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1 DANIEL C. CEDERBORG, SBN 124260
County Counsel
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KYLE R. ROBERSON
3 Deputy County Counsel, SBN 285735
FRESNO COUNTY COUNSEL
4 2220 Tulare Street, Fifth Floor
Fresno, CA 93721
5 Telephone: (559) 600-3479 RECEIVED
Facsimile: (559) 600-3480 5/31/2019 4:15 PM
6 Email: kroberson@fresnocountyca.gov FRESNO COUNTY SUPERIOR COURT
By: I. Herrera, Deputy
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Attorneys for Respondents
8 COUNTY OF FRESNO and BOARD OF EXEMPT FROM FILING FEES
SUPERVISORS OF THE COUNTY OF FRESNO [GOVERNMENT CODE § 6103]
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COUNSEL CONTINUED ON NEXT PAGE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF FRESNO
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14 CITY OF FRESNO, a Municipal Corporation, CASE NO. 11CECG00706
(Consolidated with Case Nos. 11CECG00709
15 Petitioner, and 11CECG00726)
16 v.
[PROPOSED] JUDGMENT GRANTING
17 COUNTY OF FRESNO, et al. IN PART PEREMPTORY WRIT OF
MANDATE
18 Respondents.
Judge: Honorable Kristi Culver-Kapetan
19 Dept: 54
FRIANT RANCH L.P., and DOES 11-50,
20 inclusive,
21 Real Parties in Interest.
Action Filed: March 7, 2011
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SAN JOAQUIN RIVER PARKWAY AND
23 CONSERVATION TRUST INC.,
24 Petitioner,
25 v.
26 COUNTY OF FRESNO, et al.
27 Respondents.
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[PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE
1 FRIANT RANCH L.P., and DOES 21-40,
inclusive,
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Real Parties in Interest.
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4 SIERRA CLUB, REVIVE THE SAN
JOAQUIN and LEAGUE OF WOMEN
5 VOTERS OF FRESNO,
6 Petitioners,
7 v.
8 COUNTY OF FRESNO, et al.
9 Respondents
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FRIANT RANCH L.P., and DOES 26-50,
11 inclusive,
12 Real Parties in Interest.
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[PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE
1 JAMES G. MOOSE, SBN 119374
TIFFANY K. WRIGHT, SBN 210060
2 LAURA M. HARRIS, SBN 246064
3 REMY MOOSE MANLEY, LLP
555 Capitol Mall, Suite 800
4 Sacramento, CA 95814
Telephone: (916) 443-2745
5 Facsimile: (916) 443-9017
Email: jmoose@rmmenvirolaw.com
6 twright@rmmenvirolaw.com
7 lharris@rmmenvirolaw.com
8 Attorneys for Real Party in Interest,
FRIANT RANCH, L.P.
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[PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE
1 On December 18, 2012, after extensive briefing by the parties, and a hearing on the merit, this
2 Court entered Judgment in the above-entitled matter in favor of Respondents County of Fresno and
3 Fresno County Board of Supervisors (Respondents) and Real Parties in Interest Friant Ranch, LP et al.
4 (Real Parties). Petitioners Sierra Club et al. appealed. On May 27, 2014, the Court of Appeal issued its
5 decision in this matter, reversing the judgment and holding that the environmental impact report (EIR)
6 certified by Respondents for the Friant Ranch Community Plan Update and Friant Ranch Specific Plan
7 Project (Project) was inadequate in its discussion of health impacts of air pollutants; that the EIR’s air
8 quality mitigation measures were improperly vague and unenforceable; and that Respondents
9 improperly deferred formulation of air quality mitigation measures. Real Parties filed a petition for
10 review with the California Supreme Court, which the Supreme Court granted on October 1, 2014. On
11 December 24, 2018, the Supreme Court issued its opinion in this matter (Opinion), affirming the Court
12 of Appeal’s judgment, in part, reversing the judgment in part, and remanding the matter for additional
13 proceedings consistent with the Opinion.
14 Consistent with the Opinion,
15 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
16 1. For the reasons stated in the Opinion, this Court’s prior judgment denying Petitioners’
17 Petition for Writ of Mandate is reversed and judgment shall be entered in favor of Petitioners and
18 against Respondents and Real Parties.
19 2. Petitioners’ Petition for Peremptory Writ of Mandate and Complaint for Declaratory and
20 Injunctive Relief (Petition) is granted as to the First Cause of Action (Violation of CEQA, Failure to
21 Adequately Analyze Project Impacts) because, as set forth more fully in the Opinion, the EIR’s
22 discussion of Impact 3.3.2 (Violation of Air Quality Standards by Area and Operational Emissions)
23 failed to provide an adequate discussion of health and safety problems that will be caused by the
24 increase in various air pollutants resulting from the Project’s development. Because the Opinion only
25 found the EIR to be in noncompliance with the California Environmental Quality Act (CEQA) (Pub.
26 Resources Code, § 21000 et seq.) with respect to its discussion of air quality health and impacts, the
27 Petition is denied as to the remaining causes of action.
28 ///
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[PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE
1 3. Pursuant to Public Resources Code section 21168.9, subdivision (b), which affords the
2 Court discretion to fashion relief, the Court hereby finds that the Impact 3.3.2 CEQA Approvals, as
3 defined herein, are severable from the remaining Project approvals. The only portions of the Project
4 approvals that directly relate to EIR’s analysis of the air quality health and safety impacts caused by the
5 Project’s operational emissions are the Impact 3.3.2 CEQA Approvals. Accordingly, only the Impact
6 3.3.2 CEQA Approvals need to be corrected. All other Project approvals were based on portions of the
7 EIR that were not affected by the Supreme Court’s decision and no remedial action is required unless
8 compliance with the writ changes or affects the other Project approvals. Severance of the Impact 3.3.2
9 CEQA Approvals will not prejudice full compliance with CEQA because no further steps toward
10 construction of the Project is allowed under the writ (see ¶¶ 4 and 5) unless and until the County takes
11 corrective action to address the deficiencies identified by the Supreme Court and the County has
12 complied with CEQA. By prohibiting Project activities that could result in an adverse change or
13 alteration to the physical environment, the status quo will be preserved for the County to prepare an
14 analysis that adequately discusses the health and safety impacts that could arise as a result of the
15 increases in emissions caused by operation of the Project. For example, if the County finds that the
16 Project would cause a significant health and safety impact due to the Project’s air emissions, the
17 County could require feasible mitigation measures or alternatives and enforce them through permit
18 conditions and agreements or incorporate them into a plan or project design. (Pub. Resources Code,
19 § 21081.6, subd. (b).) The status quo would also be preserved to allow this Court to make any orders
20 necessary for complete enforcement of the writ, which could include orders to revisit other portions of
21 the EIR or Project approvals in the event that project changes (such as alternatives or mitigation
22 measures) to address air quality health impacts had unanticipated adverse effects on other portions of
23 the Project. For these reasons, severance of the Impact 3.3.2 Approvals is appropriate under Public
24 Resources Code section 21168.9, subdivision (b).
25 4. A peremptory writ of mandate shall issue under seal of this Court in the form attached
26 hereto as Exhibit A.
27 5. This matter is remanded to Respondents to take the steps required by law, this
28 Judgment, and the Peremptory Writ of Mandate
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[PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE
1 6. The Court shall retain jurisdiction over Respondents’ proceedings by way of the returns
2 to the peremptory writ of mandate until the Court has determined that Respondents have complied with
3 CEQA as specified in the Peremptory Writ of Mandate.
4 7. Petitioners shall recover such costs of suit as determined by this Court after a timely
5 filed and served Memorandum of Costs, subject to any timely and served Motions to Tax Costs.
6 8. The Court reserves jurisdiction to consider a request for an award of reasonable
7 attorneys’ fees pursuant to a proper and timely motion filed by Petitioners under Code of Civil
8 Procedure section 1021.5 and California Rule of Court 3.1702.
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IT IS SO ORDERED.
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DATED: _____________________ ______________________________________
12 THE HON. KRISTI CULVER KAPETAN
Judge of the Superior Court
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[PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE
1 Sierra Club, et al. v. County of Fresno, et al.
Fresno County Superior Court Case No. 11CECG00706
2 (Consolidated with Case Nos. 11 CECG00709 and 11 CECG00726)
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PROOF OF SERVICE
4
I, Judith A. Salas, am employed in the County of Sacramento. My business address is 555
5 Capitol Mall, Suite 800, Sacramento, California 95814, and email address is
jsalas@rmmenvirolaw.com. I am over the age of 18 years and not a party to the above-entitled action.
6
I am familiar with Remy Moose Manley, LLP's practice for collection and processing mail
7
whereby mail is sealed, given the appropriate postage and placed in a designated mail collection area.
8 On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service, in a sealed envelope with postage fully
9 prepaid.
10 On May 31, 2019, I served the following:
11
[PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE
12
1ZJ BY FIRST CLASS MAIL by causing a true copy thereof to be placed in a sealed envelope,
13 with postage fully prepaid, addressed to the following person(s) or representative(s) as listed
below, and placed for collection and mailing following ordinary business practices.
14
D BY ELECTRONIC TRANSMISSION OR EMAIL by causing a true copy thereof to be
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electronically delivered to the following person(s) or representative(s) at the email address(es)
16 listed below. I did not receive any electronic message or other indication that the transmission
was unsuccessful.
17
1Zi BY ELECTRONIC TRANSMISSION by causing a true copy thereof to be electronically
18 delivered to the following person(s) or representative(s) at the email address(es) listed below,
via the Court's electronic filing service provider. I did not receive any electronic message or
19
other indication that the transmission was unsuccessful.
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SEE ATTACHED SERVICE LIST
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I declare under penalty of perjury that the foregoing is true and correct. Executed this 31 ST day
22 of May, 2019, at Sacramento, California.
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PROOF OF SERVICE
1 Sierra Club, et al. v. County of Fresno, et al.
Fresno County Superior Court Case No. 11CECG00706
2 (Consolidated with Case Nos. 11CECG00709 and 11CECG00726)
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SERVICE LIST
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Sara Hedgpeth-Harris Attorneys for Petitioners
5 LAW OFFICE OF SARA HEDGPETH-HARRIS Sierra Club, et al.
5445 E. Lane Avenue
6 Fresno, CA 93727
Tel.: (559) 233-0907
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Fax: (310) 798-2402
8 Email: sara.hedgpethharris@shh-law.com
9 Susan Brandt-Hawley
BRANDT-HAWLEY LAW GROUP
10 P.O. Box 1659
Glen Ellen, CA 95442
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E-mail: susanbh@preservationlawyers.com VIA USPS AND ELECTRONIC MAIL
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Daniel C. Cederborg Attorneys for Respondents
13 County Counsel County of Fresno, et al.
Kyle R. Roberson
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Deputy County Counsel
15 FRESNO COUNTY COUNSEL
2220 Tulare Street, Suite 500
16 Fresno, CA 93721
Email: kroberson@fresnocountyca.gov VIA USPS AND ELECTRONIC MAIL
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PROOF OF SERVICE
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1 DANIEL C. CEDERBORG, SBN 124260 County Counsel 2 KYLE R. ROBERSON 3 Deputy County Counsel, SBN 285735 FRESNO COUNTY COUNSEL 4 2220 Tulare Street, Fifth Floor Fresno, CA 93721 5 Telephone: (559) 600-3479 RECEIVED Facsimile: (559) 600-3480 5/31/2019 4:15 PM 6 Email: kroberson@fresnocountyca.gov FRESNO COUNTY SUPERIOR COURT By: I. Herrera, Deputy 7 Attorneys for Respondents 8 COUNTY OF FRESNO and BOARD OF EXEMPT FROM FILING FEES SUPERVISORS OF THE COUNTY OF FRESNO [GOVERNMENT CODE § 6103] 9 COUNSEL CONTINUED ON NEXT PAGE 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF FRESNO 13 14 CITY OF FRESNO, a Municipal Corporation, CASE NO. 11CECG00706 (Consolidated with Case Nos. 11CECG00709 15 Petitioner, and 11CECG00726) 16 v. [PROPOSED] JUDGMENT GRANTING 17 COUNTY OF FRESNO, et al. IN PART PEREMPTORY WRIT OF MANDATE 18 Respondents. Judge: Honorable Kristi Culver-Kapetan 19 Dept: 54 FRIANT RANCH L.P., and DOES 11-50, 20 inclusive, 21 Real Parties in Interest. Action Filed: March 7, 2011 22 SAN JOAQUIN RIVER PARKWAY AND 23 CONSERVATION TRUST INC., 24 Petitioner, 25 v. 26 COUNTY OF FRESNO, et al. 27 Respondents. 28 [PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE 1 FRIANT RANCH L.P., and DOES 21-40, inclusive, 2 Real Parties in Interest. 3 4 SIERRA CLUB, REVIVE THE SAN JOAQUIN and LEAGUE OF WOMEN 5 VOTERS OF FRESNO, 6 Petitioners, 7 v. 8 COUNTY OF FRESNO, et al. 9 Respondents 10 FRIANT RANCH L.P., and DOES 26-50, 11 inclusive, 12 Real Parties in Interest. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE 1 JAMES G. MOOSE, SBN 119374 TIFFANY K. WRIGHT, SBN 210060 2 LAURA M. HARRIS, SBN 246064 3 REMY MOOSE MANLEY, LLP 555 Capitol Mall, Suite 800 4 Sacramento, CA 95814 Telephone: (916) 443-2745 5 Facsimile: (916) 443-9017 Email: jmoose@rmmenvirolaw.com 6 twright@rmmenvirolaw.com 7 lharris@rmmenvirolaw.com 8 Attorneys for Real Party in Interest, FRIANT RANCH, L.P. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 [PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE 1 On December 18, 2012, after extensive briefing by the parties, and a hearing on the merit, this 2 Court entered Judgment in the above-entitled matter in favor of Respondents County of Fresno and 3 Fresno County Board of Supervisors (Respondents) and Real Parties in Interest Friant Ranch, LP et al. 4 (Real Parties). Petitioners Sierra Club et al. appealed. On May 27, 2014, the Court of Appeal issued its 5 decision in this matter, reversing the judgment and holding that the environmental impact report (EIR) 6 certified by Respondents for the Friant Ranch Community Plan Update and Friant Ranch Specific Plan 7 Project (Project) was inadequate in its discussion of health impacts of air pollutants; that the EIR’s air 8 quality mitigation measures were improperly vague and unenforceable; and that Respondents 9 improperly deferred formulation of air quality mitigation measures. Real Parties filed a petition for 10 review with the California Supreme Court, which the Supreme Court granted on October 1, 2014. On 11 December 24, 2018, the Supreme Court issued its opinion in this matter (Opinion), affirming the Court 12 of Appeal’s judgment, in part, reversing the judgment in part, and remanding the matter for additional 13 proceedings consistent with the Opinion. 14 Consistent with the Opinion, 15 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 16 1. For the reasons stated in the Opinion, this Court’s prior judgment denying Petitioners’ 17 Petition for Writ of Mandate is reversed and judgment shall be entered in favor of Petitioners and 18 against Respondents and Real Parties. 19 2. Petitioners’ Petition for Peremptory Writ of Mandate and Complaint for Declaratory and 20 Injunctive Relief (Petition) is granted as to the First Cause of Action (Violation of CEQA, Failure to 21 Adequately Analyze Project Impacts) because, as set forth more fully in the Opinion, the EIR’s 22 discussion of Impact 3.3.2 (Violation of Air Quality Standards by Area and Operational Emissions) 23 failed to provide an adequate discussion of health and safety problems that will be caused by the 24 increase in various air pollutants resulting from the Project’s development. Because the Opinion only 25 found the EIR to be in noncompliance with the California Environmental Quality Act (CEQA) (Pub. 26 Resources Code, § 21000 et seq.) with respect to its discussion of air quality health and impacts, the 27 Petition is denied as to the remaining causes of action. 28 /// 4 [PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE 1 3. Pursuant to Public Resources Code section 21168.9, subdivision (b), which affords the 2 Court discretion to fashion relief, the Court hereby finds that the Impact 3.3.2 CEQA Approvals, as 3 defined herein, are severable from the remaining Project approvals. The only portions of the Project 4 approvals that directly relate to EIR’s analysis of the air quality health and safety impacts caused by the 5 Project’s operational emissions are the Impact 3.3.2 CEQA Approvals. Accordingly, only the Impact 6 3.3.2 CEQA Approvals need to be corrected. All other Project approvals were based on portions of the 7 EIR that were not affected by the Supreme Court’s decision and no remedial action is required unless 8 compliance with the writ changes or affects the other Project approvals. Severance of the Impact 3.3.2 9 CEQA Approvals will not prejudice full compliance with CEQA because no further steps toward 10 construction of the Project is allowed under the writ (see ¶¶ 4 and 5) unless and until the County takes 11 corrective action to address the deficiencies identified by the Supreme Court and the County has 12 complied with CEQA. By prohibiting Project activities that could result in an adverse change or 13 alteration to the physical environment, the status quo will be preserved for the County to prepare an 14 analysis that adequately discusses the health and safety impacts that could arise as a result of the 15 increases in emissions caused by operation of the Project. For example, if the County finds that the 16 Project would cause a significant health and safety impact due to the Project’s air emissions, the 17 County could require feasible mitigation measures or alternatives and enforce them through permit 18 conditions and agreements or incorporate them into a plan or project design. (Pub. Resources Code, 19 § 21081.6, subd. (b).) The status quo would also be preserved to allow this Court to make any orders 20 necessary for complete enforcement of the writ, which could include orders to revisit other portions of 21 the EIR or Project approvals in the event that project changes (such as alternatives or mitigation 22 measures) to address air quality health impacts had unanticipated adverse effects on other portions of 23 the Project. For these reasons, severance of the Impact 3.3.2 Approvals is appropriate under Public 24 Resources Code section 21168.9, subdivision (b). 25 4. A peremptory writ of mandate shall issue under seal of this Court in the form attached 26 hereto as Exhibit A. 27 5. This matter is remanded to Respondents to take the steps required by law, this 28 Judgment, and the Peremptory Writ of Mandate 5 [PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE 1 6. The Court shall retain jurisdiction over Respondents’ proceedings by way of the returns 2 to the peremptory writ of mandate until the Court has determined that Respondents have complied with 3 CEQA as specified in the Peremptory Writ of Mandate. 4 7. Petitioners shall recover such costs of suit as determined by this Court after a timely 5 filed and served Memorandum of Costs, subject to any timely and served Motions to Tax Costs. 6 8. The Court reserves jurisdiction to consider a request for an award of reasonable 7 attorneys’ fees pursuant to a proper and timely motion filed by Petitioners under Code of Civil 8 Procedure section 1021.5 and California Rule of Court 3.1702. 9 IT IS SO ORDERED. 10 11 DATED: _____________________ ______________________________________ 12 THE HON. KRISTI CULVER KAPETAN Judge of the Superior Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 [PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE 1 Sierra Club, et al. v. County of Fresno, et al. Fresno County Superior Court Case No. 11CECG00706 2 (Consolidated with Case Nos. 11 CECG00709 and 11 CECG00726) 3 PROOF OF SERVICE 4 I, Judith A. Salas, am employed in the County of Sacramento. My business address is 555 5 Capitol Mall, Suite 800, Sacramento, California 95814, and email address is jsalas@rmmenvirolaw.com. I am over the age of 18 years and not a party to the above-entitled action. 6 I am familiar with Remy Moose Manley, LLP's practice for collection and processing mail 7 whereby mail is sealed, given the appropriate postage and placed in a designated mail collection area. 8 On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully 9 prepaid. 10 On May 31, 2019, I served the following: 11 [PROPOSED] JUDGMENT GRANTING IN PART PEREMPTORY WRIT OF MANDATE 12 1ZJ BY FIRST CLASS MAIL by causing a true copy thereof to be placed in a sealed envelope, 13 with postage fully prepaid, addressed to the following person(s) or representative(s) as listed below, and placed for collection and mailing following ordinary business practices. 14 D BY ELECTRONIC TRANSMISSION OR EMAIL by causing a true copy thereof to be 15 electronically delivered to the following person(s) or representative(s) at the email address(es) 16 listed below. I did not receive any electronic message or other indication that the transmission was unsuccessful. 17 1Zi BY ELECTRONIC TRANSMISSION by causing a true copy thereof to be electronically 18 delivered to the following person(s) or representative(s) at the email address(es) listed below, via the Court's electronic filing service provider. I did not receive any electronic message or 19 other indication that the transmission was unsuccessful. 20 SEE ATTACHED SERVICE LIST 21 I declare under penalty of perjury that the foregoing is true and correct. Executed this 31 ST day 22 of May, 2019, at Sacramento, California. 23 24 25 26 27 28 1 PROOF OF SERVICE 1 Sierra Club, et al. v. County of Fresno, et al. Fresno County Superior Court Case No. 11CECG00706 2 (Consolidated with Case Nos. 11CECG00709 and 11CECG00726) 3 SERVICE LIST 4 Sara Hedgpeth-Harris Attorneys for Petitioners 5 LAW OFFICE OF SARA HEDGPETH-HARRIS Sierra Club, et al. 5445 E. Lane Avenue 6 Fresno, CA 93727 Tel.: (559) 233-0907 7 Fax: (310) 798-2402 8 Email: sara.hedgpethharris@shh-law.com 9 Susan Brandt-Hawley BRANDT-HAWLEY LAW GROUP 10 P.O. Box 1659 Glen Ellen, CA 95442 11 E-mail: susanbh@preservationlawyers.com VIA USPS AND ELECTRONIC MAIL 12 Daniel C. Cederborg Attorneys for Respondents 13 County Counsel County of Fresno, et al. Kyle R. Roberson 14 Deputy County Counsel 15 FRESNO COUNTY COUNSEL 2220 Tulare Street, Suite 500 16 Fresno, CA 93721 Email: kroberson@fresnocountyca.gov VIA USPS AND ELECTRONIC MAIL 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE