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INTRODUCTION 1. Petitioner, Endangered Habitats League, a California non-profit corporation, respectfully requests issuance of a peremptory writ of mandate setting aside the decision of the City of Murrieta (City) taken on or about May 1, 2012 to adopt a resolution establishing a policy regarding the Citys application of the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) (the Policy or the Project). 2. The Policy was adopted as a purported clarification of the conservation requirements of the MSHCP as they relate to single-family homes and development of four parcels or less on parcels of 30 acres or less located with Criteria Cell Areas under the MSHCP. In practice, the Policy exempts parcels of 30 acres or less involving four parcels or less from contributing to the critically-important land dedication requirements of the MSHCP, and in so doing, creates biological and land use impacts that have not been evaluated pursuant to CEQA. In fact, the City failed to conduct any CEQA review whatsoever in connection with its adoption of the Policy. 3. Furthermore, the Policy undermines the effectiveness of the MSHCP as it relates to conservation of lands. The MSHCPs dedication requirements and provisions apply to all development, albeit with significant exceptions for single-family homes on existing parcels. The City unilaterally approved the Policy to excuse parcels of four or less on 30 acres or lessi.e., small subdivisionsfrom the Plans conservation requirements. 4. In essence, the City took away the mechanism whereby local jurisdictions, through the land use development process, acquire reserve lands for the assembly of the MSHCPs overall conservation goals. Specifically, the MSHCP relies on the acquisition of over 41,000 acres of land through dedication of land as part of the local development review process, but the Policy exempts subdivisions of four parcels or less on 30 acres or less from any obligation to dedicate land. As the Policy applies to dozens of parcels including a significant amount of undeveloped land in the Citylands specifically identified as important for reserve assembly because of their biological valuethe
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PETITION FOR WRIT OF MANDATE

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Policy has grave consequences in terms of environmental impacts as well as the MSHCPs conservation goals. 5. The MSHCP is a comprehensive, multi-jurisdictional Habitat Conservation Plan (HCP) focusing on conservation of species and their associated habitats in Western Riverside County. Multiple jurisdictions are signatories to the MSHCP including the City of Murrieta. The MSHCP seeks to achieve its overall conservation goal of 500,000 reserve acres by the assembly of conservation lands. The MSHCP planning area contains Criteria Areas representing the areas within which MSHCP Criteria will be applied and from which 153,000 acres of new conservation will be achieved to contribute toward assembly of the overall MSHCP Conservation Area. The City of Murrieta has Criteria Areas within its jurisdiction. 6. In adopting the Policy which changes the manner in which the MSHCP is applied to development projects, the City failed to make any findings under or otherwise subject the Policy to the review provisions of California Environmental Quality Act (Public Resources Code 21000 et seq.) (CEQA). 7. The City violated the provisions of CEQA by failing to conduct CEQA review for the Project when the Policy presents the reasonable possibility of direct and indirect adverse environmental effects. The Project weakens the provisions of the MSHCP to allow certain parcels with important biological resources to be excused from the dedication or conservation requirements of the MSHCP, thereby resulting in land use and biological impacts, among others. 8. Similarly, the Policy must be set aside because it is inconsistent with the Citys newlyadopted General Plan 2035. The MSHCP and its Implementing Agreement require local jurisdictions to amend their general plans to incorporate the MSHCP. The City recently adopted a new general plan which purports to affirm its commitment to fully implement the MSHCP. The Policy changes the manner in which the MSHCP is applied to development projects and it is therefore contrary to the MSHCP and the Citys General Plan.
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PETITION FOR WRIT OF MANDATE

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9. This Project, if allowed to stand, would significantly affect the environment. 10. By this verified Petition, Petitioner alleges the following: PARTIES 11. Petitioner, Endangered Habitats League (EHL), is a California non-profit corporation dedicated to the protection of the diverse ecosystems of Southern California and to sensitive and sustainable land use for the benefit of all the region's inhabitants. Petitioner has members living in Western Riverside County, and Petitioners members use and enjoy the resources of Western Riverside County. Petitioner and its members are directly, adversely, and irreparably harmed by the environmental harms associated with the Policy until and unless this Court grants the relief prayed for in this Petition. Petitioners members are beneficially interested in this action pursuant to Code Civ. Proc. 1086. 12. Respondent, City of Murrieta, is a local government agency charged with the authority of regulating and administering land use and development within its territory in compliance with the provisions of state law including CEQA. The City is the lead agency for the Project and is therefore charged with the duty of ensuring compliance with these applicable laws. The City is also a signatory to the MSHCP and the MSHCPs Implementing Agreement and is charged with compliance with its provisions. 13. DOES 1 through 100 are individuals or entities that may have an ownership interest in the property, were project applicants, or claim an interest in the Project approvals at the subject of this lawsuit. Petitioner is unaware of the true names or capacities of the Respondents or Real Parties in Interest identified herein under the fictitious names DOES through 100 inclusive. STATEMENT OF FACTS The MSHCP Background 14. The 2004 Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) is a comprehensive, multi-jurisdictional Habitat Conservation Plan (HCP)
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PETITION FOR WRIT OF MANDATE

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focusing on conservation of species and their associated habitats in Western Riverside County. The overall goal of the Plan is to assemble 500,000 acres of conservation lands over time and to protect 150 species. Lands comprising the conservation area will consist of existing Conserved Lands, Core Areas (blocks of habitat) and Linkages (lands between Core Areas to provide live in habitat for and promote movement of species). 15. The MSHCP Plan Area encompasses approximately 1.26 million acres (1,966 square miles); it includes all unincorporated Riverside County land west of the crest of the San Jacinto Mountains to the Orange County line, as well as the jurisdictional areas of the Cities of Temecula, Murrieta, Lake Elsinore, Canyon Lake, Norco, Corona, Riverside, Moreno Valley, Banning, Beaumont, Calimesa, Perris, Hemet, and San Jacinto. 16. According to the MSHCP, it is one of the largest and most ambitious HCPs ever attempted. The MSHCP describes that it covers multiple species and multiple habitats within a diverse landscape, from urban centers to undeveloped foothills and montane forests, all under multiple jurisdictions; it extends across many bioregions, including the Santa Ana Mountains, Riverside Lowlands, San Jacinto Foothills, San Jacinto Mountains, Agua Tibia Mountains, Desert Transition, and San Bernardino Mountains; and it provides a coordinated MSHCP Conservation Area and implementation program to preserve biological diversity and maintain the region's quality of life. 17. The MSHCP serves as an HCP pursuant to Section 10(a)(1)(B) of the federal Endangered Species Act of 1973 (FESA), as well as a Natural Communities Conservation Plan (NCCP) under the NCCP Act of 2001. The MSHCP allows participating jurisdictions to authorize Take of plant and wildlife species identified within the Plan Area. 18. The MSHCP delineates a 310,000-acre Criteria Area which constitutes the area within which the MSHCP Criteria will be applied and from which 153,000 acres of new conservation will be achieved to contribute toward assembly of the overall MSHCP Conservation Area. 19. MSHCP procedures and requirements are triggered by all discretionary actions by local
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PETITION FOR WRIT OF MANDATE

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jurisdictions. 20. As is relevant here, the MSHCP relies on the acquisition of over 41,000 acres of land for conservation through dedication of land as part of the local development review process. (MSHCP 8.4.1) 21. Depending on a projects location, requirements for MSHCP compliance vary. If a project is located within a Criteria Area, MSHCP reserve assembly is required. Any project within a Criteria Area requires review by the Western Riverside Regional Conservation Authority (RCA) in the form of a Joint Project Review (JPR). The RCA is a joint powers authority established to assist local Permitees with MSHCP implementation. During the JPR, conservation requirements for a development project are identified. 22. Regardless of whether a project is within a Criteria Area, Other Plan requirements such as compliance with the Riparian/Riverine Guidelines, species survey requirements, etc. may apply. 23. A single family home or mobile home is not subject to MSHCP reserve assembly or Other Plan requirements if it is to be built on an existing legal parcel. A single-family home on an existing parcel is considered a covered activity and can be processed via the Expedited Review Provision (EPR) of the MSHCP. (MSHCP 7.3.2) To utilize the ERP, the project must be located on the least environmentally sensitive portion of the parcel, and a habitat assessment may be required to determine the projects appropriate location. 24. All other types of private development are subject to the provisions of the MSHCP. Land use development for land use projects within the 310,000 acre MSHCP Criteria Area requires compliance with the Property Owner Initiated Habitat Evaluation and Acquisition Negotiation Strategy (HANS) and project level consistency with other elements of the MSHCP. 25. Under the MSHCP, every subdivision application within a Criteria Area must be reviewed by the City under the HANS program. The HANS program allows the City to identify lands for conservations purposes. When appropriate lands are identified, the
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PETITION FOR WRIT OF MANDATE

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HANS program further enables the City to obtain a dedication of land through negotiation with the landowner. The MSHCP provides that various incentives may be available to the property owner in lieu of or in addition to monetary incentives in exchange for a conveyance of property. (MSHCP 6.1.1) These incentives include the waiver or reduction of certain development fees, monetary compensation for entering into an option agreement, fast track processing, density bonuses, clustering, and density transfers. (MSHCP 6.1.1) 26. The City of Murrieta approved the MSHCP on September 16, 2003 by Resolution No. 03-1245, and the City is a local Permittee under the MSHCP. 27. As a local Permittee, the City is responsible for ensuring that all development proposed is consistent with the MSHCP dedication requirements and other provisions. 28. The MSHCPs Implementing Agreement, to which the City is a party, requires local jurisdictions to amend their general plan to implement the requirements of the MSHCP, and to meet the local Reserve Assembly contribution obligations through the HANS process for private development projects. (MSHCP 6.1.1) 29. The City of Murrieta adopted a new general plan in 2011. The Citys General Plan 2035 purports to affirm its commitment to fully implement the MSHCP. The City of Murrieta Adopts the Policy Implementing the MSHCP 30. On or about May 1, 2012, the City Council of the City of Murrieta voted to adopt a resolution approving the Murrieta Multiple Species Habitat Conservation Plan Policy (the Policy). 31. The Policy is described as one to clarify the provisions of the MSHCP as they apply to development of four parcels or less on parcels of 30 acres or less in the City of Murrieta. 32. The Policy, as proposed, stated that: It is the Policy of the City of Murrieta that development of individual single-family homes and residential parcels of twenty-acres of less that are located in MSHCP Criteria Cells can occur, subject to the following: A. Individual Single-Family Homes. Development of an individual single-family home will follow the Expedited Review process as contemplated by the MSHCP, with development occurring on the least sensitive portions of the
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PETITION FOR WRIT OF MANDATE

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property and no dedication is required. B. Residential Parcel Maps. Residential parcel maps creating four parcels or less a. Will not be required to dedicate property for Reserve Assembly conservation, but will be subject to MSHCP other plan requirements. b. Will be required to provide dedications for purposes consistent with the types of dedications (e.g., street frontages, utilities, fault zones, etc.) required in other areas of the City. c. Will be reviewed for compliance with all other local development regulations and state and federal laws, including the CEQA. C. Conservation. If it is determined property is needed for conservation and owners are willing to negotiate, they will be referred to the Regional Conservation Authority (RCA) for acquisition negotiations through and appraisal and acquisition process that is consistent with accepted State and federal practices and consistent with the MSHCP. 33. Petitioner is informed, believes, and thereon alleges that the Policy was introduced as one to clarify the provisions of the MSHCP as they relate to parcels of 20 acres or less, but that the Policy was approved as applying to parcels of 30 acres or less as a result of discussion at the City Council meeting. 34. Petitioner is informed, believes, and thereon alleges that the City through the adoption of the Policy has excused dozens of parcels including a significant amount of undeveloped land in the City from compliance with the MSHCPs dedication requirements and provisions. 35. The maintenance of this action is for the purpose of enforcing important public policies of the State of California with respect to the protection of the environment under CEQA and compliance with State and local planning law. The maintenance and prosecution of this action will confer a substantial benefit upon the public by protecting the public from environmental harms and other harms alleged in this Petition. Petitioner is acting as a private attorney general to enforce these public policies and prevent such harm. EXHAUSTION OF ADMINISTRATIVE REMEDIES 36. On May 1, 2012, Petitioner submitted a detailed comment letter objecting to the approval of the Policy and has exhausted all available administrative remedies for the maintenance of this action. (Public Resources Code 21177) 37. Petitioner has performed all conditions precedent to filing the action by complying with the requirements of Public Resources Code 21167.5, in notifying Respondent of the
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PETITION FOR WRIT OF MANDATE

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filing of this action (attached hereto as Exhibit A), and by complying with the requirements of Public Resources Code 21167.6, in notifying Respondent of Petitioners election to prepare the record of Respondent proceedings in connection with this action (attached hereto as Exhibit B). FIRST CAUSE OF ACTION (Writ of Mandate) (Violation of CEQA.) 38. Petitioner hereby realleges and incorporates paragraphs 1 though 37. 39. One of the basic purposes of CEQA is to inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. (Cal. Code of Regulations Title 14, State CEQA Guidelines 15002 (a)(1).) 40. CEQA applies to governmental actions to include activities directly undertaken by a governmental agency. (State CEQA Guidelines 15002 (b)(1).) 41. A lead agency must conduct a preliminary review to determine whether CEQA applies to a particular activity. (State CEQA Guidelines 15060, 15061; Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 116-117.) 42. CEQA applies to an activity deemed to be a project. Under CEQA, The term project has been interpreted to mean far more than the ordinary dictionary definition of the term. (State CEQA Guidelines 15002 (d).) The term project is given a broad interpretation to maximize protection of the environment. (RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1203.) 43. A project is defined as the whole of an action, which has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. (State CEQA Guidelines 15378 (a).) 44. Thus, in conducting the preliminary review, a lead agency considers whether an activity is a project to the extent that it may have a direct or indirect effect on the environment. (State CEQA Guidelines 15378 (a).) 45. Indirect effects on the environment are those caused by the project and are later in
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PETITION FOR WRIT OF MANDATE

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time or farther removed in distance, but are still reasonably foreseeable. (State CEQA Guidelines 15358 (a)(2).) 46. If there is a reasonable possibility that a proposed project may have a significant direct or indirect effect on the environment, the lead agency must prepare an initial study to consider whether the project may have a significant effect on the environment. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 206.) 47. Petitioner is informed, believes and thereon alleges that the City failed to conduct a preliminary review in order to determine whether CEQA applied to the proposed Policy. 48. Petitioner is informed, believes and thereon alleges that the City failed to make any findings pursuant to CEQA in connection with its approval of the Policy. 49. Petitioner is informed, believes, and thereon alleges that the City failed to complete an Initial Study to consider whether the Policy may have a significant effect on the environment. 50. The Policy presents a reasonable possibility of significant direct and indirect environmental effects in that, among other things, it exempts parcels of four or less on 30 acres or less in the City from complying with the land dedication requirements and provisions of the MSHCP. This results in indirect land use and biological impacts that have not been evaluated or mitigated pursuant to CEQA, among other impacts. 51. By failing to conduct CEQA review, by failing to make any findings pursuant to CEQA, and by failing to prepare an Initial Study for the Policy, the City abused its discretion and the Policy must be set aside. (Public Resources Code 21168.5; Code of Civil Procedure 1085, 1094.5.) SECOND CAUSE OF ACTION (Writ of Mandate) (The Policy is Inconsistent with the Citys General Plan 2035) 52. Petitioner hereby realleges and incorporates paragraphs 1 through 51. 53. The City of Murrieta is a signatory to the MSHCP and the MSHCPs Implementing
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PETITION FOR WRIT OF MANDATE

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Agreement, and, as such, the City is required to comply with the local reserve assembly obligations and other provisions set forth therein. 54. The MSHCP and its Implementing Agreement require local jurisdictions to amend their general plan to implement the requirements of the MSHCP for public and private development projects. 55. On July 19, 2011, the City adopted a new general plan (General Plan 2035) and certified a Final Environmental Impact Report (EIR) for the general plan. 56. A general plan is a policy document required by the State of California that guides development in the City. Under Government Code 65300, each county and city shall adopt a comprehensive, long-term general plan for the physical development of the county or city. 57. Land use decisions in the City must be consistent with the general plan. (Families Unafraid to Uphold Rural El Dorado County (1998) 62 Cal.App.4th 1332, 1336.) 58. The General Plan 2035 Final EIR states that it includes goals and policies to ensure that the City remains compliant with the [MSHCP] and Implementing Agreement. 59. The General Plan 2035 Draft EIR provides that the Citys obligations under the MSHCP include to Meet the local Reserve Assembly contribution obligations through the [HANS] for private development projects (MSHCP Section 6.1.1). 60. The Policy exempts parcels of four or less on 30 acres or less from having to dedicate any land for conservation, contrary to the MSHCP and the General Plan 2035. 61. By adopting the Policy which is inconsistent with the Citys General Plan 2035, the City abused its discretion or otherwise failed to comply with its duties under the law for which the Policy must be set aside. (Code Civ. Proc. 1085, 1094.5.) WHEREFORE, Petitioner prays for the following relief on all causes of action: 62. For the Courts peremptory writ of mandate requiring Respondent City to set aside its decision approving the Policy. (CCP 1085, 1094.5). 63. For the Courts peremptory writ of mandate requiring Respondent City to fully comply with the requirements of CEQA prior to any future approval of the Policy.
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PETITION FOR WRIT OF MANDATE

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64. For the Court's peremptory writ of mandate requiring Respondent City to fully comply with the requirements and policies of the City's General Plan prior to any reapproval of the Policy. 65. For costs of this suit, including attorney's fees pursuant to Code Civ. Proc. 1021.5. 66. For such other and further relief, including preliminary and permanent injunctive relief as may be appropriate.

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8 DATED: May 31, 2012 JOHNSON & SEDLACK

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By:~~~~~~~~____________

Raymo Abigai A. roedling II Kimberly Foy Attorneys for Petitioner EHL

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PETITION FOR WRIT OF MANDATE

VERIFICATION
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State of Califomia

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County or Riverside

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I, the undersigned, certify and declare that I have read the foregoing Petition for Writ of Mandate and know its contents. Jhe statement following the box checked is applicable.

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( ) I am a party to this action. The matters stated in the document described above are true of my own knowledge and belief except as to those matters stated on information and belief,

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t and a5 to .hose matters I believe them to be true.


1 am 0<> an officer () a partner ( ) a member ofENDA.1\1GERED HABITATS LEAGUE, party to this action, and am authorized to make this verification for and on its behalf, and I make
this verification for that reason. I run informed and believe and on that ground allege that the

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matters stated in the document described above are true.

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I declare undar penalty of perjury of the laws of the State of California that the foregoing
is true and correct.

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Dated: May

..sO ,2012

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Verification

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit A

Exhibit "A"

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit B

Exhibit "B"

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MICHAEL D. FITTS (SBN 145114) ENDANGERED HABITATS LEAGUE 702 Pearl Street Redondo Beach, CA 90277 (310) 316-5053 JOHNSON & SEDLACK Raymond W. Johnson SBN 192708 Abigail A. Broedling SBN 228087 Kimberly Foy SBN 26785 Camino Seco Temecula, CA 92590 Tel: 951-506-9925 Fax: 951-506-9725 Email: Esqaicp@wildblue.net Attorneys for Petitioner SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE ) ) ) ) Petitioner, ) ) vs. ) ) CITY OF MURRIETA, ) Respondent and Real ) ) Party in Interest, ) ) and DOES 1 through 100, inclusive, ) Respondents and Real ) ) Parties in Interest. ) ) ENDANGERED HABITATS LEAGUE, a California non-profit corporation, CASE NO.: ASSIGNED FOR ALL PURPOSES TO JUDGE: DEPARTMENT: ACTION FILED:

PETITIONERS NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

(Pub. Res. C. 21167.6) CASE DESIGNATION: CEQA

-1NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

TO ALL PARTIES: Pursuant to California Public Resources Code 21167.6, Petitioner ENDANGERED HABITATS LEAGUE hereby notifies Respondent CITY OF MURRIETA of Petitioner's election to prepare the Administrative Record of proceedings relating to this action. DATED: May 31, 2012 JOHNSON & SEDLACK

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By:~~~~~~~~____________ Ra 0 W. Johnson Abigail A. Broedling Kimberly Foy Attorneys for Petitioner EHL

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-1 NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

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