Site 1B -- Riverside Motorsports Park (formerly Pacific ComTech Park and Morimoto Industrial Park:)
This property was foreclosed upon and subsequently purchased at public auction on November 12, 2009 by Castle Farms, Inc.---Merced County Board of Supervisors Agenda Item 52, December 14, 2010.
And so ... John Condren, CEO of Riverside Motorsports Park, bought Pacific ComTech Park when Morimoto went bankrupt in 2005, and now Castle Farms, Inc., which plans to develop a large property between the former Air Force base and Merced, has bought the property at public auction.
Castle Farms, Inc., a 2,600 planned community destined for annexation into the City of Merced went through its own approval process with the city about a year before RMP requested that the county Airport Land Use Commission override the noise/safety zone for Castle airport. Without the override, the race track could not be built. Coincidentally, Castle Farms, Inc. stood to gain the ability to develop several hundred acres of its land blocked by the existing Castle airport noise/safety zone.
In a marathon session of the Merced County Board of Supervisors on Dec. 12, 2006, the override issue was voted on separately from the project approval. The board approved the project 3-2, supervisors Deidre Kelsey and John Pedrozo in opposition. The ALUC override required four out of the five supervisors vote in favor of it. Mysteriously, Pedrozo voted in favor of the override, the final step in approval of the racetrack project. The rumor among some opponents of the project was that Pedrozo had told them that Cameron Doyel, representing Castle Farms, Inc. was "a friend." Since Doyel, a political fixer for Sacramento developers, and Pedrozo, a failed Planada diaryman recently elected to the board, did not travel in the same social circles, the public was left speculating that the "friendship" was of a business nature.
As it turns out, after the RMP project was successfully blocked in court and was foreclosed on, the only winner on the developer side is Castle Farms, Inc. Brookfield/Castle Farms Inc. most recently appeared in the county contribuing $10,000 against the so-called "save farmland" initiative, defeated in November.
For readers interested in reviewing the main events around this piece of property, we have assembled a group of articles below.
We are grateful to the Badlands Journal editor who brought this obscure item in the board of supervisors' agenda to the attention of the editorial board.
Badlands Journal editorial board
Conglomerate bagman flying quietly under the radar
Castle Farms, Toronto-based Brookfield’s stake in Merced County, has a big interest in a vote the Merced County Board of Supervisors will be taking on Dec. 12. If the noise zone of Castle airport is diminished from two miles to one mile, Castle Farms may be able to develop the back part of its property, which it has claimed would be left in open space.
The board is voting on this Castle Aviation and Economic Development issue because, since the Castle joint powers agreement between the County and the cities of Merced and Atwater fell apart, the County has had sole land-use authority over the former airbase. They also have land-use authority over the RMP land, which in unincorporated. So, wearing one hat, supervisors will vote to diminish the noise zone of the Castle airport, and wearing another, they will vote – according to best informed guesses – to approve the racetrack.
Then, the supervisors will sit back and watch the lawsuits fly, knowing they are indemnified by RMP from having to pay legal fees and costs arising from their decision, irresponsible to the environment and public health and safety.
However, from the public point of view, considering the mutually reinforcing negative environmental impacts of the three projects -- the airport, the RMP, and the Castle Farms should be considered one and the same from the viewpoint of the California Environmental Quality Act. Both RMP and Castle Farms plans rely to a significant extent on the decision to reduce the airport’s noise zone. All three of the projects look to one land-use authority, the County. If the CEQA legal term, cumulative impacts, is to retain any meaning in law or policy, the decision to override “for economic reasons” the airport’s 2-mile noise zone will have cumulative impacts from the western part of the City of Merced into an area stretching to the Merced River Corridor, Atwater, Winton, Cressey, Ballico, and Delhi because it will pave the way from the RMP project and permit expansion of the Castle Farms project.
A representative of the Canadian financial conglomerate, Brascan, of which Brookfield is a subsidiary and Castle Farms is a project, will be watching the supervisors’ vote on the airport with deep interest.
The Roseville-based conglomerate’s representative is described in the Sacramento business press as a “veteran land-development consultant,” linked with Angelo Tsakopoulos and Eli Broad in projects in Natomas (a major flood plain) and about 6,000 acres west of Roseville. He came to Merced about two years ago and began to show up in all kinds of interesting groups.
In the past year, an entity called Brookfield Castle Del Mar directed $43,000 to the measures A and G campaigns to raise sales taxes to pay for new roads, a direct benefit to Castle Farms and RMP. How much Brookfield money has been directed into the campaign war chests of supervisors is an interesting question.
Toronto-based Brookfield Homes is a subsidiary of the Canadian conglomerate, Brascan. According to the Brookfield website:
Brascan is engaged in the business of asset management with a focus on real estate and power generation. The company’s assets include about 70 office properties in seven major North American cities and London and 120 power generating facilities, primarily located in the northeast. In addition, the company provides a host of management and advisory services, primarily in the real estate sector to corporate and individual clients. Brascan is recognized as a developer of master planned residential communities in both Canada and the United States. The primary operations are real estate, power generation and asset management.
Brascan operates in many areas of the real estate business. The company owns and manages a portfolio of office properties, develops master planned residential communities and offers its clients an array of bridge and mezzanine lending, alternative asset funds and financial and advisory services. The company’s master planned residential community business is conducted under established trade names Brascan, Brookfield Homes and Carma, with operations in six North American markets: California, Virginia, Denver, Calgary, Edmonton and Toronto and two markets in South America: Rio de Janeiro and Sao Paulo. Brascan also builds homes for sale and develops commercial lands and income properties for investment and sale.
The company has created a platform of alternative asset funds within the real estate sector. The funds managed by the company and its co-investors include: Brascan Real Estate Finance Fund, Brascan Real Estate Opportunity Fund, and the TriContinental Capital Fund. The company also manages the Royal LePage Franchise Services Fund, a royalty fund targeting primarily retail investors … Brascan's asset management activities are focused on alternative investments, including private equity and direct investments in real estate; and energy and resource assets. The asset management business of Brascan has clients which include pension funds, life insurance companies, financial institutions, corporations and high net-worth individuals. In addition, Brascan also develops and manages structured investment products and companies designed to appeal to specific investors including income trusts, split-share companies and asset securitizations. Brascan also manages a number of hedge funds. The company also has investments in privately-held investment management and mutual fund companies that manage equity and fixed income investments.
So, on Tuesday, follow the money to discover why the supervisors don’t take the obvious step that would stop the racetrack: voting down the airport noise-zone reduction.
Brookfield is one of the biggest, richest development corporations operating in California. This Canadian assets/real estate/energy conglomerate last year bought Olympia & York, which, until its spectacular collapse in the London commercial real estate market, was the largest development company in the world.
The rumor is that distressed developers with unfinished subdivisions are flocking to the deep pockets represented by the veteran Roseville development consultant.
The benefit to Castle Farms from reducing the airport noise zone may prove once again the ancient political truism: No matter how screwed up and destructive a situation is – politically, economically and environmentally -- it always benefits somebody, usually the guy with the deepest pockets.
Tsakopoulos also owns 900 acres to the north and west of Roseville, at the intersection of Fiddyment Road and Sunset Boulevard West. Much of the acreage between that piece and his west-of-Roseville holdings is controlled by major land developers, including insurance magnate Eli Broad and Brookfield Homes, a major Canadian homebuilder.
-- Sacramento Business Journal, March 21, 2003
In order to approve the reduction of the airport noise zone and approve the RMP environmental impact report, the supervisors will have to employ something called an “economic override.” In the case of the EIR, they will have to find that economic benefits override 34 “significant and unavoidable” environmental impacts. But, whose economics are overriding whose? No economic benefits from the project for Merced County are liable to offset the economic disruption to agriculture in the whole region from Highway 99 to the Merced River Corridor and Delhi to west Merced.
Badlands editorial staff
Supervisors override ban on building near airports...Corinne Reilly
The Merced County Board of Supervisors issued a preliminary decision Tuesday to override a 2003 finding that plans for the Riverside Motorsports Park conflict with land use rules at Castle Airport. The Airport Land Use Commission ruled three years ago that plans to build the 1,200-acre motorsports venue adjacent to the airport conflict with the county's 1999 Airport Land Use Plan. Specifically, raceway plans conflict with a safety zone rule that bans development within 10,000 feet of an airport runway. Questions over the legitimacy of the commission's finding were raised when the county's Department of Commerce, Aviation and Economic Development began updating Castle Airport Aviation and Development Center's master plan four months ago to reflect new state guidelines on land use near airports. Under the new state guidelines -- on which local airport land use plans are often heavily based -- development is only banned within 6,000 feet of runways...the conflict between raceway plans and airport rules would be eliminated, said John Fowler, the county's director of commerce, aviation and economic development. "The problem is that the local plan is inconsistent with the state of California's plan," Fowler told the board during Tuesday's meeting. Tuesday's unanimous vote doesn't mean an end to the debate...board's decision kicks off a 45-day comment period during which local, state and federal aviation agencies can give their input on whether the raceway's proximity to Castle poses a risk...board is scheduled to make its final decision to approve or deny plans for the raceway on Dec. 12.
Letter to the supervisors on the Castle airport rezone
Submitted: Dec 14, 2006
This letter was submitted to the Merced County Board of Supervisors Tuesday, along with 23 supporting documents. -- Editor
Lydia Miller, President
San Joaquin Raptor Rescue Center
P.O. Box 778
Merced, CA 95341
(209) 723-9283, ph. & fax
Protect Our Water (POW)
3105 Yorkshire Lane
Modesto, CA 95350
(209) 523-1391, ph. & fax
Merced County Board of Supervisors December 12, 2006
2222 M Street
Merced, California 95340
Fax: (209) 726-7977
Ph: (209) 385-7366 Via facsimile and Email
Re: Public hearing to consider the issuance of a proposed decision and findings regarding the Airport Land Use Commission's Finding as to consistency between the Airport Land Use Plan and the Riverside Motorsports Park Project- PH 6:00 PM
We come before you having already – along with other members of the public – submitted numerous oral and written comments on Oct. 24 regarding Resolution No. 2006-189. We saw no evidence at the Oct. 24 public hearing or the Nov. 14 public hearing on RMP nor in the staff report today that our comments were heard or read. Therefore, we are resubmitting our letter and attachments from Oct. 24.
It is our position that:
For the Merced County Board of Supervisors to decide and find that the Castle airport noise and public safety zone should be restricted to accommodate the RMP project and Castle Farms’ future plans violates the spirit, legislative intent, and the letter of numerous state and federal statutes. They include but are not limited to:
California Environmental Quality Act sections:
21000: Legislative intent
21001: Additional legislative intent
21001.1: Review of public agency projects
21157.6: Updating a Master EIR
21083.8: Special Rules of EIRs for Military Base Reuse Plans
21096: Procedures for airport use compatibility
21167.6 (e): Project record
CEQA Guidelines sections:
15110: Projects with federal involvement
15150: Incorporation by reference
15132 (d): Contents of FEIR
15180-15190: Special situations (redevelopment zones)
15206: Projects of statewide, regional, or areawide significance
15220-15229: General considerations on projects subject to both CEQA and NEPA
California Public Utilities Code section:
21690.9: Airport facilities and concession
National Environmental Protection Act sections:
1501.3: When to prepare and EIS
1501.4: Whether to prepare and EIS
1501.5: Lead agencies
California Government Code sections:
51200: California Land Conservation Act
51205: Agricultural preserve/wildlife habitat
Ralph Brown Act sections:
65030: State policy, legislative intent to protect state land resource
65030.1: Effective planning process for growth
65030.2: Need for full knowledge of economic and fiscal implications of land-use decisions
65031: Continuous evaluation and execution of statewide environmental goals
65032: Analysis of impact of individual programs on statewide environmental goals
65033: Local agency must involve the public in every level of planning
65089: Congestion management programs
This project, without which the RMP project cannot be certified, is an example of piecemealing, tiering a project off an non-existent Master EIR, which takes no account of cumulative impacts throughout a wide region beyond its borders. This project has unknown, unanalyzed impacts within the expanding Sna Joaquin Valley Foreign Trade Zone, which now includes several other counties in the Central Valley.
On Nov. 20, we filed a state Public Records Act request with Robert Lewis, county planning director, requesting all information pertaining to indemnification agreements between Merced County and Riverside Motorsports Park, including but not limited to:
· meeting notes
· phone logs
· staff reports
· drafts of such indemnification agreements
· any budgets or other public financial information pertaining to the County/RMP relationship.
We also requested any information in County possession regarding the necessity of Castle Airport, Aviation and Development Center to have a contiguous property in private ownership in order to realize the commercial potential of its foreign trade zone status. We request access to:
· meeting notes
· phone logs
· staff reports
· drafts of agreements pertaining to Castle AADC and RMP regarding the foreign trade zone
· any budgets or financial information regarding the relationship between RMP and CAADC.
In response to this Public Records Act request we received five pertinent documents: a 1997 letter from Morimoto Farms; a 2000-2001 annual report of Pacific Comtech Park (aka Morimoto Industrial Park); a 2003 letter from RMP Chief John Condren to Foreign Trade Zone 226 Administrator John Fowler; the 2002-2003 Foreign-Trade Zone annual report, including the Central San Joaquin Valley Foreign-Trade Zone Advisory Board minutes for Dec. 12, 2003.
This response did not adequately comply with the request we made under California Government Code Section 6250 et seq.
The minutes of the Dec. 12 FTZ 2003 meeting reported that Merced County Board of Supervisors’ Chairman Mike Nelson was elected chairman of the Central San Joaquin Valley Foreign Trade Zone Advisory Board. If he is still chairman, he has a conflict-of-interest voting on this override or on the RMP project approval.
When we look at the RMP project and the Castle airport through the plans of the San Joaquin Valley Foreign Trade Zone, we realize they are one and the same project, and part of a much larger, multi-county enterprise.
In a letter dated June 23, 2003, RMP Chief John Condren wrote John Fowler, administrator of Central San Joaquin Valley FTZ 226, “It is our intent to develop this acreage in its entirety for commercial use and to fully utilize the potential of the Foreign Trade Zone, in conjunction with Merced County’s Castle Airport. To this, our application for development and the Notice of Preparation for Riverside Motorsports Park’s Environmental Impact Report have been filed and processed by Merced County Planning Department.”
The minutes of the 2003 SJV FTZ board of advisors, state: Riverside Motorsports Park committed to performing testing activities with imported motor vehicles on their 240 acres within the Zone. The property owners have been informed that retail uses are not allowed on FTZ designated land.”
In the FTZ Advisory Board minutes, the airport and RMP they are considered one project: “Castle Airport/Riverside Motorsports Park.”
The Merced County Board of Supervisors is the Grantee for the multi-county FTZ 226, as well as being the land-use authority for the Castle Aviation and Economic Development area and for unincorporated Merced County. When it comes to a vote on the noise zone of the Castle airport, a terrific conflict-of-interest ensues. When the public considers that Merced County is also the lead county in the San Joaquin Valley Partnership and for regional transportation planning, the conflicts-of-interest of this board multiply.
Merced County, at this point, should realize from its experience with the UC Merced and UC Community plans that just because project proponents seek to fragment and piecemeal projects by splitting them, it doesn’t mean that from the point of view of state and federal resource agencies, the environmental impacts of such joined projects are viewed separately.
Jurisdiction of foreign trade zones is with the federal Department of Commerce. However, we see no evidence that state or federal resource agencies have consulted on the environmental consequences of the airport/RMP project.
RMP is applying for a General Plan Amendment to redesignate the property from Agricultural to Castle SUDP Industrial. RMP is reliant on the Castle airport and the Castle airport is reliant on RMP. They are one project.
As one project, they are subject the CEQA. Since the airport project is being considered separately and without environmental review, the override must be rejected and the RMP environmental review re-circulated, including the airport project.
We close with a comment written to Deputy County Counsel Walter W. Wall from state Department of Transportation Associate Transportation Planner Joanne Hutton McDermott:
“While the chance of an aircraft injuring someone on the ground is historically quite low, an aircraft accident is a high consequent event. To protect people and property on the ground from the risks if of near-airport aircraft accidents, some form of restrictions on land use are essential.”
· Your own description of the public hearing on the airport issue shows it is totally connected to the RMP project;
· The County has violated sections of the California Environmental Quality Act, CEQA Guidelines, the state Public Utilities Code, the federal National Environmental Protection Act;
· The County has violated sections of the state law of public meetings, the Ralph Brown Act;
· The County has violated the state Public Records Act;
· The Merced County Board of Supervisors is in conflict of interest on this project and therefore cannot vote on it: the board is the land-use authority of unincorporated Merced County (the RMP property); the board is land-use authority of the Castle Aviation and Economic Development area; and the board the grantee of the San Joaquin Valley Foreign Trade Zone 226;
· To fragment and piecemeal these two projects violates state and federal environmental law;
· Reopening the public hearing on the RMP project on Dec. 12 violates another section of the Brown Act of public meetings;
· The County neglected to note that the noise zone around the airport is also a safety zone to protect the public against near-airport airplane accidents.
Lydia Miller Steve Burke
Oct. 24 Raptor/POW letter
Nov. 14 Raptor/POW packet
“Forgotten Intent of the Williamson Act,” Christopher Butcher
Badlandsjournal.com, Dec. 8
RMP flyer, Dec. 11
Badlandsjournal.com, Dec. 10
Raptor/POW CPRA request material, received Dec. 11
Cc: Interested parties
Merced County sued for reducing Castle Airport noise and safety zone to benefit racetrack project
MERCED (March 16, 2007) -- Two local environmental groups filed suit Thursday in Merced County Superior Court against Merced County, the Board of Supervisors and Riverside Motorsports Park, LLC under provisions in the State Aeronautics Act and the California Environmental Quality Act (CEQA).
San Joaquin Raptor Rescue Center and Protect Our Water challenged the December 12 Board of Supervisors' decision to override the Castle Airport Land Use Commission and reduce the diameter of the noise/safety restricted zone around the airport sufficiently to permit Riverside Motorsports Park to built its facility nearby.
The two local environmental groups petitioned the court for a writ of mandate to set aside the Dec. 12 override on the basis that it violates the Aeronautics Act and CEQA, to make adequate findings of fact, prepare, circulate and consider legally adequate environmental review for the override, and suspend activity that could result in any change of alteration of the physical environment until the override is legally compliant.
The causes of action for the suit are Merced County's abuse of discretion under the Aeronautics Act and CEQA, including:
· Failure to make fact-specific findings required by the Aeronautics Act;
· Failure to set forth findings sufficient to bridge the analytical gap between the raw evidence and the ultimate Board decision to reduce the size of the airport noise/safety zone;
· Failure to analyze the environmental impacts of the override under CEQA;
· Failure to consider the override a project under CEQA;
· Failure to provide any findings as required by CEQA on a project.
"In a nutshell, the Board could not certify the racetrack environmental impact report without reducing the size of the airport's noise/safety zone," said Lydia Miller, president of the Raptor Center.
"We are represented by the skilled and experienced environmental law firm of Don Mooney and Marsha Burch,"Miller added.
The petition is attached.
For further information contact:
San Joaquin Raptor Rescue Center
Merced CA 95341
DONALD B. MOONEY
Law Offices of Donald B. Mooney
Davis CA 95616
DONALD B. MOONEY (SBN153721)
MARSHA A. BURCH (SBN 170298)
LAW OFFICES OF DONALD B. MOONEY
Telephone: (530) 758-2377
Facsimile: (530) 758-7169
Attorneys for Petitioners
San Joaquin Raptor Rescue Center
and Protect Our Water
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MERCED
SAN JOAQUIN RAPTOR RESCUE
PROTECT OUR WATER
VERIFIED PETITION FOR WRIT OF MANDATE
v. COUNTY OF MERCED; MERCED COUNTY BOARD OF SUPERVISORS; AND DOES 1-10
RIVERSIDE MOTORSPORTS .
PARK, LLC and DOES 11-100
Real Parties in Interest.
Code Code Civ. Proc. § 1094.5; State Aeronautics Act, Pub. Res. Code
§§ 21676.5 and 21670; and CEQA, Pub. Res. Code § 21000, et seq.
1. By this action, Petitioners San Joaquin Raptor Rescue Center and Protect Our Water (“Petitioners”) challenge the action on December 12, 2007, by the County of Merced and the Merced County Board of Supervisors (“County” or “Respondents”) overruling a finding of inconsistency by the Merced County Airport Land Use Commission (“ALUC”) between the Merced County Airport Land Use Plan and the Riverside Motorsports Park Project (the “Override”). Petitioners allege that these actions violate the Public Utilities Code, specifically the State Aeronautics Act (Public Utilities Code §§ 21670 and 21676.5) (the “Act”). Petitioners also allege violation of the California Environmental Quality Act (“CEQA”) Public Resources Code section 21000 et seq., as a result of Respondents’ failure to conduct environmental review of the discretionary Override decision. Petitioners seek a determination from this Court that Respondents’ action in overriding the inconsistency determination of the ALUC is invalid and void as contrary to law and/or an abuse of discretion.
2. Petitioner San Joaquin Raptor Rescue Center is a non-profit group that works for preserving wildlife habitats and the environment in general in the San Joaquin Valley and Merced County area. To that end, it is involved in efforts to protect the resources of the Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. The Center also is committed to public education regarding these various issues and ensuring governmental compliance with the law of this state. The Center is composed of persons whose economic, personal, aesthetic, and property interests will be severely injured if the adoption of the project is not set aside pending full compliance with CEQA and all other environmental laws. Center members utilize and enjoy the County's and State's natural resources. The Center brings this petition on behalf of all others similarly situated who are too numerous to be named and brought before this court as petitioners. As a group composed of residents and property owners generally within the San Joaquin Valley and specifically in Merced County, the Center is within the class of persons beneficially interested in, and aggrieved by, the acts of respondents as alleged below. Members of the Center participated in the administrative processes herein, and exhausted its remedies. Accordingly, the Center has standing to sue.
3. SJRRC and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, safety and land use issues. SJRRC is affected by Respondents’ failure to comply with the Act.
4. Petitioner Protect Our Water is an unincorporated association formed in 1998 for the purpose of increasing the awareness, appreciation, and preservation of the environmental resources within the Central Valley region of central California, as well as within other areas of the State of California. POW aims to protect natural resources and the environment and to uphold the integrity of environmental and land use planning and review processes. POW’s membership includes residents and property owners within Merced County and the San Joaquin Valley in general, and as such is within the class of persons beneficially interested in, and aggrieved by, the acts of Respondents as alleged below. POW participated in the administrative processes herein, has exhausted its remedies, and has standing to sue.
5. POW and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, safety and appropriate land use planning. POW is affected by Respondents’ failure to comply with the Act.
6. Respondent Merced County is a political subdivision of the State of California and a body corporate and politic exercising local government power. Merced County is responsible for compliance with the Act.
7. Respondent Merced County Board of Supervisors is a legislative body duly authorized under the California Constitution and the laws of the State of California to act on behalf of the County of Merced. Respondent Merced County Board of Supervisors are responsible for regulating and controlling land use within the County including, but not limited to, compliance with California land use laws, including the Act.
8. Petitioners are unaware of the true names and capacities of Respondents identified as Does 1-10. Petitioners are informed and believe, and on that basis allege, that Respondents Does 1-10, inclusive, are individuals, entities or agencies with material interests affected by the Override. When the true identities and capacities of these Respondents have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to insert such identities and capacities.
9. Real Party In Interest Riverside Motorsports Park, LLC is a California Limited Liability Company and conducting business in the state of California. RMP is the applicant for and beneficiary of the County’s general plan amendments, zoning changes, and certification of the Riverside Motorsports Project (“Project”), the subject of the ALUC’s inconsistency determination, which was overridden by Respondents.
10. Petitioners are currently unaware of the true names and capacities of Does 11 through 100, inclusive and therefore sue such unnamed Real Parties in Interest by their fictitious names. Petitioners are informed and believe and thereon allege, that fictitiously named Real Parties in Interest have an interest in the subject of this Petition. When the true identities and capacities of Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to include such identities and capacities.
9. The RMP Project is proposed for construction on 1,187 acres of agricultural land located east of the City of Atwater in the County of Merced. Castle Airport (formerly Castle Air Force Base) and the Castle Specific Urban Development Plan area are located immediately southwest of the Project site.
11. The RMP Project is proposed to include the construction of a regional motorsports recreation, entertainment and commercial business facility.
12. The Notice of Preparation (“NOP”) of the environmental document for the Project was originally circulated to the Governor’s Office of Planning and Research on July 22, 2003. Following release of the NOP, revisions to the Project description were identified by RMP that required the NOP’s recirculation. The NOP was recirculated on March 14, 2005 for a 30-day comment period.
13. On October 1, 2003, the ALUC made a determination that the Project is inconsistent with the Merced County Airport Land Use Plan.
14. On December 12, 2006, the Merced County Board of Supervisors, relying upon Public Utilities Code section 21676(b), overrode the ALUC’s inconsistency determination, approving Resolution 2006-189. Resolution 2006-189 is attached hereto as Exhibit A and made a part hereof by this reference.
15. Resolution 2006-189 includes conclusory findings regarding noise impacts related to the Override, but the Resolution does not include any specific findings of fact related to safety. The findings do not include any reference to environmental review for the Override, nor do they include findings required by CEQA.
16. On December 12, 2006, the same date Resolution 2006-189 was adopted by Respondents, Respondents certified the Final Environmental Impact Report for the RMP Project.
17. On December 19, 2006, the Board of Supervisors approved the General Plan Amendment to expand the existing Castle Specific Urban Development Plan boundaries to include the Project site; approve the amendment to the Circulation Chapter of the General Plan; approve the amendment to the Merced County Zoning Code to change the existing zoning designations on the Project site from General Agriculture (A-1) and Exclusive Agriculture (A-2) to Planned Development (PD); remove the Project site from the Agricultural Preserve Area; and approve the Master Plan.
JURISDICTION AND VENUE
18. This Court has jurisdiction over the alleged violations of the Act contained in this Petition pursuant to Code of Civil Procedure section 1904.5. With respect to the CEQA cause of action, this Court has jurisdiction over this action pursuant to sections 1085 and 187 of the California Code of Civil Procedure and section 21168.5 of the California Public Resources Code. Petitioners believe that this action is properly brought as a petition for writ of mandate under those provisions. However, should this Court conclude that this action cannot be properly be brought as a petition for a writ of mandate, petitioners request that this Petition be construed as a petition for writ of administrative mandamus (for which jurisdiction would lie pursuant to Code of Civil Procedure sections 1094.5 and 187, and Public Resources Code section 21168), or for other appropriate extraordinary relief.
19. Venue for this action properly lies in the Superior Court for the State of California in and for the County of Merced pursuant to section 394 of the Code of Civil Procedure.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND INADEQUACY OF REMEDY
20. Petitioners have performed any and all conditions precedent to filing the instant action and have exhausted any and all available administrative remedies to the extent required by law. Petitioners timely submitted written comments on the Override.
21. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law unless this Court grants the requested writ of mandate to require Respondents to set aside their Override. In the absence of such remedy, Respondents’ approvals will remain in effect in violation of State law.
22. This action has been brought within 90 days of the Override as required by Code of Civil Procedure section 1094.6.
23. Petitioners have standing to assert the claims raised in this Petition because Petitioners and their members’ environmental interests are directly and adversely affected by the County’s Override.
ARBITRARY AND CAPRICIOUS ACTIONS
24. Petitioners bring this action on the basis, among others, of Government Code section 800, which awards Petitioners’ attorneys’ fees in actions to overturn agency decisions that are arbitrary and capricious, such as the decisions here in question.
FIRST CAUSE OF ACTION
(Abuse of Discretion)
Violations the State Aeronautics Act
Public Utilities Code section 21001, et seq.
25. Petitioners reallege and incorporate by reference Paragraphs 1 through 24, inclusive, of this Petition, as if fully set forth below.
26. Respondents committed a prejudicial abuse of discretion and failed to proceed in a manner required by law by failing to make fact-specific findings as required by the Act, and failed to set forth findings sufficient to bridge the analytical gap between the raw evidence and the ultimate decision.
27. Respondents violated the Act in failing to make findings sufficient under Public Utilities Code section 21676(b) and as required under Code of Civil Procedure section 1094.5.
28. Respondent’s failure to comply with the requirements of the Act renders the Override inadequate as a matter of law and requires that Respondent’s decision be set aside.
SECOND CAUSE OF ACTION
(Abuse of Discretion)
Violation of CEQA, Public Resources Code, § 21000 et seq.
29. Petitioner realleges and incorporates herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 28 of this petition and further allege as follows:
30. Respondents have abused their discretion and failed to act in the manner required under CEQA with respect to the Override because they have failed to analyze its environmental impacts, and failed to make any determination at all with respect to the applicability of CEQA to the Override determination.
31. CEQA applies to “discretionary projects proposed to be carried out or approved by a public agency.” (Pub. Resources Code § 21080(a).) Approval of the Override was a “Project” under CEQA because the Override is an activity carried out, supported by, or authorized by a public agency, “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code § 21065; Guidelines § 15378(a).)
32. Respondents made no CEQA findings related to the Override. Accordingly, Respondents’ Override should be set aside.
PRAYER FOR RELIEF
WHEREFORE, Petitioners pray for judgment as follows:
1. That this Court issue a peremptory writ of mandate ordering the County to:
(a) vacate and set aside its December 12, 2006, Override on the ground that it violates the State Aeronautics Act, Public Utilities Code section 21001 et. seq.;
(b) prepare adequate findings of fact, including findings bridging the analytical gap between the raw evidence and the ultimate decision;
(c) vacate and set aside its December 12, 2006, Override on the ground that it violates the California Environmental Quality Act, Public Resources Code section 21000 et seq.;
(d) prepare, circulate and consider legally adequate environmental review for the Override;
(e) suspend all activity that could result in any change or alteration to the physical environment until Respondents have taken such actions as may be necessary to bring its determination, findings or decision regarding the Override into compliance with the Act and CEQA;
2. For Petitioner’s costs associated with this action;
3. For an award of reasonable attorneys’ fees pursuant to Code of Civil Procedure section 1021.5; and
4. For such other and further relief as the Court may deem just and proper.
LAW OFFICES OF DONALD B. MOONEY
Dated: March ___, 2007
By Donald B. Mooney
Attorney for Petitioners
San Joaquin Raptor Rescue Center, and
Protect Our Water
Slippery John Pedrozo and other misconceptions about the Riverside Motorsparts Pork votes
One of the amusements of the recent series of town hall meetings, the last held in the Merced County Supervisors' chambers, was listening to people stumble over the ugly name of the project, Riverside Motorsports Park.
The preferred mispronunciation was "Riverside Motorsparts Pork," although many people, realizing they has erred on the "sparts" tried desperately to avoid the "pork," which is the right name for the project, however mumbled.
Of course, however many times the people reiterated "Riverside Motorsparts Pork," it didn't help their case, because the public comment period on the project's final environmental impact report closed on Dec. 5. Although what the public said after Dec. 5 meant something politically, it didn't mean anything legally. It didn't mean enough politically.
The issue that mattered at the Dec. 12 evening meeting of the board of supervisors was the vote to override the Castle airport noise/safety zone to restrict its diameter sufficiently to put the motorsparts pork grandstand outside of its restrictions.
The Dec. 12 meeting was rigged to a fare-thee-well. People (it did not originate here) are calling the supervisors the "Merced County Board of Developers" now. The geniuses we employ in the administration building busy trying to avoid the public perception of graft and corruption on the board held yet another town hall meeting for several hours allowing 57 people to blow off more legally ineffectual steam on the motorsparts pork EIR.
Enter Slippery John, as bogus a hero of agriculture and public health and safety as we have on the board. Pedrozo voted against certifying the EIR in the 3-2 vote that approved it. He was also on the losing side in a 3-2 vote to allow traffic and noise from the motorsparts pork to exceed current county standards, to remove the land from the Williamson Act Agricultural Preserve (corrupted beyond recognition in Merced County), and some other things in an omnibus motion to make everything nice and legal by gutting County public health and safety standards.
So, Slippery John is down 2-0 going into midnight, right? But, he still looks like he's on the side of the angels.
Then comes the vote on the Castle airport override. As Board of Developer Chairman Mike Nelson mumbled at the very last minute before the vote was taken, this one required at least four votes to pass. If the override didn't get those four votes, the motorsparts pork was stopped.
Slippery John was the fourth vote.
He was also the fourth vote on the motion for RMP to indemnify the County against all costs arising from the Board of Developers' decision and for two other motions for RMP to pay various consultants' fees.
In fact, the Merced Sun-Star was correct when it published that Slippery John voted for the project. With his vote on the airport override he guaranteed the project would go forward. Without his vote, the project was have been stopped. The paper's editorial board supported the motorsparts pork, so it ate faux crow and corrected itself, saying, "He (Pedrozo) voted to deny the project," drawing attention away from the airport vote, which was the serious business of the County board of developers' thoroughly rigged show.
This "correction" is a ration of the well-known substance. However, the paper has apparently unearthed a previously, consistently, and at times vehemently denied fact: the Riverside Motorsparts Pork is connected with NASCAR. This, it seems to us, could only mean that this operation has been involved with NASCAR all along and the CEO and his flacks have been doling out another ration of the well-known substance on this issue. But, you have to ask: between the motorsparts pork and the paper, who are you gonna believe?...