Preview
COI AHR WHY HK
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SADA ARHSH SF SCH rADAARSAER AS
Richard L. Harriman, SBN 066124 CONEDENTIAfalfonia fF
Law Offices of Richard L. Harriman County of Butte
1078 Via Verona Drive | I
Chico, California 95973-1031 2/1/2022
Telephone: (530) 343-1386 - fy t
Email: richardharrimanattorney @ gmail.com D
a hd a D al
Attorney for Petitioner and Plaintiff B y Deputy
Biectronicalty FILED
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
NORTHERN CALIFORNIA ENVIRON- Case No.: 21CV00500
MENTAL DEFENSE CENTER, a California
f Case Assigned to Hon. Stephen E. Benson
non-profit corporation,
PETITIONER AND PLAINTFF
Petitioner. NORTHERN CALIFORNIA
, ENVIRONMENTAL DEFENSE
v. CENTER’S SETTLEMENT
CONFERENCE STATEMENT
CITY OF CHICO, a municipal corporation, and [Public R Code Section 21167.6(d)
ublic Resources Code Section -6(d);
cITy’ OF CHICO CITY'COUNCIL, & botly California Rules of Court, Rule 3.1380(c)
politic, and DOES 1-50, and Butte County Local Rules of Court,
Rule 3.10
Respondents. i F
Date Action Filed: 3/5/21
Settlement Conference Date: 2/7/22
Time: 9:00 a.m.
Department: Eight (8)
Hearing Date: 3/14/22
Comes now, Petitioner and Plaintiff, Northern California Environmental Defense Center,
and, pursuant to California Rules of Rules of Court, Rule 3.1380(c) and Butte County Superior
Court Local Rule 3.10, submits its Settlement Conference Statement, as follows.
I
PARTIES AND REPRESENTATION
Petitioner and Plaintiff Northern California Environmental Defense Center (“NCEDC”),
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a California non-profit public interest corporation, whose main office is located in the County of
Butte, is represented by the Law Offices of Richard L. Harriman. NCEDC will have its
President, William Bynum, present at the Settlement Conference, with its counsel, Richard L.
Harriman, appearing, via zoom conference.
Petitioner and Plaintiff is informed that Respondent and Defendant City of Chico’s
attorney of record, Eric Salbert, will be appearing with either the City Manager or other
authorized representative of the City of Chico present or available by telephone or zoom.
I
SUMMARY OF THE CASE
Following the approval of the Doe Mill Project at the northeast corner of E. 20th Street
and Bruce Road, the City approved the Meriam Park Master Plan development project located
north of E. 20th Street and west of Bruce Road to Humboldt Road, west of Bruce Road in
approximately 2008. Development was slow during the “Great Recession” of 2008-2014 and
in October, 2018, just before the Paradise Camp Fire, the City approved the Stonegate
development project on the east side of Bruce Road, from E. 20th Street to the Skyway and on
the west side of Bruce Road from E. 20th Street south to the vacant land owned by the Chico
Unified School District. The Stonegate project was challenged by NCEDC in Butte County
Superior Court on December, 2017 and is now on appeal in the Third District Court of Appeal,
and also by Center for Biological Diversity and AquAlliance in the U.S. District Court for the
Eastern District, Sacramento Division. The case before this Court was filed on March 5, 2021.
Ill
PROCEDURAL SUMMARY
This case concerns a challenge by NCEDC, based on Public Resources Code sections
21168 and 21168.5, based on the legal inadequacy and procedural defects in the environmental
review document entitled Mitigated Negative Declaration (MND) and Mitigation Measure
Monitoring Report (MMRP) for the Project entitled “Bruce Road Reconstruction Project, also
referred to in the Administrative Record as the “Bruce Road Expansion Project” and the Bruce
Road Widening Project.” The environmental review document and supporting documentation
was prepared by the City’s Department of Public Works-Engineering’s consultant Galloway
Consulting and other consultants in 2019-2020.om NDA HW BF WN He
b RY NY YW NR KY WD — Pe ep ewe 2
erAaAnDE SSS FSF SEAR ARESERAS
The Draft MND and MMRP was completed in August, 2020 and a Notice of Intent to
Adopt MND and MMRP was published on September 23, 2020 that allowed the public thirty
(30) days until October 23, 2021 within which to review a number of complex documents,
including studies prepared by the City’s Staff and Consultants in 2019-2020. NCEDC and other
members of the public filed their Comments and Objections within the time allowed by the City
Department of Public Works-Engineering, which approved and adopted the MND and MMRP
and, on November 25, 2020, approved the MND-MMRP and gave the Petitioner and other
members of the public ten (10) days within which to file their appeals. On December 7, 2020,
NCEDC timely filed its Appeal to the City Council with the City Clerk. The City set the hearing
on the Appeal before the City Council on February 2, 2021.
The City Council heard and denied NCEDC’s appeal and adopted and certified the MND
& MMRP on February 2, 2021. The City’s Notice of Determination was filed on February 3,
2021. The Petition for Administrative Mandate and Complaint for Declaratory Relief was filed
by NCEDC on March 5, 2021. The Administrative Record (AR) was completed and certified
on October 28, 2021. NCEDC has not filed its Opening Brief, due on December 9, 2021.
Respondent City filed its Opposition Brief on January 13, 2022. If this case is not settled on
February 7, NCEDC will file Petitioner and Plaintiff’s Reply Brief by February 10, 2022.
IV
ISSUES
NCEDC has alleged that the City has violated PRC section 21168 (lack of substantial
evidence to support the finding that there is not substantial evidence to support the adoption and
certification of the MND/MMRP) and PRC section 21168.5 (failure to proceed in the manner
required by law). City denies the material allegations and alleges affirmative defenses, including
failure to exhaust remedies and lack of substantial evidence to support a finding that the MND/
MMRP is not supported by substantial credible evidence.
NCEDC contends that there is substantial evidence that the City, acting as the lead
agency has failed to proceed in the manner required by law, based on its failure to comply with
Chico Municipal Code section 1.40.610, due to the fact that the MMRP does not include the
necessary element regarding the “timing” for the performance and completion of a number ofcm NIN DH BF WY
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ent nun VHF DO wHe ADA BOHN SS
Mitigation Measures identified in the MMRP, which have been “deferred” until an uncertain
time for their completion. CMC Section 1.40.610 D. This is a violation of the Municipal Code
provisions that purport to implement the MMRP, which is a Code violation which has potentially
significant consequences. Also, the Butte Environmental Council (BEC) submitted Comments
that include substantial evidence of potentially significant effects on the physical environment.
[AR, Tab 72, 3199-3202] NCEDC contends that the determination of whether the MMRP
violates the Municipal Code can be raised in its Reply Brief and/or in an Amended Petition and
Complaint. NCEDC will brief the non-compliance with the Municipal Code and significant
effects of this 25 acre project raised by BEC in NCEDC’s Reply Brief, citing to references in the
record.
Vv
LIABILITY AND DAMAGES
NCEDC has not sought a Temporary Restraining Order or Preliminary Injunction, and the|
City has not been restrained from proceeding to perform the Mitigation Measures and MMRP.
The MND provides that the ground may not be disturbed until the City has completeded the
Mitigation Measures requiring the issuance of permits by State and/or Federal agencies, as set
forth in the MMRP. Therefore, NCEDC has not delayed or interfered with the City’s efforts to
perform and complete the applications for such permits, which are also being challenged in
Federal Court by the Center for Biological Diversity and AquAlliance. NCEDC does not seek
monetary damages and no such damages are alleged or claimed.
VI
ISSUE REDUCTION OR RESOLUTION
Narrowing or resolving the foregoing issues would make it easier to settle this case or
shorten the length of the trial and would make it easier to settle this case. NCEDC requests the
Court’s assistance in facilitating a settlement between the parties.
VII
HISTORY OF SETTLEMENT DISCUSSIONS
As will be addressed below, NCEDC and the City have engaged in good faith settlement
negotiations with City Staff present at the CEQA Settlement Meeting held by the parties on July
8, 2021. Counsel for the parties held telephonic meet and confer discussions in mid-December,
4co MN DH BF WB Ke
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eraunse oH e SSR VTADAESBEEES
2021. NCEDC’s counsel met with his client’s representatives and transmitted a written
Settlement Offer to the City’s counsel on December 17, 2021 and requested the City to consider
the Settlement Offer in Closed Session at the City’s Council Meeting on December 21, 2021.
The City’s counsel informed NCEDC’s counsel that the City was engaged in a major
Federal Court case regarding claims by homeless residents, which was recently settled.
Finally, the City’s counsel and NCEDC’s counsel met and conferred by telephone on
January 27 and 28, 2022 and NCEDC’s counsel has transmitted a revised Offer to opposing
counsel on January 30, 2022, for the City’s representatives to review and consider. This responds
to the City’s communication of its position and demand for reimbursement for the cost of
preparing the AR and for attorneys’ fees, communicated to NCEDC’s counsel on J anuary 27-28.
NCEDC’s offer of January 30 will be available to be discussed by counsel for the parties,
who are attempting in good faith to resolve this matter without further law and motion and/or at
trial on March 14, 2022. Counsel have been candid and direct in their effort to resolve this
matter in the public interest without a trial.
VII
DOCUMENTS ATTACHED
No additional documents are attached. NCEDC respectfully invites the Court’s attention
to the City’s Reply Brief, which summarizes the issues, and, also, to NCEDC’s citations to the
record set forth above.
Ix
CONCLUSION
Both parties are attempting to resolve this matter by settlement without a trial and will
file notice of settlement with the Court if settlement is reached before the MSC.
The undersigned has reviewed Local Rule 3.10 and has complied with Rule 3.10(g).
Respectfully submitted,
Dated: February 2, 2022 VZihered Z a
RICHARD L. HARRIMAN
Attorney for Petitioner/Plaintiff
Northern California Environmental Defense CenterPROOF OF SERVICE
(Code Civ. Proc., §§ 1013a, 2015)
STATE OF CALIFORNIA, COUNTY OF BUTTE
[Butte County Superior Court Case No. 21CV0500]
Tam employed in the County of Stanislaus, State of California. I am over the age of 18
and not a party to the within action; my business address is 1078 Via Verona Drive, California
95973-1031.
On February 1, 2022, I served the following document(s) described as:
PETITIONER’S & PLAINTIFF’S SETTLEMENT CONFERENCE STATEMENT
FOR MSC ON 2-7-22
in the above-entitled action
/_X_/ By E-filing and E-service, pursuant to the Local Rules of Court of the Butte County
Superior Court to the following:
Eric G. Salbert, Esq.
Alvarez-Glasman & Colvin
13181 Crossroads Pkwy. North
Suite 400 —West Tower
City of Industry, CA 91746
esalbert @agclawfirm.com
/__/ By overnight delivery at Chico, California to the following addressee(s):
/_X / By email transmission to the addressee(s) above
/__/ By hand delivery by messenger to the following addressee(s):
/__/ With copies sent via facsimile transmission and email to the following fax number(s):
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct and is executed on February 1, 2022 at Chico, California.
=
RICHARD L. HARRIMAN
Preview
COI AHR WHY HK NN YP YY YN NR YKY KN Be Bee Bee Be Ke - SADA ARHSH SF SCH rADAARSAER AS Richard L. Harriman, SBN 066124 CONEDENTIAfalfonia fF Law Offices of Richard L. Harriman County of Butte 1078 Via Verona Drive | I Chico, California 95973-1031 2/1/2022 Telephone: (530) 343-1386 - fy t Email: richardharrimanattorney @ gmail.com D a hd a D al Attorney for Petitioner and Plaintiff B y Deputy Biectronicalty FILED IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE NORTHERN CALIFORNIA ENVIRON- Case No.: 21CV00500 MENTAL DEFENSE CENTER, a California f Case Assigned to Hon. Stephen E. Benson non-profit corporation, PETITIONER AND PLAINTFF Petitioner. NORTHERN CALIFORNIA , ENVIRONMENTAL DEFENSE v. CENTER’S SETTLEMENT CONFERENCE STATEMENT CITY OF CHICO, a municipal corporation, and [Public R Code Section 21167.6(d) ublic Resources Code Section -6(d); cITy’ OF CHICO CITY'COUNCIL, & botly California Rules of Court, Rule 3.1380(c) politic, and DOES 1-50, and Butte County Local Rules of Court, Rule 3.10 Respondents. i F Date Action Filed: 3/5/21 Settlement Conference Date: 2/7/22 Time: 9:00 a.m. Department: Eight (8) Hearing Date: 3/14/22 Comes now, Petitioner and Plaintiff, Northern California Environmental Defense Center, and, pursuant to California Rules of Rules of Court, Rule 3.1380(c) and Butte County Superior Court Local Rule 3.10, submits its Settlement Conference Statement, as follows. I PARTIES AND REPRESENTATION Petitioner and Plaintiff Northern California Environmental Defense Center (“NCEDC”), 1om IY DHA BF WKY eB Nn vk YP YP YN NN Yee He Ke —- Se eI AUF BDH fF FSEOeRAARESERES a California non-profit public interest corporation, whose main office is located in the County of Butte, is represented by the Law Offices of Richard L. Harriman. NCEDC will have its President, William Bynum, present at the Settlement Conference, with its counsel, Richard L. Harriman, appearing, via zoom conference. Petitioner and Plaintiff is informed that Respondent and Defendant City of Chico’s attorney of record, Eric Salbert, will be appearing with either the City Manager or other authorized representative of the City of Chico present or available by telephone or zoom. I SUMMARY OF THE CASE Following the approval of the Doe Mill Project at the northeast corner of E. 20th Street and Bruce Road, the City approved the Meriam Park Master Plan development project located north of E. 20th Street and west of Bruce Road to Humboldt Road, west of Bruce Road in approximately 2008. Development was slow during the “Great Recession” of 2008-2014 and in October, 2018, just before the Paradise Camp Fire, the City approved the Stonegate development project on the east side of Bruce Road, from E. 20th Street to the Skyway and on the west side of Bruce Road from E. 20th Street south to the vacant land owned by the Chico Unified School District. The Stonegate project was challenged by NCEDC in Butte County Superior Court on December, 2017 and is now on appeal in the Third District Court of Appeal, and also by Center for Biological Diversity and AquAlliance in the U.S. District Court for the Eastern District, Sacramento Division. The case before this Court was filed on March 5, 2021. Ill PROCEDURAL SUMMARY This case concerns a challenge by NCEDC, based on Public Resources Code sections 21168 and 21168.5, based on the legal inadequacy and procedural defects in the environmental review document entitled Mitigated Negative Declaration (MND) and Mitigation Measure Monitoring Report (MMRP) for the Project entitled “Bruce Road Reconstruction Project, also referred to in the Administrative Record as the “Bruce Road Expansion Project” and the Bruce Road Widening Project.” The environmental review document and supporting documentation was prepared by the City’s Department of Public Works-Engineering’s consultant Galloway Consulting and other consultants in 2019-2020.om NDA HW BF WN He b RY NY YW NR KY WD — Pe ep ewe 2 erAaAnDE SSS FSF SEAR ARESERAS The Draft MND and MMRP was completed in August, 2020 and a Notice of Intent to Adopt MND and MMRP was published on September 23, 2020 that allowed the public thirty (30) days until October 23, 2021 within which to review a number of complex documents, including studies prepared by the City’s Staff and Consultants in 2019-2020. NCEDC and other members of the public filed their Comments and Objections within the time allowed by the City Department of Public Works-Engineering, which approved and adopted the MND and MMRP and, on November 25, 2020, approved the MND-MMRP and gave the Petitioner and other members of the public ten (10) days within which to file their appeals. On December 7, 2020, NCEDC timely filed its Appeal to the City Council with the City Clerk. The City set the hearing on the Appeal before the City Council on February 2, 2021. The City Council heard and denied NCEDC’s appeal and adopted and certified the MND & MMRP on February 2, 2021. The City’s Notice of Determination was filed on February 3, 2021. The Petition for Administrative Mandate and Complaint for Declaratory Relief was filed by NCEDC on March 5, 2021. The Administrative Record (AR) was completed and certified on October 28, 2021. NCEDC has not filed its Opening Brief, due on December 9, 2021. Respondent City filed its Opposition Brief on January 13, 2022. If this case is not settled on February 7, NCEDC will file Petitioner and Plaintiff’s Reply Brief by February 10, 2022. IV ISSUES NCEDC has alleged that the City has violated PRC section 21168 (lack of substantial evidence to support the finding that there is not substantial evidence to support the adoption and certification of the MND/MMRP) and PRC section 21168.5 (failure to proceed in the manner required by law). City denies the material allegations and alleges affirmative defenses, including failure to exhaust remedies and lack of substantial evidence to support a finding that the MND/ MMRP is not supported by substantial credible evidence. NCEDC contends that there is substantial evidence that the City, acting as the lead agency has failed to proceed in the manner required by law, based on its failure to comply with Chico Municipal Code section 1.40.610, due to the fact that the MMRP does not include the necessary element regarding the “timing” for the performance and completion of a number ofcm NIN DH BF WY bP NR YP YY RN NH DY BP eB eR Be Be ewe ew we eK ent nun VHF DO wHe ADA BOHN SS Mitigation Measures identified in the MMRP, which have been “deferred” until an uncertain time for their completion. CMC Section 1.40.610 D. This is a violation of the Municipal Code provisions that purport to implement the MMRP, which is a Code violation which has potentially significant consequences. Also, the Butte Environmental Council (BEC) submitted Comments that include substantial evidence of potentially significant effects on the physical environment. [AR, Tab 72, 3199-3202] NCEDC contends that the determination of whether the MMRP violates the Municipal Code can be raised in its Reply Brief and/or in an Amended Petition and Complaint. NCEDC will brief the non-compliance with the Municipal Code and significant effects of this 25 acre project raised by BEC in NCEDC’s Reply Brief, citing to references in the record. Vv LIABILITY AND DAMAGES NCEDC has not sought a Temporary Restraining Order or Preliminary Injunction, and the| City has not been restrained from proceeding to perform the Mitigation Measures and MMRP. The MND provides that the ground may not be disturbed until the City has completeded the Mitigation Measures requiring the issuance of permits by State and/or Federal agencies, as set forth in the MMRP. Therefore, NCEDC has not delayed or interfered with the City’s efforts to perform and complete the applications for such permits, which are also being challenged in Federal Court by the Center for Biological Diversity and AquAlliance. NCEDC does not seek monetary damages and no such damages are alleged or claimed. VI ISSUE REDUCTION OR RESOLUTION Narrowing or resolving the foregoing issues would make it easier to settle this case or shorten the length of the trial and would make it easier to settle this case. NCEDC requests the Court’s assistance in facilitating a settlement between the parties. VII HISTORY OF SETTLEMENT DISCUSSIONS As will be addressed below, NCEDC and the City have engaged in good faith settlement negotiations with City Staff present at the CEQA Settlement Meeting held by the parties on July 8, 2021. Counsel for the parties held telephonic meet and confer discussions in mid-December, 4co MN DH BF WB Ke YN NR YP YP YW NRHN WK WY eo See Be eB we eraunse oH e SSR VTADAESBEEES 2021. NCEDC’s counsel met with his client’s representatives and transmitted a written Settlement Offer to the City’s counsel on December 17, 2021 and requested the City to consider the Settlement Offer in Closed Session at the City’s Council Meeting on December 21, 2021. The City’s counsel informed NCEDC’s counsel that the City was engaged in a major Federal Court case regarding claims by homeless residents, which was recently settled. Finally, the City’s counsel and NCEDC’s counsel met and conferred by telephone on January 27 and 28, 2022 and NCEDC’s counsel has transmitted a revised Offer to opposing counsel on January 30, 2022, for the City’s representatives to review and consider. This responds to the City’s communication of its position and demand for reimbursement for the cost of preparing the AR and for attorneys’ fees, communicated to NCEDC’s counsel on J anuary 27-28. NCEDC’s offer of January 30 will be available to be discussed by counsel for the parties, who are attempting in good faith to resolve this matter without further law and motion and/or at trial on March 14, 2022. Counsel have been candid and direct in their effort to resolve this matter in the public interest without a trial. VII DOCUMENTS ATTACHED No additional documents are attached. NCEDC respectfully invites the Court’s attention to the City’s Reply Brief, which summarizes the issues, and, also, to NCEDC’s citations to the record set forth above. Ix CONCLUSION Both parties are attempting to resolve this matter by settlement without a trial and will file notice of settlement with the Court if settlement is reached before the MSC. The undersigned has reviewed Local Rule 3.10 and has complied with Rule 3.10(g). Respectfully submitted, Dated: February 2, 2022 VZihered Z a RICHARD L. HARRIMAN Attorney for Petitioner/Plaintiff Northern California Environmental Defense CenterPROOF OF SERVICE (Code Civ. Proc., §§ 1013a, 2015) STATE OF CALIFORNIA, COUNTY OF BUTTE [Butte County Superior Court Case No. 21CV0500] Tam employed in the County of Stanislaus, State of California. I am over the age of 18 and not a party to the within action; my business address is 1078 Via Verona Drive, California 95973-1031. On February 1, 2022, I served the following document(s) described as: PETITIONER’S & PLAINTIFF’S SETTLEMENT CONFERENCE STATEMENT FOR MSC ON 2-7-22 in the above-entitled action /_X_/ By E-filing and E-service, pursuant to the Local Rules of Court of the Butte County Superior Court to the following: Eric G. Salbert, Esq. Alvarez-Glasman & Colvin 13181 Crossroads Pkwy. North Suite 400 —West Tower City of Industry, CA 91746 esalbert @agclawfirm.com /__/ By overnight delivery at Chico, California to the following addressee(s): /_X / By email transmission to the addressee(s) above /__/ By hand delivery by messenger to the following addressee(s): /__/ With copies sent via facsimile transmission and email to the following fax number(s): I declare under penalty of perjury under the laws of the State of California that the above is true and correct and is executed on February 1, 2022 at Chico, California. = RICHARD L. HARRIMAN