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1 BRIGIT S. BARNES «& ASSOCIATES, INC.
BRIGIT S. BARNES, ESQ. CSB #122673
ENDORSED
2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 aiiGDECeO AH 9:3$
3 3262 Penryn Road, Suite 200
Loomis, CA 95650 G-DoSC COURTHOUSE
4 Telephone: (916) 660-9555 SUPERIOR COURT
, OF CALIFORNIA
Facsimile: (916)660-9554 SACRAMENTO COUNTY
5
Attomeys for Petitioners and Plaintiffs
6
STAND UP CALIFORNIA!; PATTY JOHNSON;
7 And JOE TEIXEIRA
8 SUPERIOR COURT OF THE STATE OF CALIFORNL\
9 COUNTY OF SACRAMENTO
10
STAND UP CALIFORNL\!; PATTY CaseNo. 34-2016-80002493
11
JOHNSON; and JOE TEIXEIRA,
12 MEMORANDUM OF POINTS AND
Petitioners and Plaintiffs, AUTHORITIES IN SUPPORT OF EX
13 PARTE APPLICATION FOR ORDER TO
SHOW CAUSE RE PRELIMINARY
14 CITY OF ELK GROVE, INJUNCTION AND TEMPORARY
RESTRAINING ORDER
15
Respondent and Defendant.
16 Date: December 22, 2016
ELK GROVE TOWN CENTER, LP; Time: 9:00 am
17 HOWARD HUGHES CORPORATION; Ex parte calendar: Dept. 24
and DOES 1-20,
18 Verified Petition Filed: November 23,2016
Real Parties in Interest and Trial Date: None
19
Defendants.
20
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24
25
26.
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POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO
1 TABLE OF CONTENTS
2 PAGE
3
4 L INTRODUCTION AND FACTUAL BACKGROUND 1
5
II. A TEMPORARY RESTRAINING ORDER SHOULD BE GRANTED
6 REGARDING THE 2 ^ CAUSE OF ACTION, AS GREAT AND
7 IRREPARABLE INJURY WILL RESULT TO PLAINTIFFS IF THE
RELIEF REQUESTED IS NOT GRANTED ..8
8
9 III. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERIS OF THEIR
CLAIM AT TRIAL 10
10
11
rv. AN ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION
12 SHOULD ALSO ISSUE 13
13
14 V. EX PARTE RELIEF IS PERMITTED UNDER THESE CIRCUMSTANCES
AND PLAINTIFF HAS COMPLIED WITH CALIFORNIA RULES OF
15 COURT 14
16 Notice Requirement 14
17
18 VI. CONCLUSION 15
19
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POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - i
1 TABLE OF AUTHORITIES
2 PAGE(S)
3
CASES:
4
Blocli V. North Dakota
5 461 U.S. 273, 280-81 (1983) 5, 6
6
C/turch of Christ in Hollywood v. Superior Court
7 99 Cal. App. 4'" 1244, 1251 (2d Dist. 2002) 8
8 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.
523 US. 751 (1998) .....10
9
Littlefield v. DOI
10
CaseNo. l:16-cv-10184-WGY, D. Mass. Filed 6/17/16 10
11
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
12 132 S. Ct. 2199 (2012) 6
13 Midway Orchards v. County of Butte
14 220 Cal. App. 3d 765, 773, 781 (1990) 10, 12, 13
15
STATUTES:
16
Califomia Rules of Court, Rule 3.1150(a) 13
17 Califomia Rules of Court, Rule 3.1150(b) 13
18 Califomia Rules of Court, Rule'3.1201 15
Califomia Rules of Court, Rule 3.1202(c) 14
19 Califomia Rules of Court, Rule 3.1204(a) 15
20 Code of Civil Procedure §527(c)(l) 8
21
Elections Code §9235 11
22 Elections Code §9235.2 11
Elections Code §9237 4
23
Govemment Code §36937 11
24 Govemment Code §65867.5 11,13
25 Govemment Code §65867.5(a) 11, 12
Govemment Code §65868 11, 12, 13
26
25 C.F.R. §151.12(c) 10
27 25 C.F.R. §151.12(c)(2) '. 5
25 C.F.R. §151.12(c)(2)(iii) 6
28
25 C.F.R. §151.13(b) 3,4
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - i i
1 25 C.F.R. §151.14 6, 10
25 C.F.R. § 152.22(b) 5
2 40 C.F.R. §1506.10 : 5
78 Fed. Reg. 72928 2
81 Fed Reg. 90379 2
5 25 U.S.C. §177 '. 5
25 U.S.C. §2703(4) 5
6 25 U.S.C. §5108 3,5
28 U.S.C. §2409a 5
7
28 U.S.C. §2409a(a) : 4, 5
8 31 U.S.C. §1341 4
9
CONSTITUTIONS:
10
11 Califomia Constitution, Article II, Section 9 10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 I. INTRODUCTION AND FACTUAL BACKGROUND
2 This Mofion for OSC Re: Preliminary Injuncfion and TRO (the "Mofion") seeks
3 immediate enforcement of the Second Cause of Action included in Plaintiffs' VERIFIED
4 PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND
5 INJUNCTIVE RELIEF (the "Petition"), filed on November 23, 2016, which is attached to the
6 Declaration of Brigit S. Bames in Support and Declaration of Notice ("Bames decl.") as Exhibit
7 1. No prior ex-parte motions or motion for TRO/OSC re: Preliminary Injunction has been filed
8 in this action. (Bames decl. ^4.) The Petition challenges a decision by the City to adopt the
9 Ordinance approving the First Amendment to the 2014 Development Agreement goveming
10' certain property that is now proposed for an Indian gaming casino (the "Casino") as described
11 below, and for this motion, the recordation by the City before the requisite 30 days had expired
12 of notice of adoption of the Amendment to the Development Agreement, removing lands from
13 the Development Agreement to facilitate the Wilton Rancheria taking the land intoti^stfor
14 development as a casino.
15 As background, the actions complained of relate to certain entitlements originally granted
16 by the City in 2001 for the Lent Ranch Special Planning Area ("Lent Ranch SPA"). These
17 entitlements, including a detailed Development Agreement, were supported by the mandatory
18 mitigation measures included in the 2001 EIR, which are extensive in this particular case. The
19 Lent Ranch SPA included an area which was known as the "Regional MaU" site, identified as
20 District "A" of the Lent Ranch SPA. In 2007, the City entered into an agreement regarding mall
21 fees and infrastmcture. Since then the project has stalled, and ownership has changed after
22 bankmptcy to ELK GROVE TOWN CENTER, L.P. (a subsidiary ofthe Howard Hughes
23 Corporation) ("EGTC") as successor developers. At the present time, the project is undeveloped
24 but for some partially built and unused buildings and parking areas intended for the Regional
25 Mall.
26
Between 2007-2009, a native-Califomian Indian fribe, the Wilton Rancheria (the
27
"Tribe"), sued the Bureau of Indian Affairs ("BIA") to have its status as a federally recognized
28
tribe restored, which occurred in 2009 as a result of a settlement. (RJN No. 4.) Thereafter, the
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 1
1 Tribe began efforts to locate a site for an Indian gaming casino and initially identified a site in
2 the City of Gait as a preferred location. Thereafter, on December 4, 2013, the BIA/Department of
3 Interior held requisite scoping sessions and published in the Federal Register a notice of intent to
4 prepare an EIS under the National Environmental Policy Act ("NEPA"), identifying as the
5 project proposal the tmst acquisition of 282 acres in Gait for a casino project, with the Gait
6 location as the Preferred altemative, and the Elk Grove site as Altemative 6 [78 Fed. Reg.
1- 72928]. (RJN Nos. 6,7, & 8.)
8 In 2014, EGTC, the successor developer, requested revisions to the financial stmcture for
9 the Mall. The City enacted Ordinance 29-2014, which approved and authorized the City to enter
10 into a 2014 Development Agreement regarding the Regional Mall portion ofthe Lent Ranch
11 SPA (the "2014 DA"). (Declaration of Ashlee Titus in Support ("Titiis decl.") ^2, Ex. 1; RJN
12 No. 1.) Thefindingsfor the Ordinance identify a bi-fiircation of the Mall site into Phase I - to
.13 become the "Outlet Mall" - and Phase 2 in the north which was not evaluated. The 2014 DA
14 also provided for reimbursement to EGTC of $15,900,000 through parking fees to be collected
15 from the public's parking in the Mall. (Titus decl. Ex. 1; RJN No. 1.)
16 The Tribe originally proposed that the Casino would be located in the City of Gait; the
17 EIS prepared on the Federal level focused on the Gait site, and all public outreach efforts and
18 environmental analysis was focused on the Gait site. Petitioners allege that the Tribe changed its
19 mind in early 2016 relative to the preferred location, and changed the Casino site to the northem
20 portion. Phase 2, ofthe Regional Mall site in the Lent Ranch SPA, Regional Mall Site'. (RJN
21 Nos. 6, 7, & 8.) The draft EIS identified the Elk Grove Mall site as an altemative, despite its
22 being a tenth ofthe size ofthe Gait site, and the fact that the Elk Grove property was subject to
23 the 2014 DA. In May 2016, some or all ofthe Real Parties in Interest entered into an option
24 agreement for the sale of Phase 2 ofthe Regional Mall site to the Tribe. (Verified Petition ^{17;
25 RJN No. 4.) On June 9, 2016, the Tribe announced its intention tofransferits focus for gaming
26
27
' The December 14, 2016 Federal Register notice referenced (81 Fed. Reg. 90379) (RJN No. 12) is the first official
28 public notice that identifies the Regional Mall site as the preferred altemative. The Tribe announced its new
preference for the Regional Mall site in early June 2016, as was widely reported at the time.
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 2
1 approvals to the Elk Grove Mall site, shown as Phase 2 in the 2014 DA, which was hitherto not
2 reviewed in the 2014 DA or for this purpose by the City of Elk Grove nor the public. (RJN Nos.
3 7,&8.)
4 In order to continue Indian gaming approvals, the Tribe needs to have the preferred site
5 taken into "Tmst" pursuant to Section 5 of the Indian Reorganization Act of 1934, 25 U.S.C.
6 §5108, by the BIA/Department of the Interior. In addition, the land must qualify as "Indian
7 lands" under the Indian Gaming Regulatory Act (IGRA) at 25 U.S.C.§2703(4), for gaming to be
8 permissible. The 2014 DA for the Mall site imposed an impediment to moving forward with the
9 plan to develop the Casino, because the encumbrances associated with the 2014 DA preclude the
10 Secretary from acquiring the land in tmst {see 25 C.F.R. 151.13(b)), and the Tribe from
11 exercising the "govemmental authority" over the property necessary for the land to qualify as
12 "hidian Lands" under IGRA. (Tihis decl. 115; RJN No. 9; Verified Petition 1118.) Accordingly,
13 the City and the Real Parties in Interest pursued the First Amendment to remove Phase 2 from
14 the 2014 DA. The Amendment was proposed, considered, and approved for the sole purpose of
15 making a casino possible. No other purpose was mentioned in the project staff report before the
16 City Council. (Titus decl. ^4; Verified Petition 1|22; RJN No. 9.) As stated in the City staff
17 report, "the BIA will not allow the [casino property] to be removed from fee to tmst for the
18 Wilton Rancheria unless the encumbrances such as the Development Agreement are removed
19 from Title". (RJN No. 9; Verified Petition 1122.) The City continues to take the position that no
20 environmental review under CEQA was required. (RJN No. 9.)
21 Section 1, Purpose, of the Ordinance provides as follows: "The purpose ofthe Ordinance
22 is to adopt amendments to the Development Agreement with EGTC for the project commonly
23 known as the "The Outlet Collection at Elk Grove." The findings section of the Ordinance
24 provides, in relevant part, that:
25 The proposed Development Agreement amendment will modify the
26 application of the existing Development Agreement by narrowing the scope of
these agreements to include only the area covered by the 2014 approvals for the
27 Outiet Collection at Elk Grove Project. The amendment does not change the
characteristics of the approved development. No speciflc development of the
28 Phase 2 area is approved by the Development Agreement amendment.
Therefore, there are not substantial changes in the project approvals from that
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 3
1 analyzed in the 2001 EIR and no new significant envirormiental effects, or
substantial increase in the severity of previously identified significant effects. No
2 new information of substantial importance has been identified. (Bold added.)
3
4 Based on the above finding, the City refiised to evaluate potential impacts of the
5 Ordinance. (Ordinance attached to Titus, decl. as Ex. 1; RJN No. 1.) However, at the time this
6 Ordinance was drafted and approved, the City knew that the Phase 2 portion was now the
7 preferred location for the Casino, contiary to all prior scoping meetings for the EIS identifying
8 Gait as the preferred location. (RJN Nos. 8 & 9.) Thus, the City's statement that No new
9 information of substantial importance has been identified is false. The City knew that the Tribe
10 had recently changed its preferred Casino site from Gait to Elk Grove. The City's own published
11 "FAQ" acknowledges as much. (RJN No. 8.)
12 Ordinance No. 23-2016, regarding the First Amendment to the DA, was approved on
13 October 26, 2016. Under state law, the City must wait 30 days to adopt the Ordinance, to allow
14 the citizens the right to referend. (Elections Code § 9237.) The Ordinance itself provides that,
15 "This Ordinance shall take effect thirty (30) days after its adoption." Instead of waiting the
16 required 30 days, the City recorded the First Amendment to the DA on November 9, 2016, 14
17 days after adoption. (RJN No. 10.)
18 The effect of recording the First Amendment to the DA prematurely, and of the City's
19 refiisal to expunge the First Amendment after receiving the Referendum, has been to effectively
20 eliminate an encumbrance on title that would prevent BIA from acquiring the Mall lands into
21 tmst. BIA regulations require the elimination of any encumbrance - such as the 2014 DA - that
22 makes title to the land unmarketable. (25 C.R.F. §151.13(b).) The 2014 DA also gives the City
23 of Elk Grove the right to impose regular and special taxes. The BIA could not acquire land in
24 tmst subject to that right, because the Anti-Deficiency Act prohibits federal agencies from
25 incurring financial obligations in excess of appropriated fiinds. (31 U.S.C. §1341.) The Anti-
26 Deficiency Act would also be violated because the 2014 DA also gives the City the right to
27 condemn the property. The exercise of this right, however, would be barred by the Quiet Title
28 Act, 28 U.S.C. §2409a(a), which preserves the sovereign immunity of the United States from
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 4
1 suits involving title disputes-to Indian lands. Acquisition of the land into tmst subject to this
2 encumbrance would thus violate the Anti-Deficiency Act, because the City could bring suit for
3 just compensation (^see Block v. North Dakota, 461 U.S. 273, 280-81 (1983)), exposing the
4 United States to liability for which fiinds have not been appropriated.
5 Furthermore, the City's retained rights of taxation and eminent domain arguably render
6 the property ineligible for tmst acquisition tmder 25 U.S.C. §5108 because these rights preclude
7 the central purposes of tmst acquisitions under that authority: exemption from state and local
8 taxation, and the restriction on alienation that is the quintessence of tmst status. (25 U.S.C.
9 §§177, 5108; 25 C.F.R. §152.22(b).) Finally, without the elimination ofthe 2014 DA, the
10 Casino Property would not qualify as "Indian lands" under IGRA, 25 U.S.C.§2703(4), because
11 the rights the City enjoys under the 2014 DA - including broad powers of taxation, land use
12 regulation, eminent domain, and the protection of the public health and safety - prevent the
13 Rancheria from exercising sufficient "govemmental confrol" over the Casino Property.
14 In fact, the Notice of (Gaming) of Land Acquisition Application was issued by the BIA
15 on November 17, 2016, commencing the "fee to tmst" process. (RJN No. 5.) BIA also issued
16 notice of the final EIS on December 14, 2016 (RJN No. 12), triggering the 30-day period before
17 final decision.^ (See 40 C.F.R. § 1506.10.) The final EIS identifies the Elk Grove site as the
18 preferred altemative. Once approved, BIA regulations require the Secretary to immediately
19 acquire the land in tmst upon making a positive determination. (25 C.F.R. § 151.12(c)(2).) All
20 evidence indicates that BIA will be issuing a final decision to acquire the land in tmst by January
21 13,2017.
22 The acquisition of land in tmst would eliminate the right of the residents to referend the
23 Ordinance due to the sovereign status of the tmst property. The Quiet Title Act, 28 U.S.C. §
24 2409a, is the exclusive means to bring a quiet title suit against the United States, and the Act
25 expressly excludes disputes involving "tmst and restricted Indian lands" from the Act's waiver
26 of the sovereign immimity of the United States. (28 U.S.C. § 2409a(a); see Block v. North
27
28 ^ The Notice also states that "The BIA will issue a Record of Decision (ROD) on the proposed action no sooner than
30 days after the date EPA publishes its Notice of Availability in the Federal Register." (See RJN No. 12.)
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 5
1 Dakota, 461 U.S. 273, 280-81 (1983).) Citizens might be able to challenge the acquisition of the
2 land in tmst under the Adminisfrative Procedure Act (APA), see Match-E-Be-Nash-She- Wish
3 Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012), but there is no case law
4 regarding whether acquiring land where a deed does not reflect encumbrances would be held
5 arbifrary and capricious imder the APA, the applicable standard of review. There are no
6 regulations for removing land from tmst, once the United States has acquired the land on behalf
7 of a tribe. Thus, the ability of Califomia citizens to exercise their constitutional right to referend
in this case depends on this Court expunging the First Amendment from title to prevent the BIA
from acquiring the land. (Bames decl. 116.)
10 Immediately upon approval of the Ordinance, a referendum effort was commenced by the
11 residents of Elk Grove, the requisite number of signatures were obtained, and all necessary steps
12 have been taken to take this matter to the voters. (Titus decl. 1I1|5-10.) The effect of the City's
13 early filing of the First Amendment is to deny Petitioners, and the citizens of Elk Grove, their
14 constitutional and statutory right to referend the Ordinance, which can be decided at the earliest
15 next April, or thereafter at regularly scheduled elections. However, the City's reftisal to expunge
16 the Notice of First Amendment ofthe DA, unless reversed by this Court, will permit the
17 BIA/DOI to take the Mall property into tmst in mid-January, long before a referencum election
18 can be held. (25 C.F.R. 151.12(c)(2)(iii) and 151.14.)
19 By this Motion, Petitioners request that the City be compelled to follow state law and
20 take all necessary actions, including but not limited to, removing the recorded First Amendment
21 of DA and allowing the citizens of Elk Grove to referend the Ordinance approving the First
22 Amendment.
23 The relevant time-line related to this Motion is as follows:
24 • June 27, 2001 Lent Ranch Special Planning Area (SPA), EIR, and
25 Development Agreement approved by City of Elk Grove, 295
acre fiiture commercial area at Grant Line and 99.
26 (Verified Petition 1113.)
27 • May 21, 2007 Wilton Rancheria files lawsuit against Bureau of Indian Affairs
(BIA) to restore tiibal statiis. (RJN No. 4.)
28
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 6
1 • Nov. 14, 2007 The City and developer enter into an Agreement Regarding
^ Mall Fees and Infrastmcture. (Titus decl. Ex. 2; RJN No. 2.)
3 • June 8, 2009 Settlement Order approved by Judge Jeremy Fogel dismissing
lawsuit and restoring tribal status to the Wilton Rancheria.
4 (RJN No.4.)
5 • Oct. 22, 2014 Ordinance 29-2014 approved and authorized the City of Elk
Grove to enter into a new Development Agreement ("2014
DA") with EGTC regarding the Regional Mall Site, District "A"
of the Lent Ranch SPA, to be known as the "The Outlet
Collection at Elk Grove". (Titiis decl. 112, Ex. 1; RJN No. 1.)
• June 9, 2016 Tribe annoimces Elk Grove site, EIS altemative F, as the new
9 preferred site, replacing the previous identified preferred site in
the City of Gait. (RJN No. 7.)
-^-^ m June 30, 2016 TribefilesLand into Tmst Application for Gaming Purposes.
(RJN No. 4.)
12
• Sept. 28, 2016 The City passed resolution 2016-183 approving a Memorandum
13 of Understanding with the Tribe for mitigation fimding related
to a proposed entertainment and gaming facility.
14 (Titiis decl. 114, Ex. 3; RJN No. 3.)
15
• Oct. 26, 2016 City Council adopted Ordinance 23-2016 approving the First
16 Amendment to the 2014 DA, which removes a portion ofthe
Regional Mall property known as "Phase 2" from the legal
1^ description of the 2014 DA, and the City Clerk attested this
Ordinance on the same date. (Titus decl. 113, Ex. 2; RJN No. 2.)
1o
19 • Oct. 27, 2016 City files Notice of Determination that the "Outlet Collection"
would not generate any new environmentar impacts other than
20 those sttidied in the 2001 EIR. (Verified Petition 1121.)
21 • Nov. 9, 2016 First Amendment to the 2014 DA filed with the Recorder's
22 Office. (RJN No. 10.)
23 • Nov. 17, 2016 Notice of (Gaming) Land Acquisition Application to take
Casino site into tmst for the benefit of the Wilton Rancheria for
24 gaming purposes. (RJN No. 5.)
2^ • Nov. 21, 2016 Petition to referend Ordinance No. 23-2016 filed with Elk
2g Grove City Clerk containing 14,800 signatures. (Titus decl.
11115,10, Exs. 4, 5,&6.)
27
• Nov. 23, 2016 Plaintiffs'Verified Petition filed.
28
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 7
1 • Nov. 25, 2016 Deadline to file referendum petition. (Titus decl. 117.)
2 • Dec. 14, 2016 Notice of final EIS, which is effective January 13, 2017. (RJN
3 No. 12).
4 • Jan. 6, 2017 Deadline for verification of the signatures on the petition for
referendum. (Titus decl. 1112.)
5
• Jan. 11, 2017 The next City Council meeting after the deadline on the petition
6 for referendum. (Titus decl. 1114.)
7
• April 11,2017 Earliest an election could be held on the referendum.
8 (Titiis decl. 1116.)
9
10 II. A TEMPORARY RESTRAINING ORDER SHOULD BE GRANTED
REGARDING THE 2'^'' CAUSE OF ACTION, AS GREAT AND IRREPARABLE
11 INJURY WILL RESULT TO PLAINTIFFS IF THE R E L I E F REQUESTED IS
12 NOT GRANTED
13 A TRO may issue when "[i]t appears from the facts shown by affidavit or by the verified
14 complaint that great or irreparable injury will result to the applicant before the matter can be
15 heard on notice..." (Code Civ. Proc. § 527(c)(1).) The court should grant the TRO where the
16 likelihood is that the plaintiff will prevail on the merits at trial, and where the interim harm to the
17 plaintiff without the TRO outweighs the likely harm to the defendant if the order is issued.
18 Church of Christ in Hollywood v. Superior Court, 99 Cal. App. 4th 1244, 1251 (2d Dist. 2002).
19 The referendum petition protesting the Ordinance approving the First Amendment was
20 filed with the City Clerk on November 21, 2016. (Tihis decl. UIO.) Approximately 14,800
21 citizens filed with the City Clerk's office a referendum petition protesting the Ordinance
22 authorizing the amendment. (Titus decl. UIO.) The City has until January 6, 2017, to complete
23' an initial verification of their signatures, during which time the effective date of the Ordinance is
24 suspended. (Titus decl. HHIO, 11.) If the petition is verified, the Ordinance will not go into effect
25 until such time as a majority of the voters in Elk Grove approve that Ordinance, which cannot
26 happen until April 11, 2017 at the earliest. (Titus decl. 1116!) Accordingly, the City was without
27 authority to execute and record the amendment. The First Amendment is not legally in effect,
28 and may remain ineffective until an election is held. The City's recording of the Notice of
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 8
1 Adoption of First Amendment of the DA gives the world, including BIA, the idea that the
2 property legally has been removed from the DA. This referendum process is devalued to the
3 extent that this Notice remains of record. This referendum must be allowed to continue as
4 guaranteed by law.
5 On the other hand, the Defendants are not likely to suffer any damages if the TRO is
6 granted because Defendants will simply be compelled to follow the law and allow the citizens of
7 Elk Grove the right to referend the approved Ordinance and First Amendment. The City violated
8 its legal obligations to recognize that the Ordinance approving and authorizing the First
9 Amendment could not take effect for thirty days after enactment. The City instead entered into
10 the First Amendment without an effective Ordinance in place, and recorded an Amendment that
11 stated it was executed "as o f the date of its enactment. (Verified Petition 1130.) In taking these
12 actions the City violated constitutional law, statutory law, and the 2014 DA. It was and is also
13 taking actions to thwart the right reserved to the voters of Elk Grove in the Califomia
14 Constitution to referend the Ordinance approving the First Amendment, before that Ordinance is
15 given effect.
16 Brigit S. Bames worked with counsel for the City related to this Motion. Based on
17 conversations with the City Attomey, Bames received a Notice Re First Amendment to
18 Development Agreement on Friday, December 16, 2016; however, the Notice is not signed or
19 notarized, and is not recorded. (Bames decl. 1113, Ex. 4.) As stated in the Declaration of Brigit
20 S. Bames, if Defendants are not immediately resfrained and enjoined from engaging in the
21 aforesaid conduct, Plaintiffs will suffer great and immediate irreparable harm if the First
22 Amendment is allowed to remain on record in such fashion that the BIA considers titlefreeof
23 the encumbrances created by the 2014 DA, because the property may befransferredinto Tmst as
24 early as mid-January, months before an election can be held. Once taken into Tmst, Petitioners
25 will have been denied their statutory and Califomia Constitutional rights to referend the City's
26 adoption of the Ordinance approving the First Amendment.
27
After approval of an application to take land into tmst, BIA regulations require the
28
Secretary to acquire the land in tmst immediately upon a positive determination of eligibility
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 9
1 after a title review. (25 C.F.R. § 151.12(c) and 151.14.) Attached to the Notice of Application
2 (RJN No. 4) is the title insurance summary for the Casino Property, indicating that the Secretary
3 has already conducted the title review and is likely to proceed to decision quickly. The BIA has
4 taken the position in other cases involving similar acquisitions that there is no clear process for
5 removing land from tmst. (Maytubby affidavit, Doc. 38-1, Littlefield v. DOI, Case No. l:16-cv-
6 10184-WGY, D. Mass. Filed 6/17/16; RJN No. 11.) Further, tribes are immune from suit and
7 their activities carmot be enjoined. (See Kiowa Tribe of Oklahoma v. Manufacturing
8 Technologies, Inc., 523 U.S. 751 (1998).) Thus, the Tribe could immediately commence
9 constmction and no court would have jurisdiction to enjoin its activities. Accordingly, Plaintiffs
10 are informed and believe that the inmiinent fransfer of land into tmst would prevent Plaintiffs
11 from obtaining relief
12 IIL PLAINTIFFS ARE L I K E L Y TO PREVAIL ON THE MERITS OF THEIR
CLAIM AT TRIAL
13
14 Plaintiffs seek by this emergency Motion to preserve the rights of the voters as protected
15 by the federal and Califomia Constitutions. Plaintiffs are likely to prevail on this cause of action
16 at trial based on the following authorities: the Califomia Constitution, the Govemment Code, the
17 Elections Code, the language from the 2014 DA itself, and the case of Midway Orchards v.
18 County of Butte, 220 Cal. App. 3d 765 (1990). Together, these sources show that the City's
19 recordation of that amendment was premature and of no legal effect, and must be removed.
20 Califomia law requires the City to wait for 30 days before an ordinance goes into effect,
21 which is the source of the City's authority to execute and record the amendment to the
22 development agreement. The purpose of that delay is to allow aggrieved parties to exercise their
23 rights under Section 9, Article II of the Califomia Constitution (i.e., the referendum right) and/or
24 to file claims arising under state law, including the Califomia Environmental Quality Act. The
25 City therefore did not have authority to execute the amendment to the development agreement
26 when it did, nor record that amendment.
27 //
28 II
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -10
1 Specifically, with respect to the referendum power, Govemment Code § 36937^ and
2 Elections Code § 9235.2'' provide that an ordinance approving or amending a development
3 agreement will not take effect for thirty days, during which time the voters of a jurisdiction are
4 entitled to exercise their right of referendum by presenting a petition protesting the ordinance.
5 See Govemment Code §§ 65867.5(a) and 65868^, and Elections Code §§ 9235 and following.
6 In fact, the City's own 2014 DA acknowledges the right of the citizens to referend the
7 DA:
8 "Effective Date" means that day on which the Adopting Ordinance shall
be effective 30 days after its adoption by the City Council, unless the Adopting
9
Ordinance becomes subject to a qualified referendum, in which case the Effective
10 Date shall be the day after the referendum election, if the Adopting Ordinance is
approved by a majority of the voters. Litigation filed to challenge the Adopting
11 Ordinance or this Agreement shall not affect the Effective Date, absent a court
order or judgment overtuming or setting aside the Adopting Ordinance, or staying
12 the Effective Date, or remanding the Adopting Ordinance to the City." (2014 DA,
Titiis decl. Ex. 1; RJN No. 1, p. 3, Section 1.6).
13
14 The First Amendment incorporates the 2014 DA by reference:
15 A. The City and Developer have heretofore entered into a Development Agreement,
approved by the City of Elk Grove by Ordinance No. 29-2014, adopted on
16 October 22, 2014 (the "Development Agreement"), and relating to certain
property in the City of Elk Grove upon which Developer desires to develop.
17
18 B. Those recitals provided in the Development Agreement are herein incorporated by
reference.
19
C. Infiirtheranceof the Project, the City and Developer desire to enter into this First
20 Amendment to make certain modifications and amendments to the Development
Agreement. (First Amendment, Titus decl. Ex. 2; RJN No. 2, p. 1, Recitals.)
21
22
23
24 ^ Government Code § 36937 provides, in relevant part, that: "Ordinances take effect 30 days after their
final passage."
25
" Elections Code § 9235 provides, in relevant part, that: "No ordinance shall become effective until 30 days
26 from and after the date of its final passage..."
27 ^ Govemment Code § 65867.5 provides, in relevant part, that: "(a) A development agreement is a
legislative act that shall be approved by ordinance and is subject to referendum." Govemment Code §
28 65868 provides, in relevant part, that: "An amendment to an [development] agreement shall be subject to
the provisions of Section 65867.5."
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -11
1 That 2014 DA, among other things, expressly reserves to the City the right, subject to the
2 vested rights, to:
3 grant or deny land use approvals;
approve, disapprove or revise maps;
4
adopt, increase, and impose regular taxes, utility charges, and permit processing fees
5 applicable on a city-wide basis;
adopt and apply regulations necessary to protect public health and safety;
6 adopt increase or decrease fees, charges, assessments, or special taxes;
adopt and apply regulations relating to the temporary use of land, control of traffic,
7
regulation of sewers, water, and similar subjects and abatement of public nuisances;
8 adopt and apply City engineering design standards and constmction specification;
adopt and apply certain building standards code;
9 adopt laws not in conflict with the terms and conditions for development established in
prior approvals; and
10
• exercise the City's power of eminent domain with respect to any part of the property.
11 (RJN No. 1.)
12 If the BIA takes the Phase 2 property into tmst based on the Ordinance and First
13' Amendment to the DA, which was improperly recorded, then Plaintiffs will have lost their right
14 to referend. This is the irreparable harm that Plaintiffs seek to prevent bv this Motion. (Bames
15 decl. 116.)
16 Case law supports Plaintiffs' position that the Ordinance is ineffective until the residents
17 have the opportunity to referend. In the case of Midway Orchard vs. County of Butte (1990) 220
18 Cal. App. 3d 765, the trial court mled that the DA in that case never became operative because
19 the resolution amending the general plan, upon which the DA was based, was not effective for a
20 period of 30 days after its passage to allow a referendum petition to be passed. Midway
21 (developer) appealed and the appellate court affirmed, writing: "Midway contends it has vested
22 development rights as a consequence of its development agreement. The frial court concluded
23 that since the resolution amending the general plan was subject to referendum, the resolution was
24 not effective for a period of 30 days after its appeal to allow a referendum petition to be
25 filed.. ..[the trial courts conclusion is correct.]" (Supra at. p. 773.) The appellate court further
26 wrote that: "The [referendum] power is the power to determine whether a legislative act should
27 become law. It is not to determine whether a legislative act, once effective, should be appealed.'
28 (Supra at. 781, italics in the original.) "In accord with this view ofthe referendum power.
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -12
1 neither the state statutes nor local ordinances subject to referendum go into effect during the time
2 permitted for the filing of a referendum petition. [Intemal cites omitted] Thus, a 'prime purpose
3 of deferment of the effective date of ordinances is to preserve the right of referendum.'"
4 [Intemal cites omitted.] (Supra at. p. 781.) The City's conduct iri filing the First Amendment
5"' puts that Amendment "into effect during the time permitted for the filing of a referendum
6 petition" as prohibited by law.
7 Govemment Code §§ 65867.5 and 65868 provide that DAs, including amendments
8 thereto, are subject to referendum. Because the City went ahead and filed the First Amendment,
9 removing the encumbrance from title, the BIA will take the land into Tmst and deprive Plaintiffs
10 of their right to referend. (Bames decl. 1|6.)
11 For the above reasons, a Temporary Restraining Order should be immediately issued to
12 prevent ftirther harm to Plaintiffs as alleged and as set forth in the attached declarations in
13 support.
14 IV. AN ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION SHOULD
ALSO ISSUE
15
16 Plaintiffs also request by this Motion an order to show cause (OSC) regarding the
17 preliminary injunction. (Cal. Rules of Court, Rule 3.1150(a).) A filed stamped copy of the
18 Petition is attached to the Bames decl. as Exhibit 1. Pursuant to CRC Rule 3.1150(b), Plaintiffs
19 have requested that the Court file be made available in Department 24 at the time of making this
20 application by means of a request to the Department Clerk. (Bames decl. 1113.)
21 Plaintiffs request a fiill hearing on a Preliminary Injunction for the same reasons and
22 under the same authorities as set forth in support of the TRO, and request that an Order to Show
23 Cause be issued along with the TRO to afford Defendants the opportunity to show why they
24 should not be resfrained and enjoined in the same manner fof the remainder ofthis litigation.
25 A Preliminary Injunction is proper in the following relevant circumstances:
26 (1) When it appears by the complaint that the plaintiff is entitled to the relief
demanded, and such relief, or any part thereof, consists in resfraining the
27 commission or continuance ofthe act complained of, either for a limited
period or perpetually.
28
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -13
1 (2) When it appears by the complaint or affidavits that the commission or
continuance of some act during the litigation would produce waste, or great
2 or irreparable injury, to a party to the action.
3
(3) When it appears, during the litigation, that a party to the action is doing,
4 or threatens, or is about to do, or is procuring or suffering to be done, some
act in violation of the rights of another party to the action respecting the
5 subject ofthe action, and tending to render the judgment ineffectual.
6
(6) Where the restraint is necessary to prevent a multiplicity of judicial
7 proceedings.
8 As shown in the declarations submitted herewith, and as will be shown at the hearing on
9 a preliminary injunction, sufficient grounds exist for both the TRO and a preliminary injunction.
10 V. EX PARTE R E L I E F IS PERMITTED UNDER THESE CIRCUMSTANCES, AND
PLAINTIFF HAS COMPLIED WITH CALIFORNIA RULES OF COURT
11
12 "An applicant [for an ex parte application] must make an affirmative factual showing in a
13 declaration containing competent testimony based on personal knowledge of irreparable harm,
14 immediate danger, or any other statutory basis for granting relief ex parte." (Cal. Rules of Court,
15 Rule 3.1202(c).)
16 As shown by the Declaration of Brigit S. Bames in Support of Ex Parte Application,
17 there is an imminent and present danger of irreparable harm/immediate danger or other statutory
18 basis for granting relief ex parte, in that if Defendants are not immediately compelled to grant the
19 relief requested. Plaintiffs will suffer great and immediate irreparable harm if the First
20 Amendment is allowed to remain on record in such fashion that BIA considers title free of the
21 encumbrances created by the 2014 DA, because the property may befransferredinto Tmst. Once
22 taken into Tmst, Petitioners will have been denied their statutory and Califomia Constitutional
23 rights to referend the City's adoption of the Ordinance approving the First Amendment. This
24 damage is irreparable and cannot be undone.
25 Notice Requirement
26 Plaintiffs informed Defendant City ofthe need to file for this relief in writing on
27 December 12, 2016, and all known Defendants of the date of this hearing on December 15, 2016.
28 (BSB decl. 111110-13, Exs. 2, 3, & 4.) Plaintiffs will have served this Motion by email on
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 14
1 December 19, 2016, all of which is before the 10:00 a.m. deadline before the required court date
2 as required by law. (Cal. Rules of Court, Rule 3.1201.) On December 15, 2016, Defendant City
3 indicated it would be filing a notice attempting to correct the defects contained in the First
4 Amendment to DA. As of this filing, an unsigned notice was received, but no evidence assuring
5 that the notice was recorded, nor any evidence that the City has advised BIA that the referendum
6 effected a suspension of the First Amendment ofthe DA. No offer from the City has been
7 received to communicate corrective notices to the Dept. of Interior. Plaintiffs are informed that
8 Defendant City and Real Party will be appearing to oppose the application. (Cal. Rules of Court,
9 Rule 3.1204(a); see Bames decl. HHl 1-13.)
10 In addition to the above required notice. Plaintiffs' counsel called Elk Grove City
11 Attomey Jon Hobbs on December 1, 2016, but did not reach him and left a voice-mail. Because
12 the call was not retumed. Plaintiffs' counsel also sent a meet and confer letter to Mr. Hobbs on
13 December 12, 2016, regarding the subject matter of this Motion. (A copy ofthis meet and confer
14 letter is attached to the Bames decl., 1112, as Exhibit 3.)- As a result of this meet and confer letter,
15 conversations were had among the parties to resolve this matter, which were ultimately not
16 successftil, leading Plaintiffs to file this Motion.
17 VI. CONCLUSION
18 For all of the foregoing reasons and supporting facts and authorities. Plaintiffs
19 respectfiilly requests that the Court issue a Temporary Restraining Order, and set an Order to
20 Show Cause hearing for Preliminary Injimction.
21 Respectfiilly submitted.
22 Dated: December 19, 2016 BRIGIT S. BARNES & ASSOCIATES, INC.
23 A California La^^orporation
24
25
26
27
28
POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -15
Preview
?- f i • S1 li % ^w^' 1 BRIGIT S. BARNES «& ASSOCIATES, INC. BRIGIT S. BARNES, ESQ. CSB #122673 ENDORSED 2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 aiiGDECeO AH 9:3$ 3 3262 Penryn Road, Suite 200 Loomis, CA 95650 G-DoSC COURTHOUSE 4 Telephone: (916) 660-9555 SUPERIOR COURT , OF CALIFORNIA Facsimile: (916)660-9554 SACRAMENTO COUNTY 5 Attomeys for Petitioners and Plaintiffs 6 STAND UP CALIFORNIA!; PATTY JOHNSON; 7 And JOE TEIXEIRA 8 SUPERIOR COURT OF THE STATE OF CALIFORNL\ 9 COUNTY OF SACRAMENTO 10 STAND UP CALIFORNL\!; PATTY CaseNo. 34-2016-80002493 11 JOHNSON; and JOE TEIXEIRA, 12 MEMORANDUM OF POINTS AND Petitioners and Plaintiffs, AUTHORITIES IN SUPPORT OF EX 13 PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY 14 CITY OF ELK GROVE, INJUNCTION AND TEMPORARY RESTRAINING ORDER 15 Respondent and Defendant. 16 Date: December 22, 2016 ELK GROVE TOWN CENTER, LP; Time: 9:00 am 17 HOWARD HUGHES CORPORATION; Ex parte calendar: Dept. 24 and DOES 1-20, 18 Verified Petition Filed: November 23,2016 Real Parties in Interest and Trial Date: None 19 Defendants. 20 21 22 23 24 25 26. 27 28 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO 1 TABLE OF CONTENTS 2 PAGE 3 4 L INTRODUCTION AND FACTUAL BACKGROUND 1 5 II. A TEMPORARY RESTRAINING ORDER SHOULD BE GRANTED 6 REGARDING THE 2 ^ CAUSE OF ACTION, AS GREAT AND 7 IRREPARABLE INJURY WILL RESULT TO PLAINTIFFS IF THE RELIEF REQUESTED IS NOT GRANTED ..8 8 9 III. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERIS OF THEIR CLAIM AT TRIAL 10 10 11 rv. AN ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION 12 SHOULD ALSO ISSUE 13 13 14 V. EX PARTE RELIEF IS PERMITTED UNDER THESE CIRCUMSTANCES AND PLAINTIFF HAS COMPLIED WITH CALIFORNIA RULES OF 15 COURT 14 16 Notice Requirement 14 17 18 VI. CONCLUSION 15 19 20 21 22 23 24 25 26 27 28 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - i 1 TABLE OF AUTHORITIES 2 PAGE(S) 3 CASES: 4 Blocli V. North Dakota 5 461 U.S. 273, 280-81 (1983) 5, 6 6 C/turch of Christ in Hollywood v. Superior Court 7 99 Cal. App. 4'" 1244, 1251 (2d Dist. 2002) 8 8 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. 523 US. 751 (1998) .....10 9 Littlefield v. DOI 10 CaseNo. l:16-cv-10184-WGY, D. Mass. Filed 6/17/16 10 11 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak 12 132 S. Ct. 2199 (2012) 6 13 Midway Orchards v. County of Butte 14 220 Cal. App. 3d 765, 773, 781 (1990) 10, 12, 13 15 STATUTES: 16 Califomia Rules of Court, Rule 3.1150(a) 13 17 Califomia Rules of Court, Rule 3.1150(b) 13 18 Califomia Rules of Court, Rule'3.1201 15 Califomia Rules of Court, Rule 3.1202(c) 14 19 Califomia Rules of Court, Rule 3.1204(a) 15 20 Code of Civil Procedure §527(c)(l) 8 21 Elections Code §9235 11 22 Elections Code §9235.2 11 Elections Code §9237 4 23 Govemment Code §36937 11 24 Govemment Code §65867.5 11,13 25 Govemment Code §65867.5(a) 11, 12 Govemment Code §65868 11, 12, 13 26 25 C.F.R. §151.12(c) 10 27 25 C.F.R. §151.12(c)(2) '. 5 25 C.F.R. §151.12(c)(2)(iii) 6 28 25 C.F.R. §151.13(b) 3,4 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - i i 1 25 C.F.R. §151.14 6, 10 25 C.F.R. § 152.22(b) 5 2 40 C.F.R. §1506.10 : 5 78 Fed. Reg. 72928 2 81 Fed Reg. 90379 2 5 25 U.S.C. §177 '. 5 25 U.S.C. §2703(4) 5 6 25 U.S.C. §5108 3,5 28 U.S.C. §2409a 5 7 28 U.S.C. §2409a(a) : 4, 5 8 31 U.S.C. §1341 4 9 CONSTITUTIONS: 10 11 Califomia Constitution, Article II, Section 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - i i i 1 I. INTRODUCTION AND FACTUAL BACKGROUND 2 This Mofion for OSC Re: Preliminary Injuncfion and TRO (the "Mofion") seeks 3 immediate enforcement of the Second Cause of Action included in Plaintiffs' VERIFIED 4 PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND 5 INJUNCTIVE RELIEF (the "Petition"), filed on November 23, 2016, which is attached to the 6 Declaration of Brigit S. Bames in Support and Declaration of Notice ("Bames decl.") as Exhibit 7 1. No prior ex-parte motions or motion for TRO/OSC re: Preliminary Injunction has been filed 8 in this action. (Bames decl. ^4.) The Petition challenges a decision by the City to adopt the 9 Ordinance approving the First Amendment to the 2014 Development Agreement goveming 10' certain property that is now proposed for an Indian gaming casino (the "Casino") as described 11 below, and for this motion, the recordation by the City before the requisite 30 days had expired 12 of notice of adoption of the Amendment to the Development Agreement, removing lands from 13 the Development Agreement to facilitate the Wilton Rancheria taking the land intoti^stfor 14 development as a casino. 15 As background, the actions complained of relate to certain entitlements originally granted 16 by the City in 2001 for the Lent Ranch Special Planning Area ("Lent Ranch SPA"). These 17 entitlements, including a detailed Development Agreement, were supported by the mandatory 18 mitigation measures included in the 2001 EIR, which are extensive in this particular case. The 19 Lent Ranch SPA included an area which was known as the "Regional MaU" site, identified as 20 District "A" of the Lent Ranch SPA. In 2007, the City entered into an agreement regarding mall 21 fees and infrastmcture. Since then the project has stalled, and ownership has changed after 22 bankmptcy to ELK GROVE TOWN CENTER, L.P. (a subsidiary ofthe Howard Hughes 23 Corporation) ("EGTC") as successor developers. At the present time, the project is undeveloped 24 but for some partially built and unused buildings and parking areas intended for the Regional 25 Mall. 26 Between 2007-2009, a native-Califomian Indian fribe, the Wilton Rancheria (the 27 "Tribe"), sued the Bureau of Indian Affairs ("BIA") to have its status as a federally recognized 28 tribe restored, which occurred in 2009 as a result of a settlement. (RJN No. 4.) Thereafter, the POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 1 1 Tribe began efforts to locate a site for an Indian gaming casino and initially identified a site in 2 the City of Gait as a preferred location. Thereafter, on December 4, 2013, the BIA/Department of 3 Interior held requisite scoping sessions and published in the Federal Register a notice of intent to 4 prepare an EIS under the National Environmental Policy Act ("NEPA"), identifying as the 5 project proposal the tmst acquisition of 282 acres in Gait for a casino project, with the Gait 6 location as the Preferred altemative, and the Elk Grove site as Altemative 6 [78 Fed. Reg. 1- 72928]. (RJN Nos. 6,7, & 8.) 8 In 2014, EGTC, the successor developer, requested revisions to the financial stmcture for 9 the Mall. The City enacted Ordinance 29-2014, which approved and authorized the City to enter 10 into a 2014 Development Agreement regarding the Regional Mall portion ofthe Lent Ranch 11 SPA (the "2014 DA"). (Declaration of Ashlee Titus in Support ("Titiis decl.") ^2, Ex. 1; RJN 12 No. 1.) Thefindingsfor the Ordinance identify a bi-fiircation of the Mall site into Phase I - to .13 become the "Outlet Mall" - and Phase 2 in the north which was not evaluated. The 2014 DA 14 also provided for reimbursement to EGTC of $15,900,000 through parking fees to be collected 15 from the public's parking in the Mall. (Titus decl. Ex. 1; RJN No. 1.) 16 The Tribe originally proposed that the Casino would be located in the City of Gait; the 17 EIS prepared on the Federal level focused on the Gait site, and all public outreach efforts and 18 environmental analysis was focused on the Gait site. Petitioners allege that the Tribe changed its 19 mind in early 2016 relative to the preferred location, and changed the Casino site to the northem 20 portion. Phase 2, ofthe Regional Mall site in the Lent Ranch SPA, Regional Mall Site'. (RJN 21 Nos. 6, 7, & 8.) The draft EIS identified the Elk Grove Mall site as an altemative, despite its 22 being a tenth ofthe size ofthe Gait site, and the fact that the Elk Grove property was subject to 23 the 2014 DA. In May 2016, some or all ofthe Real Parties in Interest entered into an option 24 agreement for the sale of Phase 2 ofthe Regional Mall site to the Tribe. (Verified Petition ^{17; 25 RJN No. 4.) On June 9, 2016, the Tribe announced its intention tofransferits focus for gaming 26 27 ' The December 14, 2016 Federal Register notice referenced (81 Fed. Reg. 90379) (RJN No. 12) is the first official 28 public notice that identifies the Regional Mall site as the preferred altemative. The Tribe announced its new preference for the Regional Mall site in early June 2016, as was widely reported at the time. POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 2 1 approvals to the Elk Grove Mall site, shown as Phase 2 in the 2014 DA, which was hitherto not 2 reviewed in the 2014 DA or for this purpose by the City of Elk Grove nor the public. (RJN Nos. 3 7,&8.) 4 In order to continue Indian gaming approvals, the Tribe needs to have the preferred site 5 taken into "Tmst" pursuant to Section 5 of the Indian Reorganization Act of 1934, 25 U.S.C. 6 §5108, by the BIA/Department of the Interior. In addition, the land must qualify as "Indian 7 lands" under the Indian Gaming Regulatory Act (IGRA) at 25 U.S.C.§2703(4), for gaming to be 8 permissible. The 2014 DA for the Mall site imposed an impediment to moving forward with the 9 plan to develop the Casino, because the encumbrances associated with the 2014 DA preclude the 10 Secretary from acquiring the land in tmst {see 25 C.F.R. 151.13(b)), and the Tribe from 11 exercising the "govemmental authority" over the property necessary for the land to qualify as 12 "hidian Lands" under IGRA. (Tihis decl. 115; RJN No. 9; Verified Petition 1118.) Accordingly, 13 the City and the Real Parties in Interest pursued the First Amendment to remove Phase 2 from 14 the 2014 DA. The Amendment was proposed, considered, and approved for the sole purpose of 15 making a casino possible. No other purpose was mentioned in the project staff report before the 16 City Council. (Titus decl. ^4; Verified Petition 1|22; RJN No. 9.) As stated in the City staff 17 report, "the BIA will not allow the [casino property] to be removed from fee to tmst for the 18 Wilton Rancheria unless the encumbrances such as the Development Agreement are removed 19 from Title". (RJN No. 9; Verified Petition 1122.) The City continues to take the position that no 20 environmental review under CEQA was required. (RJN No. 9.) 21 Section 1, Purpose, of the Ordinance provides as follows: "The purpose ofthe Ordinance 22 is to adopt amendments to the Development Agreement with EGTC for the project commonly 23 known as the "The Outlet Collection at Elk Grove." The findings section of the Ordinance 24 provides, in relevant part, that: 25 The proposed Development Agreement amendment will modify the 26 application of the existing Development Agreement by narrowing the scope of these agreements to include only the area covered by the 2014 approvals for the 27 Outiet Collection at Elk Grove Project. The amendment does not change the characteristics of the approved development. No speciflc development of the 28 Phase 2 area is approved by the Development Agreement amendment. Therefore, there are not substantial changes in the project approvals from that POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 3 1 analyzed in the 2001 EIR and no new significant envirormiental effects, or substantial increase in the severity of previously identified significant effects. No 2 new information of substantial importance has been identified. (Bold added.) 3 4 Based on the above finding, the City refiised to evaluate potential impacts of the 5 Ordinance. (Ordinance attached to Titus, decl. as Ex. 1; RJN No. 1.) However, at the time this 6 Ordinance was drafted and approved, the City knew that the Phase 2 portion was now the 7 preferred location for the Casino, contiary to all prior scoping meetings for the EIS identifying 8 Gait as the preferred location. (RJN Nos. 8 & 9.) Thus, the City's statement that No new 9 information of substantial importance has been identified is false. The City knew that the Tribe 10 had recently changed its preferred Casino site from Gait to Elk Grove. The City's own published 11 "FAQ" acknowledges as much. (RJN No. 8.) 12 Ordinance No. 23-2016, regarding the First Amendment to the DA, was approved on 13 October 26, 2016. Under state law, the City must wait 30 days to adopt the Ordinance, to allow 14 the citizens the right to referend. (Elections Code § 9237.) The Ordinance itself provides that, 15 "This Ordinance shall take effect thirty (30) days after its adoption." Instead of waiting the 16 required 30 days, the City recorded the First Amendment to the DA on November 9, 2016, 14 17 days after adoption. (RJN No. 10.) 18 The effect of recording the First Amendment to the DA prematurely, and of the City's 19 refiisal to expunge the First Amendment after receiving the Referendum, has been to effectively 20 eliminate an encumbrance on title that would prevent BIA from acquiring the Mall lands into 21 tmst. BIA regulations require the elimination of any encumbrance - such as the 2014 DA - that 22 makes title to the land unmarketable. (25 C.R.F. §151.13(b).) The 2014 DA also gives the City 23 of Elk Grove the right to impose regular and special taxes. The BIA could not acquire land in 24 tmst subject to that right, because the Anti-Deficiency Act prohibits federal agencies from 25 incurring financial obligations in excess of appropriated fiinds. (31 U.S.C. §1341.) The Anti- 26 Deficiency Act would also be violated because the 2014 DA also gives the City the right to 27 condemn the property. The exercise of this right, however, would be barred by the Quiet Title 28 Act, 28 U.S.C. §2409a(a), which preserves the sovereign immunity of the United States from POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 4 1 suits involving title disputes-to Indian lands. Acquisition of the land into tmst subject to this 2 encumbrance would thus violate the Anti-Deficiency Act, because the City could bring suit for 3 just compensation (^see Block v. North Dakota, 461 U.S. 273, 280-81 (1983)), exposing the 4 United States to liability for which fiinds have not been appropriated. 5 Furthermore, the City's retained rights of taxation and eminent domain arguably render 6 the property ineligible for tmst acquisition tmder 25 U.S.C. §5108 because these rights preclude 7 the central purposes of tmst acquisitions under that authority: exemption from state and local 8 taxation, and the restriction on alienation that is the quintessence of tmst status. (25 U.S.C. 9 §§177, 5108; 25 C.F.R. §152.22(b).) Finally, without the elimination ofthe 2014 DA, the 10 Casino Property would not qualify as "Indian lands" under IGRA, 25 U.S.C.§2703(4), because 11 the rights the City enjoys under the 2014 DA - including broad powers of taxation, land use 12 regulation, eminent domain, and the protection of the public health and safety - prevent the 13 Rancheria from exercising sufficient "govemmental confrol" over the Casino Property. 14 In fact, the Notice of (Gaming) of Land Acquisition Application was issued by the BIA 15 on November 17, 2016, commencing the "fee to tmst" process. (RJN No. 5.) BIA also issued 16 notice of the final EIS on December 14, 2016 (RJN No. 12), triggering the 30-day period before 17 final decision.^ (See 40 C.F.R. § 1506.10.) The final EIS identifies the Elk Grove site as the 18 preferred altemative. Once approved, BIA regulations require the Secretary to immediately 19 acquire the land in tmst upon making a positive determination. (25 C.F.R. § 151.12(c)(2).) All 20 evidence indicates that BIA will be issuing a final decision to acquire the land in tmst by January 21 13,2017. 22 The acquisition of land in tmst would eliminate the right of the residents to referend the 23 Ordinance due to the sovereign status of the tmst property. The Quiet Title Act, 28 U.S.C. § 24 2409a, is the exclusive means to bring a quiet title suit against the United States, and the Act 25 expressly excludes disputes involving "tmst and restricted Indian lands" from the Act's waiver 26 of the sovereign immimity of the United States. (28 U.S.C. § 2409a(a); see Block v. North 27 28 ^ The Notice also states that "The BIA will issue a Record of Decision (ROD) on the proposed action no sooner than 30 days after the date EPA publishes its Notice of Availability in the Federal Register." (See RJN No. 12.) POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 5 1 Dakota, 461 U.S. 273, 280-81 (1983).) Citizens might be able to challenge the acquisition of the 2 land in tmst under the Adminisfrative Procedure Act (APA), see Match-E-Be-Nash-She- Wish 3 Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012), but there is no case law 4 regarding whether acquiring land where a deed does not reflect encumbrances would be held 5 arbifrary and capricious imder the APA, the applicable standard of review. There are no 6 regulations for removing land from tmst, once the United States has acquired the land on behalf 7 of a tribe. Thus, the ability of Califomia citizens to exercise their constitutional right to referend in this case depends on this Court expunging the First Amendment from title to prevent the BIA from acquiring the land. (Bames decl. 116.) 10 Immediately upon approval of the Ordinance, a referendum effort was commenced by the 11 residents of Elk Grove, the requisite number of signatures were obtained, and all necessary steps 12 have been taken to take this matter to the voters. (Titus decl. 1I1|5-10.) The effect of the City's 13 early filing of the First Amendment is to deny Petitioners, and the citizens of Elk Grove, their 14 constitutional and statutory right to referend the Ordinance, which can be decided at the earliest 15 next April, or thereafter at regularly scheduled elections. However, the City's reftisal to expunge 16 the Notice of First Amendment ofthe DA, unless reversed by this Court, will permit the 17 BIA/DOI to take the Mall property into tmst in mid-January, long before a referencum election 18 can be held. (25 C.F.R. 151.12(c)(2)(iii) and 151.14.) 19 By this Motion, Petitioners request that the City be compelled to follow state law and 20 take all necessary actions, including but not limited to, removing the recorded First Amendment 21 of DA and allowing the citizens of Elk Grove to referend the Ordinance approving the First 22 Amendment. 23 The relevant time-line related to this Motion is as follows: 24 • June 27, 2001 Lent Ranch Special Planning Area (SPA), EIR, and 25 Development Agreement approved by City of Elk Grove, 295 acre fiiture commercial area at Grant Line and 99. 26 (Verified Petition 1113.) 27 • May 21, 2007 Wilton Rancheria files lawsuit against Bureau of Indian Affairs (BIA) to restore tiibal statiis. (RJN No. 4.) 28 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 6 1 • Nov. 14, 2007 The City and developer enter into an Agreement Regarding ^ Mall Fees and Infrastmcture. (Titus decl. Ex. 2; RJN No. 2.) 3 • June 8, 2009 Settlement Order approved by Judge Jeremy Fogel dismissing lawsuit and restoring tribal status to the Wilton Rancheria. 4 (RJN No.4.) 5 • Oct. 22, 2014 Ordinance 29-2014 approved and authorized the City of Elk Grove to enter into a new Development Agreement ("2014 DA") with EGTC regarding the Regional Mall Site, District "A" of the Lent Ranch SPA, to be known as the "The Outlet Collection at Elk Grove". (Titiis decl. 112, Ex. 1; RJN No. 1.) • June 9, 2016 Tribe annoimces Elk Grove site, EIS altemative F, as the new 9 preferred site, replacing the previous identified preferred site in the City of Gait. (RJN No. 7.) -^-^ m June 30, 2016 TribefilesLand into Tmst Application for Gaming Purposes. (RJN No. 4.) 12 • Sept. 28, 2016 The City passed resolution 2016-183 approving a Memorandum 13 of Understanding with the Tribe for mitigation fimding related to a proposed entertainment and gaming facility. 14 (Titiis decl. 114, Ex. 3; RJN No. 3.) 15 • Oct. 26, 2016 City Council adopted Ordinance 23-2016 approving the First 16 Amendment to the 2014 DA, which removes a portion ofthe Regional Mall property known as "Phase 2" from the legal 1^ description of the 2014 DA, and the City Clerk attested this Ordinance on the same date. (Titus decl. 113, Ex. 2; RJN No. 2.) 1o 19 • Oct. 27, 2016 City files Notice of Determination that the "Outlet Collection" would not generate any new environmentar impacts other than 20 those sttidied in the 2001 EIR. (Verified Petition 1121.) 21 • Nov. 9, 2016 First Amendment to the 2014 DA filed with the Recorder's 22 Office. (RJN No. 10.) 23 • Nov. 17, 2016 Notice of (Gaming) Land Acquisition Application to take Casino site into tmst for the benefit of the Wilton Rancheria for 24 gaming purposes. (RJN No. 5.) 2^ • Nov. 21, 2016 Petition to referend Ordinance No. 23-2016 filed with Elk 2g Grove City Clerk containing 14,800 signatures. (Titus decl. 11115,10, Exs. 4, 5,&6.) 27 • Nov. 23, 2016 Plaintiffs'Verified Petition filed. 28 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 7 1 • Nov. 25, 2016 Deadline to file referendum petition. (Titus decl. 117.) 2 • Dec. 14, 2016 Notice of final EIS, which is effective January 13, 2017. (RJN 3 No. 12). 4 • Jan. 6, 2017 Deadline for verification of the signatures on the petition for referendum. (Titus decl. 1112.) 5 • Jan. 11, 2017 The next City Council meeting after the deadline on the petition 6 for referendum. (Titus decl. 1114.) 7 • April 11,2017 Earliest an election could be held on the referendum. 8 (Titiis decl. 1116.) 9 10 II. A TEMPORARY RESTRAINING ORDER SHOULD BE GRANTED REGARDING THE 2'^'' CAUSE OF ACTION, AS GREAT AND IRREPARABLE 11 INJURY WILL RESULT TO PLAINTIFFS IF THE R E L I E F REQUESTED IS 12 NOT GRANTED 13 A TRO may issue when "[i]t appears from the facts shown by affidavit or by the verified 14 complaint that great or irreparable injury will result to the applicant before the matter can be 15 heard on notice..." (Code Civ. Proc. § 527(c)(1).) The court should grant the TRO where the 16 likelihood is that the plaintiff will prevail on the merits at trial, and where the interim harm to the 17 plaintiff without the TRO outweighs the likely harm to the defendant if the order is issued. 18 Church of Christ in Hollywood v. Superior Court, 99 Cal. App. 4th 1244, 1251 (2d Dist. 2002). 19 The referendum petition protesting the Ordinance approving the First Amendment was 20 filed with the City Clerk on November 21, 2016. (Tihis decl. UIO.) Approximately 14,800 21 citizens filed with the City Clerk's office a referendum petition protesting the Ordinance 22 authorizing the amendment. (Titus decl. UIO.) The City has until January 6, 2017, to complete 23' an initial verification of their signatures, during which time the effective date of the Ordinance is 24 suspended. (Titus decl. HHIO, 11.) If the petition is verified, the Ordinance will not go into effect 25 until such time as a majority of the voters in Elk Grove approve that Ordinance, which cannot 26 happen until April 11, 2017 at the earliest. (Titus decl. 1116!) Accordingly, the City was without 27 authority to execute and record the amendment. The First Amendment is not legally in effect, 28 and may remain ineffective until an election is held. The City's recording of the Notice of POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 8 1 Adoption of First Amendment of the DA gives the world, including BIA, the idea that the 2 property legally has been removed from the DA. This referendum process is devalued to the 3 extent that this Notice remains of record. This referendum must be allowed to continue as 4 guaranteed by law. 5 On the other hand, the Defendants are not likely to suffer any damages if the TRO is 6 granted because Defendants will simply be compelled to follow the law and allow the citizens of 7 Elk Grove the right to referend the approved Ordinance and First Amendment. The City violated 8 its legal obligations to recognize that the Ordinance approving and authorizing the First 9 Amendment could not take effect for thirty days after enactment. The City instead entered into 10 the First Amendment without an effective Ordinance in place, and recorded an Amendment that 11 stated it was executed "as o f the date of its enactment. (Verified Petition 1130.) In taking these 12 actions the City violated constitutional law, statutory law, and the 2014 DA. It was and is also 13 taking actions to thwart the right reserved to the voters of Elk Grove in the Califomia 14 Constitution to referend the Ordinance approving the First Amendment, before that Ordinance is 15 given effect. 16 Brigit S. Bames worked with counsel for the City related to this Motion. Based on 17 conversations with the City Attomey, Bames received a Notice Re First Amendment to 18 Development Agreement on Friday, December 16, 2016; however, the Notice is not signed or 19 notarized, and is not recorded. (Bames decl. 1113, Ex. 4.) As stated in the Declaration of Brigit 20 S. Bames, if Defendants are not immediately resfrained and enjoined from engaging in the 21 aforesaid conduct, Plaintiffs will suffer great and immediate irreparable harm if the First 22 Amendment is allowed to remain on record in such fashion that the BIA considers titlefreeof 23 the encumbrances created by the 2014 DA, because the property may befransferredinto Tmst as 24 early as mid-January, months before an election can be held. Once taken into Tmst, Petitioners 25 will have been denied their statutory and Califomia Constitutional rights to referend the City's 26 adoption of the Ordinance approving the First Amendment. 27 After approval of an application to take land into tmst, BIA regulations require the 28 Secretary to acquire the land in tmst immediately upon a positive determination of eligibility POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 9 1 after a title review. (25 C.F.R. § 151.12(c) and 151.14.) Attached to the Notice of Application 2 (RJN No. 4) is the title insurance summary for the Casino Property, indicating that the Secretary 3 has already conducted the title review and is likely to proceed to decision quickly. The BIA has 4 taken the position in other cases involving similar acquisitions that there is no clear process for 5 removing land from tmst. (Maytubby affidavit, Doc. 38-1, Littlefield v. DOI, Case No. l:16-cv- 6 10184-WGY, D. Mass. Filed 6/17/16; RJN No. 11.) Further, tribes are immune from suit and 7 their activities carmot be enjoined. (See Kiowa Tribe of Oklahoma v. Manufacturing 8 Technologies, Inc., 523 U.S. 751 (1998).) Thus, the Tribe could immediately commence 9 constmction and no court would have jurisdiction to enjoin its activities. Accordingly, Plaintiffs 10 are informed and believe that the inmiinent fransfer of land into tmst would prevent Plaintiffs 11 from obtaining relief 12 IIL PLAINTIFFS ARE L I K E L Y TO PREVAIL ON THE MERITS OF THEIR CLAIM AT TRIAL 13 14 Plaintiffs seek by this emergency Motion to preserve the rights of the voters as protected 15 by the federal and Califomia Constitutions. Plaintiffs are likely to prevail on this cause of action 16 at trial based on the following authorities: the Califomia Constitution, the Govemment Code, the 17 Elections Code, the language from the 2014 DA itself, and the case of Midway Orchards v. 18 County of Butte, 220 Cal. App. 3d 765 (1990). Together, these sources show that the City's 19 recordation of that amendment was premature and of no legal effect, and must be removed. 20 Califomia law requires the City to wait for 30 days before an ordinance goes into effect, 21 which is the source of the City's authority to execute and record the amendment to the 22 development agreement. The purpose of that delay is to allow aggrieved parties to exercise their 23 rights under Section 9, Article II of the Califomia Constitution (i.e., the referendum right) and/or 24 to file claims arising under state law, including the Califomia Environmental Quality Act. The 25 City therefore did not have authority to execute the amendment to the development agreement 26 when it did, nor record that amendment. 27 // 28 II POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -10 1 Specifically, with respect to the referendum power, Govemment Code § 36937^ and 2 Elections Code § 9235.2'' provide that an ordinance approving or amending a development 3 agreement will not take effect for thirty days, during which time the voters of a jurisdiction are 4 entitled to exercise their right of referendum by presenting a petition protesting the ordinance. 5 See Govemment Code §§ 65867.5(a) and 65868^, and Elections Code §§ 9235 and following. 6 In fact, the City's own 2014 DA acknowledges the right of the citizens to referend the 7 DA: 8 "Effective Date" means that day on which the Adopting Ordinance shall be effective 30 days after its adoption by the City Council, unless the Adopting 9 Ordinance becomes subject to a qualified referendum, in which case the Effective 10 Date shall be the day after the referendum election, if the Adopting Ordinance is approved by a majority of the voters. Litigation filed to challenge the Adopting 11 Ordinance or this Agreement shall not affect the Effective Date, absent a court order or judgment overtuming or setting aside the Adopting Ordinance, or staying 12 the Effective Date, or remanding the Adopting Ordinance to the City." (2014 DA, Titiis decl. Ex. 1; RJN No. 1, p. 3, Section 1.6). 13 14 The First Amendment incorporates the 2014 DA by reference: 15 A. The City and Developer have heretofore entered into a Development Agreement, approved by the City of Elk Grove by Ordinance No. 29-2014, adopted on 16 October 22, 2014 (the "Development Agreement"), and relating to certain property in the City of Elk Grove upon which Developer desires to develop. 17 18 B. Those recitals provided in the Development Agreement are herein incorporated by reference. 19 C. Infiirtheranceof the Project, the City and Developer desire to enter into this First 20 Amendment to make certain modifications and amendments to the Development Agreement. (First Amendment, Titus decl. Ex. 2; RJN No. 2, p. 1, Recitals.) 21 22 23 24 ^ Government Code § 36937 provides, in relevant part, that: "Ordinances take effect 30 days after their final passage." 25 " Elections Code § 9235 provides, in relevant part, that: "No ordinance shall become effective until 30 days 26 from and after the date of its final passage..." 27 ^ Govemment Code § 65867.5 provides, in relevant part, that: "(a) A development agreement is a legislative act that shall be approved by ordinance and is subject to referendum." Govemment Code § 28 65868 provides, in relevant part, that: "An amendment to an [development] agreement shall be subject to the provisions of Section 65867.5." POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -11 1 That 2014 DA, among other things, expressly reserves to the City the right, subject to the 2 vested rights, to: 3 grant or deny land use approvals; approve, disapprove or revise maps; 4 adopt, increase, and impose regular taxes, utility charges, and permit processing fees 5 applicable on a city-wide basis; adopt and apply regulations necessary to protect public health and safety; 6 adopt increase or decrease fees, charges, assessments, or special taxes; adopt and apply regulations relating to the temporary use of land, control of traffic, 7 regulation of sewers, water, and similar subjects and abatement of public nuisances; 8 adopt and apply City engineering design standards and constmction specification; adopt and apply certain building standards code; 9 adopt laws not in conflict with the terms and conditions for development established in prior approvals; and 10 • exercise the City's power of eminent domain with respect to any part of the property. 11 (RJN No. 1.) 12 If the BIA takes the Phase 2 property into tmst based on the Ordinance and First 13' Amendment to the DA, which was improperly recorded, then Plaintiffs will have lost their right 14 to referend. This is the irreparable harm that Plaintiffs seek to prevent bv this Motion. (Bames 15 decl. 116.) 16 Case law supports Plaintiffs' position that the Ordinance is ineffective until the residents 17 have the opportunity to referend. In the case of Midway Orchard vs. County of Butte (1990) 220 18 Cal. App. 3d 765, the trial court mled that the DA in that case never became operative because 19 the resolution amending the general plan, upon which the DA was based, was not effective for a 20 period of 30 days after its passage to allow a referendum petition to be passed. Midway 21 (developer) appealed and the appellate court affirmed, writing: "Midway contends it has vested 22 development rights as a consequence of its development agreement. The frial court concluded 23 that since the resolution amending the general plan was subject to referendum, the resolution was 24 not effective for a period of 30 days after its appeal to allow a referendum petition to be 25 filed.. ..[the trial courts conclusion is correct.]" (Supra at. p. 773.) The appellate court further 26 wrote that: "The [referendum] power is the power to determine whether a legislative act should 27 become law. It is not to determine whether a legislative act, once effective, should be appealed.' 28 (Supra at. 781, italics in the original.) "In accord with this view ofthe referendum power. POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -12 1 neither the state statutes nor local ordinances subject to referendum go into effect during the time 2 permitted for the filing of a referendum petition. [Intemal cites omitted] Thus, a 'prime purpose 3 of deferment of the effective date of ordinances is to preserve the right of referendum.'" 4 [Intemal cites omitted.] (Supra at. p. 781.) The City's conduct iri filing the First Amendment 5"' puts that Amendment "into effect during the time permitted for the filing of a referendum 6 petition" as prohibited by law. 7 Govemment Code §§ 65867.5 and 65868 provide that DAs, including amendments 8 thereto, are subject to referendum. Because the City went ahead and filed the First Amendment, 9 removing the encumbrance from title, the BIA will take the land into Tmst and deprive Plaintiffs 10 of their right to referend. (Bames decl. 1|6.) 11 For the above reasons, a Temporary Restraining Order should be immediately issued to 12 prevent ftirther harm to Plaintiffs as alleged and as set forth in the attached declarations in 13 support. 14 IV. AN ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION SHOULD ALSO ISSUE 15 16 Plaintiffs also request by this Motion an order to show cause (OSC) regarding the 17 preliminary injunction. (Cal. Rules of Court, Rule 3.1150(a).) A filed stamped copy of the 18 Petition is attached to the Bames decl. as Exhibit 1. Pursuant to CRC Rule 3.1150(b), Plaintiffs 19 have requested that the Court file be made available in Department 24 at the time of making this 20 application by means of a request to the Department Clerk. (Bames decl. 1113.) 21 Plaintiffs request a fiill hearing on a Preliminary Injunction for the same reasons and 22 under the same authorities as set forth in support of the TRO, and request that an Order to Show 23 Cause be issued along with the TRO to afford Defendants the opportunity to show why they 24 should not be resfrained and enjoined in the same manner fof the remainder ofthis litigation. 25 A Preliminary Injunction is proper in the following relevant circumstances: 26 (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in resfraining the 27 commission or continuance ofthe act complained of, either for a limited period or perpetually. 28 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -13 1 (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great 2 or irreparable injury, to a party to the action. 3 (3) When it appears, during the litigation, that a party to the action is doing, 4 or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the 5 subject ofthe action, and tending to render the judgment ineffectual. 6 (6) Where the restraint is necessary to prevent a multiplicity of judicial 7 proceedings. 8 As shown in the declarations submitted herewith, and as will be shown at the hearing on 9 a preliminary injunction, sufficient grounds exist for both the TRO and a preliminary injunction. 10 V. EX PARTE R E L I E F IS PERMITTED UNDER THESE CIRCUMSTANCES, AND PLAINTIFF HAS COMPLIED WITH CALIFORNIA RULES OF COURT 11 12 "An applicant [for an ex parte application] must make an affirmative factual showing in a 13 declaration containing competent testimony based on personal knowledge of irreparable harm, 14 immediate danger, or any other statutory basis for granting relief ex parte." (Cal. Rules of Court, 15 Rule 3.1202(c).) 16 As shown by the Declaration of Brigit S. Bames in Support of Ex Parte Application, 17 there is an imminent and present danger of irreparable harm/immediate danger or other statutory 18 basis for granting relief ex parte, in that if Defendants are not immediately compelled to grant the 19 relief requested. Plaintiffs will suffer great and immediate irreparable harm if the First 20 Amendment is allowed to remain on record in such fashion that BIA considers title free of the 21 encumbrances created by the 2014 DA, because the property may befransferredinto Tmst. Once 22 taken into Tmst, Petitioners will have been denied their statutory and Califomia Constitutional 23 rights to referend the City's adoption of the Ordinance approving the First Amendment. This 24 damage is irreparable and cannot be undone. 25 Notice Requirement 26 Plaintiffs informed Defendant City ofthe need to file for this relief in writing on 27 December 12, 2016, and all known Defendants of the date of this hearing on December 15, 2016. 28 (BSB decl. 111110-13, Exs. 2, 3, & 4.) Plaintiffs will have served this Motion by email on POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO - 14 1 December 19, 2016, all of which is before the 10:00 a.m. deadline before the required court date 2 as required by law. (Cal. Rules of Court, Rule 3.1201.) On December 15, 2016, Defendant City 3 indicated it would be filing a notice attempting to correct the defects contained in the First 4 Amendment to DA. As of this filing, an unsigned notice was received, but no evidence assuring 5 that the notice was recorded, nor any evidence that the City has advised BIA that the referendum 6 effected a suspension of the First Amendment ofthe DA. No offer from the City has been 7 received to communicate corrective notices to the Dept. of Interior. Plaintiffs are informed that 8 Defendant City and Real Party will be appearing to oppose the application. (Cal. Rules of Court, 9 Rule 3.1204(a); see Bames decl. HHl 1-13.) 10 In addition to the above required notice. Plaintiffs' counsel called Elk Grove City 11 Attomey Jon Hobbs on December 1, 2016, but did not reach him and left a voice-mail. Because 12 the call was not retumed. Plaintiffs' counsel also sent a meet and confer letter to Mr. Hobbs on 13 December 12, 2016, regarding the subject matter of this Motion. (A copy ofthis meet and confer 14 letter is attached to the Bames decl., 1112, as Exhibit 3.)- As a result of this meet and confer letter, 15 conversations were had among the parties to resolve this matter, which were ultimately not 16 successftil, leading Plaintiffs to file this Motion. 17 VI. CONCLUSION 18 For all of the foregoing reasons and supporting facts and authorities. Plaintiffs 19 respectfiilly requests that the Court issue a Temporary Restraining Order, and set an Order to 20 Show Cause hearing for Preliminary Injimction. 21 Respectfiilly submitted. 22 Dated: December 19, 2016 BRIGIT S. BARNES & ASSOCIATES, INC. 23 A California La^^orporation 24 25 26 27 28 POINTS & AUTHORITIES ISO PETITIONERS/PLAINTIFFS' EX PARTE APP FOR OSC-TRO -15