HomeMy WebLinkAboutMINUTES - 03221994 - 1.19 THE BOARD OF SUPERVISORS
CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on March 22 , , 1994 , by the following vote:
AYES: Supervisors Smith, McPeak, Torlak son and Powers
NOTES: Supervisor Bishop
ABSENT: None
SUBJECT: Settlement of County of Contra Costa v. City of
Pittsburg, C.C .C. Sup. Ct. No . C93-02533
Whereas , it has been proposed that the County, City of
Pittsburg and Real Party in Interest (Contra Costa Waste Service,
Inc . ) settle the above-noted subject litigation as set forth in
the proposed. "Stipulation" and " (Proposed) Peremptory Writ"
documents for action No. C93-02533 on file with this Board' s
Clerk.
Whereas , this Board has reviewed and considered these
documents , Hereby Approves this proposed settlement -and
authorizes the County Counsel to execute the Stipulation for the
County upon appropriate notice of final City and Real Party in
Interest approval and execution of it.
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County Counsel
Risk Mgmt .
I hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: Lj�Q AA
PHIL BATCHELOR,Clerk of thd Board
of Supervisors and County
__Administrator
�
By . ��c' QQ
m� ,Deputy
I WILLIAM E. GAGEN, JR. #043832
MARK L. ARMSTRONG #083179
2 GAGEN, MCCOY, MCMAHON & ARMSTRONG
A Professional Corporation
3 279 Front Street, P.O. Box 218
Danville, California 94526-0218
4 Telephone: (510) 837-0585
Attorneys for Real Party in Interest
5 CONTRA COSTA WASTE SERVICE, INC.
6 MICHAEL R. WOODS #124572
A Professional Corporation
7 City Attorney - City of Pittsburg
18100 Carriger Road
8 Sonoma, CA 95476-4072
Telephone: (707) 996-1776
9 Attorney for Respondents and Defendants .
CITY OF PITTSBURG, et al.
10
`DIANA J. SILVER, Deputy County Counsel #40882
11 VICTOR J. WESTMAN, County Counsel #34044
COUNTY OF CONTRA COSTA
12 651 Pine Street, 9th Floor, North Wing
Martinez, CA 94553
13 Telephone: (510) 646-2054
Attorneys for Petitioner COUNTY OF CONTRA COSTA
14 3
15 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA
16
SIERRA. CLUB, ACME FILL
17 CORPORATION, COUNTY OF CONTRA
COSTA, ,MEADOW CREEK ESTATES, INC.
18 and ALAMEDA County WASTE Case No. C93-02349
MANAGEMENT AUTHORITY, (Consolidated with
19 C93-02533 & C93-02576)
Petitioners/Plaintiffs,
20 STIPULATION FOR ISSUANCE OF
V. PEREMPTORY WRIT OF MANDAMUS
21 BETWEEN PETITIONER COUNTY OF
CITY OF PITTSBURG, PITTSBURG CITY CONTRA COSTA AND RESPONDENTS
22 COUNCIL, PITTSBURG PLANNING AND REAL PARTY IN INTEREST
COMMISSION and DOES 1 through 10, AS TO CASE NO. C93-02533
23
Respondents/Defendants. DATE: April 25, 1994
24 / TIME: 10: 00 a.m.
CONTRA- COSTA WASTE SERVICE, INC. DEPT: 22x
25 and DOES 11 through 20,
26 Real Party in Interest.
Law Offices /
GAGEN, McCOY,
McMAIION &
ARMSMONG
A Professional
Corporation
279 Front Street
Danville, CA 94526
TEL (510)837-0585 is\vo12\c1ient\25792\Stip.c1n
I This stipulation for issuance of a peremptory writ of
2 mandamus ("Stipulation") , executed by counsel of record for the
3 respective parties, is entered into by and between CONTRA COSTA
4 COUNTY ("County") at the direction of the Board of Supervisors,
5 the CITY OF PITTSBURG, a California municipal corporation, CITY
6 COUNCIL OF THE CITY OF PITTSBURG and PLANNING COMMISSION OF THE
7 CITY OF PITTSBURG ("City") at the direction of the City Council,
8 and CONTRA COSTA WASTE SERVICE, INC. a California corporation
9 ("Real Party" or "Contra Costa Waste Service, Inc. ") .
10 BACKGROUND
11 WHEREAS, the City on May 3 , 1993 approved the Contra Costa
12 Station For Materials Recovery and Transfer ("project") to be
13 owned and operated by Contra Costa Station For Materials Recovery
14 and Transfer ("Contra Costa SMRT") , a partnership joint venture
15 between Contra Costa Waste Service, Inc. and Waste Management of
16 California, Inc. ; and
17 WHEREAS, the County filed this action on June 3, 1993
18 alleging certain violations by the City of the California
19 Environmental Quality Act (CEQA) (Public Resources Code § 21000,
20 et sect. ) and the Noise Element of the Pittsburg General Plan in
21 its approval of the project; and
22 WHEREAS, on September 17, 1993 , this action was consolidated
23 with certain other legal actions challenging the City's approval
24 of the project (Sierra Club, et al. v. City of Pittsburg, et al. ,
25 Case No. C93-02349; Meadow Creek Estate, Inc. v. City of
26 Pittsburg, et al. , Case No. C93-02576; and Alameda County Waste
Law Offices
GAGEN, McCOY,
McMAHON &
ARMSTRONG
A Professional
Corporation
279 Front Street _ 2 _
Danville, CA 94526
TEL. (510)837-0585 is\vol2\client\25792\Stip.cln
1 Management Authority v. City of Pittsburg, et al. , Case No. C93-
2 02612) ; and
3 'WHEREAS, Waste Management of California, Inc. sold its
4 interest in Contra Costa SMRT to Contra Costa Waste Service, Inc.
5 in September, 1993, and then was dismissed from the consolidated
6 actions, along with Contra Costa SMRT, pursuant to stipulation
7 and order filed. September 24, 1993, leaving Contra Costa Waste
8 Service, Inc. as the sole Real Party in Interest in this
9 litigation and causing the project to be renamed "The Recycling
10 Center and Transfer Station;" and
11 WHEREAS, pursuant to Stipulation for Entry of Judgment
12 .Between Petitioners Alameda County Waste Management Authority and
13 Respondents and Real Party in Interest and Judgment filed
14 February 9, 1994, Petitioner Alameda County Waste Management -
15 Authority was removed from these consolidated actions and the
16 Authority's requested relief in its petition for writ of mandate
17 was withdrawn; and
18 WHEREAS, Contra Costa Waste Service, Inc. , the County and
19 the City believe that continued litigation over The Recycling
20 Center and Transfer Station in Pittsburg is counterproductive for
21 the parties to the Stipulation and not in the best interests of
22 their constituents and ratepayers; and
23 WHEREAS, to avoid continued litigation between Contra Costa
24 Waste Service, Inc. , the County and the City and to expedite
25 judicial review of the City's compliance with CEQA in its future
26 consideration of The Recycling Center and Transfer Station, Real
Law Offices
GAGEN,McCOY,
WMAHON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 3 _
Danville, CA 94526
TEL. (510)837-0585 is\vol2\client\5792\Stip.cln
I Party is willing to resubmit its application for a use permit and
2 design review approval to construct The Recycling Center and
3 Transfer Station, and the City is prepared as lead agency to
4 suspend the current use permit and design review approvals and
5 require preparation of an environmental impact report ("EIR") and
6 make the findings necessary to meet the requirements of CEQA,
7 prior to its determination whether to approve The Recycling
8 Center and Transfer Station project; and
9 WHEREAS, the County is concerned that Real Party and the
10 City have not considered Keller Canyon landfill for disposal of
11 residual solid waste from The Recycling Center and Transfer
12 Station, and the resubmitted application and the EIR will
13 identify Keller Canyon as a potential disposal site which may
14 receive residual solid waste transferred from this facility;. 'and
15 WHEREAS, to achieve its goal to provide the best garbage
16 service rates for all of its ratepayers, Contra Costa Waste
17 Service, Inc. is prepared to discuss directly with corporate
18 officials at Browning Ferris Industries and/or County officials
19 what rate might be offered at Keller Canyon for disposal of
20 residual solid waste from The Recycling Center and Transfer
21 Station; and
22 WHEREAS, the parties to this Stipulation believe that
23 completion of a transfer station facility in East County at the
24 earliest reasonable opportunity could be desirable for those
25 communities .that will be served by it, and further believe that
26 protracted litigation over The Recycling Center and Transfer
Law Offices
GAGM McCOY,
McMAHON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 4
Danville, CA 94526
TEL. (510)837-0585 is\vol2\client\25792\Stip.cln
1 Station will serve only to delay the operation of an East County
2 transfer station and related facilities and drive up their costs,
3 thereby adversely affecting the ratepayers intended to be served
4 (the parties recognize that a decision by Delta Diablo Sanitary
5 District on the implementation of the East County Community
6 Collection Center, which would involve the expenditure of
7 millions of dollars of public funds to implement, is likely being
8 delayed pending a final determination on whether The Recycling
9 Center and Transfer Station may be constructed) ; and
10 WHEREAS, the parties to this Stipulation believe that, if
11 undertaken, the completion and certification of an EIR that meets
12 the requirements of CEQA at the earliest reasonable opportunity
13 is a benefit to the ratepayers, and that the parties should try
14 to reasonably expedite the administrative and judicial review of
15 The Recycling Center and Transfer Station project, consistent
16 with Public Resources Code Section 21003 (f) ; and
17 WHEREAS, the parties to this Stipulation believe that
18 judicial review of the City's actions on The Recycling Center and
19 Transfer Station project will likely be expedited if Judge R.
20 Donald Chapman retains jurisdiction over this litigation, pending
21 the City's completion and certification of an EIR adoption of
22 CEQA and other findings, and decisions on the project, due to his
23 familiarity with the facts and circumstances concerning the
24 project and his special assignment to the case. ; and
25 WHEREAS, the Board of Supervisors is prepared to direct
26 County staff to take all necessary and appropriate steps to
Law Offices
GAGEN, McCOY,
McMAIION &
ARMSTRONG
A Professional
Corporation
279 Front Street _ 5 _
Danville, CA 94526
TEL. (510)837-0585 is\vol2\client\25792\Stip.cin
1 support: the EIR completion adoption of CEQA findings and the
2 application process, toward the goal that the County can support
3 timely certification of a final EIR, adoption of CEQA findings,
4 and project approvals by the City.
5 NOW, THEREFORE, the parties, through their counsel of
6 record, stipulate as follows:
7 1. Applications for a new use permit and design review
8 approval for The Recycling Center and Transfer Station will be
9 filed in the next thirty (30) days (or as soon thereafter as
10 reasonably possible) by Contra Costa Waste Service, Inc. The
11 City will require an EIR to be prepared and certified prior to
12 its consideration of the approval of The Recycling Center and
13 Transfer Station project. The preliminary injunction issued by
14 Judge Chapman will remain in effect, until he has accepted the
15 return by the City on the peremptory writ of mandamus or unless
16 otherwise modified by Judge Chapman. The previously approved
17 land use permit and design review shall be suspended consistent
18 with subdivision (a) (2) of Public Resource Code Section 21168.9.
19 Construction and operations at The Recycling Center and Transfer
20 Station shall only take place after a new land use permit and
21 design review application have been approved and the court is
22 satisfied with the return on the writ.
23 2. . (a) The EIR by the City will address issues raised in
24 the County's opening brief in support of petition for writ of
25 mandate: e.g. , traffic impacts, noise impacts and consistency
26 with t:he Noise Element of the Pittsburg General Plan, use of
Law Offices
GAGUN, McCOY,
McMA11ON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 6
Danville, CA CA 94526
TEL (510)837-0585 is\vol2\client\5792\Stip.cin
1 energy, disposal of household hazardous wastes, and construction
2 and operation of the facility while toxics remediation work is
3 being undertaken at the site. In that regard, for example, the
4 EIR for The Recycling Center and Transfer Station will include
5 the following:
6 (i) An analysis of any significant traffic
7 impacts (including self-haulers) in the immediate vicinity of The
8 Recycling Center and Transfer Station and cumulatively on the
9 transportation systems within the County of Contra Costa and
10 surrounding jurisdictions, which will include, but not be limited
11 to:
12 (1) Surveys on weekdays and weekends on
13 similar transfer stations;
14 (2) Revised vehicle miles traveled (VMT)
15 analysis between the proposed project and the various points of
16 solid waste origin and between the facility and any identified
17 potential disposal sites;
18 (3) Use of passenger car equivalents for
19 existing, project, and cumulative traffic condition analysis;
20 (4) An analysis of any significant truck
21 traffic impacts on Highway 4 and on all roadway segments to and
22 from the identified potential disposal sites caused by the
23 proposed project.
24 (ii) Any significant noise impacts caused by The
25 Recycling Center and Transfer Station, including offsite traffic
26 noise impacts from vehicles utilizing the facility;
Law Offices
GAGE N, McCOY,
McMAIION &
ARMSTRONG
A Professional
Corporation
279 Front Street _ 7 _
Danville, CA 94526
TEL (510)837-0585 is\vol2\client\25792\Stip.cln
I (iii) Any significant impacts associated with the
2 handling of hazardous wastes and materials at The Recycling
3 Center and Transfer Station;
4 • (iv) The relationship of the project to the
5 adopted Contra Costa County Integrated Waste Management Plan,
6 including, but not limited to:
7 (1) Responsibilities of public entities
8 within Contra Costa County under the California Integrated Waste
9 Management Act,
10 (2) An analysis of any significant
11 environmental impacts The Recycling Center and Transfer Station
12 will have on other nondisposal solid waste facilities and solid
13 waste disposal facilities within the County.
14 (b) The foregoing descriptions are not intended to
15 limit the scope of the EIR.
16 (c) Nothing in this Stipulation shall limit or control
17 in any, way the discretion legally vested in the City of
18 Pittsburg.
19 3 . The Board of Supervisors directs County staff to take
20 all necessary and appropriate steps to support the City's EIR
21 completion and the application process for The Recycling Center
22 and Transfer Station, toward the goal that the County can support
23 certification of the EIR, adopted CEQA findings and project
24 approvals by the City. Toward that end and in this regard, the
25 Board assigns Valentin Alexeeff, Director of Growth Management
26 and Economic Development Agency for Contra Costa County, to be
Law Offices
GAGEN, McCOY,
WMAIION &
ARMSTRONG
rofessi
A Ponal
Corporation
279 Front Street — 8 _
Danville, CA 94526
TEL. (510)837-0585 is\vol2\clieint\25792\Stip.cln
1 responsible for communication with City officials and Contra
2 Costa Waste Service, Inc. and to otherwise direct any review of
3 the EIR by the County.
4 4. Keller Canyon and Potrero Hills (both of which are
5 currently used by the Garaventa companies) will be identified in
6 the use permit application as potential disposal sites, either or
7 both of which may receive residual solid waste transferred from
8 The Recycling Center and. Transfer Station. Other sites may be
9 identified by the City and/or Contra Costa Waste Service, Inc. in
10 the EIR (or subsequently with appropriate environmental review) .
11 5. Contra Costa Waste Service, Inc. and the other
12 Garaventa companies want to provide the best garbage service
13 rates for all of their ratepayers, consistent with applicable
14 standards and regulations. The County and the City want to
15 provide the same for ratepayers within their respective
16 jurisdictions. Toward that end, Contra Costa Waste Service,
17 Inc. , if requested, is prepared to discuss directly with
18 corporate officials at Browning Ferris Industries and/or County
19 officials what rate might be offered at Keller Canyon for
20 disposal of residual solid waste from The Recycling Center and
21 Transfer Station.
22 6G. In order to expedite judicial review of any decisions
23 by the City to certify the EIR for The Recycling Center and
24 Transfer Station and approve the project, so as to provide for
25 the completion and operation of a transfer station facility in
26 East County at the earliest reasonable opportunity for the
Law Offices
GAGEN, McCOY,
McMA11ON &
ARMSTRONG
A Professional
Corporation
279 Front Street _ 9 _
Danville, CA 94526
TEL (510)837-0585 is\vol2\client\25792\Stip.cln
1 benefit of and to reduce costs that may ultimately be borne by
2 ratepayers, counsel for the County, City and Contra Costa Waste
3 Service, Inc. by this Stipulation jointly request Judge Chapman
4 to provide in his peremptory writ of mandamus that he will retain
5 jurisdiction for the purpose of reviewing any challenges by
6 Petitioners to the City's preparation and certification of the
7 EIR for The Recycling Center and Transfer Station, adoption of
8 required CEQA and other findings, and approvals of the project by
9 the City. By this Stipulation, the County, City and Contra Costa
10 Waste Service, Inc. jointly request that Judge Chapman provide in
11 the peremptory writ that, upon notification of any objections to
12 the legal adequacy of the EIR certified by the City, adopted
13 findings, or approvals by the City with respect to The Recycling
14 Center, and Transfer Station project, the court will establish a
15 schedule to file the additional administrative record and briefs
16 and will set a hearing to review the legal adequacy of those
17 determinations by the City. Only after a determination by the
18 court that the return on the peremptory writ has been satisfied
19 will the City allow construction or operation of the facility by
20 Contra Costa Waste Service, Inc. The preliminary injunction will
21 remain in effect through the pendency of that review by Judge
22 Chapman, unless otherwise ordered by the court.
23 7. Consistent with the foregoing and by this Stipulation,
24 the County, City and Contra Costa Waste Service, Inc. shall
25 jointly request that Judge Chapman sign the attached [Proposed]
26 Peremptory Writ of Mandamus and Judgment in the consolidated
Law Offices
GAGEN, McCOY,
McMAHON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 10 —
Danville, CA 94526
TEL (510)837-0585 is\vol2\client\25792\Stip.cln
1 actions challenging the approval of The Recycling Center and
2 Transfer Station and the adequacy of its environmental review by
3 mitigated negative declaration. The form and content of the writ
4 and judgment to be submitted to the court may be modified by the
5 parties to this Stipulation following further input from the
6 other petitioners.
7 8. If Judge Chapman does not retain jurisdiction, this
8 Stipulation will otherwise remain in effect, except for the
9 provision to continue the preliminary injunction, and the County
to will dismiss its lawsuit without prejudice.
11 9. The County will not appeal Judge Chapman's judgment to
12 deny its causes of action challenging Respondent's adoption of
13 amendments to the City's zoning ordinance and general plan for
14 The Recycling Center and Transfer Station.
15 10. Each of the attorneys executing this Stipulation
16 expressly represents and warrants that he or :she has the
17 authority to execute it on behalf of his or her principal.
18 11. Both sides in this litigation shall be responsible for
19 their :respective attorneys' fees and costs.
20 IN WITNESS WHEREOF, counsel for the parties hereto have
21 executed this Stipulation. It shall be effective upon the date
22 last executed.
23 Dated: VICTOR J. WESTMAN, County Counsel
DIANA J. SILVER, Deputy County Counsel
24 COUNTY OF CONTRA COSTA
25 By:
VICTOR J. WESTMAN, Attorneys for
26 Petitioner COUNTY OF CONTRA COSTA
Law Offices
GAGEN, McCOY,
McMA11ON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 11
Danville, CA 94526
TEL. (510)837-0585 is\vol2\clienu\25792\Stip.cln
• 1
Dated: MICHAEL R. WOODS, City Attorney
2, CITY OF PITTSBURG
3
By:
4 MICHAEL R. WOODS, Attorney for
Respondents and Defendants
5 CITY OF PITTSBURG, et al.
6
Dated: GAGEN, McCOY, McMAHON & ARMSTRONG
7
8
By:
9 MARK L. ARMSTRONG, Attorneys for
Real Party in Interest,
10 CONTRA COSTA WASTE SERVICE, INC.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Law Offices
GAGM McCOY,
McMA11ON &
ARMSTRONG
A Professional
Corporation
279 Front Street _ 12 _
Danville, CA 94526
TEL. (510)837-0585 is\vol2\client\25792\Stip.cln
I WILLIAM E. GAGEN, JR. #043832
MARK L. ARMSTRONG #083179
2 GAGEN, McCOY, McMAHON &ARMSTRONG
A Professional Corporation
3 279 Front Street, P.O. Box 218
Danville, California 94526-0218
4 Telephone: (510) 837-0585
Attorneys for Real Party in Interest
5 CONTRA COSTA WASTE SERVICE, INC.
6 MICHAEL R. WOODS #124572
A Professional Corporation
7 City Attorney - City of Pittsburg
18100 Carriger Road
8 Sonoma, CA 95476-4072
Telephone: (707) 996-1776
9
J. WILLIAM YEATES #084343 •
10 MICHAEL H. REMY .#048532
REMY & THOMAS
11 629 J Street, 4th Floor
Sacramento, CA 95814
12 Telephone: (916) 443-2745
Attorney for Respondents and Defendants
13 CITY OF .PITTSBURG, et al.
14
SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA .
15
SIERRA.' CLUB, ACME FILL
16 CORPORATION, COUNTY .OF CONTRA
COSTA, MEADOW CREEK ESTATES, INC.
17 and ALAMEDA COUNTY WASTE Case No. C93-02349
MANAGEMENT AUTHORITY, (Consolidated with
18 C93-02533 & C93-02576)
Petitioners/Plaintiffs,
19
V. [Proposed] PEREMPTORY WRIT
20 OF MANDAMUS
CITY OF PITTSBURG, PITTSBURG CITY AND JUDGMENT
21 COUNCIL, PITTSBURG PLANNING
COMMISSION and DOES 1 through 10, TRIAL DATE: April 25, 1994
22 TIME: 10:00 a.m.
Respondents/Defendants. DEPT: 22x
23 /
CONTRA. COSTA WASTE SERVICE, INC.
24 and DOES 11 through 20,
25 Real Party in Interest.
/
26
Law Offices
GAGEN, McCOY,
McMAHON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 1
Danville, CA 94526
TEL. (510)837-0585 i:\vol2\client\25792\PEREM.cln
1
Respondents City OF PITTSBURG ("City") , et al, Real Party in
2
Interest CONTRA COSTA WASTE SERVICE, INC. ("Real Party" or
3
"Contra Costa Waste Service, Inc. ") and Petitioner CONTRA COSTA
4
COUNTY ("County") have entered into a Stipulation, whereby Real
5
Party will resubmit its applications for a use permit and design
6
review approval to construct The Recycling Center and Transfer
7
Station, and the City will prepare and certify an environmental
8
impact report (EIR) and make the necessary findings to meet the
9
requirements of the California Quality Act (CEQA) before
10
determining whether to approve The Recycling Center and Transfer
11
Station project.
12
The City, the County, and Contra Costa Waste Service, Inc.
13
in their Stipulation expressed a desire to expedite any necessary
14
judicial review of the certification of such an EIR, the adoption
15
of any required CEQA and other findings, and any decisions made
16
by the City to approve The Recycling Center and Transfer Station
17
project. In order to expedite judicial review and given this
18
court's familiarity with the nature and circumstances of the
19
project and the environmental and waste disposal policy issues
20
involved, obtained through its site inspections, review of the
21
pleadings on the preliminary injunction, and the hearing on the
22
preliminary injunction, and the fact that the court has already
23
been specially assigned by the Judicial Council as the judge for
24
this matter, the City, the County, and Contra Costa Waste
25
Service, Inc. have requested that this court retain jurisdiction
26
Law Offices over -the City' s proceedings, until it is satisfied that the
GAGEN, McCOY,
McMA11ON &
ARMSTRONG
A Professional
Corporation
279 Front Street _ 2 _
Danville, CA 94526
TEL. (510)837-0585 is\vol2\client\25792\PEREM.cIn
1 City's decisions on The Recycling Center and Transfer Station
2 project are consistent with the law.
3 Such authority to retain jurisdiction is provided for in
4 Public Resources Code Section 21168.9 (b) . The request has been
5 made in order to provide for expeditious judicial review by a
6 judge familiar with the facts and circumstances of this matter,
7 in the event there are continued legal challenges by Petitioners
8 to the City's certification of an EIR, adoption of required CEQA
9 and other findings for the project and its decisions to approve
10 the project. Such early review is encouraged by Public Resources
11 Code Section 21003 (f) .
12 The City and Real Party have stipulated to continue the
13 preliminary injunction pending the filing of a return on the
14 peremptory writ and, if necessary, this court's review of the
15 EIR, required findings, and the City's approvals for legal
16 adequacy.
17 This peremptory writ and judgment has been submitted to
18 counsel for the other petitioners for their review and input as
19 to form and content. The peremptory writ requested by the City,
20 Real Party and the County, consistent with their Stipulation,
21 essentially provides the other petitioners in these consolidated-
22 actions with the relief requested' in their petitions (not
23 including the causes of action challenging the City' s approval of
24 amendments to the zoning ordinance and general plan, which have
25 already been decided by this court through summary adjudication) .
.26
Law Offices .
GAGEN, McCOY,
McMAI[ON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 3 _
Danville, CA 94526
TEL (510)837-0585 is\vol2\cli<:nt\25792\PEREM.cln
I THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
2 1. A peremptory writ of mandamus shall issue from the
3 court, remanding the proceedings to Respondents City of
4 Pittsburg, et al. Consistent with the Stipulation between
5 Respondents City of Pittsburg, et al. , Real Party In Interest and
6 Petitioner Contra Costa County, upon resubmittal by Real Party of
7 applications for a use permit and design review approval of The
8 Recycling Center and Transfer Station project, Respondents shall
9 prepare and certify an EIR for The Recycling Center and Transfer
10 Station and make findings necessary to meet the requirements of
11 CEQA, prior to determining whether to approve the project. The
12 previously approved land use permit and design review shall be
13 suspended consistent with subdivision (a) (2) of Public Resource
14 Code Section 21168.9. Construction and operations at The
15 Recycling Center and Transfer Station shall only take place after
16 a new land use permit and design review application have been
17 approved and the court is satisfied with the City's return on the
18 writ.
19 ;2. Consistent with subdivision (b) of Section 21168. 9 of
20 the Public Resources Code, this court shall retain jurisdiction
21 over Respondents' proceedings commanded by this peremptory writ
22 of mandamus, by way of the return on the peremptory writ.
23 3 . Upon the certification of the EIR, adoption of CEQA and
24 other findings, and any decisions to approve The Recycling Center
25 and Transfer Station project having been made by the City, and
26 the filing of a notice of determination, (or withdrawal of the
Law Offices
GAGEN, McCOY,
McMAIION &
ARMSTRONG
A Professional
Corporation
279 Front Street _ 4
Danville, CA 94526
TEL (510)837-0585 is\vol2\client\25792\P13REM.cin
1 project by Real Party or its denial by the City) , Respondents and
2 Real Party shall file with this court a return on the peremptory
3 writ of mandamus issued in this action. Nothing in the writ
4 shall limit or control in any way the discretion legally vested
5 in the City of Pittsburg. The return shall identify the
6 determinations made with respect to environmental review and any
7 approvals of The Recycling Center and Transfer Station project.
8 Copies of any certified EIR, CEQA and other findings, and any
9 other approval documents shall be included with the return. The
10 return shall be served by mail on all parties to these
11 consolidated actions.
12 4 . Petitioners will have thirty (30) days from the date of
13 the filing of the return to file with the court any objections to
14 the return on the peremptory writ. If any such objections are
15 filed, then the court will schedule a status conference to
16 establish a schedule for filing of the additional administrative
17 record and briefs and to set a hearing date to consider the legal
18 adequacy of the final EIR, the adopted CEQA and other findings,
19 and the project approvals by Respondents.
20 5. In no event shall a return to this peremptory writ be
21 filed any later than November 15, 1994 (the City anticipates that
22 the administrative process should be completed earlier) . If the
23 CEQA proceedings before the City have not been completed by that
24 time, then Respondents and Real Party may make a request to this
25 court to extend the time to file a return on theperemptory writ
26 and to extend the court' s jurisdiction over the City' s
Law offices
GAGFN, McCOY,
McMA1ION &
ARMMONG
AP rofessional
Corporation
279 Front Street — 5
Danville, CA 94526
TFL. (510)837-0585 is\vol2\clic.nt\5792\PF:RP,M.cin
1 proceedings.
2 6. Pursuant to the Stipulation, prior to the court's
3 acceptance of a return on the peremptory writ, the activities of
4 Respondents and Real Party with respect to The 'Recycling Center
5 and Transfer Station. shall be consistent with the Order Granting
6 Preliminary Injunction and Modifying Briefing Schedule filed
7 February 23, 1994.
8 7. . Filing of this peremptory writ of mandamus shall
9 constitute its issuance to Respondents. This peremptory writ of
to mandamus shall not constitute a judgment as to the causes of
11 action challenging Respondents' approval of the quasi-judicial
12 land use permit and design review for The Recycling Center and
13 Transfer Station and jurisdiction shall be retained by this court
14 over such quasi-judicial proceedings. A judgment on Petitioners'
15 causes of action alleging inconsistency with the City's Noise
16 Element shall be deferred for a decision by the court, if
17 required, at the. same time any CEQA objection to the City's
18 return. on the Writ are considered.
19 8 . Consistent with the order filed February 4, 1994., as
20 to the causes of action challenging Respondents' adoption of
21 amendments to the zoning ordinance and general plan for The
22 Recycling Center and Transfer Station, the consolidated petitions
23 for writ of mandate are denied. , Final judgment is hereby entered
24 in favor of Respondents and Real Party in Interest and against
25 Petitioners on the causes of actions challenging the City's
26 compliance with CEQA in making those two legislative decisions.
Law Offices
GAGEN, McCOY,
McMAHON &
ARMSTRONG
A Professional
Corporation
2791 Stieet — 6 —
Danville, CA 94526
TEL. (510)837-0585 is\vo12\c1icnt\25792\PEREM.c1n
1 No peremptory writ of mandamus shall issue as. to those
2 legislative actions of the Pittsburg City Council.
3
4 Dated: March , 1994
R. DONALD CHAPMAN,
5 JUDGE OF THE SUPERIOR COURT
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Law Offices
GAGF.N, McCOY,
WMAHON &
ARMSTRONG
A Professional
Corporation
279 Front Street — 7 —
Danville, CA 94526
TEL. (510)837-0585 is\vol2\client\25792\PERirMxln