Escolar Documentos
Profissional Documentos
Cultura Documentos
FILED
3/22/2017 2:03:58 PM
1 JOCELYN THOMPSON (State Bar No. 106544)
ANDREA S. WARREN (State Bar No. 287781)
2 ALSTON & BIRD LLP
333 South Hope Street, 16th Floor
3 Los Angeles, CA 90071
Telephone: 213-576-1000
4 Facsimile: 213-576-1100
E-mail: jocelyn.thompson@alston.com
5 E-mail: andrea.warren@alston.com
2 1. Under the County of San Luis Obispos Coastal Zone Land Use Ordinance
3 (CZLUO), property in the Coastal Zone may be designated as Environmentally Sensitive Habitat
4 Area (ESHA)and therefore, with rare exception, undevelopablein one of two ways. Either
5 the property may be legislatively mapped as ESHA in the Countys Land Use Element, or the
6 Countys Department of Planning and Building and/or the Director thereof (collectively,
7 Department) may determine that a property proposed for development has Unmapped ESHA. The
8 CZLUOs Unmapped ESHA provision strictly limits the Departments power to designate
9 property as Unmapped ESHA: The Department may make an Unmapped ESHA determination only
10 at or before the time that the Department accepts the application as complete. Once the application
11 is accepted, the Department has no power to declare that an applicants property is Unmapped (and
13 2. The legislative purpose behind the laws strict deadline is to provide some level of
14 predictability to applicants. The deadline assures a project applicant that any undevelopable ESHA
15 will be identified very early in the permit process so that the applicant does not needlessly expend
16 significant resources proceeding with a costly and time-consuming permit-review process, just to
17 find out that the project suddenly is precluded by a last-minute declaration by the Department that
20 chose simply to ignore the deadline in this case. Over three years after application acceptance, and
21 after Phillips 66 had invested substantial resources to facilitate the Departments environmental
22 review of its application, the Department did an about-face and made a determination that Phillips
23 66s project site had undevelopable Unmapped ESHA. On October 5, 2016, the Planning
24 Commission denied Phillips 66s project and adopted Department-crafted Findings for Denial,
26 4. This action challenges the Departments final and non-appealable determination that
27 the project site is undevelopable Unmapped ESHA. Under the CZLUOs Unmapped ESHA
28 ordinance, the Department had a clear, present, and mandatory duty to make an Unmapped ESHA
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Verified First Amended Petition/Complaint
1 determination (if at all) only before or at the time of application acceptance. The Department has
2 violated that clear, present, and mandatory duty. As the project applicant with property now
3 designated as undevelopable ESHA, Phillips 66 has a beneficial interest in ensuring that the
4 Department discharges that duty. For that reason, Phillips 66 seeks a writ commanding the
5 Department set aside its Unmapped ESHA determination and make a new determination that the
6 project site has no Unmapped ESHA, as required by law. Phillips 66 further seeks a writ
7 commanding the Planning Commission to correct its unlawful adoption, ratification, acquiescence
8 in, or reliance upon the Departments Unmapped ESHA determination and reconsider its project
9 denial on the correct assumption that the project site has no Unmapped ESHA.
11 due process grounds, both as applied to Phillips 66 and facially. The ordinance authorizes the
12 Department to designate property as Unmapped ESHA at or before the time of application (or,
13 under the Countys interpretation, at any time during the review of a land-use application), without
14 adequate notice, an opportunity to be heard, or an evidentiary hearing. Further, the ordinance itself
15 is so vague and ambiguous about what constitutes Unmapped ESHA as to provide little to no
16 guidance to applicants as to whether and the extent to which they are precluded from using and
18 6. Phillips 66 has no other recourse but to bring this action and obtain immediate relief
19 from the Departments unlawful Unmapped ESHA determination.
20 PARTIES
23 Houston, Texas. It is the owner of 1,780 acres of land located at 2555 Willow Road, Arroyo
24 Grande in the COUNTY OF SAN LUIS OBISPO, where it operates the Santa Maria Refinery.
25 Phillips 66 uses about 200 acresor roughly 11 percentof its 1,780-acre property for refining
26 operations. As the name suggests, the Santa Maria Refinerys primary function is to refine crude oil
27 into high-quality feedstock for further processing into gasoline, diesel, and jet fuel. Phillips 66 is the
28 applicant for a project that the Planning Commission recently denied after adopting, ratifying,
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Verified First Amended Petition/Complaint
1 acquiescing in, or relying upon the unlawful determination of RESPONDENTS AND
3 BUILDING and/or DIRECTOR OF PLANNING AND BUILDING FOR THE COUNTY OF SAN
4 LUIS OBISPO that Phillips 66s property contains undevelopable Unmapped ESHA.
6 is a local government agency and political subdivision of the State of California vested with the
7 authority to regulate land use within its boundaries, and can sue and be sued. The County acts
8 through, and is ultimately responsible for the determinations and decisions of its agencies and
9 officials.
12 along with REAL PARTY IN INTEREST COUNTY OF SAN LUIS OBISPO BOARD OF
14 PLANNING COMMISSION, the planning agency of the County. Among other things, the
15 Department of Planning and Building functions as the administrative entity responsible for the
16 coordination of review and decision-making and the provision of information regarding the status of
17 all applications and permits required by Titles 19, 20, 21, 22, and 23 of the County Code.
20 Director of Planning and Building is responsible for the proper and efficient administration of the
21 Department of Planning and Building and must ensure the performance of all duties imposed on the
22 Director or Department by the County Code, including the duty to make an Unmapped ESHA
23 determinationif at allonly at or before the time of application acceptance, and no later. The
24 Department of Planning and Building and/or the Director of Planning and Building made the
25 unlawful determination that Phillips 66s contains Unmapped ESHA, in clear violation of the non-
26 discretionary duty imposed on them under the law. Unless otherwise indicated, the Department of
27 Planning and Building, and the Director of Planning and Building, shall be referred to collectively as
28 the Department.
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Verified First Amended Petition/Complaint
1 10. RESPONDENT AND DEFENDANT COUNTY OF SAN LUIS OBISPO
3 INTEREST COUNTY OF SAN LUIS OBISPO BOARD OF SUPERVISORS and the Department
4 of Planning and Building, is designated as the planning agency of the County pursuant to section
5 65100 of the Government Code. San Luis Obispo County Code (Code) 2.24.010. Among other
6 things, the Planning Commission reviews and makes decisions on land-use applications.
7 11. Phillips 66 does not know the true names or capacities of the persons or entities sued
8 as RESPONDENTS AND DEFENDANTS DOES 1 through 10, inclusive, and therefore sues these
9 parties by their fictitious names. Phillips 66 will amend this pleading to set forth the names and
10 capacities of the DOE Respondents/Defendants along with any additional appropriate allegations
13 SUPERVISORS (Board of Supervisors), together with the Planning Commission and the
14 Department of Planning and Building, is designated as the planning agency of the County pursuant
15 to section 65100 of the Government Code. San Luis Obispo County Code (Code) 2.24.010. The
16 Board is the legislative arm of the County government and, among other things, makes final
17 decisions on land-use applications. The Planning Commissions decision to deny Phillips 66s
20 as REAL PARTIES IN INTEREST DOES 1 through 10, inclusive, and therefore sues these parties
21 by their fictitious names. Phillips 66 will amend this pleading to set forth the names and capacities
22 of the DOE Real Parties, along with any additional appropriate allegations when such information is
23 ascertained.
25 14. This Court has jurisdiction over this action pursuant to Code of Civil Procedure
26 sections 1085 (traditional writ of mandate), 1060 (declaratory relief), and 526 (injunctive relief).
27 15. Venue is proper in this Court pursuant to Code of Civil Procedure sections 392 and
28 394, because Respondents and Defendants, and Petitioner and Plaintiffs property that is the subject
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Verified First Amended Petition/Complaint
1 of this action, are located in San Luis Obispo County.
2 16. Because the property that is the subject of this action is located in Arroyo Grande, the
3 action should be assigned to a Judge in the San Luis Obispo Courthouse, pursuant to Local Rule 9.27
5 LEGAL BACKGROUND
6 17. Under the California Coastal Act (Public Resources Code 30000, et seq.), a city or
7 county with land in the Coastal Zone is directed to draft a Local Coastal Programs (LCP), which
8 consists of a land use plan and measures to implement the plan (such as zoning ordinances) that
9 regulate development within the Coastal Zone. The local government prepares its LCP in
10 consultation with the California Coastal Commission. After the local government approves its LCP,
11 the local government submits the program to the Coastal Commission, which reviews it for
12 consistency with the requirements of the Coastal Act and, upon a finding of consistency, certifies it.
13 Once certified, the LCP transfers permitting authority over most new development to the local
14 government, which applies the requirements of the LCP in reviewing proposed projects. Even where
15 there is a certified LCP, the Coastal Commission retains original permitting authority in some
16 limited areas of the Coastal Zone, and also acts on appeals from certain local government permit
17 decisions.
18 18. Part of the County of San Luis Obispo is in the Coastal Zone and is governed by a
19 certified LCP. The Countys Coastal Zone Land Use Ordinance (CZLUO)which is the
20 Countys zoning ordinance applicable to Coastal Zone propertyis a part of that LCP.
21 19. Under the CZLUO, the County reviews an application for a permit to develop Coastal
22 Zone property to determine, among other things, whether that property contains Environmentally
24 applicants property affects the applicants right to use and develop that property, because a project
26 20. The CZLUO recognizes two types of ESHA: Mapped ESHA and Unmapped ESHA.
27 Mapped ESHA is defined as [a] type of Sensitive Resource Area where plant or animal life or their
28 habitats are either rare or especially valuable because of their special nature or role in an ecosystem
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Verified First Amended Petition/Complaint
1 and which could easily [be] disturbed or degraded by human activities and development. They
2 include wetlands, coastal streams and riparian vegetation, terrestrial and marine habitats and are
3 mapped as Land Use Element combining designations. CZLUO 23.11.030. Thus, if the County
4 has not mapped ESHA on a particular parcel, then that parcel has no Mapped ESHA.
5 21. By contrast, Unmapped ESHA is defined in section 23.11.030 of the CZLUO as [a]
6 type of Sensitive Resource Area where plant or animal life or their habitats are either rare or
7 especially valuable because of their special nature or role in an ecosystem and which could easily be
8 disturbed or degraded by human activities and development. They include, but are not limited to,
9 known wetlands, coastal streams and riparian vegetation, terrestrial and marine habitats that may not
12 Unmapped ESHA includes but is not limited to: a. Areas containing features or natural resources
13 when identified by the County or County approved expert as having equivalent characteristics and
14 natural function as mapped other environmental sensitive habitat areas; b. Areas previously known
15 to the County from environmental experts, documents or recognized studies as containing ESHA
16 resources; c. Other areas commonly known as habitat for species determined to be threatened,
18 23. The law imposes a strict deadline for determining whether a property has Unmapped
19 ESHA: The existence of Unmapped ESHA is determined by the County at or before the time of
20 application acceptance and shall be based on the best available information. Id. (emphasis added).
21 The legislative history of the deadlines adoption makes clear that the County and the Coastal
22 Commission (who certified it) intended the deadline to guarantee that any Unmapped ESHA
23 determination would be made early in the development review stage, striking a balance between
24 the need to protect Unmapped ESHA on the one hand, and the need to preserve some level of
25 predictability in the permit process and to protect the County against the constant threat of legal
26 challenge based on ever-evolving best available information, on the other. See California Coastal
27 Commissions Staff Report (prepared July 8, 2008), entitled Staff Report Addendum for Th16a
3 Department of Planning and Buildings Staff Report for Planning Commissions Feb. 4, 2016,
4 Hearing, Exh. A, p. 1.
5 25. The Department loses the power to make Unmapped ESHA determinations after
6 application acceptance, at which point section 23.11.030 imposes a clear, present, and mandatory
7 duty on the Department to desist from purporting to make any such Unmapped ESHA determination.
8 26. The Departments determination that a property has Unmapped ESHA can have
9 devastating consequences for the landowners ability to reasonably use and develop the affected
10 property. The CZLUO provides that, with very limited exceptions, [a]ll development and land
11 divisions within or adjacent to an Environmentally Sensitive Habitat Area shall be designed and
12 located in a manner which avoids any significant disruption or degradation of habitat values.
13 CZLUO 23.01.170. At a minimum, an ESHA designation will severely curtail, if not completely
15 27. No evidentiary hearing is required or authorized by law before the Department makes
17 28. Other than section 23.11.030 of the CZLUO (Unmapped ESHA definition), no
18 federal, state, or local law requires or authorizes the Department (or any other County agency or
19 official) to make Unmapped ESHA determinations, let alone dictates the factual or scientific basis
21 FACTUAL BACKGROUND
22 29. As explained above, Phillips 66 is the owner of 1,780 acres of land located at 2555
23 Willow Road, Arroyo Grande, where it operates the Santa Maria Refinery. Union Pacific Railroad
24 property bisects the Phillips 66 property from north to south. There is Mapped ESHA on the portion
25 of the Phillips 66 property that lies west of the Union Pacific Railroad property. The refinery
26 operations are on the east side of the Union Pacific Railroad property, where there is no Mapped
27 ESHA.
28 30. In late 2012, Phillips 66 began discussions with the Department about a project at its
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Verified First Amended Petition/Complaint
1 Santa Maria Refinery that would allow Phillips 66 to extend the existing rail track on the refinery
2 property east of the Union Pacific Railroad property (where there is no ESHA) and install equipment
3 needed to enable rail delivery of North American crude oil (hereinafter, the Project). Phillips 66
4 filed an application with the Department for a Development Plan and Coastal Development Permit
6 31. On or about June 18, 2013, Phillips 66s environmental consultant provided the
7 Department with a comprehensive assessment of the ecological setting of the proposed Project,
8 including a detailed characterization of the botanical and wildlife resources of the area in and
9 adjacent to the Project site, as well as a quantitative assessment of potential Project impacts on any
10 environmentally sensitive habitats that might exist on the Project site. The assessment established
11 and concluded that there was no Unmapped ESHA in or around the Project site.
12 32. The Department decided to accept Phillips 66s application on July 12, 2013. The
13 Department made no determination, at or before the time of said application acceptance, that the
14 Phillips 66 property had Unmapped ESHA. The Department never indicated that it needed
15 additional time to review Phillips 66s comprehensive environmental assessment or to decide, prior
17 33. Reasonably and detrimentally relying on the fact that the Department made no
18 Unmapped ESHA determination at or before the time of application acceptance, Phillips 66 invested
19 significant resources to process its application, consistent with the demanding and costly
20 requirements of both the CZLUO and the California Environmental Quality Act. For example,
21 between the time of application acceptance and the date the Department made its Unmapped ESHA
22 determination, Phillips 66 paid third partiesincluding the Department, the County Air Pollution
25 34. In November 2013, the Department circulated the first Draft Environmental Impact
26 Report (EIR) evaluating the Projects environmental impacts. The Draft EIR made no mention of
27 Unmapped ESHA. After reviewing public comments on the Draft EIR, on October 10, 2014, the
28 Department circulated a Revised Draft EIR. In that Recirculated Draft EIR, the Department made
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Verified First Amended Petition/Complaint
1 clear its determination that the Project Site would not be considered [Unmapped] ESHA. Revised
3 35. Sometime after it circulated the Revised Draft EIR, the Department was prompted to
5 contends that staff from the California Coastal Commission applied significant pressure on the
6 Department to revisit the Unmapped ESHA issue after Coastal Commission staff visited the Project
7 site on May 27, 2015 and concludedwrongly and without sufficient evidencethat the site had
8 ESHA. Phillips 66 made clear its view, both in in-person meetings with Department staff and in
9 writing, that any belated Unmapped ESHA determination would be (1) unsupported by the science
10 and (2) barred by the Unmapped ESHA ordinance, which prohibited the Department from making
11 such a determination long after application acceptance and following Phillips 66s substantial
12 expenditures of time and resources processing its permit application on the reasonable assumption
13 that Unmapped ESHA determination would notand could notbe designated on the site.
14 36. Although it believed the Department had no authority to revisit the Unmapped ESHA
15 issue, in July 2015, Phillips 66s environmental consultant performed additional field studies in the
16 hopes of persuading the Department that the best available information did not justify a belated
17 Unmapped ESHA determination. The Department undertook its own field studies, as well.
18 37. In December 2015, the Department issued a Final EIR. The Final EIR does not
19 reflect a definitive Unmapped ESHA determination made by the Department. Instead, the Final EIR
20 notes that the potential for Unmapped ESHA exists and that the Project site . . . appears to meet
21 the definition of Unmapped ESHA. See Dec. 2012 Final EIR at 4.4-26, 4.4-31 (emphasis added).
22 38. Thereafter, the Department issued its Staff Report for the Planning Commissions
23 February 4 hearing on Phillips 66s application. In its Staff Report, the Department did not dispute
24 the meaning of section 23.11.030s deadline for making Unmapped ESHA determinations. Rather,
25 the Department opted simply to ignore the deadline and make the determination that the Project site
26 had undevelopable Unmapped ESHAan astounding 2 years and 7 months after it had accepted
27 Phillips 66s application and misled Phillips 66 to believe that its Project would not be affected by an
28 Unmapped ESHA determination at the tail end of the Departments environmental review of the
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Verified First Amended Petition/Complaint
1 Project. Because section 23.11.030 does not provide for notice or hearing prior to an Unmapped
2 ESHA determination, the Department gave Phillips 66 no such notice or hearing prior to making its
3 determination in the Staff Report that the Project site purportedly had Unmapped ESHA.
5 in written comments and at Planning Commission hearings, explaining that the Unmapped ESHA
6 determination was precluded by both the scientific evidence and on section 23.11.030s express
7 mandate that any Unmapped ESHA determination must be made at or before the time of application
9 40. The February 4, 2016, hearing before the Planning Commission was continued 7
10 times (to February 5, February 25, March 11, April 15, May 16, September 22 and October 5). At
11 the close of the May 16 hearing, the Planning Commission instructed the Department to prepare
12 Findings for Approval, Conditions of Approval, and CEQA Findings and Statement of Overriding
13 Considerations. It appeared at that time that the Planning Commission was prepared to not adopt,
14 ratify, acquiesce in, or rely upon the Departments belated Unmapped ESHA determination. The
15 Department prepared the requested findings and approvals for the September 22, 2016, Planning
16 Commission hearing. But the Department also published and presented the Planning Commission
17 with its February 4, 2016 Staff Report and Findings for Denial of the Project, thereby reasserting its
18 unlawful Unmapped ESHA determination. On October 5, 2016, the Planning Commission held its
19 last hearing on the Project, at which time it denied Phillips 66s project and adopted the Department-
20 crafted Findings for Denial, many of which incorporated the Departments unlawful Unmapped
21 ESHA determination. In doing so, the Planning Commission adopted, ratified, acquiesced in, or
26 41. Phillips 66 re-alleges and incorporates herein each and every allegation contained in
27 Paragraphs 1-40, inclusive, as though set forth in full herein.
28 42. The Department of Planning and Building, and the Director of Planning and Building
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Verified First Amended Petition/Complaint
1 (collectively, Department), have a clear, present, mandatory and non-discretionary duty to comply
2 with the strict deadline imposed by section 23.11.030 for Unmapped ESHA determinations. Section
3 23.11.030 imposes a duty on the Department, if it wants to make an Unmapped ESHA determination
4 for a particular site, to make that determination only at or before the time of application acceptance.
5 Upon application acceptance, the Department is without power to make Unmapped ESHA
6 determinations, and section 23.11.030 imposes on it a concomitant duty to desist from doing so.
7 43. Similarly, the Planning Commission has a clear, present, mandatory and non-
8 discretionary duty to adopt, ratify, acquiesce in, or otherwise rely upon only lawful determinations,
9 including only lawful Unmapped ESHA determinations, made by the Department in adopting
11 discretion to adopt, ratify, acquiesce in, or otherwise rely upon illegal determinations made by the
13 44. The Department accepted Phillips 66s application on July 12, 2013. The Department
14 made no Unmapped ESHA determination at or before that time. And, even though the Department
15 had control over when it accepted the application, the Department did not communicate a need or
16 desire for more time to review Phillips 66s application (including its comprehensive environmental
17 assessment) and make a determination as to whether the Project site had Unmapped ESHA.
20 Drat EIR, Phillips 66 moved forward with the processing of its application, at substantial cost to it
21 and significant expenditure of its time. Under the principle of equitable estoppel, one whose
22 statement or conduct reasonably induces anothers detrimental reliance will be estopped to act
23 inconsistently with his or her statement or conduct. City of Long Beach v. Mansell, 3 Cal. 3d 462,
24 489 (1970).
25 46. When the Department indicated it would revisit the Unmapped ESHA issue, Phillips
26 66 alerted the Department on a number of occasions, both orally and in writing, that section
27 23.11.030 prohibits the Department from making Unmapped ESHA determinations after application
28 acceptance.
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Verified First Amended Petition/Complaint
1 47. By October 5, 2016, the date of the Planning Commissions last hearing on Phillips
2 66s Project application, it became clear that the Department would not voluntarily bring itself into
3 compliance with section 23.11.030 and that its unlawful Unmapped ESHA determination was final.
4 That day, the Planning Commission denied Phillips 66s project and adopted Department-crafted
5 Findings for Denial, many of which incorporated the Departments unlawful Unmapped ESHA
6 determination. In doing so, the Planning Commission unlawfully adopted, ratified, acquiesced in, or
7 relied in large part on the illegal Unmapped ESHA determination, in violation of its clear, present,
8 and mandatory duty as a County planning agency that reviews and decides land-use applications to
10 48. Phillips 66 has a direct and substantial interest, and therefore a beneficial right, in the
11 issuance of a writ commanding Respondents, and particularly the Department, to discharge the clear,
12 present and mandatory duty to revoke the illegal Unmapped ESHA determination and instead make
14 49. Phillips 66 also has a direct and substantial interest, and therefore a beneficial right, in
15 the issuance of a writ commanding Respondents, and particularly the Planning Commission, to re-
16 open the hearing on the permit application so that (1) the Department can discharge its duty to make
17 a no Unmapped ESHA determination consistent with section 23.11.030 and (2) the Planning
18 Commission can reconsider the application based on the fact that the site has no Unmapped ESHA.
19 50. Phillips 66s direct and substantial interest in the above-described writ is two-fold.
20 First, the Departments unlawful Unmapped ESHA determination is a basis for the Planning
21 Commissions denial of Phillips 66s Project and will continue to infect the decision-making process
22 as the Project is reviewed by the Board of Supervisors, unless the Unmapped ESHA determination is
23 corrected. Second, the Departments determination that there is undevelopable Unmapped ESHA on
24 Phillips 66s property constitutes, pro tanto, a downzoning of the property, the effect of which is to
25 reduce the propertys value and wrongfully limit Phillips 66s full use and enjoyment of its land,
28 Planning Commission is compelled to re-open its hearing on the application and reconsider the
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Verified First Amended Petition/Complaint
1 Project application after the Department revokes its Unmapped ESHA determination and, in its
2 stead, makes the determination that the Phillips 66 property has no Unmapped ESHA. Trial courts
3 have broad equitable power to fashion any appropriate remedies and, in doing so, they may
4 consider any unjust or harsh results, and adopt means to avoid them. Shapiro v. Sutherland, 64 Cal.
5 App. 4th 1534, 1552 (1998) (Equitable relief is by its nature flexible, and the maxim allowing a
6 remedy for every wrong (Civ. Code, 3523) has been invoked to justify the invention of new
8 52. As described above, from the moment that the Department evidenced an intent to
9 violate its clear, present and mandatory duty under section 23.11.030s Unmapped ESHA
10 provision, and make an untimely and therefore unlawful Unmapped ESHA determination, Phillips
11 66 exhausted its administrative remedies with the Department. Phillips 66 submitted written
12 comments and provided oral testimony at public hearings explaining why the Department was
13 without power to make an Unmapped ESHA determination after application acceptance and urging
15 53. Under the County Code, the Department is responsible for making Unmapped ESHA
16 determinations. The Departments Unmapped ESHA determination is final, and the CZLUO
18 against the Departments Unmapped ESHA determination, making the present challenge to said
19 determination ripe for this Courts review.
20 54. This action does not attack or otherwise challenge the Planning Commissions
21 discretionary decision as such to deny Phillips 66s application, but only the Planning Commissions
23 determination made by the Department. Phillips 66 advised the Planning Commission prior to its
25 determination was unlawful, but to no avail. Phillips 66 has no further administrative remedies with
2 of the duty created by section 23.11.030s Unmapped ESHA provision and/or under the doctrine
3 of equitable estoppel.
8 57. Phillips 66 re-alleges and incorporates herein each and every allegation contained in
10 58. The Due Process Clause of the Fourteenth Amendment to the United States
11 Constitution prohibits state and local governments from depriv[ing] any person of life, liberty, or
12 property, without due process of law. Article I, section 7(a), of the California Constitution
13 similarly protects every person against depriv[ation] of life, liberty, or property without due process
14 of law.
16 property deprivation generally requires the procedural due process standards of reasonable notice
17 and opportunity to be heard. See, e.g., Calvert v. County of Yuba, 145 Cal. App. 4th 613 (2006).
20 application. See, e.g., Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 773-74 (2002). The void-
21 for-vagueness doctrine is designed to prevent arbitrary and discriminatory enforcement. Id. The
22 problem with a vague regulation is that it impermissibly delegates basic policy matters to policemen,
23 judges, and juries for resolution on an ad hoc and subjective basis. Id.
24 61. Section 23.11.030 commits to the Department the power to determine, based on the
25 best information available at or before the time of application acceptance, whether Unmapped ESHA
28 deprivation, as it severely limits or completely eliminates the applicants right to use or develop the
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Verified First Amended Petition/Complaint
1 area of his private property that is subject to the determination.
3 Unmapped ESHA determination, section 23.11.030 does not require or authorize the Department to
5 advance of said deprivation. And, in this case, the Department did not provide Phillips 66 the
6 constitutionally required notice, opportunity to be heard, or evidentiary hearing before it made its
8 deprivation because it extinguishes Phillips 66s right to use and develop the area of Phillips 66s
9 property declared to be ESHA, including the ability to build the Project. For that reason, section
10 23.11.030 is unconstitutional, as applied to Phillips 66, because it denies Phillips 66 its due process
12 64. Section 23.11.030 is so vague as a matter of due process that persons of common
13 intelligence must necessarily guess at its meaning and differ as to its application.
14 65. Section 23.11.030 defines Unmapped ESHA as [a] type of Sensitive Resource Area
15 where plant or animal life or their habitats are either rare or especially valuable because of their
16 special nature or role in an ecosystem, but provides absolutely no standards (scientific or otherwise)
17 for ascertaining what is rare or especially valuable, or whether a resource has a special nature or
18 role in an ecosystem.
19 66. Beyond that vague and subjective standard, section 23.11.030 provides little guidance
20 for identifying Unmapped ESHA. Section 2.11.030 appears to include in the definition known
21 but unmappedwetlands, coastal streams and riparian vegetation, [and] terrestrial and marine
22 habitats. Presumably, those resources constitute Unmapped ESHA only if they also satisfy the
23 vague and subjective standard of being rare or especially valuable, but section 23.11.030 does not
24 say.
25 67. Finally, section 23.11.030 includes in its non-exhaustive list of Unmapped ESHA
26 resources areas that, ultimately, are only known or knowable to the County and its approved
27 expert. Even the inclusion of areas commonly known as habitat for species determined to be
28 threatened, endangered or otherwise needing protection leaves affected applicants just guessing at
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Verified First Amended Petition/Complaint
1 what the County (or its experts) will think are such commonly known areas that merit an
3 68. Instead of providing objective and knowable standards that give Phillips 66 notice of
4 whether and the extent to which it can use its property in light of possible Unmapped ESHA, section
5 23.11.030 is utterly vague and subjective and, for that reason, unconstitutional as applied to Phillips
6 66.
9 Phillips 66 asserts that the Unmapped ESHA ordinance is unconstitutional as applied to it. Phillips
10 66 contends, on information and belief, that Defendants believe that the Unmapped ESHA ordinance
12 70. Phillips 66 has no plain, speedy, or adequate remedy at law. Only declaratory and
13 injunctive relief, preventing enforcement of the Unmapped ESHA ordinance, can provide the
21 72. The Due Process Clause of the Fourteenth Amendment to the United States
22 Constitution prohibits state and local governments from depriv[ing] any person of life, liberty, or
23 property, without due process of law. Article I, section 7(a), of the California Constitution
24 similarly protects every person against depriv[ation] of life, liberty, or property without due process
25 of law.
28 and opportunity to be heard. See, e.g., Calvert v. County of Yuba, 145 Cal. App. 4th 613 (2006).
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Verified First Amended Petition/Complaint
1 74. A regulation is constitutionally void on its face when, as matter of due process, it is so
2 vague that persons of common intelligence must necessarily guess at its meaning and differ as to its
3 application. See, e.g., Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 773-74 (2002). The void-
4 for-vagueness doctrine is designed to prevent arbitrary and discriminatory enforcement. Id. The
5 problem with a vague regulation is that it impermissibly delegates basic policy matters to policemen,
6 judges, and juries for resolution on an ad hoc and subjective basis. Id.
7 75. Section 23.11.030 commits to the Department the power to determine, based on the
8 best information available at or before the time of application acceptance, whether Unmapped ESHA
9 exists on the applicants property. As interpreted by the County, the Unmapped ESHA ordinance
10 authorizes the designation of property as Unmapped ESHA at any time during the review of a
13 deprivation, as it severely limits or completely eliminates the applicants right to use or develop the
16 Unmapped ESHA determination, section 23.11.030 does not require or authorize the Department to
18 advance of said deprivation. And, in this case, the Department did not provide Phillips 66 the
19 constitutionally required notice, opportunity to be heard, or evidentiary hearing before it made its
21 deprivation because it extinguishes Phillips 66s right to use and develop the area of Phillips 66s
23 78. Section 23.11.030 is unconstitutional on its face because, pursuant to its terms, it
24 gives the Department the power unilaterally to designate property Unmapped ESHA, and thereby
26 notice, an opportunity to be heard, or an evidentiary hearing. And, insofar as the Unmapped ESHA
27 ordinance is interpreted to authorize Unmapped ESHA determinations at any time during the
2 prohibited.
3 79. Section 23.11.030 is so vague as a matter of due process that persons of common
4 intelligence must necessarily guess at its meaning and differ as to its application.
5 80. Section 23.11.030 defines Unmapped ESHA as [a] type of Sensitive Resource Area
6 where plant or animal life or their habitats are either rare or especially valuable because of their
7 special nature or role in an ecosystem, but provides absolutely no standards (scientific or otherwise)
8 for ascertaining what is rare or especially valuable, or whether a resource has a special nature or
9 role in an ecosystem.
10 81. Beyond that vague and subjective standard, section 23.11.030 provides little guidance
11 for identifying Unmapped ESHA. Section 2.11.030 appears to include in the definition known
12 but unmappedwetlands, coastal streams and riparian vegetation, [and] terrestrial and marine
13 habitats. Presumably, those resources constitute Unmapped ESHA only if they also satisfy the
14 vague and subjective standard of being rare or especially valuable, but section 23.11.030 does not
15 say.
16 82. Finally, section 23.11.030 includes in its non-exhaustive list of Unmapped ESHA
17 resources areas that, ultimately, are only known or knowable to the County and its approved
18 expert. Even the inclusion of areas commonly known as habitat for species determined to be
19 threatened, endangered or otherwise needing protection leaves affected applicants just guessing at
20 what the County (or its experts) will think are such commonly known areas that merit an
22 83. Instead of providing objective and knowable standards that give applicants, including
23 Phillips 66 in this case, notice of whether and the extent to which they can use their property in light
24 of possible Unmapped ESHA, section 23.11.030 is utterly vague and subjective and, for that reason,
25 unconstitutional.
28 Phillips 66 asserts that the Unmapped ESHA ordinance is facially unconstitutional. Phillips 66
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Verified First Amended Petition/Complaint
1 contends, on information and belief, that Defendants believe that the Unmapped ESHA ordinance is
2 facially constitutional.
3 85. Phillips 66 has no plain, speedy, or adequate remedy at law. Only declaratory and
4 injunctive relief, preventing enforcement of the Unmapped ESHA ordinance, can provide the
9 a. direct the Department of Planning and Building, and Director of Planning and
10 Building, to void, vacate and set aside their unlawful Unmapped ESHA determination, and instead
11 make a determination that the Phillips 66 property contains no Unmapped ESHA, consistent with
13 b. direct the Planning Commission to set aside the Findings of Denial, and reconsider
14 Phillips 66s application on the basis that the subject property has no Unmapped ESHA;
16 unconstitutional under the Federal and/or California Constitutions, as applied to Phillips 66, because
17 it deprives Phillips 66 of a substantial or significant property interest without due process of law
20 facially unconstitutional under the Federal and/or California Constitutions, because it authorizes the
21 deprivation of a substantial or significant property interest without due process of law and/or because
24 implementing and enforcing section 21.11.030s definition of Unmapped ESHA, including the
25 procedure for making Unmapped ESHA determinations, to Phillips 66 and any other applicant, now
28 6. For such other legal and equitable relief as this Court deems appropriate and just.
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Verified First Amended Petition/Complaint
1 DATED: March 22, 2017 JOCELYN D. THOMPSON
PAUL J. BEARD, II
2 ANDREA S. WARREN
ALSTON & BIRD LLP
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Paul J. Beard II
6 Attorneys for Petitioner
PHILLIPS 66 COMPANY
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Verified First Amended Petition/Complaint
VERIFICATION
Complaint for Declaratory and Injunctive Relief. Except for matters stated on information and
belief, the facts stated therein are true of my own knowledge. As to those matters stated on
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct and that this verification was executed this March 22, 2017, at Arroyo Grande,
California.
? James 0. Anderson
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Verified First Amended Petition/Complaint
1 PROOF OF SERVICE
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Verified First Amended Petition/Complaint
1 Phillips 66 Company v. County of San Luis Obispo, et al.
San Luis Obispo County Superior Court
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Case No. 16CV-0502
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SERVICE LIST
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Verified First Amended Petition/Complaint