JOHN P. GIVEN, SBN 269787 LAW OFFICE OF JOHN P. GIVEN 2461 Santa Monica. Boulevard, #438 Santa Monica, CA 90404 T: (310) 471-8485 E: john@johngivenlaw-com Attorney for Petitioners Brentwood Residents Coalition, Sunset Coalition, and Wendy-Sue Rosen ONF OF COPY 10s Angcles Superior Court MAY 02 2018 Sherri R. Caner. txecuuve Wear/clerk By Shaunya Bowen, Danny SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES BRENTWOOD RESIDENTS COALITION, SUNSET COALITION, and WENDY-SUE ROSEN, Petitioners, v. CITY OF LOS ANGELES, and LOS ANGELES BOARD OF BUILDING AND SAFETY COMMISSIONERS, Respondent. TBC THE BORING COMPANY, LOS AN GELES METROPOLITAN TRANSPORTATION AUTHORITY, CITY OF CULVER CITY, and DOES 1-10, Real Parties in Interest. CASENO.: BS I 23523 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF (California Environmental Quality Act (CEQA), Pub. Res- Code 21000 5715qu Los Angeles City Charter 564.) INTRODUCTION 1 2 1. This petition by BRENTWOOD RESIDENTS COALITION, SUNSET 3 COALITION, and WENDY-SUE ROSEN (collectively, “Petitioners”) challenges the March 4 27, 2018 determination of the CITY OF LOS ANGELES (“City”) by and through the City’s 5 BOARD OF BUILDING AND SAFETY COMMISSIONERS (“Building and Safety 6 Commission”) (collectively, “Respondents”) that a proposed 2.7-mile transportation tunnel 7 project proposed by TBC – THE BORING COMPANY (“TBC”) is exempt from environmental 8 review under the California Environmental Quality Act (“CEQA”) as a class 32 in-fill 9 development project under California Code of Regulations, title 14 (hereinafter “CEQA 10 11 Guidelines”), section 15332. 2. Petitioners seek a writ of mandamus to set aside Respondents’ improper CEQA 12 determination and any and all related project entitlements granted on the basis of the 13 determination, as well as a declaration that the City violated its land use approval process by 14 allowing the Building and Safety Commission to take these actions without first providing the 15 Los Angeles City Planning Commission an opportunity to hear and determine project 16 recommendations for City leaders and departments consistent with its City Charter mandate. 17 Pursuant to Los Angeles City Charter section 564 the Planning Commission’s hearing and 18 determination is required for projects that require both quasi-judicial and legislative actions. 19 TBC’s proposed transportation tunnel is such a project. 20 3. Respondents’ actions violate CEQA’s express prohibition against piecemealing of 21 project approvals by improperly defining the scope of the project as merely a “proof of 22 concept” tunnel. Under CEQA Guidelines section 15378, “Project” means the whole of an 23 action, which has a potential for resulting in either a direct physical change in the environment 24 or a reasonably foreseeable indirect physical change in the environment . . .” By considering the 25 “proof of concept” tunnel as a one-off test project separate and apart from its reasonably 26 foreseeable indirect physical changes, Respondents have improperly evaded performing 27 adequate and thorough environmental review of a major transportation infrastructure project. 28 4. Overwhelming evidence shows Respondents’ approval of the “proof of concept” PETITION FOR WRIT OF MANDATE 2 1 tunnel project has the “potential for resulting in . . . a reasonably foreseeable indirect physical 2 change in the environment” beyond the direct physical change in the environment 3 acknowledged by project documents. Evidence includes Real Party TBC’s admissions with 4 respect to the project, including its representative’s statements at a public hearing in Culver 5 City in January 2018 that “[t]he purpose of The Boring Company is to . . . augment public 6 transit through the construction of a tunnel network to enable Loop. So what is Loop? Loop is a 7 high-speed, underground public transportation system . . .” TBC provided one example of a 8 possible tunnel network alignment at that hearing. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. The premise of Respondents’ CEQA determination belies the true reality of the PETITION FOR WRIT OF MANDATE 3 1 project scope. TBC’s “Loop” project is intended to be an expansive tunnel network beneath 2 public rights of way (and possibly private properties) throughout the greater Los Angeles area, 3 not a limited, one-off “proof of concept” test tunnel. 4 6. The class 32 categorical exemption for in-fill development is not applicable to the 5 project because it is not an in-fill project, and because the specific requirements for class 32 6 categorical exemptions found in CEQA Guidelines 15332 and subdivisions (a) through (e) of 7 that regulation are not, and cannot be, met. On its face, the filed Notice of Exemption for the 8 project acknowledges that the proposed development does not occur entirely within Los 9 Angeles city limits, a fact that is entirely sufficient without more to defeat application of the 10 11 class 32 categorical exemption. 7. Any categorical exemption would be improper for the project because categorical 12 exemptions “are inapplicable when the cumulative impact of successive projects of the same 13 type in the same place, over time is significant.” It is reasonably foreseeable that the “proof of 14 concept” tunnel may eventually be connected to a larger tunnel network. TBC presented just 15 such a reasonably foreseeable plan to Real Party City of Culver City in January 2018. 16 Connections between the “proof of concept” tunnel and other later tunnel segments for TBC’s 17 network, or other future subterranean tunnel projects that may use the same or similar 18 alignment, constitute successive projects of the same type in the same place, that over time may 19 be found to have significant cumulative impacts. Real Party Metro’s Sepulveda Transit 20 Corridor Project, funded by a Los Angeles County voter-approved ballot measure (Measure M) 21 is such a project. (See https://www.metro.net/projects/sepulvedacorridor/.) Metro also has 22 jurisdiction to review the design, construction, and implementation of public mass transit 23 systems in Los Angeles County pursuant to California Public Utilities Code section 130252 24 subdivision (a). 25 8. For these and other reasons as further alleged below, Respondents’ determination 26 that Real Party in Interest TBC’s proposed transportation tunnel project is exempt from CEQA 27 as a class 32 in-fill development project constitutes an egregious error of law and abuse of 28 discretion. The CEQA determination and any and all project approvals must be set aside. PETITION FOR WRIT OF MANDATE 4 JURISDICTION AND VENUE 1 2 9. This Court has jurisdiction under Code of Civil Procedure section 1094.5. 3 10. This Court also has jurisdiction under Code of Civil Procedure section 1085, and 4 5 Public Resources Code sections 21168 and 21168.5. 11. Venue is proper in this Court under Code of Civil Procedure sections 393 and 6 394(a), because Respondent City of Los Angeles is located and subject to service in Los 7 Angeles County, the project site is located in Los Angeles County, and all of the acts or 8 omissions alleged herein occurred in Los Angeles County. 9 12. Petitioners have complied with Public Resources Code section 21167.7 by filing a 10 copy of this petition with the California Attorney General. A copy of the notice is attached as 11 Exhibit A. 12 13. Petitioners have complied with Public Resources Code section 21167.5 by 13 providing the City of Los Angeles with notice of its intention to commence the action. A copy 14 of the notice is attached as Exhibit B. 15 14. Petitioners have complied with Public Resources Code section 21167.6 by 16 requesting that the City of Los Angeles prepare the administrative record. A copy of the request 17 is attached as Exhibit C. 18 19 20 15. Petitioners have performed all conditions precedent to filing this action and have exhausted all available administrative remedies to the extent required by law. 16. Petitioners have no plain, speedy, or adequate remedy in the course of ordinary 21 law unless this Court grants the requested writ of mandate and declaratory relief. In the 22 absence of such remedies, Respondents’ improper approval of the categorical exemption from 23 CEQA and any and all entitlements or other approvals granted on the basis of the exemption 24 would permit a development project to proceed in violation of state law. PARTIES 25 26 17. Petitioner BRENTWOOD RESIDENTS COALITION is an unincorporated 27 association and grass roots, non-profit advocacy group whose purposes are to preserve and 28 enhance the environment and quality of life in Brentwood, to protect the integrity of residential PETITION FOR WRIT OF MANDATE 5 1 neighborhoods, to assist with planning, to uphold zoning and municipal codes, to encourage 2 traffic safety, and to educate the public on issues that affect quality of life and the environment. 3 Brentwood Residents Coalition has a substantial interest in ensuring that City of Los Angeles 4 land use decisions are made in compliance with the City Charter and municipal code, as well as 5 with state laws applicable to land use approvals such as CEQA. 6 18. Petitioner SUNSET COALITION is an unincorporated association that includes 7 numerous individuals and community organizations from Pacific Palisades to Brentwood 8 concerned by traffic, safety, and environmental impacts of large-scale development on and near 9 Sunset Boulevard between the I-405 freeway and the Pacific Ocean. Sunset Coalition has a 10 substantial interest in ensuring that City of Los Angeles land use decisions are made in 11 compliance with the City Charter and municipal code, as well as with state laws applicable to 12 land use approvals such as CEQA. 13 19. Petitioner WENDY-SUE ROSEN is a resident of the Brentwood neighborhood of 14 Los Angeles. Rosen currently serves as President of Petitioner Brentwood Residents Coalition 15 and as co-chair of Petitioner Sunset Coalition. Petitioner Rosen participated actively in the I- 16 405 Sepulveda Pass Widening Project Community Advisory Committee and now participates in 17 the Sepulveda Traffic Committee. As part of her personal involvement in local transportation 18 issues she monitors Sepulveda transit corridor-related planning and other activities. Petitioner 19 Rosen has a substantial interest in ensuring that City of Los Angeles land use decisions are 20 made in compliance with the City Charter and municipal code, as well as with state laws 21 applicable to land use approvals such as CEQA. 22 20. Respondent CITY OF LOS ANGELES is a California charter city located in the 23 County of Los Angeles, California. The City, acting through its elected governing body the City 24 Council and other City agencies and employees, is responsible for the decisions at issue herein. 25 21. Respondent LOS ANGELES BOARD OF BUILDING AND SAFETY 26 COMMISSIONERS is a Los Angeles City Charter authorized commission charged with certain 27 oversight of the Los Angeles Department of Building and Safety. Among its duties, the Board 28 hears and makes initial determinations on haul routes for import and export of earth to and from PETITION FOR WRIT OF MANDATE 6 1 grading project sites within the City. On information and belief, neither the Board nor its related 2 agency the Los Angeles Department of Building and Safety have jurisdiction over the City’s 3 public rights of way, which fall under the jurisdiction of the Board of Public Works and its 4 related agency the Bureau of Engineering. 5 22. Petitioners are informed and believe, and based thereon allege, that Real Party in 6 Interest TBC – THE BORING COMPANY (“TBC”) is a Delaware corporation operating in 7 California, and is the sole applicant for and recipient of all approvals granted by the City 8 relevant to this action. 9 23. Real Party in Interest LOS ANGELES METROPOLITAN TRANSPORTATION 10 AUTHORITY (“Metro”) is the regional transportation authority with jurisdiction over the 11 planning, design, construction, and implementation of public mass transit systems in Los 12 Angeles County. Among other transit alternatives Metro operates four light rail lines and two 13 subways, and is currently building, planning, or studying the feasibility of new and expanded 14 mass transit alternatives throughout Los Angeles and Los Angeles County, including the 15 Sepulveda Transit Corridor Project, which will identify and evaluate a range of high-capacity 16 rail transit alternatives between the San Fernando Valley and Los Angeles International Airport. 17 24. Real Party in Interest CITY OF CULVER CITY is a California charter city located 18 in the County of Los Angeles, California. The City of Culver City, acting through its elected 19 governing body the City Council and other Culver City agencies and employees, has general 20 oversight and control over the surface and subterranean portions of the Sepulveda Boulevard 21 public right of way within its jurisdictional boundaries. 22 23 25. and capacities are presently unknown to Petitioners. BACKGROUND 24 25 26 Real Parties in Interest Does 1 to 10 are given fictitious names because their names City Leaders Take Note of Elon Musk’s Subterranean Tunnel Network Idea. 26. In November 2017, Councilmembers Paul Koretz and Mike Bonin separately 27 submitted motions to the Los Angeles City Council’s Transportation Committee regarding 28 Tesla CEO Elon Musk’s vision to create an alternative transportation system beneath the PETITION FOR WRIT OF MANDATE 7 1 greater Los Angeles area. Councilmember Bonin’s motion expressed interest in learning more 2 about Mr. Musk’s idea by having the Council invite representatives of The Boring Company to 3 make a presentation to the Transportation Committee on “the status of the new technology, its 4 potential applications for increased mobility and traffic relief, and related public policy 5 questions.” Councilmember Koretz’s motion sought to have several City Departments “report 6 with options on ways the City can expedite the necessary permits for Elon Musk’s Boring 7 Company to develop new electric-vehicle tunnel technology to provide a safe and practical way 8 to help relieve traffic congestion on the I-405 freeway.” 9 27. Members of the Petitioner organizations took note of the motions. To date, neither 10 motion has been scheduled for hearing before any City Council committee or the full Council. 11 Department of Building and Safety Issuance of a Demolition Permit for the Project. 12 28. On information and belief, on March 13, 2018, the Los Angeles Department of 13 Building and Safety issued Building Demolition permit # 18019-10000-01106 for the 14 Sepulveda Boulevard surface portion of the project site as an over-the-counter permit. 15 Councilmember Koretz’s motion to the Public Works and Gang Reduction Committee. 16 29. On April 11, 2018, Councilmember Koretz submitted a new motion for 17 consideration by the City Council’s Public Works and Gang Reduction Committee, noting that 18 the Building and Safety Commission held a hearing for “The Boring Company’s Proof of 19 Concept Tunnel Project” on March 27, 2018, at which it “determined that the Proof of Concept 20 Tunnel Project is exempt from [CEQA] and approved a haul route application.” The motion 21 noted the City’s Bureau of Engineering had prepared a Notice of Exemption for the project on 22 March 28, 2017 consistent with the Commission’s action. The motion sought to present the 23 project and its NOE to the City Council so that the Council could, as the decision-making body 24 of the City, find the project exempt from CEQA under a class 32 categorical exemption and 25 expedite the tunnel excavation permit needed for the project. The motion further sought to 26 instruct the Bureau of Engineering to file an NOE within five working days of the Council’s 27 authorization to issue the project’s tunnel excavation permit. 28 PETITION FOR WRIT OF MANDATE 8 1 2 The Actual Board of Building and Safety Commissioners Action. 30. On March 27, 2018, the Board of Building and Safety Commissioners met to 3 consider a haul route application and CEQA determination for The Boring Company’s Proof of 4 Concept Tunnel Project. The Building and Safety Commission approved the haul route and 5 found the project exempt from CEQA under the class 32 categorical exemption. On March 28, 6 2018, the Bureau of Engineering prepared an NOE for the project. The Bureau of Engineering 7 also filed the NOE with the Los Angeles County Clerk that same day. 8 The March 28 NOE Project Location and Description. 9 31. The March 28, 2018 NOE prepared and filed by the Bureau of Engineering for 10 “The Boring Company Proof of Concept Tunnel Project LA” describes the project location as a 11 “2.7-mile tunnel underneath an area in Los Angeles zoned for light industrial use. The tunnel 12 begins with the entry/exit point at 2352-6 Sepulveda Boulevard . . . in the West Los Angeles 13 Community Plan area. The tunnel transitions under Sepulveda in the Palms-Mar Vista-Del Rey 14 Community Plan area, runs southward and ends (without surfacing) in the vicinity of the 15 intersection of Sepulveda and Washington Boulevard, in Culver City.” 16 32. The NOE describes the nature and purpose of the project as “development of a 17 subterranean tunnel that would provide proof of concept for a zero-emissions, high-speed, 18 underground, alternative means of transit for personal vehicles and/or single-rider use extending 19 for approximately 2.7 miles under the Los Angeles area, roughly equivalent to 4.85 acres.” The 20 NOE describes the tunnel uses as “solely for construction logistics verification, system testing, 21 safety testing, operating procedure verification, and line-switching demonstrations.” The NOE 22 also described that a total of approximately 80,000 cubic yards of soil would be exported from 23 the project site. The March 28 NOE did not disclose that The Boring Company had already 24 begun construction of a similar test tunnel in the City of Hawthorne. 25 Hearing and Agenda Notices for the Building and Safety Commission March 27, 2018 26 hearing. 27 28 33. On information and belief, on or about March 16, 2018 a hearing notice for the project was published in the Los Angeles Daily Journal, noting the Building and Safety PETITION FOR WRIT OF MANDATE 9 1 Commission’s Tuesday, March 27, 2018 hearing date along with its time and location. The 2 hearing was described only as “a request by The Boring Company to haul 80,000 cubic yards of 3 earth from 2352-2356 South Sepulveda Boulevard, CD 5.” 4 34. On information and belief, on or about March 16, 2018, a notice of public hearing 5 for the March 27, 2018 Building and Safety Commission hearing was mailed to property 6 owners for addresses located within a 300-foot radius of the Sepulveda Boulevard parcels. As 7 in the publication notice, the hearing date, time, and location were provided. As in the 8 publication notice, the mailed notice provided a project address as 2352-2356 South Sepulveda 9 Boulevard. The Boring Company was not mentioned in the mailed notice, but rather an owner 10 was listed for the Sepulveda parcels (“Richard A Eckhart Trust”), and the notice stated “[t]he 11 owner proposes to export 80,000 cubic yards of earth from the project site.” The mailed notice 12 included that the Board would consider “views of concerned parties regarding the proposed 13 hauling operations and environmental review under [CEQA].” The notice did not include that 14 the Building and Safety Commission might make a CEQA determination or consider the project 15 to be exempt from CEQA. The mailed hearing notice provided that those who could not attend 16 the hearing could submit written comments by noon the Thursday prior to the (Tuesday) 17 hearing, provided staff contact information, and noted a copy of combined recommendations 18 from the City Departments of Building and Safety, Public Works, and Transportation, would be 19 available at least two days before the hearing (later than the deadline to submit written 20 comments). 21 Community Response from the Building and Safety Commission Hearing Notices 22 35. In response to the Building and Safety Commission hearing notices, two members 23 of the public requested more information regarding the project prior to the Commission hearing. 24 The first sent an email on March 19, 2018 to two of the Building and Safety Commission staff 25 members listed on the public hearing notice, requesting more information in order to provide 26 his “views regarding the proposed hauling operations, environmental review under CEQA, and 27 the grading plan check.” The staff members assured the requestor that the staff report and 28 environmental report would be provided by March 22 (the same day on which written PETITION FOR WRIT OF MANDATE 10 1 submissions to the board were due by noon per the mailed notice). Despite the requestor 2 following up on March 22, Building and Safety Commission staff failed to respond and the 3 requestor did not receive the information until after the hearing had concluded. 4 36. A second member of the public testified at the Building and Safety Commission 5 hearing that in response to receiving the project hearing notice he contacted a representative of 6 the applicant by telephone. According to his testimony before the Commission, during the first 7 call, alleged to have occurred the Thursday before the hearing, the representative appeared to be 8 helpful. During a second call a day later, however, the community member was told the 9 representative had been “instructed not to give him anything.” As a result, the member of the 10 public requested that the Building and Safety Commission continue the item until he could 11 receive more information about the project. 12 37. Two Building and Safety Commissioners assured the commenter that the hearing 13 related only to the haul route approval and noted there would be adequate opportunity following 14 haul route approval by the Commission for members of the public to continue working with the 15 applicant as other City approvals still needed to be made. Neither commissioner pointed out 16 that their approvals, if not appealed to the City Council, would be final. They did not grant the 17 commenter’s request to continue the item, and instead approved the haul route and determined 18 the project was categorically exempt from CEQA under the class 32 exemption. 19 Department of Building and Safety Issuance of a Supplemental Demo Permit. 20 38. On information and belief, on April 9, 2018, the Los Angeles Department of 21 Building and Safety issued supplemental Building Demolition permit # 18019-10001-01106 for 22 the project site as an over-the-counter permit. The work description on the permit noted its 23 purpose was “to capture the CEQA clearance approval for demolition permit.” The permit was 24 noted as “finaled” on April 20, 2018 following an inspection on April 19, 2018. On information 25 and belief, this means the demolition on the Sepulveda Boulevard portion of the project site was 26 undertaken and completed as of that date. 27 The April 18, 2018 Public Works and Gang Reduction Committee hearing. 28 39. An agenda for the April 18, 2018 Public Works and Gang Reduction Committee PETITION FOR WRIT OF MANDATE 11 1 hearing was released on or about April 13, 2018. Petitioner BRC members received the agenda 2 by email. Based on review of the agenda item for Council File 17-1342-S1, the motion by 3 Councilmember Koretz desiring to expedite approval of excavation and revocable permits for 4 the tunnel project, and a 4-page, undated and unsigned revised Notice of Exemption for the 5 project then found in the electronic council file, BRC members learned that the Building and 6 Safety Commission had considered and approved the haul route and determined the project was 7 exempt from CEQA on March 27. Due to the incorrect information in the motion recitals and 8 motion, BRC members knew only that the March 28 NOE had been prepared, but not that it 9 had been filed. 10 40. The revised NOE found in the electronic Council File included a web link to a 11 Bureau of Engineering web page for the project (http://eng.lacity.org/boring_company). That 12 page included a “dead” (i.e., nonfunctional) web link labeled “03-28-2018 CEQA Notice of 13 Exemption,” and “live” web links to a document labeled “04-12-2018 Draft CEQA Notice of 14 Exemption” (appearing to be the same 4-page revised NOE in the electronic Council File) and 15 another labeled “Initial Study” (a 1,561-page document including an eight-page summary 16 memorandum and the lengthy Initial Study and Appendix G Checklist). 17 41. The Initial Study document identifies the multiple approvals required for the 18 project. These include a tunnel excavation permit, revocable permit, grading permit, haul route 19 approval, demolition permit, building permit, and electrical permit. The Initial Study includes a 20 comment that the excavation permit requires City Council approval pursuant to Los Angeles 21 Municipal Code section 62.02(a)(1). 22 42. BRC members quickly prepared a brief letter for submission to the Public Works 23 Committee, which they submitted at the April 18 hearing, asserting that the class 32 categorical 24 exemption was inapplicable to the project. BRC representative John Given attended and 25 testified at the hearing. He noted the BRC’s letter submission, that the class 32 exemption was 26 inappropriate for the project, that project approval constituted “classic piecemealing,” and 27 requested a more appropriate public hearing process so that members of the community could 28 be properly informed and weigh in on the project. PETITION FOR WRIT OF MANDATE 12 1 43. Following the conclusion of public comment committee members discussed the 2 project. Several councilmembers expressed misgivings about the CEQA determination and 3 potential conflicts with future Metro projects. One councilmember noted that Metro considered 4 the proposal to be a public transit project, while the Bureau of Engineering and Real Party TBC 5 regarded it as only a tunnel. The Public Works Committee recommended amendments to the 6 original motion for consideration by the full council. 7 44. The amendments included what was described by the committee’s chair, 8 Councilmember Blumenfield, as a “technical amendment” he had been asked to make by the 9 Bureau of Engineering to change the word “prepared” to “filed” with respect to the Bureau of 10 Engineering’s March 28, 2018 NOE. This change indicated the March 28 NOE had actually 11 been filed with the Los Angeles County Clerk by the Bureau of Engineering, causing the 35-day 12 CEQA statute of limitations to begin running, an important change considering that the 13 committee heard the item on what appeared to be the 21st day of a 35-day filing deadline 14 period. No councilmember suggested removing the motion language regarding the filing of an 15 additional NOE that had been prepared following Council approval, suggesting 16 councilmembers did not note the significance of the subtle change or did not understand the 17 March 28 NOE had actually been filed. Other amendments to the original motion included 18 adding a recommendation that Real Party Metro’s review and approval be required as a 19 condition of issuance of further project permits, and requiring The Boring Company to 20 indemnify the City in all respects. 21 45. The final amendment, that the proposed project not be used for public transit, 22 seemed intended to support a Bureau of Engineering view that it could be problematic for the 23 proposed 2.7-mile “proof of concept” tunnel to be considered able to be used for public transit. 24 One councilmember asserted this final amendment was necessary for the project to be 25 considered exempt from CEQA, while another implied it related to the Public Utilities Code 26 statute cited by Metro in a letter sent to the Public Works committee. In the referenced letter, 27 Metro CEO Phillip A. Washington cited Public Utilities Code section 130252(a), a state law he 28 asserted meant “all plans proposed for the design, construction, and implementation of public PETITION FOR WRIT OF MANDATE 13 1 mass transit systems or projects in Los Angeles County must be submitted to Metro for 2 approval.” 3 46. 4 5 Following the Public Works and Gang Reduction committee’s hearing, BRC members confirmed the March 28 NOE for the project had been filed with the County Clerk. 47. On April 30, 2018, Petitioners BRC and Sunset Coalition filed an appeal of the 6 Building and Safety Commission’s March 27, 2018 actions with the Los Angeles City Clerk 7 asserting the actions violated CEQA and the Los Angeles City Charter and requesting the 8 Commission’s actions be set aside. 9 48. As of the date of filing of this petition, the Los Angeles City Clerk’s office has not 10 updated Council File 17-1342-S1 to include a record of the committee’s action, and the Council 11 File has not been scheduled for consideration by the full City Council or referred to any other 12 committees of the City Council. For anyone interested in the project but unaware of the 13 Building and Safety Commission’s previous action who did not attend or listen to the Public 14 Works Committee hearing, they would have no way to know the CEQA statute of limitations 15 period to challenge the NOE filed March 28, 2018 for the project was rapidly coming to a close. 16 FIRST CAUSE OF ACTION 17 (VIOLATIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT) 18 19 20 49. Petitioners incorporate all previous paragraphs as if fully set forth. The City’s Action Violates CEQA’s Clear Prohibition Against Project Piecemealing. 50. CEQA Guidelines section 15378 defines “project” as “the whole of an action, 21 which has a potential for resulting in either a direct physical change in the environment, or a 22 reasonably foreseeable indirect physical change in the environment.” CEQA cases define 23 “project” broadly “to maximize protection of the environment.” (Riverwatch v. Olivenhain 24 Mun. Water Dist. (2009) 170 Cal.App.4th 1186, 1203.) 25 51. There is overwhelming and substantial evidence the “proof of concept” tunnel is 26 intended as a second step (the first being the test tunnel already being constructed in the City of 27 Hawthorne) toward a foreseeably much larger and expansive network of tunnels throughout 28 greater Los Angeles that may result in reasonably foreseeable indirect physical changes in the PETITION FOR WRIT OF MANDATE 14 1 environment. The evidence is found in many published news articles, the Los Angeles City 2 Council motions from Councilmembers Bonin and Koretz submitted to the Transportation and 3 Public Works Committees, testimony and other evidence from the Culver City Council hearing 4 on January 22, 2018 (provided to the City of Los Angeles in both the BRC’s April 18 letter and 5 subsequent appeal of the Building and Safety Commission action), the Los Angeles City 6 Council record for Council File 17-1342-S1, and in the project documents themselves. 7 52. Because the Initial Study and Categorical Exemption Narrative fail to recognize 8 this project as the “whole of the action,” they also utterly fail to identify the obvious potential 9 for indirect physical changes on the environment that additional subterranean boring of 10 transportation tunnels and related surface activities would cause. These include additional 11 export of earth and other surface and subterranean construction-related activities. In addition, 12 the project documents fail to adequately analyze the necessary relocation of utilities, safety 13 considerations and risks, conflicts with other transportation projects in the same area, and 14 impacts associated with even the obvious operational impacts of such a tunnel network, which 15 likely and foreseeably include traffic pattern alterations, including potential traffic bottlenecks 16 at multiple tunnel ingress/egress points that will need to be considered and mitigated as vehicles 17 travel to and from tunnel network access points. 18 53. The project impacts also include potentially significant land use and planning 19 conflicts, including with Real Party Metro’s Sepulveda Transit Corridor Project and other 20 Metro projects, and conflicts with the City’s general plan documents, in particular with respect 21 to the City’s Mobility Plan 2035, an element of the City’s general plan calling for City 22 transportation decisions “that strive towards equity in safety, public health, access, social 23 benefits, and/or economic benefits” and requires the City to “[c]onsider community input 24 before implementation of any Mobility Plan projects.” The project’s Initial Study and 25 Categorical Exemption Narrative do not identify these key policies, let alone provide 26 substantial evidence to show how the project is consistent with them. 27 28 54. CEQA imposes upon the City a clear, present and mandatory duty to properly define projects for purposes of their environmental review so as to ensure maximum protection PETITION FOR WRIT OF MANDATE 15 1 of the environment. CEQA cannot be evaded by chopping large projects into smaller pieces that 2 taken individually appear to have no significant environmental impacts. (See Tuolumne County 3 Citizens for Responsible Growth, Inc. v City of Sonora (2007) 155 Cal. App 4th 1214, 1223.) 4 Improperly dividing projects into segments or phases instead of considering the entire action 5 overlooks cumulative impacts. (See Bozung v. LAFCO (1975) 13 Cal. 3d 263.) 6 55. The issuance of a demolition permit is part of the project for purposes of CEQA. 7 Even if the City were to immediately cease all project activities and undertake appropriate 8 environmental review for the project before allowing any further action to occur, it has already 9 violated CEQA by granting a demolition permit for the project site and allowing the applicant 10 to clear existing structures from the project site. (Orinda Ass’n v. Board of Supervisors (1986) 11 182 Cal. App. 3d 1145, 1171.) 12 56. The project’s Categorical Exemption Narrative evinces a complete 13 misapprehension of how CEQA works, stating “[i]n the event that the proof of concept 14 validates the concept and future facilities are pursued, future environmental review would be 15 required.” That future environmental review is contemplated or required does not excuse failure 16 to perform adequate environmental review at the outset. (See Bozung, 13 Cal. 3d at 282.) 17 The Project is Not Exempt from CEQA Under the Class 32 Exemption 18 57. The class 32 Categorical Exemption (“CE”) “consists of projects characterized as 19 in-fill development” and “is intended to promote infill development within urbanized areas.” 20 (CEQA Guidelines § 15332.) The purpose of the in-fill exemption is to discourage urban 21 sprawl. Public Resources Code section 21094.5 subdivision (e) defines “infill project” to mean 22 a project consisting of one or more of the following uses in any combination: residential, retail 23 or commercial (where no more than half of the project area is used for parking), a transit 24 station, a school, or a public office building. The class 32 in-fill exemption does not apply to 25 the tunnel project because it is not an “in-fill project.” 26 58. The tunnel project also does not meet the mandatory requirements of subdivisions 27 (a) through (e) of CEQA Guidelines section 15332, making the categorical exemption 28 unavailable. PETITION FOR WRIT OF MANDATE 16 1 59. Guidelines section 15332 subdivision (a) requires the project to be “consistent with 2 the applicable general plan designation and all applicable general plan policies as well as with 3 applicable zoning designation and regulations.” 4 60. The analysis of potential land use and planning impacts considering the applicable 5 land use plans, policies, and regulations found in the project’s Initial Study and Categorical 6 Exemption Narrative is conclusory and not supported by substantial evidence (and often not 7 supported by any evidence). These documents analyze the project as if it were all zoned and 8 had the same land use designation as the two Sepulveda Boulevard surface parcels. But the 9 “proof of concept” tunnel area, which is not even the whole project, is not entirely within the 10 M2 zone, nor does it all have a corresponding general plan land use designation of light 11 industrial. The analysis also fails to consider that the “whole of the action” foreseeably will 12 result in other tunnel entry/exit points being developed. It is thus unknown whether the whole 13 project will be “entirely consistent with the existing zoning, general plan and all other 14 applicable land use regulations” as this one project segment is alleged to be. 15 61. The Initial Study and Categorical Exemption Narrative also fail to consider the 16 project’s consistency with the City’s general plan policies. Examination of the Initial Study 17 discloses that general plan policies were not even considered for analysis. The recently adopted 18 Los Angeles Mobility Plan 2035, for example, identifies “key policies” relating to “equity in 19 safety, public health, access, social benefits, and/or economic benefits,” “embed[ding] equity 20 and environmental justice into the transportation policy framework, project implementation, 21 and action programs,” and “consider[ing] community input before implementation of any 22 Mobility Plan projects.” These policies clearly apply to a transportation tunnel project such as 23 the one proposed by The Boring Company, and Petitioners find no evidence, and certainly no 24 substantial evidence, that supports the project’s consistency with these key policies. 25 62. Policy 4.3 of the Mobility Plan states that City of Los Angeles policy is to 26 “[e]nsure the fair and equal treatment of people of all races, cultures, incomes and education 27 levels with respect to the development and implementation of citywide transportation policies 28 and programs.” The program to support that policy states that “to facilitate the fair and equal PETITION FOR WRIT OF MANDATE 17 1 treatment of its residents, the City should strive to inform and involve environmental justice 2 groups, community-based organizations, and all concerned residents in the planning and 3 monitoring process of new and ongoing transportation policies and programs.” 4 5 6 63. The City process to approve a categorical exemption from CEQA for The Boring Company’s tunnel project presents a case study in avoiding these Mobility Plan policies. 64. CEQA Guidelines subdivision (b) allows application of the class 32 exemption 7 only where “[t]he proposed development occurs within city limits on a project site of no more 8 than five acres substantially surrounded by urban uses.” 9 65. On its face, the filed Notice of Exemption for the project acknowledges that the 10 proposed development does not occur entirely within Los Angeles city limits, a fact that is 11 entirely sufficient without more to defeat application of the class 32 categorical exemption to 12 the project. Even if the portion of the tunnel project within Real Party City of Culver City’s 13 territorial boundary and beneath streets were removed from the “proof of concept” portion of 14 the tunnel project, the “whole of the action” would still encompass numerous cities, including 15 not only Culver City, but also Inglewood, Lawndale, Torrance, Carson, Long Beach, Santa 16 Monica, and Hawthorne, where a two-mile TBC project-related tunnel is already under 17 construction. On information and belief, the City of Hawthorne approved its own “test” tunnel 18 project segment using a class 32 categorical exemption for in-fill development as its 19 environmental clearance. TBC’s statements and other evidence strongly support an inference 20 that the Hawthorne and Los Angeles projects are two separate segments of a reasonably 21 foreseeable larger tunnel network project. The multi-jurisdictional nature of the project 22 invalidates any application of the class 32 exemption. 23 66. Respondents and Real Party TBC assert the “proof of concept” portion of the 24 project site meets the class 32 limitation of five acres or less by assuming that the precise tunnel 25 boring width of fourteen feet multiplied by the tunnel length is an acceptable manner of 26 calculating tunnel area. Petitioners allege on information and belief that the “tunnel envelope” 27 required for a fourteen foot wide tunnel requires some amount of safety buffer. Even assuming 28 only a six-inch safety buffer, which would create a tunnel envelope of just fifteen feet, the PETITION FOR WRIT OF MANDATE 18 1 2 “proof of concept” tunnel portion of the project site alone would exceed five acres. 67. The Initial Study notes “the Project would be constructed using similar 3 specifications to the LA Metro RCTC and Purple Line Extension projects.” On information and 4 belief the Purple Line tunnel envelope includes the tunnel width plus a safety buffer of five feet 5 on each side. If TBC’s proposed tunnel used a similar standard as the Initial Study suggests it 6 should, its tunnel envelope would be 24 feet wide, and the total tunnel area of only the “proof of 7 concept” portion of the tunnel project would exceed eight acres. That does not consider the area 8 of the Hawthorne tunnel segment, or any area associated with other tunnel segments or surface 9 locations of the reasonably foreseeable expanded tunnel network. Thus, whether considering 10 the “whole of the project” or just this one piecemealed project segment, the project would 11 grossly exceed the five-acre limit provided for by CEQA Guidelines section 15332, subdivision 12 (b). The Los Angeles Tunnel Alignment Overview presented to the City of Culver City by TBC 13 illustrates that it is reasonably foreseeable that the true project area may easily exceed one 14 hundred acres, perhaps much more, far in excess of the class 32 area limitation. 15 68. The class 32 requirements also include that “[t]he project site has no value as 16 habitat for endangered, rare or threatened species” (CEQA Guidelines § 15332(c)), that 17 “[a]pproval of the project would not result in any significant effects relating to traffic, noise, air 18 quality, or water quality” (§ 15332(d)), and that “[t]he site can be adequately served by all 19 required utilities and public services” (§ 15332(e).) 20 69. The limited environmental analysis found in the Initial Study and Categorical 21 Exemption Narrative incorrectly assumes the “whole of the action” for the project includes only 22 the 2.7-mile “proof of concept” tunnel, and not the reasonably foreseeable expanded tunnel 23 network. Because of this gross error, and just as with the above discussion of Guidelines 15332 24 subdivision (a), there is no discussion in the project documents or other substantial evidence 25 supporting a conclusion that the reasonably foreseeable expanded tunnel network will be able to 26 meet the requirements of Guidelines section 15332 subdivisions (c)-(e). Indeed, if TBC’s 27 assertion is true that the expanded tunnel network alignments is not known, it would be all but 28 impossible for the project documents to conclude that these class 32 requirements could be met PETITION FOR WRIT OF MANDATE 19 1 unless the analysis included thorough review of the most likely reasonable project alternative 2 locations (as would be undertaken in an Environmental Impact Report). 3 A categorical exemption is unavailable for the project due to cumulative impacts. 4 70. Categorical exemptions “are inapplicable when the cumulative impact of 5 successive projects of the same type in the same place, over time is significant.” (CEQA 6 Guidelines § 15300.2(b).) It is reasonably foreseeable that the “proof of concept” tunnel may 7 eventually be connected to a larger tunnel network such as the one presented by TBC to the 8 City of Culver City. Foreseeable future connections between the “proof of concept” tunnel 9 portion of the project to other tunnel segments would constitute successive projects of the same 10 type in the same place, over time, and the cumulative impacts of the successive projects, which 11 have not been analyzed by the project’s Initial Study or Categorical Exemption Narrative, may 12 be significant. Even if the TBC “proof of concept” tunnel is not used beyond testing, it is 13 reasonably foreseeable that a future TBC tunnel network or some other subterranean project 14 may use the same or similar alignment. 15 71. Real Party Metro has already begun the feasibility study for its Sepulveda Transit 16 Corridor Project. On information and belief, the Sepulveda Transit Corridor Project feasibility 17 study will consider subterranean mass transit options that may utilize a similar alignment 18 beneath the Sepulveda Boulevard public right of way as the “proof of concept” tunnel does. 19 Metro’s Sepulveda Corridor Transit Project may constitute a successive project of the same 20 type in the same place, over time, and the cumulative impacts of the successive projects may be 21 significant. Respondents’ failed to consider potential project conflicts between the TBC “proof 22 of concept” tunnel portion of the project with Metro’s Sepulveda Corridor Transit Project. 23 Other Metro projects, including other Measure M-funded projects, may utilize tunnel 24 alignments similar to other parts of TBC’s proposed expanded tunnel network that have 25 likewise not been considered or analyzed. 26 72. The class 32 categorical exemption for in-fill development is not available for the 27 project whether considering the “proof of concept” tunnel portion of the project, or the properly 28 defined project scope encompassing the reasonably foreseeable tunnel network. PETITION FOR WRIT OF MANDATE 20 1 SECOND CAUSE OF ACTION 2 (VIOLATION OF LOS ANGELES CITY CHARTER) 3 73. Petitioners incorporate all previous paragraphs as if fully set forth. 4 74. The City of Los Angeles is a charter city. Charter cities may not act in conflict 5 with their own charter. “Any act that is violative of or not in compliance with the charter is 6 void.” (Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 171.) 7 75. The Los Angeles City Charter (hereafter “Charter”) charges the City’s nine- 8 member City Planning Commission with providing its advice and recommendations “to the 9 Mayor, Council, Director of Planning, and municipal departments and agencies with respect to 10 City planning and related activities and legislation,” for amendments to the City’s General Plan 11 and proposed zoning ordinances, and “to implement and secure compliance with the General 12 Plan,” among other Charter and code-prescribed duties. (Charter § 551.) The Charter provides 13 that projects requiring multiple approvals be heard and determined by either an Area Planning 14 Commission or by the City Planning Commission. (Charter § 564.) Where a project requires 15 multiple approvals including both quasi-judicial and legislative actions, however, the Charter 16 mandates that those projects be heard and determined by the City Planning Commission. (Ibid.) 17 76. Los Angeles Municipal Code (“LAMC”) section 12.36 is the municipal code 18 section intended to implement Charter section 564, and references section 564 in its heading. 19 LAMC section 12.36 provides definitional and procedural guidance to allow the City to 20 properly fulfill the City Planning Commission’s role in the planning and land use process. 21 Section 12.36 defines a “quasi-judicial approval” as “[a]ny approval for which the initial 22 decision becomes final unless appealed . . .” A “legislative approval” is defined as “[a]ny 23 approval that requires an action by the City Council . . .” (LAMC § 12.36.A.) 24 77. A haul route approval fits the municipal code definition of a quasi-judicial 25 approval. (See LAMC § 91.7006.7.5(6).) An excavation permit for construction of a tunnel 26 requires the specific approval of the City Council. (LAMC § 62.02(a)(1).) Thus a tunnel 27 excavation permit falls within the municipal code definition of a legislative approval for 28 purposes of the City’s multiple approvals ordinance and Charter, since it is “any approval that PETITION FOR WRIT OF MANDATE 21 1 2 requires an action by the City Council.” 78. When the Building and Safety Commission acted on March 27, 2018 to approve 3 the haul route approval for TBC’s proposed tunnel project and determine the project was 4 exempt from CEQA, it did so without having received any guidance from the City Planning 5 Commission. The actions taken by the Building and Safety Commission thus violated Charter 6 section 564, which commands that projects containing both quasi-judicial and legislative 7 approvals, such as the TBC’s proposed tunnel project, be “heard and determined” by the City 8 Planning Commission. After hearing and determining the project, the City Planning 9 Commission would have provided its advice and recommendation to the City Council and 10 relevant City departments and agencies. The Council is not required to follow the Planning 11 Commission’s advice, but it is required to give the Commission an opportunity to provide it. 12 79. The City Planning Commission’s advice in the instant case is particularly 13 important, since it regards an action involving land acquired for public use, the subterranean 14 portion of several miles of the Sepulveda Boulevard public right of way (and potentially much 15 more if the project is properly considered the whole of the action). Chapter I, article 5 of the 16 municipal code provides special procedural instructions to the City involving referrals of land 17 for public use. Pursuant to LAMC section 15.00 (the only code section within chapter I, article 18 5), the City Planning Commission’s advice is specifically required for “the adoption by the 19 Council of any ordinance, order or resolution ordering or involving the acquisition, 20 establishing, opening, widening, narrowing, straightening, abandoning, or vacating of any 21 public street, road, highway, alley, square, park, playground, airport, public building site or any 22 other public way, ground or open space, or the location, appearance, and width of any bridge, 23 viaduct, subway, tunnel, or elevated roadway for the use of pedestrians or vehicular traffic . . .” 24 (LAMC §§ 15.00.A (emphasis added).) “Before any ordinance, order or resolution relating to 25 any of the matters referred to in Subsection A hereof . . . is presented to the Council by the City 26 Attorney for consideration said ordinance, order or resolution shall be first submitted by the 27 City Attorney to the City Planning Department for report and recommendation thereon by the 28 Commission. (LAMC § 15.00.C (emphasis added).) PETITION FOR WRIT OF MANDATE 22 1 80. LAMC section 15.00 and its subdivisions are a City Planning Commission 2 “function[ ] prescribed by . . . ordinance,” and the City’s failure to adhere to its requirements 3 here robbed the Commission of its opportunity (as mandated under the Charter) to “give advice 4 and make recommendations to the . . . Council . . . with respect to City planning and related 5 activities and legislation.” (Charter §§ 551(a) and 551(d).) 6 81. Petitioner organizations’ members and many other citizens reasonably depend on 7 the City Planning Commission being permitted to fulfill its charter-mandated duties in order to 8 have a properly functioning City government. Violations of Charter sections 551 and 564 are 9 fundamentally important in this case, not because they represent a technical violation of local 10 municipal law, but because property owners and residents of Los Angeles, including members 11 of Petitioner organizations, often receive their first notice regarding important land use and 12 planning policy decisions in the City by carefully following the activities of the City Planning 13 Commission. This is especially the case when the City Planning Department or other City 14 agencies fail to perform adequate public outreach. 15 82. Such is the case here, where the City has undertaken virtually no public outreach 16 with respect to one of the most important land use and planning policy decisions regarding 17 transportation planning and infrastructure within the City’s Sepulveda transit corridor (and 18 likely far beyond), even though the proposed project could have potentially very significant 19 conflicts with Real Party Metro’s long-term planning for the Sepulveda Transit Corridor 20 Project, for which it has already undertaken a feasibility study. The whole of the action may 21 also conflict with other Metro projects throughout the region. 22 83. Moreover, the public hearing notice for the Board of Building and Safety 23 Commissioners’ March 27, 2018 project hearing was grossly inadequate. It treated 2352-56 S. 24 Sepulveda Boulevard as if it were the entire project site, which failed to reasonably apprise 25 members of the public of the nature and scope of the project being considered for approval. Nor 26 did the notice note the Building and Safety Commission may make a determination that the 27 entire project was exempt from CEQA. 28 84. In addition, a mailed 300-foot radius notice did not provide the requisite notice to PETITION FOR WRIT OF MANDATE 23 1 all property owners within a 300-foot radius of the project, only to those within the 300-foot 2 radius of the surface parcels. The City provided no notice to any property owners within the 3 City of Culver City. The mailed notice similarly treated the project site as only the Sepulveda 4 parcels and did not apprise members of the public of the nature or scope of the project. 5 85. Likewise, the Building and Safety Commission hearing agenda was inadequate. It 6 failed to apprise members of the public of the scope and nature of the project, and again 7 identified the project site only as the Sepulveda parcels. The notice referenced only the West 8 Los Angeles Community Plan area, in which the two Sepulveda parcels are located, but not the 9 Palms – Mar Vista – Del Rey Community Plan area or the City of Culver City under which 10 much of the 2.7-mile tunnel would actually be constructed. When members of the public 11 attempted to get additional information from the City and applicant to better understand the 12 project before the Building and Safety Commission acted, they were ignored or turned away. 13 86. Here, the City’s failure to follow the Charter’s clear mandate to allow the City 14 Planning Commission to hear and determine the project and provide its advice and 15 recommendation to the Council must be remedied. That is especially so because of the failure to 16 provide adequate public outreach and the improper and inadequate notice provided for the 17 Building and Safety Commissioners hearing. The appropriate remedy is a declaration that the 18 improperly taken action is void for violating City Charter sections 551 and 564. (Domar 19 Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 171 (“Any act . . . not in compliance 20 with the charter is void.”).) 21 22 23 24 PRAYER FOR RELIEF In each of the respects enumerated above, Respondents have violated their duties under 25 law, abused their discretion, failed to proceed in the manner required by law, and decided the 26 matters complained of without the support of substantial evidence. Accordingly, Respondents’ 27 determination that the project is exempt from CEQA must be set aside and all related project 28 approvals or other entitlements based upon that determination must likewise be set aside. PETITION FOR WRIT OF MANDATE 24 WHEREFORE, Petitioners pray for relief as follows: 1. For an alternative and peremptory writ of mandate, commanding Respondent to: A. Set aside and vacate its determination that the project is exempt from and B. Set aside and vacate any approvals for the project based upon its determination or upon the Initial Study and Categorical Exemption Narrative; and 2. For a declaration that Respondents? violated Los Angeles City Charter section 564 by making a determination of CEQA exemption and approving a haul route approval and demolition permit for a project with both quasi-judicial and legislative approvals without providing the City Planning Commission an opportunity to hear and determine the project and provide its advice and recommendation; and 3. For a declaration that Respondents? violated Los Angeles City Charter section 551 and Los Angeles Municipal Code section 15.00.C by making a determination of CEQA exemption and approving a haul route approval and demolition permit for a project involving land acquired for public use without providing the City Planning Commission an opportunity to hear and determine the project and provide its advice and recommendation; and 4. For costs of the suit; and 5. For reasonable attorneys? fees; and 6. For such other and further relief as the Court deems just and proper. DATE: May 2, 2018 Respectfully Submitted, LAW OFFICE OF JOHN P. GIVEN ?n Given ttorney for Petitioners PETITION FOR WRIT OF MANDATE 25 VERIFICATION I, the undersigned, declare that I am a Petitioner in this action. I have read the foregoing Petition for Writ of Mandate and know the contents thereof, and the same is true of my own knowledge except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true. I declare under penalty of perjury that the foregoing is true and correct. Executed this day of May, 2018, in Los Angeles, California. . .2 Weg?jsue Rosen PETITION FOR WRIT OF MANDATE 26