Preview
1 DONALD B. MOONEY (SBN 153721)
Law Offices of Donald B. Mooney
2 417 Mace Boulevard, Suite J-334
Davis, California 95618
3 Telephone: 530-758-2377
4 Facsimile: 530-212-7120
Email: dbmooney@dcn.org
5
Attorneys for Petitioners
6 Protect Roseville Neighborhoods and
Paseo Del Norte Homeowners Association
7
8
9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF PLACER
11
PROTECT ROSEVILLE NEIGHBORHOODS, )
12 an unincorporated association; and PASEO DEL
)
NORTE HOMEOWNERS ASSOCIATION, a ) Case No.
13
California Corporation )
14 ) VERIFIED PETITION FOR
Petitioners ) WRIT OF MANDATE AND
15 ) COMPLAINT FOR
v. ) DECLARATORY AND
16 ) INJUNCTION RELIEF
CITY OF ROSEVILLE; CITY COUNCIL OF )
17 THE CITY OF ROSEVILLE; and DOES 1 to 20, ) [Action under the California
18 ) Environmental Quality Act,
Respondents ) Pub. Resources Code, § 21000 et
19 ) seq.]
)
20 NORR ASSOCIATES, INC.; INTER-CAL REAL)
ESTATE CORPORATION, INC; GROCERY )
21 OUTLET; and DOES 21-40 )
)
22 Real Parties in Interest )
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27
28
1 Petitioners Protect Roseville Neighborhoods and the Paseo Del Norte Homeowners
2 Association petition this Court for a Writ of Mandate directed to Respondents City of Roseville
3 and City Council of the City of Roseville (“Respondents”). Petitioners challenge Respondents’
4 July 19, 2023 approval of the Design Review Permit (File # PL22-0205) for Grocery Outlet and
5 Tentative Parcel Map to subdivide the existing parcel into three lots on the grounds that
6 Respondents failed to comply with the requirements of the California Environmental Quality
7 Act (“CEQA”), Public Resources Code section 21000 et seq. Respondents’ approval of the
8 Project included a determination that the Project is categorically exempt from CEQA’s
9 requirements pursuant to CEQA Guidelines section 15332, otherwise known as the in-fill
10 exemption. In order to qualify for an exemption under section 15322 development projects
11 must meet the certain criteria, including that the approval of the project would not result in any
12 significant effects relating to traffic, noise, air quality, or water quality. The record
13 demonstrates that the project will impact traffic and noise.
14 Additionally, the Project description the City provided to the public was incomplete and
15 inconsistent with respect to the development of Parcel 3. Additionally, in approving the Project
16 the City failed to consider the whole of the action as it subdivided Parcel 3 for a future project
17 but provided no environmental review for the reasonably foreseeable development of Parcel 3.
18 PARTIES
19 1. Petitioner Protect Roseville Neighborhoods is an unincorporated association whose
20 mission is to protect and enhance the environment and community in the City of Roseville.
21 Members of Protect Roseville Neighborhoods have a direct and substantial beneficial interest in
22 ensuring that Respondents comply with CEQA. Members of Protect Roseville Neighborhoods
23 live, work and/or recreate in the City of Roseville and throughout the areas that will be
24 impacted by the Project. Protect Roseville Neighborhoods and it members, have long-standing
25 interests in the area adjacent to the Project site, as well as in the surrounding community and
26 County as a whole. Protect Roseville Neighborhoods’ members’ environmental, aesthetic and
27 property interests will be severely injured if the adoption of the Project is not set aside pending
28 full compliance with CEQA and all other applicable laws. Petitioners’ members enjoy the City,
VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 2
1 County and State’s natural resources. The interests of Protect Roseville Neighborhoods’
2 members will be harmed by the Project unless court action is taken and Petitioners’ requested
3 relief is granted. Petitioner Protect Roseville Neighborhoods brings this petition on behalf of
4 all others similarly situated who are too numerous to be named and brought before this Court as
5 petitioners. Petitioner and its members are within the class of persons and entities beneficially
6 interested in, and aggrieved by, the acts of Respondents as alleged below. Protect Roseville
7 Neighborhoods’ members participated in the administrative processes herein, with many
8 members submitting comment letters and objecting to the Project. Protect Roseville
9 Neighborhoods and its members have exhausted their administrative remedies. Accordingly,
10 Petitioner Protect Roseville Neighborhoods has standing to sue.
11 2. Petitioner Paseo Del Norte Homeowners Association is a California non-profit,
12 mutual benefit, common interest development corporation. Members of Paseo Del Norte
13 Homeowners Association have a direct and substantial beneficial interest in ensuring that
14 Respondents comply with CEQA. Members of Paseo Del Norte Homeowners Association live,
15 work and/or recreate in the City of Roseville in the County of Placer in the areas that will be
16 impacted by the Project. Paseo Del Norte Homeowners Association and it members, have long-
17 standing interests in the area adjacent to the Project site, as well as in the surrounding
18 community and County as a whole. Paseo Del Norte Homeowners Association’s members’
19 environmental, aesthetic and property interests will be severely injured if the adoption of the
20 Project is not set aside pending full compliance with CEQA and all other applicable laws.
21 Petitioner’s members enjoy the City, County and State’s natural resources. The interests of
22 Paseo Del Norte Owners Association’s members will be harmed by the Project unless court
23 action is taken and Petitioners’ requested relief is granted. Petitioner Paseo Del Norte
24 Homeowners Association brings this petition on behalf of all others similarly situated who are
25 too numerous to be named and brought before this Court as petitioners. Paseo Del Norte
26 Homeowners Association and its members are within the class of persons and entities
27 beneficially interested in, and aggrieved by, the acts of Respondents as alleged below. Paseo
28 Del Norte Homeowners Association’s members participated in the administrative processes
VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 3
1 herein, with many members submitting comments and objecting to the Project. Petitioner and
2 its members have exhausted their administrative remedies. Accordingly, Petitioner Paseo Del
3 Norte Homeowners Association has standing to sue.
4 3. Respondent City of Roseville is a political subdivision of the State of California
5 and a body corporate and politic exercising local government power. City of Roseville is the
6 CEQA “lead agency” for the Project. As lead agency for the Project, the City of Roseville is
7 responsible for preparation of an environmental document that describes the Project and its
8 impacts, and if necessary evaluates mitigation measures and/or alternatives to lessen or avoid
9 any significant environmental impacts. The City also has principal responsibility for
10 determining whether projects within its jurisdiction are consistent with applicable land use
11 ordinances and other applicable laws.
12 4. Respondent City Council of the City of Roseville is a legislative body duly
13 authorized under the California Constitution and the laws of the State of California to act on
14 behalf of the City of Roseville. Respondent City Council of the City of Roseville is responsible
15 for regulating and controlling land use within the City including, but not limited to,
16 implementing and complying with the provisions of CEQA and the CEQA Guidelines, 14
17 California Code of Regulations, title 14, section 15000 et seq. (the “Guidelines”), applicable
18 land use ordinances and other laws. As the elected representatives of the people of the City, the
19 City Council establishes overall City priorities and sets policy. The City Council is the
20 governing body of the County and is ultimately responsible for reviewing and approving or
21 denying the Project.
22 5. Real Party in Interest Norr Associates, Inc, is a California corporation. The City of
23 Roseville’s July 20, 2023 Notice of Exemption identifies Norr Associates as the Project
24 applicant.
25 6. Real Party in Interest Inter Cal Real Estate Corporation, Inc. is a California
26 corporation. The City of Roseville’s July 20, 2023, Notice of Exemption identifies Inter-Cal
27 Real Estate Corporation, Inc. as the owner of the Project.
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VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 4
1 7. Real Party-in-Interest Grocery Outlet is a California Corporation. Grocery Outlet
2 intends to operate a Grocery Outlet store at the Project site.
3 8. Petitioners are unaware of the true names and identities of DOES 1 through 20 and
4 21 through 40, inclusive, and sue such unnamed Respondents and Real Parties in Interest
5 respectively, by their fictitious names. Petitioners are informed and believe, and based thereon
6 alleges, that fictitiously named Respondents and Real Parties in Interest are responsible for all
7 acts and omissions described above. When the true identities and capacities of Respondents and
8 Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary,
9 amend this Petition to include such identities and capacities.
10 JURISDICTION AND VENUE
11 9. This Court has jurisdiction over the matters alleged in this Petition pursuant to
12 Code of Civil Procedure section 1094.5, and Public Resources Code section 21168. In the
13 alternative, this Court has jurisdiction pursuant to Code of Civil Procedure section 1085 and
14 Public Resources Code section 21168.5.
15 10. Venue for this action properly lies in the Superior Court for the State of
16 California in and for the County of Placer pursuant to sections 393, 394 and 395 of the Code
17 of Civil Procedure.
18 BACKGROUND FACTS
19 A. THE PROJECT AND PROJECT SITE
20 11. The North Roseville Specific Plan (“NRSP”) includes five distinct neighborhoods
21 (A, B, C, D, E). The project site is located on the northern boundary of neighborhood D. The
22 project site is on a portion of parcel WW-40 with a land use designation of Community
23 Commercial (“CC”).
24 12. The neighboring parcel WW-41 to the east, which is developed with the Paseo del
25 Norte community is designated for Community Commercial with a Special Area overlay that
26 restricts some uses, such as gasoline sales. On February 1, 2006, the City Council adopted a
27 Rezone for NRSP parcel WW-41 to modify the zoning designation from CC/SA to Multi-Family
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VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 5
1 Residential (R3/DS-NR) for the 125-unit Paseo del Norte development. The City modified the
2 land use from CC to Medium-Density Residential at 12.9 units/acre.
3 13. The project site is located at 1751 Pleasant Grove Boulevard and is identified as
4 Parcel WW-40 in the NRSP area. The site is approximately 3.1 acres in size. The site has a
5 zoning and General Plan land use designation of CC, and is surrounded by the Paseo Del Norte
6 single-family residential subdivision to the east, open space parcels containing the Western
7 Area Power Administration power line corridor to the south, an existing CVS Pharmacy to the
8 west, and an undeveloped Community Commercial parcel across Pleasant Grove Boulevard to
9 the north.
10 14. The Project consists of construction of a 16,000 square-foot grocery building and a 4,600
11 square-foot freestanding pad building on parcel WW-40. The Project also includes a Tentative Parcel
12 Map to subdivide the existing parcel into three (3) lots.
13 B. APPROVAL OF THE PROJECT
14 15. On May 11, 2023 the Planning Commission approved the Project. As part of the
15 approval, the Planning Commission held that the Project is categorically exempt from CEQA’s
16 environmental review requirements per CEQA Guidelines section 15332 pertaining to infill
17 development projects.
18 16. On May 12, 2023, Petitioner Protect Roseville Neighborhood timely appealed to
19 the City Council the Planning Commission’s approval.
20 17. On July 19, 2023, the City Council conducted a public hearing on the appeal and
21 Project. The City Council adopted Resolution No. 23-309 denying the appeal of the Planning
22 Commission’s May 11, 2023 approval of the Project.
23 18. On July 20, 2023, Respondents filed a Notice of Exemption with the County Clerk
24 of Placer County as provided for in Public Resources Code, section 21152.
25 EXHAUSTION OF ADMINISTRATIVE REMEDIES
26 AND INADEQUACY OF REMEDY
27 19. Petitioners have performed any and all conditions precedent to filing the instant
28 action and have exhausted any and all available administrative remedies to the extent required by
VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 6
1 law.
2 20. Petitioners have complied with the requirements of Public Resources Code, section
3 21167.5 by mailing written notice of this action to the Respondents. A copy of this written
4 notice and proof of service are attached as Attachment A to this Petition for Writ of Mandate.
5 21. Petitioners have complied with Public Resources Code section 21167.6 by
6 concurrently filing a request concerning preparation of the record of administrative proceedings
7 relating to this action.
8 22. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law
9 unless this Court grants the requested writ of mandate to require Respondents to set aside their
10 approval of the Project. In the absence of such remedies, Respondents’ approval will remain in
11 effect in violation of State law.
12 23. This action has been brought within 35 days of the filing of the Notice of
13 Exemption as required by Public Resources Code section 21167(d).
14 STANDING
15 24. Petitioners have standing to assert the claims raised in this Petition because
16 Petitioners’ aesthetic, environmental and property interests are directly and adversely affected by
17 Respondents’ approval of the Project.
18 ARBITRARY AND CAPRICIOUS ACTIONS
19 25. Petitioners bring this action on the basis, among others, of Government Code
20 section 800, and other applicable laws, which award Petitioners’ attorneys’ fees in actions to
21 overturn agency decisions that are arbitrary and capricious, such as the decisions in question in
22 this action.
CAUSESOF ACTION
23
Abuse of Discretion
24 Violation of CEQA, Public Resources Code, § 21000 et seq.
25 26. Petitioners reallege and incorporate herein, as if set forth in full, each and every
26 allegation contained in paragraphs 1 through 25.
27 A. CEQA REQUIRES THE AGENCY EVALUATE THE WHOLE OF THE ACTION
28 27. CEQA requires that all foreseeable uses of a project, the “whole of the action”, be
VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 7
1 analyzed in the same environmental review document in order to preclude impermissible
2 “piecemealing” of environmental review. (CEQA Guidelines § 15378; Rio Vista Farm Bureau
3 Center v. County of Solano (1992) 5 Cal.App.4th 351, 369-370.) Thus, a CEQA project must
4 include “the whole of an action” that has a potential for resulting in either a direct physical
5 change in the environment or a reasonably foreseeable indirect physical change in the
6 environment, and encompasses the activity being approved. (CEQA Guidelines, § 15378.) A
7 project is not each separate governmental approval when there are several approvals by one
8 agency or review by several agencies. (Guidelines, §15378.) Guidelines section 15126
9 provides that “[a]ll phases of a project must be considered when evaluating its impact on the
10 environment...”
11 28. CEQA requires that all phases of a project must be considered as the “whole of the
12 action,” so that “environmental considerations do not become submerged by chopping a large
13 project into many little ones, each with a potential impact on the environment, which
14 cumulatively may have disastrous consequences.” (Bozung v. Local Agency Formation
15 Commission of Ventura County (1975) 13 Cal.3d 263, 283–284, Burbank-Glendale-Pasadena
16 Airport Authority v. Hensler (1991) 233 Cal.App.3d 577.) It has been a longstanding principle
17 that the project description must include future activities.
18 29. In an effort to have the Project qualify for an infill exemption, the development of
19 Parcel 3 was “removed” from the Project. The Project includes a tentative map to subdivide the
20 existing parcels into three (3) lots, which includes Parcel 3. Thus, Parcel 3 remains part of the
21 Project since it is part of the subdivision, yet there is no environmental review for the
22 development of Parcel 3 and the reasonably foreseeable uses for Parcel 3. City staff
23 acknowledged that it is reasonably foreseeable that Parcel 3 would be developed in the future,
24 but elected not to develop that Parcel 3 at this time because the proposed use would require a
25 conditional use permit and thus the remainder of the project would not qualify as an infill
26 exemption.
27 30. The City’s approach violates CEQA’s mandate that a large project shall not be
28 divided into little ones because such division can improperly submerge the aggregate
VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 8
1 environmental considerations of the total project. (See Bozung v. Local Agency Formation
2 Commission, supra, 13 Cal.3d at 283-84.)
3 B. THE CITY RELIED UPON AN INCONSISTENT PROJECT DESCRIPTION
4 31. “An accurate, stable and finite project description is the sine qua non of an
5 informative and legally sufficient [CEQA document].” (County of Inyo v. City of Los Angeles
6 (1977) 71 Cal.App.3d 185, 193.) CEQA requires a complete project description to ensure that
7 all of the project’s environmental impacts are considered. (City of Santee v. County of San
8 Diego (1989) 214 Cal.App.3d 1450, 1454; see also Communities for a Better Environment v.
9 City of Richmond (2010) 184 Cal.App.4th 70, 82.) A curtailed, enigmatic or unstable project
10 description draws a red herring across the path of public input.” (San Joaquin Raptor Rescue
11 Center v. County of Merced (2007) 149 Cal.App.4th 645, 656; quoting County of Inyo, supra,
12 71 Cal.App.3d at 197-198.) The adequacy of a project description is closely linked to the
13 adequacy of the impact analyses. If the description is inadequate because it fails to discuss an
14 aspect of the project, the environmental analysis will probably reflect the same mistake. (See
15 San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.3d 713,
16 722-723.)
17 32. The May 11, 2023 Staff Report and supporting information provides an
18 inconsistent project description regarding Parcel 3 which is part of the Project but not being
19 developed. This violates CEQA’s mandate that an agency must accurately describe the proposed
20 project. (CEQA Guidelines §15071(a).)
21 C. THE PROJECT DOES NOT QUALITY FOR AN INFILL EXEMPTION UNDER CEQA
22 GUIDELINES SECTION 15332
23 33. Respondents’ action in determining the Project is categorically exempt violates
24 CEQA in that Respondents failed to proceed in a manner required by law and their decision to
25 approve the Project based upon a categorical exemption is not supported by substantial evidence.
26 34. CEQA Guidelines section 15332, otherwise known as the “infill exemption”
27 consists of projects characterized as in-fill development that meet the following conditions
28 (a) The project is consistent with the applicable general plan designation
VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 9
1 and all applicable general plan policies as well as with applicable
zoning designation and regulations.
2 (b) The proposed development occurs within city limits on a project site
of no more than five acres substantially surrounded by urban uses.
3 (c) The project site has no value as habitat for endangered, rare or
4 threatened species.
(d) Approval of the project would not result in any significant effects
5 relating to traffic, noise, air quality, or water quality.
(e) The site can be adequately served by all required utilities and public
6 services.
7 35. In order for the “infill exemption” to apply, the Project must meet all of the
8 conditions listed in section 15332. Substantial evidence in the record indicates that the
9 proposed Project will result in significant effects to noise and traffic. Thus, the City’s reliance
10 upon section 15332 violates CEQA and constitutes a prejudicial abuse of discretion and is
11 contrary to law.
12 36. As Respondents’ reliance on a categorical exemption is not supported by
13 substantial evidence, approval of the Project constituted a prejudicial abuse of discretion and is
14 contrary to law.
15 D. THE PROJECT DOES NOT QUALIFY FOR A CATEGORICAL EXEMPTION DUE
TO UNUSUAL CIRCUMSTANCES
16
37. CEQA provides that if there is a “reasonable possibility” that an activity will have
17
a significant effect on the environment due to “unusual circumstances,” an agency may not
18
find the activity to be categorically exempt from CEQA. (CEQA Guidelines, § 15300.2(c).)
19
The unusual circumstances exception applies when both unusual circumstances and a
20
significant impact as a result of those unusual circumstances are shown. (Berkeley Hillside
21
Preservation v City of Berkeley (2015) 60 C4th 1086, 1104.)
22
38. Given the piecemeal environmental review and the ambiguous and uncertain
23
Project description regarding whether a Quick Service Restaurant is part of the Project there is
24
“reasonable possibility” that the activity will have a significant effect on the environment due
25
to “unusual circumstances.
26
39. As such, Respondents’ reliance on an exemption is contrary to law and an abuse of
27
discretion.
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VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 10
1 PRAYER
2 Wherefore, Petitioners respectfully request the following relief and entry of judgment as
3 follows:
4 1. That this Court issue a peremptory writ of mandate ordering Respondents to:
5 (a) vacate and set aside its approval of the Project grounds that it violates the
6 California Environmental Quality Act, Public Resources Code section 21000 et seq.
7 (b) vacate and set aside of Resolution No. 23-309;
8 (c) suspend all activity that could result in any change or alteration to the
9 physical environment until Respondents have taken such actions as may be necessary to bring
10 their determination, findings or decision regarding the Project into compliance with CEQA;
11 2. For a declaration that Respondents’ actions in approving the Project violated
12 CEQA;
13 3. For a stay, preliminary injunction and permanent injunction restraining City of
14 Roseville, the City Council of City of Roseville, and Real Parties in Interest and their respective
15 agents, employees, officers and representatives from undertaking any activity to implement the
16 Project in any way pending full compliance with CEQA, and the CEQA Guidelines.
17 4. For Petitioners’ costs associated with this action;
18 5. For an award of reasonable attorneys’ fees pursuant to Code of Civil Procedure
19 section 1021.5; and
20 6. For such other and further relief as the Court may deem just and proper.
21 DATED: August 21, 2023
LAW OFFICES OF DONALD B. MOONEY
22
23
24
25 By
Donald B. Mooney
26 Attorney for Petitioners Protect Roseville
27 Neighborhoods and Paseo Del Norte
Homeowners Association
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VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 11
1 VERIFICATION
2 I am the attorney for Protect Roseville Neighborhoods and Paseo Del Norte Homeowners
3 Association, which are located outside the County of Yolo, State of California, where I have
4 my office. For that reason, I make this verification for and on their behalf pursuant to the
5 California Code of Civil Procedure section 446. I have read the foregoing Verified Petition for
6 Writ of Mandate and Complaint for Declaratory and Injunctive Relief and know its contents.
7 The matters stated in this Verified Petition for Writ of Mandate and Complaint for Declaratory
8 and Injunctive Relief are true of my own knowledge except those matters stated on
9 information and belief, and as to those matters I believe them to be true.
10 I declare under penalty of perjury that the above is true and correct. Executed this 21st
11 day of August 2023, at Davis, California.
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Donald B. Mooney
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VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 12
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VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 13
Preview
1 DONALD B. MOONEY (SBN 153721) Law Offices of Donald B. Mooney 2 417 Mace Boulevard, Suite J-334 Davis, California 95618 3 Telephone: 530-758-2377 4 Facsimile: 530-212-7120 Email: dbmooney@dcn.org 5 Attorneys for Petitioners 6 Protect Roseville Neighborhoods and Paseo Del Norte Homeowners Association 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF PLACER 11 PROTECT ROSEVILLE NEIGHBORHOODS, ) 12 an unincorporated association; and PASEO DEL ) NORTE HOMEOWNERS ASSOCIATION, a ) Case No. 13 California Corporation ) 14 ) VERIFIED PETITION FOR Petitioners ) WRIT OF MANDATE AND 15 ) COMPLAINT FOR v. ) DECLARATORY AND 16 ) INJUNCTION RELIEF CITY OF ROSEVILLE; CITY COUNCIL OF ) 17 THE CITY OF ROSEVILLE; and DOES 1 to 20, ) [Action under the California 18 ) Environmental Quality Act, Respondents ) Pub. Resources Code, § 21000 et 19 ) seq.] ) 20 NORR ASSOCIATES, INC.; INTER-CAL REAL) ESTATE CORPORATION, INC; GROCERY ) 21 OUTLET; and DOES 21-40 ) ) 22 Real Parties in Interest ) 23 24 25 26 27 28 1 Petitioners Protect Roseville Neighborhoods and the Paseo Del Norte Homeowners 2 Association petition this Court for a Writ of Mandate directed to Respondents City of Roseville 3 and City Council of the City of Roseville (“Respondents”). Petitioners challenge Respondents’ 4 July 19, 2023 approval of the Design Review Permit (File # PL22-0205) for Grocery Outlet and 5 Tentative Parcel Map to subdivide the existing parcel into three lots on the grounds that 6 Respondents failed to comply with the requirements of the California Environmental Quality 7 Act (“CEQA”), Public Resources Code section 21000 et seq. Respondents’ approval of the 8 Project included a determination that the Project is categorically exempt from CEQA’s 9 requirements pursuant to CEQA Guidelines section 15332, otherwise known as the in-fill 10 exemption. In order to qualify for an exemption under section 15322 development projects 11 must meet the certain criteria, including that the approval of the project would not result in any 12 significant effects relating to traffic, noise, air quality, or water quality. The record 13 demonstrates that the project will impact traffic and noise. 14 Additionally, the Project description the City provided to the public was incomplete and 15 inconsistent with respect to the development of Parcel 3. Additionally, in approving the Project 16 the City failed to consider the whole of the action as it subdivided Parcel 3 for a future project 17 but provided no environmental review for the reasonably foreseeable development of Parcel 3. 18 PARTIES 19 1. Petitioner Protect Roseville Neighborhoods is an unincorporated association whose 20 mission is to protect and enhance the environment and community in the City of Roseville. 21 Members of Protect Roseville Neighborhoods have a direct and substantial beneficial interest in 22 ensuring that Respondents comply with CEQA. Members of Protect Roseville Neighborhoods 23 live, work and/or recreate in the City of Roseville and throughout the areas that will be 24 impacted by the Project. Protect Roseville Neighborhoods and it members, have long-standing 25 interests in the area adjacent to the Project site, as well as in the surrounding community and 26 County as a whole. Protect Roseville Neighborhoods’ members’ environmental, aesthetic and 27 property interests will be severely injured if the adoption of the Project is not set aside pending 28 full compliance with CEQA and all other applicable laws. Petitioners’ members enjoy the City, VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 2 1 County and State’s natural resources. The interests of Protect Roseville Neighborhoods’ 2 members will be harmed by the Project unless court action is taken and Petitioners’ requested 3 relief is granted. Petitioner Protect Roseville Neighborhoods brings this petition on behalf of 4 all others similarly situated who are too numerous to be named and brought before this Court as 5 petitioners. Petitioner and its members are within the class of persons and entities beneficially 6 interested in, and aggrieved by, the acts of Respondents as alleged below. Protect Roseville 7 Neighborhoods’ members participated in the administrative processes herein, with many 8 members submitting comment letters and objecting to the Project. Protect Roseville 9 Neighborhoods and its members have exhausted their administrative remedies. Accordingly, 10 Petitioner Protect Roseville Neighborhoods has standing to sue. 11 2. Petitioner Paseo Del Norte Homeowners Association is a California non-profit, 12 mutual benefit, common interest development corporation. Members of Paseo Del Norte 13 Homeowners Association have a direct and substantial beneficial interest in ensuring that 14 Respondents comply with CEQA. Members of Paseo Del Norte Homeowners Association live, 15 work and/or recreate in the City of Roseville in the County of Placer in the areas that will be 16 impacted by the Project. Paseo Del Norte Homeowners Association and it members, have long- 17 standing interests in the area adjacent to the Project site, as well as in the surrounding 18 community and County as a whole. Paseo Del Norte Homeowners Association’s members’ 19 environmental, aesthetic and property interests will be severely injured if the adoption of the 20 Project is not set aside pending full compliance with CEQA and all other applicable laws. 21 Petitioner’s members enjoy the City, County and State’s natural resources. The interests of 22 Paseo Del Norte Owners Association’s members will be harmed by the Project unless court 23 action is taken and Petitioners’ requested relief is granted. Petitioner Paseo Del Norte 24 Homeowners Association brings this petition on behalf of all others similarly situated who are 25 too numerous to be named and brought before this Court as petitioners. Paseo Del Norte 26 Homeowners Association and its members are within the class of persons and entities 27 beneficially interested in, and aggrieved by, the acts of Respondents as alleged below. Paseo 28 Del Norte Homeowners Association’s members participated in the administrative processes VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 3 1 herein, with many members submitting comments and objecting to the Project. Petitioner and 2 its members have exhausted their administrative remedies. Accordingly, Petitioner Paseo Del 3 Norte Homeowners Association has standing to sue. 4 3. Respondent City of Roseville is a political subdivision of the State of California 5 and a body corporate and politic exercising local government power. City of Roseville is the 6 CEQA “lead agency” for the Project. As lead agency for the Project, the City of Roseville is 7 responsible for preparation of an environmental document that describes the Project and its 8 impacts, and if necessary evaluates mitigation measures and/or alternatives to lessen or avoid 9 any significant environmental impacts. The City also has principal responsibility for 10 determining whether projects within its jurisdiction are consistent with applicable land use 11 ordinances and other applicable laws. 12 4. Respondent City Council of the City of Roseville is a legislative body duly 13 authorized under the California Constitution and the laws of the State of California to act on 14 behalf of the City of Roseville. Respondent City Council of the City of Roseville is responsible 15 for regulating and controlling land use within the City including, but not limited to, 16 implementing and complying with the provisions of CEQA and the CEQA Guidelines, 14 17 California Code of Regulations, title 14, section 15000 et seq. (the “Guidelines”), applicable 18 land use ordinances and other laws. As the elected representatives of the people of the City, the 19 City Council establishes overall City priorities and sets policy. The City Council is the 20 governing body of the County and is ultimately responsible for reviewing and approving or 21 denying the Project. 22 5. Real Party in Interest Norr Associates, Inc, is a California corporation. The City of 23 Roseville’s July 20, 2023 Notice of Exemption identifies Norr Associates as the Project 24 applicant. 25 6. Real Party in Interest Inter Cal Real Estate Corporation, Inc. is a California 26 corporation. The City of Roseville’s July 20, 2023, Notice of Exemption identifies Inter-Cal 27 Real Estate Corporation, Inc. as the owner of the Project. 28 VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 4 1 7. Real Party-in-Interest Grocery Outlet is a California Corporation. Grocery Outlet 2 intends to operate a Grocery Outlet store at the Project site. 3 8. Petitioners are unaware of the true names and identities of DOES 1 through 20 and 4 21 through 40, inclusive, and sue such unnamed Respondents and Real Parties in Interest 5 respectively, by their fictitious names. Petitioners are informed and believe, and based thereon 6 alleges, that fictitiously named Respondents and Real Parties in Interest are responsible for all 7 acts and omissions described above. When the true identities and capacities of Respondents and 8 Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary, 9 amend this Petition to include such identities and capacities. 10 JURISDICTION AND VENUE 11 9. This Court has jurisdiction over the matters alleged in this Petition pursuant to 12 Code of Civil Procedure section 1094.5, and Public Resources Code section 21168. In the 13 alternative, this Court has jurisdiction pursuant to Code of Civil Procedure section 1085 and 14 Public Resources Code section 21168.5. 15 10. Venue for this action properly lies in the Superior Court for the State of 16 California in and for the County of Placer pursuant to sections 393, 394 and 395 of the Code 17 of Civil Procedure. 18 BACKGROUND FACTS 19 A. THE PROJECT AND PROJECT SITE 20 11. The North Roseville Specific Plan (“NRSP”) includes five distinct neighborhoods 21 (A, B, C, D, E). The project site is located on the northern boundary of neighborhood D. The 22 project site is on a portion of parcel WW-40 with a land use designation of Community 23 Commercial (“CC”). 24 12. The neighboring parcel WW-41 to the east, which is developed with the Paseo del 25 Norte community is designated for Community Commercial with a Special Area overlay that 26 restricts some uses, such as gasoline sales. On February 1, 2006, the City Council adopted a 27 Rezone for NRSP parcel WW-41 to modify the zoning designation from CC/SA to Multi-Family 28 VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 5 1 Residential (R3/DS-NR) for the 125-unit Paseo del Norte development. The City modified the 2 land use from CC to Medium-Density Residential at 12.9 units/acre. 3 13. The project site is located at 1751 Pleasant Grove Boulevard and is identified as 4 Parcel WW-40 in the NRSP area. The site is approximately 3.1 acres in size. The site has a 5 zoning and General Plan land use designation of CC, and is surrounded by the Paseo Del Norte 6 single-family residential subdivision to the east, open space parcels containing the Western 7 Area Power Administration power line corridor to the south, an existing CVS Pharmacy to the 8 west, and an undeveloped Community Commercial parcel across Pleasant Grove Boulevard to 9 the north. 10 14. The Project consists of construction of a 16,000 square-foot grocery building and a 4,600 11 square-foot freestanding pad building on parcel WW-40. The Project also includes a Tentative Parcel 12 Map to subdivide the existing parcel into three (3) lots. 13 B. APPROVAL OF THE PROJECT 14 15. On May 11, 2023 the Planning Commission approved the Project. As part of the 15 approval, the Planning Commission held that the Project is categorically exempt from CEQA’s 16 environmental review requirements per CEQA Guidelines section 15332 pertaining to infill 17 development projects. 18 16. On May 12, 2023, Petitioner Protect Roseville Neighborhood timely appealed to 19 the City Council the Planning Commission’s approval. 20 17. On July 19, 2023, the City Council conducted a public hearing on the appeal and 21 Project. The City Council adopted Resolution No. 23-309 denying the appeal of the Planning 22 Commission’s May 11, 2023 approval of the Project. 23 18. On July 20, 2023, Respondents filed a Notice of Exemption with the County Clerk 24 of Placer County as provided for in Public Resources Code, section 21152. 25 EXHAUSTION OF ADMINISTRATIVE REMEDIES 26 AND INADEQUACY OF REMEDY 27 19. Petitioners have performed any and all conditions precedent to filing the instant 28 action and have exhausted any and all available administrative remedies to the extent required by VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 6 1 law. 2 20. Petitioners have complied with the requirements of Public Resources Code, section 3 21167.5 by mailing written notice of this action to the Respondents. A copy of this written 4 notice and proof of service are attached as Attachment A to this Petition for Writ of Mandate. 5 21. Petitioners have complied with Public Resources Code section 21167.6 by 6 concurrently filing a request concerning preparation of the record of administrative proceedings 7 relating to this action. 8 22. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law 9 unless this Court grants the requested writ of mandate to require Respondents to set aside their 10 approval of the Project. In the absence of such remedies, Respondents’ approval will remain in 11 effect in violation of State law. 12 23. This action has been brought within 35 days of the filing of the Notice of 13 Exemption as required by Public Resources Code section 21167(d). 14 STANDING 15 24. Petitioners have standing to assert the claims raised in this Petition because 16 Petitioners’ aesthetic, environmental and property interests are directly and adversely affected by 17 Respondents’ approval of the Project. 18 ARBITRARY AND CAPRICIOUS ACTIONS 19 25. Petitioners bring this action on the basis, among others, of Government Code 20 section 800, and other applicable laws, which award Petitioners’ attorneys’ fees in actions to 21 overturn agency decisions that are arbitrary and capricious, such as the decisions in question in 22 this action. CAUSESOF ACTION 23 Abuse of Discretion 24 Violation of CEQA, Public Resources Code, § 21000 et seq. 25 26. Petitioners reallege and incorporate herein, as if set forth in full, each and every 26 allegation contained in paragraphs 1 through 25. 27 A. CEQA REQUIRES THE AGENCY EVALUATE THE WHOLE OF THE ACTION 28 27. CEQA requires that all foreseeable uses of a project, the “whole of the action”, be VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 7 1 analyzed in the same environmental review document in order to preclude impermissible 2 “piecemealing” of environmental review. (CEQA Guidelines § 15378; Rio Vista Farm Bureau 3 Center v. County of Solano (1992) 5 Cal.App.4th 351, 369-370.) Thus, a CEQA project must 4 include “the whole of an action” that has a potential for resulting in either a direct physical 5 change in the environment or a reasonably foreseeable indirect physical change in the 6 environment, and encompasses the activity being approved. (CEQA Guidelines, § 15378.) A 7 project is not each separate governmental approval when there are several approvals by one 8 agency or review by several agencies. (Guidelines, §15378.) Guidelines section 15126 9 provides that “[a]ll phases of a project must be considered when evaluating its impact on the 10 environment...” 11 28. CEQA requires that all phases of a project must be considered as the “whole of the 12 action,” so that “environmental considerations do not become submerged by chopping a large 13 project into many little ones, each with a potential impact on the environment, which 14 cumulatively may have disastrous consequences.” (Bozung v. Local Agency Formation 15 Commission of Ventura County (1975) 13 Cal.3d 263, 283–284, Burbank-Glendale-Pasadena 16 Airport Authority v. Hensler (1991) 233 Cal.App.3d 577.) It has been a longstanding principle 17 that the project description must include future activities. 18 29. In an effort to have the Project qualify for an infill exemption, the development of 19 Parcel 3 was “removed” from the Project. The Project includes a tentative map to subdivide the 20 existing parcels into three (3) lots, which includes Parcel 3. Thus, Parcel 3 remains part of the 21 Project since it is part of the subdivision, yet there is no environmental review for the 22 development of Parcel 3 and the reasonably foreseeable uses for Parcel 3. City staff 23 acknowledged that it is reasonably foreseeable that Parcel 3 would be developed in the future, 24 but elected not to develop that Parcel 3 at this time because the proposed use would require a 25 conditional use permit and thus the remainder of the project would not qualify as an infill 26 exemption. 27 30. The City’s approach violates CEQA’s mandate that a large project shall not be 28 divided into little ones because such division can improperly submerge the aggregate VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 8 1 environmental considerations of the total project. (See Bozung v. Local Agency Formation 2 Commission, supra, 13 Cal.3d at 283-84.) 3 B. THE CITY RELIED UPON AN INCONSISTENT PROJECT DESCRIPTION 4 31. “An accurate, stable and finite project description is the sine qua non of an 5 informative and legally sufficient [CEQA document].” (County of Inyo v. City of Los Angeles 6 (1977) 71 Cal.App.3d 185, 193.) CEQA requires a complete project description to ensure that 7 all of the project’s environmental impacts are considered. (City of Santee v. County of San 8 Diego (1989) 214 Cal.App.3d 1450, 1454; see also Communities for a Better Environment v. 9 City of Richmond (2010) 184 Cal.App.4th 70, 82.) A curtailed, enigmatic or unstable project 10 description draws a red herring across the path of public input.” (San Joaquin Raptor Rescue 11 Center v. County of Merced (2007) 149 Cal.App.4th 645, 656; quoting County of Inyo, supra, 12 71 Cal.App.3d at 197-198.) The adequacy of a project description is closely linked to the 13 adequacy of the impact analyses. If the description is inadequate because it fails to discuss an 14 aspect of the project, the environmental analysis will probably reflect the same mistake. (See 15 San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.3d 713, 16 722-723.) 17 32. The May 11, 2023 Staff Report and supporting information provides an 18 inconsistent project description regarding Parcel 3 which is part of the Project but not being 19 developed. This violates CEQA’s mandate that an agency must accurately describe the proposed 20 project. (CEQA Guidelines §15071(a).) 21 C. THE PROJECT DOES NOT QUALITY FOR AN INFILL EXEMPTION UNDER CEQA 22 GUIDELINES SECTION 15332 23 33. Respondents’ action in determining the Project is categorically exempt violates 24 CEQA in that Respondents failed to proceed in a manner required by law and their decision to 25 approve the Project based upon a categorical exemption is not supported by substantial evidence. 26 34. CEQA Guidelines section 15332, otherwise known as the “infill exemption” 27 consists of projects characterized as in-fill development that meet the following conditions 28 (a) The project is consistent with the applicable general plan designation VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 9 1 and all applicable general plan policies as well as with applicable zoning designation and regulations. 2 (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. 3 (c) The project site has no value as habitat for endangered, rare or 4 threatened species. (d) Approval of the project would not result in any significant effects 5 relating to traffic, noise, air quality, or water quality. (e) The site can be adequately served by all required utilities and public 6 services. 7 35. In order for the “infill exemption” to apply, the Project must meet all of the 8 conditions listed in section 15332. Substantial evidence in the record indicates that the 9 proposed Project will result in significant effects to noise and traffic. Thus, the City’s reliance 10 upon section 15332 violates CEQA and constitutes a prejudicial abuse of discretion and is 11 contrary to law. 12 36. As Respondents’ reliance on a categorical exemption is not supported by 13 substantial evidence, approval of the Project constituted a prejudicial abuse of discretion and is 14 contrary to law. 15 D. THE PROJECT DOES NOT QUALIFY FOR A CATEGORICAL EXEMPTION DUE TO UNUSUAL CIRCUMSTANCES 16 37. CEQA provides that if there is a “reasonable possibility” that an activity will have 17 a significant effect on the environment due to “unusual circumstances,” an agency may not 18 find the activity to be categorically exempt from CEQA. (CEQA Guidelines, § 15300.2(c).) 19 The unusual circumstances exception applies when both unusual circumstances and a 20 significant impact as a result of those unusual circumstances are shown. (Berkeley Hillside 21 Preservation v City of Berkeley (2015) 60 C4th 1086, 1104.) 22 38. Given the piecemeal environmental review and the ambiguous and uncertain 23 Project description regarding whether a Quick Service Restaurant is part of the Project there is 24 “reasonable possibility” that the activity will have a significant effect on the environment due 25 to “unusual circumstances. 26 39. As such, Respondents’ reliance on an exemption is contrary to law and an abuse of 27 discretion. 28 VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 10 1 PRAYER 2 Wherefore, Petitioners respectfully request the following relief and entry of judgment as 3 follows: 4 1. That this Court issue a peremptory writ of mandate ordering Respondents to: 5 (a) vacate and set aside its approval of the Project grounds that it violates the 6 California Environmental Quality Act, Public Resources Code section 21000 et seq. 7 (b) vacate and set aside of Resolution No. 23-309; 8 (c) suspend all activity that could result in any change or alteration to the 9 physical environment until Respondents have taken such actions as may be necessary to bring 10 their determination, findings or decision regarding the Project into compliance with CEQA; 11 2. For a declaration that Respondents’ actions in approving the Project violated 12 CEQA; 13 3. For a stay, preliminary injunction and permanent injunction restraining City of 14 Roseville, the City Council of City of Roseville, and Real Parties in Interest and their respective 15 agents, employees, officers and representatives from undertaking any activity to implement the 16 Project in any way pending full compliance with CEQA, and the CEQA Guidelines. 17 4. For Petitioners’ costs associated with this action; 18 5. For an award of reasonable attorneys’ fees pursuant to Code of Civil Procedure 19 section 1021.5; and 20 6. For such other and further relief as the Court may deem just and proper. 21 DATED: August 21, 2023 LAW OFFICES OF DONALD B. MOONEY 22 23 24 25 By Donald B. Mooney 26 Attorney for Petitioners Protect Roseville 27 Neighborhoods and Paseo Del Norte Homeowners Association 28 VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 11 1 VERIFICATION 2 I am the attorney for Protect Roseville Neighborhoods and Paseo Del Norte Homeowners 3 Association, which are located outside the County of Yolo, State of California, where I have 4 my office. For that reason, I make this verification for and on their behalf pursuant to the 5 California Code of Civil Procedure section 446. I have read the foregoing Verified Petition for 6 Writ of Mandate and Complaint for Declaratory and Injunctive Relief and know its contents. 7 The matters stated in this Verified Petition for Writ of Mandate and Complaint for Declaratory 8 and Injunctive Relief are true of my own knowledge except those matters stated on 9 information and belief, and as to those matters I believe them to be true. 10 I declare under penalty of perjury that the above is true and correct. Executed this 21st 11 day of August 2023, at Davis, California. 12 13 14 15 Donald B. Mooney 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE & COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF 13