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BRIGIT S. BARNES & ASSOCIATES, INC.
BRIGIT S. BARNES, ESQ. CSB #122673
ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591
3262 Penryn Road, Suite 200
Loomis, CA 95650
Telephone: (916) 660-9555
Facsimile: (916)660-9554
Attorneys for Petitioners/Plaintiffs PATTY JOHNSON;
JOE TEIXEIRA; OMAR AHMED, JR.; XIN GUO;
and CAROLYN SOARES
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
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11
12 PATTY JOHNSON; JOE TEIXEIRA; CASE NO. 34-2016-80002493
OMAR AHMED, JR.; XIN GUO;
13 and CAROLYN SOARES,
DECLARATION OF BRIGIT S. BARNES
14 IN SUPPORT OF PETITIONERS/
Petitioners and Plaintiffs, PLAINTIFFS' MOTION FOR RELIEF
15 v. FROM DISMISSAL
fCCP § 473]
16 CITY OF ELK GROVE,
Date: June 2, 2017
Time: 11:00 a.m.
17 Respondent and Defendant. Dept: 24
18 ELK GROVE TOWN CENTER, LP; Judge: Hon. Shelleyanne W.L. Chang
19
HOWARD HUGHES CORPORATION; and
DOES 1-20, inclusive.
20
Real Parties in Interest and
21 Defendants.
22 J
23 I, BRIGIT S. BARNES, declare:
24 I. I am an attomey, duly licensed to practice law before the courts of the State of
25 Califomia, and the Northern, Eastem and Central Federal Districts. I am the President of Brigit
26 S. Barnes & Associates, Inc., attomeys of record for Petitioners/Plaintiffs PATTY JOHNSON,
27 JOE TEIXEIRA, OMAR AHMED, JR., XIN GUO, and CAROLYN SOARES ("Petitioners")
28 lerein. I have personal knowledge of the facts stated herein, and if called upon could
BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 1
1 competently testify thereto.
2 2. In early December I became attomey of record for then Petitioners Stand Up!
3 Califomia, Patty Johnson, and Joe Teixeira, replacing Perkins Coie against the same
4 Respondents and Defendants. Prior to my substitution, Perkins Coiefiledand served the origina
5 Petition and the Notice of Election to Prepare the Record of Proceedings. A tme and correct
6 copy ofthe Petition filed November 23, 2016 is attached to this declaration and incorporated
7 herein as Exhibit 1.
8 3. On behalf of Petitioners, I filed for an injunction which was heard by this Court
on December 22, 2016, seeking the Court to recognize and acknowledge the ineffectiveness of
10 Ordinance 23-2016 (the "Ordinance") and expunge the First Amendment to the 2014 DA by
11 mandating that Respondent City of Elk Grove ("City") record a quitclaim deed or other
12 appropriate document to release the First Amendment, and fiirther seeking an order that City
13 refrainfi-omrepresenting to any person or entity (including the Bureau of Indian Affairs
14 ("BIA")) that title to the casino property is free ofthe encumbrances created by the 2014 DA.
15 This Court denied Petitioners' motion on the primary ground that the referendum suspended the
16 effect of the Ordinance, and therefore the 2014 DA continued to encumber the entire Regional
17 Mall Property, and therefore no action to preserve Petitioners' rights was necessary at that time.
18 Respondent and Real Parties in Interest had asserted this point, and were aware of this Court's
19 determination.
20 4. Opposing Counsel and I engaged in a series of telephone meet and confers related
21 to the original Writ beginning about January 12, 2017. These initial discussions were first
22 focused on my motion for injunction [in December] and then in January, focused on preparation
23 of the Administrative Record. Although Petitioners had requested the right to prepare the
24 Administrative Record, we were delayed in completing the index because various documents I
25 believed were material were not released by City to me per my multiple Public Records Act
2g requests ("PRAs"). I also requested a postponement of any discussion of the validity of the writ
2 until after the January 25, 2017 City Council hearing. A tme and correct copy of my January
12, 2017 email requesting a postponement is attached to this declaration and incorporated herein
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BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 2
1 as Exhibit 2. I decided to prepare an interim index and produced that index to City on January
2 23, 2017. A tme and correct copy of my cover email forwarding the preliminary index is
3 attached to this declaration and incorporated herein as Exhibit 3. Since that transmission I have
4 received no response related to the index. Our office has pursued additional PRAs with City,
5 and recently began receiving a large quantity of documents which are being reviewed at the
6 time of filing this Motion.
7 5. Between late December 2016 and continuing to the present time I obtained
documents independent ofthe responses to my PRAs from the City of Elk Grove. In late
8
January and Febmary 2017 I obtained documents either prepared by City or participated in by
9
City which attempted by other means than the Amended DA to remove the restrictions of
10
the DAfiromthe Phase 2 property. I discovered that in the face of City's acknowledgement that
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the Referendum stayed any effectiveness of the 1^' Amended DA, in late December City's
12
Public Works Department authorized recordings to sever what was described in the 2014 DA as
13
Phase 2fromthe balance of the property. Despite its recognition that the 2014 DA remained on
14
the Regional Mall Property, on January 9, 2017, City recorded the Notice of Conditional Partial
15
Release of Recorded Mitigation Monitoring and Reporting Program for the Lent Ranch
16
Marketplace ("MMRP Release"). A tme and correct copy ofthe MMRP Release is attached to
17 this declaration and incorporated herein as Exhibit 4. Also on January 9, 2017, Real Parties
18 executed and recorded a series of parcel map adjustments related to the Phase 2 property, which
19 when completed formed one parcel for all of Phase 2. A tme and correct copy of one of the
20 resulting parcels from these successive recordings is attached to this declaration and
21 incorporated herein as Exhibit 5,
22 6. I personally attended every hearing held by the City of Elk Grove in January and
23 Febmary 2017 where anything related to the Elk Grove Mall was noticed. I have reviewed all
24 public notices from the City Clerk. None of City's actions described in Paragraph 5 above were
25 taken with any public notice.
26 7. On January 11, 2017, City held a City Coimcil hearing to "Consider certifying the
27 referendum petition submitted against the City of Elk Grove Ordinance No. 23-2106 and provide
28 direction to staff to either repeal Ordinance No. 23-2106 or to call a special election as deemed
BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 3
1 appropriate." The City Clerk recommended certification of the referendum, having determined
2 that of the 14,000 signaturesfiled,over 12,000 were valid. The City Council accepted the
3 recommendation and set a hearing for January 25, 2017 to consider altemative actions of either
4 repealing Ordinance 23-2016 or setting the matter for public election. A tme and correct copy of
5 the meeting agenda, Item 10.1, recommending certifying the referendum and the City Council's
6 setting the hearing is attached to this declaration and incorporated herein as Exhibit 6.
7 8. As a result ofthe City Council delaying action on the City Clerk recommendation
8 I asked for a delay in the Mandatory CEQA settlement conference to allow for anticipated City
9 action on January 25, 2007.
10 9. Even though the Referendum had been certified, and before the set City hearing,
11 On January 18, 2017, Real Parties signed the conveyance ofthe Phase 2 casino/hotel property to
12 Boyd Gaming and the Wilton Rancheria Tribe, which was recorded on January 19, 2017 at the
13 Sacramento County Recorder's Office. A tme and correct copy of this Grant Deed is attached to
14 this declaration and incorporated herein as Exhibit 7. Also on January 19, 2017, after hours,
15 BIA issued a Record of Decision which to this day has not been published in the Federal
16 Register. I am informed and believe that the Record of Decision was challenged within the 30
17 days required under federal law, and that such action stays the effectiveness of the Record of
18 Decision. As of the date of this filing, nofinaldetermination by BIA has occurred.
19 10. On January 25,2017, the City Council again postponed a decision regarding the
20 repeal of Ordinance 23-2016 or setting an election to Febmary 22, 2017.
21 11. Boyd Gaming and Wilton Rancheria signed a conveyance oftiieproperty to the
22 U.S. Department of Interior on January 16 (Boyd) and January 17 (Wilton Rancheria), which
23 was not recorded until Febmary 10, 2017 with the Sacramento County Recorder's Office. The
24 Acceptance of Conveyance by the U.S. Department of the Interior was signed on February 10,
25 2017 by the Acting Regional Director. Tme and correct copies of this Grant Deed and
26 Acceptance of Conveyance are collectively attached to this declaration and incorporated herein
27 as Exhibit 8. I am informed that DC Counsel for Petitioners filed timely appeals as to all these
28 actions with BIA and the Department of Interior; however, no decision has been published in the
BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 4
1 Federal Record, and therefore the actions by the Department have not been determined to be
2 final at this time.
3 12. On Febmary 22, 2017, the City Council passed Ordinance 07-2017, repealing
4' Ordinance 23-2016. Tme and coirect copies of Ordinance No. 07-2017, accompanied by Ms.
5 Ebrahimi's email of Febmary 23, 2017 asking for dismissal, are collectively attached to this
6 declaration and incorporated herein as Exhibit 9.
7 13. On, March 11, 2017,1 wrote a letter to City Attomey Jonathan Hobbs regarding
8 the need for a public meeting to consider the assignment ofrightsfrom Elk Grove Town Center
9 to Boyd Gaming and the Wilton Rancheria as required under the 2014 DA. Mr. Hobbs.
10 responded that the request for a public meeting regarding the assignment ofrightsunder the 2014
11 DA said that was the responsibility of Real Party in Interest Elk Grove Town Center, not the
12 City. A tme and correct copy of my letter to City Attomey Hobbs is attached to this declaration
13 and incorporated herein as Exhibit 10.
14 14. Our office continued to obtain documentsfiromthird party sources. I replied to
15 Ms. Ebrahimi on Febmary 27, 2017 that we were considering amending the Petition to assert
16 multiple violations of CEQA and breaches of the 2014 DA and SPA. A tme and correct copy of
17 the 1 page e-mail string between myself and Ms. Ebrahimi is attached to this declaration and
18 incorporated herein as Exhibit 11.
19 15. As a result of the discovery of all these actions summarized in this declaration,
20 both public and private by City after receipt ofthe Referendum and before formally repealing the
21 1^' Amended DA, I determined that the writ should be amended to assert additional supplemental
22 claims. A tme and correct copy of the filed Amended Petition for Writ of Mandate and
23 Complaint for Declaratory Relief ("Amended Wrif), without the exhibits, is attached to this
24 declaration and incorporated herein as Exhibit 12.
25 16. After filing and serving the Amended Writ on March 13,2017,1 again discussed
26 the case in some detail in a series of conversations supplemented with email with opposing
27 counsel. I believe the first meet and confer after the Amended Writ was filed was when we
28 talked by phone on or about March 27, 2017. A copy of my outiine of issues was forwarded to
BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 5
1 counsel on March 27, a ti-ue and correct copy of which is attached to this declaration and
2, incorporated herein as Exhibit 13. Real Parties in Interests, Elk Grove Town Center and
3 Howard Hughes Corporation, asked that Petitioners dismiss them, and City asked for a dismissa
4 for all purposes, which I denied. On April 11, 2017 I wrote to Scott Pearson, counsel for Elk
5 Grove Town Center and Howard Hughes Corporation, explaining in summary form why I
6 believed Elk Grove Town Center and Howard Hughes Corporation were properly named as Real
7 Parties in Interest. A tme and correct copy of my letter to Mr. Pearson is attached to this
8 declaration and incorporated herein as Exhibit 14.
9 17. As a result of my refiisal to dismiss the Amended Writ, all attomeys for City and
10 Real Parties in Interest advised me of their intent to file for a demurrer, and that they had
11 reserved a date which I initially agreed to, but shortly discovered conflicted with a minor
12 procedure for me. All counsel agreed to and stipulated to the current date for a hearing of June
13 2,2017.
14 18. On or about April 12, 2017, during a telephone meet and confer prior to filing
15 their demurrer, counsel for City advised Petitioners of its intent to seek to dismiss Petitioners'
16 Amended Writ under Pubhc Resources Code § 21167.4(a) for failure to request a hearing within
17 90 days. As part of our discussion I orally objected that (1) the Amended Writ supersedes the
18 Original Writ; (2) the CEQA argument raised in the Original Writ is now moot; (3) the timing
19 for filing a request for hearing mns from filing of the Amended Writ, March 13, 2017, not the
20 original filing date of November 23, 2016 as established by case law; (4) the CEQA claim in the
21 Amended Writ relates to City's cancellation of Mandatory Mitigation Measures applicable to
22 the property on January 9, 2017, and is not related to the now moot CEQA claim in the original
23 Petition. City and Real Parties made numerous additional claims as to why the Amended Writ
24 should be dismissed, which were the subject of two sets of memos back and forth between
25 counsel between March 27 and April 28. I offered during the April 12 phone call, and in one of
26 the responsive emails, to seek a requestfi-omthe Court to abate the tolling of the Petition until
27 resolution of the multiple federal claims that have been filed with the federal district court in
28 D.C., with BIA, and with Department of Interior. Respondents would not accept that offer.
BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 6
1 19. On April 20, 2017,1 advised all counsel that I would seek relief under a 473
2 Motion if they did not agree that the Amended Writ should not be dismissed under Public
3 Resources Code § 21176.4 for failure to request a hearing. A tme and correct copy of that
4 advisory email and response dated April 28 are collectively attached to this declaration and
5 incorporated herein as Exhibit 15
6 20. On April 23, 2017, Petitioners requested that Respondent withdraw its planned
7 request for dismissal, which request was denied on April 28, 2017. No agreement having been
reached between counsel for the respective parties. Petitioners file this Motion, asking that said
9 Motion be heard at the same time as Respondent's Demurrer. Petitioners filed two Requests for
10 Hearing on April 25, 2017: one as to the original Writ and one as to the Amended Writ. Tme
11 and correct copies of these requests are collectively attached to this declaration and incorporated
12 herein as Exhibit 16
13 21. Because subsequent communications from counsel for Respondent City indicate
14 that her client would proceed with a request for dismissal at the time of demurrer, now
15 scheduled for June 2, 2017, Petitioners file this instant Motion requesting that the Court accept
16 the request for hearing filed by Petitioners as timely (1) based on the filing date of the Amended
17 Writ or (2) excused under Code of Civil Procedure § 473
18 I declare, under penalty of perjury under the laws of the State of Califomia, that the
19 foregoing is tme and correct.
20 Executed on May 4, 2017, at Loomis, Califomia.
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BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 7
Exhibit 1
1 Marc R. Bruner, Bar No. 212344 Superior Court Of Califoniia,
MBruner@perkinscoie.com
2 Marie A. Cooper, Bar No, 114728
MCooper@perkinscole.com 1-1/23/20^6
3 Chrisippher A. Chou, Bar No. 293068
CCh6u@pel-kihscoie,coni
4 PERKINS COIE LLP By , Depijly
505 Howard Street, Suite 1000
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 CALIFORNIA!; PATTY JOHNSON;
8 and JOE TEIXEIRA
9
SUFERIOR COURT OFTOESTATB OF CALIFORNIA
ID
COUNTY OF SACRAMENTO
11
12
STAND UP CALIFORNIA!; PATTY No. •
13 JOHNSON; and JOE TEIXEIRA,
VERIFIED PETITION FOR WRIT OF
14 Petitioners and MANDATE AND COMPLAINT FOR
Plaintiffs, DECLARATORY AND INJUNCITVE
15 RELIEF
16 Califomia Environmental Quality Act (CEQA),
CITY OF ELK GROVE, Govemment Code, Elections Code, and
17 Califomia Constitution Claims
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.
23
24 SYFAX
25
26
27
28
VERIFIED PETITION FOR WRIT OK MANDATE AND COMPLAINT
FOR DECLARATORY AND INHiNCTlVE RELIEF
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") governing 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
11 discretionary decision to remove the casino property from the encumbrance created by the
12 development agreement for 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 had no say in whether the casino project could move forward or not. The City reftised even to
17 consider whether there would be enviromnental effects from making the casino possible and
18 refused to study the casino's environmental impacts.
19 3. The City also ignored the reserved rights of the voters of Elk Grove to referend the
20 City's decision to approve the Amendment. Though the law is clear that the City's approval of
21 the Amendment cannot 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 the right of the voters to
24 referend the City's decision.
25 PARTIES AND VENUE
26 4. All of the Petitioners have a clear and present right to and beneficial interest in the
27 City's performance of its duties as alleged in this Petition.
28
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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 California! is a California non-profit, public
2 service corporation with a focus on gambling issues affecting Cahfornia. Since 1996, it has
3 worked with individuals, community gi'oups, 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 government gaming. It has supporters throughout California, including some residing in the
7 area that will be affected by the physical impacts of the 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, California. They will be affected by the physical impacts ofthe 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 California. The City of Elk
14 Grove is the lead agency under the California Environmental Quality Act ("CEQA") responsible
15 for evaluating the environmental impacts ofthe Amendment. It is also obligated to comply with
16 laws applicable to the effective dates of ordinances and the reserved right of 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 appHcant in the Notice of Determination filed by 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 of the Regional Mall Property, the titie 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 ofthe action and stand to be benefitted or injured by the
5 judgment. Petitioners will seek to amend this Petition to insert the true name and capacities when
6 ascertained.
7 11. Petitioners have exhausted remedies by presenting their claims to the City Council
8 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 Attorney General.
11 12. This Petition is brought under CEQA, the Planning and Zoning Laws, Government
12 Code provisions regarding ordinances, the Election Code, and the California Constitution. This
13 Petition concems actions taken by the City of Elk Grove regarding a development project
14 proposed to be constructed 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 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 ofthe Regional Mall Property. The City prepared an addendum to the EIR addressing impacts to
21 agricultural resources that it adopted on August 4, 2004. There has been no supplemental or
22 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 of the property it affects. It must specify the duration of the agreement, the permitted uses of
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VERIFIED PETITION FOR 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 outiet shopping mall project. Section 4.5 of the development agreement
10 expressly reserved to the City the right, subject to the vested rights, to grant or deny land use
1] approvals; approve, disapprove or revise maps; adopt, increase, and impose regular taxes, utility
12 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 nuisances; adopt and apply City engineering design standards and constmction specification;
17 adopt and apply certain building standai'ds 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 tiie 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 trust 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 Agreemenl 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 requiredto 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 impacts that would require mitigation and despite the fact that no lead agency has
13 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. It filed a
17 Notice of Determination to that effect on October 27, 2016. This action is brought within 30 days
18 of the filing of 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 from fee to
25 trust for the Wilton Rancheria unless the encumbrances such as the Development Agreement are
26 removed from title."
27 23. Section 9 of Article II of the California Constitution defines the right of
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 RELIEF
1 ordinances. Under Government 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 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 title free of the encumbrance created by the
12 development agreement. BIA regulations require the Secretary of Interior to acquire land in trust
13 immediately upon a positive determination of eligibility. The BIA has taken the position in otiier
14 cases involving similar acquisitions that there is no clear process for removing land from tmst and
15 resisted removing land from tmst on that and other grounds. Further, upon acquisition, tribes can
16 develop land and because they are immune from suit, their activities cannot be
17 enjoined. Accordingly, petitioners are infonned and believe that transfer of land into trust 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.
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 enviroimiental 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 DECLARATORY AND INJUNCTIVE RELIEF
1 enable the elimination of its jurisdiction over the casino site, to eliminate the rights expressly
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 Cify 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 full 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 ftill.
12 30. The City violated its legal obligations to recognize that the ordinance approving
13 and authorizing the Amendment could not take effect for 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 the City violated statutory law. It also was and is taking actions that thwart the right reserved to
17 the voters of Elk Grove in the Califomia Constitution to referend the ordinance approving the
18 Amendment 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 titie 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 titie is not in effect.
-7-
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY 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 reiserved right of
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 of the 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 ai e reasonably necessaiy 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 Interest from representing 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.
H THIRD CAUSE OF ACTION
12 DECLARATORY R E L I E F
13 34. Petitioners incorporate the allegations of all prior paragraphs as though set forth in
14 fill].
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. A judicial declaration is necessary and appropriate at this time under the
21 circumstances to clarify and ascertain the rights ofthe parties and avoid a multiplicity of actions.
22 38. Petitioners are accordingly entitled to a judicial declaration,
23 PRAYER FOR R E L I E F
24 Wherefore, Petitioners pray rehef as follows:
25 1. For alternative 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 wath 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 refraining from representing to any person or entity (including the BIA), by express
6 statement or by omission, that title to the Casino Property is free of the encumbrance created by
7 the 2014 Development Agreement,
8 2. For a temporary stay, a temporary restraining order, and preliminary and
9 permanent injunctions du-ecting 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 a judicial declaration stating the rights and remedies of the parties.
12 4. For costs of suit.
13 5. For such other legal or equitable relief as the court deems proper.
14
15
DATED: November 23, 2016 PERKINS COIE L L P
16
17 By: f / U ^ /f, $/Uu^^^U^ •
Ma/c R. Bruner, Bar No. 212344
'° MBruner@perkinscoie.com
Marie A. Cooper, Bar No. 114728
MCooper@perkinscoie.com
Christopher A. Chou, Bar No. 293068
2^ CChou@perkinscoie.com
2' Attorneys for Petitioners
STAND UP CALIFORNIA!; PATTY
22 JOHNSON; and JOE TEIXEIRA
23
24
25
26
27
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-9-
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
1 VERIFICATION
2 I, Cheryl Schmit, declare:
3 I am an officer of STAND UP FOR CALIFORNIA!, a coiporation organized and existing
under the laws of California, which is a Petitioner in the above-entitled action, and I have been
4 authorized to make this verification on its behalf.
5 I have read the foregomg PETITION AND COMPLAINT onfileherein and know tiie
contents thereof. The same is tme of nw own knowledge, except as to those matters which ^
6 therein stated on information and belief, and, as to those matters, I believe them to be true.
7 I declare under penalty of perjitty under the laws of the State ofCalifomia that the
foregoing is tme and conect.
8
Executed at'^itU\'M.|V^s^ . Galiforni^ November 2016.
9
10
Cheryl Schmit
11
12
13
14
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-10-
PETITION AND COMPLAINT
Exhibit 2
bsbarnes@landlawbybarnes.coin
From: bsbarnes@landlawbybarnes.com
Sent: Thursday, January 12, 2017 1:46 PM
To: Mona G. Ebrahimi - Kronicl< Moskovitz Tiedemann & Girard (mebrahimi@kmtg.com);
Scott M. Pearson - Ballard Spahr LLP (PearsonS@baiiardspahr.com)
Cc: John Hobbs (jhobbs@elkgrovecity.org); noreen@iandlawbybarnes.com
Subject: Stand Up California! v. City of Elk Grove - CEQA conference
Importance: High
Dear Mona and Scott:
As you may know, the City Clerk placed on the agenda for the City Council hearing Jan
11 the issue of its certification of the referend petition with a request for
instructions. The City Council took testinnony but made no decision except to set a
hearing on January 25, 2017. The City is also considering whether to rescind the 1^*
Amendment, or to certify for an election and when. That second tier decision may also
affect Petitioner's posture relative to the First Cause of Action. Given the City's
inaction last night, discussions regarding whether the status of the Petition and
pleading scheduled appear to be premature.
Petitioners are preparing a list of items for inclusion of the record and hope to have that
list to you by close of business tomorrow.
I would propose that we all agree to postpone the CEQA conference until a date
shortly after the 25'^ of January. Thank you for your consideration.
Brigit Barries
Brigit S;.B'arnes,&As^^ Inc.
Real Estate, LjahdiJse & Asset Preservatidii
3262 Penryn Road, Suite 200
Lbbnnfe, OA 95650
(916) 660^555
Fax; (916) 660-9554
Emaill bsbames@andlavvbybames.com
Far.and away the best prize that life offers is
the cH^rice to .iwbi-kha^^
Theodore Roosevelt, 1903.
THE INFORMATION CONTAINED IN THIS ELECTRONIC MESSAGE MAY BE ATTORNEY-CLIENT PRIVILEGED AND CANNOT
BE FORWARDED BY THE RECIPIENT TO ANY OTHER PARTY WITHOUT THE PRIOR CONSENT OF THE SENDER. The
information is intended only for the individuals) to whom this message is addressed. If the reader of this message is not the
intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that
any dissemination, distribution, or copying of this electronic communication or any attachment thereto Is strictly
1
prohibited. If you have received this electronic communication in error, you should immediately return it to us and delete the
message from your system. We would appreciate it if you would telephone us at (916) 660-9555, Noreen, to advise of the
misdirected communication. Thank you.
Exhibit 3
bsbarnes@landlawbybarnes.com
From: bsbarnes@landlawbybarnes;com
Sent: Monday, January 23, 2017 4:49 PM
To: Mona G. Ebrahimi - Kronick Moskovitz Tiedemann & Girard (mebrahimi@kmtg.com);
Scott M. Pearson - Ballard Spahr LLP (PearscnS@bailardspahr.com)
Cc: John Hobbs (jhobbs@elkgrovecity.org)
Subject: Preliminary Record Index: Stand Up California! eL al. v. COEG
Attachments: Admin Record List - proposed by Stand Up for CA 1-23-17.docx
Importance: High
Dear IVIona and Scott:
Although all documents requested from the City have not been received, I am
providing you today our preliminary record index. I expect we will be reviewing the
index during our conference in February.
Brigit Barri^
Brigit S".Bari>K^^
Re^ Es tate, ; t ^ d Use & Asset Preservation
3262 Penryn Road, Suite 200
Lcioniis,;eA 95650
(916)i360-9555
Fax: (916) 6e&i9:554
Emaih'bsbames^landlawbybames.com
Far and away the best prize that life offers is
the chance to work hard at work worth doing.
Theodore Roosevelt, 1903.
THE INFORMATION CONTAINED IN THIS ELECTRONIC MESSAGE MAY BE ATTORNEY-CLIENT PRIVILEGED AND CANNOT
BE FORWARDED BY THE RECIPIENT TO ANY OTHER PARTY WITHOUT THE PRIOR CONSENT OF THE SENDER. The
information is intended only for
Preview
.•• • • i'.. f • BRIGIT S. BARNES & ASSOCIATES, INC. BRIGIT S. BARNES, ESQ. CSB #122673 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 3262 Penryn Road, Suite 200 Loomis, CA 95650 Telephone: (916) 660-9555 Facsimile: (916)660-9554 Attorneys for Petitioners/Plaintiffs PATTY JOHNSON; JOE TEIXEIRA; OMAR AHMED, JR.; XIN GUO; and CAROLYN SOARES SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 12 PATTY JOHNSON; JOE TEIXEIRA; CASE NO. 34-2016-80002493 OMAR AHMED, JR.; XIN GUO; 13 and CAROLYN SOARES, DECLARATION OF BRIGIT S. BARNES 14 IN SUPPORT OF PETITIONERS/ Petitioners and Plaintiffs, PLAINTIFFS' MOTION FOR RELIEF 15 v. FROM DISMISSAL fCCP § 473] 16 CITY OF ELK GROVE, Date: June 2, 2017 Time: 11:00 a.m. 17 Respondent and Defendant. Dept: 24 18 ELK GROVE TOWN CENTER, LP; Judge: Hon. Shelleyanne W.L. Chang 19 HOWARD HUGHES CORPORATION; and DOES 1-20, inclusive. 20 Real Parties in Interest and 21 Defendants. 22 J 23 I, BRIGIT S. BARNES, declare: 24 I. I am an attomey, duly licensed to practice law before the courts of the State of 25 Califomia, and the Northern, Eastem and Central Federal Districts. I am the President of Brigit 26 S. Barnes & Associates, Inc., attomeys of record for Petitioners/Plaintiffs PATTY JOHNSON, 27 JOE TEIXEIRA, OMAR AHMED, JR., XIN GUO, and CAROLYN SOARES ("Petitioners") 28 lerein. I have personal knowledge of the facts stated herein, and if called upon could BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 1 1 competently testify thereto. 2 2. In early December I became attomey of record for then Petitioners Stand Up! 3 Califomia, Patty Johnson, and Joe Teixeira, replacing Perkins Coie against the same 4 Respondents and Defendants. Prior to my substitution, Perkins Coiefiledand served the origina 5 Petition and the Notice of Election to Prepare the Record of Proceedings. A tme and correct 6 copy ofthe Petition filed November 23, 2016 is attached to this declaration and incorporated 7 herein as Exhibit 1. 8 3. On behalf of Petitioners, I filed for an injunction which was heard by this Court on December 22, 2016, seeking the Court to recognize and acknowledge the ineffectiveness of 10 Ordinance 23-2016 (the "Ordinance") and expunge the First Amendment to the 2014 DA by 11 mandating that Respondent City of Elk Grove ("City") record a quitclaim deed or other 12 appropriate document to release the First Amendment, and fiirther seeking an order that City 13 refrainfi-omrepresenting to any person or entity (including the Bureau of Indian Affairs 14 ("BIA")) that title to the casino property is free ofthe encumbrances created by the 2014 DA. 15 This Court denied Petitioners' motion on the primary ground that the referendum suspended the 16 effect of the Ordinance, and therefore the 2014 DA continued to encumber the entire Regional 17 Mall Property, and therefore no action to preserve Petitioners' rights was necessary at that time. 18 Respondent and Real Parties in Interest had asserted this point, and were aware of this Court's 19 determination. 20 4. Opposing Counsel and I engaged in a series of telephone meet and confers related 21 to the original Writ beginning about January 12, 2017. These initial discussions were first 22 focused on my motion for injunction [in December] and then in January, focused on preparation 23 of the Administrative Record. Although Petitioners had requested the right to prepare the 24 Administrative Record, we were delayed in completing the index because various documents I 25 believed were material were not released by City to me per my multiple Public Records Act 2g requests ("PRAs"). I also requested a postponement of any discussion of the validity of the writ 2 until after the January 25, 2017 City Council hearing. A tme and correct copy of my January 12, 2017 email requesting a postponement is attached to this declaration and incorporated herein 28 BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 2 1 as Exhibit 2. I decided to prepare an interim index and produced that index to City on January 2 23, 2017. A tme and correct copy of my cover email forwarding the preliminary index is 3 attached to this declaration and incorporated herein as Exhibit 3. Since that transmission I have 4 received no response related to the index. Our office has pursued additional PRAs with City, 5 and recently began receiving a large quantity of documents which are being reviewed at the 6 time of filing this Motion. 7 5. Between late December 2016 and continuing to the present time I obtained documents independent ofthe responses to my PRAs from the City of Elk Grove. In late 8 January and Febmary 2017 I obtained documents either prepared by City or participated in by 9 City which attempted by other means than the Amended DA to remove the restrictions of 10 the DAfiromthe Phase 2 property. I discovered that in the face of City's acknowledgement that 11 the Referendum stayed any effectiveness of the 1^' Amended DA, in late December City's 12 Public Works Department authorized recordings to sever what was described in the 2014 DA as 13 Phase 2fromthe balance of the property. Despite its recognition that the 2014 DA remained on 14 the Regional Mall Property, on January 9, 2017, City recorded the Notice of Conditional Partial 15 Release of Recorded Mitigation Monitoring and Reporting Program for the Lent Ranch 16 Marketplace ("MMRP Release"). A tme and correct copy ofthe MMRP Release is attached to 17 this declaration and incorporated herein as Exhibit 4. Also on January 9, 2017, Real Parties 18 executed and recorded a series of parcel map adjustments related to the Phase 2 property, which 19 when completed formed one parcel for all of Phase 2. A tme and correct copy of one of the 20 resulting parcels from these successive recordings is attached to this declaration and 21 incorporated herein as Exhibit 5, 22 6. I personally attended every hearing held by the City of Elk Grove in January and 23 Febmary 2017 where anything related to the Elk Grove Mall was noticed. I have reviewed all 24 public notices from the City Clerk. None of City's actions described in Paragraph 5 above were 25 taken with any public notice. 26 7. On January 11, 2017, City held a City Coimcil hearing to "Consider certifying the 27 referendum petition submitted against the City of Elk Grove Ordinance No. 23-2106 and provide 28 direction to staff to either repeal Ordinance No. 23-2106 or to call a special election as deemed BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 3 1 appropriate." The City Clerk recommended certification of the referendum, having determined 2 that of the 14,000 signaturesfiled,over 12,000 were valid. The City Council accepted the 3 recommendation and set a hearing for January 25, 2017 to consider altemative actions of either 4 repealing Ordinance 23-2016 or setting the matter for public election. A tme and correct copy of 5 the meeting agenda, Item 10.1, recommending certifying the referendum and the City Council's 6 setting the hearing is attached to this declaration and incorporated herein as Exhibit 6. 7 8. As a result ofthe City Council delaying action on the City Clerk recommendation 8 I asked for a delay in the Mandatory CEQA settlement conference to allow for anticipated City 9 action on January 25, 2007. 10 9. Even though the Referendum had been certified, and before the set City hearing, 11 On January 18, 2017, Real Parties signed the conveyance ofthe Phase 2 casino/hotel property to 12 Boyd Gaming and the Wilton Rancheria Tribe, which was recorded on January 19, 2017 at the 13 Sacramento County Recorder's Office. A tme and correct copy of this Grant Deed is attached to 14 this declaration and incorporated herein as Exhibit 7. Also on January 19, 2017, after hours, 15 BIA issued a Record of Decision which to this day has not been published in the Federal 16 Register. I am informed and believe that the Record of Decision was challenged within the 30 17 days required under federal law, and that such action stays the effectiveness of the Record of 18 Decision. As of the date of this filing, nofinaldetermination by BIA has occurred. 19 10. On January 25,2017, the City Council again postponed a decision regarding the 20 repeal of Ordinance 23-2016 or setting an election to Febmary 22, 2017. 21 11. Boyd Gaming and Wilton Rancheria signed a conveyance oftiieproperty to the 22 U.S. Department of Interior on January 16 (Boyd) and January 17 (Wilton Rancheria), which 23 was not recorded until Febmary 10, 2017 with the Sacramento County Recorder's Office. The 24 Acceptance of Conveyance by the U.S. Department of the Interior was signed on February 10, 25 2017 by the Acting Regional Director. Tme and correct copies of this Grant Deed and 26 Acceptance of Conveyance are collectively attached to this declaration and incorporated herein 27 as Exhibit 8. I am informed that DC Counsel for Petitioners filed timely appeals as to all these 28 actions with BIA and the Department of Interior; however, no decision has been published in the BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 4 1 Federal Record, and therefore the actions by the Department have not been determined to be 2 final at this time. 3 12. On Febmary 22, 2017, the City Council passed Ordinance 07-2017, repealing 4' Ordinance 23-2016. Tme and coirect copies of Ordinance No. 07-2017, accompanied by Ms. 5 Ebrahimi's email of Febmary 23, 2017 asking for dismissal, are collectively attached to this 6 declaration and incorporated herein as Exhibit 9. 7 13. On, March 11, 2017,1 wrote a letter to City Attomey Jonathan Hobbs regarding 8 the need for a public meeting to consider the assignment ofrightsfrom Elk Grove Town Center 9 to Boyd Gaming and the Wilton Rancheria as required under the 2014 DA. Mr. Hobbs. 10 responded that the request for a public meeting regarding the assignment ofrightsunder the 2014 11 DA said that was the responsibility of Real Party in Interest Elk Grove Town Center, not the 12 City. A tme and correct copy of my letter to City Attomey Hobbs is attached to this declaration 13 and incorporated herein as Exhibit 10. 14 14. Our office continued to obtain documentsfiromthird party sources. I replied to 15 Ms. Ebrahimi on Febmary 27, 2017 that we were considering amending the Petition to assert 16 multiple violations of CEQA and breaches of the 2014 DA and SPA. A tme and correct copy of 17 the 1 page e-mail string between myself and Ms. Ebrahimi is attached to this declaration and 18 incorporated herein as Exhibit 11. 19 15. As a result of the discovery of all these actions summarized in this declaration, 20 both public and private by City after receipt ofthe Referendum and before formally repealing the 21 1^' Amended DA, I determined that the writ should be amended to assert additional supplemental 22 claims. A tme and correct copy of the filed Amended Petition for Writ of Mandate and 23 Complaint for Declaratory Relief ("Amended Wrif), without the exhibits, is attached to this 24 declaration and incorporated herein as Exhibit 12. 25 16. After filing and serving the Amended Writ on March 13,2017,1 again discussed 26 the case in some detail in a series of conversations supplemented with email with opposing 27 counsel. I believe the first meet and confer after the Amended Writ was filed was when we 28 talked by phone on or about March 27, 2017. A copy of my outiine of issues was forwarded to BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 5 1 counsel on March 27, a ti-ue and correct copy of which is attached to this declaration and 2, incorporated herein as Exhibit 13. Real Parties in Interests, Elk Grove Town Center and 3 Howard Hughes Corporation, asked that Petitioners dismiss them, and City asked for a dismissa 4 for all purposes, which I denied. On April 11, 2017 I wrote to Scott Pearson, counsel for Elk 5 Grove Town Center and Howard Hughes Corporation, explaining in summary form why I 6 believed Elk Grove Town Center and Howard Hughes Corporation were properly named as Real 7 Parties in Interest. A tme and correct copy of my letter to Mr. Pearson is attached to this 8 declaration and incorporated herein as Exhibit 14. 9 17. As a result of my refiisal to dismiss the Amended Writ, all attomeys for City and 10 Real Parties in Interest advised me of their intent to file for a demurrer, and that they had 11 reserved a date which I initially agreed to, but shortly discovered conflicted with a minor 12 procedure for me. All counsel agreed to and stipulated to the current date for a hearing of June 13 2,2017. 14 18. On or about April 12, 2017, during a telephone meet and confer prior to filing 15 their demurrer, counsel for City advised Petitioners of its intent to seek to dismiss Petitioners' 16 Amended Writ under Pubhc Resources Code § 21167.4(a) for failure to request a hearing within 17 90 days. As part of our discussion I orally objected that (1) the Amended Writ supersedes the 18 Original Writ; (2) the CEQA argument raised in the Original Writ is now moot; (3) the timing 19 for filing a request for hearing mns from filing of the Amended Writ, March 13, 2017, not the 20 original filing date of November 23, 2016 as established by case law; (4) the CEQA claim in the 21 Amended Writ relates to City's cancellation of Mandatory Mitigation Measures applicable to 22 the property on January 9, 2017, and is not related to the now moot CEQA claim in the original 23 Petition. City and Real Parties made numerous additional claims as to why the Amended Writ 24 should be dismissed, which were the subject of two sets of memos back and forth between 25 counsel between March 27 and April 28. I offered during the April 12 phone call, and in one of 26 the responsive emails, to seek a requestfi-omthe Court to abate the tolling of the Petition until 27 resolution of the multiple federal claims that have been filed with the federal district court in 28 D.C., with BIA, and with Department of Interior. Respondents would not accept that offer. BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 6 1 19. On April 20, 2017,1 advised all counsel that I would seek relief under a 473 2 Motion if they did not agree that the Amended Writ should not be dismissed under Public 3 Resources Code § 21176.4 for failure to request a hearing. A tme and correct copy of that 4 advisory email and response dated April 28 are collectively attached to this declaration and 5 incorporated herein as Exhibit 15 6 20. On April 23, 2017, Petitioners requested that Respondent withdraw its planned 7 request for dismissal, which request was denied on April 28, 2017. No agreement having been reached between counsel for the respective parties. Petitioners file this Motion, asking that said 9 Motion be heard at the same time as Respondent's Demurrer. Petitioners filed two Requests for 10 Hearing on April 25, 2017: one as to the original Writ and one as to the Amended Writ. Tme 11 and correct copies of these requests are collectively attached to this declaration and incorporated 12 herein as Exhibit 16 13 21. Because subsequent communications from counsel for Respondent City indicate 14 that her client would proceed with a request for dismissal at the time of demurrer, now 15 scheduled for June 2, 2017, Petitioners file this instant Motion requesting that the Court accept 16 the request for hearing filed by Petitioners as timely (1) based on the filing date of the Amended 17 Writ or (2) excused under Code of Civil Procedure § 473 18 I declare, under penalty of perjury under the laws of the State of Califomia, that the 19 foregoing is tme and correct. 20 Executed on May 4, 2017, at Loomis, Califomia. 21 22 23 24 25 26 27 28 BARNES DECLARATION ISO MOTION FOR RELIEF FROM DISMISSAL [CCP 473] - 7 Exhibit 1 1 Marc R. Bruner, Bar No. 212344 Superior Court Of Califoniia, MBruner@perkinscoie.com 2 Marie A. Cooper, Bar No, 114728 MCooper@perkinscole.com 1-1/23/20^6 3 Chrisippher A. Chou, Bar No. 293068 CCh6u@pel-kihscoie,coni 4 PERKINS COIE LLP By , Depijly 505 Howard Street, Suite 1000 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 CALIFORNIA!; PATTY JOHNSON; 8 and JOE TEIXEIRA 9 SUFERIOR COURT OFTOESTATB OF CALIFORNIA ID COUNTY OF SACRAMENTO 11 12 STAND UP CALIFORNIA!; PATTY No. • 13 JOHNSON; and JOE TEIXEIRA, VERIFIED PETITION FOR WRIT OF 14 Petitioners and MANDATE AND COMPLAINT FOR Plaintiffs, DECLARATORY AND INJUNCITVE 15 RELIEF 16 Califomia Environmental Quality Act (CEQA), CITY OF ELK GROVE, Govemment Code, Elections Code, and 17 Califomia Constitution Claims 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. 23 24 SYFAX 25 26 27 28 VERIFIED PETITION FOR WRIT OK MANDATE AND COMPLAINT FOR DECLARATORY AND INHiNCTlVE RELIEF 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") governing 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 11 discretionary decision to remove the casino property from the encumbrance created by the 12 development agreement for 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 had no say in whether the casino project could move forward or not. The City reftised even to 17 consider whether there would be enviromnental effects from making the casino possible and 18 refused to study the casino's environmental impacts. 19 3. The City also ignored the reserved rights of the voters of Elk Grove to referend the 20 City's decision to approve the Amendment. Though the law is clear that the City's approval of 21 the Amendment cannot 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 the right of the voters to 24 referend the City's decision. 25 PARTIES AND VENUE 26 4. All of the Petitioners have a clear and present right to and beneficial interest in the 27 City's performance of its duties as alleged in this Petition. 28 -i- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 5. Petitioner and Plaintiff Stand up for California! is a California non-profit, public 2 service corporation with a focus on gambling issues affecting Cahfornia. Since 1996, it has 3 worked with individuals, community gi'oups, 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 government gaming. It has supporters throughout California, including some residing in the 7 area that will be affected by the physical impacts of the 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, California. They will be affected by the physical impacts ofthe 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 California. The City of Elk 14 Grove is the lead agency under the California Environmental Quality Act ("CEQA") responsible 15 for evaluating the environmental impacts ofthe Amendment. It is also obligated to comply with 16 laws applicable to the effective dates of ordinances and the reserved right of 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 appHcant in the Notice of Determination filed by 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 of the Regional Mall Property, the titie 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 ofthe action and stand to be benefitted or injured by the 5 judgment. Petitioners will seek to amend this Petition to insert the true name and capacities when 6 ascertained. 7 11. Petitioners have exhausted remedies by presenting their claims to the City Council 8 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 Attorney General. 11 12. This Petition is brought under CEQA, the Planning and Zoning Laws, Government 12 Code provisions regarding ordinances, the Election Code, and the California Constitution. This 13 Petition concems actions taken by the City of Elk Grove regarding a development project 14 proposed to be constructed 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 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 ofthe Regional Mall Property. The City prepared an addendum to the EIR addressing impacts to 21 agricultural resources that it adopted on August 4, 2004. There has been no supplemental or 22 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 of the property it affects. It must specify the duration of the agreement, the permitted uses of -3- VERIFIED PETITION FOR 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 outiet shopping mall project. Section 4.5 of the development agreement 10 expressly reserved to the City the right, subject to the vested rights, to grant or deny land use 1] approvals; approve, disapprove or revise maps; adopt, increase, and impose regular taxes, utility 12 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 nuisances; adopt and apply City engineering design standards and constmction specification; 17 adopt and apply certain building standai'ds 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 tiie 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 trust 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 Agreemenl 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 requiredto 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 impacts that would require mitigation and despite the fact that no lead agency has 13 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. It filed a 17 Notice of Determination to that effect on October 27, 2016. This action is brought within 30 days 18 of the filing of 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 from fee to 25 trust for the Wilton Rancheria unless the encumbrances such as the Development Agreement are 26 removed from title." 27 23. Section 9 of Article II of the California Constitution defines the right of 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 RELIEF 1 ordinances. Under Government 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 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 title free of the encumbrance created by the 12 development agreement. BIA regulations require the Secretary of Interior to acquire land in trust 13 immediately upon a positive determination of eligibility. The BIA has taken the position in otiier 14 cases involving similar acquisitions that there is no clear process for removing land from tmst and 15 resisted removing land from tmst on that and other grounds. Further, upon acquisition, tribes can 16 develop land and because they are immune from suit, their activities cannot be 17 enjoined. Accordingly, petitioners are infonned and believe that transfer of land into trust 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. 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 enviroimiental 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 DECLARATORY AND INJUNCTIVE RELIEF 1 enable the elimination of its jurisdiction over the casino site, to eliminate the rights expressly 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 Cify 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 full 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 ftill. 12 30. The City violated its legal obligations to recognize that the ordinance approving 13 and authorizing the Amendment could not take effect for 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 the City violated statutory law. It also was and is taking actions that thwart the right reserved to 17 the voters of Elk Grove in the Califomia Constitution to referend the ordinance approving the 18 Amendment 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 titie 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 titie is not in effect. -7- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY 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 reiserved right of 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 of the 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 ai e reasonably necessaiy 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 Interest from representing 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. H THIRD CAUSE OF ACTION 12 DECLARATORY R E L I E F 13 34. Petitioners incorporate the allegations of all prior paragraphs as though set forth in 14 fill]. 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. A judicial declaration is necessary and appropriate at this time under the 21 circumstances to clarify and ascertain the rights ofthe parties and avoid a multiplicity of actions. 22 38. Petitioners are accordingly entitled to a judicial declaration, 23 PRAYER FOR R E L I E F 24 Wherefore, Petitioners pray rehef as follows: 25 1. For alternative 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 wath 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 refraining from representing to any person or entity (including the BIA), by express 6 statement or by omission, that title to the Casino Property is free of the encumbrance created by 7 the 2014 Development Agreement, 8 2. For a temporary stay, a temporary restraining order, and preliminary and 9 permanent injunctions du-ecting 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 a judicial declaration stating the rights and remedies of the parties. 12 4. For costs of suit. 13 5. For such other legal or equitable relief as the court deems proper. 14 15 DATED: November 23, 2016 PERKINS COIE L L P 16 17 By: f / U ^ /f, $/Uu^^^U^ • Ma/c R. Bruner, Bar No. 212344 '° MBruner@perkinscoie.com Marie A. Cooper, Bar No. 114728 MCooper@perkinscoie.com Christopher A. Chou, Bar No. 293068 2^ CChou@perkinscoie.com 2' Attorneys for Petitioners STAND UP CALIFORNIA!; PATTY 22 JOHNSON; and JOE TEIXEIRA 23 24 25 26 27 28 -9- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 VERIFICATION 2 I, Cheryl Schmit, declare: 3 I am an officer of STAND UP FOR CALIFORNIA!, a coiporation organized and existing under the laws of California, which is a Petitioner in the above-entitled action, and I have been 4 authorized to make this verification on its behalf. 5 I have read the foregomg PETITION AND COMPLAINT onfileherein and know tiie contents thereof. The same is tme of nw own knowledge, except as to those matters which ^ 6 therein stated on information and belief, and, as to those matters, I believe them to be true. 7 I declare under penalty of perjitty under the laws of the State ofCalifomia that the foregoing is tme and conect. 8 Executed at'^itU\'M.|V^s^ . Galiforni^ November 2016. 9 10 Cheryl Schmit 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- PETITION AND COMPLAINT Exhibit 2 bsbarnes@landlawbybarnes.coin From: bsbarnes@landlawbybarnes.com Sent: Thursday, January 12, 2017 1:46 PM To: Mona G. Ebrahimi - Kronicl< Moskovitz Tiedemann & Girard (mebrahimi@kmtg.com); Scott M. Pearson - Ballard Spahr LLP (PearsonS@baiiardspahr.com) Cc: John Hobbs (jhobbs@elkgrovecity.org); noreen@iandlawbybarnes.com Subject: Stand Up California! v. City of Elk Grove - CEQA conference Importance: High Dear Mona and Scott: As you may know, the City Clerk placed on the agenda for the City Council hearing Jan 11 the issue of its certification of the referend petition with a request for instructions. The City Council took testinnony but made no decision except to set a hearing on January 25, 2017. The City is also considering whether to rescind the 1^* Amendment, or to certify for an election and when. That second tier decision may also affect Petitioner's posture relative to the First Cause of Action. Given the City's inaction last night, discussions regarding whether the status of the Petition and pleading scheduled appear to be premature. Petitioners are preparing a list of items for inclusion of the record and hope to have that list to you by close of business tomorrow. I would propose that we all agree to postpone the CEQA conference until a date shortly after the 25'^ of January. Thank you for your consideration. Brigit Barries Brigit S;.B'arnes,&As^^ Inc. Real Estate, LjahdiJse & Asset Preservatidii 3262 Penryn Road, Suite 200 Lbbnnfe, OA 95650 (916) 660^555 Fax; (916) 660-9554 Emaill bsbames@andlavvbybames.com Far.and away the best prize that life offers is the cH^rice to .iwbi-kha^^ Theodore Roosevelt, 1903. THE INFORMATION CONTAINED IN THIS ELECTRONIC MESSAGE MAY BE ATTORNEY-CLIENT PRIVILEGED AND CANNOT BE FORWARDED BY THE RECIPIENT TO ANY OTHER PARTY WITHOUT THE PRIOR CONSENT OF THE SENDER. The information is intended only for the individuals) to whom this message is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this electronic communication or any attachment thereto Is strictly 1 prohibited. If you have received this electronic communication in error, you should immediately return it to us and delete the message from your system. We would appreciate it if you would telephone us at (916) 660-9555, Noreen, to advise of the misdirected communication. Thank you. Exhibit 3 bsbarnes@landlawbybarnes.com From: bsbarnes@landlawbybarnes;com Sent: Monday, January 23, 2017 4:49 PM To: Mona G. Ebrahimi - Kronick Moskovitz Tiedemann & Girard (mebrahimi@kmtg.com); Scott M. Pearson - Ballard Spahr LLP (PearscnS@bailardspahr.com) Cc: John Hobbs (jhobbs@elkgrovecity.org) Subject: Preliminary Record Index: Stand Up California! eL al. v. COEG Attachments: Admin Record List - proposed by Stand Up for CA 1-23-17.docx Importance: High Dear IVIona and Scott: Although all documents requested from the City have not been received, I am providing you today our preliminary record index. I expect we will be reviewing the index during our conference in February. Brigit Barri^ Brigit S".Bari>K^^ Re^ Es tate, ; t ^ d Use & Asset Preservation 3262 Penryn Road, Suite 200 Lcioniis,;eA 95650 (916)i360-9555 Fax: (916) 6e&i9:554 Emaih'bsbames^landlawbybames.com Far and away the best prize that life offers is the chance to work hard at work worth doing. Theodore Roosevelt, 1903. THE INFORMATION CONTAINED IN THIS ELECTRONIC MESSAGE MAY BE ATTORNEY-CLIENT PRIVILEGED AND CANNOT BE FORWARDED BY THE RECIPIENT TO ANY OTHER PARTY WITHOUT THE PRIOR CONSENT OF THE SENDER. The information is intended only for