LAURENCE M. WATSON, COUNTY COUNSEL
JACK W. GOLDEN, DEPUTY -- State Bar No. 92658
and MARIANNE VAN RIPER, DEPUTY - State Bar No. 136688
10 Civic Center Plaza, 4 Floor
Post Office Box 1379
Santa Ana, California 92702-1379 
Telephone: (714) 834-3357 
Facsimile: (714) 834-2359

Attorneys for COUNTY OF ORANGE

Exempt From Filing Fees Pursuant to Gov't Code § 6103 SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER Judge Ronald L. Bauer, Dept. C23 COUNTY OF ORANGE, ) Case No. 01CC07878 ) Petitioner/Plaintiff, ) PETITION FOR WRIT OF MANDATE ) AND COMPLAINT FOR v. ) DECLARATORY AND INJUNCTIVE ) RELIEF ) CITY OF LAGUNA WOOD and DOES 1 to ) 50, inclusive, )[Public Resources ) Code 21000, seq., Government Code Respondent/Defendant. ) Section 65300, et seq.]


PETITIONER/PLAINTIFF, COUNTY OF ORANGE, ALLEGES:

1. Petitioner/Plaintiff, COUNTY OF ORANGE (hereafter, "COUNTY" or "Petitioner"), is a political division and legal subdivision of the State of California with the legal ability to sue and be sued. Government Code sections 23001, 23002, 23003, and 23004. The Board of Supervisors is the legislative body which governs the County (Government Code section 25207) and through which the County exercises its powers (Government Code section 23005), including management of litigation (Government Code section 25203). On June 13, 2001, in closed session the Orange County Board of Supervisors authorized the initiation of this litigation.

2. Respondent/Defendant, CITY OF LAGUNA WOODS (hereafter "CITY" or "Respondent"), is a municipal corporation and a general law city organized and existing under and by virtue of the provisions of the Constitution of the State of California, with its principal offices located in the City of Laguna Woods, County of Orange, State of California.

3. Petitioner is not aware of the true names and capacities, whether individual, corporate, associate, governmental, or otherwise of Respondents/Defendants sued herein as DOES I through 50, inclusive, and will seek leave of Court to amend this Petition and Complaint to state their true names and capacities when they have been ascertained.

4. This litigation concerns the City’s failure to prepare an environmental impact report ("EIR") to address the potentially significant environmental impacts of the proposed project. The project at issue is defined by the City as City of Laguna Woods General Plan Amendment and Rossmoor Leisure World Planned Community Text Amendment to remove restrictions related to the former MCAS El Toro Marine Corps Air Station El Toro (File #GPA/ZCA 01-001).

5. The project is located in the City of Laguna Woods adjacent to the MCAS El Toro and applies to the area under a flight path associated with MCAS El Toro and its potential reuse as a commercial passenger and air cargo airport. The project concerns the City’s approval of Resolution No. 01-12 adopting the Negative Declaration amending its general plan and the Rossmoor Leisure World Planned Community text to eliminate restrictions related to the El Toro Marine Corps Station (MCAS), Resolution No. 01-13 overriding the Orange County Airport Land Use Commission s determination of Inconsistency, and Resolution No. 01-14 amending the land use, noise and safety elements of the general plan related to the El Toro Marine Corps Air Station (MCAS), and Ordinance No. 01-06 amending the Rossmoor Leisure World Planned Community Text. Respondent is the lead agency under the California Environmental Quality Act (CEQA) for evaluating the environmental impacts of the project.

6. Respondent caused a draft Negative Declaration to be circulated on March 17,2001 for twenty days, and did not provide Petitioner with a copy of the document. On or about April 16, 2001 Petitioner became aware of the document and requested extension of the review period. Respondent denied the request. By resolution dated May 2, 2001, Respondent resolved to approve the adequacy of the Negative Declaration under CEQA. A Notice of Determination to carry out the project was filed by Respondent on May 18, 2001.

7. The human and physical environment and natural resources and the use of the open space areas within the City by persons who reside, work, conduct business, or recreate therein are adversely affected by the failure of Respondent to comply with the requirements of the California Environmental Quality Act and the California Government Code in taking the actions complained of herein. The City Council was fully aware of the plans of Petitioner to convert MCAS El Toro to a commercial airport, yet! took the actions complained of in a manner that failed to disclose the impacts such actions may have on the human and physical environment. As the proponent of a commercial airport at El Toro, Petitioner has an interest in environmental disclosure and in maintenance of traditional land use restrictions designed to protect persons and properties in and around airports.

8. Petitioner is informed and believes, and upon said information and belief alleges, that Petitioner, other agencies, interested groups, and individuals made oral and written comments on the draft Negative Declaration and raised each of the legal deficiencies asserted in this petition. Petitioner will need to see the administrative record, including all written and oral public comments, and a transcript of the City Council proceedings, to verify the range of the legal deficiencies asserted in the public process.

9. Petitioner performed all conditions precedent to filing this action by complying with the requirements of Public Resources Code section 21167.5 in serving notice of this action on the City of Laguna Woods prior to it being filed.

10. Unless restrained, Respondent will be permitted to operate under a general plan amendment that did not comply with CEQA and that rendered its general plan internally inconsistent in contravention to California law. Implementation of the project will irreparably harm the environment in that eliminating restrictions associated with the MCAS El Toro changes the permitted uses of the subject property, enables uses incompatible with airport noise and safety regulations, and enables the exposure of City residents and other persons utilizing the subject property to noise and safety hazards generally associated with adjacent airport activities. A temporary restraining order and preliminary and permanent injunctions should issue restraining Respondent from proceeding with the project until such time as complete and adequate compliance with CEQA has been attained.

FIRST CAUSE OF ACTION

(Failure to Prepare an EIR)

11. Respondents actions on May 2nd and May 18, 2001, adopting the Negative Declaration, constituted a prejudicial abuse of discretion in that by adopting the negative declaration, and failing to prepare an EIR for the project as required by CEQA and the Guidelines, Respondents failed to proceed in the manner required by law.

12. Respondent’s adoption of the negative declaration constituted an abuse of discretion in that its finding as to the necessity of preparing an EIR was based upon an incorrect conclusions, including:

a. The Negative Declaration incorrectly concludes it will have no impact with adjacent planned land uses in that it ignores:

1. The inconsistency of the project with the Airport Environs Land Use Plan of the Orange County Airport Land Use Commission. The City did not address adequately whether the project will result in a safety hazard or noise problem for persons using an adjacent airport or for persons residing or working in the project area. This failure violates CEQA. Public Resources Code section 21096 sub.(b) prohibits adoption of a negative declaration, rather than certification of an environmental impact report, under these circumstances.

2. The inconsistency of the project with the Southern California Association of Governments (SCAG) Regional Transportation Plan (RTP) projecting a 30 million annual passenger (MAP) commercial airport at El Toro.

3. The inconsistency of the project with Measure A, approved by the voters of Orange County in 1994 amending the County of Orange General Plan to require a commercial airport at El Toro.

4. The inconsistency of the project with the adoption of the Community Reuse Plan and certification of Environmental Impact Report 563 by the County of Orange in December 1996 for a commercial airport at El Toro

5. The inconsistency of the project with the proposed Airport System Master Plan and Draft EW 573 which will be heard by the Orange County Board of Supervisors in September 2001.

6. The inconsistency of the project with the fact that both state and federal law include in the definition of an airport property that is intended to be used as an airport in the future. The operation of a commercial airport requires restrictions to adjacent property similar to the provisions of the general plan the Respondent has deleted. An attempt to re-implement restrictions may prove costly to the party required to compensate landowners for the regulatory restrictions imposed by local, state and federal law to permit airport operations.

7. The inconsistency of the actions taken by the City with two Superior Court decisions of which the City was made aware prior to its action. Those decisions are:

A. Consolidated cases of Cities of Irvine and Lake Forest v. Airport Land Use Commission (ALUC) for Orange County, a 2001 decision upholding the ALUC’s right to continue to enforce the AELUP for MCAS El Toro; and

B. County of Orange v. City of Irvine, a 1997 decision requiring the City of Irvine in its attempts to rezone the portion of MCAS El Toro within its corporate boundaries, to analyze the consistency of its project with the existing military AELUP and with the reasonably foreseeable future AELUP for a civilian airport at El Toro.

b. The Negative Declaration is incomplete and misleading in that it incorrectly concludes it will have no impact on air traffic. Eliminating the restrictions associated with MCAS El Toro may inhibit the flow of the proposed commercial airport’s air traffic dependent on those restrictions.

c. The Negative Declaration is incomplete and misleading in that it incorrectly concludes the project will have no impact on changes in air traffic patterns that could result in substantial safety risks. The proposed air traffic patterns of the proposed commercial airport rely upon the restrictions eliminated by Respondent. The elimination of the required federal, state and local noise and safety restrictions by the City of Laguna Woods may cause increased air traffic and safety risks both within the subject property and elsewhere in areas not historically subjected to airport noise and safety concerns and restrictions.

d. The Negative Declaration is incomplete and misleading in that it incorrectly concludes the project will not expose people residing and working in the project area to excessive noise levels. Located within the proposed airport land use plan of the former MCAS El Toro, the amendment of the general plan eliminating the noise restrictions associated with the MCAS El Toro and its proposed future use as a commercial airport will subject people residing and working in the project area to noise levels above the adopted standard.

e. The Negative Declaration is incomplete and misleading in that it concludes the project would have no impact on safety for people residing or working in the project area. Located within the proposed airport land use plan, the elimination of the standards created as safety precautions may subject people residing or working in the project area to safety hazards.

f. The Negative Declaration is incomplete and misleading in that it concludes the project would have no growth inducing impacts, cumulative impacts, direct and indirect environmental impacts based upon changes of types and densities of development permissible once the airport related restrictions are removed.

SECOND CAUSE OF ACTION

(Piecemealing the Project)

13. Petitioner realleges and incorporates by reference paragraphs 1. through 12.

14. Defendant s actions on May 2 and May 18, 2001 constituted a prejudicial abuse of discretion in that, by adopting a Negative Declaration which is not in accordance with CEQA and the Guidelines, Defendants acted in an prejudicial manner and failed to proceed in a manner proscribed by law.

15. CEQA mandates that an agency may not prepare a negative declaration that "piecemeals” a project by treating one project as several smaller projects for the purposes of environmental review. Although the project maintains an Open Space land use designation for the area where development restrictions were removed, the City of Laguna Woods General Plan acknowledges that the Open Space category indicates the current and near term use of the land, and is not necessarily an indication of a long-term commitment to open space uses, and due to market pressures to serve a growing population, may ultimately be developed in other ways. (City of Laguna Woods Interim General Plan, January 2001, pages III-8 and III-9.) The Negative Declaration violates CEQA and the Guidelines by ignoring the potential for residential/commercial development within the project area the Respondents deem "Open Space." By removing the development restrictions they pave the way for more intense, dense and populated land uses without analyzing the environmental impacts of such uses.

16. Such piecemealing prevents the reviewing agency from accurately evaluating the entire project’s environmental impacts, thereby resulting in an underestimation of and failure to disclose significant environmental impacts. Respondent thereby violated its duties adequately to disclose under CEQA the impacts of the project by preparing and certifying an EIR, considering mitigation measures and adopting findings and overriding considerations conforming to the requirements of CEQA and the CEQA Guidelines. Accordingly, the City’s approval of the Negative Declaration and the decision made to approve the project must be set aside.

THIRD CAUSE OF ACTION

(Failure to Give Adequate Notice)

17. Petitioner realleges and incorporates by reference paragraphs 1. through 16.

18. Respondent abused its discretion and failed to proceed in the manner required by law by failing to circulate the document for the entire 30 days as required by CEQA and the CEQA Guideline section 15105, and by failing to give notice to the County of Orange Planning and Development Services Department and Public Resources and Facilities Department as required by CEQA and CEQ Guidelines section 15072 and Government Code sections 65090, et seq., and 65352.

19. This failure to give adequate notice voids the decisions made by the Respondent, and thus the decisions should be set aside.

FOURTH CAUSE OF ACTION

(Unlawful General Plan - Government Code §§ 65300 et seq.;

Code of Civil Procedure 1085)

20. Petitioner realleges and incorporates by reference paragraphs 1. Through 19.

21. Government Code section 65300.5 requires Respondent City of Laguna Woods to ensure that "the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency."

22. In adopting the general plan amendments as part of the subject project, Respondent violated Government Code section 65300.5 in that it rendered its own general plan internally inconsistent. For example, the City did not amend all noise and safety references and requirements in the General Plan to conform with the actions taken with project approval to remove the noise and safety restrictions related to MCAS El Toro.

23. Further, the General Plan of the City does not contain a Housing Element, a requirement of state law. (Government Code section 65302, sub. (c).)

24. Adoption of a general plan is a legislative act reviewable under section1085 of the Code of Civil Procedure. (Government Code section 65301.5.) At all times herein, Respondent has had the ability to comply with the Government Code. Respondent’s adoption of an unlawful general plan and unlawful general plan amendment as part of the project was arbitrary, capricious, an abuse of discretion, a failure to proceed by law, and renders the general plan internally inconsistent, and void.

25. Although new cities have up to 30 months to adopt a general plan, once the City of Laguna Woods took action to adopt a general plan that plan must conform to California law.

26. The adoption of an unlawful general plan is void ab initio, thus this Court should set the City’s General Plan aside until it is brought into conformity with California law.

FIFTH CAUSE OF ACTION

(Declaratory Relief)

27. Petitioner realleges and incorporates by reference paragraphs 1. through 26.

28. An actual controversy exists between the Petitioner County on the one hand and the Respondent City of Laguna Woods on the other hand concerning Respondent’s compliance with CEQA, the CEQA Guidelines and the Government Code in adopting the Negative Declaration and approving the project.

29. The Petitioner contends that the Respondent violated CEQA and the CEQA Guidelines and the Government Code in each of the respects outlined in the first four causes of action and in the administrative record to be prepared herein.

30. The Respondent contends that its adoption of the negative declaration and approval of th general plan amendment project complied with all legal requirements.

31. The Petitioner and the Respondent are entitled to, and they need, a judicial declaration to resolve the parties respective rights, legal duties and liabilities in this dispute.

WHEREFORE, Petitioner prays for entry of judgment as follows:

1. For a temporary restraining order and preliminary injunction restraining Respondent from taking any action to carry out the project pending trial;

2. For a permanent injunction restraining Respondent from taking any action to carry out the project;

3. For a Declaratory Judgment declaring that Respondent did not comply with CEQA, the CEQA Guidelines and the Government Code in taking the actions of which Petitioner complains;

4. For a peremptory writ of mandate directing:

a. Respondent to vacate and set aside its approval off the Negative Declaration for the project and the Notice of Determination.

b. Respondent to suspend all activity under the Notice of Determination that could result in any change or alteration in the physical environment until Respondent has taken actions that may be necessary to bring the CEQA environmental documentation and Notice of Determination into compliance with CEQA.

c. Respondent to give complete and proper notices and to repair, circulate, and consider a legally adequate Environmental Impact Report and otherwise to comply with CEQA in any subsequent action taken to approve the project.

d. Respondent to rectify any defects in its general plan to bring it into conformity with California law, including eliminating any internal inconsistencies;

5. For its attorneys fees as allowed by law;

6. For costs of suit; and

7. For such other equitable or legal relief that the Court considers just and proper.

Dated: June 18, 2001 Respectfully submitted,

LAURENCE M. WATS0N, COUNTY COUNSEL

JACK W. GOLDEN, DEPUTY

MARIANNE VAN RIPER, DEPUTY

By_________________________

Jack W. Golden, Deputy

Attorneys for COUNTY OF ORANGE