1 | COX, CASTLE & NICHOLSON LLP Michael H. Zischke (State Bar No. 105053) mzischke@coxeastle.com Christian H. Cebrian (State Bar No. 245797) ccebrian@ecoxcastle.com Stephanie R. Marshall (State Bar No. 279652) smarshall@coxcastle.com 50 California Street, Suite 3200 San Francisco, CA 94111-4710 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 aan nee Attorneys for Real Parties in Interest Prologis CCIG Oakland Global, LLC and Oakland Bulk and 8 | Oversized Terminal, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA COMMUNITIES FOR A BETTER CASE NO. RG1S788084 13 | ENVIRONMENT, SIERRA CLUB, SAN FRANCISCO BAYK! Assigned For All Purposes To 14 | PACIFIC ENVIRONMENTAL NETWORK, Hon. Bvelio Grillo, Dept. 14 15 Petitioners, NOTICE OF HEARING ON DEMURRER AND DEMURRER; AND 16 v, MEMORANDUM OF POINTS AND | AUTHORITIES IN SUPPORT OF 17 | CITY OF OAKLAND, and DOES 1 through 100, | DEMURRER TO PETITIONERS’ inclusive, VERIFIED PETITION ROR WRIT OF 18 MANDATE UNDER THE CALIFORNIA Respondents, ENVIRONMENTAL QUALITY ACT. PROLOGIS CCIG OAKLAND GLOBAL, LLC; | Date: December 16, 2015 20 | TERMINAL LOG! CS LUTIONS; Time: 1:30 p.m. OAKLAND BULK AND OVERSIZED Reservation No: 1682511 21 | TERMINAL, LLC and DOES 101 through 199, inclusive, Date Action Filed: October 2, 2015 2 2B Real Parties In Interest 4 _ — - ] 25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 26 PLEASE TAKE NOTICE that on December 16, 2015, at 1:30 p.m., or as soon ‘27 | thereafier as the matter may be heard, in Department 14 of the above-captioned Court, located at 1225 2g | Fallon Street, Oakland, California, real parties in interest PROLOGIS CCIG OAKLAND GLOBAL, CASTLES ossponr0ss9ivi2 i Sivvaaneseo NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIEScw aan 10 ul 12 13 14 15 16 7 18 19 20 an 2 23 24 25 26 27 28 COX. casTE Mectionsov Le LLC and OAKLAND BULK AND OVERSIZED TERMINAL, LLC, (together, “CCIG”) will move the Court for an order sustaining its demurrer, without leave to amend, to the Petition filed by Petitioners COMMUNITIES FOR A BETTER ENVIRONMENT, SIERRA CLUB, SAN FRANCISCO BAYKEEPER, and ASIAN PACIFIC ENVIRONMENTAL NETWORK. The demurrer is made on the following grounds: DEMURRER TO ALL CAUSES OF ACTION 1 ‘The Petition fails to state facts sufficient to constitute a cause of action because each cause of action alleged therein is barred by the applicable statute of limitations of Public Resources Code Section 21167, 2. The Petition fails to state facts sufficient to constitute a cause of action because each ‘cause of action alleged therein is barred by the applicable statute of limitations in Government Code Section 6500%(¢)(1). ‘The motion will be made and based on this notice, the demurrer, the memorandum of points and authorities, the request for judicial notice filed concurrently herewith, the pleadings and papers on file in this action and such further evidence as the Court may consider at the hearing on this matter. = DATED: November 9, 2015 COX, CASTLE & NICHOLSON LLP / / - \ 7 $/ i oc fa Attomeys for Real Parties in Interest Prologis CCIG Oakland Global, LLC and Oakland Bulk and Oversized Terminal, LLC ssaanaso1vi2 2 NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES* 10 W 12 13 4 15 16 WW 18 19 20 21 2 23 24 25 26 27 28 UL. WV. TABLE OF CONTENTS INTRODUCTION.. FACTS wcsssisens ARGUMENT. A, This Demurrer Should Be Sustained Without Leave to Amend... 1. Violation of CEQA’s Statute of Limitations is a Proper Grounds for Demurrer. 2, The Entire Petition Is Time Barred by CEQA’s Short Statute of Limitations... es es a. The Project Was Approved in 2012... b. Petitioners Cannot Avail Rely On CEQA's 180 Statute of Limitations For This Petition Because They Knew or Should Have Known That Coal Could Be Handled at the OBOT Long Before April 2015 .... c. Petitioners Failed to Timely Challenge the City’s 2015 Approval of the Community Facilities District Despite Having Exhausted on the Same Claims Now Raised In Their Petition sosussuoe - 3. The Lawsuit is a Collateral Attack on the Development Agreement .oosncne CONCLUSION COX. CASTLE& ooo0m7208591012 NicwioLson LL ‘NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES‘TABLE OF AUTHORITIES Federal Cases Kelly v, Pittsburgh & Conneaut Dock Co. (6th Cir, 1990) 900 F.2d 89... se Port Norris Exp. Co,, Inc. v. LCC. (Gd Cir. 1985) 737 F.2d $8... US, Shoe Corp. v. US. (Fed. Cir. 1997) 114 F.3d 1564, State Cases Alliance forthe Protection ofthe Auburn Cnty. v. County of Pacer (2013) 215 Cal-App.4th 25. - 6 Citizens For A Megaplex-Free Alameda v. City af Alameda (2007) 149 Cal.App.4th 91... 7 Concerned Citizens of Costa Mest Ine» 32nd Dist Aare don (1986) 42 Cal.3d 929... cnn 6,8,9 EI Morro Community Ass'n x California Dep. often ‘and Recreation (2004) 122 Cal. App.4th 1341. 7 6,7,8 Friend of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743 10 Friends of Shingle Springs Interchange, ne: com ofett Dorado (2011) 200 Cal. App.4th 1470. Royalty Carpet Mills, Inc. v. City of vine (2005) 125 Cal. App.th 1110 .cnsnennnen . ‘Stockton Citizens for Sensible Planning v. City ‘fsiocin (2010) 48 Cal.4th 481 e Travis v. County of Santa Cruz (2004) 33 Cal.4th 757...... State Statutes Code Civ. Proc., § 430.10 (¢).. Gov. Code, § 65009... Gov. Code, § 65009(c)(1)(D).. t Pub, Resources Code, § 21167... Pub. Resources Code, § 21167(¢) Pub. Resources Code, § 21167(e) Pub, Resources Code, § 21167(4)... Rules and Regulat 14 Cal. Code Regs. § 15162(€) wrens 48 CER. § 47.501... 8 Cal. Code Regs. § 3471 9099720859112 nii- "NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIEScea 10 u 12 B 14 15 16 17 18, 19 20 a. 2 23 24 25 26 27 28 Fa opp09m7204s91v12 1 te MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION The Oakland Bulk and Oversized Terminal (“OBOT") will occupy a renovated marine terminal adjacent to the Port of Oakland, where non-containerized bulk goods will be handled as they are moved through the Port. The OBOT was analyzed and approved in 2012 as part of the Oakland Amy Base Redevelopment Plan, Petitioners’ 2015 Petition challenges the entire Redevelopment Plan project, inchiding OBOT. However, Notices of Determination and/or Notices of Exemption were posted for the 2012 approval and for each subsequent approval related to that project, and the time for filing a challenge following all of these notices has expired. Several of the Petitioners even exhausted remedies on the same claims raised in the Petition (that further environmental review was required in order to analyze the impacts of handling coal at the OBOT) in conneetion with one of the subsequent approvals, and yet failed to timely file a petition, Petitioners cannot plead around the many different limitations periods, of which each independently bars their Petition. To do so would be asking the Court to disregard the facts and applicable limitation periods to allow this clearly time-barred Petition to proceed. I. FACTS The October 2, 2015 Petition challenges the adequacy of the environmental review under the California Environmental Quality Act (“CEQA”) conducted by the City of Oakland for the redevelopment of an approximately 1,800-acre area of the former Oakland Army Base in West Oakland (the “Project”). The OBOT was analyzed as part of the Project in a 2012 addendum to a 2002 environmental impact report certified for the Oakland Army Base Area Redevelopment Plan (“Addendum”). (Petition ¥ 38-40.) According to Petitioners, the environmental review of the Project ‘was deficient because it did not specifically analyze coal as one of the non-containerized bulk goods to be handled at the OBOT. (Petition Y¥ 106, 112, 118.) ‘As disclosed in the Addendum, a portion of the Oakland Army Base Redevelopment ‘Area would be developed “primarily for transportation and logistics purposes, including railroad and street infrastructure and other trade and logistics improvements.” (CCIG Request for Judicial Notice In Support of Demurrer (“RIN”), Exh. A [2012 Oakland Army Base Project Initial Study/Addendum NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES1 | excerpts}, at p. 1.) Specifically, at the OBOT “[c]argo would move directly between ships and rail. 2. | Export cargo would consist of non-containerized bulk goods, and inbound cargo would consist 3 | primarily of oversized or overweight cargo unable to be handled on trucks, and thus transferred 4 | directly from ships to rail. This facility, called the Oakland Bulk and Oversized Terminal, would 5 | operate on a 24-hour per day basis and is anticipated to handle up to six 50-car trainloads per day in 6 | cach direction (for a total of 12 movements per day), plus occasional one-and two-car manifest 7 | moves.”' (RIN, Exh. A, at p. 30; see also Petition ¥ 40-41.) 8 The City adopted the Addendum and approved the Project on June 19, 2012, and 9 | thereafter filed a Notice of Determination on June 20, 2012. (See Petition ff 39, 40; RIN, Exh. B 10} [Notice of Determination to adopt Addendum and approve OBOT],) The filing of the Notice of 11 |] Determination started the 30-day statute of limitations for challenges to the City’s approval of the 12. | Addendum, which ran on July 20, 2012, (See Pub. Resources Code, § 21167(c).) Petitioners did not 13 | file a challenge to the City’s action by July 20, 2012. 4 As part of its approval of the Project, the City approved a development agreement with 15 | CCIG on July 16, 2013, vesting CCIG’s rights to develop the OBOT in accordance with the then- 16 | existing project approvals, Lease Disposition and Development Agreement, and ground lease for a 17 | period of up to 70 years. (RIN, Exh. C [Development Agreement], § 3.2; see also Petition | 34.) The 18 | City again relied on the Addendum for CEQA compliance and filed a Notice of Determination for its 19 | approval of the Development Agreement on July 19, 2013. (RIN, Exh. D [Development Agreement 0 ' The Cambridge Business English Dictionary defines “bulk goods” as “goods such as coal, grains, 21 | oil, or chemicals that are not packaged in any type of container and are stored, transported, and sold in 29, | large quantities.” (hutp//dietionary.cambridge.org/us/dietionary/english/bulk-goods, ast visited October 27, 2015; see also http://dictionary.reference.com/browse/bulk, last visited October 27, 2015 23 | [“bulk” defined as “goods or cargo not in packages or boxes, usually transported in large volume, as grain, coal, or petroleum”|; U.S. Shoe Corp. v. US. (Fed. Cir. 1997) 114 F.3d 1564, 1579 n. 2 [“* 24 | the export of U.S. coal and, eventually, other bulk commodities, such as grain and ores.””]; Kelly v. Pittsburgh & Conneaut Dock Co. (6th Cir. 1990) 900 F.2d 89, 89 [referring to bulk commodities at a 25 | facility as “primarily iron ore, limestone and coal” |; Port Norris Exp. Co., Inc. v. I.C.C, (34 Cir. 1985) 26 | 757 F-2d 58, 59 [referring to “sand, coal, and petroleum produets” as examples of bulk commodities): 8 Cal. Code Regs. § 3471 [“Before an employee enters a bin containing a bulk commodity such as 27 || coal or sugar. .."|; 48 C-F.R. § 47.501 [“Dry bulk carrier means a vessel used primarily for the carriage of shipload lots of homogeneous unmarked nonliquid cargoes such as grain, coal, cement, and 28 | lumber”].) GOREASTUES pop a08so1vI2 2 Stormaesco ‘NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES& oo 28 Notice of Determination]; see also Petition $f 34, 37.) The statute of limitations to challenge the CEQA compliance was again 30-days from the Notice of Determination, so any CEQA challenge was required to be filed by August 20, 2013. Petitioners ’s action not file a CEQA challenge to the C by August 20, 2013. The statute of limitations to challenge the approval of a development agreement is 90 days. (Gov. Code § 65009(c)(1)(D); Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765 [“section 65009 establishes a short statute of limitations, 90 days, applicable to actions challenging . the adoption of a development agreement”],) Therefore, any other legal challenge (apart from a CEQA challenge) to the approval of the City’s Development Agreement with CCIG was required to be filed by October 14, 2013. Petitioners did not timely challenge the approval of the Development Agreement, Petitioners allege that they first became aware of the possibility of coal shipments through OBOT on April 7, 2015. (Petition 9] 44, 107, 119, 125.) While this allegation is contradicted by judicially noticeable facts, even assuming it is true for purposes of demurrer, it does not aid their time-barred pleading. Petitioners omit discussion of the City discretionary approvals issued after they admit actual knowledge of coal as one the potential bulk goods handled through OBOT. The City issued additional discretionary approvals related to the Project, followed by Notices of Determination and Notices of Exemption from CEQA that provided Petitioners further notice and opportunity to challenge the Project. On July 21, 2015, the City Council adopted a resolution of formation of a Community Facilities District in furtherance of redevelopment of the Oakland Army Base. The City filed a Notice of Determination and a separate Notice of Exemption from CEQA for this action on July 24, 2015, (RIN, Exhs. E [Notice of Determination], F [Notice of Exemption].) The notices provided Petitioners and the public with a 30-day and 35-day statute of limitations, respectively, which ran on August 24, 2015 and August 28, 2015. Finally, on July 30, 2015 the City Council adopted an ordinance levying a special tax within the Community Facilities, District for which it filed a Notice of Determination and a Notice of Exemption on August 3, 2015 and July 31, 2015, respectively. (RIN, Exhs. G [Notice of Determination}, H [Notice of Exemption].) The statutes of limitations for these notices ran on September 2, 2015 and September 4, 2015, respectively: Again, no challenge was filed within these deadlines. 23964.7208591012 3 NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES10 u 12 13 14 15 16 7 18 19 20 2 2 23 24 25 26 2 28 Petitioners raised their concerns about coal being handled at the OBOT in a June 9, 2015 letter regarding “Opposition to Approval of Community Facilities District at former Oakland ‘Army Base Because of Failure to Look at Impacts from Shipping Coal.” (RIN, Exh. 1. In this leter, Irene Gutierrez of Earthjustice on behalf of Sierra Club, Western Oakland Environmental Indicators Project, Communities for a Better Environment, and San Francisco Baykeeper asserted that “[nJeither the Port of Oakland nor the City of Oakland has ever examined the environmental consequences of shipping millions of tons of coal through [the former Oakland Army Base].” (RIN, Exh. I, at p. 1.) Based on this claim, the letter then raises the exact same issues Petitioners now seek to raise in their Petition: Under CEQA, these circumstances create the obligation to complete further environmental review, in the form of a subsequent or supplemental environmental impact report... As the CEQA lead agency responsible for conducting environmental review of the development of the Oakland Army Base, the City of Oakland must prepare the required additional environmental review . . . . [BJefore approval of the CFD is granted, the City of Oakland must consider the full suite of environmental impacts that such an approval will generate. ‘The City’s further environmental review must include studying the effects of a dedicated terminal for coal exports (RIN, Exh. I, at pp. 7, 8; compare with, e.g., Petition {§ 107, 113 [“The recent commitment on the part of the developer to ship coal is a ‘substantial change’ in the project, which will require major revisions of the EIR, to properly account for the additional risks of coal transportation”) Despite having exhausted on issues related to coal and the Community Facilities District approval, Petitioners did not file their Petition within the statutory period for doing so after the City posted Notices of Determination and Exemption related to that approval. Moreover, the Court need not accept Petitioners’ alleged first knowledge of the potential of coal in April 2015, which they claim started the 180-day statute of limitations period, Petitioners’ own public statements contradict that allegation, including a May 19, 2014 posting in the Petitioner Sierra Club publication, The Yodeler, titled “Dangerous and dirty coal exports threaten Bay Area.” The Sierra Club publication provides the following: “Oakland Army Base Developer Phil Tagami and California Capital Investment Group are well into the permitting stage for a bulk terminal that could potentially be used to ship coal.” (RIN, Exh. J.) A June 30, 2014 posting, “Prevent coal- ‘ssica08soivi2 4 _ a NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES1 | dust pollution in West Oakland: campaign launch and community outreach event,” states that “[tJhe 2 | future Oakland Army Base Port could begin to export coal and petroleum coke as soon as 2020.” 3 | (RIN, Exh. K.) Even assuming that The Yodeler articles provided the first notice to (and by) 4 | Petitioners that coal could be handled at the OBOT, and not the various Notices of Determination and 5 | Notices of Exemption, the 180-day statute of limitations that Petitioners argue is applicable to such 6 | notice would have expired on December 29, 2014. 7 Ti. ARGUMENT BA ‘This Demurrer Should Be Sustained Without Leave to Amend 9 1. Violation of CEQA’s Statute of Limitations is a Proper Grounds for 10 Demurrer u A violation of a statute of limitations is a proper basis for demurrer. (Code Civ. Proc., § 12 | 430.10 (@); Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 13 | Cal.App.4th 1470, 1482 [““When a ground for objection to a complaint, such as the statute of 14 | limitations, appears on its face or from matters of which the court may or must take judicial notice, a 15 | demurrer on that ground is proper |.) Also, a trial court does not abuse its discretion when it denies 16 | leave to amend where it is clear from the face of the complaint that no amendment can cure the failure 17 | to act in a timely manner. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 18 | 1124-1125.) 19 2. The Entire Petition Is Time Barred by CEQA’s Short Statute of 20 Limitations ai The time limit for filing an action challenging a public agency's CEQA decision is 22 | extremely short, CEQA “is sensitive to the particular need for finality and certainty in land use 23 | planning decisions. Accordingly, the Act provides ‘unusually short’ limitations periods [citations] 24 | after which persons may no longer mount legal challenges, however meritorious, to actions taken 25 | under the Act’s auspices.” (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 26 | Cal.4th 481, 488.) That an untimely lawsuit is barred regardless of whether it has merit is the “price of 27 | orderly and timely processing of litigation.” (Jd, at p. 499.) There is no relief available to save a 28 COX CASTES qy06s\7208591012 2 Sourmciaco ‘NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES28 « petitioner's untimely CEQA claims. (See Alliance for the Protection of the Auburn Cmty. v. County of Placer (2013) 215 Cal.App.4th 25, 35.) CEQA provides that an action challenging an agency's determination that a project is exempt from CEQA must be filed within 35 days after the filing of a notice of exemption by the agency. (Pub. Resources Code, § 21167(d),) An action challenging a project approval after an agency has adopted an EIR must be filed within 30 days after a notice of determination is filed by the lead agency. (Pub. Resources Code, §21167(c).) “[AJn action challenging noncompliance with CEQA may be filed within 180 days of the time the plaintiff knows or should have known that the project under ‘way differs substantially from the one described in the initial EIR.” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn, (1986) 42 Cal.3d 929, 933.) However, this potential delayed accrual is only applicable to challenges to a discretionary govemmental approval. ( Morro Community Ass'n v. California Dept. of Parks and Recreation (2004) 122 Cal.App.4th 1341, 1360- 61[ “Judicial review is limited to the CEQA determination for the project approved. If significant new information thereafter develops, a supplemental or subsequent EIR might be required in connection with the agency's next discretionary approval, if any. But information arising after an approval does not require reopening of that approval” [emphasis added],) Thus, after a notice of determination or notice of exemption is posted related to an approval and the relevant 30 day or 35 day period has, expired, all CEQA claims related to that approval are barred. (Stockton Citizens, 48 Cal.4th at 504 [“consistent with the principle that statutes of limitations apply equally to well- and ill-founded suits, the Legislature meant to specify that all CEQA challenges to an agency’s exemption determination, even those with merit, must be brought within 35 days after the agency files a complaint NOE”) As explained below, Petitioners’ action is barred by CEQA’s statute of limitations for at least three independent reasons. a. The Project Was Approved in 2012 “Once a project has been approved, the lead agency’s role in project approval is completed, unless further discretionary approval on that project is required.” (14 Cal. Code Regs. § 15162(c),) The Petition does not allege that there has been any amendment to a condition of approval, the Development Agreement, or any other City or other governmental approval that caused agea204591v12 6 NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES= coal to be permitted when it previously was prohibited, The revisions to the Oakland Army Base Project that included the OBOT project were approved July, 2012 and a Notice of Determination was posted for that approval on July 19, 2012. (Petition 4¥ 39, 40; RIN, Exh. B [Notice of Determination].) ‘The Addendum analyzed a bulk goods facility that operated 24-hours that is anticipated to handle up to six 50-car trainloads per day in each direction.” (RIN, Exh, A, at p. 30; see also Petition § 40.) This has not changed. Any private contract between real-parties in interest and third-parties related to a specific commodity is not a change in the project approved by the City. (See Petition { 107.) However, Petitioners appear to take the position that whenever a contract is signed between private parties for the transport of a particular bulk good that was not expressly included among examples of bulk commodities that might be transported through OBOT, the CEQA statute of limitations begins to run again on the impacts that may be peculiar to that train load of goods (e.g. odors, dust, noise). (See Petition §|41.) That is not the law. Petitioners are asserting inadequate environmental disclosure in connection with the 2012 approvals.” They had to timely challenge those approvals. (Citizens For A Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App-4th 91, 108 [“Having concluded that the City Council's resolution approving execution of the DDA and adoption of the MND constituted ‘approval’ of the ‘project’ for CEQA purposes, it is clear that Citizens’ challenges to the DDA and the adequacy of the environmental review culminating in the MND are untimely”).) ‘The Petition does not allege the City of Oakland has made any changes to the Oakland Army Base Project since 2012 that would permit the reopening of the statute of limitations on the approval of the Project, including the OBOT. (14 Cal, Code Regs. § 15162(¢).) Thus, the Petition has been time barred since July 20, 2012. (EI Morro Community Ass'n, 122 Cal.App.4th at 1360-61.) 2 Despite failing to directly state the action that Petitioners challenge, the Petition challenges the Project approved in 2012, including the OBOT because it seeks to enjoin any further actions related to that Project. (Petition, “Prayer for Relief,” §¥ A.1, A.3; Royalty Carpet Mills, 125 Cal.App.4th atl 125 [There is no practical difference between an order suspending the Project until an EIR was prepared, and a judgment setting aside the [the approval] that authorized the Project. No matter how the prayer is rephrased, the relief sought is the same”|.) ., Taasannsotvi2 1 NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIESBowe aa 10 u 12 13 4 1S 16 17 18 19 20 2n 22 23 24 2s 26 27 28 b. Petitioners Cannot Avail Rely On CEQA's 180 Statute of Limitations For This Petition Because They Knew or Should Have Known That Coal Could Be Handled at the OBOT Long Before April 2015 resuming that there has been a change in the Project, Petitioners assert that they did not become aware that the OBOT could handle coal until April 7, 2015. Therefore, Petitioners claim 180 days from that date to demand further environmental review as it was the date on which they claim they “[knew] oF should have known that the project underway differs substantially from the one described in the initial EIR.” (Petition 99 44, 45, 102.) Petitioners’ theory has several insurmountable flaws. First, in the case that Petitioners rely on, the “change” in the project involved an agency approval, not a private contract between a developer and a third-party. (Concerned Citizens of Costa Mesa, Inc. 42 Cal.3d at 929, 933-34.) In Concerned Citizens, the lead agency “entered into a contract with [the developer] ... that authorized [the developer] to make substantial changes in the project described by the FIR . .. Plaintiffs had no notice of the changes and were not afforded a hearing to comment on them ... Plaintiffs claim they did not know and could not have known through the exercise of reasonable diligence that a cause of action accrued . . . because they had neither actual nor constructive notice of the changes made in the project by the contract between the [lead agency! district and [the developer].” (Id.; see also El Morro Community Ass'n, 122 Cal.App.4th at 1360-61 [“Iudicial review is limited to the CEQA determination for the project approved. If significant new information thereafter develops, a supplemental or subsequent EIR might be required in connection with the agency's next discretionary approval, if any. But information arising after an approval does not require reopening of that approval” [emphasis added].) Here, the Petition contains no similar allegation that the City made any discretionary changes to the Project that would avail Petitioners of the of the accrual standard set forth in Concerned Citizens. And judicially noticeable facts demonstrate that Petitioners had actual or constructive notice of every action by the City related to the Project since it was first approved in 2012 (e.g., the numerous notices of determination and exemption recounted in Statement of Facts above). seagonasont2 oe = : ‘NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES28 COX, CASTLE Second, even assuming the accrual rubric of Concerned Citizens were applicable to this action, which it is not, judicially noticeable facts demonstrate that Petitioners were aware coal could be part of the mix of non-containerized bulk goods handled at the OBOT in May 2014 when Petitioner Sierra Club’s own publication, The Yodeler, stated so, The Yodeler is a free online newspaper of Petitioner Sierra Club’s San Francisco Bay Chapter that is no doubt as easy to access as the local Utah paper from which Petitioners claim to have If] 5, 6, 44-46; RIN, Exh. L [The first leamed that coal could be handled at the OBOT, (See Petition Yodeler, “About the Yodeler,” January 4, 2012].) Members included in the San Francisco Bay Chapter of the Sierra Club, who receive a free print version of the Yodeler in addition to online access, include those who “reside in California’s Contra Costa, Alameda, San Francisco, and Marin Counties.” (RIN, Exh. L [emphasis added.) In determining at what point a petitioner “knew or reasonably should have known” for purposes of the 180-day statute of limitations, courts have required “reasonable diligence” on the part of the petitioner in learning of the alleged deficiency or violation. (See Concerned Citizens, 42 Cal.3d at 939.) Given that one of the named Petitioners is the source of this information, itis clear all of the Petitioners should have known that coal could be one of the bulk goods handled at the OBOT in the exercise of reasonable diligence by May 2014. Petitioners were therefore required to have filed their Petition by December 29, 2014. They did not do so ¢. Petitioners Failed 10 Timely Challenge the City’s 2015 Approval of the Community Facilities District Despite Having Exhausted on the Same Claims Now Raised In Their Petition In the face of judicially noticeable facts that Petitioners were or should have been aware of the possible inclusion of coal as a bulk good, this Court need not accept the pleading of first knowledge on April 7, 2015. But even accepting that allegation, Petitioners’ pleading is clearly time- barred, Afier Petitioners’ “discovery” on April 7, 2015, Petitioners’ counsel, Earthjustice, submitted a letter to the Oakland City Council on June 9, 2015 exhausting on the same claims that Petitioners now raise with respect to the City’s approval of the Community Facilities District. (See agony 08991012 9 NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES28 COX, CASTLE & Nictiotson tLe RIN, Exh. | at pp. 7-8 [“before approval of the CFD is granted, the City of Oakland must consider the full suite of environmental impacts that such an approval will generate. The City’s further environmental review must include studying the effects of a dedicated terminal for coal exports.” .) The City then approved the Community Facilities District and filed a Notice of Determination and Notice of Exemption, (See RIN, Exhs. F, F.) The 30-day and 35-day statutes of limitations apply to decisions for which a lead ageney files a Notice of Determination and/or Notice of Exemption, respectively. (Pub. Resources Code, § 21167(c), (¢).} The statutes of limitations related to the Notice of Determination and Notice of Exemption ran on August 24, 2015 and August 28, 2015, respectively. Even if the 180-day statute of limitations noted above did apply from Petitioners alleged April 7, 2015 discovery, that statute of limitations would have been superseded by the subsequent filing of the Notice of Determination and Notice of Exemption for the City’s approval of the Community Facil District on July 24, 2015. “Asa general principle, if two different statutes of limitation apply to a particular claim, then the shorter period controls over the longer one.” (Royalty Carpet Mills, 125 Cal. App.4th at 1114.) Therefore, once Petitioners objected in June 2015, and the City filed its Notice of Determination and Notice of Exemption, the shorter 30-day and 35-day statutes of limitations would apply instead of the 180-day statute of limitations that Petitioners pled. Both periods expired prior to the filing of the October 2, 2015 Petition. 3. The Lawsuit is a Collateral Attack on the Development Agreement, Case law is clear that a CEQA claim is an attack on the related land use approval; there is no cause of action for a violation of CEQA without the approval of a distinet “project.” (See Pub. Resourees Code § 21167 [setting forth statutes of limitations for actions alleging failure to comply with CEQA related to the approval of “projects”; Friend of Riverside's Hills v, City of Riverside (2008) 168 Cal. App.4th 743, 756 [“[tJhe CEQA cause of action was merely another vehicle for challenging the City’s failure to require the applicant to implement open space and other mitigation measures that were part of the Project’s conditions of approval and of the Specific Plan”; see also Royalty Carpet Mills, 125 Cal. App.4th at] 121 “challenges under the Public Resources Code constitute a subset of general challenges to conditicnal use permits.”].) 3964008591012 _ 10 a ‘NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIESoe 10 n 12 B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28, (COX, CASTLE As part of its approval of the Project, the City approved a development agreement with CCIG on July 16, 2013, vesting CCIG’s rights to develop the OBOT in accordance with the then- existing project approvals, Lease Disposition and Development Agreement, and ground lease for a period of up to 70 years. (RIN, Exh. C [Development Agreement], § 2.2, 3.2.) The statute of limitations to challenge the approval of a development agreement is 90 days. (Gov. Code § 65009(c)(1)(D); Travis, 33 Cal.4th at 765.) ‘The Development Agreement “vests in Developer the right to develop the Project in accordance with the terms and conditions of [the Development Agreement], the City Approvals and the Existing City Regulations . . . [including] the density and intensity of use of each Phase, and the siting, height, envelope, and massing and size of proposed buildings in each Phase.” (RIN, Exh. C, 13.2.) Yet, the Petition seeks to “stay pending [unidentified] approvals for the Oakland Army Base redevelopment and Oakland Bulk and Oversize [sic] Terminal . .. [and] [r Jefrain from granting any further approvals from the Oakland Army Base redevelopment or Oakland Bulk and Oversize [sic] Terminal . ...” (Petition, “Prayer for Relief,” $4 A.1, A.3.) The Petition is therefore a collateral attack on the Development Agreement that vests the right to develop the OBOT consistent with the 2012 approvals. Even if the CEQA statute of limitations related to the approval of the Development Agreement had not expired (which it did on August 19, 2013), the Petition is an action to “attack, review, set aside, void, or annul the decision of a legislative body to adopt. . . development agreement.” (Gov, Code § 65009(6)(1)(D).) Therefore, any challenge to the approval of the City’s Development Agreement with CCIG was required to be filed and served by October 14, 2013, Petitioners did not timely challenge the approval of the Development Agreement. (Royalty Carpet Mills, 125 Cal.App.4th at 1125 [“Like the original petition, the proposed amended petition was governed by both Government Code section 65009 and Public Resources Code sections 21167 and 21167.6. The proposed amended petition would not have been timely under Government Code section 65009, and amendment would therefore have been futile.”].) soivi WW NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES 13967wos Sew r)a 1 u 12 13 4 15 16 v7 18, 19 20 21 22 23 24 25 26 27 28 CON CASTIES Niciionsov Lt Ivy. CONCLUSION For the foregoing reasons, CCIG respectfully requests that the court sustain the Demurrer without leave to amend because the entirety of the Petition is time-barred and no amendment to the Petition could render it timely. DATED: November 9, 2015 Respectfully submitted, COX, CASTLE & NICHOLSON LLP, 4 of A (Aa f 's for Real Parties in Interest logis CCIG Oakland Global, LLC and Oakland Bulk and Oversized Terminal, LLC raoengponsoiv2 2 "NOTICE OF HEARING, DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES