city of beverly hills ceqa lawsuit against metro

8/12/2019 City of Beverly Hills CEQA lawsuit against Metro

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Petitioner and Plaintiff, THE CITY OF BEVERLY HILLS, a municipal corporatione'Petitioner ), respectfully petitions this Court requesting relief afforded pursuant to CaliforniaCode of Civil Procedure sections 1094.5, 1085, and 526, alleging as follows.

N TURE OF THE CTION1. Petitioner seeks a writ ofmandate to set aside the April 26, 2012 and May 24,2012

decisions ofRespondent and Defendant Los Angeles County Metropolitan TransportationAuthority ( Metro ) certifying the Final Environmental Impact Statement/Environmental ImpactReport ( Final EISIEIR ) for and approving the Westside Subway Extension Project in LosAngeles ( Westside Subway Extension or Project ). The certification of the Final EISIEIRmust be set aside due to Metro's failure to comply with certain requirements of the CaliforniaEnvironmental Quality Act ( CEQA ), Public Resources Code section 21000, et seq. Petitioneralso seeks injunctive relief to prevent Metro from taking actions in furtherance of the Projectunless and until there is compliance with the mandates of CEQA and to prevent irreparable harmto Petitioner, the public, and the welfare ofmetropolitan Los Angeles, California.

P RTIES2. Petitioner is, and at all times herein mentioned was, a municipal corporation,

formed under and pursuant to the laws of the State ofCalifornia, with its principal place ofbusiness located in the County ofLos Angeles, State ofCalifornia. The alignment of the Proj ectwill extend through Petitioner's municipal boundaries, including, without limitation, underresidences and Beverly Hills High School (the High School ), the only public high schoolserving the city ofBeverly Hills. The High School property is owned by the Beverly Hills UnifiedSchool District's ( School District ). Petitioner supports a Westside Subway Extension that passesthrough Beverly Hills, and recognizes the benefits that the Project will provide for the entire LosAngeles region, including, without limitation, Petitioner's residents. However, those benefits mustnot be obtained as a result ofdecisions that are not supported by substantial evidence, but that arethe result of insufficient, incorrect and conflicting information and a rush to judgment that risks,inter alia the heaJ-th safety and welfare ofPetitioner's residents.

3. Metro was established pursuant to California Public Utilities Code sections[312676 5.DOCI5107.00l] 1

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EISIEIR ) for the Proj ect was released in September 2010.12. The Draft EIS/EIR analyzed a station in Century City on Santa Monica Boulevard

at Avenue of the Stars (the Santa MonicaiAve. Stars Station ) as the preferred (base) station. Inaddition, it analyzed an alternative station on Constellation Boulevard (one block south of SantaMonica Boulevard) between Avenue of the Stars and Century Park East (the ConstellationStation ); however, as an alternative, this station location was analyzed to a lesser degree than wasthe preferred station location on Santa Monica Boulevard. The tunneling alignment for the SantaMonicalAve. Stars Station extended under Wilshire Boulevard and then turned west along SantaMonica Boulevard without tunneling under residential properties. y the tunnelingalignment for the Constellation Station turned south from Wilshire Boulevard after theWilshire/Rodeo station and extended underneath residential properties and the High School, andthen underneath Constellation Boulevard. The route associated with the Constellation Station wasdetennined in the Draft EISIEIR (at 7-12), and later in the Final EIS/EIR (at 7-13), to be slightlylonger and therefore more expensive than the route associated with the Santa MonicalAve. StarsStation.

13. Petitioner, the School District and many concerned Beverly Hills citizens andparents commented on the Draft EISIEIR and the Project's many adverse environmental impactson Beverly Hills, its citizens, businesses, homes, schools and students, and voiced their particularconcerns that the potential impacts of tunneling under homes and the High School between theWilshirelRodeo station and the Constellation Station had not been adequately identified oranalyzed.

14. On October 28, 2010, Metro designated Alternative 2 from the Draft EIS/EIR, theWestwoodNA Hospital Extension, to be the Locally Preferred Alternative ( LP A ) for furtherevaluation in the Final EISIEIR. Under the LP A, the Project would extend from theWilshirelWestern station to the WilshirelRodeo station, then south to the Century City station,then north to the Westwood/UCLA station, and finally west to the WestwoodNA Hospital station.During that same meeting, however, Metro publicly committed to analyze the impacts of thepreferred and alternative Century City stations and the alignments associated with them, and, in[312676 5 DOC/5107 001]

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1 particular, to analyze in depth the potential impacts of tunneling under the High School and2 consider alternatives that would avoid tunneling under the High School altogether.3 15. The Final EIS/EIR was prepared and released in March 2012. (The Draft EISIEIR4 and Final EIS/EIR are referred to collectively as the EIS/EIR. )567

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16 The Final EIS/EIR disclosed that substantial changes had been made to the designof the Project after the release ofthe Draft EIS/EIR on which the public, including, withoutlimitation, Petitioner, has not had an adequate opportunity to comment as required by CEQA,including, inter alia in the following material respects:

1 The preferred Century City station was changed from the SantaMonica/Ave. Stars Station identified in the Draft EIS/EIR to a stationlocated at Santa Monica Boulevard and Century Park East (the SantaMonica/CPE Station ). This change was based, in part, on four new studiesprepared for Metro after the Board's October 28 2010 meeting ( MetroSubsequent Studies ). Although the Metro Subsequent Studies did notinclude data based on sufficient geotechnical testing, Metro used them toconclude that the preferred Santa Monica/Ave. Stars Station was exposed togreat seismic risk from the Santa Monica Fault, and should be removedfrom the Project and replaced with the Santa Monica/CPE Station.

2. Although the Final EIS/EIR identified the Santa Monica/CPE Station, ratherthan the Santa Monica/Ave. Stars Station, as the preferred station to avoidthis seismic risk, the Final EIS/EIR then concluded that this preferred SantaMonica/CPE Station was also infeasible because it was also exposed togreat seismic risk from the Western Beverly Hills Lineament, purported tobe associated with the active Newport-Inglewood Fault located south ofCentury City. (Final EIS/EIR at 4-179.) Incredibly, this conclusion waspurportedly based on the same Metro Subsequent Studies. Thus, Metroused the Metro Subsequent Studies to identify and then to reject analternative station location as infeasible without proposing any feasible

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on noise, public safety and emergency response times.5 The Final EISIEIR changed the mitigation for paleontological resources

impacts to include the possibility ofusing cut and cover construction moreextensively, including raised decking with a grade separation, withoutdisclosing the potential severity of the grade separation and failed toanalyze the impacts of the grade separation (Final EISIEIR at 4-323,Appendix E at E-14).

6 The Final EISIEIR changed the Project to include the potential to build theentire Project in one phase over a ten-year period, rather than in threephases over a period of ten to fifteen years as the Draft EISIEIR assumed.

7 The Final EIS/EIR contained other changes in construction techniques andchanges in station configuration as compared to the Project defined in theDraft EISIEIR that will result in new and greater significant impacts thanthose disclosed in the Draft EISIEIR, which have not been properlyidentified, disclosed, analyzed or mitigated in the Final EIS/EIR orsubjected to public comment, as required by CEQA.

17. In addition, the Final EISIEIR contained substantial new information and analysesnot included in the Draft EIS/EIR on which the public, including, without limitation, Petitioner,has not had an adequate opportunity to comment, as required y CEQA. Metro relied thesubstantial new information in the Final EISIEIR, including, without limitation, the MetroSubsequent Studies, that had not been included in the Draft EIS/EIR in making the changes to theProject alleged above, and other changes and purported refmements to the Project (FinalEISIEIR, 2.6.)

18. After the release of the Final EIS/EIR, Petitioner, as well as the School District andnumerous concerned Beverly Hills residents and parents, commented that, as proposed in the FinalEIS/EIR, the Project will create severe construction impacts and impose great risk to human healthand safety, which impacts were not adequately disclosed, analyzed, or mitigated in the FinalEISIEIR. Petitioner and these commenters also commented that the Final EIS/EIR's many[312676 S.DOC/S107.00IJ 7

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1 substantial changes to the Project and the substantial new infonnation added after the Draft2 ElSIEIR was circulated, including, without limitation, regarding the Project s components and its3 construction impacts and their level of their significance, required Metro to revise and recirculate4 the Final EIS EIR for public comment prior to certifying the Final EISIEIR and approving the5 Project.6 19. Despite repeated requests from Petitioner and others, and in violation ofCEQA,7 Metro refused to revise the Final EIS/EIR to analyze the new and increased impacts resulting from8 these changes and the new infonnation in the Final EISIEIR, and include mitigation measures to9 address these impacts, and recirculate the Final EISIEIR to provide the public an opportunity to

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20. Moreover, substantial new and critically important technical and scientificinformation regarding the Project s impacts, the conclusions in the Draft EISIEIR and FinalEIS/EIR and concerns raised in public comments on those documents was never even included inthe Final EIS/EIR. Petitioner and the School District responded to the substantial new informationthat was included in the Final EIS/EIR by submitting to Metro scientific investigations and experttechnical reports, all ofwhich demonstrated, inter alia that (1) the Metro Subsequent Studies werenot based on sufficient technical or scientific investigation to enable them to conclude that theSanta Monica Fault Zone and the West Beverly Hills Lineament were active fault zones, (2) Metrohad failed to study the potential methane gas hazard associated with the Constellation Station, and(3) the potential methane gas hazard associated with the Constellation Station posed at least asgreat a hazard to the public as the faulting hazard posed by locating a stat ion under Santa MonicaBoulevard. Metro submitted expert technical reports in reply to those submitted by Petitioner andthe School District. However, none of he reports submitted by Petitioner or the School District toMetro nd none ofMetro IS reports prep red in reply were included in the Final EISIEIR orotherwise made available t the public for review nd comment.

21. In addition, as alleged in detail below, both the Draft EISIEIR and the FinalEIS/EIR further violate CEQA by failing to describe the existing setting for the Project, and todisclose and identify the Project s impacts and feasible and enforceable mitigation measures to

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avoid or reduce the Project's potentially significant impacts, to analyze a reasonable range offeasible alternatives, and acknowledge the Project's significant and unavoidable impacts.

22. Rather than comply with its obligations under CEQA to revise and recirculate theFinal EIR to include the missing analyses, revised analyses, and new and revised mitigationmeasures and alternatives that CEQA requires, Metro rushed to certify the Final EISIEIR andapprove the Project.

23. Instead of revising and recirculating the Final EISIEIR as required by CEQA,Metro scheduled a public hearing for April 26, 2012, announcing that it would at that time takepublic testimony on the Project and consider certification of the Final EIS/EIR and approval of theProject.

24. On April 23, 2012, Petitioner submitted a written request to Metro for a hearingpursuant to Public Utilities Code section 30639 regarding Metro's proposal, as part of the Project,to locate a subway station facility a t Constellation Boulevard in Century City, and the proposal tofix the location of the related subway tunnel alignment underneath the High School.

25. On April 26, 2012, despite Petitioner's request for a hearing pursuant to PublicUtilities Code section 30639, Metro held its previously noticed public hearing. At that hearing,Metro took extensive public testimony, including, without limitation, testimony fromrepresentatives of Petitioner and residents of Beverly Hills opposed to the alignment of the Projectunderneath the High School. At the conclusion of the hearing, Metro certified the Final EIS/EIRfor the Project, but approved only Phase 1 of the Project, which extends the Purple Line heavy railsubway 3.8 miles from its current terminus at the Wilshire/Western station to the plannedWilshire/La Cienega station. In addition, Metro authorized its Chief Executive Officer to file aNotice of Determination with the Los Angeles County Clerk and State of CaliforniaClearinghouse. Finally, Metro adopted Findings of Fact and Statement of OverridingConsiderations, and a Mitigation Monitoring and Reporting Plan.

26. After its April 26, 2012, public hearing, Metro filed a Notice of Determination withthe County Clerk's office for its certification of the Final EIS/EIR and approval of Phase 1 of theProject. The County Clerk's office posted the Notice of Determination on April 30, 2012.[3 2676 S DOC/SI07 00l] 9FIRST AMENDED PETITION ORWRIT OF MANDATE AND COMPLAINT


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27. On or about May 3, 2012, Petitioner received notice that Metro had granted itsrequest for a hearing under Public Utilities Code section 30639, and had set the hearing for May17,2012, without having consulted Petitioner and without a meeting or action by Metro'sgoverning board, as required by statute. On May 10, 2012, Petitioner delivered a written requestto Metro to continue the hearing to May 21, as Petitioner's two primary experts, Drs. Roy Shlemonand Piotr Moncarz, were both unavailable to testify on May 17 due to previously scheduled andunalterable professional commitments. On May 11,2012, Metro's counsel denied Petitioner'srequest, stating that any later hearing date would prevent Metro from holding its May 24 2012hearing fixing the Century City station on Constellation Boulevard and the related subwayalignment beneath the High School.

28. Metro purported to hold the hearing required pursuant to Public Utilities Codesection 30639 for approximately three hours on May 17 2012 ( May 17 Hearing ). However, theMay 17 Hearing was a sham as a result of the procedural defects in the hearing, as follows:

1. As alleged above, Metro improperly set the May 17 Hearing and then providedimproper notice of the May 17 Hearing to Petitioner and had improperly refused togrant Petitioner's request for a brief continuance, specifically because Metro wouldthen not have enough time after the hearing to approve Phases 2 and 3 of theProject at its May 24 2012 meeting, irrespective of the evidence presented at theMay 17 Hearing.

2. Because Metro had improperly denied Petitioner's request for a continuance,Petitioner was deprived of its right to present the testimony of Drs. Shlemon andMoncarz in person, and the testimony of Dr. Moncarz at all.

3. Metro improperly noticed the May 17 Hearing on the internet, rather than bypublication in an adjudicated newspaper of general circulation as required bystatute.

4. A quorum of the Metro Board was not present at all times during the May 17Hearing.

29. Despite these procedural defects, at the May 17 Hearing, Petitioner presented

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testimony from six experts, as more specifically alleged below, and offered evidencedemonstrating that at least three alternative alignments between the WilshirelRodeo station and theConstellation Station were feasible that did not extend under residential homes or the High School(collectively, Petitioner's Excluded Evidence ). Metro presented no witnesses, and simplyoffered into evidence the expert reports it had previously submitted.

30. On May 24,2012, after closing the May 17 Hearing, the Metro Board held aspecial meeting, continued from May 17, to take public testimony in connection with the May 17Hearing. In addition, and without notice, on that date Metro presented testimony from severalexperts concerning the subject of the May 17 Hearing and rebutting testimony provided byPetitioner at the May 17 Hearing. By presenting its experts in this way, Metro avoided therequirement of the Public Utilities Code that its experts be subject to cross examination andviolated Petitioner's due process right to a fair hearing by introducing evidence outside the recordwhich Petitioner did not have an opportunity to address. On that same date, at its regularlyscheduled hearing, Metro's Board adopted its Decision with Findings ofFact regarding thereasonableness of the Constellation Station and the related subway tunnel alignment beneath theHigh School, pursuant to Public Utilities Code section 30645 (collectively, May 17 Decision andFindings ). Petitioner is informed and believes, and based upon such information and beliefalleges, that Board members who had not heard the testimony presented at the May 17 Hearingvoted at the May 24, 2012 meeting to adopt the May 17 Decision and Findings.

31. On that same date, at its regularly scheduled hearing, the Metro Board approved theProject Definition for Phases 2 and 3 of the Project from the Wilshire/La Cienega station to theW estwoodIVA station, based on the LP A but incorporating several station, alignment and phasing

23 refinements, including, inter alia:24 1 Locating the Ceritury City station under Constellation Boulevard at Avenue of the25 Stars with corresponding subway alignments between Beverly Hills and26 Westwood;27 2. Locating the WilshirelRodeo station entrance on the southwest comer ofWilshire28 Boulevard and Reeves Drive (requiring demolition of the historic Ace Gallery site)

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consultation but before certification of the EIR, so that the public has an opportunity to review andcomment on the new information, the true scope of the project, its impacts and its mitigationmeasures before the lead agency makes a final decision to certify the EIR and approve the project.

36. Noncompliance with CEQA's disclosure requirements which precludes relevantinformation from being presented to the public agency, or noncompliance with CEQA'ssubstantive requirements may constitute an abuse of discretion regardless of whether a differentoutcome would have resulted if the public agency had complied with these provisions.

37. As alleged above, the Draft EISIEIR analyzed the Constellation Station, and thetwo alignments associated with it from the WilshirelRodeo station, both of which extended underthe High School, as an alternative to the preferred (base) Santa MonicalAve. Stars Station.

38. As alleged above, the alternative Constellation Station and the two alignmentsassociated with it drew strong adverse comment from the City of Beverly Hills, the SchoolDistrict, and multiple concerned citizens. In response to those comments, at its October 28 2010meeting, the Metro Board directed staffto fully explore the risks associated with tunneling underthe [Beverly Hills] High School, analyze the possibility of moving the subway tunnel in order toavoid all school buildings and avoid any future plans to remodel the High School, and to conductadditional analysis of the seismic hazards associated with the location of the Century City station

8 at Santa Monica Boulevard.9 39. As directed by its Board, after the publication of the Draft EISIEIR, Metro

2 conducted substantial additional study and analysis of potential Project impacts, including21 additional seismic investigations and studies, additional study of potential impacts to the High22 School, additional geotechnical investigations, and revised noise and vibration assessments.23 Specifically in response to comments on the Draft EISIEIR relating to the safety of the Project in24 the Century City area, Metro obtained the four Metro Subsequent Studies: the Century City Area5 Tunneling Safety Report the Tunnel Advisory Panel Final Report the Century City Area Fault6 Investigation Report and the Preliminary Geotechnical nd Environmental Report.

27 40. According to the Final EISIEIR, the Metro Subsequent Studies support the decision28 disclosed for the first time in the Final EISIEIR to change the Project's preferred Century City

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1 station on Santa Monica Boulevard from Avenue of the Stars to Century Park East. The Final2 EISIEIR also states that these studies support the conclusion that placing the Century City station3 t either of the studied locations on Santa Monica Boulevard (at Avenue of the Stars, as studied in4 the Draft EIS/EIR, or at Century Park East, as studied for the first time in the Final EISIEIR) will5 result in significant and unavoidable impacts due to the active Santa Monica Fault and the active6 West Beverly Hills Lineament, and that changing the Project altogether to adopt the Constellation7 Station and the associated alignment under the High School will avoid these impacts.

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41 This new infoimation, along with the other new information, as alleged below, andthe changes in the Project that were made in response to it, were not disclosed in the DraftEIS/EIR or in any document on which the public had a proper opportunity to comment. Such anaction violates CEQA.

42. Moreover, the Metro Subsequent Studies are not the only technical studiesproduced by Metro or commenters after to the pUblication of the Draft EISIEIR that address theserious seismic and other concerns raised by commenters in response to the Draft EISIEIR. BothPetitioner and the School District submitted expert consultant reports to the Metro in response tothe Metro Subsequent Studies, to which Metro's experts responded. All of these studies, too,should have been included in a revised Final EISIEIR and recirculated for :further public comment.These additional studies (collectively, the Excluded Subsequent Studies ) include:

1. A report prepared by Exponent, entitled Hazard Assessment Study, WestsideSubway Extension Project, Century City Area, California, submitted byPetitioner to Metro on February 7, 2012.

2. A report prepared by Shannon Wilson, entitled Preliminary ReviewComments on Century City Area - Fault Investigation Report - WestsideSubway Extension Project, submitted by Petitioner to Metro on March 8 2012.This study followed an earlier study by Shannon Wilson dated in 2011.

3. A report prepared by Parsons Brinckerhoff on beh lf of the Metro, entitledComments on Exponent s Report, dated April 4, 2012, responding to Exponent'sreport.

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4. A report prepared by Exponent responding to Metro s Comments on Exponent sReport, dated April 25, 2012.

5. Reports authored by seismic experts Miles Kenney and Loring Wylliesubmitted by the School District to Metro on May 5, 2011.

6. A report prepared by Leighton Consulting submitted by the School District toboth Metro and the FTA on May 8 2012.

7. Metro s response to the Leighton Consulting Report, dated May 14,2012.8. Metro s reply to Exponent s response to Metro s Comments on Exponent s

Report, dated May 15 2012.Petitioner presented additional technical and scientific information, Petitioner s

Excluded Evidence, at the May 17 Hearing:1. Testimony from Dr. Phillip Buchiarelli, of Leighton Consulting, Inc., a member of

the team of multidisciplinary experts who spent almost four months trenching andconducting borings and cone penetrometer tests at the High School, who called intoquestion the report by Metro s expert, Parsons Brinckerhoff, regarding the locationof faults in areas not covered by the trenching data, when there was no new data tojustify their locations.

2. Testimony from Dr. Eldon Gath, a geologist and engineer with Earth ConsultantsInternational, who criticized the Parsons Brinckerhoff study for ignoring obviousdata found by digging trenches on the High School campus, presenting inexplicablefindings about the location of faults underneath the High School campus, andlisting as active many faults that do not, in his professional opinion, actually exist.

3. Testimony from Miles Kenney, of Kenney GeoScience, who agreed with theresearch done by Leighton Consulting, and opined that any faults along SantaMonica Boulevard are likely inactive.

4. Testimony from Dr. Subodh Medhekar, of Exponent, who stated that, in hisopinion, the Metro fault hazard study for the Constellation Station site wasincomplete, the gas and oil well surveys were incomplete, and the considerations

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construction noise impacts will be significant and unavoidable (Final EIS/EIR at S-66).In comments submitted to Metro in connection with the Excluded Subsequent

3 Studies and on the Final EIS/EIR, Petitioner repeatedly requested that Metro comply with CEQA4 and revise the Final EIS/EIR to analyze this new information, including, without limitation, the5 Excluded Subsequent Studies and Petitioner s Excluded Evidence, and provide the public an6 opportunity to review and comment on the new information and the changes to the Project prior to7 the certification ofthe Final EIS/EIR and approval of the Project.8

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48. In direct violation of CEQA s mandates, however, Metro instead brushed aside theserious questions raised by this substantial new information, ignored the public s right underCEQA to review and comment on this information, and rushed to certify the Final EIS/EIR andapprove Phase 1 of the Project on April 26, 2012. Subsequently, on May 24 2012 barely oneweek after the May 17 Hearing, Metro approved Phases 2 and 3 of the Project.

49. For these reasons, the public was not provided an opportunity to comment onsignificant new information added to the Final EIS/EIR, on previously undisclosed components ofthe Project, or on new significant impacts ofthe Project, or on Project impacts that are moresevere than acknowledged. For the reasons alleged above, the EIS/EIR should have been revisedto include the additional analyses and proper mitigation measures CEQA requires, and thenrecirculated to afford the public the right to review and comment upon this new information.

50. The many defects in the Draft EIR and the Final EIR, all as alleged above, required2 Metro to revise the EIS/EIR and recirculate it before it prepared and certified the Final EIS/EIR21 approved the Project. Metro s actions certifying the Final EIS/EIR and approving the Project22 without having revised and recirculated the EIS/EIR constitute a prejudicial abuse of discretion23 under CEQA.24 Failure to Include a Clear and Stable Project Description5 51. CEQA requires that an EIR include a clear and accurate project description, and

26 that the nature and objective of a project be fully disclosed and fairly evaluated in the EIR. A27 clearly written project description is critical to the EIR s evaluation ofthe project s impacts and its28 consideration of mitigation measures and a reasonable range of alternatives.

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1 52. s alleged above, the Final EIS/EIR disclosed that Metro had made substantial2 changes to the design of the Project after the release of the Draft EISIEIR on which the public,3 including, without limitation, Petitioner, has not had an adequate opportunity to comment as4 required by CEQA5 53. As alleged above, after the release of the Final EIS/EIR, Petitioner, as well as the6 School District and numerous concerned Beverly Hills residents and others, commented that, as

proposed in the Fina l EISIEIR, the revised Project would create severe construction impacts and8 impose great risk to human health and safety, which impacts were not adequately disclosed,9 analyzed, or mitigated in the Final EISIEIR.

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54. The Final EIS/EIR's failure to include a clear and stable description ofthe Projectprevented it from accurately analyzing the Project's impacts, recommending appropriate mitigationmeasures and a reasonable range of alternatives to the Project.

55. Metro's actions certifying the Final EIS/EIR without a clear and stable Projectdescription constitutes a prejudicial abuse of discretion under CEQA, since Metro failed toproceed in a manner required by law, and its findings are not supported by substantial evidence inlight of the whole record.

Failure to Analyze the Potential Impacts Associated with the Constellation Station56. In written comments on the Draft EIS/EIR, Petitioner, as well as its residents, the

19 School District, and other commenters, repeatedly requested that Metro revise the Project to avoid2 tunneling under homes and the High School campus to avoid or reduce the Project's significant21 construction impacts in Beverly Hills. However , Metro denied these requests for four primary

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reasons:1 First, Metro claimed without supporting substantial evidence that [t]here is no

reasonable tunnel alignment that does not pass under homes or structures within theBeverly Hills High School campus. (Final EIS/EIR, Appendix Hat H-2.3-55.)

2. Second, Metro claimed without supporting substantial evidence that the MetroSubsequent Studies demonstrated that tunneling could safely be conducted underthe High School. Jd.; see also Final EIS/EIR at 7-12, 7-14.)

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3. Third, Metro claimed without supporting substantial evidence that the MetroSubsequent Studies demonstrated that locating the Century City station on SantaMonica Boulevard was not a viable option or feasible due the active Santa MonicaFault and the active West Beverly Hills Lineament. Id.)

4. Fourth, Metro claimed without supporting substantial evidence that the MetroSubsequent Studies demonstrated that the Constellation Station is safe. Id.)

57. However, as alleged above, the Metro Subsequent Studies were not based oninvestigations and other data sufficient to enable those studies or Metro to conclude that tunnelingcould safely be conducted under the High School, that locating a Century City station on SantaMonica Boulevard was not safe, or that the Constellation Station would be safe.

58. Further, Metro did not even attempt to support its bald assertion that [t]here is noreasonable tunnel alignment that does not pass under homes or structures within the Beverly HillsHigh School campus. CEQA requires Metro to consider and adopt all feasible mitigation andfeasible alternatives to address the Project's significant environmental impacts. Metro cannotsimply refuse to consider alternative alignments when it has acknowledged that the alignments ithas considered could result in significant impacts; nor can it refuse to disclose what alternativealignments it considered that it ultimately concluded were not reasonable.

59. Metro's failure to assess the seismic risks and the methane risks and other hazardsassociated with the construction and operation of the Constellation Station and the relatedalignment between Century City and the WilshirelRodeo station constitutes a material and

21 prejudicial omission from the Final EISIEIR.

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22 60. Metro's determinations and findings that the Santa Monica/Ave. Stars and the Santa23 Monica/CPE Stations are not viable and that the Constellation Station and the associated24 alignment between that station and the Wilshire/Rodeo station are safe are not supported by25 substantial evidence, and therefore violate CEQA.26 61. The Final EISIEIR fails as an information document by its failure to disclose and27 analyze all of the Project's impacts. As such, the Final EISIEIR fails to comply with CEQA's most28 basic mandates.

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settlement and settlement induced by other excavation activities, such as dewatering and shallowtunneling underneath sensitive structures or at cross-passages. Rather than analyzing the impactsthe Project will create given the existing conditions, however, the Final EISIEIR improperly defersthe determination of the existing conditions, the assessment of impacts and the determination ofappropriate mitigation measures to the mitigation measures themselves, including OEO 4, CON-48, and CON-49, which require, e.g., pre-construction surveys of the geotechnical conditions anddetermination of the structural conditions within the anticipated zone of construction influence,the determination of the Project's construction impacts by, e.g., a ground surface and buildingmonitoring program to be developedfollowing the pre-construction surveys, and the determinationof mitigation measures to address any construction-related movement also following the pre-construction surveys).

74. Similarly, the Final EIS/EIR defers determining the actual location of oil wells andtheir associated hazards to Mitigation Measure CON-53, which requires that more detailedresearch on oil well locations be conducted after the Final EISIEIR has been certified and theProject has been approved

75. Similarly, the Final EISIEIR defers to Mitigation Measure HR 4 the geotechnicalinvestigations needed to evaluate the soil, groundwater, seismic and environmental conditionsalong the Project's alignment needed to (1) identify areas that could cause differential settlementas result of the use of the tunnel boring machine, (2) determine mitigation measures needed toensure that appropriate support mechanisms and measures are provided for the cut and fillconstruction areas, and (3) ensure that historic structures, including, without limitation, the HighSchool, are protected from damage during construction.

76. Therefore, the Final EIS/EIR contains no information regarding the baseline from24 which the Project's geotechnical construction impacts can be determined, and, as a result, it25 contains no valid or useful analysis of the Project's geotechnical construction impacts, even though6 it concludes that these impacts are potentially significant. Moreover, it contains no valid27 mitigation measures, and no substantial evidence that the potentially significant geotechnical28 impacts will in fact be reduced to a less than significant level, even though the Final EISIEIR

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concludes that they will be (see, e.g., Final EISIEIR at S-48, S-68, S-69).77. Noise and Vibration Impacts. The Final EISIEIR failed to include sufficient

infonnation to assess the noise impacts ofProject construction on a local level. While the FinalEISIEIR concludes that construction noise levels will be significant, it includes no infonnationabout existing noise limits, the noise levels that actually will occur with construction, where andwhen construction noise levels will exceed levels set by local ordinances, and how to mitigatesuch significant noise impacts. It is not enough that the Final EISIEIR concludes that constructionrelated noise impacts will be significant; it must assess those impacts, the feasible mitigationmeasures and alternatives that avoid or reduce them, and the residual impacts.

78. As a direct and foreseeable consequence of failing to detail these significantimpacts, the Final EIS/EIR cannot detennine appropriate mitigation measures to reduce thoseimpacts or determine the extent to which they will reduce the impacts. Moreover, the mitigationmeasures included in the Final EISIEIR are legally insufficient, as they either fail to reduce thenoise levels generated by construction activities or improperly defer mitigation by postponing thecreation of noise mitigation control plans and abatement measures to the future.

79. The Final BIS /EIR also fails to adequately analyze vibration impacts. Althoughsensitive uses are located within 150 feet ofWilshire Boulevard, and in some instances areimmediately adjacent to the proposed subway tunnel route, and tunneling is proposed underneaththe High School campus, the Final EISIEIR contains no quantified analysis of the constructionvibration impacts that will be experienced by any residential or other sensitive uses in BeverlyHills. Petitioner's comments on the Final EIS/EIR suggested additional feasible mitigationmeasures that would reduce these impacts, at least in part, including, without limitation, aprohibition against pile driving, but Metro failed to include these mitigation measures in the

24 Project, in violation ofCEQA.25 80. Traffic/Access Impacts. The Final EIS/EIR also failed to adequately analyze26 transportation-related impacts from Project construction, even though the Final EIS/EIR concludes27 that these impacts will be significant and unavoidable. For example, the Project includes the cut28 and cover construction method for construction of the stations. In Beverly Hills, this

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construction will result in full street and lane closures on Wilshire Boulevard in and near theintersections ofWilshire Boulevard and Beverly Drive, Rodeo Drive, Canon Drive, EI Caminoand La Cienega Boulevard, as well as congestion on other streets, and blockages of driveways,garage entrances and sidewalks that together will result in significant and unavoidable impacts tointersections, roadways, pedestrians, bicyclists, and transit and shuttle stops. (Final EIS/EIR at S-37, S-39, S-40.) The Final EIS/EIR discloses that the time period for street closures will be 85 to140 days for installation of the cover and another 85 to 140 days for removal ofthe cover at theend of construction (Table 3-19), over a period of 2 to 3 months (at 3-94). At a briefing forelected officials, Metro informed Petitioner's representatives that street closures would only occuron weekends and that, as such, cover installation and removal would require 56 weekends if the140-day estimate were correct.

Oa 128 8 81. Moreover, the severe impacts that Project construction will create will bep t: als 13' '0 g e L 14 substantially compounded should a grade separation between the cover and the street grade becreated, as the mitigation for paleontological resource impacts might require (Final EIS/EIR at 4-

323); not only would such a grade separation exacerbate these traffic and circulation impacts, butit would also create new impacts not analyzed in the EISIEIR to access and human safety and

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gB0 'o ' 16H il eH Z..Jo 17 emergency access.18 82. Despite the fact that these impacts are deemed to be significant, the Final EIS/EIR19 contains no specific discussion of how road closures will impact levels of service at any of the2 Beverly Hills streets to be affected: it fails to include traffic counts before and after construction21 begins, does not identify Beverly Hills streets that will be impacted by diverted traffic, and does22 not identify how such impacts will be avoided or mitigated. Instead, the Final EIS/EIR indicates23 that any analysis ofpotential traffic impacts and mitigation will be deferred to afuture date24 Specifically, the Final EIS/EIR defers to Mitigation Measures such as TCON-1 and TCON-4 the25 development of such critical information as traffic projections, the number of haul trucks, street26 closures, and levels of service at specific intersections, all ofwhich will be developed in the future7 However, all of this information is essential to determining the extent of the Project's impacts and8 the appropriate mitigation measures to reduce those impacts to the extent feasible.

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83. The Final EISIEIR s failure to fully analyze and mitigate the Project s substantialconstruction impacts on traffic and circulation in turn defeats its ability to fully analyze andmitigate impacts on vehicular and pedestrian access to buildings; emergency access, evacuationand human safety in the event of an emergency; and ADA access issues. Mitigation MeasureTCON- 3 promises that emergency access will be maintained at all times to the construction work,adjacent businesses and residential neighborhoods, but provides no specific plan or standards thatensure this result will in fact occur. Similarly, Mitigation Measure TCON-lO promises, withoutany specific implementation measures, to provide safe pedestrian routes and access for pedestriansduring construction, and Mitigation Measure TCON ll promises, also without any specificimplementation measures, to provide safe bicycle paths and access for bicyclists duringconstruction. To the contrary, however, the Final EISIEIR s acknowledgment of the lane andstreet closures and sidewalk closures required by Project construction, and the need to blockdriveways, and the potential for the cover to create grade separations provides substantial evidencethat, in fact, these vacant promises cannot be fulfilled.

84. In addition, the Final EISIEIR fails to adequately address the impacts of Projectoperations on traffic and circulation in areas where stations will be located. Most significantly, theProject does not provide for parking for the WilshirelLa Cienega station. The Final EISIEIR (at 3-67) simply assumes, without supporting evidence, that parking impacts will not be significant ifthere is no restricted parking in the vicinity of the station. However, as Petitioner s comments onthe Final EISIEIR stated, in Petitioner s experience, the lack of dedicated parking will result intraffic impacts. Specifically, cars slowing to pick up and drop off passengers along La CienegaBoulevard in front of the station will interfere with the flow of traffic and result in an adverseimpact on traffic and circulation; in turn, these traffic impacts will result in an increased demandon police, fire and other emergency services. However, the Final EISIEIR fails to analyze thesepotential impacts and fails to recommend mitigation measures to address them.

85. Air Quality Impacts. The Final EIS/EIR acknowledged that the Project s changefrom phased to concurrent construction will result in new significant and unavoidable PMlO andPM2 5 impacts that were not disclosed in the Draft EISIEIR. As alleged above, at the May 24,

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1 2012 meeting of its Board, Metro released to the public for the first time an Addendum to the2 Final EIS/EIR that purported to reduce those impacts to a less than significant level for Phases 23 and 3 of the Project. However, the Addendum was not supported by substantial evidence and4 contained no explanation for the changes in projected construction emissions that supported those5 reductions, and, in fact, those reductions were contrary to the analysis and the substantial evidence6 supporting that analysis contained in the Final EISIEIR and summarized in the findings and7 Statement of Overriding Considerations adopted by Metro on April 26, 2012 and in the proposed8 fmdings and Statement of Overriding Considerations released by Metro with its Agenda for its9 May 24 2012 meeting.

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86. Construction of the Project will also result in significant, local air quality impactsthat have not been disclosed, analyzed, or mitigated in the Final EISIEIR. It is not enough that theFinal EIS/EIR discloses that air pollution emissions from the Project as a whole will be significantunder the concurrent construction scenario and will be significant for emissions of nitrogenoxides under the phased construction scenario); since some air pollutants have particularlylocalized impacts, the Final EISIEIR must also evaluate the impacts of air pollutants related toconstruction on locally affected populations. For example, the Final EIS/EIR fails to assess thefollowing:

1. The local air pollution emissions associated with intense, street-level construction,such as that associated with the Wilshire/La Cienega station. This failure is particularly seriouswith respect to the emission of toxic air contaminants, diesel particulates, and carbon monoxide -

21 all of which are pollutants that will impact the health of nearby residents and other sensitive22 receptors, such as students.23 2. The health impacts of PM2.5, a particulate pollutant associated with the use of diesel24 fuel.25 3. The toxic air contaminants emissions from construction equipment and vehicles,26 even though Project construction will occur within 1,000 feet of sensitive receptors, including7 schools, residences, and several hotels.

28 4. The additional air quality impacts associated with the change to the Rodeo Station

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1 configuration by adding a double crossover to the east end of that station to optimize operations,2 which change will bring the station construction to within 1,000 feet of the Beverly Vista3 elementary schooL4 87. As a result of these material and prejudicial omissions, the Final EISIEIR failed to5 analyze a potentially significant project-level, as well as cumulative, air quality and health impacts6 of the Project that would result when the emissions from such a long-term and substantial7 construction project are added to already significant sources ofpollutants, such as traffic along8 Wilshire Boulevard.9

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88. Aesthetic Impacts. s alleged above, Project construction within Beverly Hills willcontinue for approximately a decade. The Final EISIEIR (at 4-346 to 4-348) acknowledges thatconstruction of the Project, including, without limitation, the presence ofheavy machinery, trucks,open streets, traffic detours, and noise barriers will have significant aesthetic impacts, but thatthese impacts will be reduced to a less than significant level through the implementation ofMitigation Measures CON-2 through CON-4 (at S-62). However, these measures require onlytimely removal of erosion-control devices; locating stockpile areas in less visibly sensitive areasand, whenever possible, in areas not visible from roads or to residents and businesses; shieldingand directing construction lighting toward interior construction areas; and screening staging areaswhere possible (Appendix I at 1-35).

89. Since the Project locates construction and staging areas in aesthetically sensitiveareas ofBeverly Hills, and in areas adjacent to sensitive uses such as residential uses, luxuryhotels and retail uses, these identified mitigation measures are too vague and afford too littleprotection against a decade of significant aesthetic impacts to an area that relies on its highlyaesthetic characteristics in order to attract business. Petitioner's comments suggested feasibleadditional mitigation measures to help reduce the level of these significant aesthetic impacts, butMetro did not adopt these mitigation measures. Metro's failure to adopt feasible mitigationmeasures to reduce the level of acknowledged significant aesthetic impacts, and its adoption ofvague mitigation measures lacking sufficient standards to ensure that the significant aestheticimpacts would in fact be reduced to a less than significant level, violated CEQA.

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90. Paleontological Impacts. The Final EISIEIR acknowledges (at 4-303) that there arenumerous areas along the Project's alignment, including, without limitation, between La BreaBoulevard and La Cienega Boulevard, and along Wilshire Boulevard both east and west ofBeverly Drive, where paleontological resources have been found and where more such sources arelikely to be found. The Final EIS/EIR concludes that Project construction will result in asignificant impact on paleontological resources where the tunnel boring machine will be used,since mitigation for impacts in tunnel interiors is infeasible (id. at 4-316). Incongruously,however, the Final EIS/EIR also concludes that this significant impact, for which mitigation isinfeasible, c n be reduced to less th n signific nt level by the implementation ofMitigationMeasures PA-2 through PA-7 (at S-54), which merely call for requesting early approval to beginfossil recovery if feasible, development of a paleontological resources mitigation andmonitoring plan in the future according to undisclosed criteria, and requiring specific activitieswith respect to any resources that might actually be recovered (Appendix I at 1-32 and 1-33).Given Metro's admission that there is no feasible mitigation for the significant impact in the tunnelinteriors, i t cannot then conclude that this impact will be reduced to a less than significant level.

91. Impacts of Specific Construction Technigues. The Final EIS/EIR also fails toanalyze the impacts that will be created by the specific construction techniques incorporated intothe Project, many ofwhich will clearly have significant impacts that have not been adequatelyaddressed by proper mitigation measures. For example:

1 Appendix E discloses (at E-21) that the tunnel boring machine will be dismantledand retrieved twice at the WilshirelLa Cienega station: once upon arrival fromWilshirelLa Brea and once upon arrival from Century City. However, the FinalEIS/EIR contains no discussion ofhow such dismantling will occur and no analysisof its environmental impacts.

2. Appendix E also states (at E-26) that iftie-backs are encountered during Projectconstruction, the construction method may have to change to the cut-and-covermethod in the tie-back zone. This change in construction method will result insubstantially increased environmental impacts that are not analyzed or mitigated in

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the Final EIS/EIR for roadway segments, as opposed to station locations.3 Finally, with respect underground station construction, Final EISIEIR discloses (at

E-14) that at some unidentified locations along Wilshire Boulevard, thegroundwater is near the surface and potentially under artesian pressure; howeverthe Final EISIEIR fails to analyze the environmental impacts associated withgroundwater under those conditions, and how and whether these impacts must beaddressed during construction (see, e.g., at 4-369).

92. Impacts Created by Mitigation Measures. The Final EISIEIR fails to evaluate theimpacts associated with mitigation measures to address potential paleontological resource impactsproposed for the first time in the Final EISIEIR. Specifically, as alleged above, the Final EISIEIRstates (at 4-323; Appendix Eat E-9) that it may be necessary to employ raised decking to allow forinvestigation and protection ofpaleontological resources. This decking system would be elevatedabove street level and would require ramps to allow traffic to transition to and from the decking,and may temporarily increase visual impacts to adjacent properties, as well as present someaccess restrictions (id. at 4-323, 4-324). However, the Final EIS/EIR contains no analysis ofthetraffic, circulation, access, public safety or aesthetic impacts that such a grade separation wouldcreate, nor does it contain any analysis of the impacts that the processes of cultural resourceprotection andlor recovery would create. Moreover, these adverse impacts would be in addition toand would compound the adverse impacts the Final EISIEIR acknowledges would already occurduring construction as a result of the reduced traffic lanes and temporary street closures requiredby Project construction. (Final EISIEIR at S-38.) As a result of the omission ofthis information

22 and analysis, there was no opportunity for public comment on these impacts, potential mitigation23 measures and alternatives.24 93. Economic and Social Impacts. The Project's substantial construction impacts on25 Beverly Hills alleged above will, in turn, result in significant economic and social impacts on26 Beverly Hills residents, workers and businesses that, in turn, will result in physical impacts, most27 particularly on retailers and hotels in the La Cienega Boulevard and Rodeo Drive areas, that the28 Final EIS/EIR has grossly underestimated and has failed to mitigate. The Final EIS/EIR severely

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School, and adopt the CEQA findings and Statement of Overriding Considerations. At the April26 2012 meeting, the Metro Board did in fact certify the Final EISIEIR, but announced that, inview of Petitioner s request for a hearing under Public Utilities Code section 30639, it wouldapprove only Phase 1 of the Project and revised findings of fact, Statement of OverridingConsiderations and Mitigation Monitoring and Reporting Plan addressing only Phase 1

98. As alleged above, Metro only purported to hold the May 17 Hearing required byPublic Utilities Code sections 30639 et seq In fact, however, due to procedural defects allegedabove and Metro s conduct during the hearing, that hearing was a sham. As alleged above, onMay 24 2012 the Metro Board approved Phases 2 and 3 of the Project and adopted the findings,Statement of Overriding Considerations and Mitigation Monitoring and Reporting Plan relating toPhases 2 and 3, without acknowledging or having taken into consideration any of the informationincluded in Petitioner s Excluded Evidence or in Petitioner s experts documents among theExcluded Subsequent Studies.

99. As such, Metro prejudged the outcome of its decisions relating to Phases 2 and 3 ofthe Project and relating to the May 17 Hearing, in violation of CEQA.

100. Metro s actions certifying the Final EIS/EIR and approving the Project prior toconducting the hearing required by Public Utilities Code section 30639 and without havingconsidered the evidence presented at that hearing constitute a prejudicial abuse of discretion underCEQA.

Failure to Support Findings and Statement ofOverriding Considerationswith Substantial Evidence

101. When exercising its governmental powers with respect to the Project, Metro has atall times been under a mandatory duty to comply with all applicable requirements of CEQA,including, bu t not limited to, the duties to prepare a complete and adequate environmental reportthat identifies all significant impacts the Project may have on the environment based on substantialevidence, and to prepare findings, including a statement of overriding considerations, supported by

7 substantial evidence in light of the whole record.28 102. As alleged above, the Final EISIEIR fails to analyze the Project s construction and

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1 operational impacts properly under CEQA, fails to consider all of the evidence, and, therefore,2 fails to recommend feasible and effective mitigation measures or alternatives to reduce the3 Project's significant impacts to the maximum extent feasible.4 103. In addition, as alleged above, because the Final EISIEIR has failed to properly5 analyze and mitigate the Project's impacts, it does not contain the substantial evidence needed to6 support its significance determinations.7 104. In addition, as alleged above, the Final EISIEIR omits material information,8 including, without limitation, the Excluded Subsequent Studies and Petitioner's Excluded9 Evidence, which demonstrates that many of the Final EISIEIR's purported conclusions are clearly

1 incorrect.111213141516171819

105. As a result, Metro's conclusions, decisions and fmdings, including its Statements ofOverriding Considerations, are not supported by substantial evidence in light of the whole record.Metro's actions in adopting findings and Statements of Overriding Considerations not supportedby substantial evidence in the record addressing each of the Project's significant impacts constitutea prejudicial abuse of discretion under CEQA.

pproval o a Discretionary ct Without Complying with CEQ106. CEQA defines a project as the whole of an action that may result in either a

direct or reasonably foreseeable indirect physical change in the environment. A project includesan activity directly undertaken by a public agency. (Pub. Res. Code 21065(a).)

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107. The adoption of the May 17 Decision and Findings was a discretionary act on thepart of the Metro related to the Project. However, contrary to CEQA, Metro failed to analyze thedirect and indirect environmental impacts of the May 17 Decision and Findings prior to adopting

3 the May 17 Decision and Findings.24 108. As alleged above, Petitioner submitted its experts' reports among the Excluded25 Subsequent Studies and Petitioner's Excluded Evidence at the May 17 Hearing, which demonstrate26 that many of the purported conclusions in the Final EISIEIR and the expert reports on which they27 are based, including, without limitation, the Metro Subsequent Studies, are clearly incorrect. The28 May 17 Decision and Findings purport to resolve the issues raised at the May 17 Hearing.

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1 However, no CEQA document has considered or analyzed the Excluded Subsequent Studies or2 Petitioner's Excluded Evidence. As alleged above, the Final EISIEIR does not contain or even3 refer to the Excluded Supplemental Studies or Petitioner's Excluded Evidence. Therefore, Metro4 cannot rely upon the Final EISIEIR as containing the substantial evidence it needs to support the5 May 17 Decision and Findings.6789

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109. Additionally, as a project within the meaning of CEQA Metro's adoption of theMay 17 Decision and Findings must be accompanied by CEQA findings as required by PublicResources Code Section 21081. However, Metro adopted no such CEQA fmdings.

110. Metro's actions in adopting the May 17 Decision and Findings without havinganalyzed them under CEQA and without having adopted findings as required by CEQA constitutea prejudicial abuse of discretion under CEQA.

111. For all of the reasons alleged above, Petitioner is entitled to the issuance ofa writof mandate, a temporary restraining order and/or preliminary injunction, and a permanentinjunction, each commanding Metro to set aside the certification of the Final EISIEIR, approval ofthe Project and adopting of the May 17 Decision and Findings; to revise the Final EISIEIR toproperly describe the baseline, analyze all of the environmental impacts of the whole of theProject, including, without limitation the May 17 Decision and Findings, recommend specific andenforceable mitigation measures and consider alternatives to address the Project's significantimpacts, and reach significance conclusions based on substantial evidence; and to follow allapplicable legal requirements for full public participation in Metro's decisionmaking process; and,in addition, forbidding Metro from taking any action to implement the Project, or any portion .thereof, until such time, if ever, as it has certified a proper EIR under CEQA that analyzes all ofthe potential adverse impacts of the whole of he Project and adopted the Project as analyzed insuchEIR.

112. For all of the reasons alleged above, Petit ioner has been forced to incur attorneys'fees and other costs and expenses. In pursuing this action, which involves enforcement ofimportant rights affecting the public interest, Petitioner will confer a substantial benefit on thegeneral public and the citizens of Los Angeles County, and therefore is entitled to recover its

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1 TIllR CAUSE OF ACTION2 (Violations of Pub. Utile Code Sections 30639 et seq., C.C.P. Sections 1085, 1094.5)3 119. Petitioner incorporates by reference each of the allegations ofParagraphs 1 through4 112, inclusive, of this Petition and Complaint as though set forth in full.5 120. Under Public Utilities Code sections 30639 et seq. Petitioner had the right to a fair6 hearing on the proposal to fix the location of a station in Century City and the associated Project7 alignment, and, at that hearing, Petitioner had the rights, inter alia to be heard, present evidence,8 call and examine witnesses, cross-examine opposing witnesses and rebut evidence introduced by9 Metro, and to rebut oral testimony given by Metro witnesses under oath.

1 121. Under Code ofCivil Procedure section 1094.5, a court may overturn Metro s

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decisions where it has deprived Petitioner of a fair trial, where Metro has prejudicially abused itsdiscretion by not proceeding in the manner required by law, by issuing a decision that is notsupported by the findings, and/or adopting findings that are not supported by the evidence.

122. As alleged above, Metro violated its statutory obligations to provide a full and fairhearing to Petitioner under Public Utilities Code sections 30639 et seq., and Code of CivilProcedure section 1094.5, by setting the May 17 Hearing date without consulting Petitioner andwithout any action or meeting by Metro s Board, on a date on which Petitioner could not presenttestimony from its primary expert witnesses; by denying Petitioner s reasonable request for acontinuance of the May 17 Hearing, and doing so for an improper reason; by improperly noticingthe May 17 Hearing; by failing to have a quorum ofBoard members present at all times during theMay 17 Hearing; by failing to present Metro s expert witnesses during the May 17 Hearing andmake them available for cross-examination; and by closing the May 17 Hearing and thenpresenting Metro s expert witness testimony during the purported public comment period duringthe continued May 17 Hearing held during the special meeting on May 24,2012. n addition, asalleged above, Metro Board members who were not present at the May 17 Hearing voted to adoptthe May 17 Decision and Findings at the special meeting held on May 24, 2012.

27 123. As a result of these procedural violations, Petitioner was deprived of its right to a28 full and fair hearing under Public. Utilities Code sections 30639 et seq., and to have that hearing



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1 prior to Metro acting to certify the Final EISIEIR and approve any portion of he Project.2 Petitioner was entitled to have the evidence it presented at the May 17 Hearing duly considered by3 the Board before it took action on the Project, and not to have the Board pre-determine its decision4 to certify the Final EISIEIR and approve the Project, including, without limitation, Phase 1 of the5 Project, without even considering the possibility that Petitioner's evidence might lead the Board to6 change one or more of components of the Project, or one or more conclusions in the Final7 EIS/EIR, or to conclude that the Final ElSIEIR should be revised and recirculated to give the8 public an adequate opportunity under CEQA to review and comment on the substantial new9 information presented by Petitioner.

1 124. Furthermore, the Board has prejudicially abused its discretion by issuing the May17 Decision, which is not supported by the May 17 Findings, and by adopting the May 7Findings, which are not supported by the evidence presented at the May 17 Hearing. For example,section 30639 of the Public Utilities Code requires that the Board's May 17 Findings explain whythe Constellation Station and its associated alignment were chosen over other station locations andalternative alignments, which the May 17 Findings fail to do. Instead, the Board's May 7Findings address the reasonableness of the location of the Constellation Station, which was notthe question before the Board.

18 125. For all of the reasons alleged above, Petitioner is entitled to the issuance of a writ19 ofmandate, a temporary restraining order and/or preliminary injunction, and a permanent2 injunction, each commanding Metro to set aside the certification of the Final ElSlElR, approval of2 the Project and adoption of the May 17 Decision and Findings; to hold a proper hearing under22 Public Utilities Code sections 30639 et seq ; to consider all of the evidence presented at that3 hearing before reaching any determination with respect to that hearing, the certification of the4 Final ElSIEIR, or the approval of the Project; and, in addition, forbidding Metro from taking any5 action to implement the Project, or any portion thereof, until such time, if ever, as i t has certified a6 proper IR under CEQA that analyzes all of the potential adverse impacts of the whole ofthe

27 Project and adopted the Project as analyzed in such ElR.8 126. For all of the reasons alleged above, Petitioner has been forced to incur attorneys'

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1 fees and other costs and expenses. n pursuing this action, which involves enforcement of2 important rights affecting the public interest, Petitioner will confer a substantial benefit on the3 general public and the citizens of Los Angeles County, and therefore is entitled to recover its4 attorneys fees and costs in this action pursuant to, inter alia Code of Civil Procedure5 section 1021.5 and Government Code section 800.6 WHEREFORE, Petitioner prays for relief, as follows:

18

1 For a peremptory writ of mandate, a temporary restraining order and/or preliminaryinjunction, and a permanent injunction, each commanding Metro to set aside the certification ofthe Final EISIEIR and approval of the Project; to revise the Final EISIEIR to properly describe thebaseline, analyze all of the environmental impacts of the whole of the Project, recommend specificand enforceable mitigation measures and feasible alternatives to address the Project s significantimpacts, and reach significance conclusions based on substantial evidence; and to follow allapplicable legal requirements for full public participation in Metro s decisionmaking process; and,in addition, forbidding Metro from taking any action to implement the Project, or any portionthereof, until such time, if ever, as it has certified a proper EIR under CEQA that analyzes all ofthe potential adverse impacts of the whole ofthe Project and adopted the Project as analyzed insuchEIR.

2. For a peremptory writ of mandate, a temporary restraining order and/or preliminary19 injunction, and a permanent injunction, each commanding Metro to set aside the certification of2 the Final EIS/EIR, approval of the Project and adoption of the May 17 Decision and Findings; to21 hold a proper hearing under Public Utilities Code sections 30639 t seq.; to consider all of the22 evidence presented at that hearing before reaching any determination with respect to that hearing,23 the certification of the Final EIS/EIR, or the approval of the Project; and, in addition, forbidding24 Metro from taking any action to implement the Project, or any portion thereof, until such time, if5 ever, as it has certified a proper ErR under CEQA that analyzes all of the potential adverse impacts6 of the whole of the Project and adopted the Project as analyzed in such EIR.7 3. For injunctive relief, enjoining Metro from proceeding with any aspect of the

28 Project unless and until i t fully complies with all requirements of CEQA, including, but not



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SHUTE MIHALY

396 HAtES STREET SAN FRANCISCO, CA 94102T 415 552-7272 F: 415552 5816www.smwlaw.com

ViaE Mail and U S MailMichele JacksonBoard SecretaryLos Angeles County MetropolitanTransportation AuthorityOne Gateway Plaza, MS 99/22/5Los Angeles, CA 90012E-Mail: [email protected]

May 29, 2012

ROBERT PERL PERLMUlTERAttorneyperlmutte [email protected]

Re: Notice ofCommencement of CEQA Litigation ChallengingApproval ofWestside Subway Extension ProjectDear Ms. Jackson:

Please take notice that the City ofBeverly Hills will file suit against the LosAngeles County Metropolitan Transportation Authority ( Metro ) challenging Metro'sfailure to observe the requirements of the California Environmental Quality Act( CEQA ), Public Resources Code sections 21000 et seq., in the administrative processthat culminated in Metro 's approval of he Westside Subway Extension Project(''Project''), including Metro's (1) April 26, 2012 approval ofPhase 1 of the Project andcertification of the associated environmental impact report; and (2) its May 24, 2012approval ofPhases 2 and 3 of the same Project. This notice is given pursuant to PublicResources Code section 21167.5.Please note that, pursuant to Public Resources Code section 21167.6, therecord ofproceedings for Metro's actions includes, among other items, all internalagency communications, including staff notes and memoranda related to the project or tocompliance with [CEQA. Because all e-mails and other internal communicationsrelated to the Proj ect are part of the administrative record for the lawsuit to be filed by the


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Michele JacksonMay 29, 2 12Page 2

City: Metro may prior to the, prep,aratiOll of hetec{)rd in this case.

co: RC}ynlond;StlkysRay ellisDavidM1.eger

Very truly yours,SHUTE, :MIHALY WEINBERGER LLP

.. ,, ,'.: . . .

Robert Perl Perlmutter

SHUT;_MIHALYv WEJ NBERGER LLf


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[309746 S.DOC/5107.0011 39PETITION FORWRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF


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SHUTE MIHALYBERGER LLP

396 HAYES STREET, SAN FRANCISCO, CA 94102T: 415 552-7272 F: 415 552 5816

Via U S Maill{amala D. HarrisAttorney General

www.smwlaw.com

California Department of Justice13 00 I StreetSacramento, CA 95814-2919

May 30 2012

ROBERT PERL PERLMUlTE.Rttorney

[email protected]

Re:.Notice ofFiling CECA Litigatl.of:l:C1ty.ofBeverlyHillsv.LosAngeles County Metropolitan Transportation AuthorityDear Attorney General Harris:

Enclosed please fmd a copy of the Petition for Writ of Mandate andComplaint for Declaratory and Injunctive Relief in the above-entitled action. Thepetition is provided to you in compliance with Public Resources Code section 21167.7and Code of Civil Procedure section 388. Please acknowledge receipt in the enclosedprepaid, self-adt'lressed envelope. Thank you.

Enclosures: Petition for Writ of Mandate343808 2

Very truly yours,SHUTE, I\11HALY WEINBERGER LLP

. .. ..:---Robert ''Perl'' Perlmutter


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WILSHIRE PALISADES BUILDING1299 OCEAN AVENUE. SUITE 900

SANT A MONICA. CALIFORNIA 90401-1000

VIAU.S.MAILThe Honorable Kamala Harris

L W O F F I C E SGILCHRIST RUTTER

PROFESSION L CORPOR TION

December 7, 2012

Attorney General of the State of CaliforniaOffice of the Attorney GeneralCalifornia Department of Justice13 00 "I" StreetSacramento, CA 95814-2919

TELEPHONE 310) 393-4000FACSIMILE 310) 394-4700

E-MAIL: [email protected]

Re: The City of Beverly Hills, etc. v Los Angeles County MetropolitanTransportation AuthorityDear Madam Attorney General Harris:

We represent The City of Beverly Hills, a municipal corporation ("City"), with respect tothe above-referenced Regional Connector Transit Corridor Project (the "Project") andcertification of the Final Environmental Impact Statement Environmental Impact Report (the"Final EIS/EIR") for the Project.Notice is hereby given pursuant to Code of Civil Procedure section 388 and PublicResources Code section 21167.7, that the City has filed a First Amended Petition for a Writ of

Mandate for Violations of the California Environmental Quality Act and a Complaint forDeclaratory and Injunctive Relief ("First Amended Petition") against the Los Angeles CountyMetropolitan Transportation Authority ("LACMTA") in the Los Angeles County Superior Court.Among other matters, the First Amended Petition alleges that LACMTA's certification of theFinal EIS/EIR and approval of the Project as violated the California Environmental Quality Act(Public Resources Code 21000 et seq.). The First Amended Petition seeks the issuance of awrit of mandate, and declaratory and injunctive relief, as well as an award of attorneys' fees andcosts. A copy of the First Amended Petition is enclosed with this letter, for your reference.Sincerely,GILCHRIST RUTTER

.onal Corporation

RIM:djEnclosure[330 148_1 DOC/S1 07 001]


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[309746 5 DOC/5107 001] 4PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF


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WESTSIDE SUBWAY EXTENSION REVIEW BEVERLY HILLS CAHEARING BEFORE THE METRO BOARD - MAY 17 2012

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Westside SubWPyExtension ReviewBeverly Hili California

ALIGNMENT OPTION 2May 2012 51-1-10024-003


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WESTSIDE SUBWAY EXTENSION REVIEW BEVERLY HILLS CAHEARING BEFORE METRO BOARD - MAY 17, 2012

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ALIGNMENT OPTION 3

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Westside Subway Extension ReviewBeverly Hlli&. Callf omla

ALIGNMENT OPTION 3May 2012 51-1-10024-003

FIG. 4


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SERVICE LIST

John F. Krattli, County CounselCharles M. Safer, Assistant County CounselRonald W. Stamm, Principal County CounselOne Gateway PlazaLos Angeles, CA 90012T: (213) 922-2525F: (213) 922-2530Email: [email protected];[email protected];[email protected] Moose Manley, LLPWhitman F. ManleyTiffany K. WrightJennifer S Holman455 Capitol Mall, Suite 210Sacramento, CA 95814T: (916) 443-2745F: (916) 443-9017Email: [email protected]@rmmenvirolaw.comilee(@.rmmenvirolaw.comKevin H. BroganDean E. DennisPaul M. PorterHill, Farrer Burrill LLPOne California Plaza, 37th Floor300 South Grand AvenueLos Angeles, CA 90071-3147F: (213) 620-0460F: (213) 624-4840Email: [email protected]@hillfarrer.compporter(@.hillfarrer.comLaurence S Wiener, Esq.City Attorney of Beverly HillsCity of Beverly Hills455 N. Rexford DriveBeverlv Hills, CA 90210

Attorneys for RespondentlDefendant LosAngeles County Metropolitan TransportationAuthority

Attorneys for RespondentlDefendant LosAngeles County Metropolitan TransportationAuthority

Attorneys for Petitioner Beverly Hills UnifiedSchool District (LASC Case No. BS137606)Courtesy Copy)

Courtesy Copy)

city of beverly hills ceqa lawsuit against metro

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