. BRIGGS LAW CORPORATION 1434.07] Cory J. Briggs (State Bar no. 176284) Mekaela M. Gladden (State Bar no. 253673) 99 East Street, Suite 111 Upland, CA 91786 Telephone: 909-94941 15 Attorneys for Plaintiff San Diego Navy Broadway Complex Coalition SUPERIOR COURT OF THE STATE OF CALIF ORNLA COUNTY OF SAN DIVISION- SAN DIEGO NAVY BROADWAY COMPLEX ASE 37-2009-00096726-6U-MC-CTL COALITION, Plaintiff, COMPLAINT FOR DECLARATORY AND . . EQUITABLE RELIEF UNDER THE vs. CALIFORNIA COASTAL ACT OF 1976 - AND OTHER LAWS SAN DIEGO UNIFIED PORT DISTRICT and DOES 1 through 1,000, 3 Defendants; I Plaintiff SAN DIEGO NAVY BROADWAY COMPLEX COALITION alleges as follows in this Complaint for Declaratory and Equitable Relief under the California Coastal Act of 1976 and Other Laws: Parties 1. Plaintiff SAN DIEGO NAVY BROADWAY COMPLEX COALITION is a non-pro?t, public-bene?t organization formed and operating under the laws of the State of California. Plaintiffs members reside in or near the City of San Diego, California, and have an interest in protecting the region?s air quality, minimizing and ameliorating traf?c, ensuring informed and responsible growth, and promoting other environment-related quality-of-life issues, including those issues involving San Diego Bay and its waterfront. pun-l 2. Defendant" SAN DIEGO UNIFIED PORT DISTRICT is a governmental agency subject to the California Coastal Act of 1976 (?Coastal Act?) and, as a port, is subject to Public Resources Code Section 30700 et seq. 3. The true names and capacities of the Defendants identi?ed as DOES 1 through 1,000 are unknown to Plaintiff, who will seek the Court?s permission to amend this pleading in order to allege the true names and capacities as soon as they are ascertained. Plaintiff is informed and believes and on that basis alleges that each of the ?ctitiously named Defendants 1 through 1,000 has jurisdiction by law over one or more aspects of the proposed project that is the subject of this proceeding, claims an ownership interest in the proposed project, or has some other cognizable interest in the proposed project. A Background Information 4. Defendant PORT adopted that certain Port Master Plan in 1980 and amended it on multiple occasions prior to June 20, 2007. A true and correct copy of the'Port Master Plan as amended through June 20, 2007 (?Pert Master Plan?), is attached to this pleading as Exhibit 5. Figure 1 1 of the Port Master Plan, labeled ?Precise Plan,? depicts an oval park/plaza at the intersection of Harbor Drive and the Broadway Pier and depicts a promenade extending down more than half of the Broadway Pier. 6 On or about June 12, 2007, Defendant Board of Port Commissioners approved that certain Resolution 2007-126 authorizing the issuance of a coastal development permit for the project known as the Cruise Ship Terminal at the Broadway Pier in the City of San Diego, together with infrastructure improvements (?Project?). A true and correct copy of Resolution 2007-126 is attached to this pleading as Exhibit I 7. Resolution 2007-126 states that Defendant ?Board [of Port Commissioners] has concluded that said Project conforms to the District Master Plan,? that the project ?is consistent with the use and development concept for the Centre City Embarcadero area and as provided in said District Master Plan,? and that the Board of Port Commissions had found that the Project ?is consistent with and conforms to the District Master Plan.? ?District Master Plan? refers to the Port Master Plan. COMPLAINT FOR DECLARATORY AND EQUITABLE RELIEF UNDER THE CALIFORNIA COASTAL ACT OF. 1976 AND OTHER LAWS Page 2 8. On or about June 20, 2007, Defendant PORT issued that certain Coastal Development Permit no. (?Permit?) to the Engineering Department of Defendant PORT for the Project. A true and correct copy of the Permit is attached to this pleading as Exhibit 9. The Permit states, underthe section titled ?Standard Provisions,? that ?Permittee shall adhere strictly to the current plans for the project as approved by the District? and that ?Permittee shall commence developmentl within two (2) years following the date of the permit issuancel by the District.? 10. On or about June 2009, Defendant Board of Port Commissioners approved that certain Resolution 2009-116 adopting Plans and Speci?cations for the Project (?Plans/ Speci?cations?) and authorizing the execution of District Contract no. 200827. A true and correct copy of the minutes from the Board?s meeting on June 9, 2009, is attached to this pleading as Exhibit i 11. The Plans/Speci?cations were-not adopted by Defendant PORT until June 9, 2009. 12. The Plans/ Speci?cations did not exist on June 20, 2007. 13. The lLans/ Speci?cations were not disclosed to the public or to any member of Defendant Board of Port Commissioners on or before June 20, 2007. Jurisdiction and Exhaustion of Administrative Remedies 14. Plaintiff seeks review by and relief from this Court under the Coastal Act, including but not liinited to Public Resources Code Sections 30803-30812, among other provisions of law. 15. Plaintiff was not required to exhaust its administrative remedies in this proceeding because Plaintiff is not challenging any formal administrative decision. Instead, Plaintiff is challenging the lack of compliance of the PlanS/ Speci?cations (and the construction-related activities being taken thereunder) with the Permit, the Port Master Plan, and ultimately the Coastal Act. 16. Before initiating this proceeding, Plaintiff caused a cease-and-desist letter to be served on Defendant PORT. A true and correct copy of the letter is attached to this pleading as Exhibit 17. Defendant PORT did not formally respond to Plaintiff?s cease?and-desist letter. 18. On August 21, 2009, Plaintiff was informed for the ?rst time that Defendant PORT caused a notice to proceed to be issued pursuant to District Contract no. 2008-27 and for the ?rst time observed construction?related activities taking place at the Broadway Pier. COMPLAINT FOR DECLARATORY AND EQUITABLE RELIEF UNDER THE CALIFORNIA COASTAL ACT OF 1976 AND OTHER LAWS Page 3 p-n accomman 19. Currently there is a good-faith dispute between Plaintiff and Defendants. Plaintiff contends that the Plans/ Speci?cations (and the construction-related activities being taken thereunder) do not comply with the Permit, the PortMaster Plan, and the Coastal Act. Defendants disagree. A judicial declaration is required in order to resolve the parties? dispute. Construction in Violation of Port kw; and Coastal Development Permit (Against All Defendants) 21.. Paragraphs 1 through 20 are fully incorporated'into this paragraph. 22. Public Resources Code Section 30600(a) provides that ?any person, as defined in [Public Resources Code] Section 21066, wishing to perform or undertake any development in the coastal zone, other thana facility subject to Section 25500, shall obtain a coastal development permit. Defendant PORT is a ?person? within the meaning of Public Resources Code Section 21066. The Project is nOt a facility subject to Public Resources Code Section 25500. The Project is located within.the?coastal zone,? as that term is used in the Coastal Act. 26. the Coastal Act. Defendants could not lawfully undertake any construction activities in furtherance of The Permit was issued pursuant to Defendant permit-issuing authority under the Project without the Permit. 28. The Permit does not authorize any development activity that is inconsistent with the Port Master Plan or the Coastal Act. 27. The Plans/ Speci?cations require the construction Of a cruise ship terminal and other improvements of such a size and in such a location that construction of the oval park/plaza and the promenade as depicted in the Port Master Plan would be physically impossible. 28. Construction of the cruise ship terminal and other improvements as required "by the -- Plans/ Speci?cations is a violation of the Permit and the Port Master Plan and therefore a violation of the Coastal Act. COUNT 2: a Construction in Violation of Coastal Development Permit (Against All Defendants) 29. Paragraphs 1 thrOugh 28 are fully incorporated into this paragraph. COMPLAINT FOR DECLARATORY AND EQUITABLE RELIEF UNDER THE CALIFORNIA COASTAL ACT OF 1976 AND OTHER LAws Page 4 w30. Defendants did not commence development of the Project Within two years of the Permit?s issuance. 3 1 . On or about August 12, 2009, Plaintiff submitted a request to Defendant PORT pursuant to? the California Public Records Act. In general terms, Plaintiff requested any and all amendments, modi?cations, and extensions of the Permit. A true and correct copy of Plaintiffs request is attached to this pleading as Exhibit 32. On or about August 18, 2009, Defendant PORT responded to Plaintiff 5 request and stated that it did not have any of the requested public records. A true and correct copy of the response is attached to this pleading as Exhibit I I 33. Beginning construction of the cruise ship-terminal and other improvements more than two years after the Permit?s issuance is a violation of the Permit, either because the Permit has expired or because the construction does not comply with the terms and conditions of the Permit, and is therefore a violation Of the Coastal Act. Prayer 1 FOR ALL THESE REASONS, Plaintiff respectfully prays for the following relief against Defendants (and any and all other parties who may oppose Plaintiff in this proceeding): A. 011 Count 1: I l. A judgment determining or declaring that Defendants failed to fully comply with the Permit and with the Port Master Plan and the Coastal Act as they relate to the Project when the Plans/Speci?cations were adopted and (ii) that the Plans/Speci?cations and the construction-related activities being taken thereunder violate the Permit, the Port Master Plan, and the Coastal Act; 2. Injunctive relief prohibiting Defendants (and any and all persons acting atthe request of, in concert with, or for the bene?t of one or more of them) from undertaking any construction-related activities pursuant to the Plans/Speci?cations unless and until the Plans/ Speci?cations and any and all construction-related activities being undertaken pursuant thereto comply with the Permit, the Port Master Plan, and the Coastal Act; 3. Civil monetary penalties in the maximum amount permitted by law; and COMPLAINT FOR DECLARATORY AND EQUITABLE RELIEF UNDER THE CALIFORNIA COASTAL ACT OF 1976 AND OTHER LAWS Page 5 \oocxlemuu?Jsm?mr-a MN r?di?I h?ih?l r?Ir?ai?h r?I?r?I I?d 4. Any and all other relief that may be authorized by the Coastal Act but is not explicitly or speci?cally requested elsewhere in this Prayer. B. . 0n Count2: 1. I A judgment determining or declaring that Defendants failed to fully comply with the Permit and (ii) that the construction-related activities being taken in connection with the Project violate the Permit; 2. Injunctive relief prohibiting Defendants (and any and all persons acting at the request of, in concert with, or for the bene?t of one or more of them) from undertaking any construction-related activities in connection with the Project except under a current, valid coastal development permit; 3. Civil monetary penalties in the maximum amount permitted by law; and 4. Any and all other relief that may be authorized by the Coastal Act but is not explicitly or speci?cally requested elsewhere in this Prayer. C. All legal fees and other expenses incurred in connection with this proceeding, including but not limited to reasonable attorney fees as authorized by the Code of Civil Procedure and the Government Code; and" D. Any and all ?mher relief that this Court may deem appropriate. Date: August 21, 2009. Respectfully submitted, BRIGGS LAW CORPORATION ,3 q? a: CO J. Briggs Attorneys for Plaintiff San Diego Navy Broadway Complex Coalition COMPLAINT FOR DECLARATORY AND EQUITABLE RELIEF UNDER THE CALIFORNIA COASTAL ACT OF 1976 AND OTHER LAWS Page 6