Fairfield City Council
August 16, 2022

August 16, 2022
Via Electronic Mail Only

City of Fairfield City Council
Fairfield City Hall
1000 Webster Street
Fairfield, CA 94533
[email protected]; [email protected]
[email protected]; [email protected]
[email protected]; [email protected]
[email protected]

Re: Illegal Potable Water Service Agreement. Agenda Item No. 19

Dear Mayor Price, Vice Mayor Vaccaro, and Honorable Councilmembers:

This Firm represents the Solano County Orderly Growth Committee in matters related to enforcement of the City of Fairfield’s urban limit line. We urge you not to approve Resolution 2022-215 authorizing execution of a Potable Water Service Agreement between Solano Irrigation District and the City of Fairfield for the Middle Green Valley Specific Plan Area. The fact that the County has agreed to indemnify the City for this illegal action should bring little comfort to those concerned with preserving farmlands, smart and equitable growth, and adhering to the public participation protections afforded by state Planning and Zoning law.

As explained in detail in our April 1, 2022 letter, this water treatment scheme is prohibited by the City’s General Plan. The Solano County Superior Court has ruled not once, but twice, that General Plan Policy LU 3.1 (readopted by the voters through Measure L), precludes the City from providing municipal services, including water treatment services, for development outside of the City’s urban limit line.

Accordingly, approval of Resolution 2022-215 and execution of the proposed Water Service Agreement would violate California Planning and Zoning Law, Government Code section 65000 et seq. Our April 1, 2022 letter and the applicable rulings from the Solano County Superior Court are attached to this letter for ease of reference.

City of Fairfield City Council
August 16, 2022

Recognizing that the City’s urban limit line policies prohibit this Agreement, Staff’s agenda report for this item attempts to sidestep these laws by claiming that “the voter-approved Measure L expired on December 31, 2020.” But the City’s urban limit line policies existed in the City’s General Plan before Measure L was adopted, and nothing in Measure L suggests that the voters intended to repeal those policies after a specific date. To the contrary, in approving Measure L the voters “reaffirmed and readopted” the General Plan’s urban limit line policies to ensure that they could not be amended by future City Councils without a vote of the people.

The text of measure L makes clear that the only thing that expired on December 31, 2020 is the requirement for voter approval to change the readopted policies. The policies themselves remain in place unless until they are amended through the procedures and public review process required by state law. Measure L contains no ambiguity on this point:
 “Any change to these policies through December 31, 2020 would require voter approval except in certain limited circumstances.” Section 1.A.  “This Initiative achieves the foregoing objectives by reaffirming and readopting certain provision of the General Plan and by adopting a new General Plan policy governing subsequent amendments to these provisions.

This Initiative amends the General Plan so that the reaffirmed and readopted components of the General Plan may, with certain exceptions, be amended only by a vote of the people through December 31, 2020.” Section

1.B, concluding paragraph
 “Policy LU3.3. A voter initiative reaffirmed and readopted [the General Plan’s urban limit line and associated policies]. These components of the General Plan are collectively referred to as the Travis Air Force Base and Fairfield Urban Boundary Policies and through December 31, 2020, may be amended only by a vote of the people as follows:” listing circumstances when the City Council may amend the policies without a vote of the people.

Section 2.D.

A copy of Measure L and the ballot materials are attached to this letter.

The City’s urban limit policies are still a part of the City’s General Plan, which is readily available on the City’s web page at
https://www.fairfield.ca.gov/government/city-departments/community- development/planning-division/general-plan/general-plan-documents?locale=en ,

City of Fairfield City Council
August 16, 2022

https://www.fairfield.ca.gov/home/showpublisheddocument/3170/637732653282470000 , and
https://www.fairfield.ca.gov/home/showpublisheddocument/3176/637546871946570000 .

Given that December 31, 2020 has now passed, the City Council may amend or repeal the urban limit line and associated policies without a vote of the people.

But it must first follow strict state law requirements for general plan amendments, including providing for review and comment by the general public, public agencies, and tribes. See Gov Code § 65350 et seq. And any such General Plan amendment would be subject to the voter’s constitutional referendum power. DeVita v. County of Napa (1995) 9 Cal.4th 763, 772. The City may not avoid these public participation laws by erroneously asserting that the General Plan policies readopted by Measure L somehow expired.

Very truly yours,

SHUTE, MIHALY & WEINBERGER LLP

Robert "Perl" Perlmutter

Attachments: 1. Letter from P. Perlmutter to D. Gassaway re Potential Inter- Agency Water Delivery Agreement for the Middle Green Valley Project (April 1, 2022)

2. Upper Green Valley Homeowners Assoc. v. County of Solano, County of Solano Superior Court Case No. FCS036446, Ruling After Writ of Mandate Hearing (Oct. 26, 2011)

3. Upper Green Valley Homeowners Assoc., Ruling Regarding Motion for Reconsideration (March, 21, 2012)

4. Upper Green Valley Homeowners Assoc., Order Re Motion for Discharge of Peremptory Writ of Mandate (September 24, 2015)

City of Fairfield City Council
August 16, 2022

5. Solano County Orderly Growth Committee v. Solano County , County of Solano Superior Court Case No. FCS046724, Ruling After Writ of Mandate Hearing (July 14, 2017)

6. Measure L and associated ballot materials.

cc: David Gassaway, Interim City Manager, City of Fairfield David Lim, City Attorney, City of Fairfield
Bob Berman, Chair, Solano County Orderly Growth Committee Duane Kromm, Solano County Orderly Growth Committee

1548509.1

Attachment 1

April 1, 2022
Via Electronic Mail Only
David Gassaway
Interim City Manager
City of Fairfield City Council
Fairfield City Hall
1000 Webster Street
Fairfield, CA 94533
[email protected]

Mayor Harry T. Price
[email protected]

Vice Mayor Rick Vaccaro
[email protected]

Councilmember Pam Bertani
[email protected]

Councilmember Catherine Moy
[email protected]

Councilmember Chuck Timm
[email protected]

Councilmember Scott Tonnensen
[email protected]

Councilmember Doriss Panduro
[email protected]
Re: Potential Inter-Agency Water Delivery Agreement for the Middle Green Valley Project

Dear Mr. Gassaway, Mayor Price, and Honorable Councilmembers:

This Firm represents the Solano County Orderly Growth Committee in matters related to enforcement of the City of Fairfield’s urban limit line. On February 15, 2022, the City Council directed staff to negotiate terms for an Inter-Agency Water Delivery Agreement for the Middle Green Valley Project proposed by the County of Solano and Solano Irrigation District (“SID”). The proposed Agreement contemplates SID supplying raw water to the City for treatment and delivery back to SID for distribution to the Middle Green Valley Project (“MGVP”).

As our clients warned the City in February, this water treatment scheme is prohibited by the City’s General Plan. The Solano Superior Court has ruled not once, but twice, that General Plan Policy LU 3.1 (adopted by the voters through Measure L), precludes the City from providing municipal services, including water treatment services, for development outside of the City’s urban limit line. Accordingly, any City action to

April 1, 2022

enter into the proposed Agreement would violate California Planning and Zoning Law, Government Code section 65000 et seq.

I. The City May Not Enter Into an Agreement that Violates Its Urban Limit Line Policies.

The City may not provide municipal services, such as treating water, to development projects located outside of the City. Because the General Plan is the constitution for all future development, any decision of the City affecting land use and development must be consistent with the General Plan. Neighborhood Action Group v.

County of Calaveras (1984) 156 Cal.App.3d 1176, 1182-86 .

General Plan Policy LU 3.1 states: “What is urban shall be municipal and what is rural shall be within the County. Any urban development requiring basic municipal services shall occur only within the incorporated City and within the urban limit line established by the General Plan (See Policy OS 1.6).” As the City’s General Plan explains, this policy “direct[s] that urban development be confined within this Urban Limit Line. The Urban Limit Line spells out a commitment on the part of the City of Fairfield to respect the integrity of the surrounding non-urban areas.” General Plan at LU-

25. In other words, to protect rural areas and manage growth, the City will not provide services for urban development outside of the City’s urban limit line.1 The City’s proposal to enter into an Agreement to treat non-potable water for the MGVP, a mixed use development that includes up to 400 residential units located outside the urban limit line, is thus prohibited under the plain language of LU 3.1. Any doubt has already been resolved by the Solano County Superior Court.

II. The Solano County Superior Court Has Twice Ruled that Treating Water for Development Outside the Urban Limit Line Is a Prohibited Municipal Service.

The Upper Green Valley Homeowners Association v. County of Solano litigation challenged the County’s adoption of the Middle Green Valley Specific Plan for the MGVP. The County had proposed to rely on City water services for mixed-use development under the Plan. In its 2011 ruling, the Solano County Superior Court held

1 While the voter-approval requirements of Measure L have expired, Policy LU 3.1 readopted by the voters remains in the City’s General Plan. Any amendment of that Policy would need to follow the strict state law requirements for general plan amendments.

April 1, 2022

that Measure L “on its face restricts the ability of the City of Fairfield to provide water services beyond city limits.” Upper Green Valley Homeowners Assoc. v. County of Solano, County of Solano Superior Court Case No. FCS036446, Ruling After Writ of Mandate Hearing (Oct. 26, 2011) at 5. The court even found that the County’s proffered evidence that the City had provided water outside of municipal boundaries since the adoption of LU 3.1 fails to establish that “such sales do not violate Measure L.” Id.

To the extent that the City is taking the position that water would actually be served by SID, the Upper Green Valley court emphasized that “the very existence of this measure, and its clear restriction against providing basic municipal services beyond city boundaries without voter approval, creates significant legal uncertainty as to whether the City can, directly or even indirectly, supply water to the subject project.” Upper Green Valley Homeowners Assoc., Ruling Regarding Motion for Reconsideration (March, 21, 2012) at 2 (emphasis added). Notably, while the court denied the County’s request to discharge the writ for insufficient analysis regarding a groundwater supply option, the court specifically characterized the County’s evaluation of city treatment of water for the project as an option that “suffers from similar legal uncertainty issues as the city water alternative.” Upper Green Valley Homeowners Assoc., Order Re Motion for Discharge of Peremptory Writ of Mandate (September 24, 2015) at 2. As the court’s rulings reflect, Policy LU 3.1 is not limited to the direct provision of services outside of the urban limit line. It also applies to the indirect provision of such services as the City proposes to do here. It is immaterial which agency ultimately delivers water to the end user; the City may not even indirectly provide water to any development falling outside of urban lines.

In subsequent litigation against another County project the court squarely ruled that treating water itself is a municipal service under Policy LU 3.1. In approving the Woodcreek 66 project, the County took the position that because the City will only be treating the water, it would not be a public water service provider since it would be SID that ultimately supplies water to the Project. The court found that Measure L “makes it legally uncertain that [City of Fairfield] can provide basic municipal services such as treating and/or supplying water, to projects located outside of city limits.” Solano County Orderly Growth Committee v. Solano County, County of Solano Superior Court Case No.

FCS046724, Ruling After Writ of Mandate Hearing (April 24, 2017) at 4, emphasis added.

Despite two adverse court rulings, the County now makes a third attempt to obtain water services from the City and forwards the same infirm position that has been twice rejected by the courts. And it does so with respect to development under the same Middle Green Valley Specific Plan at issue in Upper Green Valley Homeowners

April 1, 2022

Association v. County of Solano. The only difference now is that the liability for this illegal scheme will fall on the City of Fairfield if it approves the water delivery Agreement.

III. The City Is Not Obligated to Enter Into the Proposed Agreement.

The City frames the proposed Agreement as a way to formalize the commitment set forth in Resolution 2012-271, which the City Council adopted on December 18, 2012. (Feb 15 Agenda Item 15.) However, Resolution 2012-271 does not commit the City to provide any services. To the contrary, it is simply a water supply assessment.

The City has not made any commitments that obligate it to provide or treat water for the MGVP. While the City has issued water supply assessments and verifications of sufficient water supply for the MGVP, by law these statements do not bind the City to in fact provide the water. A water supply assessment simply states that a city has sufficient water to serve a development if it becomes the supplier. Water Code §10910(b). A verification of sufficient water supply is simply a more detailed assessment; by statute it does not commit the City to provide any services. Gov. Code § 66473.7(m) (“Nothing in this section shall be construed to create a right or entitlement to water service or any specific level of water service.”). It is misleading for the City to characterize the 2012 Resolution as having created a commitment for the City to treat water that will ultimately be supplied to MGVP.

IV. The City Cannot Enter into a Proposed Agreement Without First Obtaining Written Approval From LAFCO
Even if the General Plan allowed for this scheme, which it does not, because the City’s treatment of water is a “service” under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (See Gov. Code § 56074), the City may not provide services by contract or agreement outside its jurisdictional boundary unless “it first requests and receives written approval from the [LAFCO] of the county in which the affected territory is located.” (Gov. Code § 56133).

V. The City Must Refrain from Approving the Proposed Agreement.

On behalf of the Solano County Orderly Growth Committee, we respectfully request the City to refrain from taking any steps (1) to enter into the Agreement or (2) otherwise allow for any provision of municipal services to the MGVP in violation of General Plan Policy LU 3.1.

April 1, 2022

If the City wishes to reconsider its urban limit line policies, the appropriate time to do so would be during the comprehensive update to its General Plan. Any action to violate those policies at this time would expose the City to litigation on the same grounds that the courts have twice ruled against the County.

Very truly yours,

SHUTE, MIHALY & WEINBERGER LLP
Robert “Perl” Perlmutter
cc:

David Lim, City Attorney, City of Fairfield
[email protected]
Bob Berman, Chair, Solano County Orderly Growth Committee Duane Kromm, Solano County Orderly Growth Committee

Attachment 2

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FILED
Clerk of the $uperlor Court
0cT 26

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SOLANO

DEPARTMENT ONE
UPPER GREEN VALLEY HOMEOWNERS NO. FCSO36446
ASSOCIATION, etc.,
Petitioner, RULING AFTER WRIT OFVS. MANDATE HEARING
COUNTY OF SOLANO, etc., et al.,
KAREN YARBROUGH-WALLER, et al.,
Rea Parties nl I
The above-entitled matter came on for hearing of the Writ of Mandate on July 28,2011 before the Honorable Paul L. Beeman. Amber L. Kemble, Esq., Donald B.

Mooney, Esq., and Dana L. Dean, Esq., appeared on behalf of Petitioner. Lee Axelrad, Esq., appeared on behalf of Respondent. Sharon Little, Esq., and Amanda J.

Monchamp, Esq., appeared on behalf of Real Parties in lnterest. The Court heard the argument of counsel, and the matter was submitted for decision. Now, therefore, based on the pleadings and records on file and good cause, the Court enters the following ruling.
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Ruling After Writ of Mandate Hearing
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The writ will be granted in part, and denied in part.

Of the various challenges raised in the writ, the three main challenges concerned (1) the COUNTY's finding of infeasibility of the 200 primary unit, 200 secondary unit project alternative; (2) the COUNW's finding that the presence of Chinook salmon in the project area was "unlikely"; and (3) the COUNTY's analysis of the water supply.

An EIR must consider a reasonable range of alternatives to the project, and must determine if an alternative is both feasible and would offer substantial environment advantages as compared to the project. Sequovah Hills Homeowners Assn. v. Citv of Oakland (1993) 23 Cal.App.4th 704,719.

Even if an alternative has some environmental advantages over the proposed project, the public entity can still choose the project, so long as it justifies the choice based on social or economic conditions. California Native Plant Sociew v. Citv of Santa Cruz (2009) 177 Cal.App.4th 957,978.

COUNTY relied upon estimates from an economic study (the May 2009 Middle Green Valley Specific Plan Financial Model, prepared by Economic Planning & Systems), analyzing costs and benefits at the 200 primary unit phase buildout, to analyze the economic and social costs and benefits of the 200 primary uniU200 secondary unit project alternative. That study provides substantial evidence that a project of only 200 primary units would not produce sufficient net revenues to fund the agricultural endowment component of this project.

Petitioner's arguments regarding the possible presence of Chinook salmon on the project site also fail.

A project has a significant effect on the environment "if the project has the potential to reduce the number or restrict the range of an endangered, rare or threatened species". Napa Citizens for Honest Government v. Napa Countv Bd. of o
Ruling After Writ of Mandate Hearing
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Supervisors (2001) 91 Cal.App.4th 342,384 [citing CEQA Guidelines, section 15065(a)1.

Any factual determination, including whether a project involves an endangered, rare or threatened species, is subject to review under the substantial evidence standard. As long as there is evidence sufficient to make a fair argument in support of the factual conclusion reached by the public agency, even if there is also evidence against that conclusion, it will be upheld. Bakersfield Citizens for Local Control v. City of Bakersfield (2OO4) 124 Cal.App.4th 1184,1197-1199.

The burden falls on the petitioner challenging approval of an EIR to show there was no substantial evidence in the record to support the public agency's finding. The petitioner must do more than to point to the evidence in the administrative record which favors its position; it must instead set forth all evidence material to the public agency's finding, and then show that this evidence could not reasonably support its finding.

California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 626.
couNTY relied primarily on a report by Robert Leidy, of the EpA, who conducted a series of fish surveys in the mid to late 1990s of Bay Area Stream fishes.

The evidence cited by Petitioner on this issue is either undated, or anecdotat in nature, and does not rise to the amount and quality of evidence sufficient to establish that COUNTY's finding is unsupported by substantial evidence.

The court therefore finds substantial evidence in the administrative record to support COUNW's finding that the presence of Chinook salmon in the project area is 'unlikely".

It is only as to the water supply issue that the court finds that Petitioner has met its burden of showing COUNTY acted without substantial evidence of its compliance with the requirements of CEQA.
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Ruling After Writ of Mandate Hearing
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One of the issues an EIR for a specific plan must address is the water supply for the project and what environmental impacts would be caused by obtaining the water from the identified source(s). Vineyard Area Citizens for Responsible Growth. lnc. v. Citv of Rancho Cordova (2007) 40 Cal.4th 412,429 [quoting Stanislaus Natural Heritage Project v. county of stanislaøs (1g96) 4g cal. App.4th 192, 2061.

The California Supreme Court has identified 4 key points for water supply analysis:

1. An EIR cannot simply ignore the impacts of providing water to a project or assume a solution.

2. A project which uses a tiered or phased approach must analyzethe water supply for the entire project.

3. An EIR must address the impacts of likely water sources and i,nclude a reasoned analysis of the likelihood of the water source's availability.

4. Where it is impossible to confidently determine that an anticipated water source will be available, an EIR must inform decision-makers, at least in general terms, of possible replacement sources and the consequences of using those replacement sources. ld. at 430-432.

The EIR contains discussion of 2 alternative water source options. One of those opt¡ons is water supplied by the City of Fairfield. The other option calls for the use of groundwater wells.

At this early stage of planning, in any situation in which water held by a different public entity is potentially available, there are inherent uncertaínties as to whether the necessary but relatively routine proceduralsteps will later be completed to result in the use of that water. This court does not read Vineyard to require those types of procedural steps to necessitate a finding of unceftainty, and analysis of an alternative water supply.
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Writ of Mandate HearingRuling After
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Petitioner identified and asked the court to take judicial notice of Measure L, which on its face restricts the ability of the City of Faiúield to provide water services beyond city limits.

COUNTY at hearing attempted to present hearsay evidence that the City of Fairfield has in the past sold water to other projects and/or entities, for use beyond city limits. However, insofar as such evidence does not appear within the administrative record, this court cannot consider it. Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612,624 n.9 [court unable to consider declaration by city to explain claimed inaccuracies in a table prepared by city's planning department which detailed traffic analysis; court would consider table as it appeared in the recordl. The importance of the EIR and the public hearing process as conduits of information to the public and government decisionmakers during the decisionmaking process precludes the amplification of that evidence at hearing on the CEQA petition.

The audience to whom an EIR must communicate is not the reviewing court but the public and the government officials deciding on the project.

That a party's briefs to the court may explain or supplement matters that are obscure or incomplete in the ElR, for example, is irrelevant, because the public and decision makers did not have the briefs available at the time the project was reviewed and approved. The question is therefore not whether the project's significant environmental effects can be clearly explained, but whether they were. Vineyard Area Citizens for Responsible Growth. lnc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,443.

Furthermore, even ¡f the court could consider such evidence, it does not establish that such sales do not violate Measure L.

While this court offers no determination as to whether a legal challenge to such a sale of City of Fairfield water would be successful, the presence of Measure L creates such legal uncertainty as to the ultimate availability of that water that significant environmental review of an alternative water supply is required.

The court finds COUNTY's analysis of the groundwater wells alternative water supply, and its environmental effects, is insufficient. COUNTY relied upon outdated Ruling After Writ of Mandate Hearing
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IT IS SO ORDERED.

DATED: october KrO',,
o
and incomplete data, which identified concerns regarding water quality and other environmental issues which were not adequately discussed and analyzed in the ElR.

Based upon these findings, the court therefore will issue a writ to COUNTY to vacate and set aside its July 27,2010 adoption of the Middle Green Valley Specific Plan and associated certification of the ElR.

Petitioner is to prepare the writ for issuance, providing it to COUNW and Real Party in Interest for approval as to form.

PAUL L. BEE
Judge of the Superior Court
Ruling After Writ of Mandate Hearing
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SOLANO COUNTY COURTS

STATE OF CALIFORNIA
321 Tuolumne Street, Vallejo, CA 94590
CERTIFICATE AND AFFIDAVIT OF MAILING NO. FCS036446
l, Donna Callison, cert¡fy under penalty of perjury that I am a Judicial Assistant of the above-entitled Court and not a party to the within action; that I served the attached by causing to be placed a true copy thereof in an envelope which was then sealed and postage fully prepaid on the date shown below; that I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service; that this document was deposited in the Un¡ted States Postal Service on the date indicated. Said envelopes were addressed to the attorneys/parties and any other interested party as indicated below.

Document Served: Ruling After Writ of Mandate Hearing
Donald B. Mooney, Esq.

LAW OFFICE DONALD MOONEY
129 C Street, Suite 2
Davis. CA 95616
Amber L. Kemble, Esq.

LAW OFFICE AMBER KEMBLE
4160 Suisun Valley Road, Suite 8444
Fairfield, CA 94534
Dana L. Dean, Esq.

LAW OFFICE DANA DEAN
835 1"t Süeet
Benicia, CA 94510
Lee Axelrad, Esq.

Deputy County Counsel
675 Texas Street, Suite 6600
Fairfield
(via inter-County mail)
Sharon Little, Esq.

Amanda J. Monchamp, Esq.

HOLLAND & KNIGHT
50 California Street, Suite 2800
San Francisco, CA 94111
t
I declare under penalty of perjury
this certificate was executed on October
that the foreooino is true and correct and that
âln , zot I ãt vãlle¡o, california.
-æ'l,--- t//r*-
Donna Calli'-soñ
Ruling After Writ of Mandate Hearing
7 Attachment 3

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[,fAR 2 I ZüZ
LE
tn9 Supârlor t)
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SOLANO

DEPARTMENT ONE
UPPER GREEN VALLEY HOMEOWNERS NO. FCSO36446
ASSOCIATION, etc.,
Petitioner, RULING REGARDINGvs. MOTTON FOR

RECONSIDERATION
COUNTY OF SOLANO, etc., et al.,
KAREN YARBROUGH-WALLER, et aI,,
in
The above-entitled matter came on for hearing on January 11,2012 before the Honorable Paul L. Beeman regarding the motion for reconsideration filed on November 7, 2011. Amber L. Kemble, Esq., and Dana L. Dean, Esq., appeared on behalf of Petitioner. Lee Axelrad, Esq., appeared on behalf of Respondents. Amanda J.

Monchamp, Esq., appeared on behalf of Real Parties in tnterest. The Court heard the arguments of counsel, and the matter was submitted for decision. Now, therefore, based on the pleadings and records on file and good cause, the Court enters the following ruling.
g Motion for Reconsideration
il
Ruling Regardin
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lnsofar as COUNTY and Real Parties in lnterest submitted "new evidence" in the form of identical letters dated November 3 and Novembe r 7,2011 from the City of Fairfield's Director of Public Works, George Hicks, to the Solano County Director of Resource Management, the Court sustains Petitioner's objection to those letters and the accompanylng declarations as to the content and consequences of those letters.

Letters from a city employee are not matters of which the Court can take judicial notice. Evidence Code $452(c); Marino v. City of Los Angeles (1973) 34 Cal.App.3d 461, 465. These letters, drafted long after the certification of the EIR by COUN1y, expressing Hicks'opinions as to the ¡nterpretation and applicabil¡y of Measure L, also fail to qualify under the business records exception to the hearsay rule, which apply only to writings made contemporaneously, of facts, in the regular course of business, in a manner suggestive of trustworthiness. Evidence Code 51271; Zanone v. Citv of whittier (2008) 162 cal.App.4th 174,191; Tagqart v. super seer corp. (1ggs) 33 Cal-App.4th 1697, 1708. Most importantly, though, these letters were not part of the administrative record for the environmental ¡mpact report certification, nor are they particularly relevant to the interpretation of Measure L.

Even absent "new evidence," on the Court's own motion, it can reconsider its rulings. This Court, after advising the parties at hearing that it would give this matter reconsideration, hereby confirms its earller ruling.
ln doing so, this Court again confirms its intention not to rule on the constitutionality of Measure L. However, the very existence of this measure, and its clear restriction against providing basic municipalservices beyond city boundaries without voter approval, creates significant legal uncertainty as to whether the City can, directly or even indirectly, supply water to the subject project.

There are some general legal uncertainties inherent in any project's identified water supply, such as the requirement of later approvals anticipated in the development process. Still other legal uncertainties may exist, specific to the Ruling Regarding Motion
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Reconsideration

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c¡rcumstances of the case. lf the EIR acknowledges the extent of the latter type of uncertainties, and provides a reasoned analysis explaining why those uncertainties do not rise to a level of significance, the Court could determine that no alternative water supply analysis should be required. Santa Clarita Organization for planning the Environment v. county of Los Angeres (2007) 157 cal.App.4th 14g. conversely, an EIR which ignores or otherw¡se fails to provide a reasoned analysis of those more specific legal uncertainties, or whose reasoned analysis fails to explain why those uncertainties do not rise to a level of significance, must provide a reasonable environmental analysis of a water supply alternative. Vineyard Area Citizens for Responsible Growth. lnc. v. city of Rancho cordova (2007) 40 cal.4th 412. The subject EIR fails to meet those requirements.

The Court, therefore, denies the reconsideration motion, and affirms its previously announced ruling on the writ petition.

The Court will concurrently issue the writ and judgment to confirm its ruling on the writ petition.

IT IS SO ORDERED.

I
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DATED %.zt 2012
L
Judge of the Superior Court
ing Regarding MotionRul
3 Reconsideration

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CERTIFICATE AND AFFIDAVIT OF MAILING NO. FCSO36446
l, Donna Callison, certify under penalty of perjury that I am a Judicial Assistantof the above-entitled Court and not a party to the w¡tn¡n action; that I served theattached by causing to be placed a true copy thereof in an envelope which was then sealed and postage fully prepaid on the date shown below; that I am readily familiar with the business practice for collection and processing of correspondence fór mailing with the United States Postal Service; that this document was deposited in the UniteðStates Postal Service on the date indicated. Said envelopes wére addressed to theattorneys/parties and any other interested party as indicated below.

Document served: Ruling Regarding Motion for Reconsideration SOLANO COUNry COURTS

STATE OF CALIFORNIA
600 Union Avenue, Fairfield, California
Amber L. Kemble, Esq.

LAW OFFICE AMBER KEMBLE
4160 Suisun Valley Road, Suite 8444
Fairfield cA 94534
Donald B. Mooney, Esq.

LAW OFFICE DONALD MOONEY
129 C Street, Suite 2
Davis cA 95616
Dana L. Dean, Esq.

LAW OFFICE DANA DEAN
835 1"t Street
Benicia, CA 94510
Lee Axelrad, Esq.

Deputy County Counsel
675 Texas Street, Suite 6600
Fairfield
(via inte mail)
Sharon Little, Esq.

Amanda J. Monchamp, Esq.

HOLLAND & KNIGHT
50 California Street, Suite 2800
San Francisco , cA 94111
I declare under penalty of
this certificate was executed on 0(e
thea 2412 at Fairfield, California.
is true and correct and that
\,-t
Donna Callison
Ruling Regarding Motion for Reconsideration
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SOLANO COUNTY COURTS

STATE OF CALIFORNIA
600 Union Avenue, Fairfield, California
RTIFI DAVIT NO. FCS036446
l, Donna Callison, certify under penalty of perjury that I am a Judicial Assistant of the above-entitled Court and not a party to the within action; that I served the attached by causing to be placed a true copy thereof in an envelope which was then sealed and postage fully prepaid on the date shown below; that I am readily familiar with the business practice for collection and processing of correspondence for mailing with the Uníted States Postal Service; that this document was deposited in the Uniteã States Postal Service on the date indicated. Said envelopes were addressed to the attorneys/parties and any other interested party as indicated below.

Document served: Ruling Regarding Motion for Reconsideration Amber L. Kemble, Esq.

LAW OFFICE AMBER KEMBLE
4160 Suisun Valley Road, Suite 8444
Fairfield cA 94534
Donald B. Mooney, Esq.

LAW OFFICE DONALD MOONEY
129 C Street, Suite 2
Davis cA 95616
Dana L. Dean, Esq.

LAW OFFICE DANA DEAN
283 East H Street
Benicia, CA 94510
Lee Axelrad,q
Deputy County Counsel
675 Texas Street, Suite 6600
Fairfield
a inte mail
Sharon Little, Esq.

Amanda J. Monchamp, Esq.

HOLLAND & KNIGHT
50 California Street, Suite 2800
San Francisco, CA 94111
I declare under penalty of perjury that the foregoing is true and correct and that this certificate was executed on March 21,2012 at Fairfieid, californ¡a. ç
Donna Callison
Ruli
4 ng Regarding Motion for Reconsideration

Attachment 4

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FILED
Cl¡û of lrr 8r¡foftr Orrrt
s I{ 2015

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SOLANO
DEPARTMETTT 1
---o00--

UPPER GREEN VALLEY HOMEONWERS

ASSOCIATION,
Case Number: FCS036.I46
Petitioners,
vs.

COUNTY OF SOLANO and the SOIANO
BOARD OF SUPERVISORS, et al.,
¡p..i rt,
Respondents.

KAREN YARBROUGH-WALLER, et al;,
Real Parties In Interest.

Respondents'motion for discharge of peremptory writ of mandate came on regularly fo hearing on May 27,20L5 before the Honorable Paul L. Beeman. Attorneys Dana Dean, Amber Kemble and Don Mooney appeared for an on behalf of petitioners, UPPER GREEN VALLEY HOMEOWNERS ASSOCIATION, Attorney Lee Axelrad appeared for and on behalf of respondents COUNTY OF SOI-ANO and the SOLANO COUNTY BOARD OF SUPERVISORS.

ORDER RE MOÏION BY RESPONDENTS COUNTY OF SO]..ANO AND THE SOI-ANO COUNTY SOARD OF SUPERVISORS

FOR DISCHARGE OF PEREMPTORY WRIT OF MANDATE

ORDER RE MOTION BY RESPONDENTS
COUNTY OF SOLANO AND THE.SOLANO

COUNTY BOARD OF SUPERVISORS FOR

DISCHARGE OF PEREMPTORY WRIT OF

MANDATE

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Attorney Amanda Monchamp appeared for an on behalf of the real paÉies in interest. The Court heard the statements and arguments of counsel. The Court ordered any additional briefing from counsel, no more than 30 pages long, to be filed no later than June Zg, Z0IS.

Thereafter, the matter was submitted for decision as of June 30, 201s.

Now, therefore, based on the pleadings and records on file and argument of the pafties, the Court enters the following ruling.

Back in 20l2,this coutt issued a writ to direct Respondent/Moving party COUNTy OF SOIANO CCOUNTYJ to set aside its approval of its (initial) EIR for the Middle Green Valley Specific Plan. The couft found that COUNTY could not reasonably rely on water to be provided by the city of Fairfield, because of a slow-growth initiative that city voters approved to restrict the ability of the city to furnish water outside of its boundaries. The couft also found that an alternative water supply from groundwater was inadequately analyzed, under the standard set forth by the California Supreme Court in Vineyard Area Citi4ens for Responsible Growth. Inc. v. City of Rancho CordQva (2007) 4,0 Cal.4th 412.

In the 3 years which have passed since the issuance of the wriÇ COUNTY has revised and recirculated the EIR, adding a more detailed evaluation of the groundwater atternative the cout found had been inadequately analyzed (as well as another water supply option, which suffers from similar legal unceftainty issues as the city water alternative).

COUNTY has filed a return and motion for discharge of the peremptory writ, based upon its ceftification of a revised re-circulated environmental impact repoft CIRREIR,).

Tþe same standards for review of a CEQA writ apply to a return motion seeking discharge of a CEQA writ, based upon subsequent action by the public agency to comply with the directives of the writ to cure the defects identified by the couÊ in its earlier CEeA review. 14 C.C.R. section 1508S.5(a) [when significant new information is added to an EIR]; Sutter ORDER RE MOTION BY RESPONDENTS COUNTY OF SOI.ANO AND THE SOLANO COUNTY BOARD OF SUPERVISORS

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Sensible Planning, Inc. v. Bgard of Supe¡visors (1981) 122 Cal.App.3d 813, 822 [supplements to an EIR must be recirculated for public commentl
On a CEQA writ petition (or motion for discharge of a CEQA writ), the couft determines whether there has been a prejudicial abuse of discretion by the agency, which is established if the agenqy failed to proceed in the manner required by law or if the agency's determination or decision is not supported by substantial evidence. Vineyard, supra, 40'Cal.4ü at 426.

One of the issues an EIR for a specific plan must address is the water supply for the project and what environmental impacts would be caused by obtaining the water from the identified source(s).

Before approving a specific plan for an entire development, the decision makers must be informed of the intended source or sources of water for the project, "what the impact will be if supplied from a pafticular source or possible Sources and if that impact is adverse how it will be addressed." Id. at 429 [quoting Stanislaus Natural Heritage Project v. County of Stanislaas (1996) 48 Cal.App.4th 182, 2061.

The California Supreme Couft has identified 4 key points for water supply analysis:

1. An EIR cannot simply ignore the impacts of providing water to a project or assume a solution.
2, A project which uses a tiered or phased approach must analyze the water supply for the entire project.

3. An EIR must address the impacts of likely water sources and include a reasoned analysis of the likelihood of the water source's availability

4. Where it is impossible to confidently determine that an anticipated water source will be available, an EIR must inform decision-makers, at least in general terms, of possible replacement sources and the consequences of using those replacement sources. Id. at 430-432.

More specifically, the 4th prong of Vinevard states:

ORDER RE MOTION BY RESPONDENTS COUNW OF SOLANO AND THÊ SOI.ANO COUNTY BOARD OF SUPERVISORS

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[W]h.erq, despite a full discussion, it is impossible to confidently determine that anticipated future wâter sources will be available, cEeA requirès some dÍscussion of possible replacement sourceó or àtteniatives to use of theanticípated-waleq ?nd of the environmental consequences of those contÍngencrbs. The law's informational demands may not be met, in this context, simply by providing that future development w¡ll not procéed if the anticipated water supply fails to materialize, Bút when an ElR'makes a sincere and reasoned attempt to analwe the water sources the project is likely to use, but acknowled-ges ttie rema i ni'irg u nðertaiñtv, ã meilüre for cufta i li n g development if th_e intended sources fail to 'riraterialize may play a roÏe in the impact analysis. Id. at 432 (emphasis added). - :

That initial EIR had evaluated only 2 water supply options, one of which the court to be too legally unceftain (Option A, city water), and the other too inadequately analyzed (Option B, groundwater).

The RREIR expanded its analysis of the groundwater alternative (Option B) [it also added a third alternative, city treatment of water, which faces legal unceftainty concerns similar to those of the city water alternativel.

Due to the continuing concerns of the tegal unceftainty of the other water supply alternatives, even though COUNTY may prefer one of those alternatives, the focus of the parties and the coutt on this motion is on the analysis of the groundwater alternative.

Although COUNTY has argued that some lesser standard of scr.utiny is applied to a non- preferred water supply alternative, it has not cited any law which clearly identifies the parameters of a lesser standard.

Based upon the above-quoted language from Vineyard, it appears that the same standard for evaluation of the sufficiency of supply and environmental consequences would aPPlY, even to a non-preferred water supply alternative, when the preferred alternative appears legally unceftain.

The sufficienry of groundwater supply is an assessment that a paftícular rate of usage or pumpage would not, over the course of years, draw down the level of groundwater, but it instead would be replenished to current levers by seasonal rainfall.

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The safe yield is "the maximum amount of water that could be extracted annually, year after year, without eventually depleting the underground basin." (Ib¡d.) Safe yield is generãlly calculated as the net of inflows less subsuface and suface outflows. (Id. at |p.278¿79.) When total extractions exceed the safe yield the basin is said to be in büerdraft. Ciir of Sahta Maria v. Adam (20L2) 211 Cal.App.4ú 266,279.

COUNTY's RREIR and the Water Supply Assessment pedormed by its hydrologist consultant relied primarily, if not exclusively on the 1960 Thomasson Repot. In pafticular, COUNTY's hydrologist concluded a sufficiency of water supply based upon the volume of pumped water in Green Valley for the 1949 year t4R103591, and Thomasson's observations that the wells in this general area were replenished (and thus suffered no long-term shortage/deficient from this level of pumping) [AR10360]. COUNTYT hydrologist took the proportionate volume for the project area, to calculate the available groundwater for the project, and determined that it would be sufficient (and in fact, that there would be a minor projected su rpl us) [4R0768-07 69 ; 0840-084 1 ].

COUNTY's Water Supply Assessment projected water demand and supplies for multiple dry years, over the next 20 years, and determined that they would not vary significantly from demand and supplies during normal years:

The nature of the Project is such that the water demand is unaffected by climatic variability. This means that there is no difference in water demand for the Project, between a normal water year, a single-dry year, or multiple-dry year types. The water supply does not change on a yearly basis, so there is no difference between the water supply in the years 20t5,2A20,2A25,2030, and 2035. Historical records indicate that the availability of groundwater is unaffected by water year type (climatic variability causes some changes in groundwater levels, but those changes are not so sizable that they would render water unavailable or prevent the use of the 525 acre-feet per year allotment estimated to be available to the Plan Area), and so would remain the same for normal water years, single-dry years, and multiple-dry years. [AR0861-0862].

Public Resources Code section 21080(e) defines substantial evidence as including facts, reasonable assumptions based on facb, and expeft opinions suppofted by fact, but not argument, speculation, unsubstantiated opi nion.

ORDER RE MOTION BY RESPONDENTS COUNTY OF SOI.ANO AND THE SOLANO COUNW BOARD OF SUPERVISORS

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(1) For the purposes of this section and this division, substantial evidence includes {aA, a reasonable assumption predicated r,rpon fact, or expeft opinion supported by fact.
(2) Substantial evidence is no! argumenÇ speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of óocial or economic impacb that do not contribute to, or are not caused by, physical impacts ' on the environment.

Guidelines for.the implementation of CEQA found at 14 Code of Califomia Regulations section 15384 provide a similar definition for "substantiat evidence". (a) "Substantial evidence" as used in these guidelines means enough relevant information and reasonable inferences fromlh¡s information that aÏair argument can be made t9. suppgrt a conclusion, even though other conclusions migñt abo be regghed. Whether a fair argument can be made-is determined by examiñing the entire record. Mere uncorroborated opinion or rumor does not cónstitute substantial evidence.
(b) Su-bstantialevidence shall include facts, reasonable assumptions predicated upon facb, and e<pert opinion supported by facts.

The burden falls on the challenging party to show the studies, relied upon by the agency as supporting evidence for its conclusions, were clearly inadequate When a challenge is brought to studies on which an EIR is based, the issue is not whether the studies are irrefutable or whether they could have bêen better. The relevant.issue is only whether the studies are suff¡ôiently credible to be considered aspaft of the total evidence that suppofts the agency's deê¡s¡on. A clearly ina¿equate ôiunsuppoÉed stu.dy is entitled_to no judicial deiereñce. The pafly challénging the EIR, howev.er,.bears the burden of demonstrating that the studiês oñ which t-neÉn is baied )gqçl-"qt]y inadequatg glgngqpported. Stale Water Resources Contro!-goard CáJes -
(20060 136 Cal.App.46 674,795.

When a disagreement exists between the experts, the couft does not decide who has the better argument, but instead must simply determine whether substantial evidence suppofts the agenqy's expert's opinion.
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information and reasonable inferences from this information that a fair a made to support a conclusion, even though other conclusions might also (Guidelines, 5 15384, subd. (a).)
o
rgument can
be reached,"
A couft may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. A court's task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse eftects have been mitigated or could be better mitigated.

We have neither the resources nor scientific expeftise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Laurel Heights Improvement Ass'n v. Regents of the University of California (Laurel Heights I) (1988) 47 Cal.3d 376,392-393.

The burden falls on the petitioner challenging approval of an EIR to show there was no substantial evidence in the record to support the public agency's finding. The petitioner must do more than to point to the evidence in the administrative record which favors its position; it must instead set fofth all evidence material to the public agency's finding, and then show that this evidence could not reaÈonably suppoft its finding.

Rancho Cordova (2009) L72 Cal.App.4th 603, 626.

Since groundwater is not regulated by the state, there is limited information available for it. Q.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal,App.4ñ 568, 591 [evaluating sufficienry of a water supply assessment prepared to comply with Water Code section 109101.

In addition, an agency is not required to conduct a test or study merely because it would be feasible to do so.

CEQA does not require a lead agency to conduct every recommended test and peform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does .not mean that they are required. Giay v.

Cpunly of Ma4era (2008) 167 Cal.App.4ü 1099, 1115 [quoting Association of li¡tated Residenß v. County of Madera (2003) 107 Cal. App. 4th 1383, 1396.

Here, there has been little or no argument or evidence presented by Petitioner as the cost, reliability, and specific details of additional suggested studies or tests. Instead, and Petitioner's expeft rely primarily on the Thomasson repoft as well.

ORDER RE MOTION BY RESPONDENTS COUNTY OF SOLANO AND THE SOLANO COUNW BOARD OF SUPERVISORS

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Under the standards for review set forth aboVe, the couft finds that COUNTY's assessment of the sufficiency of water supply from the groundwater alternative is suppofted by substantial evidence.

CEQA Guidelines require a lead agency to consider the possible effect of the project on plants and animals located around the project area, especially of endangered, rare, or threatened species. 14 C.C.R. section 15065(a) provides:
project may have a significant effect on the environment be prepared for the project where there is substantial
record, that any of the following conditions may occur:
(1) The project has the potential to substantially degrade the quality of the environment; substantially reduce the habitat of a fish or wildlife species; cause a fish or wildlife population to drop below self-sustaining levels; threaten to eliminate a plant or animal community; substantially reduce the number or restrict the range of än endangered, rare or threatened species; or eliminate impoftant examples of the major periods of California history or prehistory.
(2) The project has the potential to achieve short-term environmental goals to the disadvantage of long-term environmental goals.
(3) The project has possible environmental effects that are individually limited but cumulatively considerable. "Cumulatively considerable" means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, thè effects oi other current projects, and the effects of probable future projects.
(4) The environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.

It is a recognized policy of this state to prevent elimination of wildlife species, and to ensure that wildlife populations do not drop below self-perpetuating levels. Mira Monte Homeowners Assh v. County of Ventura (1985) 165 Cal.App.3d 357, 366.

An EIR must consider and resolve every possible significant impact on the environment (including as to endangered, rare and threatened species). Even if it decides that no ORDER RE MOTION BY RESPONDENTS COUNTY OF SOI.ANO ANDTHE SOLANO COUNTY BOARD OF SUPERVISORS

FOR DISCHARGE OF PEREMPTORY WRTT OF MANDATE
A lead agency shall find that a
and thereby require an EIR to
evidence, in light of the whole
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significant impact will occur to a particular environmental factor (such as vulnerable species), must include a statement briefly indicating why it will not.

Once a public agency has determined that a project may have one or more signitçgnl effects on the eñvironm'ent and therefore an EIR is required, the purpose of the EIR "is to identiff the significant effects on the environment of [the] project." (CEQA, 5 21002.1, subd. (a).) Thus, in preparing the EIR, the agency must determine whether any of the possible significant environmental impacts of the project will, in fact, be significant. . .

Thus, in preparing an EI& the agency must consider and resolve every fair argument that can be made about the possible significant environmental effects of a project, irrespective of whether an established threshold of significançe has been met with respect to any given effect. Once the agency has determined that a pafticular effect will not be significant, however, the EIR need not address that effect in detail. Instead, the EIR needonly "contain a statement briefly indicating the reasons for determining that various effeß on the environment of a pro'ject are not significant and consequently have not been discussed in detail in the environmental impact report." (CEQA, S 21100, subd. (c); see also Guidelines, 5 15128.) Prqtect the Historic Amador Waterways v.

Amador Water Agency (2004) 116 Cal.App.4m 1099, 1109.

The RREIR did acknowledge that the groundwater water supply alternative could have potentially significant impact on stream hydrology and riparian habitat in the stream. [AR0776, Impact t6-21.

The RREIR made no mention of what effect, if any, of any possible significant environmental effects of the groundwater alternative on species habituating the stream.

Courts in other groundwater usage situations have noted the seasonal effect on nearby streams and species dependent upon current stream levels. For example, in Vineyard, the draft EIR identified a combination of groundwater and surface water to provide the water supply for the pCIect, but did not address the possibility of significant impact on river-related species. The U.S. Fish & Wildlife Service, National fvlarine Fisheries Seruice, and Nature Conseruancy, and a hydrogeology professor each commented that past groundwater withdrawals had caused loss of flow to the local river, and urged analysis of those effects for the fall and winter months of migration and spawning for chinook salmon. The final EIR

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addressed those comments by stating only that the use of groundwater would have very little environmental impact, with the possible exception during periods of very low flow (during those pafts of the season between pumping out groundwater, and its eventual replenishment through seasonal rains), The California Supreme Court found this to constitute an implied admission that there would be a significant impact, which should have been expressly acknowledged and then followed by a discussion of how that impact could be mitigated or othen¡rise addressed
Even if cases such as Vineyard would not have, by themselves, identified the need to expressly evaluate and/or address mitigation measures for this possible environmental impact on species, theie was information provided through the public comments that should have alerted COUNTY to this concern.

Petitioner's hydrologist expeft raised this very concern in a comment letter. tAR1310l.

Petitioner's biologist expeft more extensively discussed this concern in her comment letter, and specifically identified the Central California Coast steelhead (threatened), the California red-legged frog (federally-listed as threatened, state-listed as a species of special concern), and the western pond turtle (federally-listed as threatened, state-listed as a species of special concern). [4R2691-2700].

COUNTY did not for this RREIR hire a biologist to respond at all to these concerns, to either acknowledge or deny that there were significant biological concerns regarding the groundwater water supply alternative
It is irrelevant to evaluation of the groundwater water supply alternative analyzed by this RREIR that COUNTY may have earlier employed a biologist consultanÇ and addressed in the initial EIR the biological issues for the city water alternative The evaluation of the groundwater water supply alternative in the RREIR constitutes "materially different conditions or facts", such that res judicata does not apply to an earlier 10 ORDER RE MOTION BY RESPONDENTS COUNTY OF SOLANO AND THE SOLANO COUNTY BOARD OF SUPERVISORS

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evaluation of the biological impacts of the project, at least as to the evaluation of biological imþacts of the groundwater alternatlve. Citizens for Open Government v. City of Lodi (2012) 205 Cal.Ap p.4n 296,324-325.

It is also irrelevant to this CEQA review that the measures proposed by COUNTY to mitigate other e¡pressly acknowledged possible significant environmental impacts of stream hydrology and stream habitat [AR0776, Impact t6-2; see also ARO777-0778, Mitigation 16-2a] might also serue to mitigate the unacknowledged significant biological impacts.

Even if the mitigation measures in the revised EIR would resolve every possible significant environmental impact, including the significant biological impacts, the revised EIR does not expressly consider and evalUate the possible significant biological impacts, to fulfill its purpose as an informational document. Vineyard, supra,40 Cal.4h at443 f'The question is . . . not whether the project's significant environmental effects ian be clearly explained, but wheffier they weret; Stanislaus Natural Heritage, supra, 48 Cal.App.4h at 196 ['one of the basic purposes of CEQA is to inform government decision-makers and the public about the potential, significant environmental effects of proposed activitiesl; Protect Historic Amadgr, supfa, 116 Cal.App,4h at 1109 ['in preparing an EIR, the agenry must consider and resolve every fair argument that can be made about the possible significant environmental effects of a project'].

As one couft explained:

It does not matter if the same result would have occurred had the omitted information been disclosed.
11 ORDER RE MOTION BY RESPONDENTS COUNTY OF SOIANO AND THE SOLANO COUNTY BOARD OF SUPERVISORS

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Failure to comply with the information disclosure requirements constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decisionmaking and informed public pafticipation, regardless whether a diflerent outcome would have resulted if the public agency had complied with the disclosure requirements. Bakersfield Citizens for Local Control v. City of Bakersfield (2004) L24 Cal.App.4th 1184, 1198.

Thus, even if COUNTY would have adopted the same mitigation measures, it was still required to go through the process of expressly identifliing the possibly significant impact on biological resources, and then evaluating whether those adopted mitigation measures would adequately mitigate that type of impact.

COUNTY's failure to take this fundamentally required action causes ¡ts RREIR to fail as matter of law to comply with the requirements of CEQA.
(For purposes of this evalüation, the couÉ accepts COUNTY's position that ceftain details of the mitigation measures adopted to address other, expressly ãcknowledged possibly significant impacts may be properly deferred to a later approval stage. COUNTY's claim that this is a "program EIR'is misplaced, as program EIRs apply to regional or general plan approvals, not specific plan approvals. In re Bay-Delta Programmic Environmental Inpact Report Coordinated Proceedings (2008) 43 Cal.4th 1143 [regional plan program EIR]; Boat Shop. Inc. v. Board of Harbor Commissiongrs (1993) 18 Cal.App.4th 729 [poft authority program EIRI; cf. Vineyard, SUpf!!, 40 Cal.4ü 4L2lprogram EIR argument rejected re specific plan for a 6000 aue,22,000 residential unit "master community"; Stanislaus \,lational Herilage Proiect v. County of Stanislaus (1996) 48 Cal.App.4ü' 182 [same for specific plan for 29,500 acre, 5,000 residential unit reso¡t and residential communityl. The scale of the project at issue here [1900 acres, 500 residential units] is actually smaller in geographic and residential size than the pr$ects under evaluation in Vineyard and Stanislaus. Thus, COUNTY should be (and is, by this ruling) required to consider and resolve all possibly significant environmental impacts of the groundwater water supply alternative, at this stage of project 12 ORDER RE MOTION BY RESPONDENTS COUNTY OF SOLANO AND THE SOIANO COUNW BOARD OF SUPERVISORS

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evaluation. St¡ll, mitigation measures can defer specifics as long as they identiff specific peformance criteria, or a range of alternatives, including some known to be feasible. Defend the Bay v. City of lruine (2004) 119 Cal.App.4ü' 1261 , L275-L276. Mitigation measures such as adjusting the timing or volume of pumping appear facially feasible to reduce the possibly siEnificant seasonal impact on streams, and others such as siting (location) of the g pumping wells appears dependent upon final project design and location of structures and of other infrastructure unrelated to the groundwater pumping. [4R0777-0779J. The couft fufther accepts COUNTY's representation that additional and more specific discussion and evaluation of the groundwater water supply alternative mitigation measures will occur at a later stage of project approval.)
COUNTY'S motion for discharge of the peremptory writ of mandate is therefore denied, as the RREIR does not yet comply with the couÉ's directive to provide a proper, CEQA- compliant evaluation of the groundwater water supply alternative Dated: Septembe, 7 7, ZOIS
o
L. BEEMAN
Judge of the Superior Court

ORDER RE MOTION BY RESPONDENTS COUNTY OF SOLANO AND THE SOLANO COUNTY BOARD OF SUPERVISORS

FOR DISCHARGE OF PEREMPTORY WRTT OF MANDATE

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SOI.ANO
Case No. FCSO36M6

PROOF OF SERVICE
,''I, the undersigned, ceftiff under penalty of perjury that I am a Judicial Assistant of the above-entitled Couft and not a party to the within action and that my work address 580 Texas StreeÇ Fairfield, CA 94533.

On I serued the following document in the following manner:
"ORDER RE N RESPONDENTS COUNTY OF SOljNO AND THE SOI.ANO COUNTY

OF SUPERVISORS FOR DISCHARGE OF PERMPTORY WRIT OF MANDATE' Via first-class mail addressed as follows:

I

DANA DEAN ESQ

LAW OFFICES OF DANA DEAN
283 EAST H STREET
BENICIA CA 94510

DONALD B MOONEY ESQ

LAW OFFICE OF DONAL B MOONEY
T29 C STREET STE 2
DAVIS CA 95616

AMBER L KEMBLE ESQ
I.AW OFFICE OF AMBER L KEMBLE
4160 SUISUN VALLEY ROAD STEÊ444
FAIRFIELD CA 94534

LEE AXELRAD DCC

OFFICE OF COUNTY COUNSEL

COUNTY OF SOLANO
675 TEXAS STREET STE 6600
FAIRFIELD CA 94533

AMANDA J MONCHAMP ESQ
HOLI.AND & KNIGHT.LLP
50 CAUFORNIA STREET STE 28OO
SAN FRANCISCO CA 94LL1
I am famjliar with the Solano County Court's procedure for collection and processing of correspondence for mailing with the United States Postal Seruice. This document will be deposited with the United States Postal Seruice on the same day as the execution of this document in the ordinary course of business. This document was sealed and placed for collection and mailing on the same day as the execution of this document at the address given for the deposit in the United State Postal Seruice and following ordinary business practice-.

Dated:Clerk of Couft
By:

Dori J.
14 ORDER RE MOTION BY RESPONDENTS COUNTY OF SOLANO AND THE SOLANO COUNTY BOARD OF SUPERVISORS

FOR DISCHARGE OF PEREMPTORY WRIT OF MANDATE

Attachment 5

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28 ;iri j .:ljl I l. r:li S' f i

SOLANO COUNTRY ORDERLY GROV/TH

COMMITTEE,
Petitioner,
vs.

SUPERIOR COT]RT OF CALIFORNIA

COTJNTY OF'SOLANO
DEPARTMENT TWEL\¡E
*****(
Case No. FC5046724
Consolidated with FCS046739 and
FC5046752
RULING AFTER \ilRIT OF MANDATE

HEARING
Date of Hearing: April24,2017
SOLANO COTINTY and SOLANO COUNTY
BOARD 8F SIJP,E, RVISORS,
Respondents,
WOODCREEK HOMES, INC.,
Real Parfy in Interest,

ROCKVILLE HOMEOWNERS

ASSOCIATION,
Petitioner,
vs.

SOLANO COUNTY and SOLANO COUNTY

BOARD OF SUPERVISORS,
Respondents,
WOODCREEK HOMES, [NC.,
Real Par.ty in Interest,
Ruling After lVrit of Mandate Hearing

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28 UPPER GREEN VALLEY HOMEOWNERS,
Petitioner,
vs.

SOLANO COUNTY and SOLANO COLINTY

BOARD OF SUPERVISORS,
Respondents,
WOODCREEK HOMES,INC.,
Real Party in Interest,
The above-entitled consolidated matters came on for hearing of the Writ of Mandate Apnl24,2017 before the Honorable Christine A. Carringer. Petitioners were represented Heather Minner and Allison Johnson (SOLANO COUNTY ORDERLY GRO COMMITTEE), Amber Kemble and Dana Dean (UPPER GREEN VALLEY HOMEOWNERS and Donald B. Mooney (ROCKVILLE HOMEOWNERS ASSOCIATION), Attorneys at Law Respondents SOLANO COUNTY and SOLANO COUNTY BOARD OF SUPERVISORS represented by James Laugtrlin, County Counsel. Real Party in Interest, HOMES, INC., was represented by Amanda Monchamp, Joey Meldrum and Rob Attorneys at Law. The Court heard the argument of counsel and the matter was submitted decision. Now, therefore, based upon the pleadings and records on file and good cause, Court rules as follows:

The writ will be granted in part, and denied in part.

The petition for writ raised four specific challenges to COIINTY's approval of the for this project: (1) inadequate water supply analysis; (2) inadequate sewer system analysis; (3 inadequate evaluation of project alternatives, resulting from inadequate project and/or identification of improperly narrow objectives; and (a) failure to confirm the project consistent with certain requirements contained in the General Plan and the Climate Action Plan.

To the extent the project may have becn inadequately described and/or too narrowl defined, the court finds that the EIR nevertheless included and evaluated a reasoúable range 2 Ruling After Writ of Mandate Hearing

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28 project alternatives, including a reduced scope of project altemative. Høbitat & Caretakers v. City of Sønta Cruz (2013) 213 Cal.App.4ú 1277,1299 f"aclearly written of objectives will help the lead agency develop a reasonable range of alternatives to evaluate the EIR and will aid the decisionmakers in preparing findings"l.

The court further finds sufficient evidence to support the EIR's finding that that reduced scope of project alternative, from 66 homes to 18, was economically Sustainability, Parlcs, Recycling & Wildlife Legøl Defense Fund v. San Francisco Conservation & Development Com. (2014) 226 Cal.App.4ú 905 ("\Øawldgf'). This includes the claim of the applicant, as reported in the EIR [4R0001747, as well as information within the Administrative Record identiffing infrastructure and services co 1AR022824-0228321.

As further evidence that a reasonable range of alternatives was appropriately the court notes that the scope of project was reduced, from the originally proposed 66 homes, the approved project of 60 homes.

As to another issue, there is no requirement that an EIR afürmatively confirm of the project with each and every requirement identified within the General Plan and Action Plan. Instead, only inconsistencies need be mentioned and discussed in the EIR.

Valley Lake Assn. v. City of Vìctorville (2016) 248 Cal.App. ú 91, 97. Furthermore, agency's expressed (or implied) determinations regarding the existence (or absence) inconsistencies are accorded great deference. East Sacramento Partnerships for a Livable v. City of Sacramento (2Aß) 5 Cal.App.5th 281, 304-305.

An agency's expressed or implied determination that compliance with state statutes, codes, and./or other regulations applicable to projects in general will ensure compliance of subject project with general plan or similar requirements is therefore entitled to deference, the EIR need not address each such requirement.

The court here finds insufficient showing on the part of Petitioners that compliance existing statutes and regulations applicable to all projects will not ensure compliance with General Plan and Climate Action Plan requirements, and thus finds that COUNTY did J
Ruling After Writ of Mandate Heming

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28 violate its duty to identifu and discuss within the EIR project inconsistencies with the Plan and Climate Action Plan.

The court finds merit in the other challenges raised by the Petitioners: inadeq evaluation of water supply and of sewer services.

Preliminarily, the court finds that COUNTY is collaterally estopped from disputing Measure L, approved by City of Fairfield voters, makes it legally uncertain that this city provide basic municipal services such as treating and/or supplying water, to projects outside of city iimits. That issue arose and was decided adversely to COUNTY's position UPPER GREEN VALLEY HOMEOWNERS v. COUNTY OF SOLANO, Solano County No. FCS036446.

While Real Party in Interest WOODCREEK HOMES, INC. was not a party to that and is therefore not precluded by collateral estoppel from disputing that Measure L might legally uncertain the proposed water source of SID water treated by the city, the court here that source to be legally uncertain. Vineyard Area Cítizens for Responsible Growth, Inc. v. of Rancho Cordova (2007) 40 Cal.4th 412,432.

The court further finds that while the Water \Mheeling Statutes ['Water Code $$1810 seq.] mandate transport¿tion of water of similar quality by cities with existing water distri systems, they do not mandate the treating of water of inferior quality, such as the SID water identified by this EIR as the sole source of water for this project. Thus, this cannot conclude that Measure L will be held invalid and unenforceable.

Therefore, COUNTY was required to, but did not, identify and analyze within the EIR alternative source of water supply for this project.

As to sewer services, the Fairfield Suisun Sewer District ("FSSD") is precluded by from providing services outside of Fairfield and Suisun city limits, unless in response ooto existing or impending threat to the health or safety of the public or the residents of the territory." Sewer District Act $48 of the Fairfield-Suisun Sewer District Act.

The court here finds that while this exception could apply to remedy threats to residents, it cannot be used to justiff extension of the existing sewer system to accommodate 4 Ruling After Writ of Mandate Hearing

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28 proposed project, which until constructed cannot possibly cause any "existing or threats."
A writ shall therefore issue, to require COLINTY to vacate its approval of the EIR for project, as it did not adequately identiff and evaluate alternatives to the legally uncertain supply of SID water treated by the city of Fairfield, nor the legally uncertain sewer proposed through FFSD.

Petitioners are to prepare the writ and the judgment for issuance, providing them COLINTY and Reai Party in Interest for approval as to form.

Dated: 'l
CHRISTINE A.

Judge of the Superior
5 Ruling After Writ of Mandate Hearing

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28 SUPERIOR COT]RT OF CALIF'ORNIA

COUNTY OF SOLANO

DEPARTMENT TWELVE
*rr***
CaseNo.: FC5046724

CERTIFICATE OF MAILING
I, the undersigned, certiÛ' under penalty of perjury that I am over the age of 18 years; am a judicial assistanldeputy clerk of the above-entitled court, located at 600 Union Fairfield, California, and I am not a party to the within action. At my place of following ordinary business practices, with which I am readily familiar, I placed the named document(s) in a sealed envelope in an area for collection for deposit with the States Postal Service on the date shown below, addressed to the attomeys for the parties, or parties as shown below:

Document Mailed: RULING AFTER WRIT OF MANDATE HEARING
Heather Minner and
Allison A. Johnson
Shute, Mihaly & V/einberger
396 Hayes Street
San Francisco, CA 941,02
Attorneys for P etitioner,
Solano County Orderly Growth Commíttee
Amber Kemble
LAW OFFICE OF AMBER L. KEMBLE
4160 Suisun Valley Road, Suite E-444
Fairfield, CA94534
Attorney þr Petitioner,
Upper Green Valley Homeowners
Dana Dean
Law Offices of Dana Dean
283 E H Sreett
Benicia, CA 94510
Attorney for P etitioner,
Upper Green Valley Homeowners
6 Ruling After Writ of Mandate Hearing

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28 Donald B. Mooney
I29 C Street, Suite 2
Davis, CA 95616
Attorney for P etítioner,
Roclwille Homeowners As s o ciation
James V/. Laughlin
Deputy County Counsel
675 Texas Street, Suite 6600
Fairfield, California 94533
(VIA INTEROFFICE DELIVERÐ
Attorney for Respondents,
Solano County and
Solano County Board of SuperttÌsors
Amanda Monchamp,
Joey Meldrum, and
Rob Taboada
Holland & Knight
50 California Street, Suite 2800
San Francisco, California 94111
Attorneyfor Real Party ìn Interest,
lV'oodcreek Homes, Inc.

Dated: JUL l'E ZrlV
/ Deputy Clerk
Ruling After V/rit of Mandate Hearing

Attachment 6