Loading...
HomeMy WebLinkAbout2004-02-17; City Council; 17503; Vista vs. Carlsbad case GIC 800037 settlementCITY OF CARLSBAD - AGENDA BILL AB# 17,503 MTG. 2/17/04 DEPT. CA TITLE: REPORTING OUT THE TERMS AND CONDITIONS OF THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN CITY OF VISTA V. CITY OF CARLSBAD CASE NO. GIC 800037 RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: 0. I DEPT. HD. CITY ATTY. @!? I CITY MGR. I At its closed session meeting of January 13, 2004, the City Council discussed and approved a proposed settlement of the above referenced case subject to approval by all parties. The settlement was approved and signed by Judge Wayne Peterson on Wednesday, February 11 , 2004. This item satisfies the Brown Act requirement to report the fact of a settlement of litigation approved in a prior closed session, and makes the terms and conditions of the settlement available to the public. The Settlement Agreement and General Release (attached) is provided for public review. FISCAL IMPACT: There is no cost of settlement to the City of Carlsbad. EXHIBITS: Settlement Agreement and General Release SETTLEMENT AND COMPROMISE AGREEMENT This SETTLEMENT AND COMPROMISE AGREEMENT (“Settlement”) is entered into effective as of January 13, 2004, by and among (i) the City of Vista, a municipal corporation (“Vista”), (ii) the City of Carlsbad, a municipal corporation (“Carlsbad”) and (iii) Carlsbad Oaks North Partners, L.P., a California limited partnership and Techbilt Construction Corp., a California corporation (collectively “Oaks/Techbilt”), with reference to the following facts: RECITALS A. On October 8, 2002, Carlsbad approved the development project known as the Carlsbad Oaks North Specific Plan, Faraday Avenue Roadway Extension, Fuerte Street Extension, South Auga Hedionda Sewer Interceptor and associated actions (collectively “Oaks Project”), more specifically described in the Carlsbad Oaks North Specific Plan Final Program Environmental Impact Report (SCH No. 200005 1057) certified by Carlsbad pursuant to Resolution No. 2002-298 (“FEIR). The FEIR analyzed potential environmental impacts of opening Faraday Avenue to through traffic at the VistdCarlsbad border. B. OaksEechbilt is the owner and developer of the 414 acre privately owned portion of the Oaks Project and the Carlsbad approvals authorize development of up to 1,921,000 square feet of light industrial and business park uses on OaksiTechbilt property within the Oaks Project. While located entirely in Carlsbad, the Oaks Project is contiguous to Vista’s boundary and future Oaks Project traffic is expected to use portions of Faraday Avenue, South Melrose Drive and Sycamore Avenue within Vista for access to and from the Oaks Project. C. Vista objected to Carlsbad’s approval of the Oaks Project and certification of the FEIR because Carlsbad did not impose conditions requiring the Oaks Project to mitigate certain identified traffic impacts from the Oaks Project within the municipal boundaries of Vista. On November 12, 2002, Vista filed an administrative mandamus action in San Diego County Superior Court (case no. GIC800037) challenging the validity of the Oaks Project approvals and FEIR certification (the “Lawsuit”). D. Following the consideration of the administrative record, written briefs and the September 15, 2003 oral argument of all parties, the Honorable Wayne J. Peterson, Judge of the Superior Court, issued his Minute Order dated December 8, 2003 (attached hereto as Exhibit “1”) ruling in favor of Vista and against Carlsbad and OakdTecbbilt. Carlsbad and OaksKechbilt disagree with the Minute Order. No judgment on the Minute Order has been entered, nor has the Court issued any other subsequent order or writ. E. The parties now desire to settle the Lawsuit in its entirety by Stipulation for Judgment entering this Settlement as the judgment of the Court in order to avoid the expense, delay and uncertainty of further litigation and subsequent appeals, and to forever resolve, settle and compromise the Lawsuit and avoid certain potential future litigation, or the possibility thereof, between the parties as set forth herein. TechbiltlCarlsbad Oaks North Settlement Agreement 16466-0000311 929501.5 I Final 1127104 NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. Incorporation of Recitals. Recitals A through E, inclusive, are incorporated herein by this reference and acknowledged by all parties hereto as accurate. 2. Payment to Vista. OakdTechbilt shall cause payment (“Settlement Payment”) to Vista in the total sum of Two Hundred Eighty Thousand Dollars ($280,000) within ten (10) days of entry by the Superior Court of this Stipulated Judgment. Of the Settlement Payment, Vista shall allocate: a) One Hundred Seventy-Five Thousand Dollars ($1 75,000) to construct additional traffic improvements within Vista at the South Melrose DriveRaraday Avenue and South Melrose Drive/Sycamore Avenue intersections and b) One Hundred Five Thousand Dollars ($105,000) as full and complete satisfaction, payment and reimbursement for all attorney’s fees, administrative record and all other costs and expenses, incurred or claimed by Vista, in connection with the Lawsuit and this Settlement. Vista accepts the Settlement Payment as satisfying any and all obligations of Carlsbad and OakdTechbilt, based on the FEIR, to mitigate impacts of the Oaks Project within Vista and any and all claims associated with the Oaks Project and the Lawsuit. 3. Home Depot Proiect. Vista is presently considering development applications for a proposed new Home Depot project in Vista at the Faraday Avenue/South Melrose Drive intersection, including a Final Environmental Impact Report, General Plan Amendment, amendment to the Vista Business Park Specific Plan, and Site Development Plan (collectively, “Home Depot Project”). The Home Depot Project, if approved, would authorize up to a 142,173 square foot Home Depot home improvement warehouse and garden center, and separate 7,150 square foot retailhestaurant building at 2430 S. Melrose Drive in Vista. In order to resolve and avoid potential future disagreements over the Home Depot Project approvals, Carlsbad and OakdTechbilt agree not to oppose or contest the Home Depot Project, in either the administrative approval process or through legal action challenging the Home Depot Project approvals, if granted, nor shall Carlsbad or OakdTechbilt request or require any Home Depot Project mitigation measures or fair share contributions for any traffic or other environmental impacts be made within the Carlsbad municipal boundaries, and the mitigation imposed in the Home Depot Project EIR is not desired because the Oaks Project FEIR traffic analysis does not call for any additional mitigation in Carlsbad. The parties mutually agree and understand that nothing contained herein, nor in any of the discussions or negotiations leading up to this Settlement, constitutes or shall be construed so as to require or compel the approval of the Home Depot Project by Vista. Vista retains all its municipal and governmental powers and discretion in its consideration of the Home Depot Project. Provided however, in the event Vista disapproves, or otherwise fails to approve, the Home Depot Project, then all the parties agree and intend that this Settlement shall be deemed terminated, rescinded and of no force nor effect whatsoever. As used herein, “approved” or “approval” of the Home Depot Project shall be the final Vista City Council action on the currently pending Home Depot Project resolutions and Techbi WCarlsbad Oaks North Settlement Agreement 16466-00003/1929501.5 2 Final 1/27/04 ordinances, notwithstanding whether such action is thereafter judicially or administratively challenged. 4. Concurrent Oueninp; of Faraday Avenue and Melrose Drive. Within the municipal boundaries of Vista, Faraday Avenue and South Melrose Drive presently terminate at the municipal boundaries of Carlsbad, as ueither Faraday Avenue nor Melrose Drive improvements are presently constructed in Carlsbad to connect to the existing Vista roadways. In order to provide for the orderly connection of these future road segments between the two cities, Vista agrees to open Faraday Avenue for public travel at the Carlsbad boundary concurrently with Carlsbad's opening for public travel of the future Melrose Avenue extension at the Vista boundary. 5. Mutual General Release. The parties hereto, on behalf of themselves and their respective officers, shareholders, beneficiaries, members, employees, contractors, agents and consultants intend this Stipulated Judgment as a full and complete mutual general release of all claims, whether known or unknown, arising out of or in any way related to the Oaks Project and the Home Depot Project, as described above, and the conduct, events, or omissions alleged in the Lawsuit, and hereby mutually release each other, and their respective officers, shareholders, beneficiaries, members, employees, contractors, agents and consultants from any and all such claims. The parties hereto expressly waive the provisions of California Civil Code Section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS MENT WITH THE DEBTOR. Initials: Vista Carlsb Oaks/Techbilt 6. No Waiver of Unrelated Matters. Without in any way limiting the foregoing, the parties do not intend by this Settlement to waive any rights to participate in the public comment and review process with respect to any future development project or to otherwise contest the California Environmental Quality Act compliance by Carlsbad or Vista concerning matters outside the scope of this Settlement and the specific projects as described herein. Nor do the parties intend by this Settlement to waive any rights to participate in or challenge any supplemental environmental review undertaken by Carlsbad or Vista due to changes in the Oaks or Home Depot Projects. 7. No Admission of Liability. Nothing in this Settlement shall be construed as an admission by any party of any liability or wrongdoing in connection with the Lawsuit or the respective project approvals. 8. Disputed Claims. The parties further agree that this Settlement is a settlement and compromise of disputed claims in lieu of entry of judgment on the Minute Order, and as a TechbilUCarlsbad Oaks North Settlement Agreement 16466-00003/1929501.5 ' 3 Final 1/27/04 ordinances, notwithstanding whether such action is thereafter judicially or administratively challenged. 4. Concurrent Opening of Faraday Avenue and Melrose Drive. Within the municipal boundaries of Vista, Faraday Avenue and South Melrose Drive presently terminate at the municipal boundaries of Carlsbad, as neither Faraday Avenue nor Melrose Drive improvements are presently constructed in Carlsbad to connect to the existing Vista roadways. In order to provide for the orderly connection of these future road segments between the two cities, Vista agrees to open Faraday Avenue for public travel at the Carlsbad boundary concurrently with Carlsbad’s opening for public travel of the future Melrose Avenue extension at the Vista boundary. 5. Mutual General Release. The parties hereto, on behalf of themselves and their respective officers, shareholders, beneficiaries, members, employees, contractors, agents and consultants intend this Stipulated Judgment as a full and complete mutual general release of all claims, whether known or unknown, arising out of or in any way related to the Oaks Project and the Home Depot Project, as described above, and the conduct, events, or omissions alleged in the Lawsuit, and hereby mutually release each other, and their respective officers, shareholders, beneficiaries, members, employees, contractors, agents and consultants from any and all such claims. The parties hereto expressly waive the provisions of California Civil Code Section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Initials: Vista Carlsbad OakdTechbilt 6. No Waiver of Unrelated Matters. Without in any way limiting the foregoing, the parties do not intend by this Settlement to waive any rights to participate in the public comment and review process with respect to any future development project or to otherwise contest the California Environmental Quality Act compliance by Carlsbad or Vista concerning matters outside the scope of this Settlement and the specific projects as described herein. Nor do the parties intend by this Settlement to waive any rights to participate in or challenge any supplemental environmental review undertaken by Carlsbad or Vista due to changes in the Oaks or Home Depot Projects. 7. No Admission of Liability. Nothing in this Settlement shall be construed as an admission by any party of any liability or wrongdoing in connection with the Lawsuit or the respective project approvals. 8. Disputed Claims. The parties further agree that this Settlement is a settlement and compromise of disputed claims in lieu of entry of judgment on the Minute Order, and as a TechbilUCarlsbad Oaks North Settlement Agreement 16466-00003/1929501.5 3 Final 1/27/04 ordinances, notwithstanding whether such action is thereafter judicially or administratively challenged. 4. Concurrent Opening of Faraday Avenue and Melrose Drive. Within the municipal boundaries of Vista, Faraday Avenue and South Melrose Drive presently terminate at the municipal boundaries of Carlsbad, as neither Faraday Avenue nor Melrose Drive improvements are presently constructed in Carlsbad to connect to the existing Vista roadways. In order to provide for the orderly connection of these future road segments between the two cities, Vista agrees to open Faraday Avenue for public travel at the Carlsbad boundary concurrently with Carlsbad's opening for public travel of the future Melrose Avenue extension at the Vista boundary. 5. Mutual General Release. The parties hereto, on behalf of themselves and their respective officers, shareholders, beneficiaries, members, employees, contractors, agents and consultants intend this Stipulated Judgment as a full and complete mutual general release of all claims, whether known or unknown, arising out of or in any way related to the Oaks Project and the Home Depot Project, as described above, and the conduct, events, or omissions alleged in the Lawsuit, and hereby mutually release each other, and their respective officers, shareholders, beneficiaries, members, employees, contractors, agents and consultants from any and all such claims. The parties hereto expressly waive the provisions of California Civil Code Section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Initials: Vista Carlsbad Oaks/TechbiIt'!$(& 6. No Waiver of Unrelated Matters. Without in any way limiting the foregoing, the parties do not intend by this Settlement to waive any rights to participate in the public comment and review process with respect to any fbture development project or to otherwise contest the California Environmental Quality Act compliance by Carlsbad or Vista concerning matters outside the scope of this Settlement and the specific projects as described herein. Nor do the parties intend by this Settlement to waive any rights to participate in or challenge any supplemental environmental review undertaken by Carlsbad or Vista due to changes in the Oaks or Home Depot Projects. 7. No Admission of Liabilitv. Nothing in this Settlement shall be construed as an admission by any party of any liability or wrongdoing in connection with the Lawsuit or the respective project approvals. 8. Disputed Claims. The parties further agree that this Settlement is a settlement and compromise of disputed claims in lieu of entry of judgment on the Minute Order, and as a TechbiltICarlsbad Oaks North Settlement Agreement 16466-00003/1929501.5 3 Final 1/27/04 settlement and compromise, the Minute Order is not binding on or against the parties or the Oaks Project in any way and the Settlement shall not be construed or interpreted as a judicial finding or conclusion that the Oaks Project approvals and FEIR fail to comply with the requirements of CEQA. 9. Superior Court Jurisdiction. This Settlement shall be entered as an order of the Superior Court which will retain jurisdiction hereof for the purpose of enforcing performance of this Settlement in accordance with its terms. 10. Attorney’s Fees. In the event it becomes necessary for any party to this Settlement to take any action to interpret or enforce or any of its terms, the prevailing party in such proceeding shall be entitled, in addition to any judgment or award, to an award for all fees (including attorneys’ fees), costs and expenses, including court or arbitration costs and expenses in connection with any reasonable and necessary future enforcement action. 1 1. Miscellaneous. a. Except as otherwise expressly provided herein, all covenants, releases, warranties, representations and obligations of any party herein shall survive the Settlement Payment under this Settlement and shall be and remain in fbll force and effect thereafter. b. The parties agree to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, from time to time, to effectuate the terms of this Settlement. c. This Settlement sets forth the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, term sheets, agreements, oral or written, between the parties hereto with respect to the matters resolved herein. No claim of waiver, modification, consent or acquiescence with respect to any provision of this Settlement shall be made against any party, except on the basis of a written instrument executed by or on behalf of such party. d. This Settlement shall inure to the benefit of and shall be binding upon the successors and assigns of the parties hereto. e. The headings of all sections of this Settlement are inserted solely for convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction or interpretation of any term or provision hereof. f. To the extent that performance is to be governed by time, time shall be deemed to be of the essence hereof. g. laws of the State of California. This Settlement is to be governed by and construed in accordance with the h. This Settlement may be executed and delivered in any number of counterparts, each of which, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement. The parties may rely upon a facsimile copy Techbilt/Carlsbad Oaks North Settlement Agreement 16466-00003/1929501.5 4 Final 1/27/04 of any party’s signature as an original for all purposes. Each individual executing this Settlement on behalf of a party hereto represents he or she has been duly authorized and empowered to execute and deliver this Settlement on behalf of said party. 1. This Settlement is the product of negotiations of the parties, each of which have been represented by legal counsel of their own choice, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any party by reason of that party having drafted or caused to be drafted this Settlement, or any portion hereof, shall not be effective in regard to the interpretation hereof. IN WITNESS WHEREOF, the parties have executed this Settlement effective as of the day and year first above written. CITY OF VISTA, a By: Name: Morris B. Vance Its: Mayor CARLSBAD OAKS NORTH PARTNERS, L.P., a California limited partnership By: Name: Its: CITY OF CARLSBAD, a Municipal Corporation By: Name: Claude A. Lewis Its: Mayor TECHBILT CONSTRUCTION CORPORATION, a California corporation APPROVED AS TO FORM: OFFICE OF THE VIS- ATTORNEY /In \ By: Dedetz, City Attorney \ Atiorneys for petitioner, City of Visb REMY, THOMAS, MOOSE and MANLEY, LLP By: Tina A. Thomas Attorneys for Petitioner, City of Vista By: Name: Its: TechbiltKarlsbad Oaks North Settlement Agreement 16466-00003/1929501.5 5 Final 1/27/04 of any party's signature as an original for all purposes. Each individual executing this Settlement on behalf of a party hereto represents he or she has been duly authorized and empowered to execute and deliver this Settlement on behalf of said party. i. This Settlement is the product of negotiations of the parties, each of which have been represented by legal counsel of their own choice, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any party by reason of that party having drafted or caused to be drafted this Settlement, or any portion hereof, shall not be effective in regard to the interpretation hereof. IN WITNESS WHEREOF, the parties have executed this Settlement effective as of the day and year first above written. CITY OF VISTA, a Municipal corporation By: Name: Morris B. Vance Its: Mayor CARLSBAD OAKS NORTH PARTNERS, L.P., a California limited partnership By: Name: Its: CITY OF CARLSBAD, a Municipal Corporation By: Name: Claude A. Lewis Its: Mayor TECHBILT CONSTRUCTION CORPORATION, a California corporation By: Name: Its: APPROVED AS TO FORM: OFFICE OF THE VISTA CITY ATTORNEY By: J. Wayne Demetz, City Attorney Attorneys for Petitioner, City of Vista REMY. THOMAS, MOOSE and MANLEY, LLP Attorneys for Petitioner, City of Vista TcchbilvCarlsbad Oaks North Scttlenicnt Agrecment 16466-00003/1929501.5 5 Final 1/27/04 of any party’s signature as an original for all purposes. Each individual executing this Settlement on behalf of a party hereto represents he or she has been duly authorized and empowered to execute and deliver this Settlement on behalf of said party. 1. This Settlement is the product of negotiations of the parties, each of which have been represented by legal counsel of tbeir own choice, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any party by reason of that party having drafted or caused to be drafted this Settlement, or any portion hereof, shall not be effective in regard to the interpretation hereof. IN WITNESS WHEREOF, the parties have executed this Settlement effective as of the day and year first above written. CITY OF VISTA, a Municipal corporation By: Name: Morris B. Vance Its: Mayor CARLSBAD OAKS NORTH PARTNERS, L.P., a California limited partnership By: Name: Its: Its: Mayor TECHBILT CONSTRUCTION CORPORATION, a California corporation APPROVED AS TO FORM: OFFICE OF THE VISTA CITY ATTORNEY By: J. Wayne Dernetz, City Attorney Attorneys for Petitioner, City of Vista REMY, THOMAS, MOOSE and MANLEY, LLP By: . Tina A. Thomas Attorneys for Petitioner, City of Vista By: Name: Its: TechbiltKarlsbad Oaks North Settlement Agreement 16466-00003/192950 1.5 5 Final 1/27/04 D CITY ATTORNEY Attorneys for Real Parties in Interest Techbilt Construction Corp. and Carlsbad Oaks North Partners, L.P. TechbiltKarlsbad Oaks North Settlement Agreement 16466-00003/1929501.5 ' 6 Final 1/27/04 of any party’s signature as an original for all purposes. Each individual executing this Settlement on behalf of a party hereto represents he or she has been duly authorized and empowered to execute and deliver this Settlement on behalf of said party. i. This Settlement is the product of negotiations of the parties, each of which have been represented by legal counsel of their own choice, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any party by reason of that party having drafted or caused to be drafted this Settlement, or any portion hereof, shall not be effective in regard to the interpretation hereof. IN WITNESS WHEREOF, the parties have executed this Settlement effective as of the day and year first above written. CITY OF VISTA, a Municipal corporation By: Name: Morris B. Vance Its: Mayor CARLSBAD OAKS NORTH PARTNERS, L.P., a California limited APPROVED AS TO FORM: OFFICE OF THE VISTA CITY ATTORNEY By: J. Wayne Dernetz, City Attorney Attorneys for Petitioner, City of Vista REMY, THOMAS, MOOSE and MANLEY, LLP By: Tina A. Thomas Attorneys for Petitioner, City of Vista TechbiltlCarlsbad Oaks North Settlement Agreement 16466-00003/192950 1.5 5 CITY OF CARLSBAD, a Municipal Corporation By: Name: Claude A. Lewis Its: Mayor TECHBILT CONSTRUCTION CORPORATION, a California corporation Name: Ttc * Final 1/27/04 EXHIBIT "1" SUPERIOR COURT OF CALIFORNIA County of San Diego DATE: December 8,2003 DEPT. 75 REPORTER A: Not Reported PRESENT HON. WAYNE L. PETERSON JUDGE csm CSR# CLERK: Carolina Nepomuceno BAILIFF: REPORTER'S ADDIZESS: P.O. BOX 120128 SAN DIEGO, CA 92112-4104 CASE NO. GIC800037 CITY OF VISTA, Petitionerrnlainti ff, V. F' cHrdlwawbmt6rCa*c DEC08 2003 @Fc.-,Depr& CITY OF CARLSBAD, et al., RespondentdD efendants. MINUTE ORDER This matter was taken under submission on September 15,2003. The Court has reviewed the evidence in light of the arguments of counsel and the applicable law. The Court's tentative decision is AFFIRMED and the tentative ruling is modified as follows: The Administrative Writ of Petitioner City of Vista is GRANTED. Petitioners are the City of Vista and Respondents are the City of Carlsbad and the City Council of Carlsbad. Real Parties in Interest are TechbiIt Construction Corp. and Carlsbad Oaks North Partners, L.P.. The subject project involves the development of 1.9 million square foot industrial/business park to be developed by Real Parties, on property owned by Real Parties. The Project contains approximately 650 acres of land located in the northeastern portion of Carlsbad in San Diego County. This acreage includes the 414 acre Specific Plan property as well as the general alignment corridors of the roadway and sewer off-site. Petitioner alleges the Specific Plan is bound by (1) a single-family residential neighborhood located in the City of Vista to the east; (2) the Carlsbad Oaks East and West Business Centers to the south; (3) vacant land owned by the County of San Diego to the west; and (4) the Dawson Los Monos Canyon Reserve to the North. The Specific Plan literally touches the southwestern border of Vista's city limits, with industrial development bordering Vista for about one half mile. The Project is expected to generate approximately 22,650 vehicle trips per day, and will cause significant trafilc impacts at eleven intersections located in the cities of Carlsbad, Oceanside, San Marcos, and Vista. Two of the three most heavily impacted intersections are located in Vista, including the Project's most impacted intersection, Melrose Drive and Faraday Avenue (MelroselFaraday), Page 1 of 4 pages EXHIBIT "1" CASE NO. GXC800037 CITY OF VISTA v. ClTY OF CARLSBAD, et al. December 8,2003 Continued Minute Order Petitioner hrther alleges 44% of all traffic entering or exiting the Specific Plan area will pass through a single intersection in Vista, the MelroselFaraday intersection. The increase in peak hour delays in both the morning and evening at this intersection will be approximately one minute, which will degrade the intersection's level of service (LOS) to unacceptable level of "F." Without the Faraday extension, the MelroseFaraday intersections would operate at an acceptable LOS "D" through 2020. In addition, Petitioner alleges the Vista intersection of Sycamore and Melrose will cany 24'%0 of all Project traffic increasing delays and degrading the level of service to LOS "F." To mitigate the Project's impacts to Vista's intersections, additional turn lanes and related improvements are required. By this action, Petitioner requests that the Court impose conditions on the Project to require Carlsbad andor the Developer to either construct these improvements or make a fair share contribution for the construction of the required improvements prior to gaining Project approval. Throughout the EIR process the City of Vista objected to the impacts on its intersections and proposed suggested mitigation measures that were dismissed by Respondents as infeasible. Respondents finally adopted findings under Public Resources Code section 2 108 1 (a)(2) which stated any necessary changes at Melrose/Faraday and Sycarnore/Melrose were within the jurisdiction and responsibility of Petitioner City of Vista. On August 13, 2003 Petitioner adopted a resolution amending its Capital Improvement Program to include any street improvements for the impacted intersections. The Resolution authorizes Vista to receive contributions for these improvements as part of a mitigation program, or to have developers construct improvements rather than make contributions. Petitioner alleges the City of Carlsbad rebed Vista's attempts maintaining that it was Carlsbad's policy to refuse mitigation of project impacts that fall outside of Carlsbad's city limits. Vista responded this position was contrary to CEQA. On October 8,2002 Respondents approved the Project without imposing conditions on the Project to reduce the traffic impacts in Vista. No public agency shall approve or cany out a project for which an environmental impact report has been certified which identifies one or more significant erfects on the environment that would occur if the project is approved or carried out unless the public agency finds with respect to each significant effect changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment; those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency. (Pub. Resources Code section 2 lOSl(a).) The Court finds the plain language of subdivision (a)(2) references "those changes" as stated in subdivision (a)(]). But, Carlsbad required no changes or alterations to the Project which resulted in mitigation of traffic impacts to Vista. Yet, Carlsbad found it could approve the Project despite the enviromental impacts because Carlsbad determined the traffic impacts resulting from the Project were the responsibility of Vista. The lead agency must consider the whole of an action, not simply its constituent parts, when determining whether aproject will have a significant environmental impact. (CEQA Guidelines section 15003(h).) Carlsbad recognized this CEQA principle as evidenced by the fact that project impacts outside Carlsbad's political boundaries were studied in the subject EIR, Further, CEQA establishes a duty for public agencies to avoid or minimize environmental damage where feasible; and a public agency should not approve a project as proposed if there are feasible alternatives or mitigation measures available Page 2 of 4 pages EXHIBIT "1" CASE NO. GIC800037 CITY OF VISTA v. CITY OF CARLSBAD, et al. December 8,2003 Continued Minute Order that would substantially lessen any significant effects that the project would have on the environment. (CEQA Guidelines section 15021(a)(2).) Carlsbad correctly identified significant environmental impacts to traffic inside and outside its political boundaries. Carlsbad mitigated the traff~c impacts inside its political boundaries by requiring, as condition for approval of Developer's project, that the Developer pay to improve the intersections impacted by the Project located within Carlsbad's political boundary. Carlsbad, however, did not require the Developer to mitigate the impacts on intersections located in Vista. A lcad agcncy for a projcct has authority to rcquirc fcasiblc change3 in any or all aactivitics involvcd in thc piwjcr;t iir uidt;~ to substantially lessen or avoid significant effects on the environment. (CEQA Guidelines sections 15040, 15041 9(a).) Vista's willingness to cooperate with Carlsbad to mitigate the traffic impacts in Vista and Vista's capital improvement program provides Carlsbad with an effective means of finding mitigation measures to reduce traffic impacts in Vista to less than significant levels. Carlsbad is correct that it has no authority to effectuate ordinances or condemn property outside its political boundaries. (See cases cited by Carlsbad and Real Party). However, Carlsbad clearly has the authority to require Real Party to mitigate traffic impacts in Vista - especially at Vista's behest - before Carlsbad will approve the impact producing project. (Public Resources Code Sections 21000-21002.1; 21004; 21081 and CEQA Guidelines, 14 CCR sections 1 5 02 1 (a)(2), 1 5040, 1 504 1 (a).) It is undisputed that CEQA requires an agency to study environmental impacts resulting from Projects regardless ofwhether those impacts occur outside the agencies' political boundaries. It is hrther undisputed that the issue before the court is one of first impression. Specifically, does an agency have an obligation within CEQA to mitigale adverse environmental impacts properly identified in an environmental document which lie outside its political boundaries? Respondents' position that it has a legal preclusion from mitigating identified adverse impacts outside its political boundaries is unsupported by the record in this action. The record establishes extra-temtorial mitigation OCCUTS on a regular basis pursuant to CEQA in other jurisdictions in approval of other projects. (AR 1078-1082) Thc record also estabIishes Respondents considered traffic mitigation of project impacts in Vista and even discussed implementation of mitigation, but the ultimate decision not to mitigate the traffic impacts was apparently the result of a political decision steeped in conflict between the two jurisdictions. (AR 0069-70; 0073-74; 0080; 0084; 0087; 0089-91, among others) While it may be true that one public agency has no articulated power to effectuate unwelcome municipal matters in areas beyond its political boundaries, the record reflects Respondents hold the ability and authority to mitigate project impacts in Vista by conditioning approval of the Project on the applicant's cooperation with a willing neighboring municipality. (AR 0208; 0250; 1586) In response to Petitioners' comments regarding the identified noise impacts in Vista, Respondents explained it had no power to effectuate any noise impacts, but the Real Party had volunteered to undertake mitigation of those impacts. (AR 181 1; 1819) The EIR, however, identifies noise impacts in Vista and requires mitigation measures which direct the Real Party Developer to conduct further studies and construct noise barriers to protect Vista residents from adverse noise impacts of the Project. (AR 0208) Further, in Respondents' Monitoring and Reporting Program identifies the City of Carlsbad as the "Responsible Monitoring Party'' to ensure the noise mitigation measures for Vista residents are enforced. (AR 0250) Notably, any language referencing "Vista" is deleted from the language in Mitigation Measure N8, the Mitigation and Monitoring Program, and in the noise impact section of the EIR. Only in the Response to Pubic Comments [N8] is there a Page 3 of 4 pages EXHIBIT "I" CASE NO. GIC800037 CITY OF VISTA v. CITY OF CARLSBAD, et al. December 8,2003 Continued Minute Order connection that the Faraday and Melrose streets are located in Vista. The deletion to any reference to "Vista" in the EIR and Monitoring Program for noise impacts on Faraday may have been an attempt to deflect attention fiom the fact that Carlsbad is requiring the Developer to mitigate extra-tenitorial impacts in Vista. Based on the language in the EIR, and the implied responsibility and assumption of authority over the noise impacts Respondents had the same ability and power to cooperate with Vista to mitigate the traffic impacts occurring in Vista as a result of Respondents' Project. Consequently, the findings that Respondents had a legal impossibility to effectuate traffic impacts in Vista is unsupported by the recorded, or at the very least constitutes an inconsistency that is not justified or reconciled by Respondents' Statement of Ovem'ding Considerations. Absent Respondents' required extra-territorial noise mitigation by Real Party, Respondents' position not to mitigate extra- territorial traffic impacts is more persuasive. Notwithstanding under different circumstances the question may be resolved differently in light of the arguments and authorityraised by the parties, on the record before the Court Respondents had the power to comply with the spirit and intent of CEQA by requiring mitigations of traffic impacts outside its political boundaries. Real Parties' argument that Petitioner failed to exhaust its administrative remedies as to the "(a)(3)" findings is unpersuasive. The City Council was hlly aware of Petitioner's concerns regarding the unmitigated traffic impacts, and the reliance on the "(a)(3)" infeasibility finding is of no moment because it stems from the same failure to mitigate Vista's traffic impacts. The specifics of Petitioner's Capital Improvement Program are irrelevant to the Court's findings. Accordingly, the Court finds Respondents failed to proceed in a manner required by law. "An agency's use of an erroneous legal standard constitutes a failure to proceed in a manner required by law." (East Peninsula Education Council, Inc. v. State Bd. Of Equalization (1998) 19 Ca1.4~ 1, 8 [the appropriate standard ofjudicial review for agency interpretation of a statute "is the independent judgment of the court."].) Petitioner is directed to prepare a Statement of Decision and the Writ in accordance with the Court's ruling herein. IT IS SO ORDERED. Datcd: December 8, 2003 n Judge Page 4 of 4 pages EXHIBIT "1" SUPERIOR COURT OF CAUFORNIA, COUNTY OF SAN DIEGO COUNTY COURTHOUSE. 220 W. BROADWAY, SAN DIEGO, CA 92101-3814 HALL OF JUSTICE, 330 W. BROADWAY, SAN DIEGO, CA 92101-3827 FAMILY COURT. 1555 6TH AVE, SAN DIEGO, CA 92101-3294 MADGE BRADLEY BLDG., 1409 4TH AVE., SAN DIEGO, CA 92101-3105 KEARNY MESA BRANCH, 8950 CUIREMONT MESA BLUD., SAN DEW, CA 92123-1107 NORTH COUNTY DIVISION, 325 S. MELROSE DR., VISTA. CA 92083-6643 EAST COUNTY DIVISION, 250 E. MAIN ST., EL CAJON, CA 92020-3941 RAMONA BRANCH. 1428 MONTEClTO RD.. RAMONA, CA 92065-5200 SOUTH COUNTY DIVISION, 500 3RD AVE.. CHUM VISTA, CA 9191@5649 JUVENILE COURT, 2851 MEADOW LARK DR.. SAN DIEGO, GA92123-2792 JUVENILE COURT, 325 S. MELROSE DR., VISTA, CA 920834634 PLAINTiFF(S)/PETlllONER(S) CtTY OF VISTA L I DEFENDANT(SyRESPONDENT(S) JUDGE: WAYNE L PETERSON CIlY OF CARLSBAD, et al. DEFT: 75 CASE MER CLERK'S CERTIFICATE OF SERVICE BY MAIL (CCP 1013a(4)) GIC800037 FOR COURT US€ ONLY I I I, certify that: I am not a party to the above-entitled case; that on the date shown below, I served the following document(s): MINUTE ORDER DATED DECEMBER 8,2003 on the parties shown below by pIaclng a true copy in a separate envelope, addressed as shown below; each envelope was then sealed and, with postage thereon fully prepaid, deposited in the United States Postal Service at: &! San Diego 0 Vista El Cajon Chula Vista 0 Ramona, California. NAME & ADDRESS J. Wayne Dernetz, Esq. Jonathan 8. Stone, Esq. Vista City Attorney's Office 600 Eucalyptus Avenue Vista. California 92084 Tina A. Thomas, Esq. Ashle T. Crocker, Esq. Remy, Thomas, Moose and Mantey, LLP 455 Capitol Mall, Suite 210 Sacramento, California 95814 NAME & ADDRESS Ronald R. Ball, City Attorney Cindie K. McMahon, Deputy City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008-1989 Ronald W. Rouse, Esq. Jeffrey A. Chine, Esq. Luuce, F owarci, HamiRon &Scrlpps LLP 600 West Broadway, Suite 2600 San Diego, California 921 01 -3372 CLERK OF THE SUPERlOR COURT Date: December 8,2003 by SDSC CN-2WUev. 1242) CLERK'S CERTIFICATE OF SERVICE BY MAL EXHIBIT "1"