*****************************
A letter from the Institute for Justice 11/03/2005.
Dear Deanna:
Yesterday, the U.S. House of Representatives overwhelmingly passed H.R. 4128, the Private Property Rights Protection
Act of 2005, by a vote of 376 - 38. Below is the text of the bill as passed by the House. The amendments that would have substantially
weakened the protections it affords were rejected. This tremendous outcome was a direct result of your calls and letters to
Congress. But the battle is just beginning; the bill now heads to the Senate. We will need your support again to make sure
that the Senate follows the House's lead in refusing to fund eminent domain abuse.
YOU made the difference yesterday, and we appreciate your efforts and dedication to protecting private property
rights. So from all of us here at the Castle Coalition - thank you!
Sincerely,
Christina Walsh
Assistant Castle Coalition Coordinator
Institute for Justice
****
Click Will Leviathan Prevail?
On December 01, 2005, the author has statements from Kim Hoang pertaining to the Newark Operable Unit. Kim
Hoang, Remedial Project Manager, of the Newark Operable Unit argued that the water is clean and clear. According to the Respondents
the need is treatment of contaminated water. Evidence is contrary to contamination but truthfully a desire to exterminate
the neighborhood.
****
The City of San Bernardino primary responsibility is the South Lake Project. The Water District admended their
agreement and will not purchase any properties in the South Lake Project. To the reader you must be very careful of your negotiation
with the City and Developers. The track record of the City is not favorable for anyone who owns Real Estate.
On December 07, 2005, I received written information pertaining to the proposed changes to Section 4 of Amendment
No.2 to the Loan Agreement between the City of San Bernardino and the San Bernardino Valley Municipal Water District:
The agreement is written as follows:
It is understood that future specific Project related tasks with respect to (I) the North Lake Project, will
be the primary responsibility of the District, and (ii) the South Lake Project will be the primary responsibility of the City,
including, but not limited to, relocation, planning NEPA analysis, property acquisition, and other activities associated with
the planning, design and construction of the North Lake Project and the South Lake Project, receptively. The parties recognize
that the City remains committed with its support for the North Lake Project to be undertaken by the District, and District
remains committed with its support for the South Lake Project to be undertaken by the City. Nothing contained herein will
prevent the parties, together with the Authority, from jointly applying for receiving and using for the payment of Project
costs such as grant funds, bond proceeds and other jointly obtained funding resources as the parties may so obtain.
*****
News: Another study of the Environmental Impact will take and should take some time. Please do not sell your
real property until you find out all the facts and outcomes of the EIS report. I will keep you informed. Remember that the
value of real property increased 32% since August 2004. The EIS study including all the hearings from the public and agencies
should take quite some time. Wait and do not sell. Go to the water District meetings and find information pertaining to the
EIS study and other interest pertaining to the North Lake project. The water district amended their agreement with the City
of San Bernardino and will not purchase properties in the South Lake project area. Read above for this information.
Also, for those who desire to write EPA, the leading agency for NEPA, pertaining to the Environmental Injustice
may write to the following address.
United State Environmental Protection Agency
75 Hawthorne Street, SFD -3
San Francisco, Ca. 90410
1-800-424-8802
Remember, the Federal Government must fund the North Lake project and will not fund the project if the Environment
is low income and minority. Your letters and concerns are a plus to the NEPA and USEPA agencies for the citizens of the project
area.
The following information was determined on December 07, 2005 by the water district.
On December 07, 2005, Muni agreed to retain RBF consulting for an EIS study. The Federal Lead agency NEPA will
be the USEPA.
1. The federal lead NEPA agency will be the USEPA.
2. The EIS will require less detail for the alternatives than the preferred project.
3.The off sites borrows/disposal sites do not require separate field studies and are within the scope of the
original Program EIR analysis. (in terms of haul routes)
4.The program EIR's Project Description will substantially meet the needs for the EIS and will not have substantive
changes which would acquire revisions to EIR technical studies and analyses.
******************************
December 17, 2005
Dear Friends:
Happy Holiday and happiness for the New Year. The purpose of sending a Holiday Card to the folks in the North
and South Lake projects are two folds. One, is to wish you the best. Second, is to invite you to meditate and touch the deep
part of you questioning your relationship with all levels of Government. Is it morally correct to take real property from
you and give your hard work to others for profit?
The year of 2006 is a year of meditation, searching the depth of your mind and heart. An examined life is worth
living and finding the truth pertaining to your relationship with your Government is to find out the Truth about your Self.
This is the time to search deep and find the richest of the Mind that will liberate you from your own conditioning
and patterns inherited and conditioned by political, social, religious, and personal boundaries. My blessing for you is an
enrichment in Spirit and awakened your intelligence of compassion and love while Living. Meditation is your salvation that
will find your happiness and possibility to live freer in your mind.
A psychological conditioned mind is crowded and falls short from our evolution by the Cosmos. Meditation
is your salvation that will find you happiness and heal the dysfunction caused by psychological conditioning, numerous
boundaries, and patterns imposed by religous, social, and political organizations and authorities.
I will keep you updated of any up coming events.
Sincerely,
Deanna Adams
*****
News 12/01/2005 from USEPA. Conversations with Kim Hoang, Ph.D., research materials, and CD from USEPA.
"The ultimate violence is razing 437 affordable housing units for 72 upscale homes in order to pave the way
for the affluent. The justification for this violence is "limited options" and the bogus Bunker Hill argument; however, alternatives
for the reservoir and treatment of contaminated water in the EIR proved the arguments of the respondents flawed. What I find
most disturbing and violent is the invention of this project to raze an neighborhood and our fight to retain our affordable
homes and seek Justice".Deanna
"Surely, the invention of this project materialized deep in the Cave by those of primitive minds anchored moving
within the radius, narrow or wide, of its own center.From its center it dare not wander, and when it does, it is lost in fear.
The inventors of the North Lake Project carry on like machines with tiresome daily routine. How eagerly their mind accepts
a pattern of existence, and how tenaciously it clings to it! Like a driven nail, their mind is held together by idea, and
around the idea it lives and has its being. Their mind is never free, pliable, for it is always anchored".Deanna
****
This part of "Will Leviathian Prevail" is the author's rebuttal of the Respondents arguments in their reply
brief to the homeowners. The first challenge is the Argument of Contaminated Water. Once this argument is published other
arguments challenged by the author are to follow.
The Argument of Contamination.
References: Administrative Record pages 8034, 8036, 8037, 8038, 8039 and 1006.
References: Respondents brief: statement of facts pages 1, 2, 3, 4, 17,and conclusion page 27
Evidence: Department of Toxic Substance Control, Site cleanup mostly tetrachloroethylene (PCE) and trichloroethyl
(TCE). pages 1, 2, and 3.
Newmark Groundwater Contamination Superfund Project. U.S. EPA Completes Construction of Treatment Facilities
for Newmark Groundwater Contamination. pages 1, 2, 3, 4, 5, 6, and 7.
Letter to EPA from Senator Clinton, et. al
Press Release
Kim Hoang, Remedial Project Manager. U.S. EPA (S-7-4)75 Hawthorne Street, San Francisco, Ca. 94150 1-800-231-3075
The author is compelled to argue the matter pertaining to the Respondents argument
that the North Lake, a disguised Reservoir, is an Environmemtal Necessity. Upon reading, researching, and reading
between the lines the author found no evidence of their arguments regarding the above and targeting the project area as the
respondents described as "Environmental Necessity. The Respondents claimed the following: page 27 from their reply brief.
"Environmental injustice? Hardly! What was pursued what was conceived, what was reviewed, can be far better
described as enviornmental necessity. Better control of San Bernardino's underground water has become essential, and the interaction
of the Bunker Hill formation and the contaminant plumes dictated the placement of the reservoir(s)". page 27.
The respondents in their reply brief wrote "that the objections of the Petitioners have couched their objections
almost entirely on emotionally - based, but wholly supported, contentions of evil intent and a lack of thoroughness of review".
page 27.
Yes, the project is of evil content but not lack of thoroughness of review. The following is the response from
the author pertaining to the bogus argument of the contaminant plumes dictating the placement of the proposed North Lake Reservoir.
Author's Research
The Bunker Hill groundwater basin has been polluted by contaminants from military and industrial use with mostly
tetrachloroethylene (PCE) and trichloroethyl (TCE). About 8 square miles of groundwater are contaminated with PCE and TCE..
The Environmental Protection Agency (EPA) placed the Newmark site on the National Priority List to expand the required remedial
actions. PCE and TCE exposure has been linked to development of cancer, damage to the nervous and immune system as well as
birth defects. These organic solvents could have a detrimental impact to the health and safety of women of productive age
as well as children and seniors in particular.
Two contaminated sites known as plumes are currently located North of the proposed North Lake project. These
plumes are gradually migrating Southwards and slightly Eastward. These two areas of contamination are called the Newmark Operable
unit and Muscoy Operable unit. Both of these flank the Shandin Hills area. Efforts are underway to clean these contaminated
sites under the guidance of the United States Environmental Protection Agency (USEPA) in order to limit the projected southeast
migration of the Newmark Operable Unit. Clean up of the Newmark site began seven years ago and is estimated to go on for thirty
years. Water treatment plants and barrier wells are expected to remove 11,500 pounds of the above mentioned contaminants.
With EPA assistance Muni obtained the property for seven extraction well sites whose construction began in
1996 and ended 1998. This is when cleanup from contamination of underground water started. Currently these are in operation
and include the Waterman plant and 17th street/ Sierra for the clean up of the Newmark Plume or contamination site. In addition,
there exists a number of extraction wells (at least 5)
along 11th street, South of Baseline between E street and Waterman. The objective of these is to limit the
spread of the groundwater with PCE and TCE. In addition there are series of test wells South of this area also.
According to Ms. Kim Hoang, the remedial project manager( for region 9 )from the USEPA as of today, December
01, 2005 the five wells South of Baseline tested were found to be CLEAN and CLEAR of contamination, from PCE and TCE.
One can deduce from this negative well findings that the Southward migration of the Newmark Plume has been
halted. Muni claims it is an environmental necessity to have the lakes and streams to be placed in the North Lake area in
order obtain better control of San Bernardino’s underground water and the interaction of the Bunker Hill formation and
the contaminated plumes. So, than if that area is clean what is exactly that Muni wants to control over or perhaps this is
a pretext to abate the people and our neighborhood?
According to the USEPA, Ms. Kim Hoang, the contamination is quite deep in some areas of the Newmark Operation
Unit. Contamination has been found at depth of 400 to 500 feet. How is a Lake, or reservoir of 100 to 150 feet deep suppose
to control the issue of contamination, if it exist at all in our particular neighborhood since so many factors come in play
in this matter?
There are 10 extraction wells : 6 of them on the east side of the 215 fwy along 11th street between "E" Street
and Waterman Ave. The other 4 extraction wells are located West of the 215 freeway.
( more research under construction)
***********************
Cases to be heard by Judge Wade on 01/11/2006
Will Leviathan Prevail?
THE LAWSUIT
(The homeowners asked not to publish their reply brief because of sensitive information)
The Lawsuit published below is the Historical Issue of 1156 North F st, San Bdno, Ca. Petitioner: Deanna Helena
Petrovna Adams v.s. City of San Bernardino a California Municipality, San Bernardino V alley Municipal Water District, A Public
Entity, and Does 2 through 25 Respondents, San Bernardino Regional Water Resources Authority Real Parties in Interest. Attorney
for Petitioner:
Louis E. Goebel and Rober M. Miller. Law Offices of Louis E. Goebel 110 West A Street, Suite 600 San Diego,
California 92101 Telephone: 619-239-2611 Fax: 619-239-4269 Attorneys for Respondents: San Bernardino Valley Municipal Water
District:
The attorney's for the respondents:
Municipal Valley Water District: Bruce D.Varner , Stephan G. Saleson , Brendan W.Brandt. Varner, Saleson &
Brandt, a Limited Liability Partnership.
City of San Bernardino: James F. Penman Henry Empeno, James Nolan, Jennifer M. Guenther.
San Bernardino Regional Water Resources Authority: David F. Gondek , Aimee L.Grana.
Case No: SCVSS 126708 Department S-8 Hon. John P.Wade Date: January 11, 2006 Time: 8:30 a.m.
Petitioner's Reply Brief. TABLE OF CONTENTS TABLE OF CONTENTS............................................................................i
TABLE OF AUTHORITIES.......................................................................ii
Preamble.....................................................................................................1
OVERVIEW OF REPLY............................................................................1 1. RESPONDENTS' CLAIM THAT
PETITIONER'S CLAIM ARE NOT RIPE FOR REVIEW IS WITHOUT MERIT, BECAUSE THE GENERAL PLAN AMENDMENT PORTION OF THE PROCEEDINGS
WOULD NOT BE SUBJECT REVIEW....................................................................2
II. RESPONDENTS WELL KNEW THAT PETITIONER'S PROPERTY, THE STEPHENS & BOBBITT MORTUARY, WAS ON THE DOOR
STEP OF BEING LISTED ON THE CALIFORNIA HISTORIC
REGISTER....2
111. RESPONDENTS ATTEMPT TO DEFER THE SPECIFIC DETAILS OF MITIGATION AND HOLD THEM IN VAGUE LIMBO IS CONTRARY
TO RECENT CALIFORNIA LAW.............................................................3
1V. IT IS PATENT THAT IT IS NOT FEASIBLE TO RELOCATE THE STEPHENS & BOBBITT MORTUARY TO A DIFFERENT LOCATION..5
V. A "STATEMENT OF OVERRIDING CONSIDERATION" AS TO HISTORIC PRESERVATION WAS NOT GIVING BY THE LEAD AGENCY....................................................................................................6
VI. RESPONDENTS CITATIONS OF ANDERSON AND ENDANGERED HABITAT ARE MISLEADING..................................................................7
CONCLUSION...........................................................................................8 Table of Authorities:
Statutes: page California:
Cases: California: Anderson First Coalition v. City of Anderson (2005) 130 Cal. App.4th 1173.......7 Endangered
Habitats League, Inc. v. County of Orange (2005) 131. Cal.App, 4th 777........4,6.7. Federation of Hillside Canyon Associations
v. City of Los Angeles (2000) 83 Cal. App. 4th League for Protection of Oakland's Architectural and Historic Resources v.
City of Oakland (1997) 52 Cal. App.4th 896..............................................................3,7 No Oil Inc v.
City of Los Angeles (1994) 13 Cal. 3rd 68......................................4 Quail Botanical Gardens Foundation, Inc.
v. City of Encinitas (1994) 29 Cal. App.4th 1597...........................................................................................................3
Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351....4 Page 1 Petitioner's Reply Brief Petitioner
Deanna Helena Petrovna Adams respectfully submits the following Brief in reply to the Opposition filed by Respondents:
Preamble
As with Page (1) Introduction of the Joint Opposition of the City of San Bernardino (hereafter "City"); San
Bernardino Valley Municipal Water District (hereafter "Muni:); and the San Bernardino Regional Water Resources Authority (hereafter
"JPA"), Petitioner Deanna Adams acknowledges that the two cases here presented have very similar underlying facts and allegations
by Petitioner. Accordingly, for the convenience of the Court, this Deanna Adams Reply will focus only on those narrow issues
raised in this case which are not fully addressed in the other case with multiple Petitioners. The responses to the other
"issues" that were submitted in regard to the other case (SCVSS 126706) will be incorporated herein by reference. OVERVIEW
OF REPLY
1. Respondents claim that Petitioners claims are not ripe for review is without merit.
2. Respondent City well knew that Petitioner's property, the Stephens & Bobbitt Mortuary, was on the door
step of being listed on the California Historic Register on April 25,2005, the date of approval,(and was in fact less than
four month later).
3. Respondents attempt to defer the specific details of mitigation and hold them in vague limbo is contrary
to recent California law.
4. As to the Historic Preservation Issue, the Lead Agency did not give Respondent a "Statement of Overriding
Considerations." Page 2 RESPONDENTS CLAIM THAT PETITIONER CLAIMS ARE NOT RIPE FOR REVIEW IS WITHOUT MERIT, BECAUSE THE GENERAL
PLAN AMENDMENT PORTION OF THE PROCEEDINGS WOULD NOT BE SUBJECT TO REVIEW. Respondents seek to case the matter before this
Court as merely a "Program EIR". not even yet ripe for review. In reality, whatever its original intent, it has long ago passed
that stage. The 437 households have been invited to public meetings for open discussions, and a large relocation company has
been engaged and its employees have knocked on the 437 household doors and delivered fliers and information pamplets relating
to their removal. Very likely, parcels of real property within the "Super Block" have changed hands from private owners to
public owners. More importantly, the fact that the approval of the "project EIR" includes a General Plan Amendment means that
review as to what Amendment must occur now, or it will never occur.
II. RESPONDENTS WELL KNEW THAT PETITIONER'S PROPERTY, THE STEPHENS & BOBBITT MORTUARY, WAS ON THE DOOR
STEP OF BEING LISTED ON THE CALIFORNIA HISTORIC REGISTER. Respondents feign a total lack of knowledge that the Stephens &
Bobbitt Mortuary (now "Victory Chapel') has, as of August 5, 2005, been formally listed on the State of California Historic
Register. Please see page 4 of Joint Opposition. In addition, see also Exhibit 36, a letter from Janet Hansen confirming the
listing of the property on the Register, and Exhibits 6 and 19, identifying Ms. Hansen and describing her dealings with the
City. In fact, at least City, if not all Respondents knew well before April 25, 2005 (the date of Council approval of the
project EIR and General Plan Amendment), that the Adams historic property was qualified to be on the California Historic Register,
was applying for same, and City had been formally invited to comment, if it wished. (Exhibit No. 19) City elected to take
no position.
Although Respondents are in denial of the listing of the Stephens & Bobbitt Mortuary, they do acknowledge
that the destruction of the structures would be a significant environmental impact. However, they assert that they have two
alternatives for mitigation, either of which they contend would take the impact below a significant level, either physical
movement of the structures or documentation. As they correctly note, Petitioner believes the approach of describing two alternatives
but not subscribing to one of them renders the "project EIR" defective as to this impact.
III. RESPONDENTS ATTEMPT TO DEFER THE SPECIFIC DETAILS OF MITIGATION AND HOLD THEM IN VAGUE LIMBO IS CONTRARY
TO RECENT CALIFORNIA LAW.
Respondents apparently have concluded that they may defer the details of mitigation leave the fate of the Stephens
& Bobbitt Mortuary swinging in limbo, and shoe to demolish the edifice, if physical relocation is not feasible:* California
Courts do not agree!In the case of League for Protection of Oakland's Architectural and Historic Resources v . City of Oakland
(1997) 52 Cal. App.4th 896,909, the Court of Appeal declared:
..... .....Documentation of the historical features of the building and exhibition of a plague do not reasonably
begin to alleviate the impacts of its destruction. A large historical struture, once demolished, normally cannot be adequately
replaced by reports and commemorative markers. Nor, we think, are the effects of the demolition reduced to a level of insignificance
by a proposed new building with unspecified design elements which may incorporate features of the original architecture into
an entirely different shopping center. This is so particularly where, as here, the plan for the substitute building remain
tentative and vague. We conclude that the stated mitigation measures do not reduce the effects of the demolition to less than
a level of significance. (Quail Bontanical Garden Foundation, Inc. v. City of Encinitas, supra, 29 Cal. App.4th at pp.1606-1607,emphasis
added.)
1. Exhibit 6 shows that the highest levels of City Hall received and discussed this letter.
2. Guess which choice would be less expense and burden to Respondents.
In view of the whole record and the City's repeated recognition of the historical significance of the building,
substantial evidence supports a fair argument that significant impact may occur. An EIR is required to identify and examine
the full range of feasible mitigation measures and alternatives to demolition. (See Rio Vista Farm Bureau Center v. County
of Solano (1992) 5 Cal. App.4th 351,376 (7Cal.Rpt.2nde 307).Accordingly, the City failed to proceed in the manner required
by law by certifying the mitigated negative declaration. (Quail Bontanical Gardens Foundation,Inc. v. City of Encinitas, supra,29,Cal.App.4th
at p. 1607, emphasis added.)
The Fourth District Court of Appeal, only a few months ago, in Endangered Habitats League,Inc. v. County of
Orange (2005) 131 Cal. App. 4th 777 explained the manner in which the courts should review deferred mitigation standards and
recalled the pronouncemednt of the landmark California Supreme Court case of No Oil, Inv. v. City of Los Angeles (1994) 13
Cal.3rd 68,88 as follows:
The standard used in the EIR ....impermissibly lenient.....The proper standard, set out above, is considerably
broader...The use of an erroneous legal standard is a failure to proceed in the manner required by law that requires reversal.
(Citing No. Oil. supra) (Id.,at 793, emphasis added.)
So it is also on the Historic Preservation issue here that "the standard used in the EIR is impermissibly lenient"
and the result is "a failure to proceed in the manner that required by law that requires reversal." (ibid.)
In Federation of Hillside Canyon Association v. City of Los Angeles (2005) 83 Cal. App. 4th.1252, the City
of Los Angeles adopted a "general plan frameword" which anticpated future growth in the city. The general plan frameword contemplated
monitoring growth in order to "consider regulating' developmentif the infrastructure remains inadequate." (Id.at p. 1255.)
The City did not, however, require that mitigation measures be implemented as a condition of development. (Id. at pp. 1255-1256.)
After first pointing out that the purpose of requiring that mitigation measures be binding is "ensure that feasible mitigation
measures will actually be implemented as a condition of development, and not merely adopted and the neglected or disregarded.""(id.
at p.1261, italics omitted, emphasis added), the court concluded that the City failed to make a "binding commitment to implement
the mitigation measures or, more appropriately, that they are incorporated into the project or required as a condition of
project approval in a manner that will ensure their implementation." (Id at p.1262,emphasis added.)
At page 6 of their Opposition, Respondents disingenously assert that the "project EIR" requires that relocation
of the Chapel take placed if feasible" (Emphasis theirs.) Predictably, Petitioner harbors the suspicion that although one
might think the impact could be effectively mitigation be relocation of the structures, Respondents do not seriously intend
to do that, but are merely using that as a means to get to the next step, at which point they will photograph and bulldoze
the Mortuary, a much cheaper proposition.They should be required to commit to their plans in a manner that will ensure their
implementation as the Court at that time. Perhaps this is what they mean when they refer to Guidelines, 15168 (c) (1) at page
6, lines 19-22.
To put it another way, why not tell Petitioner Deanna Adams now whether relocation of the structures is "feasible?"
The obvious point is to dodge the ultimate result that if the project is implemented as it is now vaguely described, the significant
impact of the loss of the historic structure cannot be mitigated to a level of insignificance. After all, this is not a newly
birthed project. This project or a similar one has hung heay over the occupants of the Super Block for more than five years.
See Joint Opposition, pages 2 and 3.
IV. IT IS PATENT THAT IT IS NOT FEASIBLE TO RELOCATE THE STEPHENS & BOBBITT MORTUARY TO A DIFFERENT LOCATION.
Beyond speculation (and perhaps wishful thinking) Respondents have not shown any basis for success at an endeavor
such as moving the Stephens & Bobbitt Mortuary. On the present wording of the proposed mitigation language, there is considerable
"wiggle room", causing concern that Respondents could make a weak effort to move this complex edifice using a variety of different
building materials and then throw up their hands and bring on the bulldozers.
Recent California cases, including a 2005 case from the Fourt District Court of Appeal, Endangered Habitats
League, Inc. v. County of Orange, supra, 131 Cal.App.4th 777 make it clear that more specifically is required.
V. A "STATEMENT OF OVERRIDING CONSIDERATION" AS TO HISTORIC PRESERVATION WAS NOT GIVEN BY THE LEAD AGENCY.
On the issue of Historic Preservation, Respondents cannot hide behind a "Statement of Overriding Conditions"
because such a statement was not given by the lead agency. See Petitioner's Evidence, Exhibit 35, which plainly shows historic
absent on the final "Statement of Overriding Considerations" list. Thus, Petitioner Deanna Adams "historic" issue must be
considered on it own merit- and its own merit is, as to Respondents, not good.
Aside from having tentative and vague proposed mitigation measures, Respondents have failed to proceed in the
manner required by law in certifying the EIR because the rules of CEQA and the Appellate Court decisions require the lead
agency to identify and examine the full range of feasible mitigation measures and alternatives to demolition. For example,
in this 82 acre project, Respondents have made no visible efforts to examine mitigation measures that do not involve demolition,
such as slightly redesigning the general project, so as to exclude the property from the reservoir (As Respondents have previously
done with property owned by the City itself.) *
In particular, the Adams property is located near the extreme norteast of the Super Block and its north boundary
is contiguous to the Base Line commerical property, which is not in the lake and is scheduled to remain as commerical use.
See Exhibits 32 and 33. Please see also the discussion of a smaller lake, recommended by Councilwoman Longville and others,
as described in Petitioners' Opening Brief in case number 126706, pages 11 and 12, and a similar discussion in Petitioners
Reply Brief in case number 126706, at page ___.
Again see also League for Protection of Oakland's Architectural and Historic
Resources v. City of Oakland, supra,52 Cal. App.4th 896,909 (EIR is required to identify and examine the full
range of feasible mitigation measures and alternativ es to demolition." To fail to do so require reversal. (emphasis added.)
VI. RESPONDENTS CITATIONS OF ANDERSON AND ENDANGERED HABITAT ARE MISLEADING.
In their Opposition to the other Petition, at page 18, Respondents offer pithy quotations from two 2005 cases,
Anderson First Coalition v. City of Anderson (2005) 130 Cal. App.4th 1173, and Endangered Habitats League, Inc. vs. County
of Orange, supra, 131 Cal. 4th 777, all to support the argument that the Court should give deference to a City's own interpretation
of its own General Plan and finding that the proposed project is consistent therewith, and can only determine inconsistency
if no reasonable person could have reached a determination of consistency on the evidence. In both cases, however, the true
outcome of the case was that Mandate relief was granted.
In fine, approval of this project was flawed. Since the project and the
specific plan amendment are both inconsistent with the general plan, and theEIR is inadequate, the petitions
for a writ of mandate should have been granted. (Endangered Habitats League, Inc. v.s. County of Orange, supra (31 Cal. App.4th
777,796.)
Respondents go on to claim that AR 8188-94 and AR 8197-8200 show 38 items of analysis to assure compliance.
Petitioner submits that a review of this documentation demonstrates that on the issue of historical significance as to the
Stephens & Bobbitt Mortuary, the actual analysis patently falls far short, and in the absence of proper analysis, Mandate
relief is warranted. (Anderson First Coalition v. City of Anderson, supra, 130 Cal. App.4th 1173, 1189 (Interstate 5 improvements
too speculative), Endangered Habitats League, Inc. v. County of Orange, supra, 131 Cal.App.4th 777, 796 (Project and specific
plan amendment both inconsistent with general plan, EIR inadequate but approved, writ denied in trial court, reversed by Court
of Appeal.)
CONCLUSION:
Petitioners claims are certainly ripe, specifically because of the approval of the general plan amendment.
The City knew all along that Petitioner's property was eligible for listed (and now it is in fact listed) California Historic
Register as of the date of approval, and the lead agency did not give Respondent a "Statement Of Overriding Considerations."
A Writ of Mandate should issue to nullify the general plan amendment and decertify the EIR, since, by Respondents
own admission it fails to require mitigation of significant impacts which could be lessened or mitigated upon consideration
of less drastic alternative projects.
Dated: November 14,2005
Respectfully submitted,
LAW OFFICES OF LOUIS E. GOEBEL
*******************
Michigan Legislature Approves Nation’s First State Constitutional Amendment To Curb Eminent Domain Abuse
Amendment to Go Before Voters Next Year
WEB RELEASE:
December 14, 2005
Arlington, VA—Last night, the Michigan legislature became the first state legislature to pass a proposed
constitutional amendment in response to the U.S. Supreme Court decision in Kelo v. City of New London and the widespread abuse
of eminent domain throughout the state. The Michigan House and Senate approved resolution SJR-E, which will place a constitutional
amendment on the ballot to provide greater protections to home and small business owners from eminent domain abuse. The amendment
is expected to be voted on by Michigan citizens in November 2006. The resolution passed the House by a vote of 106-0 and the
Senate by 31-6.
The amendment prohibits "the taking of private property for transfer to a private entity for the purpose of
economic development or enhancement of tax revenues." Moreover, the amendment changes so-called "blight" law within the state.
While the amendment does allow for the taking of blighted parcels of property, the burden would now be on the government to
demonstrate that a particular piece of property is blighted by clear and convincing evidence. In contrast, under current Michigan
law, it is unclear whether whole areas rather than individual pieces of property can be declared blighted, but it is clear
the burden is on the property owners to show that the takings are illegitimate.
"This is a solid constitutional amendment," said Scott Bullock, a senior attorney at the Institute for Justice.
"Michigan has a bad track record of eminent domain abuse and this proposed amendment goes a long way toward stopping these
practices. Putting the burden of proof on the government to show that a specific piece of property is blighted is a significant
and welcome change. The Michigan legislature should now follow up on this amendment by passing legislation to further reform
its blight laws to make sure they are not used as a backdoor way to get property for private development."
"By wholeheartedly endorsing the use of eminent domain for private commercial development, the infamous Poletown
case from Detroit started the country on the path that led to the Supreme Court’s dreadful decision in Kelo," said Dana
Berliner, another senior attorney at the Institute. "It is especially appropriate for Michigan to renounce that shameful legacy
and assure Michiganders that their homes and businesses will not be taken for private development."
"We are confident that the citizens of Michigan will overwhelmingly approve this amendment," said Steven Anderson,
Coordinator of the Castle Coalition, the Institute’s grassroots advocacy project. "Developers and some powerful local
officials may be in favor of eminent domain abuse, but the average voter is totally opposed to it. Michigan citizens can lead
the way by ensuring that home and small business owners are safe from an unholy alliance between politicians and big business."
In the wake of the Kelo decision, Alabama and Texas passed initial reforms of their eminent domain laws, curbing
the ability of municipalities to take homes and businesses for private profit, and nearly 40 state legislatures are considering
eminent domain reforms. The U.S. House of Representatives overwhelmingly passed a bill that would strip federal funding from
municipalities that engage in eminent domain abuse, and the U.S. Senate is expected to take up the issue in the new year.