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Rachel Mansfi eld-Howlett/SBN 24 8 8 09PR.OVENCHE,R & FLATT, LLP823 Sonoma AvenueSanta Rosa, CA 954047 07 .284.23 80, fax 7 01'284'2381

Attorney for Petitioner

FPJE}.TD S OF IIiSTORIC iiA}'iGTO-WN,

Petitioner;V.

CITY OF PLACERVILLE et' al,

ResPondents;

CITY OF PLACERVILLE et al',

Real PartY in Interest'

SUPERTOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF EL DORADO

Case No. PC-20i i0145

PETITIOI\ER'S OPENING BRTEF INSUPPORT OF WRIT OF MANDAMUS

C alifornia Environmental Quality Act[cEQA]

Hearing Date: August 26,2017Time: 9:00 a'm.Deparlment:9Honorable Nelson K. Brooks

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28 El Dorado Superior Court Case No' PC-20110145--*--F.itloner's Op**S Brief in Support of Writ of Mandamus

DE OE il U EIilll, JUL I i 2011 lU

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TABLE OF CONTENITS

Table of Authorities """""""'iiiIntroduction.'.......' """""""""' 1Statement of Facts """"""""""2

Project Description and Locaie """""""""'2Environmental Review Process """"""""" 3Project Approval """"""' """"""'6

Scope und Stundard of Review """"""" 5Writ of Mandamus """" """""""' 6

California Environmentai Quality Act (CEQA)..'..""" " """""" 7Discussion......'..'-.. """""""""'7I. Violations of CEQA

A. CEQA and the EIR PROCESS """""""'7i. The '"FartArgument" Standard of Review""""""""""' E2.EvidenceNeededtoSupporta,,FaIrArgument,,....,......93. Mitigation Monitoring and Reporting """""' 10

B. A Fair irgument Requirls preparation of an EnvironmentalImpact RJport (EIR)"""""""" """"""" 111. Traffic Impacts'. """""""" 11

a. The MND failed to consider the Project'spotentiaito ,to.,-.n traffic conditions and theirehr & Peers traffic study failed to study acomprehensive area """" """ 11b. The MND failed to consider traffic impactsresulting from road and lane closures duringconstru&ion and demolition""""' """' 13

Alternatives to the Four-Legged Roundabout """"""" 15

2. Parking In'.pacts """""""'17Indirect Impacts """"""""' 18

3. Safety Impacts of Roundabouts"" """"""""" 204. Toxic ImPacts """"225. Biological Impacts.'.-".."" """"""""23

a. Impacts to Trees """"""""'23b. Impacts to Sensitive Habitat """"" """""""""23

5. Visual and Aesthetic Impacts """"'247. Impacts to Historic Resources""""' """"""""25

a. Identification of Historic Resources """""' ""'26b. Clay Street Bridge """""""27

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c. Lincoln Highway """""""" 30d. Hangtown C.eet Retaining Wall ""' 30

RetentionandAdaptiveReuseAlternatives........'.....'..31.e. Druid Monument """""" """""""""' 3L

B. Growth Inducing Impacts """""""' 32g.Inconsistenry*in,q.,"uPlansandPolicies...............,..33

Conclusion --.......-. """"""""" 35

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TABLE OF AUTHORITIES

State Cases

Architectural Heritage Assn' u' County of lt/Lonterey (200a)Page

722Cal.App.4* 1095.'.."" "8',25',28Araia Enterprises a. south valley Planning Comrnission

(2000)

101 Cai.App'4'n 1333 """" """""24

BakersfieldCitizensforLocalControla,CityofBakers.fteld(200a)124 Cal.APP. 4th 1184 """9' 78' 19

Bowman a. CitY of BerkeleY (2004)722 Cal.ApP'4'h 572 """"" """"""'

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Citizens Assn. for Sensible Deaelopment of Bishop Area a' County of Inyo (1985)

lTzCaI.APP'3d1S1 """ 10Citizens of Goletn Valley a' Board of Superaisors (1988)

197 Cal.APP.3d 1167 """"

Citizens of Goteta Valtey u' Boqrd of Superaisors (1'990)

52 Cal.APP.3d 553' """"7City of Marina a. Board of Trustees of the California state llniaersity

(2006)

39 Cat.4th 341 """"""'16Communities for a Better Enaironment a. California Resources

Agency (2002)

103 Cai'App'4'h 98"""""" """'8' 32Communities for a Better Enaironment a' City of Richmond

(2010)

184 Cat. App. 4th70""" "'1'0'22'23County Sanitation District I'Jo' 2 a' County of Kern (2005)

127 Cal.ApP'4'h 1544"""" """""'26F ederation of Hillside and Canyon Associations a ' City of Los

Angeles (2000)

83 Cal.App.4th t252"""" """""" 10Friends of '8" Street a' City of Hayward (1980)

105 Cal.App'3d 988""""" """""'"' 8

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and Table of Authorities

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Friends of Mammoth a' Board of Superaisors (7972)

B Cal'3d 247 .--.""' """"'7

Friends of the Old Trees a. Dryartment of Forestry and Fire Protection (1997)

52 Cal.APP'+e tsss ""24Eriends of Sierra Madre a' City of Sierra Mndre (2001)

25 Cal.4tr 165......... """25Gentry a, CitY of Murrieta (7995)

36 Cal'App.4th 1359"""" """""' 15Kngs County Eqrm Bureau a City of Llanford (1990)

221 Cal.App.3d 692""""" """""' 32Laurel Heights Improaement Association rs'

Regents of the l.)niaersity of Catifornia (1958)

6 Cal.4n 1112 .".... """"22Laurel Heights Improaement Association a'

Regents of the l)niaersity of California (1993)47 Ca1.3d,376 """"' """17

League for Protection of Oakland's Architectural and Historicnl Resoutces

a. CitY of Oaktand (1997)52 Cal.Ap p.+n s96 B' 9', 28

Leonoff a. Monterey County Bd' of Superaisors (1990)

222 CaI.APP.3d 1337 """"LightLtouse Field Beach Rescue a' City of Santa Cruz (2005)

131 Cal'App.4il' 1170 """" """""' 16

Los Angeles l.)nified school District a. City of Los Angeles (1997)

58 Cal.App.4th 1019"""" """"""32Mountain Lion Foundation a. Fish and Gnme Commission

(1997)

16 Cal.4ft 105 ......... """"7Mount Sutro Defense Committee a' Regents of UC (1978)

77 CaI.APP.3d 20... """22

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I,{nturql Resources Defense Council a. Fish and Game Commission (7994)

28 Cal.APP.+m 11-0+ """' 9l{o Oil,lnc. a' City of Los Angeles (7974)

13 Cal'3d 68 .'."""" ""7 ' B

ocean viezu Estates Homeowners Assn',Inc. a' Montectio water Dist' (200+)

116 Cai.App. th 3g5""""" ""'10' 24oroEinoGoldMiningCorporationa.CountyofElDorado(L990)

225 CaI.ApP.3d 872""""" """"' 8' 9pala Band of Mission Indians a. County of san Diego (1998)

58 Cal'App.4th 556""""" """"""' 8planning and Conseraation League a. Depnrtment of Water Resources

(2000)

83 Cai.AP P.+& 8OZ """"'7protect the Historic Amador waterways a' Amador water Agency

(2004)

116 Cal. APP'4* 1099 """" """"" 33

Quail Botanical Gardens Foundation a' City of Encinitas (1994)

29 CaI.APP. h 1.597san loaquin Raptorl wildlife Rescue Center a' County of stanislaus

(1996)

42 Cal.App.4th 608""""" """"""" 8Sierrn Club a' County of Sonoma (1992)

6 Cal.APP .46 tg07 """"' BStanislaus Audubon Society,Inc', a' County of Stanislaus

(7995)

-33 Cal=App.4th 144""""" ""'B' 9' 32stanislaus I'Jaturnl Heritage Project a. county of stanislaus (1996)

48 Cal.App'4th 182""""" """"""72Steaens o. City of Glendale (1981')

125 Cal.APP.3d 986"""""Sundstrom a' County of Mendocino (1988)

2A7 Cal-APP.3d 296 """""

The Pocket Protectors a. City of Sacramento (2004)124 Cal.APp'4'n 903.""""' "B' 24' 33

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and Table of Authorities

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Valley Adaocates a. City of Eresno (2008)160 Cai.App.ath g4"""""" """""28

California Code of Civil Procedure $$1094.5 """"7

California Public Resources Code $$

california Code of Regulations, Title 14 (CEQA Guidelines) ss15000 et seq. """""""71s003(a) """"""""""71s003(f) """"""""""715064(e) """"""""" 19aoLOTaru of Contents andTable of Authorities

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Appendix G, section IV(a-f) """"""23' 24Appendix G, section IX(b) """""""""' 33Appendix G, section XV ""'=?o

Evidence Code $720

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Petitioner's Opening Brief in Support of Writ of Mandamus

IntroductionFriends of Historic Hangtown, consisting of longtime community members and

business owners who deeply appreciate and enjoy the historic character of Placerville, bringthis mandamus action in the public interest to enforce mandatory environmental laws

protecting the Piacerville environs and El Dorado County. The City prejudicially abused itsdiscretion and failed to act in the manner required by law when it approved the Ciay

Street/ Ced.ar Ravine Realignment and Clay Street Bridge at Hangtown Creek Replacement

Project ("Project", hereafter) on the basis of an inadequate and incomplete InitialStudy i Miti gate d Ne gative Declaration (IS / MND)'1

The project entails the demolition of the Clay Street Bridge at Hangtown Creek,relocation of the national register eligrble historic Druid Monument, the elimination of a

handicapped-accessible viewing area overlooking Hangtown Creek, removal of a critical

downtown parking lot, and removal of numerous mature native trees and shrubs in

acknowledged sensitive habitats.The Catifornia Environmental Quality Act protects ali aspects of the environment,

including residential d.evelopment in urban areas. (E.g., Public Resources Code $ 21000') The

Town has violated CEeA's substantive mandate to analyze the environmental impacts of the

project without complying with CEeA because the adminjstrative record contains substantialevidence to support a fair argument that the project may result in significant environmentalimpacts relating to aesthetics, biology, hazardous substances, historic and cultural, traffic, and

inconsistencies with area policies and plans.The legal test for preparation of an EIR rather than a MND is whether the record

contains any subslantial evidence-defined by CEQA as any facts or reasonable

assumptions/expert opinions based on facts-supporting a"fanr argument" that the projectmayhavea significant environmental impact. The "fair argument" legal test is abundantlv and

easily met here. Approval of the Project was opposed on environmental grounds by numerouscommunity members, local business owners, and the Office of Historic Preservation'

At the hearing on the merits of the Petition, this Court's peremptory writ will be

requested to require the Town's full compliance with CEQA ais-a-uis vacation and set aside of

the MND and the Project approvals, ar,d.preparation of an EiR that considers potentiallyfeasible alternatives and mitigation measures that could avoid or minimize significant impacts

on the environment. Petitioners look to the Court for the relief ptayed, otherwise the Project

t p"tition". cites to the certified administrative record of proceedings iodged with the Court by the Ciof Placerville in the body of this briel as AR [VOLUME]: [PAGE]'

El Dorado Superior Court Case No' PC-20110145 -

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Petitioner's Opening Brief in Support of Writ of Mandamus

will proceed with significant irreparable and ireversible environmental impacts to thePlacerville environs. The City has the ability to correct its violations of law but has failed and

refused to do so.Staternent of Facts

Project Description and LocaleThe Project is d.escribed as a realignment of Clay Skeet to intersect Main Street at a four-

legged intersection with Cedar Ravine, and to construct a roundabout at the intersection ofMain Street/Clay Street/Cedar Ravine; demolition of the Clay Street bridge at HangtownCreek; conskuction of a wider, two-lane bridge east of the existing bridge; extension of the El

Dorado Trail from the existing terminus point at Clay Street to the newly proposedconstruction of the Bedford Avenue pedesh'ian over-crossing at US Highway 50; andrelocation of the historic 15-foot tali Druid Monument on a granite foundation to the center ofihe rounciabout interseciion. (AR1:Z 9,7i, i3, i5.) The proposeci bridge wouici be 42 to 45 feeiwide, the efsting bridge is 19 feet wide. (AR3:849; 1,3:3644;76:4482 [width of the proposedbridge is variously described with conflicting widths.l')

The stated. purpose of the Project is to improve vehicle circulation and safety whileprovid ing an enhanced pedestrian-friendiy downtown environment. (AI2322')

Hangtown Creek flows through the Project area and the Cedar Ravine drainage joinsHangtown Creek at the Clay Skeet Bridge. (AR1:12.) Cedar Ravine drainage empties intoHangotwn Creek via a cuivert in the south abutrnent of the efsting bridge. The Cedar Ravinedrainage culvert outlet has not yet been designed. (AR1:10, 29.)

The Project area includes public right-of-way, state-owned land, and privately ownedparcels. (AR1:7.) Highway 50 is a state-designated scenic highway. (AR3:885.) Realignment ofClay Street would eliminate a handicapped-accessible viewing area overlooking HangtownCreek and result in the removal of numerous mafure native trees and shrubs. (AR1:10, 29.)The realignment would result in the loss of 34-36 off street parking sPaces in the Ivy Houseparking lot. (AR1:10, 7I,169.) The City proposes a combination of possible new locations forreplacement p arking. (AR1 : 1 1- 72, 1,69 -17 0 ; 2:387.)

The Project entails Federal Highway Administration Highway Bridge Program fundingapproval, Ar*y Co.p of Engineers Section 404 CWA Nationwide Permi! Deparhnent of Fishand, Game 1602 Streambed Afteration Agreemen! State Water Resources Control BoardGenera1 Construction Activity Storm Water Permit, Regional Water Quality Controi BoardNational Pollutant Discharge Elimination System permi! and Section 401 CWA Water Quality

El Dorado Superior Court Case No. PC-20110145 -

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Petitioner's Opening Brief in Support of Writ of Mandamus

Certification. (AR1 :17')Environmental Review Process

The proposed Project is one of the first Projects to receive environmental review under

the City of Placerville Main Street Streetscape Development Plan' (AR2:328, 502-503') The

development plan was finalized in 2006. (Source of funding explained AR2:503-504')The Initial studyi Mitigated Negative Declaration (ISi MND) published in August 2010,

found potentiai environmental impacts in the areas of transportation/ circulatioo biological

resources, cultural and historic resources, exposure of people to existing sources of potential

health hazards, and aest6etics, but claims all impacts are mitigated to insignificance' Sensitive

natura-l communities in the Project area include riparian forest, montane hardwood-coniferforest and Hangtown Creek. (AR1:7-38.) The cover page of the IS does not list theenvironmental f actors potentially affected' (AR1 : 17')

The IS/MND relies on the Fehr & Peers 2009 trafhc sf';d;'for rJ'Le parkjng andcircuiation analysis. (AR2:414- 415;3:617;70:2973-2993ltrafftc studyl') The study analyzedexisting and future conditions for just two intersections in Placerville, Main Street/ Clay Streetand Main Sh-eet/Cedar Ravine. (AR10:2976.) The study noted the Clay street/Main Street

intersection currently operates at 1evel of service (Los) F during the PM peakhour and Los Cat the AM peak hour. (AR1O:2986.) At year 2025 the intersecflon is projected to operate at LOSF at the AM and pM peak hour. (AR1:25.) The study noted the Main Street/ Cedar Ravine

intersection currently operates at acceptable levels, LOS A in the AM and Los c in the PM'(AR10:2988.) At year 2025 the intersection continues to operate at acceptable levels'(AR10:29g6.) Reconfiguration of the intersection is proposed to result in2025 traffic congestion

at the Main Street/Clay Street of LOS C in the PM and LOS B in the AM' (AR1:25')The loss of off-stueet public parking capacity is determined to be a significant impact

createci by the reaiignment. (AR10:25.) Additional parking places are Proposed to be

constructed at a combination of sites in various locations to replace lost parking- (AR1:11-12,

769 -77 0 ; 2:38I, 508-516; 10:25.)The project would result in the perrnanent loss of sensitive natural communities in the

project area including Riparian Forest, Montane Hardwood-Conifer Forest and HangtownCreek. (AR1:29.) 27 of58 trees are proposed for removal. (AR11:3216') The Project would resulin the pefinanent loss of Riparian woodland, and the loss or impairment of native kees: 7

white alder tress, 4 incense cedars, a maple, a coast redwood andZ valley oaks' (AR1:29; 2:317;T7:3IZS, g276)The Project would result in the permanent loss of Montane Hardwood-ConiferForest in four Project areas, and the loss of native trees: 8 valley oks and 1 coast redwood'

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P.titi*".', Opening Brief in Support of Writ of Mandamus

(AR1:29.) The Project would also resuit in permanent impact to Hangtown creek from the

disturbance associated with construction of the new bridge. (AR1:30') The IS/MND states that

the new El Dorado Trail segment would "help offset" these losses' (AR1:11') The MND

proposes tree replacement on another part of the Project site as mitigation' (AR1:30') No plan

has been landscape plan has been developed or submitted for review'

The handicapped accessible overlook, planned for demolition, comprises public views

of natural habitat, trees, and Hangtown creek and are identified as being an important visual

resource. (AR1:35.) The City proposes transplanting some of the kees to a new location on the

project as mitigation for the removal of the overiook as weli as mitigation for the destruction o

habitat and the large existing kees contained within the overlook' (AR1:35')There is evidence of two sources of hazardous substances and/ or petroleum products

within the project area on the Ivy House Parking lot parcel. (AR1:32') "Based on the distance

rela-tive to the project area-, th-e r-rp-gradient Locaf,on, and-the shallow depfl:r to ground-wate{'the former gasoline service station and the heating oil underground storage tanks are

considered a "REC" or "recognized. environmental cond-itions" and are anticipated to be a

source likely to affect the Project area. (AR1:15.) The disposition of the storage tanks is

unknown. (AR1:32.) Based upon the presence of fie two RECs within the project area' Taber

Consultants concluded that the potential for the proposed consh*uction to encounter existing

hazardous materiais with the project area is "generaliy moderate'" (AR1:32') The IS/MND

proposes conducting a geophysical survey to identify the potential for underground storage

tanks. (AR1:32, 33.) Based uPon this geophysical survey, soil borings may be needed to

determine the potential for soil and groundwater impacts to this area' (AR1-:32-33')

The Druid monument proposed for relocation is a historic monument potentially

eligible for listing on the Nationar and Carifornia Registers. (AR1:36-37.) A historic report was

conciucteci to evaiuate the potential impacts of relocation of the monument' (Arv:383-396') The

IS/MND stated there were no other historical resources in the Project area' (AR1:36')

The Planning Commission held a public hearing on October 19' 2070 to consider the

initiat Study and Mitigated Negative Deciaration (IS/MND) und comments submittedregarding its adequacy. (AR1:1 66-17g fstaff report]; 774-325 [attachments to staff report);2:497-496 [minu tes];497-s92 [transcript].) Resident sharlene McCaslin submitted extensive evidenceregarding the history of the Clay street Bridge. (AR2:3OO-30a.) The City considered four

development proposals and. selected one as their proposed Project, the four-leggedroundabout. (AR1:168; 2:506.) The development proposals consisted of a three-iegged

roundabout, a four-iegged round.about, and a three- and four-legged' intersection withEl Dorado Superior Court Case No' PC-20110145

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P.titi""".k Opening gri;f in Support of Writ of Mandamus

signalization. (AR2:506.) The City reviewed a combination of 5 possible locations for

replacement Parking' (AR1 :1 69)The office of Historic preservation, Friends of Historic Hangtown, and

other concerned

citizens voiced their concerns at the hearing and in writing regarding the inadequacies of the

IS/MND and the Projecf s potential environmental impacts in the areas of aesthetics' biology'

cuttural and historic resources, hazardous substances, traffic and parking, and inconsistency

with area plans, and, requested an EiR be prepared for the Project' (AR2:53L-563;74:4A02-

4OO2A, 4006-4007; 4050, 4052-4056; 4082-4088, 40Bg-40g4, 4095-40994704-; 4124-4725')

Chairperson Dolly Wager stated the City had received a "huge packet" of responses from the

public and that there was a rarge attendance at the hearing. (AM:531-532, see discussion, infra'

under specific CEQA violation subject headings' )The city Council met on Novembe t 9,20L0to consider the Project and the ISi MND

an

a ,,fulr house,, of citizens -,nras in attend,ance. (AR2:32 6-33r fstaff report]; 332-397 [attachmentsto staff reportl; 3gl-403[City Manager,s report] 404-449 fattachments to City Manager's

Reportl; 2:593-598[minutes]; 3:599-765ltranscript);3:642') The City stated the bridge was

functionally obsoiete and could not handle 100-year stream flows' (AR3:603' 605') Public

works Director Randy Pesses incorrectly stated that the Cedar Ravine/Main street

intersection will operate at LOS F by 2025. (AR3:604.) The California preservation Foundation

(cPF) expressed concerns the bridge had not been evaluated for local significance and urged

the City to conduct such a study. (ARr6:4724-472g.) CpF also recommended additional

mitigation be imposed to protect the Druid monument d'uring relocation ' (Ibid')

Friends and numerous community members reiterated their concerns on the bases

stated. (AR3:642- 779; seed.iscussion section, infra, :Utnd'er environmental impact subject

headings.) Resident, David price, stated that insufficient information had been provided to the

public to determine what the Project comprises' (eRs:699') Resicient shariene McCasiin

testified representi ng 66citizens who had signed, a petition stating their objections to the

project includ,ing unstudied impacts to curtural and historic resources' (AR3:713-778')

McCasiin concurred that community members had tried to give the agency important

feedback on the Project but"atevery meeting, we were told this is not the time to speak up'"

(AR3:714.) hrformation about the project was difficurt to obtain and not available until just

before the hearing. (AR3:71 4-715')sometime ago when I asked- staff to Pi"yiq:ttr".'*11:i'-t:Y:19i1# TL:*TlftTff ft".it?'yflTJ"1Hf; ;:,T;",5;;d;;r"f ,;+;t;;.*l'_l:T:.*o*;*11.."i,'information the current Drrcrge/ r wawas told the information couldn't b" f.";Jat the offsite storage location' ' ' ' How can,.^11-,#:ili'#J'J,T#ffii,.'*'*!*1", of thi, community when we are conrinuallv

EI Dorado Superior Court Case No' PC-201101+5 - Page 5

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p.tition.i. Opening Brief in Support of Writ of Mandamus

blindfotded and one arm tied behind our backs. (AR3:715')

Resident, sharlene McCaslin, stated the response to written comments of october 19'

2010 was not available, nor was the draft Mitigation Monitoring and Reporting Plan, the

replacement parking exhibit, the historic report on the Druid monument' the design of the

bridge or the roundabout.In addition, the audio from the october 19th Plarrdng Commission

hearing was missing. (AR3:716.) Ms. McCaslin stated that one of the Planrring Commissioners

told the audience that the Commission were not a110wed to consider comrrrents from the

public that could not be verified. (AR3:71S.) The public hearing was continued to an indefinite

date. (AR3 :762.)Resid.ent Gene Altshuler stated the time frame for construction of the Project

had not been disciosed. (AR3:648-652.) In December 2010 the City responded to comments

received in October' (AR16:4 464-4498')Project Approval

The City Councii approveci the MND ancl Project anci aciopteci a scant 3 page-iv4itigahon

Monitoring Plan on Februa ry 8,7017making findings and determinations as set forth by

resolution. (AR1:4-6 ;3:766-773 [minutes]; 774-8gB [trans*ipt];14:3955-3957 ') Community

members, Friends, and others reiterated their concerns on the bases stated' (AR3:825-891'' see

discussion , infra,under specific CEQA violation headings' )Dedicated right and left-tum lanes were proposed by the Council at Pacific st'i Cedar

Ravine intersection orLly, but were not incorporated as part of the mitigaflon monitoring

program, nor were they evaluated in the Fehr & Peers traffic report' (AR1:25-26;2:380-382;

3:757, BI2; 4:975-976, 927; 70:2973-2993; 77:2994-3082.) The City proposed various construction

staging proposals but none were incorporated into the mitigation monitoring progfam'

(AR3:788-791.) The City estimated. the construction period of the bridge renovation portion of

the Project to be three months if a precast bridge were to chosery and five to six months if the

cast-in-place bridge were to be chosen. (AR3:S20.) The precast bridge would still entail cast-in-

place abutrnents and foundations. (AR3:820.) The Notice of Determination was filed on

February 23, 2011" (AR1 :1-3.)ScoPe and Standard of Review

Writ of MandamusIn deciding whether to issue a writ for this cause of action, the Court shall determine

whether the Town committed a prejudicial abuse of its discretion. such abuse is proven if theTown did not proceed in the manner required by7aw, if its decision was not adequately

supported by findings, or if its findings were not supported by substantial evidence in light of

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the whole record. (code of Civil Procedure s 109a.5; Pub. Res' Code s 21168') substantialevidence includes "facts,reasonable assumptions predicated upon facts, and expert opinion

supported by facts." (Pub. Res. Code 2IOBO, subd.(e), 27082.2, subd'(c).)California Environrnental Quality Act (CEQA)

In deciding whether the writ should issue for violations of CEQA, Public Resources

Code 21000, et. seq.,the Court will determine whether there is any substantial evidence in the

record that the project "rnay have a significant impact on the environment" requiringpreparation of an EIR. (Pub. Resources Code 521757, subd'(a), emphasis added' Cal' Code

Regs., tlt.14,S 15064, subd. (fx1), (2).) This is the "fair argttment" standard, discussed in detail'

inJra.Discussion

I. Violations of CEQAA. CEQA ai-rd the EIR PROCESSCEeA must be interpreted "to afford the fullest possible protection to the environment

within the reasonable scope of the statutory language." (Friends of Mammotha' Board of

Superaisors (1972) 8 Ca1.3d 247,259; Guideline S 15003, subd'(f)') Failure to follow CEQA'srequirements "would subvert the very purPose of the Act." (No Oit,Inc' a' City of Los Angeles

(1,974) 13 Ca1.3d 68, 81.) An EiR "protects not oniy the environment but also informed self-

goverrune nt." (Citizens of Goleta Valley a. Board of Superaisors (7990) 52 Cai'3d 553, 564') The EIR

is both the heart ',and.soul,, of CEeA. (planning and ConserastionLeague a. Department of water

Resources (2000) 83 Cal.Ap p.4b Bg2, g11; GEQA Guidelines (14 California Code of Regulations

SS 15000 et seq.) S 1s003(a).)When a discretionary project may have significant environmental impacts, CEQA

requires that the agency both identify and adopt feasible alternatives and mitigation measures

that accomplish most project objectives. This is the "substantive mandate" of CEQA' (E'g', Pub

Resources Code SS 21002, 2r0gr; Mountain Lion Foundation a. Fish and Game Commission (1997)

16 Ca1.4,h 105, 123.) To minimize the environmental impacts of discretionary projects, the EIR

process is structured to provide objective analysis of a reasonable range of potentially feasible

alternatves and mitigations. ,,The purpose of an [EIR] is to identify the significant effects on

the environment ... to identify alternatives to the projecf and to indicate the manner in whichthose significant effects can be mitigated or avoided." (Pub. Resources Code gzI002'7, subd'

(a).) Without an EI& the benefits of this essential protection of CEQA cannot be achieved'

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1. The "Fair Argument" Standard of Review. CEQA requires an agency to prepare an

EIR whenever a project "moy have a significant impact on the environment." (Pub. ResourcesCode S 21151, subd.(a), emphasis added.) There is a "low threshold requirement for initialpreparation of an EIR [which] reflects a preference for resolving doubts in favor ofenvironmental review when the question is whether any such review is warranted." (League foprotection of Oaktand's Architectural Historical Resources a. City of Oaktand (7997) 52 Cal'APP'4*g96, g}E.) The low threshold requires preparation of an EIR rather than an MND whenever

substantial evidence in the record supports a "fatr argument" that significant impacts may

occur, eaen if adifferent conclusion may also be well-supported or the record containsevidence to the conkary. (Eriends of "8" Street a. CiQ of Hayruard (7980) 106 Cal'App'3d 988,1000-1003 ; Oro Fino Gold Mining Corporation o. County of El Dorado (7990) 225 CaJ.App'3d 872,S80-SS1.) InThePocketProtectorsa. City of Sacramento (2004)724CaI.App'4* 903,927, the courtstated rlrat rJre "fa:r argu:nent" standard differs significantJy fronn the deferenfiz| lsvisr"^'rnormally enjoyed by agencies:

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If there is substantial evidence in the whoie record supportin g a fur argument that apto;".t may have a significarrt non-mitigab-le e{fect onthe environment, the lead agencyit-rji pt"pir" un EIR,Zven though it mJy also,be presented with other substantialevidelnce'that the project will no"t have a significant effect. (S 21151, subd. (a); Cal' Coden"gr., tii. i+, S rsdo 4, subd,. (fX1), (2) nI7;fr0 Oi],lupra,13 Cal.3d 68,75; ArchitecturalHeTitage Assnl a. County of Nio,ntirey (2004 122 Cal.App.4" 1095, 7709 ; Communities,for aBettur\naironmentr. irtiforriaReiources Agency (20(;2) 10q ga_lA?p.+\?P,I77-II2.),,May,, means u."uronudlepossibility. (SSi1OS2.,,1upd,.(a),21700,21751', subd. (a);Leffie for protection etc. a. iity o7 Ootioriltggz) 52 Cal.App.4* 896,904-905.)

t T1- h"ld" .f S" rra Clubwith respect to the fair argument standard has been reP-eatedly cited withapproval in riajor CEQA cases sinceits publication in1992 . (E:B:Communities for a Better Enuironment aiipartment oTnrrorirrJ a. California Resolurces Ag:rty (2002) tOa C?_l epp'4th98, \00, n'29; Pala Band of .Mission Indiins u. Cointy of sin Diego (7998) 58 tat.App.4th556,57U Liagulfor Protectiott etc'.u' cily- ofosklsnd (1.997) szcat.ft{.4thBg6,"g0i; San loaquin Raitorl Wildlife_Rescue Center u. County_of _Stsnislauseg96) 42 Cal.'App.4th 6bB, 617; Stanislaus Audubon Society,Inc., a. County 9[ ltyr.tislsus (1995) 33C^i.epp.+liuLie"oit Bo,tanic:sl Gardens Foundation u. city of Encinitas f1o2+129 CaI.App -4th7597, 1602-

A MND is lawful only when " clearly no significant effect on the environment would occur, and

... there is no substantial evidence, in light of the whole record" that such impacts may fol1ow

project approval, taking into account adopted mitigation measures. (Pub- Resources Code $21080 subd.(c) (emphasis added); Guideline S 15054, subd.(f).) In Sierra CIub 't. Cotmty ofSonoma (Igg2) 6 Cal.App .4'h 7307, the Court held that under the fair argument standard:

... the question is one of law, i,e.,'ltre sufficiency of the evidence to support a. fai.1urgrr**.t.' fCitation.] Under this standard, deference to the agency's determination is,,oI uppropriate and iis decision not to require-an EIR canbe uphgld-only when !h:,,, i: focredibti ,oidrnrc to the contrary. (Id. at7377-13l8, emphasis added.)' Sierra Club holds

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lhatno d.eferencebe paid to an agency's decision not to require an EIR' (Id' a11316')Bowman r. iiry fi-rtr irtry tzoo+\ iiCal.App.4'h s72,joined numerous cases that havecited Sierra Ctub'wtthapproval' (1d' at 580')

2. Evidence Needed to Suppor t a "Fair Argument". As outlined above, Petitioner's

CEeA cause of action is subject to the favorable "fair argument" standard, which departs from

the classic burden in mandate cases to prove that no substantial evidence supports the decisi

of the agency. Because of this favorable "fatt argament" standard, this portion of the brief will

primarily focus on evidence suPporting the fair argument, rather than the evidence relied

upon by the Town to support the IS/MND'In determining whether an administrative record contains the requisite evidence of

potential environmental impacts, the Court is to consider "facts, reasonabie assumptions

predicated upon facts, and expert opinion supported' by f acts" to support the fair argument'

(Pub. Resources code s21o}2.2,subd.(c).) The CEQA Guid.elines confirm this definition andfurther define substantial evidence relative to the fair argument standard as "enough relevant

irLformation and reasonable inferences from this information that a fair argument can be made

to support a conclusion, even though other conclusions might also be reached'" (Guideline S753l4,subd.(a); League for Protection etc., supra,52 Cal'App.4e 896,905') Fact-based opinions ofappointed officials who have knowledge of relevant environmental matters qualify as

substantial evidence under cEeA. rn stanislaus Audubon society a' County of stanislaus (1995)

33 Cal.App. 'h 744, the Court found that it wasnot unreasonable to presume the agenc-y relied upon uy thg cou1t1,t3 t_l9tToevaluate development ptoposals, in light of its prior experience rn the area' nasexpertise

"t; &-r" ,.rbi""t ".J it q""$".d 1o;19i.sess the data presented and to render

;pil;r th"r"orr. (See, e.g.,Eviden'ce Code 5720-) - '. Itis und'isputed that members ofthe planning commission *" u*p"t 9"..9q ii matiers 9f pfar]urig and development' Thecommission members reviewed'the initia-l and revised initiat studi"t as well as thed.ocument"tb". pr";ria"JUy fp*J Par$r]. Therefore, [a Cor::.missioner's] expressedopinion during i formal hearing " ' is significant'

(Id. at155.) In Oro Eino Gotd Mining Co:oration a. County of El Dorado (1990) 225 Ca7'App'3dgT2, thefact-based opinions of a County supervisor were substantial evidence adequately

supportin g afatrargument . (Id. atBS3.) The Court also found lay testimony of area residents tbe substantial evidence as to matters within their personal knowledge' (Id' atSB ')

In Bakersfield Citizens u. Bnkersfield (200a) 124 Cal- App' 4lh7l'84, \21'7' the court stated:

While these individuals are not experts in any sense of the word' their firsthandobservatio., ,horriJrrot

"ur.rully be dismissed as immaterial because "relevant personal

L60z; Nrt"rrl lkt*rces Defense Council a. Fish and Game Commission (1gg4) 28 Cal'App'4th 1104' 1116)'EI Dorado Superior Court Case No' PC-20110145

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observations are evidence." (quoting Citizens Ass1t for sensible Deuelopment of Bishoparri r. itty of tnyo ilOaSl 772tal.Aip ,a 757,173; iee also OceanVieut EstatesHomeoutners Assn.,Inc. a. Montecito\firt;; oit't. (zoo+) 116 Cal.ApP'4th 396, 402')

Here, abundant record evidence-facts an'd fact-based reasonable assumptions and

expert opinions-supports afatt argument that the project may have sigmficant

environmental impacts relating to aesthetics, biological resources, culfural and historic

resources, traffic and parking, toxics, and inconsistencies with area plans and policies' and

thus, an EIR is required as a matter of law to analyze potential environmental impacts and to

inform the City,s consideration and adoption of feasible mitigations and project alternatives' A

fair argument is established on the basis of record. expert evidence and personal observation

that rises to the level of substantial evidence'

Extensive substantial evidence in the record was submitted by numefous longtime

residents and business owners of Placerville, intimately familiar with the environs of

Placerville, and experts from the California State Office of Historic Preservation and the

California Preservation Foundation in concert with the National Trust for Historic

Preservation.3. Mitigation Monitoring and f{eportingPublicResourcesCodesection2l0sl"6wasadded'in1988,andamendedin1994'tn

response to concern that agencies were not en{orcing mitigation measures' Mitigation

monitoring or reporting programs mustbe imposed when an agency approves a project

subject to mitigation measufes laid out in a mitigated negative declaration or in an EIR'

Reporting consists of a written compliance review before the decision making

body or staff. Monitoring is an ongoing periodic Process of project oversight' Reporting is best

suited to readily measurabre or quantitative mitigation measures, while monitoring is best

suited to ccrnplex rr.icgascn measures, parfi,cuiarly thcse tc be implemented o-'rer a

period of time. (Guideline s 15097.) Duration of the monitoring or reporting program must be,,designed to ensure compliance." Regarding enforcement mechanisms' GEQA does not

specify methods for the enforcement of mitigation monitoring programs' Flowevet' Federation

of Hillside and Canyon Associatinns a. CiQ of Los Angeles (2000) 83 Cal'ApP' th \252tnade clear

that mitigation measures must be enforceable and enforcement mechanisms must be

incorporated into proj ect approvals'Regard.ing defen'al of mitigatiory case law has permitted a lead agency'to defer

the

formuration of specific mitigation measures after the lead agency: (1) undertook a complete

analysis of the significance of the environmental impac! (2) proposed potential mitigation

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measures early in the planning Process, and (3) articulated sPecific performance criteria that

would ensure that adequate mitigation measures were evenfuaily implemenred' (Communities

for n Better Enuironntent a. City of Richmond (2010) 184 Cal.App'4th 70, 95')

Here, as discuss ed., infra,proposed mitigation measures of phasing/ staging during

construction, adding a designated right and reft rurn rane for the pacific/ Cedar Ravine Road

intersection only, wefe neither d,iscussed in the MND nor included in the mitigation

monitoring program. The City failed to d.etermine the extent of the potential impact for toxics

and improperly deferred study and mitigation to post project approval' The proposed

mitigation recommended by the Carifornia Preservation Foundation for historic impacts to the

Druid monument were not recorded in the mitigation monitoring Program'The Project's environmental impacts were not disciosed in the MND, and thus' even if

mitigation measures were properly in place, it is not known whether the mitigation is

adequate since t-l',.e lrlNiD failed to adequately analy ze *'e irnpact in fl:re first place'

B. A Fair Argument Requires Preparation of an Environmental Impact Report (EIR)

Considering this record, the impacts of the Project have not been minimized "to a point

where crearryno significant effects wouid occur." (Guidelines$15074, subd. (b);7507a') Yet,

this is the orLly lawful basis for an MND. Since the administrative record contains afatt

argument that the Project mayhavesignificant environmental impacts, a writ must issue to

require an EIR. In addition to the evidence presented in the statement of Facts, inf'ra,here

incorporated by reference, the fair argument includes:

1. Traffic ImPactsa. The MND failed to consider the Project's potential to worsen tratfic conditio

and the Fehr & p""r, i*tii. st"ay ralea t6 study a comprehensive area in itsanalYsis.

The Fehr & peers kaffic st;died orily t.nro intersecrions. (AR10:2975') The \AID relied on

this analysis to determine that there are no traffic impacts other than the one impact identified

for ross of parking caused by the demolition of the Ivy House Lot. (AR1:25-26.) Longtime

community members and business owners noted that the roundabout Project could cause

worsening conditi.ons at other surrounding intersections and these were neither studied in the

IVIND nor mitigated. Citizens explained that stop signs are located one block away from the

roundabout to the west and eas! the roundabout will cause the traffic to backup and become

worsened at pacific street/Cedar Ravine and Bed,ford/Main street intersections' (AR1:224;

2:305.). Resident Thorne Barrager noted the Project could cause a worsening of traffic at

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Pacific at what is already a difficult access at Cedar Ravine. (AR3:660')Resident Rob Cary concurred with Thorne Barrager's analysis and stated the City;;;;;;"lwi"g ih. pr.rrrrre at one intersectio.,i"brrt thai's just.going to haveunintended consequdrr.", of ruining the level of service at other intersections" "vor;rr" got to

"t 1";;i;;;/ tn" .""J"quence[s] of r.elieving th: P_t:?,ture there' " I

think you're goi"g fo p"iifl"if"vel of 'service negative impact o." ull the otherintersectior,, *orrild-. 5t"iy tha! come back to ui with thit, and maybe you'll getsome support-" (AR3:661.)Resident Wilbur Howe stated he was an advocate for the four-way stop as a way ofJi""i"ii"g the backup at the other intersections' (AR3:663') "You negd to put a stoprfg"

""ttfiUound on Cedar Ravine at Pacific Street, because that backs up clear over

the hi11." (AR3:663')Resident David Price stated, "The bottom line is that the project may be a-slingshot;fE";i; g"t th" t'"Xii" thto,'gh a l1ttle- quicker, pui yhe,relt t'q:ii,q l:^-gr"? Down toBedford at a stop ;g"t - i J?n't think'this project has been fully thought out' ""(AR2:549.)Resident Chuck Wolf stated, "This is about speeding traffic

"p, -g"$tg it to the nextintersection faster, so it can line up there. rhis is noia solution. In fact, I'm not evenr"t" *tl^t the lexisting traffic] probl"m is'" (AR2:559')Resident Robyn Raweis stated the Project would increase the traffic on Bedford'(AR3:666.)Resident Cierra Baumunk stated, "I'm also concerned about the traffic that would;;"k;t

"n pacific S;*t. W"

-Ar""a/f...*, u.g T":S9""d, Pacific Street has, I think,;;;tt't kaffic problem than that intersection'" (AR3:671')Resident and Business owner PatV Clark stated, 'And I agree.with the impact thatirr;;;;g1; hurr" on the other intersections, because the rdundabout comes aroundu.a-yot".o.ne do-n and stop atBedford and where *" g?itq.tiq::,T"t's wherethe kaffic is. I prli o;tth;i ;. th. t""k. I usually have to sit through that lighttwo or three Urr,", ilf-;l

"""ii*tough it. And-traffic backs up and where is it

go*g to go? It's going to go int6 the rouidabout' (AR3:683')Resident Chuck wolf stated the Project would worsen future traffic' using theproiected level of r"*i." l" the year 2025 for this one intersection without5#;;;rr-;,i;;t". wide tevelb{ service at2025 is misleading' Improwinq Ftintersectio., t"ua, io .orlg"rdo. and delays at other intersectiohs. (AR3:709')vice }v{ayor David lv{achado stated, 'T!* one th.ing'.h,at -,rye have not i::Lifigated is,Pacific Street at Cedar Ravine. If s a nighbnare rro,i, whether you're quf*rrg a,rightturn or a left turn; but to have a roundibouf especially at Peakp'm', that's justfeeding traffic onto Cedar Ravine. At least t o*, you have ih9 yi-eta q$ y"1r \ave I;i;t"tT-'"i buys

"";'t;;;ften.those intermittelfs3p:.l"l1l'^y:-'l:.u,i'iftf.t-Ti."'ilil:.],h,i"k';; the roundaboutislust sending"traffic up Cedar Ravine, PacificStreet becomes a real nightmare." (AR3:754-755')Respond.ing to Vice Mulor Machado's concerns about the traffic problems caused bthe roundabout at Cedar Ravine, Public Works Director Randy P-esses.stated the-ity

*""fd need a detailed. warrant analysis to determine what the soiution was'(AR3:756-758.)Resident Wiliiam Steffen stated that on "sunday afternoons or whenever there's anevent downtown, Main Street lr lu.tea up all th" *uy to Broadway completely' The;J;lh"; thut rtop" that is the Cedar Ravine three way stop sign'" " ' "If you

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realign it to a 4-way stop sign every street has the oPportunity to make a turn' I'veseen the traf Fic." (AR3:827.)Business owner and resident David Price noted that citizens ha{ requested that a 4-*uy rtop or rignulir"d ir,t"rr".qglP9*9:q"utely considered' There was not realdislussion, it'iras jupt shelved. (AR3:698')discussron, 1t was lupt snelveo. \Ar\J:ovo'lResident Robin WlUhut"t stated that the roundabout would cause a backup. atn^)t^-A ^-J -^,^,,1,{ 1,,{o- o.li-oa r11\/ nrnhlprns r,,ve have at this intgrsection."dl,,far eclipse any problems we have at this intersection."(AR3:S33-83a.)

. Resid.ent and business owner Wilbur Howe stated " ..'Clty staff found free money,which there ir.t;l*y and we all know that, and they've abandoned the fgur--w-a.yri;t;; tt," r"Jigdoent of Clay Streef which I had no objection to'" (AR3:B 3')

Vice Mayor David Machado noted that the exit from the C & H Motor Parts Parking

lot would also be exacerbated by the Project. "It's aproblem now; but again' you get the littlebit of gaps because of the stop sign and the yield. But the roundabout, with its current justcirculating traffic and shooting them ofl the timing of the gas kind of goes away or become aiot harcier to time, if you're sitl-ing in that paricing iot." (AIt3:755.)

A number of community members suggested the four-legged stop alternative would

lessen the backup effect and access impacts on traffic. The City noted that the four-legged top

alternaflve would also reduce tra{fic impacts but was not fully funded. (AR2:519; 3:636-637 ')The worsening of traffic at surrounding intersections was not studied in the MND' A

fair argument has been established of potential traffic impacts. A four-legged alternative

should be considered to study whether this alternative is superior to the Project in reducing or

avoiding this impact.The City proposed adding a dedicated left and right turn lanes at Pacific late in the

review process, but it was neither studied in the MND nor were mitigation measules

incorporated into the mitigation monitoring program. (AR1:18-38;1'4:3953-3957 ') As the MNDfailed to study this impact or the proposed mitigation it is not known how well the added turn

lanes wili perform or whether the impact can be reduced to insigmficance by this method'

b. The MND faited to consider traffic impacts resulting from road and laneclosures during construction and demolition'

The City acknowiedged the serious potential impacts on area traffic due to the

extended period of time it will take to demolish the existing roadways and bidge, constructthe roundabout, realignment, and the proposed' bridge. (AR3:726-728') The MND neither

studied not proposed adequate mitigation for this impact.Area residents, business owners, City staff, City Councilmembers, the City Mayor'

and the El Dorado Chamber of Commerce all recounted their experience that very severe

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h^affic impacts occurred during the last road construction project, the Main Street OverlayProject and the Highway 50lmprovement Projecf severely impeding downtown business'(AR3 :650, 653, 655, 67 4, 67 8, 684, 683, 7 24-7 30')

n Gene Altschuler stated the City had not determined the mitigation for decreasedtraffic flows during the time the Project will take to build. (AR3:650-651.)

' Staff Randy Pesses stated the comment about staging and traffic handling duringwhat could be an admittedly lengthy construction period, was very good question.(AR3:653.) Pesses hypothesized [affic would move to side streets and contractorswould probably leane one lane open to tu'affic during the active construction period.(Arc:663-654.)'Pesses stated the Projectwould not halse the same degree of impact as theMain Street project had caused' (AR3:653; emphasis added')

. Mike Korbus representing the El Dorado County Chamber of Commerce stated'"Another thing, I know tfre construction issue, that is obviously going to be aproblem. Trusi'me, I know. When the Highway 50 project went through, |Y piece oproperty right there on Placerville Drive,"th"t" *"t^" days,$."t" were weeks when,i1"ii" hd.r"r"tly, it was veryt very hard for me to get t9

-y office. It was hard for myc'-rstomers to [et to m;z ,ifrr..Ii,nras tough. It -r,rls a bummer -" (AR-?:678-) "Yes, theconstruction ii going to be tough. I don'iknow how long it's going to take, sixmonths, a year." (AR3:678.)

. Business owner and resident Patty Clark stated she had been through 9" Yt^Street conslruction project and her business had not yet futly recovered. .. ' I don'tknow that I .ur, ,,rririrre getting through this construition. And I say that, I have 25employees. (AR3:683-684; tr, ilto comment by business owner Carol AadensenAR3:836.)

' Vice Mayor Machado recalled the tr#fic impacts of the M-tl Street renovation andstated he was "... still concerned about the [current Projecf s] bridge phasing andtraffic." (AR3:753.)

. Business owner and resident Wilbur Howe said, "we are still trying to recover fromthe fiasco on Main Street .. '" (AR3:844.)

. Resident Lisa Collins stated " ...I'm also concerned about the businesses. A projecttike this is going to kill the businesses down on this end. ... When there isconstrucfl"? fifi" this, just like down in Folsom, businesses are-hurting down there'People are going out'of business. There's vacancies. And I really hate to see the^L-,,oi-ocsss in our to',r*rr,, arrFLoie of 'Jieii:, go out because of th.ii project." (AR3:852.)u uDlr tcDa

The City Council considered measures to lessen this impact, such as leaving one lane

open at all times, but the MND did not analyzethe impact and it is not known how well these

potential mitigations will perform. (AR3:724-729.)Fwrther, enforceable mitigation was notirnposed. (AR1 :24-26.)

Deferral of the creation of mitigation measures pending future sfudy cannot serve as the

basis for finding a significant impact to be mitigated to a less than significant level, becausemitigation remains uncertain. (Sundstrlmr. CounQ of Mendocino (1988) 202Cal.App.3d296[county required hydrological stud.ies as conditions of a use permi! specifying that anymitigation measures suggested by the sludies would become requirements of the permif the

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Court held that unspecified future mitigation based on a future study was improper']')Mitigation measures added to a negative declaration after initial public review

but

before approval, and that do not require a change in the project descriptiory must be

recirculated for additional public review if the new measures are required to mitigate project

impacts to a less than-significant level. (Guideline S 15073'5(b); S 2106a5' See Gentry a' City of

Murrieta(1995) 36 Cal.ApP.4th 1g5g, 7389-93; Leonoff a' Monterey County Bd', of superaisors

(1990) 222 Cal-App'3d 1337, 1356-57')Here, traffic impacts due to construction have not been studied' or shown

to be mitigated

to insignificance. ln order for a MND to be adequate, there must be no significant impacf not

very litt1e, or almost none. None. There is a fair argument of traffic impacts and the writ must

issue to require an EIR be prepared'Alternatives to the Four-Legged Roundabout

Comrn,rity rnerr.bers expressed +J:rat there r,^/ere alternad"'es to t'he four-Legged

roundabout that had not been adequately considered'

. Resident David Price stated, -I think there is an alternative and there can definiteiybe a far cheaper a-lternative to pui either lights or a combination of stop signs'possibly realigning all of Cfuy Sttl"t-.t;t!t

"

portion of itl' (AR2:5a9-550'). Resident sharlene McCaslin explained there were adaptive reuse alternatives

that

were not considered' (AR2:304')

Robin Rawers noted that the traffic problems on clay street could be solved by adding

speed bumps. (AR3:831.) staff noted there are many alternatives that couid be considered'

such as rerouting Cedar Ravine and cutting off cray skeet at Highway 50' (AR2:525') Public

works Director Randy pesses stated that it was possibre to hord off on the roundabout or four-

way projec! and still go forward with the bridge and trail portions of the Project' (AR3:721')

Communitymembersalsonoted.thatthefundingfortheroundaboutcouldbeusedtobuild a roundabout in another location'

, Resident Susan Rodman stated, "This is a projgct looking for a place to be put' It isnot-its' an idea that some;;C had, oh, f"f t Jt u 'o"''iuboutln Placerville;

well'where should we stick iU ;h;#;i; ;;;J place' No, it's not a good place' If s not agood p.o1".t.It should be d'ropped'" (AR3:687')

. Michael Drobesh echoed Rodman's conceffr that this i.q a project looking for a placeto be p,rt-*J riut"a, "fh"t"{_pi""ty of property out there to make a four-wayintersection without total; kfhnf if't"t i"tfl"jiot' So hopetully' that's still on thetable." (AR3:700.)

The City may claim that they have alread.y conducted an alternatives analysis when

they consid.ered the three-legged roundabou! three- and fourlegged intersections' Flowever'

EI Dorado Superior Court Case No' PC-2011U'+5 -

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the city's analysis does not approximate the kind or depth of analysis that would be

conducted in an EIR. The City primarily looked at what benefit each option would yield rather

than first evaluating them from a comprehensive environmental perspective' (AM:525-526')

Lighthouse Eietd Bench Rescue a. City of Santa Cruz (2005) 131 Ca1'App'4* 170' states the

agency may not use a net benefit analysis to review impacts, it must first consider alternatives

and mitigati.on measures that minim ize ot avoid impacts to the greatest extent feasible and

or'y then may a statement of overrid.e be consid.ered to determine whether the benefits of the

Project outweigh the impacts. (AR2:525; PRC $ 21031; Guid'eline SS 15091' 15093') Thus

overriding considerations do not come into play un-less an EIR has been prepared and the City

finds there are nofeasible project alternative s. (city of Marina a' Board of rrustees of the California

State l.Iniversity (2006) 39 Cal'4th 347, 368')CEQA also notes that environmental review must be conducted' at the

earliest possible

iirne in the pianning process so trrai ail feasible aliei:natives cG-rL be fairly considered' Ilere' +Jre

City admits that ,,the groundwork had been substantially laid before we evel took this

forward". (AR2:526')" Resident Chuck woif noted "My main concern is that if s

being presented ^tonight

as

if the decision has alread;;;;"Je and' you've gone too far to even conslder analternative." (AM:557-558')Commissioner Les Russell echoed Wolf's remark and stated that

the Project'sDlannine is so far advanced "it almost nu"u life of its own' So I'm not sure

that it's

i.r "ury[htittg to stoP."

(AR2:568')Public Works Director Randy Pesses stated at the Council hepng that "And

we had

gone forwardJ ;;;4 k "# ii tnut;qq4tlt word;

but yeah, tfiaf s probablvokay-presummg the roundabout'" (AR3:618')Pesses confirmed that the alternative, *"." ryny?"lby their aultltyjo ease trafficand the degree t.;h.h tf;t i+:*^"y-ryt,+"t" City't goais (AR3:619)' not tou^uTyt im"pacts of the Projett' (AR3:519-621)

,1 -^-^^^ +L^+ r -ar ic rher rh.is is iffif"iffi"'^;t,h;"r';i;;;';ih" sense, +.he o-.rerall sense t}.at i get is th-at r]is is a

self-fulfilling prophecy. This i, ,o*"*.Ltrrg that you.wanted to havehappen and

made ali the phff;';",.i; y;'kil*,".or,{ott,'i" fit this concept and it doesn'tfeel as if it was prope",iy thought out" '" (AR3:652')Business owner and resident Patty Clark stated that she and a few

residents met

with the City in September of 201b ff,iil; **" of their concerns' "We were toldat that time that

"-J##;;i;;;" ;ta, tf,tit decision was pretty much a done deal'

...you know, are we here for input o, ttu, the decisio" utt"iay been made? And this

was months ago. We were pro*ir"J1*o.t'.,ution about the ongoing meeting that

would be going o.,. w" ast'ed fo, tt'uffi.. w" uttt"a for specs foi thJroundabout' we

were told we *orria r"teive those' We never djd'" (AR3:680')E xp ert g eneral en gin e erin g

.

c ontr a ct'i l'l g]::T ::: y::i }Sf #:'ff i ili'j}'*,ffJr:',rt$:'##it#';;i"q:ffiJ.?""rr", stated it was a wasre of rime to bring up arry;i;ry;;t' erns. "-,h;tiilg is a done deal'" (AR3:701')

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The object of requiring more in-depth environmentar review is not to stop the Proiect' but to

perform adequate environmental analysis prior to the project's approval' In light of evidence

that a fair argument can be made, an EIR should be prepared to study and fu1ly analyze the

impacts of the project and to review all feasible mitigation measures and arternatives before the

Project is aPProaed.2. Parking ImPactsTheCityhasacknowledgedthattrafficimpactsd.uetothedemolitionofthedowntown

Ivy House lot-comprising the loss of.34-S6parking spaces-is considered a significant

IVV IIUUDL TVL

environmental impact requiring mifigation. (AR2:529 ;3:609-610,7g2. lother sources say the

number of lost parking spaces is 43' see AR1:158')The city proposes a combination of parking locales to replace iost parking

at the Ivy

Frouse iot. (AR1:1 69-770.)Community members and business owners expressed considerable

concefn that no set locaiiorr had been selected to ieplace nJie lost parking' nor had th'e

environmental impacts of moving the parking to other rocations been examined in the MND'

(AR2:31 .) The potential environmental impacts caused' by the implementation of mitigation

measures must be evaluated, in the environmental report and were not' (Guideline $ 15126'4

ilffiff ?,ry ;f; #3;is:l,i ; ;:ffi ;;#; i; ;id.h i'i'a o" t rin d e r s t and th atI just'don t."-(AR3:859.)lResident PatV Clark stated, "I wonder about those options and

if they reaily are

truly optionsJ' (AR3:681')

one possible location, the "ThomPson v'{ay Lol" involves building a parking lot on a

El Dorado Superior Court Case No' PC-20110145 - Page 17

(ax1xD),citingsteuensa.CityofGtendale(1981)125Cal'App'3d'986;LaurelHeightslmproaementAssn. a. Regents of I'tniaersity of California (\993) 6 Cal' th 1172' II32')

'ResidentDalePiercesaid"Idon'tthinkthisproject,i:t"11ll:t:ry1::*"1'Ill"Council. There,s a iot of *irrit g pieces *19:':rt_* to parking, for example'(AR3:657, ttt uf to Judy Davis te"stimony aL 656-657 ')

. Mike Kobus representirrg rh" El Dorad'o Chamber of Commerce stated "Parking'

Some of the parking piu.",-ou.,iously, yolr-k.,o*, the offsite parking have

difficulties. personalfy f r"uffyiiice tt,JSian.ii;" ih;t provides approximately 25 to

35 spaces, because what Lhii.k tLt"f do", ir ii ttt"t"n"s'out do*ntown a littie bit'"

(AR3:676.). itesident and Business o-wr^L-f Roi-, Cla:rk staied "i'oupeople don't 'L'ave

+'he parking

taken care of. . .. And to ask to havethis project uppi6""a to.day when you don't

even have tn" p*f.i.g taken care of is ludicious't (nRg'ZOZ'). Business owner Lou Andersen of Lofty Lou's stated that th-e

Project does not havesecured parking to reptace th" 1."i;##;1,r'^ F;ott th" street 1.9

years' And

what really scares me is you're going .t9 pi",1 Ploj"tt that doesn't even haveparking secure V9t, Thleropor"i i&5tlt tt "1tist i'ttt going to work' And

parking is

a commodity on Main Street ' " ut"d all I Sver h"* i;:;r..''itr^1fil*ftfl-;ffi?

ffi support of writ of Mandamus

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prime corner lot in the Cedar Ravine Residential Historic Diskict. The potential impact on

historic resources has not been examined in the MND. (AR2:315')

Another identified option, the "Ei Dorado Trail" is located at the parking lot at the

northwest of the Clay Street Bridge along the El Dorado Trail. This would involve the removal

of trees adjacent to a scenic highway and this potential impact has not been analyzed'

(AR2:315.) Staff noted locating the lot there wouid also amount to a change of use' from Class

1 bike and pedestrian trail to parking. (AR2:510 ,543.) Resident Chuck Wolf stated that

Carifornia state standards prohibit rocating parking rots through bike trails due to the safety

concerns to children and people using the bike trails' 'I think you guys are creating way more

problems with this thirg than any little problem that existed to start with'" (AM:561')A third id.entified option, "Main Street Lot" would locate the parking on the hill behind

C & H Auto parts and would admittedly require extensive excavation including the loss of

rnontane hard.-'ood-conifer fores! and result in possible hdstoric im-pacts on the hListoric Main

Stree! and these potential impacts were nol analyzed in the MND' (AR1:169; 2:315' 511')

A fourth optiory Locust Street Lot is located on the north side of Highway 50 is owned

by the City but is ,,somewhat removed from the downtown commercial area" . (AR2:512')

A fifth option, the stancil Lot is located south of Highway 50 at a distance of 700-800

feet from downtown. Business ownels and community members stated the iot was too far and

may not be available. (AR2:514.) The stancil lot may not be a viable option because a portion o

it is privatery owned by the stancil Trust and may not be avaiiable if the owner is unwilling to

sell. (AI{2:407;3:858.)Resident chuck wolf stated that ali of the remote parking options wouid also increase

policing costs. (AR2:561.) Substantial evidence supportin g a fatt argument of potential

environmentar impacts of the repiacement parking has been met and an EIR must be prepared'

Indirect ImPactsEnvironmental review must consider direct and indirect impacts of urban decay caused

by the proposed Project. (Bnkersfield Citizens for Locsl Control a. City of Bakersfield (2004) 124

Cal.App.4th 1184, 7273 -)of primary concern to area residents is the loss of the Ivy House lot, which, among

other concerTrs, wouid also prohibit the saturday Farmet's Market remaining in its present

location on Main Street. City staff acknowledged the problem and noting:

I tldnk we all know that parking is a very important issue anywhere in the downtownarea and the fact that realig*r,f Ouy S#eet would result in a significant loss of parkingin the Ivy House parking lot' (AR2:507')

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Residents and Business owners exPressed concerns that the Project would remove

parking from already struggling businesses and were located too far from downtown'

increasing the chance of urban decay. (AM:314, 535-537, 553;556,562, 677, 673, 836-837, 852-853,858.)

CEeA is not afair competition statutory scheme. Therefore, the economic and social

effects of proposed projects are generally considered outside CEQA's purview' (Cal' CodeRegs. trl.74,S 15131(a).) Yet, if the forecasted economic or social effects of a proposed projectdirectly or indirectly will lead to adverse physical changes in the environment, then CEQA

requires disclosure and analysis of these resulting physical impacts. Cal. Code Regs' tit' L4, S

1506a(e) provides that when the economic or social effects of a project cause a physical change,this change is to be regarded as a significant effect in the sanle manner as any other physical

change resulting from the project. Conversely, where economic and social effects result from a

physical ehange that was itself ca-r:seei- bir a proposed projecf tJren tiese economie and socialeffects may be used to d,etermine that the physical change constitutes a significant effect on the

environm ent. (B aker sfield, sup r a, 724 CaL APP.4th 7784, 7213')Flere, economic and social effects result from a physical change in the environmentam

l-) construction activities of the road realignment and new bridge, and demolition of the

Hangtown bridge that shut down or limit access to the downtown area;z) removing prime

parking in the downtown; 3) replacing parking locations further away from downtown;4)moving kaffic more quickly through the downtown;5) impeding walkabirls;6) interruptingthe historic character of adjacent historic commercial and residential districts; andz) movingthe farmer's market away from downtown'

, Resident Jim Clark stated, " ...youknow, eliminating 43 spots i1 F",Ivy parking lot'That's going to U" Uig.- Cl*k 4so noted that the reJl number of lost pT.Sig..plT"trs 43 nJt g+](AR2:ssi.) puutic Works Director Randy Pesses responded "Well, it's-it will be whatever-you know, whatever the final design will iay out." (AR2:553')

" Resident Gene Altshuler stated, "What you are talking about is _1 nlatn artery- -tflt""[n to*". W" *g.tg1-*4 s.Pen! moneyto connect Placervilie Drive and MainStreet. Now what *""*itlbe doing for months is severilg yuil Street fromBroadway. Ifls going to make a trJmendous impact on th-e businesses in both theMain Street locition and in the location of Broadway, which is struggling as it is'"(AR3:655, see also testimony by Iudy Davis at 656-657 ')

. Business owner and resident Carol Aadnesen stated, " ...if-you do this, you/le goingto see half of Main street vacant. And this is the pulse of the town. I he mercnantsare the pulse and we want to keep our local shopping with us' We don't want themgoing down to Folsom-

. susan Kipping concuffed that the parking was too far away and she had concernsthat the City #ur closing down u.r".y *u"irr-u.t!:ty to a very smail town thaf salready having hard economic times. (AR3:6a6')

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Mike Kobus representing the El Dorado 9"ylty Chamber of Commerce stated "Thisarea down here is kind ol I wouid t;;; fittf. f-it of a blighted area'" (AR3:677 ')Commissioner Russell stated the Farmer's Market works as well as it does because

itis on Main Street. (AR2:565')

. Numerous commenters were concerned that movingtheFarmer's Markef awayfrom downtowry would f*tth;;l;"J to th" decay of"the downtown area' (AR2:535'548, 557-558, 565-56 6;3:695, 835')

staff represented that locating the parking 800 feet from downtown at the stancil lot

would be similar to many shopping centers' (AR2:562'). EI Dorado resident Chuck wolf stated, "This is not a shopping center' rhls i1

Placerviile, hlrto.i. asset Piacerville. This is not a shopping center' If we starttl""k

";li;eht;;;tf..ppft center and start designing parkingand

.,,

transpo?tation as if ifs u Jtiopii"g center, well, you'ie g9-inq to end up with ashopping center. you're ;;tddilZnd up with'd{e same"kind of blight and problemsthat we have in orr'. ,t"roppi.,g"."rrt"rr tiifhl rro*'" (A1u:562') "ThiJis a historicalasset that pays for itse1f."'(,Aft2:562-.) -+d *uyU" it [the roundabout] was a goodidea 10, 15 vears ago' I *riif.,ft-for what linig q1t;'91'. re getting out of this'you're ;;"'il;; n'*rt of a lot of problems "'" (AR2:563')

Longtime business owners and community members attest to the Project's potential to

cause urban decay, representing a fair argument such that urban decay must be sfudied in an

3. SafetY ImPacts of RoundaboutsAppendixG,sectionXV'Transportation/Trafficsubd.ivision(d)statesthataproject

may have an impact if it "substantially increase[s] hazards due to a design feature (e'g'' sharp

curves or dangerous intersections) or incompatible uses"'The City provided evidence on the safety of roundabouts' (AR3:796') Community

members stated that the public is not against roundabo uts, per se,but are against the

roundabo .atin iltis lacation.(ApJ:547.) "The area is far too smal1 ... The side.walks are going tc

be too close to the street ... if s just too congested." (AR2:547-548'). Chuck wolf expressed concern that there had been no study of the sinkholes that

caused the Ivy House retaining wall to fail in November 19194'The effects of anothersinkhole a",r.fopr.glr', thut ,ui"t; l";;;;:*hi.h would constitute the northeast;;;il; ;i in" .d,r.,f, about, have not been studi ed' (AR3 :71 1')

. Business owner and resident Carol Aadnesen stated, "the residents are going to

have trouble. There's lots of older people living arourtd here' They're not going t9know how to use a roundabout. Tfreris lots oipeople walking *o:ld with strollersand then *-r"y;ii hurr" to wait for cars to pass, to go to a middle part for cars

to pass

to get to the other side." (AR3:835')o Business owner and resid,ent Date Pierce noted that the Truckee ordinance stated

roundabort, atelJo;;;"J;[;th;t;" phyti.ui possible' This is a very sma]lEl Dorado Superior Court Case No' PC-201-10145

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space and there'S Some real concerns about the number of driveways' the position of

crosswalks. It is not an objection roundabout in general' It is a roundabout in this

space '. '" (,4R3:860')' Expert building designer, su.e Taylor and El Dorado County

resident stated she

designs roads, -buiidings

urla ,t',"'pio;;q+9t""ts thought the gity and County' 'Iunder stand h";-p;r

"El" v"J k'5;, ;i; {t"' q'?%1T*:9,11d -T:*:L#\ - i s sr r effi:fJA:i,""[IjH;::i i;J t*;; .h; ri,,*i"g Commission, the crosswalk issue.;l;i';;"i;;?;;;;;"ri/

't"ai"d about how cr5sswalks work in a roundabout

and they have to be farelbug! "*"i;;;tf't" -"1a1bout, so

that you don't there's

a certain distance ti.;; tii;;th"gt';"Jilbe pulled.back from the roundaboutand I don,t know if you have th" roo* to ao tt,it. And once vou do that'

do you

have the visibiliq, i;th^i ;* to U" uUi";;t"" those Pedesnians' The other issue isthat roundabouts ;;;;;g;io"t fo.ili.y.i".id"tt and people that are ADA'"(AR3:705.)

disaster:a

The City touted the safety features for ped,estrians with the roundabout design'

including ,,pedestrian island refuges." (AM:409; 3:634-635,732)Butthe public expressed their

corrcelTLS'rhai the r-r:Lixtiire of coi:rfi::Luous, lTLoving fu'affic an'J pedestriai:ls -vvdS d recipe for

Expert general engineering.contractor Ron Clark met with Randy lPesses] and statt

there is a pedesh'ian safety issue. Staff stated it was a waste of time to bring uP any

safely concerns. -... tf,ri, titing is goinglo go no matter what'" (AR3:701')Resident Chuck wolf stated that one 6r tr,r" parking lot alternadves would

require

cars entering the parking lot to .ros ih. btli" trail;nd would be create a safetyn"r"rJ t. Uicyclisis and"pedestrians on the trail. (AR2:561')Resid,ent and business owner, Wilbur Howe stated fu"? o1{ottt!^"^"^-P,l+"5-*":

there's got to be a backuP created'". Resident Michael Drobesh brought up the fact that "when

you're using aroundabout ...you're focused ." ,h;i";td". yo"'t" not focused on the pedestrianworking lr, *i;;.-;iii.;;;ilJ"u"JJ1"_.8uy behind vou is focused on goinghalfway through or three-quar9;t-il;;;h. Wfi"it you stop for that pedestrian' he'sti[nt in the baik of you-" (AR3:700')

, public Works Direcior Randy Pesses pointed out the oossible necessity to move one

of the crosswalks turther up the ]["d d";|ol;tk of visibility at the corrler'(AR3:635.)

hit in the crosswrilia the roundabout shows four pedestrian crosslngs/ m1x1ng;;pi" il u'utfi. on a1l four corners' (AR3:663')Resident and business owner, Patby Ciark stated' that she has "seen

children hit in

the cosswalks, walking to school' It;;i;jT " site.to see' anfl1o;v.JnoY't" addingffi:::il.f,fit #.ililr" J't*"j Lp ""a

down the road'" (AR3:682')public works Director Randy pesses siated we have to remind pe.opl9 that

califlaw requires that you must.o,,.," t" ;;i;t;hen there's a pedestrian in thecrosswalk,

"rr"t, iri;;;;;atbout' (AR2: szz; z:r1-rgz')ul(JbSvvdrN, svLrrrrl , .1

Councilwoman Patricia Borelli stated, "I guess I can't see how these ca.rs afe gomground. and round and you're going to f-t"i" them stop for people and

then-so

Community members provided substantial evidence of potential safety impacts of the

EI Dorado Superior CourtCase No' ec-20ff0f+5 - pae

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roundabout project in this locatiory constitutin g afatt argumen! and an EIR must be prepared'

4. Toxic ImPactsThe City has acknowledged the existence of two sources of hazard'ous substance

and/or

petroleum products on the lvy House Parking lot parcel' (AR1:32; see, suprn' at page 4') Public

works Director Randy Pesses explained for the Council that when you encounter

contaminatiory "you just change gears. You identify-you identify the degree of

contamination of the so1 and then you incorporate that into the construction'" (AR3:742-743')

CEQA prohibits this after-the-fact anaiysis. The point of environmental review is to determine

the extent of the impact so that adequate mitigation and alternatives can be fatrly considered

prior to project approval. This constitutes an omission and an illegal deferral of sfudy and

mitigation.The California supreme Court ruled tnLsurer Heights Improaement Association

o' Regents

the lLniaersity of Catifornia (7988) 47 C?J.3d,376, 394, +Jrat an agency rnay nct precomrr"jt tc a

project before CEQA review is completed' because[a] fundamental purpose of an EIR is to provide decision makers with

inJormation they

can use in decidin gwhetherto approve a propos"{ etdttt, not toinform them of theenvi ronmental eff ects of proj ect-s

-th a t thgy have JtJu ay tpproved' IJ pos i-approval

environmental review were "li;;"d, EIRt woul-d likel' b6come

nothing more thanpostttoc rattonirlizations to suppori;;L;; rri"^a/1rt51 :^!s:: *:? Mt!,:t-t:.:i2::!:::er,,n;o,

case law has permitted a lead agency to defer the formulation of specific mitigation

measures after the lead agency: (1) und'ertook a complete analysis of the significance of the

environmental impac! (2) proposed potential mitigation measures early in the planning

process, and (3) articuiated specific performance criteria *'hat -would ensure that aCequate

mitigation measures were evenfuaily implemenred. (Communities for a Better Enuironment a'

CiQ of Richmond (201 0) 1'84 CaJ' App' 4rh 7 0' 95')Here, the MND has not undertaken a complete analysis of the significance

of the impact

because it has not quantified the extent of the hazard'

E:;T;,:f;"fr:;;;,,'",i?ijr\btiaiii'a;iaen s^q 2!:??} stanistaus Naturat Heritage proiecta. County oy stan sliu"! rlg:gdi +,8"9^l iiv +tlitgz, 200 (deferral of analysis of major projectimpacts until after adoption of speafitJPi; ;.11d "appear to be putting the cart beforethe horse.

. Resident Chuck Wolf stated at the October Planning Commissi.tl 19T1"g that the

MND acknowledges there is a petoleum residue irithe-gr9""q.f.Yt it faiied toquantify it. (A32'B;O.i"II could b;;;i; Problem, it coul"d be a little problem' but youshould rea,lly know that probl"ytl"1lt-9 !o" tt*i aoing anything' You shouldn't startexcavaron f",

-rh;p;;'j;i;; th; il;ihulp.obr"- #d then fisure out what vou'regoing to do about it'" (AR2:560')

El Dorado Superior CourtCase No' PC-20110145 - Page27

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. Resident Chuck Wolf stated at the November City Council meetingthat theseconditions have the potential 1o .urr*e-tignificant negative iqRscis that must beadequately uaa1"* [o comply-with CEQ"A. "To cont"inue with this project beforeidentifying tn"-u.i.r"i""t"tit "of hatard.ous and toxic material present is reckless andirresponsibte. (aRg:zrz.)

. Resident Sue Taylor stated proposed mitigation is to study the impact in Phase II after

the Project has been approved' (AR3:850')

Communities for a Better Enaironment a. City of Richmond,l'84 Cal'App'ath 70 holds

when a mitigation measure embodies nothing more than the hop." that the agency orapplican! wlth more effort o, u'utytit,.ur, ,#rr"how find a solution to a thornyenvironmental problem, an ug"tld;;t

"i.]^t" the California Environmental QualityAct, pub. Resources Code, S 21000 J;"q Mitigation measures must timelv be set forth'environmental inJormationbe complete'and rElevant, an4 environmental'decisions

be

made in an accountable arena. Wltil f;;t""ittg th"-unforeseeable is not possible' anagency must use its best effort, to ?inJ out and?is.toru all that it reasonably can'

(Cal'C"ode Regs., ti;t.74, S 15144')

The City has put the cart before the horse and approved the Project prior to adequateiy

quantifying the impact. Substantial evidence that the Project may result in impacts due to toxic

substances has been established, and an EIR must be prepared'

5. Biological ImPactsThe IS/MND failed to adequately identify potentially significant environmental impacts

of the d.emolition of native trees and sensiti.ve habitat and to propose adequate mitigation in

relation to biology. (See Guidelines Appendix G $ fV, subd' (a-f); AR2:377 ')a. Impacts to Trees. The City proposes planting replacement trees to mitigate the

removal of mature native kees and shrubs, some of which will be one ga1lon and seedling size'

(AR2:587; 71.:3220.)Replacement plantings of seedling or one gallon size cannot reasonably

expected to compensate for the loss of mature native trees. (AM:311, 318,379 [photocomparison of the size of existing trees and repiaeement trees']) Resident David Price stated

replacement trees do not mitigate the adverse effects caused by the massive tree remova-l

contemplated by the project. (AR2:3L1.) Resid.ent Robyn Rawer stated repiacement plants of

seedling or one gallon size cannot reasonably expected to compensate for the loss of mafure

native trees and habitat. (AR2:318, 3L9 [photo comparison of the size of existing kees and

replacement lrees.]) No landscape pian has been developed'b.Impacts to Sensitive Habitat'The IS/MND failed to acknowledge the biological impact of removal of sensitive

habitat and propose adequate mitigation. project impacts are considered potentially significan

if the Project may "have a substantial adverse effect on any riparian habitat or other sensitive

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natural community identified in local or regional plans policies, regulation or the califorma

Department of Fish and Game or US Fish and Wildlife Service." (Guideiines Appendix G $ IV,subd. (b).)

As explained in the statement of facts, the Project proposes removal of mature sensitive

nafural habitat communities in the Project area including riparian foresf montane hardwood-

conifer forest and Hangtown Creek. (AR1:7-38, see, infta, at pg' 3-4') The City proposes tree

planting and hydro seeding to mitigate the removal of 27 outof 58 trees and habitat, but has

not proposed adequate mitigation. (AR1 :29-30;2:311';378, 319;1I:321'6-3219') No landscape

plan has been develoPed.5. Visual and Aesthetic ImPactsThe Initial Study and Mitigated Negative Declaration fail to adequately identify

potentially significant environmental impacts of the Project. The aesthetics of the "built

enviroir.iil,ent" of Ca1iforr.ja's cities have al"r,rays been protected" by CEQA along -'nrith nah;ral

resources, and are a proper subject for environmental review' (Pub. Resources Code S 21001

subd.(b).)CEeA Appendix G Initial Study Checkiist lists aesthetics as the first of its

,,environmental factors potentially affected." (See Appendix G, Environmental Checklist Form'

at 1.) Courts have found that aesthetic impacts are ploper subjects for environmental review'

and that subjectivity should not preclude review of aesthetic impacts' (The Pocket Protectors u'City of Sacramento (2004) 724 CaI.App.4'n 903.) "Relevant personal observations of area

residents on nontechnical subjects may qualify as substantial evidence for afarr argument' So

rnay expert opinion if supported by facts, even if not based on s