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ENDORSED
1 BRIGIT S. BARNES & ASSOCIATES, INC.
2
BRIGIT S. BARNES, ESQ. CSB #122673 20nH&R 13 PH 3: 58
ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591
3 3262 Penryn Road, Suite 200 GOSSC COURTHOU? E
Loomis, CA 95650 SUPERIOR COURT
OFCALIFORNIA,^^
4 Telephone: (916)660-9555 3ACRAMENT0 COUNrV
Facsimile: (916) 660-9554
5
Attomeys for PETITIONERS
6
and PlaintifFs PATTY JOHNSON;
7 JOE TEIXEIRA; OMAR AHMED, JR.;
XIN GUO; and CAROLYN SOARES
8
9 SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SACRAMENTO
11.
12
PATTY JOHNSON; JOE TEIXEIRA; CASE NO. 34-2016-80002493
13 OMAR AHMED, JR.; XIN GUO;
and CAROLYN SOARES, VERIFIED AMENDED PETITION FOR
14 WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY iElELIEF FOR.:
15 Petitioners and Plaintiffs,
v. (1) BREACH OF CITY ZONING
16 ORDINANCE [GOVERNMENT CODE
CITY OF ELK GROVE, §65860];
17
(2) BREACH OF THE 2014
Respondents and Defendants. DEVELOPMENT AGREEMENT;
18
19 ELK GROVE TOWN CENTER, LP; (3) BREACH OF PUBLIC RESOURCES
HOWARD HUGHES CORPORATION; and CODE §2108L6 andEOTORCEMENT
DOES 1-20, inclusive, PER §§21166 and 21167;
20
(4) BREACH OF GdVERNMENt CObE
21 Real Parties in Interest aiid HEARmO AND NOTICE PROVISIONS
Defendants. and PROCEDURAL DUE PROCESS
22 RIGHTS [GOVERNMENT CObiE
§65020(b); U.S. CONSTITUTION
23 AMENDMENTS V and XIV;
CALIFORNLV CONSTITUTION
24 ARTICLE 1, SECTION 7.]; and
25, (5) DECLARATORY RELIEF
26
27
28
VERIFED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 1
1 Petitioners and Plaintiffs PATTY JOHNSON, JOE TEIXEIRA, OMAR AHMED, JR.,
2 XIN GUO and CAROLYN SOARES ("Petitioners"), in support of their Verified Amended
3 Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief, state and
4 allege in this amended petition and complaint ("Amended Petition") as follows:
5 INTRODUCTION
6 1. This Amended Petition challenges Respondent and Defendant CITY OF ELK
7 GROVE (the "City") and Real Parties in Interest ELK GROVE TOWN CENTER, LP
8 ("EGTC") and HOWARD HUGHES CORPORATION (the City and Real Parties in Interest are
9 collectively referred to herein as "Defendants") with: 1) failure tb comply with and enforce the
10 City's zoning ordinances with respect to the 2001 Lent Ranch Special Planning Area as amended
11 in 2014 (the "2014 SPA"); 2) removal ofthe Mandatory Mitigation Measures contained in the
12 Mitigation Measure Reporting Program adopted concurrent witb the 2001 SPA EIR in violation
13 of law; 3) failure to comply with and enforce the 2014 Development Agreement (the "2014
14 DA") between the City and EGTC; and 4) &iltu-e to comply with statutory notice requirements
15 and the United States and Califomia Constitutions' due process requirements, all to the detriment
16 of Petitioners and all residents of the City.
17 2. The City at all times relevant hereto has acted to the detriment of Petitioners and
18 the residents and taxpayers of Elk Grove by breaching its obligations, as more particularly pled
19 below.
20 3. The Real Parties in Interest have benefittedfi-omthe actions of the City, as more
21 particularly pled below.
22 PARTIES AND VENUE
23 4. All of the Petitioners are residents and taxpayers of the City of Elk Grove and
24 have a clear and present right to and beneficial interest in the City's performance of its duties as
25 alleged in this Amended Petition. Petitioners bring this action on their own behalves, and on
26 behalf of all other citizens and taxpayers in the City of Elk Grove.
27 5. Prior petitioner "Stand Up for Califomia" [sic "Stand Up California!"] has
28 withdrawnfiromthis action.
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 2
1 6. Original Petitioners and PlaintifFs Patty Johnson, Joe Teixeira, and additional
2 Petitioners and Plaintiffs Omar Ahmed, Jr., Xin Guo and Carolyn Soares are individuals,
3 registered voters, and taxpayers who reside in Elk Grove, Califomia and pay property taxes to
4 the City of Elk Grove. They are concerned citizens who will be affected by the environmental,
5 physical, and social impacts of the proposed casino and hotel project as set forth in detail below,
6 have repeatedly publicly objected to City's actions on multiple occasions, and have been denied
7 adequate review of the environmental and fiscal arrangements between Respondents.
8 7. Respondent and Defendant City of Elk Grove is, on information and belief, a
9 general law city organized and existing under the laws ofthe State of Califomia. The City is
10 obhgated to comply with laws, regulations, and ordinances, including, but not limited to, the
.11 United States and Califomia Constitutions; the 2001 Lent Ranch SPA and ttie approved
12 Mitigation Measures and Reporting Plan thereto; all zoning ordinances, and general and specific
13 plans of the City of Elk Grove; the 2014 DA; and the Public Resources Code.
14 8. Real Party in Interest and Defendant Howard Hughes Corporation has been
15 identified by the City as the owner of the property that is the site of a regional mall project.
16 Based upon that information, Petitioners are informed and believe, and on that ground allege that
17 Howard Hughes Corporation was the owner ofthe Regional Mall Property imtil it was
18 transferred in January 2017, and may still have a beneficial interest in the property.
19 9. Petitioners arefiirtherinformed and believe that Real Party in Interest EGTC is a
20 wholly owned subsidiary of Howard Hughes Corporation, and is the successor in interest to the
21 Regional Mall Property which was acquired sometime in 2008 after bankmptcy of the prior
22 owner, General Growth Properties, Inc. Petitioners are informed and believe that EGTC was the
23 party responsibie for development of the Regional Mall Propertyfi"om2008 until at least January
24 2017, when the northem portion ofthe Mall Property sometimes referred to as "Phase 2" was
25 transferred, and possibly continuing.
26 10. Petitioners do not know the tme names and identities of Real Parties in Interest
27 and Defendants DOES 1-20, and therefore sue them by thesefictitiousnames. Petitioners are
28 informed and believe, and on that basis allege that Does 1-20 have an actual and substantial
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 3
1 interest in the subject matter of the action, and stand to be benefitted or injured by the judgment,
2 Petitioners will seek to amend this Amended Petition to insert the tme names and capacities of
3 these Doe Defendants when ascertained.
4 11. Petitioners and Stand Up Califomia!filedthe original Petition on November 23,
5 2016. Sincefilingthe original Petition, the City repealed the First Amendment to the 2014 DA
6 which was a subject of that Petition, after certifying the results ofthe referendum brought to
7 force compliance by the City and EGTC on the terms, covenants, and conditions contained in the
8 2014 DA. Respondents and Real Party in Interest have notfiledany responsive pleadings.
9 12. The sole purpose of the First Amendment to the 2014 DA was to permit the
10 development of a casino/hotel within Zone A of the Lent Ranch SPA, which SPA prevented any
11 type of use on Zone A except a shopping center. Since the First Amendment was challenged by
12 referendum and the instant Petition, the City has continued to take multiple actions to permit and
13 enable such violations of existing zoning ordinances and the 2014 DA, and in doing so continues
14 to violate federal, state, and local law. This Amended Petition flowsfi'omthe same conduct of
15 the City as alleged in the original Petition in taking unlawfiil actions to allow such precluded
16 uses as a casino/hotel within the Lent Ranch SPA, subject to the 2014 DA, to the detriment of
17 Petitioners. Petitioners provided notice of this Amended Petition to the City prior tofiling,and
18 will serve a copy of this Amended Petition upon the Attomey General as required by law.
19 BACKGROUND
20 13. Petitioners are informed and believe, and on that ground allege the facts stated in
21 this background section supplement ttie allegations contained in the original Petition, as
22 information has been obtained. On June 27, 2001, the City approved the 2001 Lent Ranch
23 Marketplace Special Planning Area ("2001 SPA"), which is comprised of approximately 295
24 acres and includes a portion known as the Regional Mall Property, which is referred to as "Zone
25 A" in the SPA and related planning documents. The Regional Mall Property is comprised of
26 approximately 106 acres. The Regional Mall Property was planned and originally approved iii
27 2001 as a traditional, high-end retail shopping center, to include three brand name large anchor
28 tenants. The balance ofthe 2001 SPA included residential, commercial, and retail uses. An .
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 4
1 environmental impact report (the "2001 EIR") approved by the City supported the approvals of
2 the SPA and the 2001 Development Agreement.
3 14. The 2001 EIR evaluated the irapacts of the proposed uses of the Regional Mall
4 Property and included Mandatory Mitigatidn Measures. The Mandatory Mitigation Measures
5 imposed detailed fmancial and environmental mitigations on the Regional Mall Property,
6 including those related tofinancing,traffic, visual effects, sewer, and water, among other
7 impacts. The purpose of these Mandatory Mitigation Measures as adopted by the City was to
8 provide assurances to the City's residents that development within the 2001 SPA would mitigate
9 its impacts to the community.
10 15. On November 19,2003, the landowners of the Regional Mall Property, Zone A,
11 recorded a Ucense agreement, agreeing to mutual and contiguous parking within Zone A so that
12 all parking would be shared within tbe Regional Mall.
• 13 16. On August 4, 2004, the City prepared an addendum to the 2001 EIR addressing
14 impacts to agricultural resources as well as a Mitigation MOiiitoring and Reporting Program
15 ("MMRP"). There has been no supplemental or subsequent environmental review for any
16 development on the Regional Mall Property in the dozen years since, and each development and
17 amendment has explicitly relied upon the 2001 EIR and MMRP.
18 17. On May 21,2007, the Wilton Rancheriafileda lawsuit against Department of the
19 Interior, Bureau of Indian Affairs ("BIA") to restore its tribal status.
20 18. On July 11, 2007, the Elk Grove City Council: held a public meeting regarding a
21 development plan review to build the Regional Mall, which was to be known as the "Elk Grove
22 Promenade."
23 19. On November 14,2007, the City and Elk Grove Promenade developer, General
24 Growth Properties, Inc., entered iiito an "Agreement Regarding Mall Fees and Infi-astmcture".
25 20. On December 9,2008, General Growth Properties, Inc.filedfor bankruptcy and
26 all process on the Elk Grove Promenade halted. Petitioners are informed and believe that
27 General Growth Properties, Inc. is an entity wholly owned by Real Party in Interest Howard
28 Hughes Corporation.
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 5
1 21. On June 8,2009, the Wilton Rancheria Tribe was restored to its federal
2 recognition status as a result of a settlement of the lawsuit described in Para. 16 above. On
3 August 4, 2009, the City of Elk Grove, along with Sacramento County,fileda motion to obtain
4 intervenor status as necessary parties in the lawsuit between the Wilton Rancheria and the BIA,
5 22. Sometime in 2009, Howard Hughes Corporation replaced General Growth
6 Properties, Inc. and its wholly owned subsidiary. Elk Grove Town Center, LP ["EGTC"],
7 assumed control of the Regional Mall Property.
8 23. OnJune 16,2011, the City, the County, and the Wilton Rancheria entered into a
9 Memorandum of Understanding (the "2011 MOU"), settling the motion to intervene ; The MOU
10 was established regarding "mutually respectful govemment-to-goverament relationship
11 regarding potential off-tmst impacts of Tribal Lands in Sacramento County." The 2011 MOU
12 deemed that the proposed casino/hotel would be compatible with the General Plan if it was the
13 least intensive use permitted by the General Plan.
14 24. On July 24,2012, Boyd Gaming and the Wilton Rancheria eriter into a private
15 agreement for the development of a casino/hotel, and sometime in 2012 the Wiltori Rancheria
16 opened its busiiiess development office in Elk Grove.
17. 25. On November 12,2013, the Wilton Rancheria submitted a resolution to initiate
18 the NEPA process for a fee-to-tmst and casino/hotel, comprising 282 acres. The resolution
19 prbpbsed a preferred site called the "Twin Cities Site" in the City of Gait (between Highway 99
20 and the Union Pacific Railroad tracks). No other site was identified. The Twin Cities ISite was
21 the preferred sitefi-omNovember 12,2013 until June 9,2016. Prior to June 9,2016, Petitioners
22 had no reason to believe that the casino/hotel was actually proposed and would be built in the
23 City of Elk Grove. All public notices indicated that the Gait site was the preferred site, and all
24 pubhc hearings and opportunities for the public to comment were held in Gait.
25 26. On January 24,2014, the City Attomey for Elk Grove wrote an e-inail to the BlA:
26 We are hearing rumors that the Gait site may no longer be the preferred location of the casino."
27 27. On Febmary 2014, the Department of the interior, Bureau of Indian Affairs
28 released the Wilton Rancheria Fee-to Trust Environmental Impact Statement ("EIS") Scoping
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 6
1 Report indicating that the City of Gah was the preferred site. In addition to the proposed Twin
2 Cities Site (including a reduced intensity casino/hotel version on this site), the EIS discussed two
3 other project altemative sites, the Tribal Rancheria Site in Wilton (the "Historic Rancheria Site")
4 and the City of Elk Grove, Regional Mall Site, referred to as Altemative F (the "Mall Site"). The
5 Twin Cities Site proposal was 282 acres and 376,500 square feet; the Historic Rancheria Site
6 proposal was 75 acres and 376,500 square feet; the Mall Site proposal was 28 acres and 381,000
7 square feet.
8 28. On February 27, 2014, Keith Gellerman of Summit Engineering, Inc., Who
9 Petitioners are informed and believe and thereon allege represented ttie gaming interests, wrote
10 an e-mail to Stephen Moore, Sacramento Area Sewer District, "Re: Wastewater Feasibility Study
11 for a Proposed Project". The e-mail described the project as a casino/hotel project (commercial),
12 on 28 acres (about 14 for building and 14 for parking), that, "This is 'Alternative F', so disregard
13 the proposed development in the City of Gait," which email was acknowledged by Darren
14 Wilson of the City of Elk Grove.
15 29. OnMarch3, 2014, an e-mail was sentfromKimley Hom, the casino/hotel EIS
16' traffic consultant to the City of Elk Grove, regarding the EIS traffic study, which identified
17 Altemative F, the Mall Site.
18 30. On March 11,2014, Keith Gellerman sent e-mails to the Sacramento Area Sewer
19 District: "I am working on a wastewater feasibility study for a proposed casino/hotel site near
20 Elk Grove. I need to know if the existing sewer main can handle the capacityfrointhe proposed
21 site and ah [sic] the estiinated connection and monthly fees. This is for a casino/hotel with
22 projected peakflowsof 320,000 gpd, with 250,000 gpd average...."
23 31. On March 14, 2014, Brett Long of Sacramento Area Sewer District responded,
24 calculating the estimated impacts of the casino/hotel: "Using these factors, the uses other than
25 the Casino would have a calculated estiinated impact of 238.065 ESDs, leaving the remaining
26 Casino areas bn Avater usage."
27, 32. On March 4,2014, the City responded to the Kimley Hom e-mail, scheduling a
28 conference call regarding the traffic study memorandum of assumptions involving the Elk Grove
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 7
1 Mall Site. On March 18,2014, a conference call was held with the EIS consultingfirmand the
2 City of Elk Grove regarding the casino/hotel traffic study memorandum of assumptions.
3 33. On March 19,2014, an employee of the Sacramento Area Sewer District also
4 responded to Keith Gellerman, stating "the planned development [casino/hotel] would generate
5 moreflowthan we anticipated and would likely require some capacity improvements".
6 34. On April 11, 2014, EGTCfiledan application with ttie City of Elk Grove
7 requesting an amendment to Zone A in the Lent Ranch SPA, the Regional Mall Property. The
8 stated purpose of this amendment was to convert Zoiie Afroma traditional high-end retail mall
9 to an outlet mall concept, referred to as "The Outlet Collection at Elk Grove."
10 35. On August 15,2014, EGTC was served with a Notice of Default ofthe 2001
11 Development Agreement by the City of Elk Grove.
12 36. On September 16, 2014, counsel for M & H Realty Partners, who were owners of
13 other property within the 2001 SPA, wrote a letter to the City objecting to the City's proposed
14 ordinance to amend the 2001 SPA to permit an outlet center and enter into a new development
15 agreement affecting only the Regional Mall Property. M & H Realty Partners wrote, in relevant
16 part, that they objected to 1) the conspiracy between the City and EGTC to circumvent the [2001
17 Development] Agreement and the [2001] SPA; 2) the improper process proposed to default
18 EGTC for the sole purpose of allowing EGTC to circumvent their obligations under the 2001
19 DA; 3) the dismption ofthe carefiil balance of land uses in the 2001 SPA; and lastly 4) alleged
20 that the City approval process violated CEQA.
21 37. On October 8,2014, the City adopted Ordinance 28r2014, amending the 2001
22 SPA, approving an amendment to the District Development Plan, and a Conditional Use Permit
23 for the Outlet Collection at Elk Grove. Although changes in Zone A were enacted as requested
24 by Real Property in Interest EGTC, nothing in the revised zoning removed the "Shopping Center
25 Designation" on the entire property, or the height restiictions. The shopping mall designation in
26 the amended 2014 SPA has no provision for gaming, tribal or otherwise, or hotel development,
27 and requires that all of Zone A is to be used for shopping mall purposes. The City also adopted
28 the Amended and Restated Agreement Regarding Regional Mall, Fees, and Infi^tmcture. A
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 8
1 tme and correct copy of Ordinance 28-2014 (without its exhibits) is attached hereto and
2 incorporated herein as Exhibit "A".
3 38. On October 22, 2014, the City adopted Ordinance 29-2014, approving the 2014
4 DA. In itsfindings,the City found that nofiirtherCEQA analysis was required for this change,
5 claiming that development plans for Phase 2 were unknown. The findings as part of the
6 Resolution explicitly acknowledged that the 2014 DA relied upon the approvals contained in the
7 2001 EIR, and found that the 2014 DA remained consistent with the Lent Ranch SPA. A tme
8 and correct copy of Ordinance 29-2014 is attached hereto and incorporated herein as Exhibit
9 "B".
10 39. As part ofthe 2014 SPA amendment and DA, Zone A - the Regional Mall - was
11 informally divided into two sections, referred to as "Phase 1" and "Phase 2". Phase 1 was to be
12 the Ouflet Collection at Elk Grove. Despite the multiple coordinated environmental review
13 efforts involving the City described above, the City stated in its findings of fact that Phase 2 had
14 not been proposed for development as part of the project description, and the characteristics of
15 Phase 2 are "undefined and subject to speculation", and therefore tbe 2014 DA was exempt from
16 review under CEQA. Petitioners are informed and believe, and thereon allege that the City staff
17 was actively engaged in providing data to gaming consultants related to the Draft EIS, which
18 identified Phase 2 as an altemative casino/hotel site Altemative F, and thus were aware that this
19 property was planned for a casino/hotel use. The 2014 revised DA and the amendments to the
20 Lent Ranch SPA encumbered all of Zone A, including Phase 1 "the Outlet Mall" and Phase 2 of
21 the property.
22 40. On October 29, 2014, M & H Realty Partners filed a Verified Petition for Writ of
23 Mandate against the City and Real Parties in Interest Elk Grove Town Center, LP, a Delaware
24 limited partnership; Elk Grove Town Center, L.L.C., a Delaware limited liability company; the
25 Howard Research and Development Corporation, a Maryland corporation; and Howard Hughes
26 Corporation, a Delaware corporation, for CEQA violations and breach ofthe 2001 DA.
27 41. In April 2015, the Elk Grove City Assistant Attomey requested that the Bureau
28 of Indian Affairs send all notices regarding the EIS for the casino/hotel to the City.
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 9
1 42. Between May and November, 2015, the application and plans for Outlook
2 Collection, Phase 1 of Zone A, went out for review to all agencies, including Sacramento County
3 Water Agency, Sacramento Sewer District, and Elk Grove Water District. Phase 2 on the maps
4 was shown as blank, and there was no indication in the submitted plans that Phase 2 is planned
5 for a casino/hotel, or that the Real Parties in Interest were actively engaging with the City
6 regarding a casino/hotel on the Phase 2 property.
7 43. On September 5,2015, a Joint Status Report on Conditional Settlement was filed
8 by the parties to the Petition for Writof Mandatefiledby M «& H Realty Partners, indicating that
9 the parties had reached a conditional settlement that included, in part, a revision to the
10 development agreement, which amendment was scheduled to be heard by the City and County
11 on September 9,2015. Based thereon, Petitioners believe that this lawsuit was settled sometime
12 in September 2015.
13 44. As summarized above in paragraphs 25 through 33, while the draft EIS was being
14 prepared and public indications were that the preferred site was the Twin Cities Site, documents
15 obtained sincefilingthe original Petition show that actions were being taken by the Real Parties
16 in Interest and the City to pennit the casiho/tiotel in Elk Grove on Phase 2 Zone A without
17 review by the public.
18 45. Petitioners are now informed and believe that City and Real Parties in Interest
19 intended, by denying knowledgie of plans to use Phase 2, to prevent the citizens bf Elk Groye
20 from meaningful participation in the City's hearings to amend the Leiit Ranch SPA and approve
21 the 2014 DA, and to encourage public belieif that Real Parties in Interest's preferred location
22 remained as Gait. Petitioners had no rieason to be aware of the level of anticipated planning for
23 Phase 2 of the Regional Mall Property Zone A, or simultaneous planning of Phase 2 for a
24 casino/hotel until after thefilingof the initial Petition.
25 46. On January 5,2016, the casino/hotel EIS was reviewed by the Sacramento County
26 Water Agency. The water agency noted that facilities might need to change due to inclusion bf a
27 12-story hotd.
28 ///
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 10
1 47. On January 29, 2016, a public EIS meeting was held in the ChaboUa Community
2 Center in Gait regarding the casino/hotel project, and discussions focused on Gait as ttie
3 preferred location.
4 48. On March 10,2016, the Cotmty ofSacramento submitted a comment letter
5 regarding the Draft EIS, stating that the Draft EIS does not apply Califomia or local standards.
6 49. On March 23, 2016, the Tribal Chairman for the Wilton Rancheria informed
7 Sacramento County in an e-mail: "... .After several months of review, the Elk Grove site has the
8 least enviromnental effects", and on March 30,2016, a meeting was held withtiieWilton
9 Rincheria, the City of Elk Grove, and County representatives. The citizens of Elk Grove were
10 not informed of these communications and meetings. -
11 50. Petitioners are informed and believe that begiiming at least by April 2016, Boyd
12 Gaming arranged for special meetings in Las Vegas for Elk Grove Economic Development
13 Director and then Mayor Gary Davis and the Wilton Rancheria Tribal Chairman to make sure
14 they all knew of City's support, as stated in intemal emails.
15 51. On May 31,2016, Real Party in Interest EGTC, Boyd Gaiiiing, aiid the Wilton
16 Rancheria entered into an option agreement to sell Phase 2 of the Regional Mall Property to the
17 Wilton Rancheria. The Memorandum of Option Agreement was recorded on Jtme 7,2016, in
18 Sacramento County Official Records, as Document No. 20160607, at page 0666.
19 52. On June 8,2016, Sacramento Countytielda hearing regarding a new MOU with
20 the Wilton Rancheria, which provided, among other things, for variousfiindingpayments,
,21 especially related to traffic, and expressly provided that if the Cotmty discovers other impacts
22 and notifies the Wilton Rancheria, that they will address such impacts.
23 53. On June 9,2016, the Wilton Rancheria aimounced at their tribal offices in Elk
24 Grove that, instead of proceeding with Altematives A, B, C, D, or E ofthe Draft EIS, Ph^e 2 of
25 the Regional Mall Property, Altemative F - the Mall Site - of the Draft EIS, was now the
26 preferred location for its proposed tribal gaming casino/hotel and entertainment ceiiter. No
27 public hearing was held by the City or the Bureau of Indian Affairs in Elk Grove or anywhere
28 else regarding the change of location. No public hearing noticed by the City addressed the
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 11
1 impacts of a tribal casino and hotel on the Regional Mall Site. This was a sudden shift, as all
2 prior public notices and environmental documents prepared for the casino/hotel as part of the
3 Draft EIS, which commenced m 2013, emphasized the casino/hotel being developed in the City
4 of Gait, and public meetings and hearings regarding the Wilton Rancheria's plans for its
5 casino/hotel were held in Gait.
6 54. From June 9, 2016 to the present, the City, the Real Parties in Interest, and BIA
7- for the Wilton Rancheria engaged in swift action to ensure that the Phase 2 Property would
8 transitionfroman Outlet Mall to a casino/hotel and gaming facility. All of this was done
.9 suddenly and without any meaningful notice to the Petitioners and residents of the City of Elk
10 Grove.
11 55. On June 14, 2016, a new Memorandum of Understanding was signed between the
12 County of Sacramento and the Wilton Rancheria. This new MOU indicated that it would cover
13 either the Twin Cities Site or the Regional Mall Site.
14 • 56. On June 30, 2016,21 days after the Wilton Rancheria announced the shift in
15. location, the Wilton Rancheriafiledthe fee-to-tmst application, with the BIA regarding the
16^ Ptiase 2 property. The Regional Mall Site is identified as 28 acres in the EIS documents;
17 tiowieveri subsequent conveyance documents regarding the fee-to-trust application identify a 35-
18 acre site. The actual site conveyed into Trust does not match that area identified in the EIS
19 ^ documents, as it contains 7 extra acres.
.20 57. In August 2016, die Sacramento County Water Agency ["SCWA"] reviewed tiie
,21.- Draft EIS and indicated that it would perform a detailed environmental analysis at thetimeof
22 water improvenient plan submittal. As offilingthis Amended Petition, Petitioners have fotmd
23 no indication that capacity improvements as previously requested by the Sewer District and
24 Sacramento County Water Agency were incorporated into the Final EIS for the Elk Grove Mall
25- Ibcation. These concems expressed by the sewer and water agencies were not called out in the
26 DEIS or FEIS and confirm that water and sewer service to the proposed hotel/casino was not
27 reviewed by SCWA at the time the DEIS or FEIS was released to the public.
28 ///
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT -12
1 58. On August 16,2016, the Elk Grove Planning Commission considered a First
2 Amendment to the 2014 DA, and during the public hearing stated that the purpose of the
3 Amendment was to allowtitleto Phase 2 to be taken into Tmst.
4 59. On September 28, 2016,tiieCity of Elk Grove passed Resolution No. 2016-183,
5 approving a new Memorandum of Understanding (the "2016 MOU") with the Wilton Rancheria,
6 and claimed the 2016 MOU was CEQA exempt. The 2016 MOU provided for various cash
7 payments as mitigation, especially fpr traffic and tax loss. No public meetings were held to
8 review the basis of mitigation, or to provide details regarding how the cash payments may relate
9 to any mitigation ostensibly identified by the City. The Resolution acknowledged that the
10 purpose of the 2016 MOU was so that the Regional Mall property could be put into Trust for
11 purposes of building a casino/hotel. The Resolution referenced the Draft EIS which focused on
12 Gait, and m which the Elk Grove Mall site was only Altemative F, and did not acknowledge that
13 Gait was the preferred location at all times relevant during the public review process, and that the
14 City of Elk Grove was not identified as the preferred site until the Final EIS stage in December,
15 2016. The Resolution stated that the casino/hotel is anticipated to include a 608,756 square foot
16 casino-resort and a 12-stbry and apprbximately 302 rborn hotel tower, including a conventibn
17 center, with on-site parking, as described in ttie draft EIS. This casino/hotel facility is an
18 unprecedented and drastic changefromthe regional outlet mall submissions with the 2014 DA,
19 and amendments to the Lent Ranch SPA, which was to include 775,000 total square feet of outlet
20 mall building, with 689,000 being gross leasable area with a maximum height of 100 feet: At tbe
21 tiine the 2016 MOU was adopted by the City of Elk Grove, the casino/tiotel propertytiadnot
22 been placed into Trust, and thus remained subject to the City's fiill jurisdiction and control.
23 60. Tbe 2016 MOU included both non-recurring and recturing payment plans, but
24 there is no public economic analysis associated with these payments, and it is unclear how the
25 payments are related to the actual expenses and costs of the casino/hotel to the City. There is
26 also no analysis of what the additional trafSc unpacts related to expanded use of the Regional
27 Mall Site over shopping center by the proposed casino/hotel may be, and whether planned
28 mitigation payments adequately addressed such impacts. There is likewise no explanation ofthe
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 13
1 Wilton Rancheria's compliance with air quality management plans.
2 61. On September 29,2016, in e-mails with Sacramento Area Sewer District and the
3 City regarding the casino/hotel proposal,fivemonths before the proposed property was taken
4 into Tmst, the City emailed that "we have no land use or approval authority. Per the EIS, the
5 Wilton Rancheria is required to enter into contract with Sac Ai-ea Sewer District. May ask for
6 improvements to the pump station because the outflow exceeds the designflowfor the property."
7 62. On October 26,2016, the City passed Ordinance 23-2016, the First Amendment
8 to the 2014 DA, at ttie purported request of EGTC, to release the 2014 DA as an encumbrance to
9 Phase 2, ttie casino/hotel property. The only stated purpose for this was to allow the Department
10 ofthe Interior to take the property into Tmst to allow for the casino/hotel to be built. The
11 Ordinance would have become official 30 days after passage.
1,2 63. On November 9,2016, the First Amendment to the 2014 DA was recorded, prior
13 to the passage of 30 days.
14 64. On November 17,2016 - also prior to the 30-day effective date for the First
15 Ameridnient to the 2014 DA - BIA issued a Notice of Land Application to take Casino site into
16 tmst for benefit of the Wilton Rancheria.
17 65. On November 21,2016, a referenduiri petition wasfiledwith the City Clerk. The
18 effect of the referendum was to suspend the First Amendment to the 2014 DA, meaning that the
19 2014 DA was still infiillforce and effect against all of Zone A, including Phase 2, the proposed
20 casino/hotel property.
21 : 66. On November 23, 2016, ttie instantPetition wasfiledby STAND^^^
22 CALIFORNIA! and residents of Elk Q-ove challenging Ordinance 23-2016, First Amendment to
23 the 2014 DA, and seeking to compel repeal of the First Amendment; to the 2014 DA. Petitioners
24 contend thatfromand after thefilingof the referendum petition ttie effect of the First
25 Amendment was suspended, arid that City's efforts to remove the 2014 Development Agreement
26 from Phase 2 were ineffective.
27- Ill
28 III
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 14
1 67. On December 16, 2016, Notice of Final EIS for Casino identifying the Elk Grove
2 Regional Mall Site was filed mtiieFederal Register-BIA Notice 81 Fed. Reg. 90379; EPA
3 Notice 81 Fed. Reg. 91169:
4 68. On December 23,2016, Real Party in Interest EGTC, with the concurrence of the
5 City of Elk Grove, recorded a series of lot line adjustments, the apparent effect of which was to
6 define Phase 2 as a specific lot or lots in preparation for transfer to Boyd Gaming and the Wilton
7 Rancheria. This action was authorized by the City witiiout public notice or hearing.
8 69. On January 9, 2017, the City recorded a notice of release of recorded Nbtice of
9 Conditibnal Partial Release of Recorded Mitigation Monitoring and Reporting Program for the
10 Lent Ranch Maricetplace. The effect of this release was to remove the Mandatory Mitigation
11 Measures approved as part of the 2001 SPA EIR from the Phase 2 casino/hotel property. Again,
12 this action was taken by the City without a hearing and without any public notice. Petitioners
13 contend that at alltimesprior to February 10,2017, Phase 2 remained property subject to the
14 jurisdiction of the City and County, subject tb the 2001 SPA EIR and its MMRP restrictions, the
15 2014 Amendments tp the Lent Ranch SPA, and the 2014 DA. A tme and correct copy of this
16 release is attached hereto and incorporated herein as Exhibit ' ' C .
17 70. On January 9,2017, a grant deedfromEGTC to themselves was filed, apparentiy
18 to consummate the lot line adjustinents recorded on December 23,2016.
1,9 71. On January 9,2017, a Covenant'Agreement Access-Parking Agreement between
20. EGTC and the City of Elk Grove was filed, indicating that all fees for parking will be paid from
21 Phase 1 property, the Outlet Mall, instead of ail portions of Zone A, effecting a release of Phase
22 2 property from the payment of parking fees to the City. No hearing or public notice of the City's
23 decision to release all fees for parking to be collected against the Phase 2 property was held.
24 72. On January 11,2017, a First Amendment to the Parking License Agreement was
25 recorded, removing the casino/hotel property from the Parking License Agreement recorded in
26 2003 and amended in 2014. No hearing or public notice of the City's decision to release the
27 Parking License Agreement from Phase 2 was held, and no public discussion of the financial
28 implications of either the Covenant or the Release was held.
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 15
1 73. On January 11, 2017, the referendum to repeal Ordinance 23-2016, the First
2 Amendment to the 2014 DA, was certified by the City Council upon recommendation of the City
3 Clerk.
4 74. On January 19,2017,tiieRecord of Decision ("ROD") was signed by Principal
5 Deputy Assistant Secretary - Indian Affairs ofthe Department of Interior, Bureau of Indian
6 Affairs, approving taking the land described as Phase 2 into Tmst. This approval was not
7 published in the Federal Register, and was released after hours in Washington D.C.
8 75. Earlier on the same day, on Jariuary 19,2017, EGTC recorded the conveyance of
9 the Phase 2 property to Boyd Gaming and the Wilton Rancheria. The deed was executed on
10 January 12, 2017.
11 76. On Februaiy 5, 2017, the fu^st reading oftiierepeal of Ordinance 23-2016, the
12 First Amendment to the 2014 DA, was held in the City of Elk Grove, and adopted.
13 77. On Febmary 10,2017, The Department bf Interior accepted the conveyance of the
14 Phase 2 propertyfromBoyd Gaining and the Wiltbh Rancheria, placing the property into Tmst.
15 78. On Febmary 21,2017, Stand Up for California!, Patty Johnson, Joe Teixeira, and
16 others (collectively, "Citizens'")filedan administrative ajppeat of the ROD with the Interior
17 Board of Indian Appeals ("Board"). Citizens requests that the Board grait preliminary relief on
18 an expedited basis, ordering BIA to removetitleto the propertyfiomtmst pending the
19 administrative appeal, on the grounds that BIA violated its own regulations by acquiringtitleto
20 the property in tmst on the basis of a non-final; agency decisipn,, without coinplying ,witti notice
21 requirements and without Waiting the mandatory 30 day period to allow Citizens tofiletheir
22 administrative appeal.
23 79. On Febmary 22, 2017, Ordinance 23-2016,tiieFirst Amendment to the 2014 DA,
24 was formerly repealed by the City Council as a result ofthe certified referendum.
25 80. By Order diated February 24,2017, the Board ordered briiefing on whether the
26 ROD isfinalfor the Department of the Interior. That proofing will conclude bri or before March
27 31,2017.
28 ///
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 16
1 81. From and at alltimesafter 2001, Petitibners and the residents bf Elk Grbve were
2 led to expect a shopping mall, and then later an outiet mall, and all detailed environmental
3 processes commencing in 2001 identified shopping center uses for Zone A. The City has now
4 permitted a planned substitution of a more intense use - a casino/hotel use on the northem
5 portion of the site [Phase 2] - with little notice to the public, and with no eiivironmental or
6 economic review or analysis conducted by the City of the comparative impacts of a casino/hotel
7 as to that anticipated by the 2001 EIR, all to the detriment of Petitioners and the residents and
8 taxpayers of the City of Elk Grove.
9 82. The City of Elk Grove prbvided no details in'any kind of setting which provided
10 Petitioners and the residents of Elk Grove any type of assurance that the enviroiimental analysis
11 prepared in the Final EIS adequately addressed impacts as required by Califomia law. Two
12 years of environmental review went into the site analysis in Gait, andfivemonths elapsed
13 between the Tribe's notice of change of location and release of the Final EIS E)eicerriberl 6,2016
14 with the Elk Grove site as the substituted Preferred Altemative. There are no assurances to
15, Petitioners and the residents and taxpayers:
16 a) That either the identified traffic impacts or the surroimding traffic infrastructure can
17 support the increased traffic burdens created by the casino/hbtei;
18 b) That there is sufficient water or sewer capacity for the casino/hotel witiiout creating a
19 burden totiieresidents, as the Final EIS contains no assuriance ttiat the facilities for
20 the proposed casino/hotel are readily available;
21 c) That there are siifficient sources and revenue identified in the 201(5 MOU to mitigate
22 the negative social impacts of a casino/hotel, such as problem gambling;
23 d) That there will be adequate parking for the casino/hotel, and that overflow parking
24 will not be a burden on surrotmding neighboihbbds and business; and
25 e) That the Tribal contributions identified as mitigation in the September 29,2016 MOU
26 are sufficient to adequately address any mitigations reasonably necessary to respond
27 to any of the impacts such tmplanned develop may cause.
28 Ill ' .
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 17
1 83. Petitioners are all active community members who are concemed about the
2 casino/hotel impacts, and were all denied notice and opportunity to participate in the casino/hotel
3 approval process described above. The actions complained of in this Amended Petition were
4 participated in or permitted by the City of Elk Grove prior to the February 10,2017 fee-to-tmst
5 approval process, when the City still had full jurisdiction control over the casino/hotel property.
6 FIRST CAUSE OF ACTION - CITY BREACH OF ZONING ORDINANCE
[GOVERNMENT CODE S65860]
7
8 84. Petitioners and Plaintiffs re-state and re-plead all allegations set forth above, as
9 though fiilly set fortii herein.
10 85. Government Code §65860 provides that a zoning ordinance must be consistent
11 with the General Plan or amended so that it is consistent. The Lent Ranch SPA, as amended in
12 2014, provides ttiat all of Zone A, including that northem portion now planned to be used as a
13 tribal casino and hotel, can pnly be used for shopping center uses. Here, the proposed
14 casino/hotel is not consistent with the zoning ordinance, and no re-zone was ever conducted.
15 86. Zoning authority to a general law city like Elk Grove derivesfromthe Califomia
16 Constitution, Article 11, §7. The Lent Ranch iSPA was amended in 2014, but the amendments
17 did not change the explicit shopping center use, the height limitations for all buildings, and
18 integrated parking and access planning. Petitioners have found no evidence of attempted
19 rezonirig ofthe property by the City of Elk Grove since 2014 to permit such planned casino/hotel
20 use. Lent Ranch SPA remains effective against all of Zone A, including Phase 2.
21 87. Under the 2001 Lent Ranch SPA, the entire 295-acre area was zoned as districts,
22 of which the 103 acres are now subject to the amended 2014 SPA and 2014 DA, which remained
23 zoned for shopping center use. Nothing contained in the 2014 Amended Lent Ranch SPA
24 changes exclusive use of Zone A from shopping center to any other type of use. As per the
25 City's adoption of the February 22,2017, Repeal by Resolution of Ordinance 23-2016, the First
26 Amendment tb the 2014 DA, the 2014 DA continues to restrict the property conveyed to the
27 federal govemment in tmst for ttie Wilton Rancheria.
28 Ill
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT -18
1 88. The casino/hotel proposed use is not consistent with the City's zoning under the
2 2014 SPA, and no re-zone has been done by the City. Ttie proposed casino/hotel violates the
3 City's zoning ordinances in at least the following ways: 1) the hotel proposed as part of the
4 casino is at least 100 feet over maximum height for the district; 2) parking design disconnected
5 from the balance of the Outlet Mall is in violation of the mall plannirig design; and 3) neither
6 proposed use is permitted under the existing zoning.
7 89. The City is obligated to comply with its own zpiiing ordinance, or conduct a re-
8 zoning hearing witti notice to the public and consideration of the environmental effects of such
9 previously unanticipated changes in land use, neither of which has occurred.
10 90. The City has also violated all notice requirements for amendments of zoning
11 ordinances which affect the permitted use of the property by failing to hold hearings on the
12 necessary amendment removing the shopping center only restriction; and hasfriiledto conduct
13 tiie necessary CEQA review as required by Public Resources Code §§ 21080, 21080.3, 21080.4,
14 21151, and Govemment Code § 65860.
15 91. The City and/or Real Parties in Interest should be compelled to comply with the
16" City's zoning ordinance and planning documents with respect to the property; or, in the
17 altemative, hold public hearings to re-zone the property.
18 SECOND CAUSE OF ACTION - BREACH OF THE 2014 DEVELOPMENT
AGREEMENT
19
20 92. Petitioners and Plaintiffs re-state and re-plead ail allegations set forth above as
21 thotigh fully set forth herein.
22 93. The 2014 DA, adopted by City of Elk Grove after misleading Petitioners and the
23 public by claiming that Phase 2 of Zone A could not be evaluated because its intended use was
24 unknown to the City, provides in relevant part that:
25 a) 2014 DA, Section 4.5, Reserved Powers, provides, in substantial partj that the City
26 reservesrightsto grant or deny land use applications for the Property; approve
27 subdivision maps, parcel maps, or lot line adjustments; or adopt and apply regulations
28 mandated by Law or necessary to protect the public health and safety.
VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT -19
1 b) 2014 DA, Section 5.4, Mitigation of EIR Impacts, provides, in substantial part, that
2 Developer (herein Real Party in Interest EGTC) shall at its own costtimelysatisfy
3 and comply with Mitigation Measures adopted by the City Coimcil as part of the 2001
4 EIR.
5 c) 2014 DA, Section 7.3, Amendment of Project Approvals, provides, m substantial part
6 that any amendment of Project Approvals related to the permitted use of the Property,
7 density or intensity of use of the Project; maximum height or size of the proposed
8 buildings, shall require an amendment of tliis Agreement iqiproved by the City
9 Council.
10 d) 2014 DA, Section 10.2-10.4 Right to Assign, provides, in substantial part, that no
11 assignment shall be made until the City approves ofthe assignment
Preview
ENDORSED 1 BRIGIT S. BARNES & ASSOCIATES, INC. 2 BRIGIT S. BARNES, ESQ. CSB #122673 20nH&R 13 PH 3: 58 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 3 3262 Penryn Road, Suite 200 GOSSC COURTHOU? E Loomis, CA 95650 SUPERIOR COURT OFCALIFORNIA,^^ 4 Telephone: (916)660-9555 3ACRAMENT0 COUNrV Facsimile: (916) 660-9554 5 Attomeys for PETITIONERS 6 and PlaintifFs PATTY JOHNSON; 7 JOE TEIXEIRA; OMAR AHMED, JR.; XIN GUO; and CAROLYN SOARES 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11. 12 PATTY JOHNSON; JOE TEIXEIRA; CASE NO. 34-2016-80002493 13 OMAR AHMED, JR.; XIN GUO; and CAROLYN SOARES, VERIFIED AMENDED PETITION FOR 14 WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY iElELIEF FOR.: 15 Petitioners and Plaintiffs, v. (1) BREACH OF CITY ZONING 16 ORDINANCE [GOVERNMENT CODE CITY OF ELK GROVE, §65860]; 17 (2) BREACH OF THE 2014 Respondents and Defendants. DEVELOPMENT AGREEMENT; 18 19 ELK GROVE TOWN CENTER, LP; (3) BREACH OF PUBLIC RESOURCES HOWARD HUGHES CORPORATION; and CODE §2108L6 andEOTORCEMENT DOES 1-20, inclusive, PER §§21166 and 21167; 20 (4) BREACH OF GdVERNMENt CObE 21 Real Parties in Interest aiid HEARmO AND NOTICE PROVISIONS Defendants. and PROCEDURAL DUE PROCESS 22 RIGHTS [GOVERNMENT CObiE §65020(b); U.S. CONSTITUTION 23 AMENDMENTS V and XIV; CALIFORNLV CONSTITUTION 24 ARTICLE 1, SECTION 7.]; and 25, (5) DECLARATORY RELIEF 26 27 28 VERIFED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 1 1 Petitioners and Plaintiffs PATTY JOHNSON, JOE TEIXEIRA, OMAR AHMED, JR., 2 XIN GUO and CAROLYN SOARES ("Petitioners"), in support of their Verified Amended 3 Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief, state and 4 allege in this amended petition and complaint ("Amended Petition") as follows: 5 INTRODUCTION 6 1. This Amended Petition challenges Respondent and Defendant CITY OF ELK 7 GROVE (the "City") and Real Parties in Interest ELK GROVE TOWN CENTER, LP 8 ("EGTC") and HOWARD HUGHES CORPORATION (the City and Real Parties in Interest are 9 collectively referred to herein as "Defendants") with: 1) failure tb comply with and enforce the 10 City's zoning ordinances with respect to the 2001 Lent Ranch Special Planning Area as amended 11 in 2014 (the "2014 SPA"); 2) removal ofthe Mandatory Mitigation Measures contained in the 12 Mitigation Measure Reporting Program adopted concurrent witb the 2001 SPA EIR in violation 13 of law; 3) failure to comply with and enforce the 2014 Development Agreement (the "2014 14 DA") between the City and EGTC; and 4) &iltu-e to comply with statutory notice requirements 15 and the United States and Califomia Constitutions' due process requirements, all to the detriment 16 of Petitioners and all residents of the City. 17 2. The City at all times relevant hereto has acted to the detriment of Petitioners and 18 the residents and taxpayers of Elk Grove by breaching its obligations, as more particularly pled 19 below. 20 3. The Real Parties in Interest have benefittedfi-omthe actions of the City, as more 21 particularly pled below. 22 PARTIES AND VENUE 23 4. All of the Petitioners are residents and taxpayers of the City of Elk Grove and 24 have a clear and present right to and beneficial interest in the City's performance of its duties as 25 alleged in this Amended Petition. Petitioners bring this action on their own behalves, and on 26 behalf of all other citizens and taxpayers in the City of Elk Grove. 27 5. Prior petitioner "Stand Up for Califomia" [sic "Stand Up California!"] has 28 withdrawnfiromthis action. VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 2 1 6. Original Petitioners and PlaintifFs Patty Johnson, Joe Teixeira, and additional 2 Petitioners and Plaintiffs Omar Ahmed, Jr., Xin Guo and Carolyn Soares are individuals, 3 registered voters, and taxpayers who reside in Elk Grove, Califomia and pay property taxes to 4 the City of Elk Grove. They are concerned citizens who will be affected by the environmental, 5 physical, and social impacts of the proposed casino and hotel project as set forth in detail below, 6 have repeatedly publicly objected to City's actions on multiple occasions, and have been denied 7 adequate review of the environmental and fiscal arrangements between Respondents. 8 7. Respondent and Defendant City of Elk Grove is, on information and belief, a 9 general law city organized and existing under the laws ofthe State of Califomia. The City is 10 obhgated to comply with laws, regulations, and ordinances, including, but not limited to, the .11 United States and Califomia Constitutions; the 2001 Lent Ranch SPA and ttie approved 12 Mitigation Measures and Reporting Plan thereto; all zoning ordinances, and general and specific 13 plans of the City of Elk Grove; the 2014 DA; and the Public Resources Code. 14 8. Real Party in Interest and Defendant Howard Hughes Corporation has been 15 identified by the City as the owner of the property that is the site of a regional mall project. 16 Based upon that information, Petitioners are informed and believe, and on that ground allege that 17 Howard Hughes Corporation was the owner ofthe Regional Mall Property imtil it was 18 transferred in January 2017, and may still have a beneficial interest in the property. 19 9. Petitioners arefiirtherinformed and believe that Real Party in Interest EGTC is a 20 wholly owned subsidiary of Howard Hughes Corporation, and is the successor in interest to the 21 Regional Mall Property which was acquired sometime in 2008 after bankmptcy of the prior 22 owner, General Growth Properties, Inc. Petitioners are informed and believe that EGTC was the 23 party responsibie for development of the Regional Mall Propertyfi"om2008 until at least January 24 2017, when the northem portion ofthe Mall Property sometimes referred to as "Phase 2" was 25 transferred, and possibly continuing. 26 10. Petitioners do not know the tme names and identities of Real Parties in Interest 27 and Defendants DOES 1-20, and therefore sue them by thesefictitiousnames. Petitioners are 28 informed and believe, and on that basis allege that Does 1-20 have an actual and substantial VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 3 1 interest in the subject matter of the action, and stand to be benefitted or injured by the judgment, 2 Petitioners will seek to amend this Amended Petition to insert the tme names and capacities of 3 these Doe Defendants when ascertained. 4 11. Petitioners and Stand Up Califomia!filedthe original Petition on November 23, 5 2016. Sincefilingthe original Petition, the City repealed the First Amendment to the 2014 DA 6 which was a subject of that Petition, after certifying the results ofthe referendum brought to 7 force compliance by the City and EGTC on the terms, covenants, and conditions contained in the 8 2014 DA. Respondents and Real Party in Interest have notfiledany responsive pleadings. 9 12. The sole purpose of the First Amendment to the 2014 DA was to permit the 10 development of a casino/hotel within Zone A of the Lent Ranch SPA, which SPA prevented any 11 type of use on Zone A except a shopping center. Since the First Amendment was challenged by 12 referendum and the instant Petition, the City has continued to take multiple actions to permit and 13 enable such violations of existing zoning ordinances and the 2014 DA, and in doing so continues 14 to violate federal, state, and local law. This Amended Petition flowsfi'omthe same conduct of 15 the City as alleged in the original Petition in taking unlawfiil actions to allow such precluded 16 uses as a casino/hotel within the Lent Ranch SPA, subject to the 2014 DA, to the detriment of 17 Petitioners. Petitioners provided notice of this Amended Petition to the City prior tofiling,and 18 will serve a copy of this Amended Petition upon the Attomey General as required by law. 19 BACKGROUND 20 13. Petitioners are informed and believe, and on that ground allege the facts stated in 21 this background section supplement ttie allegations contained in the original Petition, as 22 information has been obtained. On June 27, 2001, the City approved the 2001 Lent Ranch 23 Marketplace Special Planning Area ("2001 SPA"), which is comprised of approximately 295 24 acres and includes a portion known as the Regional Mall Property, which is referred to as "Zone 25 A" in the SPA and related planning documents. The Regional Mall Property is comprised of 26 approximately 106 acres. The Regional Mall Property was planned and originally approved iii 27 2001 as a traditional, high-end retail shopping center, to include three brand name large anchor 28 tenants. The balance ofthe 2001 SPA included residential, commercial, and retail uses. An . VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 4 1 environmental impact report (the "2001 EIR") approved by the City supported the approvals of 2 the SPA and the 2001 Development Agreement. 3 14. The 2001 EIR evaluated the irapacts of the proposed uses of the Regional Mall 4 Property and included Mandatory Mitigatidn Measures. The Mandatory Mitigation Measures 5 imposed detailed fmancial and environmental mitigations on the Regional Mall Property, 6 including those related tofinancing,traffic, visual effects, sewer, and water, among other 7 impacts. The purpose of these Mandatory Mitigation Measures as adopted by the City was to 8 provide assurances to the City's residents that development within the 2001 SPA would mitigate 9 its impacts to the community. 10 15. On November 19,2003, the landowners of the Regional Mall Property, Zone A, 11 recorded a Ucense agreement, agreeing to mutual and contiguous parking within Zone A so that 12 all parking would be shared within tbe Regional Mall. • 13 16. On August 4, 2004, the City prepared an addendum to the 2001 EIR addressing 14 impacts to agricultural resources as well as a Mitigation MOiiitoring and Reporting Program 15 ("MMRP"). There has been no supplemental or subsequent environmental review for any 16 development on the Regional Mall Property in the dozen years since, and each development and 17 amendment has explicitly relied upon the 2001 EIR and MMRP. 18 17. On May 21,2007, the Wilton Rancheriafileda lawsuit against Department of the 19 Interior, Bureau of Indian Affairs ("BIA") to restore its tribal status. 20 18. On July 11, 2007, the Elk Grove City Council: held a public meeting regarding a 21 development plan review to build the Regional Mall, which was to be known as the "Elk Grove 22 Promenade." 23 19. On November 14,2007, the City and Elk Grove Promenade developer, General 24 Growth Properties, Inc., entered iiito an "Agreement Regarding Mall Fees and Infi-astmcture". 25 20. On December 9,2008, General Growth Properties, Inc.filedfor bankruptcy and 26 all process on the Elk Grove Promenade halted. Petitioners are informed and believe that 27 General Growth Properties, Inc. is an entity wholly owned by Real Party in Interest Howard 28 Hughes Corporation. VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 5 1 21. On June 8,2009, the Wilton Rancheria Tribe was restored to its federal 2 recognition status as a result of a settlement of the lawsuit described in Para. 16 above. On 3 August 4, 2009, the City of Elk Grove, along with Sacramento County,fileda motion to obtain 4 intervenor status as necessary parties in the lawsuit between the Wilton Rancheria and the BIA, 5 22. Sometime in 2009, Howard Hughes Corporation replaced General Growth 6 Properties, Inc. and its wholly owned subsidiary. Elk Grove Town Center, LP ["EGTC"], 7 assumed control of the Regional Mall Property. 8 23. OnJune 16,2011, the City, the County, and the Wilton Rancheria entered into a 9 Memorandum of Understanding (the "2011 MOU"), settling the motion to intervene ; The MOU 10 was established regarding "mutually respectful govemment-to-goverament relationship 11 regarding potential off-tmst impacts of Tribal Lands in Sacramento County." The 2011 MOU 12 deemed that the proposed casino/hotel would be compatible with the General Plan if it was the 13 least intensive use permitted by the General Plan. 14 24. On July 24,2012, Boyd Gaming and the Wilton Rancheria eriter into a private 15 agreement for the development of a casino/hotel, and sometime in 2012 the Wiltori Rancheria 16 opened its busiiiess development office in Elk Grove. 17. 25. On November 12,2013, the Wilton Rancheria submitted a resolution to initiate 18 the NEPA process for a fee-to-tmst and casino/hotel, comprising 282 acres. The resolution 19 prbpbsed a preferred site called the "Twin Cities Site" in the City of Gait (between Highway 99 20 and the Union Pacific Railroad tracks). No other site was identified. The Twin Cities ISite was 21 the preferred sitefi-omNovember 12,2013 until June 9,2016. Prior to June 9,2016, Petitioners 22 had no reason to believe that the casino/hotel was actually proposed and would be built in the 23 City of Elk Grove. All public notices indicated that the Gait site was the preferred site, and all 24 pubhc hearings and opportunities for the public to comment were held in Gait. 25 26. On January 24,2014, the City Attomey for Elk Grove wrote an e-inail to the BlA: 26 We are hearing rumors that the Gait site may no longer be the preferred location of the casino." 27 27. On Febmary 2014, the Department of the interior, Bureau of Indian Affairs 28 released the Wilton Rancheria Fee-to Trust Environmental Impact Statement ("EIS") Scoping VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 6 1 Report indicating that the City of Gah was the preferred site. In addition to the proposed Twin 2 Cities Site (including a reduced intensity casino/hotel version on this site), the EIS discussed two 3 other project altemative sites, the Tribal Rancheria Site in Wilton (the "Historic Rancheria Site") 4 and the City of Elk Grove, Regional Mall Site, referred to as Altemative F (the "Mall Site"). The 5 Twin Cities Site proposal was 282 acres and 376,500 square feet; the Historic Rancheria Site 6 proposal was 75 acres and 376,500 square feet; the Mall Site proposal was 28 acres and 381,000 7 square feet. 8 28. On February 27, 2014, Keith Gellerman of Summit Engineering, Inc., Who 9 Petitioners are informed and believe and thereon allege represented ttie gaming interests, wrote 10 an e-mail to Stephen Moore, Sacramento Area Sewer District, "Re: Wastewater Feasibility Study 11 for a Proposed Project". The e-mail described the project as a casino/hotel project (commercial), 12 on 28 acres (about 14 for building and 14 for parking), that, "This is 'Alternative F', so disregard 13 the proposed development in the City of Gait," which email was acknowledged by Darren 14 Wilson of the City of Elk Grove. 15 29. OnMarch3, 2014, an e-mail was sentfromKimley Hom, the casino/hotel EIS 16' traffic consultant to the City of Elk Grove, regarding the EIS traffic study, which identified 17 Altemative F, the Mall Site. 18 30. On March 11,2014, Keith Gellerman sent e-mails to the Sacramento Area Sewer 19 District: "I am working on a wastewater feasibility study for a proposed casino/hotel site near 20 Elk Grove. I need to know if the existing sewer main can handle the capacityfrointhe proposed 21 site and ah [sic] the estiinated connection and monthly fees. This is for a casino/hotel with 22 projected peakflowsof 320,000 gpd, with 250,000 gpd average...." 23 31. On March 14, 2014, Brett Long of Sacramento Area Sewer District responded, 24 calculating the estimated impacts of the casino/hotel: "Using these factors, the uses other than 25 the Casino would have a calculated estiinated impact of 238.065 ESDs, leaving the remaining 26 Casino areas bn Avater usage." 27, 32. On March 4,2014, the City responded to the Kimley Hom e-mail, scheduling a 28 conference call regarding the traffic study memorandum of assumptions involving the Elk Grove VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 7 1 Mall Site. On March 18,2014, a conference call was held with the EIS consultingfirmand the 2 City of Elk Grove regarding the casino/hotel traffic study memorandum of assumptions. 3 33. On March 19,2014, an employee of the Sacramento Area Sewer District also 4 responded to Keith Gellerman, stating "the planned development [casino/hotel] would generate 5 moreflowthan we anticipated and would likely require some capacity improvements". 6 34. On April 11, 2014, EGTCfiledan application with ttie City of Elk Grove 7 requesting an amendment to Zone A in the Lent Ranch SPA, the Regional Mall Property. The 8 stated purpose of this amendment was to convert Zoiie Afroma traditional high-end retail mall 9 to an outlet mall concept, referred to as "The Outlet Collection at Elk Grove." 10 35. On August 15,2014, EGTC was served with a Notice of Default ofthe 2001 11 Development Agreement by the City of Elk Grove. 12 36. On September 16, 2014, counsel for M & H Realty Partners, who were owners of 13 other property within the 2001 SPA, wrote a letter to the City objecting to the City's proposed 14 ordinance to amend the 2001 SPA to permit an outlet center and enter into a new development 15 agreement affecting only the Regional Mall Property. M & H Realty Partners wrote, in relevant 16 part, that they objected to 1) the conspiracy between the City and EGTC to circumvent the [2001 17 Development] Agreement and the [2001] SPA; 2) the improper process proposed to default 18 EGTC for the sole purpose of allowing EGTC to circumvent their obligations under the 2001 19 DA; 3) the dismption ofthe carefiil balance of land uses in the 2001 SPA; and lastly 4) alleged 20 that the City approval process violated CEQA. 21 37. On October 8,2014, the City adopted Ordinance 28r2014, amending the 2001 22 SPA, approving an amendment to the District Development Plan, and a Conditional Use Permit 23 for the Outlet Collection at Elk Grove. Although changes in Zone A were enacted as requested 24 by Real Property in Interest EGTC, nothing in the revised zoning removed the "Shopping Center 25 Designation" on the entire property, or the height restiictions. The shopping mall designation in 26 the amended 2014 SPA has no provision for gaming, tribal or otherwise, or hotel development, 27 and requires that all of Zone A is to be used for shopping mall purposes. The City also adopted 28 the Amended and Restated Agreement Regarding Regional Mall, Fees, and Infi^tmcture. A VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 8 1 tme and correct copy of Ordinance 28-2014 (without its exhibits) is attached hereto and 2 incorporated herein as Exhibit "A". 3 38. On October 22, 2014, the City adopted Ordinance 29-2014, approving the 2014 4 DA. In itsfindings,the City found that nofiirtherCEQA analysis was required for this change, 5 claiming that development plans for Phase 2 were unknown. The findings as part of the 6 Resolution explicitly acknowledged that the 2014 DA relied upon the approvals contained in the 7 2001 EIR, and found that the 2014 DA remained consistent with the Lent Ranch SPA. A tme 8 and correct copy of Ordinance 29-2014 is attached hereto and incorporated herein as Exhibit 9 "B". 10 39. As part ofthe 2014 SPA amendment and DA, Zone A - the Regional Mall - was 11 informally divided into two sections, referred to as "Phase 1" and "Phase 2". Phase 1 was to be 12 the Ouflet Collection at Elk Grove. Despite the multiple coordinated environmental review 13 efforts involving the City described above, the City stated in its findings of fact that Phase 2 had 14 not been proposed for development as part of the project description, and the characteristics of 15 Phase 2 are "undefined and subject to speculation", and therefore tbe 2014 DA was exempt from 16 review under CEQA. Petitioners are informed and believe, and thereon allege that the City staff 17 was actively engaged in providing data to gaming consultants related to the Draft EIS, which 18 identified Phase 2 as an altemative casino/hotel site Altemative F, and thus were aware that this 19 property was planned for a casino/hotel use. The 2014 revised DA and the amendments to the 20 Lent Ranch SPA encumbered all of Zone A, including Phase 1 "the Outlet Mall" and Phase 2 of 21 the property. 22 40. On October 29, 2014, M & H Realty Partners filed a Verified Petition for Writ of 23 Mandate against the City and Real Parties in Interest Elk Grove Town Center, LP, a Delaware 24 limited partnership; Elk Grove Town Center, L.L.C., a Delaware limited liability company; the 25 Howard Research and Development Corporation, a Maryland corporation; and Howard Hughes 26 Corporation, a Delaware corporation, for CEQA violations and breach ofthe 2001 DA. 27 41. In April 2015, the Elk Grove City Assistant Attomey requested that the Bureau 28 of Indian Affairs send all notices regarding the EIS for the casino/hotel to the City. VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 9 1 42. Between May and November, 2015, the application and plans for Outlook 2 Collection, Phase 1 of Zone A, went out for review to all agencies, including Sacramento County 3 Water Agency, Sacramento Sewer District, and Elk Grove Water District. Phase 2 on the maps 4 was shown as blank, and there was no indication in the submitted plans that Phase 2 is planned 5 for a casino/hotel, or that the Real Parties in Interest were actively engaging with the City 6 regarding a casino/hotel on the Phase 2 property. 7 43. On September 5,2015, a Joint Status Report on Conditional Settlement was filed 8 by the parties to the Petition for Writof Mandatefiledby M «& H Realty Partners, indicating that 9 the parties had reached a conditional settlement that included, in part, a revision to the 10 development agreement, which amendment was scheduled to be heard by the City and County 11 on September 9,2015. Based thereon, Petitioners believe that this lawsuit was settled sometime 12 in September 2015. 13 44. As summarized above in paragraphs 25 through 33, while the draft EIS was being 14 prepared and public indications were that the preferred site was the Twin Cities Site, documents 15 obtained sincefilingthe original Petition show that actions were being taken by the Real Parties 16 in Interest and the City to pennit the casiho/tiotel in Elk Grove on Phase 2 Zone A without 17 review by the public. 18 45. Petitioners are now informed and believe that City and Real Parties in Interest 19 intended, by denying knowledgie of plans to use Phase 2, to prevent the citizens bf Elk Groye 20 from meaningful participation in the City's hearings to amend the Leiit Ranch SPA and approve 21 the 2014 DA, and to encourage public belieif that Real Parties in Interest's preferred location 22 remained as Gait. Petitioners had no rieason to be aware of the level of anticipated planning for 23 Phase 2 of the Regional Mall Property Zone A, or simultaneous planning of Phase 2 for a 24 casino/hotel until after thefilingof the initial Petition. 25 46. On January 5,2016, the casino/hotel EIS was reviewed by the Sacramento County 26 Water Agency. The water agency noted that facilities might need to change due to inclusion bf a 27 12-story hotd. 28 /// VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 10 1 47. On January 29, 2016, a public EIS meeting was held in the ChaboUa Community 2 Center in Gait regarding the casino/hotel project, and discussions focused on Gait as ttie 3 preferred location. 4 48. On March 10,2016, the Cotmty ofSacramento submitted a comment letter 5 regarding the Draft EIS, stating that the Draft EIS does not apply Califomia or local standards. 6 49. On March 23, 2016, the Tribal Chairman for the Wilton Rancheria informed 7 Sacramento County in an e-mail: "... .After several months of review, the Elk Grove site has the 8 least enviromnental effects", and on March 30,2016, a meeting was held withtiieWilton 9 Rincheria, the City of Elk Grove, and County representatives. The citizens of Elk Grove were 10 not informed of these communications and meetings. - 11 50. Petitioners are informed and believe that begiiming at least by April 2016, Boyd 12 Gaming arranged for special meetings in Las Vegas for Elk Grove Economic Development 13 Director and then Mayor Gary Davis and the Wilton Rancheria Tribal Chairman to make sure 14 they all knew of City's support, as stated in intemal emails. 15 51. On May 31,2016, Real Party in Interest EGTC, Boyd Gaiiiing, aiid the Wilton 16 Rancheria entered into an option agreement to sell Phase 2 of the Regional Mall Property to the 17 Wilton Rancheria. The Memorandum of Option Agreement was recorded on Jtme 7,2016, in 18 Sacramento County Official Records, as Document No. 20160607, at page 0666. 19 52. On June 8,2016, Sacramento Countytielda hearing regarding a new MOU with 20 the Wilton Rancheria, which provided, among other things, for variousfiindingpayments, ,21 especially related to traffic, and expressly provided that if the Cotmty discovers other impacts 22 and notifies the Wilton Rancheria, that they will address such impacts. 23 53. On June 9,2016, the Wilton Rancheria aimounced at their tribal offices in Elk 24 Grove that, instead of proceeding with Altematives A, B, C, D, or E ofthe Draft EIS, Ph^e 2 of 25 the Regional Mall Property, Altemative F - the Mall Site - of the Draft EIS, was now the 26 preferred location for its proposed tribal gaming casino/hotel and entertainment ceiiter. No 27 public hearing was held by the City or the Bureau of Indian Affairs in Elk Grove or anywhere 28 else regarding the change of location. No public hearing noticed by the City addressed the VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 11 1 impacts of a tribal casino and hotel on the Regional Mall Site. This was a sudden shift, as all 2 prior public notices and environmental documents prepared for the casino/hotel as part of the 3 Draft EIS, which commenced m 2013, emphasized the casino/hotel being developed in the City 4 of Gait, and public meetings and hearings regarding the Wilton Rancheria's plans for its 5 casino/hotel were held in Gait. 6 54. From June 9, 2016 to the present, the City, the Real Parties in Interest, and BIA 7- for the Wilton Rancheria engaged in swift action to ensure that the Phase 2 Property would 8 transitionfroman Outlet Mall to a casino/hotel and gaming facility. All of this was done .9 suddenly and without any meaningful notice to the Petitioners and residents of the City of Elk 10 Grove. 11 55. On June 14, 2016, a new Memorandum of Understanding was signed between the 12 County of Sacramento and the Wilton Rancheria. This new MOU indicated that it would cover 13 either the Twin Cities Site or the Regional Mall Site. 14 • 56. On June 30, 2016,21 days after the Wilton Rancheria announced the shift in 15. location, the Wilton Rancheriafiledthe fee-to-tmst application, with the BIA regarding the 16^ Ptiase 2 property. The Regional Mall Site is identified as 28 acres in the EIS documents; 17 tiowieveri subsequent conveyance documents regarding the fee-to-trust application identify a 35- 18 acre site. The actual site conveyed into Trust does not match that area identified in the EIS 19 ^ documents, as it contains 7 extra acres. .20 57. In August 2016, die Sacramento County Water Agency ["SCWA"] reviewed tiie ,21.- Draft EIS and indicated that it would perform a detailed environmental analysis at thetimeof 22 water improvenient plan submittal. As offilingthis Amended Petition, Petitioners have fotmd 23 no indication that capacity improvements as previously requested by the Sewer District and 24 Sacramento County Water Agency were incorporated into the Final EIS for the Elk Grove Mall 25- Ibcation. These concems expressed by the sewer and water agencies were not called out in the 26 DEIS or FEIS and confirm that water and sewer service to the proposed hotel/casino was not 27 reviewed by SCWA at the time the DEIS or FEIS was released to the public. 28 /// VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT -12 1 58. On August 16,2016, the Elk Grove Planning Commission considered a First 2 Amendment to the 2014 DA, and during the public hearing stated that the purpose of the 3 Amendment was to allowtitleto Phase 2 to be taken into Tmst. 4 59. On September 28, 2016,tiieCity of Elk Grove passed Resolution No. 2016-183, 5 approving a new Memorandum of Understanding (the "2016 MOU") with the Wilton Rancheria, 6 and claimed the 2016 MOU was CEQA exempt. The 2016 MOU provided for various cash 7 payments as mitigation, especially fpr traffic and tax loss. No public meetings were held to 8 review the basis of mitigation, or to provide details regarding how the cash payments may relate 9 to any mitigation ostensibly identified by the City. The Resolution acknowledged that the 10 purpose of the 2016 MOU was so that the Regional Mall property could be put into Trust for 11 purposes of building a casino/hotel. The Resolution referenced the Draft EIS which focused on 12 Gait, and m which the Elk Grove Mall site was only Altemative F, and did not acknowledge that 13 Gait was the preferred location at all times relevant during the public review process, and that the 14 City of Elk Grove was not identified as the preferred site until the Final EIS stage in December, 15 2016. The Resolution stated that the casino/hotel is anticipated to include a 608,756 square foot 16 casino-resort and a 12-stbry and apprbximately 302 rborn hotel tower, including a conventibn 17 center, with on-site parking, as described in ttie draft EIS. This casino/hotel facility is an 18 unprecedented and drastic changefromthe regional outlet mall submissions with the 2014 DA, 19 and amendments to the Lent Ranch SPA, which was to include 775,000 total square feet of outlet 20 mall building, with 689,000 being gross leasable area with a maximum height of 100 feet: At tbe 21 tiine the 2016 MOU was adopted by the City of Elk Grove, the casino/tiotel propertytiadnot 22 been placed into Trust, and thus remained subject to the City's fiill jurisdiction and control. 23 60. Tbe 2016 MOU included both non-recurring and recturing payment plans, but 24 there is no public economic analysis associated with these payments, and it is unclear how the 25 payments are related to the actual expenses and costs of the casino/hotel to the City. There is 26 also no analysis of what the additional trafSc unpacts related to expanded use of the Regional 27 Mall Site over shopping center by the proposed casino/hotel may be, and whether planned 28 mitigation payments adequately addressed such impacts. There is likewise no explanation ofthe VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 13 1 Wilton Rancheria's compliance with air quality management plans. 2 61. On September 29,2016, in e-mails with Sacramento Area Sewer District and the 3 City regarding the casino/hotel proposal,fivemonths before the proposed property was taken 4 into Tmst, the City emailed that "we have no land use or approval authority. Per the EIS, the 5 Wilton Rancheria is required to enter into contract with Sac Ai-ea Sewer District. May ask for 6 improvements to the pump station because the outflow exceeds the designflowfor the property." 7 62. On October 26,2016, the City passed Ordinance 23-2016, the First Amendment 8 to the 2014 DA, at ttie purported request of EGTC, to release the 2014 DA as an encumbrance to 9 Phase 2, ttie casino/hotel property. The only stated purpose for this was to allow the Department 10 ofthe Interior to take the property into Tmst to allow for the casino/hotel to be built. The 11 Ordinance would have become official 30 days after passage. 1,2 63. On November 9,2016, the First Amendment to the 2014 DA was recorded, prior 13 to the passage of 30 days. 14 64. On November 17,2016 - also prior to the 30-day effective date for the First 15 Ameridnient to the 2014 DA - BIA issued a Notice of Land Application to take Casino site into 16 tmst for benefit of the Wilton Rancheria. 17 65. On November 21,2016, a referenduiri petition wasfiledwith the City Clerk. The 18 effect of the referendum was to suspend the First Amendment to the 2014 DA, meaning that the 19 2014 DA was still infiillforce and effect against all of Zone A, including Phase 2, the proposed 20 casino/hotel property. 21 : 66. On November 23, 2016, ttie instantPetition wasfiledby STAND^^^ 22 CALIFORNIA! and residents of Elk Q-ove challenging Ordinance 23-2016, First Amendment to 23 the 2014 DA, and seeking to compel repeal of the First Amendment; to the 2014 DA. Petitioners 24 contend thatfromand after thefilingof the referendum petition ttie effect of the First 25 Amendment was suspended, arid that City's efforts to remove the 2014 Development Agreement 26 from Phase 2 were ineffective. 27- Ill 28 III VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 14 1 67. On December 16, 2016, Notice of Final EIS for Casino identifying the Elk Grove 2 Regional Mall Site was filed mtiieFederal Register-BIA Notice 81 Fed. Reg. 90379; EPA 3 Notice 81 Fed. Reg. 91169: 4 68. On December 23,2016, Real Party in Interest EGTC, with the concurrence of the 5 City of Elk Grove, recorded a series of lot line adjustments, the apparent effect of which was to 6 define Phase 2 as a specific lot or lots in preparation for transfer to Boyd Gaming and the Wilton 7 Rancheria. This action was authorized by the City witiiout public notice or hearing. 8 69. On January 9, 2017, the City recorded a notice of release of recorded Nbtice of 9 Conditibnal Partial Release of Recorded Mitigation Monitoring and Reporting Program for the 10 Lent Ranch Maricetplace. The effect of this release was to remove the Mandatory Mitigation 11 Measures approved as part of the 2001 SPA EIR from the Phase 2 casino/hotel property. Again, 12 this action was taken by the City without a hearing and without any public notice. Petitioners 13 contend that at alltimesprior to February 10,2017, Phase 2 remained property subject to the 14 jurisdiction of the City and County, subject tb the 2001 SPA EIR and its MMRP restrictions, the 15 2014 Amendments tp the Lent Ranch SPA, and the 2014 DA. A tme and correct copy of this 16 release is attached hereto and incorporated herein as Exhibit ' ' C . 17 70. On January 9,2017, a grant deedfromEGTC to themselves was filed, apparentiy 18 to consummate the lot line adjustinents recorded on December 23,2016. 1,9 71. On January 9,2017, a Covenant'Agreement Access-Parking Agreement between 20. EGTC and the City of Elk Grove was filed, indicating that all fees for parking will be paid from 21 Phase 1 property, the Outlet Mall, instead of ail portions of Zone A, effecting a release of Phase 22 2 property from the payment of parking fees to the City. No hearing or public notice of the City's 23 decision to release all fees for parking to be collected against the Phase 2 property was held. 24 72. On January 11,2017, a First Amendment to the Parking License Agreement was 25 recorded, removing the casino/hotel property from the Parking License Agreement recorded in 26 2003 and amended in 2014. No hearing or public notice of the City's decision to release the 27 Parking License Agreement from Phase 2 was held, and no public discussion of the financial 28 implications of either the Covenant or the Release was held. VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 15 1 73. On January 11, 2017, the referendum to repeal Ordinance 23-2016, the First 2 Amendment to the 2014 DA, was certified by the City Council upon recommendation of the City 3 Clerk. 4 74. On January 19,2017,tiieRecord of Decision ("ROD") was signed by Principal 5 Deputy Assistant Secretary - Indian Affairs ofthe Department of Interior, Bureau of Indian 6 Affairs, approving taking the land described as Phase 2 into Tmst. This approval was not 7 published in the Federal Register, and was released after hours in Washington D.C. 8 75. Earlier on the same day, on Jariuary 19,2017, EGTC recorded the conveyance of 9 the Phase 2 property to Boyd Gaming and the Wilton Rancheria. The deed was executed on 10 January 12, 2017. 11 76. On Februaiy 5, 2017, the fu^st reading oftiierepeal of Ordinance 23-2016, the 12 First Amendment to the 2014 DA, was held in the City of Elk Grove, and adopted. 13 77. On Febmary 10,2017, The Department bf Interior accepted the conveyance of the 14 Phase 2 propertyfromBoyd Gaining and the Wiltbh Rancheria, placing the property into Tmst. 15 78. On Febmary 21,2017, Stand Up for California!, Patty Johnson, Joe Teixeira, and 16 others (collectively, "Citizens'")filedan administrative ajppeat of the ROD with the Interior 17 Board of Indian Appeals ("Board"). Citizens requests that the Board grait preliminary relief on 18 an expedited basis, ordering BIA to removetitleto the propertyfiomtmst pending the 19 administrative appeal, on the grounds that BIA violated its own regulations by acquiringtitleto 20 the property in tmst on the basis of a non-final; agency decisipn,, without coinplying ,witti notice 21 requirements and without Waiting the mandatory 30 day period to allow Citizens tofiletheir 22 administrative appeal. 23 79. On Febmary 22, 2017, Ordinance 23-2016,tiieFirst Amendment to the 2014 DA, 24 was formerly repealed by the City Council as a result ofthe certified referendum. 25 80. By Order diated February 24,2017, the Board ordered briiefing on whether the 26 ROD isfinalfor the Department of the Interior. That proofing will conclude bri or before March 27 31,2017. 28 /// VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 16 1 81. From and at alltimesafter 2001, Petitibners and the residents bf Elk Grbve were 2 led to expect a shopping mall, and then later an outiet mall, and all detailed environmental 3 processes commencing in 2001 identified shopping center uses for Zone A. The City has now 4 permitted a planned substitution of a more intense use - a casino/hotel use on the northem 5 portion of the site [Phase 2] - with little notice to the public, and with no eiivironmental or 6 economic review or analysis conducted by the City of the comparative impacts of a casino/hotel 7 as to that anticipated by the 2001 EIR, all to the detriment of Petitioners and the residents and 8 taxpayers of the City of Elk Grove. 9 82. The City of Elk Grove prbvided no details in'any kind of setting which provided 10 Petitioners and the residents of Elk Grove any type of assurance that the enviroiimental analysis 11 prepared in the Final EIS adequately addressed impacts as required by Califomia law. Two 12 years of environmental review went into the site analysis in Gait, andfivemonths elapsed 13 between the Tribe's notice of change of location and release of the Final EIS E)eicerriberl 6,2016 14 with the Elk Grove site as the substituted Preferred Altemative. There are no assurances to 15, Petitioners and the residents and taxpayers: 16 a) That either the identified traffic impacts or the surroimding traffic infrastructure can 17 support the increased traffic burdens created by the casino/hbtei; 18 b) That there is sufficient water or sewer capacity for the casino/hotel witiiout creating a 19 burden totiieresidents, as the Final EIS contains no assuriance ttiat the facilities for 20 the proposed casino/hotel are readily available; 21 c) That there are siifficient sources and revenue identified in the 201(5 MOU to mitigate 22 the negative social impacts of a casino/hotel, such as problem gambling; 23 d) That there will be adequate parking for the casino/hotel, and that overflow parking 24 will not be a burden on surrotmding neighboihbbds and business; and 25 e) That the Tribal contributions identified as mitigation in the September 29,2016 MOU 26 are sufficient to adequately address any mitigations reasonably necessary to respond 27 to any of the impacts such tmplanned develop may cause. 28 Ill ' . VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT - 17 1 83. Petitioners are all active community members who are concemed about the 2 casino/hotel impacts, and were all denied notice and opportunity to participate in the casino/hotel 3 approval process described above. The actions complained of in this Amended Petition were 4 participated in or permitted by the City of Elk Grove prior to the February 10,2017 fee-to-tmst 5 approval process, when the City still had full jurisdiction control over the casino/hotel property. 6 FIRST CAUSE OF ACTION - CITY BREACH OF ZONING ORDINANCE [GOVERNMENT CODE S65860] 7 8 84. Petitioners and Plaintiffs re-state and re-plead all allegations set forth above, as 9 though fiilly set fortii herein. 10 85. Government Code §65860 provides that a zoning ordinance must be consistent 11 with the General Plan or amended so that it is consistent. The Lent Ranch SPA, as amended in 12 2014, provides ttiat all of Zone A, including that northem portion now planned to be used as a 13 tribal casino and hotel, can pnly be used for shopping center uses. Here, the proposed 14 casino/hotel is not consistent with the zoning ordinance, and no re-zone was ever conducted. 15 86. Zoning authority to a general law city like Elk Grove derivesfromthe Califomia 16 Constitution, Article 11, §7. The Lent Ranch iSPA was amended in 2014, but the amendments 17 did not change the explicit shopping center use, the height limitations for all buildings, and 18 integrated parking and access planning. Petitioners have found no evidence of attempted 19 rezonirig ofthe property by the City of Elk Grove since 2014 to permit such planned casino/hotel 20 use. Lent Ranch SPA remains effective against all of Zone A, including Phase 2. 21 87. Under the 2001 Lent Ranch SPA, the entire 295-acre area was zoned as districts, 22 of which the 103 acres are now subject to the amended 2014 SPA and 2014 DA, which remained 23 zoned for shopping center use. Nothing contained in the 2014 Amended Lent Ranch SPA 24 changes exclusive use of Zone A from shopping center to any other type of use. As per the 25 City's adoption of the February 22,2017, Repeal by Resolution of Ordinance 23-2016, the First 26 Amendment tb the 2014 DA, the 2014 DA continues to restrict the property conveyed to the 27 federal govemment in tmst for ttie Wilton Rancheria. 28 Ill VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT -18 1 88. The casino/hotel proposed use is not consistent with the City's zoning under the 2 2014 SPA, and no re-zone has been done by the City. Ttie proposed casino/hotel violates the 3 City's zoning ordinances in at least the following ways: 1) the hotel proposed as part of the 4 casino is at least 100 feet over maximum height for the district; 2) parking design disconnected 5 from the balance of the Outlet Mall is in violation of the mall plannirig design; and 3) neither 6 proposed use is permitted under the existing zoning. 7 89. The City is obligated to comply with its own zpiiing ordinance, or conduct a re- 8 zoning hearing witti notice to the public and consideration of the environmental effects of such 9 previously unanticipated changes in land use, neither of which has occurred. 10 90. The City has also violated all notice requirements for amendments of zoning 11 ordinances which affect the permitted use of the property by failing to hold hearings on the 12 necessary amendment removing the shopping center only restriction; and hasfriiledto conduct 13 tiie necessary CEQA review as required by Public Resources Code §§ 21080, 21080.3, 21080.4, 14 21151, and Govemment Code § 65860. 15 91. The City and/or Real Parties in Interest should be compelled to comply with the 16" City's zoning ordinance and planning documents with respect to the property; or, in the 17 altemative, hold public hearings to re-zone the property. 18 SECOND CAUSE OF ACTION - BREACH OF THE 2014 DEVELOPMENT AGREEMENT 19 20 92. Petitioners and Plaintiffs re-state and re-plead ail allegations set forth above as 21 thotigh fully set forth herein. 22 93. The 2014 DA, adopted by City of Elk Grove after misleading Petitioners and the 23 public by claiming that Phase 2 of Zone A could not be evaluated because its intended use was 24 unknown to the City, provides in relevant part that: 25 a) 2014 DA, Section 4.5, Reserved Powers, provides, in substantial partj that the City 26 reservesrightsto grant or deny land use applications for the Property; approve 27 subdivision maps, parcel maps, or lot line adjustments; or adopt and apply regulations 28 mandated by Law or necessary to protect the public health and safety. VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT -19 1 b) 2014 DA, Section 5.4, Mitigation of EIR Impacts, provides, in substantial part, that 2 Developer (herein Real Party in Interest EGTC) shall at its own costtimelysatisfy 3 and comply with Mitigation Measures adopted by the City Coimcil as part of the 2001 4 EIR. 5 c) 2014 DA, Section 7.3, Amendment of Project Approvals, provides, m substantial part 6 that any amendment of Project Approvals related to the permitted use of the Property, 7 density or intensity of use of the Project; maximum height or size of the proposed 8 buildings, shall require an amendment of tliis Agreement iqiproved by the City 9 Council. 10 d) 2014 DA, Section 10.2-10.4 Right to Assign, provides, in substantial part, that no 11 assignment shall be made until the City approves ofthe assignment