^^^^^ are 6 therein stated on information a n d l ^ ^ 7' I declare under penalty of perjury under the laws ofthe State of California that the foregoing is tnie and Qoire^ 8 Executed at 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PKllliOW AND COMPLAINT