Barbara E. Lichman, Ph.D. (California State Bar No. 138469)

Berne C. Hart (California State Bar No. 153131)

CHEVALIER, ALLEN & LICHMAN, LLP

695 Town Center Drive

Suite 700

Costa Mesa, CA 92626

Telephone: (714)384-6520

Facsimile: (714)384-6521

Attorneys for Petitioners and Plaintiffs

AIRPORT WORKING GROUP OF ORANGE

COUNTY, INC. and ORANGE COUNTY

REGIONAL AIRPORT AUTHORITY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

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Document Prepared on Recycled Paper

PARTIES

A. Petitioners’ Beneficial Interests.

1. Petitioner/Plaintiff AIRPORT WORKING GROUP OF ORANGE COUNTY, INC. ("AWG"), is a nonprofit corporation located in Orange County, California, whose members will suffer the local and regional air quality, hazardous waste, water quality, traffic and other impacts caused by the proposed development of the former Marine Corps Air Station, El Toro ("MCAS El Toro") ("Project") that is the subject of this action.

2. Petitioner/Plaintiff ORANGE COUNTY REGIONAL AIRPORT AUTHORITY ("OCRAA") is a Joint Powers Authority and a public agency comprised of 14 cities located in Orange County, California, and formed under the laws of the State of California. OCRAA’s member cities include: Anaheim, Buena Park, Costa Mesa, Cypress, Garden Grove, La Habra, Los Alamitos, Newport Beach, Placentia, Seal Beach, Stanton, Villa Park, Westminster, and Yorba Linda. Because they are located in Orange County, OCRAA’s member cities and their citizens will suffer the increased traffic, air quality, and land use impacts arising from development of MCAS El Toro if they are not adequately evaluated or properly mitigated. Further, the inadequate environmental analysis of the Project will adversely impact future planning and development by OCRAA member cities.

3. Petitioners/Plaintiffs identified in paragraphs 1 and 2 are referred to collectively herein as "Petitioners."

4. Respondent/Defendant CITY OF IRVINE, CALIFORNIA ("City of Irvine" or "Irvine") is a municipal corporation, organized and existing under the laws of the State of California. Irvine is the sponsor of the Project and lead agency in the development of its environmental review which is the subject of this Petition. As a City, Irvine is charged by law with responsibility for ensuring compliance with the California Environmental Quality Act ("CEQA") (Pub. Resources Code § 21000, et seq.) and its implementing Guidelines, 14 Cal. Code Regs §15000, et seq., for all discretionary projects within the City’s jurisdiction.

5. Respondent/Defendant CITY COUNCIL OF THE CITY OF IRVINE ("City Council") is the duly elected legislative body of Irvine. The City Council is comprised of the City’s Mayor and four City Council Members. The acts and omissions alleged herein were, and are being undertaken by the City Council on behalf of the City of Irvine.

6. Respondent/Defendant LARRY AGRAN ("Mayor Agran") is the current Mayor of the City of Irvine.

7. Respondents/Defendants identified in paragraphs 4, 5 and 6 are referred to collectively herein as "Respondents."

8. Petitioners are currently unaware of the true names and capacities of Respondents/Defendants DOES 1 through 100, inclusive, as the information concerning their identity is within the sole and exclusive control of Respondents. Petitioners therefore sue those parties by such fictitious names. Petitioners are informed and believe, and upon such information and belief allege, that DOES 1 through 100, inclusive, are agents of Respondents, and each of them, responsible in some manner for the conduct alleged in this Petition and Complaint. ("Petition") Petitioners will seek leave to amend this Petition to state the true names and capacities of the fictitiously named parties when the same have been ascertained.

II.

NATURE OF THE CASE

9. This Petition is a challenge to various actions by the City of Irvine and its elected representatives implementing a huge residential, commercial and industrial development called "Orange County Great Park" on almost 4,000 acres of vacant land in South Orange County which once served as the El Toro Marine Corps Air Station.

10. The proposed development belies its namesake, "the Great Park". In fact, the Environmental Impact Report for the Great Park, including its associated documents ("EIR"), reveals clearly that the "Great Park" will be composed of a variety of uses, none of which resemble a park, including, but not limited to, a minimum of 6,585,594 square feet of commercial development and 3,652 dwelling units, which Respondents call the "Overlay Plan".

11. The less dense alternative, the "Base Plan" is revealed in the EIR as infeasible without the financial contribution of developers, which will be given only in return for commercial, residential and industrial development rights. The "Base Plan" is the quintessential "Red Herring" thrown into the mix to distract the Orange County polity who voted for the establishment of a park on the El Toro property in the passage of Measure W ("The Great Park Initiative") from the fact that Measure W does not apply to development in Irvine, and that Respondents intend to take full advantage of their independent zoning and planning power to design a project that will have the highest possible financial but not necessarily environmental or aesthetic benefits to Irvine or the surrounding communities.

12. In their zeal, however, to take advantage of this unparalleled development opportunity, Respondents have ignored compliance with the California Environmental Quality Act, Public Resources Code § 21000, et seq., ("CEQA"), and its implementing Guidelines, 14 Cal. Code Regs 15000, et seq., ("CEQA Guidelines"), by, among other things:

(a) failing to adequately disclose, and, indeed, affirmatively disguising, the full scope and magnitude of the development anticipated for the Project area;

(b) failing to fully and accurately disclose the level of toxic contamination still present in the Project area, or to prescribe or require effective measures to mitigate its impacts before development is commenced;

(c) failing to adequately disclose the traffic impacts of an additional approximately 500,000 additional daily trips ("ADT") attributable to the Project alone, or to prescribe adequate, functional mitigation measures to compensate for their clearly significant impacts;

(d) failing to disclose the air quality impacts of the demolition of approximately 900 acres of runway and adjacent aircraft operational areas which have not yet been tested for possible contamination by toxic chemicals generated during 50 years of military tenure; and

(e) failing to analyze the cumulative effects of their own actions when taken together with a development of an additional approximately 40,000 residences and millions of square feet of commercial and industrial development currently planned for unincorporated Orange County contiguous with, or only a short distance from, Irvine.

13. For these reasons, and the others set forth in this Petition, Respondents’ actions are unlawful, invalid and unenforceable. Petitioners therefore request this Court issue alternative and/or peremptory Writs of Mandate and order for injunctive relief prohibiting the enforcement and implementation of any action in furtherance of the development of the proposed Project, and that judgment be issued declaring the EIR, and any actions taken pursuant thereto, null and void.

III.

JURISDICTION AND VENUE

14. This Court has jurisdiction to issue a Peremptory Writ of Mandate under either (a) Code of Civil Procedure § 1094.5 and Public Resources Code § 21168, or (b) Code of Civil Procedure § 1085 and Public Resources Code § 21168.5.

15. Venue is proper in Orange County because: 1) the Project is located in Orange County and will have adverse environmental impacts in Orange County; 2) Respondents are located in Orange County; and 3) Respondents’ actions which are the subject of this Petition were taken by Respondents in Orange County. However, because this action is brought against the City of Irvine by, among other Petitioners, OCRAA which is made up of 14 public agencies, and is itself a public agency, Code of Civil Procedure § 394 requires that it be transferred to another county, or that the Judicial Council assign a disinterested judge from a neutral county to hear this action and all proceedings in connection therewith.

IV.

RELATED CASE

16. This action is related to an action entitled Airport Working Group of Orange County, Inc, et al. v. United States Department of Defense, et al., Case No. SA CV 02-1110-GLT (MLGx), filed on June 19, 2002 and pending in the United States District Court for the Central District of California. Airport Working Group of Orange County, Inc, et al. v. United States Department of Defense, et al. challenged the validity of the Final Environmental Impact Statement ("FEIS") prepared by Federal agencies for the transfer and reuse of MCAS El Toro under the National Environmental Policy Act (42 U.S.C. § 4321, et seq.) and the Federal Clean Air Act (42 U.S.C. § 7401, et seq.). This action, brought under State environmental laws and regulations, and the Federal action, brought under Federal environmental statutes and regulations, both challenge the inadequate assessment of the environmental impacts which will result from the future use of the same Project area (Cal. Rule Ct. 804(b)(2)).

V.

COMPLIANCE WITH PROCEDURAL REQUIREMENTS

17. Petitioners have performed all conditions precedent to issuance of a Writ of Mandate.

(a) Petitioners have exhausted all applicable administrative remedies available to them, in compliance with, among other statutes, Public Resources Code § 21177, by, among other things, submitting voluminous comments to Respondents concerning the EIR which is the subject of this Petition.

(b) Petitioners have complied with Public Resources Code § 21167.5 by serving written notice of the commencement of this action on the City of Irvine. True and correct copies of the notice and the accompanying proof of service are attached hereto as Exhibit "A".

(c) Petitioners have complied with Public Resources Code § 21167.6(a) by filing, concurrently with this filing of this Petition a written request to the City of Irvine for preparation of the record. A true and correct copy of the request is attached hereto as Exhibit "B".

(d) Petitioners have complied with Public Resources Code § 21167.7 and Code of Civil Procedure § 388 by serving a copy of this Petition on the Attorney General of the State of California. A true and correct copy of the proof of service on the Attorney General is attached hereto as Exhibit "C".

VI.

STATUTORY BASIS FOR THE ACTION

18. Public Resources Code § 21168 provides that suits alleging noncompliance with CEQA shall proceed in accordance with Code of Civil Procedure § 1094.5 if "by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency." Under § 21168, actions taken by public agencies must be "supported by substantial evidence in light of the whole record." Public Resources Code § 21168.5 establishes a different standard of review for CEQA challenges that are not governed by § 21168. Under § 21168.5, actions taken by public agencies will be invalidated if they constitute prejudicial abuse of discretion. Actions under 21168.5 properly proceed under Code of Civil Procedure § 1085, which provides that a Writ of Mandate "may issue by any court to any inferior tribunal, corporation, board or person to compel the performance of an act which the law specifically enjoins . . ." Irvine is an "inferior tribunal, corporation or board" within the meaning of C.C.P. §1085.

19. The City of Irvine has violated a duty which the law specifically enjoins, and Petitioners have a clear, present and substantial right to the performance of the City’s duty.

20. Petitioners have a beneficial interest in the issuance of a Writ of Mandate. As explained above, Petitioners and their members and citizens will suffer the adverse environmental and development impacts of the Project if those impacts are not properly identified, analyzed, evaluated and mitigated.

21. Petitioners have no plain, speedy and adequate remedy in the ordinary course of law, other than the relief sought herein, where no other means is available to obtain judicial review of Respondents’ actions, and no damages or other legal remedy can adequately compensate Petitioners for the irreparable harm they will suffer if the Project is allowed to proceed as planned.

VII.

GENERAL ALLEGATIONS

A. Irvine’s Proposed Action.

22. The proposed action consists of the following: 1) Annexation, General Plan Amendment, Pre-Zoning (prior to annexation) of the unincorporated portion, and Zoning of Planning Area 51; 2) Annexation of the unincorporated portion of Planning Area 35 (Irvine Ranch Water District Parcel); 3) General Plan Amendment and Zone Change for Planning Area 30, which is presently in the City of Irvine; and 4) Approval of the form of a Development Agreement vesting approval of higher intensity overlay uses in consideration for dedication of land for public purposes and for developing and funding certain infrastructure improvements and maintenance of the public uses by the purchaser/developer and subsequent landowners and funds for specified park, roadways, and other circulation facilities and infrastructure. [DEIR, Vol. I, p. 3-1]

B. Project Description

23. The Project is purported to be comprised of two different levels of development: (a) a Base Plan which represents the minimum level of development anticipated for the site ("Base Plan"); and (b) an Overlay Plan which defines additional development rights which may be granted if a future property owner enters into a Development Agreement with the City ("Overlay Plan").

24. The Base Plan and the Overlay Plan differ significantly, most notably in the levels of development allowed. The Base Plan allows development of a minimum of 3,856,500 square feet of commercial development, and construction of 225 dwelling units, whereas the Overlay Plan allows development of a minimum of 6,585,594 square feet of commercial development and 3,652 dwelling units. For example, the Base Plan allows for development of 300,000 square feet for Research and Development ("R&D"). The Overlay Plan allows development of 2,600,000 square feet for R&D. The Overlay Plan increases to 220 the number of acres zoned for "Transit Oriented Development", as compared to 20 acres allowed by the Base Plan. The Base Plan does not include "Retail" uses. The Overlay Plan allows for 300,000 square feet of Retail development. With respect to Residential Land Use, the Base Plan allows only for Medium Density Residential development, with a maximum of 15 acres and 60 dwelling units, whereas the Overlay Plan allows 95 acres, with 860 dwelling units, to be developed as Medium Density Residential. In addition, the Overlay Plan allows for development of 320 acres, with as many as 1,100 dwelling units, as Low Density Residential, and 145 acres, with 1,500 dwelling units, as Medium-High Density Residential. The Base Plan does not allow any Low Density or Medium-High Density Residential land use.

25. The Project area is located in the central portion of Orange County, California, on the former MCAS El Toro site, northeast of the convergence of Interstate 5 ("I-5") and Interstate 405 ("I-405"). The Project area consists of approximately 4,709 acres, approximately 4,295 acres of which are located in the unincorporated area of Orange County and are currently subject to the regulations and ordinances of County government, and approximately 414 acres are already located within Irvine’s jurisdictional boundaries and are governed by the land uses prescribed by Irvine’s General Plan.

26. Although part of the Project area, the Project does not include the 905 acres of the former MCAS El Toro property which has been transferred by the Federal Government to the Federal Aviation Administration ("FAA") under the Federal disposal process, and an additional 70 acres which will be transferred to the Department of Justice, Federal Bureau of Investigation ("FBI") for use as an Explosive Ordnance Disposal ("EOD") facility.

27. There are five runways and associated taxiways located in the central portion of the Project area: two 200 feet wide, 10,000 feet long north/south parallel runways; two 200 feet wide, 8,000 feet long east/west parallel runways; and one 100 foot wide, 3,900 foot long limited duty runway. Aviation support facilities located adjacent to the runways include aircraft parking aprons, hangars, maintenance facilities and a passenger terminal, and occupy approximately 900 acres.

28. There are approximately 500 non-residential buildings, 1,188 family housing units and 4,380 bachelor housing units located on MCAS El Toro. Approximately 868 acres have been recently used for agricultural production or agricultural related uses in the northern, eastern and southern portions of MCAS El Toro.

29. The MCAS El Toro Property is surrounded by a number of incorporated cities, including the City of Lake Forest to the southwest, and Laguna Hills and Aliso Viejo to the south. The property is within Irvine’s sphere of influence.

30. All of the land surrounding MCAS El Toro was once owned by The Irvine Company, and many of the undeveloped parcels in the area are still owned by The Irvine Company. The Irvine Company has developed business parks and residential communities in the vicinity of MCAS El Toro.

31. Irvine has also annexed and approved the Northern Sphere Project which lies directly north of MCAS El Toro, and is planned to contain, among other uses, approximately 12,000 residential units, as well as substantial amounts of commercial and industrial development.

32. The MCAS El Toro 65 dB(A) CNEL contour ("Policy Implementation Line"), based on the 1981 Marine Corps Air Installations Compatible Use Zones ("AICUZ") Study, MCAS El Toro (DON 1981), encompasses an area surrounding MCAS El Toro that is not compatible with aviation use, containing land uses with sensitive noise receptors such as residential development, schools and hospitals. The 65 dB(A) CNEL contour extends approximately 4.5 miles to the east, 6.0 miles to the south, 1.0 mile to the west and 2 miles to the northwest, encompassing an estimated 14,000 acres surrounding MCAS El Toro within which no development incompatible with aviation use, including residential, has been allowed to occur. Some encroachment by residential uses has occurred in two areas in Irvine. The conversion of the Project area to non-aviation use will free the 14,000 acres from aviation related development restrictions.

33. Petitioners are informed and believe and, based on such information and belief, allege that plans have been developed and/or approved for development in South Orange County, including construction of up to 20,000 homes and at least 17 million square feet of commercial and industrial space north of the Project area, and 14,000 homes on 23,000 acres in Rancho Mission Viejo, south of the Project area.

D. Project History.

34. In September, 1993, the U.S. Defense Base Closure and Realignment Commission ("DBRAC") recommended the closure of MCAS El Toro pursuant to the authorization contained in the Defense Base Reuse and Realignment Act ("DBRA"), as amended by the National Defense Authorization Act for Fiscal Year 1993 (Pub. L. 102-484). The DBRAC recommendation set in motion a series of actions by the Federal Government, Orange County and its voters, and Irvine in connection with the closure, transfer and reuse of MCAS El Toro.

(a) Federal and County Action.

35. On or about April 5, 1995, the U. S. Department of the Navy ("DON") designated the Orange County Board of Supervisors ("Board of Supervisors") as the Local Redevelopment Agency ("LRA") for the civilian reuse of MCAS El Toro. As the LRA for MCAS El Toro, the Board of Supervisors was generally responsible for the formulation of a plan for the eventual civilian reuse of the closed military base, the submission of that plan for approval by DON and ultimate implementation of the approved reuse plan.

36. On or about December 11, 1996, the Board of Supervisors, sitting as the LRA, adopted Resolution No. LRA R96-02 approving EIR 563 and a Community Reuse Plan for MCAS El Toro, which included development of a commercial airport at El Toro, aviation compatible institutional, educational, commercial and office uses, research, development and light industrial uses, open space and habitat conservation, and all necessary transportation and utility infrastructure.

37. In June, 2001, following a series of initiatives and ballot measures sponsored by proponents and opponents of development of a commercial "El Toro Airport" on the MCAS El Toro property, El Toro Airport opponents sought to prevent the Board of Supervisors and the DON from proceeding with the transfer and conversion of MCAS El Toro to a civilian airport by proposing to replace the Board of Supervisors’ plans for a civilian airport with their proposal for a vast park on the former military base property.

38. The park proposal was incorporated into a proposed initiative measure filed with the Orange County Registrar of Voters entitled "The Orange County Central Park and Nature Preserve Initiative." The initiative was subsequently denominated "Measure W", and the plan came to be known as the "Great Park."

39. Measure W amended various sections of the Orange County General Plan, including "Introduction", "Background for Planning", "Land Use Element", "Transportation Element", "Public Services and Facilities Element", "Resources Element", "Recreation Element", "Noise Element", "Safety Element", and Appendices IV, VII, and VIII. It repealed the aviation reuse designation for MCAS El Toro and replaced it with non-aviation designations ". . . to ensure that the property will become a multi-use center for education, park, recreation, cultural and other public-oriented uses." (Measure W, § 2.J)

40. The central feature of Measure W is a series of amendments to the Land Use Element of the County’s General Plan. Prior to Measure W, the land use element divided the County’s proposed land uses into Residential, Commercial, Employment, Public Facilities, Urban Activity Center and Open Space, with the Open Space category further divided into two sub-categories: "Open Space (5)" and "Open Space Reserve". The Orange County General Plan describes the difference between the two sub-categories as follows:

41. Measure W made two major changes to the Open Space category. First, it redefined "Open Space Reserve" to include "open space compatible uses." (Measure W, § 4.3e) Second, Measure W added two new sub-categories within the Open Space land use category: (a) the Nature Preserve ("NP") overlay; and (b) the Education/Park Compatible ("EPC") overlay, described by Measure W as follows:

42. Measure W then categorizes all of the land within MCAS El Toro into one of the three overlay designations, with approximately 1,000 acres designated as Nature Preserve, more than 600 acres as Education/Park Compatible, and roughly 2,400 acres as Open Space Reserve. Recognizing the reality, however, that these were not existing uses for most of the El Toro Property, and that the initiative provides neither a funding mechanism not a timetable for providing the funding necessary to build any of the park and recreational facilities that it proposed, Measure W provides for what it calls "leasing opportunities at El Toro pending transition to park-compatible development." The "leasing opportunities" permitted in the Open Space Reserve overlay are virtually unlimited, "including but not limited to . . . agriculture, plant nurseries, material recovery/recycling facilities, recreation, housing and employment." (Measure W, Table III-1, Open Space Reserve)

43. The Measure W amendment to the Orange County General Plan did not amend the Irvine General Plan, which governs land use regulations within the City of Irvine.

44. Measure W appeared on the March 5, 2002, Orange County primary election ballot and was approved.

45. On or about March 8, 2002, despite the passage of Measure W, the FAA and DON released the FEIS for the Disposal and Reuse of MCAS El Toro. The FEIS does not describe or analyze Measure W, or its impacts, and does not describe or analyze the impacts of Millennium Plan II, the current Irvine General Plan. The FEIS purports to analyze the environmental impacts of two other non-aviation reuse alternatives, the "Business Park" Plan and the "Village Park" Plan (the original "Millennium Plan" repudiated by Irvine in favor of Millennium Plan II, a reduced density proposal.)

46. On or about April 16, 2002, the Board of Supervisors voted to cease further planning for reuse of the MCAS El Toro Property, and to cede control of planning and development of the Property to Irvine.

47. In a letter of April 23, 2002, General H.T. Johnson, Assistant Secretary of the Navy for Installations and Environment, acknowledged the LRA’s April 16, 2002 decision.

48. On April 29, 2002, DON published the "Record of Decision for Disposal and Reuse of the Marine Corps Air Station El Toro, Orange County and Irvine, California" ("ROD") in the Federal Register (67 F.R. 20961). The ROD states, in part, that DON will dispose of the property "in a manner consistent with statute and local land use plans", possibly by public sale, for mixed land reuses consistent with Measure W.

49. In or about February, 2003, DON issued a Draft Environmental Baseline Survey ("Draft EBS") which identified hundreds of potentially contaminated sites, over and above those identified and designated in the previous EBS completed in 1995, upon which the hazardous materials analysis in the DEIR is based.

50. Of the new sites identified in the Draft EBS, approximately 76 had not yet been investigated for levels of contamination, including an approximate nine acre site ("Anomaly Area 3") which lies in a land use designation expected to contain 1,100 units of low density residential housing.

51. On or about April 28, 2003, DON circulated for comment the Draft Final Environmental Baseline Survey ("Draft FEBS"). Although purporting to have investigated a number of the theretofore uninvestigated sites, a number of "Category 7" sites, the most highly contaminated sites, remain to be fully investigated, including Anomaly Area 3. Petitioners are informed and believe and, based on such information and belief, allege that the original June 30, 2003 closing date for comments on the Draft FEBS has been extended beyond that date at the request of environmental regulators.

(b) City of Irvine Action.

52. In or about 1999, the City of Irvine introduced a General Plan Amendment created by a coalition of South County cities known as the El Toro Reuse Planning Authority ("ETRPA"). The General Plan Amendment designated land uses in the area of El Toro not already incorporated by Irvine but within its sphere of influence. The General Plan Amendment was designated "Millennium Plan I" and involved substantial residential and commercial development on El Toro.

53. Millennium Plan I was never adopted by the City of Irvine, and was subsequently withdrawn. A less dense alternative, Millennium Plan II, was adopted by the City of Irvine and remains the basis for Irvine’s General Plan land uses for El Toro.

54. In or about January, 2000, the City of Irvine issued a report titled: "The Navy’s Underestimation of Solvent Contamination At MCAS El Toro" ("The City of Irvine’s Solvents Study"). This Study concludes, among other things, that "impacted soil will almost surely be encountered during excavation"; that the Navy used and disposed of solvents in areas throughout the base which have not been evaluated or tested; and that many solvents have found their way into the base storm sewer system.

55. In or about February, 2003, after passage of Measure W, and the actions by the DON in furtherance of transfer of the base, Irvine circulated the Draft Environmental Impact Report ("DEIR") for its planned reuse of the El Toro Property.

56. On April 4, 2003, Petitioner AWG submitted extensive comments on the DEIR to the City of Irvine, in accordance with the statutory and regulatory standards set forth in CEQA and the CEQA Guidelines.

57. On or about May 15, 2003, the City of Irvine released its Response to Comments received on the DEIR.

58. On May 27, 2003, the City Council adopted Resolution No. 03-60, certifying the DEIR and approving a General Plan Amendment to revise elements of the Irvine General Plan, including Findings of Fact ("Findings") and a Statement of Overriding Considerations Regarding the Final Environmental Impact Report ("SOC") for the Orange County Great Park. The DEIR, Response to Comment, Staff Report, Findings of Fact and SOC are referred to collectively hereinafter as the "EIR".

59. A Notice of Determination for Resolution 03-60 was filed by Irvine on May 28, 2003, and posted on May 28, 2003.

VIII.

FIRST CAUSE OF ACTION

Violation of CEQA (Public Resources Code § 21000, et seq.

(Against All Respondents and DOES 1 through 100, inclusive)

60. Petitioners hereby incorporate by reference into their First Cause of Action paragraphs 1 through 59 of this Petition as if set forth herein in full.

61. CEQA was enacted to ensure that the long term protection of the environment, consistent with the provisions of a decent home and suitable living environment for every Californian shall be the guiding criterion in public decisions. Public Resources Code § 21001(d). CEQA, unlike its Federal counterpart, the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA") has not been construed as a merely procedural statute. Rather, CEQA contains substantive provisions with which agencies must comply. Most important of these is the provision requiring public agencies to deny approval of a project with significant adverse effects when feasible alternatives or feasible mitigation measures can substantially lessen such effects. Public Resources Code § 21002; Sierra Club v. Gilroy City Council, 222 Cal.App.3d 30, 41 (6^th Dist. 1990). CEQA was intended to be interpreted in such a manner as to afford the fullest protection to the environment within the reasonable scope of the statutory language. Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247 (1972). Thus, the CEQA process is intended to protect not only the environment, but also informed self government. Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553, 564 (1990). The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. Bozung v. LAFCO, 13 Cal.3d 263, 283 (1975).

62. The EIR requirement is the heart of CEQA. County of Inyo v. Yorty, 32 Cal.App.3d 795, 810 (1973). In drafting an EIR, the lead agency must consider the whole of an action, not simply its constituent parts, when determining whether it will have a significant environmental effect. Citizens Assoc. for Sensible Development of Bishop Area v. County of Inyo, 172 Cal.App.3d 151, 165 (1985). A court does not pass upon the correctness of an EIR’s environmental conclusions, but only determines if the EIR is sufficient as an information document. Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692, 711 (1990).

63. The CEQA Guidelines, developed in 1973 pursuant to authority granted in Public Resources Code § 21083 contain the procedures with which public agency action to implement CEQA must be consistent. Public Resources Code § 21082. At a minimum, courts should afford the CEQA Guidelines great weight, Citizens of Goleta Valley, supra, 52 Cal.3d at 564, n. 3, as the contemporaneous construction of a statute by an administrative agency charged with its administration and interpretation. City of Santa Ana v. City of Garden Grove, 100 Cal.App.3d 521, 530 (4^th Dist. 1979).

64. "‘Project’ means the whole of an action which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . ." CEQA Guidelines, § 15378. The California courts have set forth a simple, two-prong test for determining whether and EIR has properly accounted for reasonably foreseeable future expansion of a proposed project: (1) is future expansion a reasonably foreseeable consequence of the initial project?; and (2) will the future expansion or action be significant in that it will likely change the scope or nature of the initial project or its environmental effects? Laurel Heights Improvement Association of San Francisco, Inc. v. Regents of the University of California, 47 Cal.3d 376, 393-399 (1988).

65. The EIR defines the proposed Project as containing: (1) a Base Plan, and (2) an Overlay Plan. The Base Plan is alleged to "represent the minimum level of development anticipated for the site" (DEIR, 1-5); to be "in accord with the Orange County Great Park Plan" (DEIR, 1-1); "to assure that the reuse of El Toro is consistent with the intent of Measure W" (DEIR, 1-2); and, taken together with the far more intense utilization of the land represented by the Overlay Plan, "to establish the policy and legislative structure to guide the development of the El Toro property and the implementation of the ‘Orange County Great Park’" (DEIR, 1-2).

66. The Overlay Plan defines additional development rights which may be granted if the property owner enters into a development agreement with Irvine (DEIR, 1-5) whereby the landowner will dedicate land for public purposes and for funding of certain infrastructure and public space amenity improvements in return for those additional development rights (DEIR, 1-5).

67. The EIR, however, acknowledges that the concept which underlies the Base Plan "was based on the assumption that the Federal government would transfer the land to public entities at low or no cost via public benefit conveyance and/or economic development conveyance similar to other base reuse efforts" (DEIR, 1-5). When the Federal government decided to sell the land to the private sector, Irvine could no longer afford the luxury of thousands of acres of open space and recreational opportunities (DEIR, 1-5). Instead "the Great Park Plan is formulated as an Overlay Plan, i.e., a Base Plan with an overlay" (DEIR, 1-5).

68. The EIR is inadequate where it fails to disclose that the land use allowed by Measure W, and the "building intensity/population density standards" in Irvine’s proposed "Great Park Land Use Summary" (DEIR, Table 1-2) bear little or no resemblance to one another:

69. The EIR concedes that development under the Overlay Plan is the only means of providing "a financially viable development consistent with the intent of Measure W" (DEIR, 2-1). The text of the proposed Development Agreement supports that concession. It provides for the base property to be allocated for development in four parcels, and for a collective threshold financial contribution by developers of $200 million allocated proportionally by parcel (Development Agreement, § 4.2). That $200 million contribution is to be used for "development of park site, the sports park site, and other project infrastructure (Development Agreement, § 4.2). The Development Agreement also provides for a supplemental development fee totaling $50 million to finance the construction of additional public improvements (Development Agreement, § 4.3), or for developer participation in a proposed Community Facilities District (Development Agreement, § 6.1), and in the financing of transportation infrastructure and the "NITM [North Irvine Transportation Mitigation] Program" (Development Agreement, § 5).

700 Nowhere does the EIR or its associated documents disclose the way in which Irvine intends to implement the Base Plan absent the developer financing arising out of the Overlay Plan. In fact, the EIR and associated documents contradict each other on the issue. The SOC states that "the proposed Base Plan will result in dedication of approximately 1,564 acres of permanent open space/park, sports park and golf course (SOC, p. 136). This directly contradicts the Staff Report which asserts that "under the Base Plan, public funding is not required because park and open space land is not required to be dedicated" (Staff Report, p. 23).

710 As Irvine admits that the Base Plan which implicates massive amounts of open, and, therefore, unbuildable space, is financially infeasible without the financial contribution of developers; and as the financial contribution of developers is only feasible if the quid pro quo is the right to develop (hence the Overlay Plan), the Project Description which includes the Base Plan is fundamentally deceptive, and, thus, violative of the public disclosure purpose of CEQA.

720 The EIR also fails to disclose the proliferation of development under the Overlay Plan and the concomitant increase in the Project’s environmental effects. Where, as here, "an individual project is a necessary precedent for action on a larger project, or commits the lead agency to a larger project with significant environmental effects, the EIR must address itself to the scope of the larger project." CEQA Guidelines § 15165. Therefore, under the second prong of the test, the EIR must provide the public with an accurate portrayal of the environmental impacts of the Overlay Plan.

730 Instead, the EIR not only fails to disclose but affirmatively obscures the full build-out potential under the Overlay Plan scenario. The Project Description includes both zoning and General Plan Amendment for both Planning Area Zones 51 and 30 [DEIR, 3-1]. The General Plan Amendment allows development under the Overlay Plan of 3,625 dwelling units (all within Planning Area 51) and 6,545,600 square feet of commercial space (within both Planning Areas 51 and 30). [DEIR, Fig. 3-4; Staff Report, Tables A-4, A-5].

740 The Project’s Zoning however permits a much greater level of development. For example, Planning Area Zone 2, within Planning Area 51, is designated for the development of residential use at a maximum intensity of 0-6.5 DU/acre (DEIR, Figure 3-4). Planning Area Zone 2 encompasses 270 acres and is designated under the General Plan Amendment to include a maximum of 850 dwelling units (DEIR, Figure 3-4). The zoning designation, however, allows as many as 1,755 units (6.5 DU/acre times 270 acres). Moreover, neither the EIR nor any associated document discloses a mechanism whereby the limit of 850 units under the proposed General Plan Amendment may be enforced where the zoning designations would allow for far greater intensity of development (with concomitantly greater but unanalyzed environmental impacts) than those disclosed in the EIR.

750 The requirement for a Development Agreement further obscures the true scope and magnitude of the development allowable under the Overlay Plan. A developer may elect to develop the property under the terms of the Development Agreement at the outset. The Development Agreement does not contain, nor does the EIR reveal any impediment to a later renegotiation by developer and the City of Irvine to increase the limit of the Project development while still staying within the parameters established in the Project zoning.

760 As a consequence, the EIR’s Project Description is wholly inadequate because it: (1) mischaracterizes the Project as the "Orange County Great Park", and the Project’s purpose "to guide the development of the El Toro property and the implementation of the Orange County Great Park" (DEIR, 1-2) when, in fact, it bears no resemblance to the land uses envisioned for the Great Park enacted in Measure W; (2) defines the "Base Plan" as the "Great Park" even though the Base Plan cannot exist without the financial contribution of developers under the "Overlay Plan", the massive residential and commercial development that constitutes the only real plan for the Property; and (3) dramatically understates the development potential of even the "Overlay Plan", as well as concomitant environmental impacts. The EIR thus violates a fundamental purpose of CEQA "to inform governmental decision makers and the public about the potential significant environmental effects of proposed activities." Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal.App.4th 182, 195-96 (1996).

770 Irvine designates the EIR as a "Program" EIR [DEIR, 1-1]. "A Program EIR is an EIR which may be prepared on a series of actions that can be characterized as one large project", CEQA Guidelines § 15168(a), for, among other reasons, that the actions occur "in connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program . . .", CEQA Guidelines § 15168(a)(3). "A Program EIR will be most helpful in dealing with subsequent activities if it deals with the effects of the program as specifically and comprehensively as possible. With a good and detailed analysis of the program, many subsequent activities could be found to be within the scope of the Project described in the Program EIR, and no further environmental documents would be required." CEQA Guidelines § 15168(c)(5). "The amendment of a general plan is a ‘project’ within the meaning of CEQA’s definition of that term . . . calling it a ‘program’ EIR does not relieve a city from having to address the significant environmental effects of that project." Stanislaus Natural Heritage Project, supra, 48 Cal.App.4th at 202 (1996). Moreover, tiering, or the "coverage of general matters and environmental effects in an EIR prepared for a policy, plan, program or ordinance, followed by narrower or more site specific Environmental Impact Reports", Public Resources Code § 21068.5, "is not a device for deferring identification of significant environmental impacts . . .", Stanislaus Natural Heritage Project, supra, 48 Cal.App.4th at 199.

780 The EIR is inadequate because it lacks the specificity required even of a program EIR. First, the SOC defers any commitment to mitigation measures, including, but not limited to, those for the Project’s admittedly significant air quality impacts. While it lists relevant mitigation measures, it also states: "Some or all of the mentioned mitigation measures can be implemented as necessary, but quantification and application of these measures cannot be specified at this time" (SOC, p. 93).

790 The EIR is also inadequate because it defers disclosure of the basic backbone infrastructure that the rest of the future development will rely upon, including the locations of the arterial streets and highways; the way in which circulation will be provided throughout the planned community; where and how much water will be available for the planned area zones; and where the boundaries of development will occur with the urban/wild land interface and the resulting fuel modification zones, stating that: "The detailed information discussed in the comment will be available in the design phase" (Response to Comment J16), even though such information, including the mechanism for provision of water, will be required regardless of the ultimate design of each of the developments under the Overlay Plan. Stanislaus Natural Heritage Project, supra, 48 Cal.App.4th at 199-200.

800 The EIR, therefore, impermissibly defers requisite analysis of the Project’s environmental impacts, ["the impacts of the proposed project have been analyzed to the extent feasible at the time of certification of the EIR" (SOC, p. 10)], and, for that reason, cannot meet even the less rigorous test of specificity required for a Program EIR.

C. The EIR Fails to Adequately Disclose or Analyze the Project’s Air Quality Impacts.

810 "An EIR is an informational document which will inform public agency decision makers and the public generally of the significant effects of a project, identify possible ways to minimize the significant effects, and describe reasonable alternatives to the project." CEQA Guidelines § 15121(a). "The decision as to whether a project may have one or more significant effects shall be based on substantial evidence in the record of the lead agency." CEQA Guidelines § 15064(f). "Argument, speculation, unsubstantiated opinion or narrative, or evidence that is clearly inaccurate or erroneous or evidence that is not credible shall not constitute substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by fact." CEQA Guidelines § 15064(f)(5).

820 The EIR is not supported by substantial evidence where it: (1) fails to analyze or fully disclose the air emissions resulting from demolition of the runways and other aircraft operational areas; (2) fails to accurately disclose the cumulative air quality impacts of the Project or its significance for regional air quality; (3) entirely fails to analyze or disclose the potential for toxic pollutant emissions resulting from the release and dispersion of toxic volatile organic compounds and/or heavy metals contained in soils underlying the runways and released by demolition; (4) affirmatively obscures the emissions impacts of both the trucks needed to transport 3.4 million cubic yards of runway demolition debris offsite for sale or recycling, and/or the quantity of and facilities needed for the material intended for on-site recycling; (5) fails to provide any mitigation measures aimed at control of dust caused by demolition activities; and (6) in the final analysis, entirely fails to disclose or analyze the air quality impacts of the Project’s full build-out potential as reflected by its zoning designations.

830 The EIR fails to analyze or disclose the air emissions impacts of runway and taxiway demolition. In the EIR, Response to Comments M17 and 85, Respondents concede Plaintiffs’ comment in its April 4, 2003 comment letter (designated Comment 83 in its Response to Comments), that the DEIR did not account for runway demolition emissions, because the model used to estimate emissions was run without the demolition data and with the "Demolition Option Switch" set to "off". Respondents now claim that they have performed an additional analysis using a model called URBEMIS 2001 which they assert "adequately assesses the air quality impacts of runway removal" because "the secondary set of URBEMIS runs were performed with the demolition tab enabled"(Response to Comment M17).

840 Despite Respondents’ eleventh hour disclaimers, the EIR remains devoid of analysis of the air emissions impacts of demolition where, among other things:

(a) The URBEMIS 2001 model is not equipped, with or without the "demolition tab enabled", to account for an activity such as runway demolition. The URBEMIS 2001 model, as it relates to demolition, was designed to estimate emissions from the demolition of buildings. The model requires input data that include exterior dimensions of the buildings to be demolished, and the applies an emissions factor attributed to the South Coast Air Quality Management District ("SCAQMD") to the building volume to compute emissions from the demolition of the building. The SCAQMD source document, CEQA Air Quality Handbook, Table A9-9-H, recommends use of an emission factor of 0.00042 pounds of PM₁₀ per cubic foot of building demolished be used in this calculation. The SCAQMD Handbook contains no information on the source of the recommended emission factor, nor any information on how it was derived. As a result, it is impossible to adjust this factor to fit situations other than building demolition, such as runway demolition. In the absence of this capability, Respondents should have used the methodology recommended in the United States Environmental Protection Agency’s ("EPA") Compilation of Air Pollutant Emission Factors, AP-42 ("AP-42"), which was developed for the purpose of performing this type of calculation. The EPA methodology requires the identification of specific equipment and activity rates, and the application of published emission factors, to compute demolition emissions.

(b) Irvine impermissibly deferred requisite air quality analysis where it used "model default options" rather than data specific to the Project’s characteristics "due to the limited availability of specific data regarding construction activities and equipment requirements", even though it has known for over a year, since the passage of Measure W, that the demolition of runways and other aircraft operational areas would be required under every alternative analyzed in the EIR.

(c) The EIR fails to provide any measures for mitigating the heretofore unanalyzed emissions impacts of dust caused by demolition activities (as distinguished from construction activities).

850 The EIR fails to accurately represent the Project’s cumulative regional air quality impacts where its analysis impermissibly relies upon the proportional relationship of the impacts of the Project to the total air quality impacts in the South Coast Air Basin ("SCAB"), and ignores the SCAQMD Regional Emissions Significance Levels, published in the CEQA Air Quality Handbook upon which Respondents purport to rely, and which establish that additions to regional emissions inventories of named pollutants, including PM₁₀, are significant at levels far below 0.5%.

860 The EIR’s health risk assessment entirely omits analysis of the potential for, and magnitude of, toxic pollutant emissions resulting from volatilization of toxic volatile organic compounds or wind entrainment of soils contaminated with toxic metals, which will occur when runways are removed. Such an analysis is critically important, given the fact that only a few samples of the soil under the runways, largely in areas peripheral to the runways, have as yet been taken. Of those samples, at least one reveals contamination. Given the massive area covered by the runways and the discovery of contamination in one of only 12 samples, the risk appears high that toxic volatile organic compounds and heavy metal contamination exists, and, thus, direct exposure of workers demolishing the runways, as well as the indirect exposure of sensitive receptors downwind, will be highly significant.

870 The EIR lacks any analysis of the emissions impacts of trucks required to haul 3.4 million cubic yards of debris from runway demolition to offsite locations. The EIR does not quantify the fraction of demolition debris that would be processed on site for recycling, nor the volume of recycled demolition debris that would be used in construction activities on site. Neither the EIR nor its supporting documents contain any evidence concerning the offsite construction activity within an economically efficient driving distance which would be occurring contemporaneously with the removal of demolition debris, sufficient to directly absorb the remainder of demolition debris not recycled on site.

880 The EIR understates total Project air quality impacts because the full development potential of the Project, as set forth in the proposed zoning, has not been evaluated. No data is provided to document the potential air quality impacts of additional residential, commercial and industrial development allowed by the zoning approved as part of the Project over and above that amount purported to be allowed by the Overlay Plan.

D. The EIR Fails to Adequately Analyze the Project’s Cumulative Impacts.

890 For purposes of CEQA, cumulative impacts are defined as "two or more individual effects which, when considered together, are considerable, or which compound or increase other environmental impacts." CEQA Guidelines § 15355. The cumulative impact from several projects is "the change in the environment which results from the incremental impact of the project when added to other closely related past, present or reasonably foreseeable probable future projects." Id. "A cumulative impact consists of an impact which is created as a result of the combination of the project evaluated in the EIR together with other projects causing related impacts." CEQA Guidelines § 15130(a)(1).

900 CEQA Guidelines provide that cumulative impact analysis may be addressed in one of two ways:

(a) "A list of past, present, and probable future projects producing related or cumulative impacts, including, if necessary, those projects outside the control of the agency." CEQA Guidelines § 15130(b)(1)(A) (referred to in the DEIR as the "List Approach"; or

(b) "A summary of projections contained in an adopted general plan or related planning document, or in a prior environmental document which has been adopted or certified, which described or evaluated regional or area wide conditions contributing to the cumulative impact." CEQA Guidelines § 15130(b)(1)(B) (referred to in the DEIR as the "Regional Projections Method").

910 Until recently, "‘probable future projects’ could be limited to those projects requiring an agency approval for an application which has been received at the time the notice of preparation is released, . . .; projects included in an adopted capital improvement program, general plan, regional transportation plan, or other similar plan; projects included in a summary of projections of projects (or development areas designated) in a general plan or a similar plan; projects anticipated as later phase of a previously approved project (e.g., a subdivision); or those public agency projects for which money has been budgeted." CEQA Guidelines § 15130(b)(2)(B)2. However, this disjunctive catalogue of definitions of "probable future projects" has been successfully challenged in Communities for a Better Environment v. California Resources Agency, 103 Cal.App.4th 98 (2002) ("CEB"), as inconsistent with CEQA law and, thus, invalid.

920 In the final analysis, a valid cumulative impact analysis "is necessary because the full environmental impact of a proposed project cannot be gauged in a vacuum. One of the most important environmental lessons that has been learned is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant when considered individually, but assume threatening dimensions when considered collectively with other sources with which they interact." CEB, supra, 103 Cal.App.4th at 114.

930 The EIR’s cumulative impact analysis is inadequate under the "Regional Growth Projections Method", in that, among other things:.

(a) The "Regional Growth Projects Method" requires, among other things, that the "summary of projections" be contained "in an adopted general plan or related planning document", CEQA Guidelines § 15130(b)(1)(B), such as "a specific plan or local coastal program", Public Resources Code § 21100, "or a prior environmental document which has been adopted or certified . . ." CEQA Guidelines § 15130(b)(1)(B). "A lead agency may determine that a project’s incremental contribution to a cumulative effect is not cumulatively considerable if the project will comply with the requirements in a previously approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem (e.g., water quality control plan, air quality plan, integrated waste management plan) within the geographic area in which the project is located. Such plans or programs must be specified in law or adopted by the public agency with jurisdiction over the affected resources through a public review process to implement, interpret, or make specific the law enforced or administered by the public agency." CEQA Guidelines § 15064(i)(3).

(b) The rationale behind these requirements is to "promote the use of standards and thresholds that have been adopted to protect the environment as the means for determining the significance of project impacts . . . ‘standard’ has been carefully defined to ensure that any such benchmark for determining significance has been adopted for the purpose of environmental protection, governs the same environmental effect that the project is causing, and governs within the area of the project. Further, only those standards which have been adopted by a public agency after a public review process are applicable." CEQA Guidelines § 15064(i).

(c) Orange County Projections 2000 does not meet these standards. The "Regional Growth Projections" referenced in the EIR are nothing more than a statistical analysis based on a composite of "data concerning policies, significant trends, anticipated policy changes and projections" related to population, housing and employment aggregated over the entire county, and is not limited to previously adopted plans or environmental review involving the same geographic area, or the same cumulative problem as that to which the EIR applies.

(d) Orange County Projections 2000 does not state explicitly the assumptions underlying its analysis which were purportedly developed from the informal contacts with local jurisdictions and the their staffs.

(e) Orange County Projections 2000 does not rise to the level of "standard" for determining environmental significance that has been adopted for the purpose of environmental protection, because it does not govern the same effect that the Project is causing, does not "govern" within the area of the Project, and is not the product of a public review process. Therefore, it cannot, as a matter of law, form the basis of a supportable cumulative impacts analysis under the "Regional Growth Projections" method.

940 Even if the use of the Regional Projection Method in the EIR comported with applicable statutes and regulations, OCP2000: (a) does not provide any analysis concerning the derivative traffic, air quality, water quality or other impacts of anticipated population and housing growth; and (b) does not explicitly set forth the analytic data upon which its conclusions are based. Thus, despite its disclaimer, the EIR must rely on the "List" approach.

950 The EIR’s cumulative impacts analysis fails under the "List Approach" as well. The EIR is ambiguous as to whether it relies on the List Approach at all, where the EIR, § 7.1, p. 7-1 states: "This cumulative analysis takes into consideration build-out of local and regional general plans as well as population forecasts for the County of Orange and the region as a whole", while Response to Comment M22 states, in pertinent part: "The Orange County Great Park EIR does not rely on the List Approach for the analysis of cumulative impacts."

960 If the cumulative impact analysis is even partially based on the "List Approach", the analysis is inadequate. The EIR disclaims as "speculative" any knowledge of the development that is planned to take place by other public agencies with jurisdiction over the 14,000 acres to be freed from restrictions imposed in Orange County’s Airport Land Use Plan on areas within the 65 CNEL "Policy Implementation Line". This includes the City of Aliso Viejo which the EIR dismisses as "a newly incorporated city . . . currently in the preliminary stages of preparing a General Plan, which is expected to be adopted in late 2003 or 2004, well beyond the time frame associated with the Orange County Great Park EIR. Rather than engage in speculation as to the nature, extent and timing of potential land use changes that could occur in this newly incorporated jurisdiction, the Orange County Great Park EIR relies upon adopted growth projections as allowed by the CEQA Guidelines for the Regional Growth Projections method."

970 However, EIR 563, prepared as early as 1996 as an environmental document for the then applicable Community Reuse Plan for the aviation reuse of El Toro, refers to the development of 1,825 residential units by the Mission Viejo Company in Aliso Viejo in "PAs 40, 52, 53 currently restricted by the 65 CNEL Policy Implementation Line" (Comment I-10 citing EIR 563, Table 7-5, fn. 1). Nevertheless, the EIR omits any mention of the 1,825 residential units in the cumulative impact analysis.

980 In addition, the EIR omits mention let alone analysis of the cumulative impacts of the Mission Viejo Company plans for the development of 14,000 homes on 23,000 acres east of San Juan Capistrano and just a few miles south of the Project area.

990 The EIR further omits mention or analysis of the cumulative impacts of the 18,500 homes already planned by the Irvine Company along Santiago and Live Oak Canyon Roads and Ortega Highway directly to the north and east and of the Project area.

1000 The EIR further omits to specify or analyze the Project’s cumulative water or air quality impacts, when taken in conjunction with the potential construction in previously undeveloped areas such as Santiago Canyon and the 14,000 acres currently included within the Policy Implementation Line; or the traffic impacts of these imminently probably and easily "foreseeable" future developments.

1010 By failing to disclose, using either method, the Project’s cumulative impacts, Irvine has impermissibly employed the EIR as "a device for deferring identification of significant environmental effects", Stanislaus Natural Heritage Project, supra, 4 Cal.App.4th at 199, and, thus, the EIR’s cumulative impact analysis is fatally flawed.

E. The EIR’s Analysis of the Project’s Traffic Impacts is Inadequate.

1020 "Project means the whole of an action which has a potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect change in the physical environment . . .", CEQA Guidelines § 15378(a). The term "project" excludes "government funding mechanisms or other government fiscal activities" only where those mechanisms or activities "do not involve any commitment to any specific project which may result in a potentially significant physical impact the environment." CEQA Guidelines § 15378(b)(4). "The lead agency must consider the whole of an action, not simply it constituent parts, when determining whether it will have a significant environmental effect." CEQA Guidelines § 15003(h).

1030 The EIR is inadequate where it omits analysis of the traffic impacts of the whole Project, including:

(a) any analysis of traffic impacts arising from development in Planning Area Zone 23, the 100 acre site along the SCRRA rail line east of the Marine Way gate, and does not identify the land uses proposed by the County for PAZ 23, even though those land uses have been identified in County documents and EIRs since 1996, including Property Tax Transfer and Pre-Annexation Agreement among the City of Irvine, the Irvine Redevelopment Agency, and the County of Orange, regarding the annexation and reuse of former MCAS El Toro. This lack of analysis leads to the dramatic understatement of the traffic impacts of the County’s proposed uses in PAZ23. For example, the County anticipates that its proposed land uses will generate 11,800 ADTs as soon as the year 2007 rather than the approximately 3,900 disclosed in the EIR. Moreover, the EIR fails to account for the traffic generated by the Orange County Transportation Agency facility planned for PAZ 23;

(b) the 4,253 ADTs to be generated by the Musick jail facility;

(c) the traffic impacts of the Project on intersections in the City of Tustin;

(d) the traffic impacts of that portion of the General Plan Amendment which changes the significance standard in the City of Irvine from Level of Service (LOS) D to LOS E at selected intersections; and

(e) the traffic impacts of the trucks needed for the hauling of debris resulting from demolition of structures and runways and associated aviation operating areas during, at a minimum, the first three years of Project activities;

1040 The methodology employed in the EIR for the determination of significance is not adequate where, among other things:

(a) In arriving at its conclusions regarding the significance of the Project’s traffic impacts, the EIR exclusively used Irvine’s threshold of significance (an increase of .02 in LOS) even though the threshold of significance in other surrounding communities is .01, thus resulting in an understatement of the Project’s impacts;

(b) The EIR utilizes the City of Irvine’s traffic model, the ITAM 3.01, to analyze the Project’s impacts on intersections in surrounding communities rather than the models used by surrounding communities such as Tustin (the OCTAM 2.8 model developed for use as part of the MCAS Tustin Base Reuse), or the model advocated by the California Department of Transportation ("Caltrans"), the OCTAM 3.1;

(c) The EIR traffic analysis contains lane assumptions on certain main line freeway and SR/241 Toll Road links (EIR, Table 9.6, p. 9-14 and 15) that are incorrect and inconsistent with the Orange County Transportation Agency’s OCTAM 3.1 year 2025 and Caltrans Highway Networks: (1) I-5 east of SR-133: Table 4 lanes. Table displays 5 lanes in each direction while OCTAM 3.1/Caltrans exhibit 4 lanes; (2) I-5 east of Bake Parkway: Table displays 6 lanes in each direction while OCTAM 3.1/Caltrans exhibit 5 lanes; (3) I-5 east of El Toro Road: Table displays 5 lanes in each direction while OCTAM 3.1/Caltrans exhibits 4 lanes; (4) I-5 east of Alicia Parkway: Table displays 5 lanes in each direction while OCTAM 3.1/Caltrans exhibits 4 lanes; and (5) the number of lanes on SR-241 Toll Road. These discrepancies have resulted in an unrealistic estimate of capacities and LOS for these main line links in the year 2025;

(d) The EIR traffic analysis methodology results in overstating capacity by assigning full theoretical capacity to climbing lanes along the SR/241 and SR/73, where climbing lanes are used to mitigate the negative impact of steep grades and are considered to have no capacity; and where on-ramps along toll roads were assigned nonmetered capacity in the EIR, where capacity in the metered condition is appropriate, and where storage capacity for ramp metering for freeways and toll roads was not analyzed in the EIR;

(e) The EIR’s traffic analysis methodology results in inconsistent determinations as to the number of trips generated by the Project. Trip generation rates used in the EIR’s traffic analysis are calculated by converting land use to socioeconomic data using a series of conversion factors. These factors are used to generate trips which are then assigned to analysis zones. The trip generation rates using the socioeconomic data calculations are lower than generation rates using the base land use calculations. Based on the information in the body of the traffic analysis, it is impossible to evaluate the accuracy of the land use-to-socioeconomic conversion, because the EIR provides insufficient information to allow validation of the conversion factors; and

(f) Even accepting the accuracy of the conversion factors, the EIR’s traffic analysis methodology produces an inconsistent result as between the socioeconomic and land use based approaches, and, consequently, understates the trip generation potential of the Project. The EIR concludes that, in 2025, a socioeconomic database trip generation will result in 148,884 trips per day, and a land use based trip generation will result in 155,140 trips per day. This leaves a discrepancy of 6,256 vehicles per day on area roadways. The EIR explains this discrepancy by stating that "in each scenario, differences from socioeconomic database trip generation are more apparent than real, as model trip lengths are longer. Volumes on roadways are actually similar" (DEIR, p. 5-28). The EIR, however, never explains the extent of any "real" difference in traffic volumes that may be ascertained from the traffic analysis methodology, nor the potential traffic impacts of these additional 6,256 vehicles which are, according to the EIR "more apparent than real".

1050 The EIR is inadequate where it fails to prescribe effective and defensible mitigation measures to compensate for the Project’s adverse traffic impacts, even though a basic purpose of CEQA is to "prevent significant avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures." CEQA Guidelines § 15002(a)(3).

1060 The EIR’s primary proposed mitigation measure is the North Irvine Transportation Improvement Program ("NITM"). The NITM purports to do two things: (1) prioritizes and schedules the construction of traffic improvements needed to address development in the Project area as well as other undeveloped areas in North Irvine, and (2) imposes a nexus fee program to ensure the timely construction of improvements. Traffic mitigation improvements within the City of Irvine would purportedly receive, under NITM, fair share funding from the NITM program. The NITM is, however, inadequate as a mitigation measure for the Project’s traffic impacts for, among other reasons:

(a) Implementation of the NITM program requires the commitment to specific projects that may themselves have a potentially significant impact on aspects of the environment, including, but not limited to, air and water quality. The NITM is therefore an independent project as defined by CEQA and its implementing Guidelines § 15378(b)(4) and subject to independent CEQA analysis. The NITM has not, to date, received any independent environmental review.

(b) Even if it were not an independent project, NITM is an integral part of the Project defined in the EIR because the EIR relies upon NITM to provide for the phasing and funding that constitutes the mitigation for the traffic impacts disclosed in the EIR. The NITM is not however included in or incorporated by reference in the EIR, and is mentioned for the first time in Response to Comments, which acknowledge that at the time of the certification of the EIR, Irvine was only in the process of "actively developing" the NITM (see, e.g., Response to Comments II-7). As the NITM has not been finalized, let alone approved and environmentally reviewed, it cannot constitute a supportable traffic mitigation measure in the EIR.

1070 The EIR is inadequate where it lacks any meaningful discussion of the coordination, over time, of development of mitigation measures for traffic impacts with Project development activities. The EIR’s traffic analysis is limited to circulation impacts for the years 2007 and 2025. It does not contain any specific discussion of phases in the development of circulation improvement or mitigation corresponding to the Project’s development. Phasing is important primarily to ensure that planned facilities are available at the time the impacts occur. Without a detailed phasing plan in the EIR, it is impossible for the public to know what circulation improvements are necessary or available to accommodate a given level of development.

1080 Despite the critical necessity for a discussion of phasing and the linkage through phasing of Project development with the completion of traffic mitigation measures, neither the EIR nor the NITM specifically address phasing. Section 4.1 in the traffic analysis lists 59 roadway segments as "2000-2007 Funded Roadway Improvements." Of these 59 segments, only four have dates of completion. Other than the four that reference their completion by 2002, Table 4.1 provides no indication of the timing of improvements. Even though Table 4.1 opines that the information contained in it "represents the best knowledge available regarding the timing of future development and anticipated roadway improvements", Irvine further disclaims any specific knowledge of the means by which funds will be obtained to implement the Project’s alleged traffic mitigation measures or the timing of their receipt. In response to a comment by Caltrans questioning the feasibility of mitigation measures involving the addition of HOV lanes on all the toll roads (for the year 2025), in the absence of any funds or plans "for any of the toll road HOV lane additions" (Response to Comments, II4), Irvine responds "improvements are funded as the money is available, and as the need for the improvements is identified . . ." Thus, the EIR provides no assurance that mitigation measures will in fact occur.

1090 The EIR is also inadequate where it is ambiguous concerning the existence of mitigation for regional traffic impacts. The Response to Comments asserts that "Regional Funding Programs referenced in the EIR are not used as project mitigation". The EIR’s traffic study relies upon implementation of improvements to ramps and lanes on regional freeways and toll ways as mitigation , and, in their absence opines, "the project’s freeway/toll way ramp impacts would remain significant and unmitigated." Thus, while the EIR on the one hand disclaims any responsibility for mitigating regional impacts by providing improvements to regional arteries, it acknowledges that without regional improvements impacts of the Project on regional arteries will remain significant and unmitigated.

1100 In summary, because the EIR fails to analyze the traffic impacts of key aspects of the total project; because the traffic analysis is based upon flawed assumptions and methodology; and because the EIR specifies no feasible mitigation for either the Project’s local or regional traffic impacts, the EIR is manifestly inadequate.

F. The EIR’s Hazardous Materials Analysis is Incomplete and Analytically Inadequate.

1110 The EIR’s hazardous materials analysis is inadequate under CEQA where it fails to disclose, among other things, that the EIR is predicated upon a survey of contaminated sites, the Draft FEBS conducted by the DON, which has neither been completed, nor has as yet been approved by relevant regulators, including the United States Environmental Protection Agency ("EPA") or the California Department of Toxic Substances Control ("DTSC").

(a) As a consequence, the EIR is premature. Even the Draft FEBS which is currently being circulated for comment indicates that there are an additional 76 new potential release locations which have not yet been investigated, all of which require further evaluation. The EIR, however, does not indicate the impact of these additional uninvestigated potential release locations on the development proposed for the Project area.

(b) While the EIR contends that only "small areas of unidentified contamination [exist] and that these may be encountered during grading and construction activities", the EIR does not reveal the way in which it determined that the existing areas of unidentified contamination are in fact "small". In addition to the fact that the Draft FEBS is not complete or approved by regulators, the EIR fails to disclose the that vast majority of the Project site was determined by the DON to be suitable for transfer and reuse without any sampling or testing, nor does the EIR disclose the hidden risks resulting from the failure to test soil in areas that will be developed as schools, parks and residences.

(c) The EIR further fails to disclose that recent preliminary tests have indicated a potential for radiologic contamination at landfill sites 2, 3, 5 and 17. Radiological survey and sampling at these sites has not been completed (see DTSC Comments DD-10, 11). Until the radiological sampling has been completed, the EIR cannot meaningfully evaluate the risk from radiological contamination at these locations, nor can the public meaningfully evaluate the risks that may arise from reusing these sites as residences, parks and schools.

(d) The EIR further fails to disclose the full catalogue of "Locations of Concern" ("LOC") which include, but are not limited to, the 76 potential release locations which are currently not fully investigated. DTSC considers all LOCs identified at the Project site as Solid Waste Management Units ("SWMU"), defined as any unit from which hazardous constituents may migrate (DTSC Comments DD-7, 8). Thus, until studies of potential contamination are completed, the public must assume that hazardous materials are, and have been, migrating from all LOCs. The EIR does not identify the LOCs, or the risks, and does not reconcile these risks with the proposed plans for development on the Project site.

1120 The EIR is further rendered inadequate by its failure to identify or disclose the risks related to releases of hazardous materials through the storm sewer system, even though in or about 2001, Irvine commissioned and released a report titled "The Navy’s Underestimation of Solvents at MCAS El Toro" ("Irvine Solvent Study") which concluded that the DON, over its more than 50 year tenure at El Toro, used and disposed of solvents in areas throughout the base which have not been evaluated or tested. In response, DON asserted that the bulk of the hazardous materials on base, including solvents, were released into the storm sewer system (as differentiated from the sanitary sewer system).

1130 The Irvine Solvent Study also concludes that, because of its age, the storm sewer system, like the sanitary sewer system is likely to suffer leaks amounting to as much as 7% of the volume which passes through it. The DON concedes that such releases have already occurred. Despite the existence of such information, and even though the Project calls for excavation of the storm sewer system, the EIR does not disclose that no sampling has been conducted regarding the integrity of the storm sewer system, nor are there any plans to do so. Thus, the EIR does not properly inform the public of the potential adverse impacts of excavating the soil and developing parks, residences and schools atop the site of the excavated storm sewer system.

1140 The EIR is further rendered inadequate by its failure to disclose the presence of exterior lead base paint in the soil surrounding nonresidential structures, and by its failure to evaluate the risks arising from the presence of lead base paint, despite the fact that DTSC opines that "exposure to soil with elevated lead levels poses a health risk . . . as a result, use of any buildings constructed prior to 1978 by . . . at risk populations should be prohibited until said lead levels are evaluated and determined to not pose a significant health risk" (DTSC Comments DD-2, 3).

(a) Despite this threat, the EIR fails to disclose that no study or sampling for the presence of lead in the soil surrounding nonresidential structures has been conducted; that the DON has refused to do such testing; that the DON has refused to assume responsibility for lead base paint in the soil around areas not used for residences; and the DON has refused to remediate or indemnify the community for the costs and risks of lead base paint in the soil surrounding nonresidential structures.

(b) Moreover, while the EIR refers to "post demolition sampling" (Response to DTSC Comments DD-2, 3), it does not disclose that the presence of lead base paint in the soil will affect not only the property’s ultimate use, but also the nature of safety protocols for demolition. Even assuming "post demolition sampling" were adequate, the EIR does not indicate who will sample the soil, when, and what protocols will be used for such sampling.

1150 The EIR is further rendered inadequate by its failure to disclose or prescribe the ways in which these risks will be mitigated. The EIR states that Irvine will require applicants for grading permits to prepare a protocol plan that will "guide responses to the discovery of unknown contamination". However, the EIR also indicates that no testing will be done prior to the disturbing of the unidentified contaminants and that soil studies will only be done if there is some visual reason to suggest contamination. The EIR fails to disclose that, because the allowable exposure concentrations of the unidentified contaminants are well below the level that can be detected by either smell or even field monitoring equipment, it is likely that the community could be exposed to harmful levels of contamination at or after the time of grading without knowing it, and without any testing or visual observance that can reveal the existence of harmful contaminants.

1160 The EIR seems to indicate that this risk of contamination may be mitigated by the DON’s obligation to indemnify owners from claims arising from the release of hazardous substances. However, the EIR does not disclose the limitations to this potential indemnity, including, but not limited to, that the Navy will not indemnify the community for consequential economic damages such as damages for delay, loss of bonding capacity, or diminution in housing values. Moreover, when unidentified contaminated soil is excavated and transferred to other locations, the DON will not be responsible for the economic damages to third parties as a result. Moreover, the DON has indicated that these consequential economic losses are not "personal injury or property damage" for which the Navy will assume responsibility. The EIR does not reveal that the community will have to shoulder these risks and costs.

1170 The EIR further indicates that the land use restrictions to be imposed by the DON on "contaminated" property will serve to mitigate the impacts of this contamination. However, the EIR does not disclose that the DON and regulators have not yet agreed on which parcels will be subject to such land use restrictions; that the DON has not yet disclosed the specific land use restrictions it may impose on the property; or that the land use restrictions available may interfere with or even prohibit the land uses set forth in the General Plan and described in the EIR.

1180 Finally, the EIR gives the impression that the effects of this contamination will be mitigated by the DON’s refusal to transfer title of the property until all remediation is complete. However, the EIR does not explain or disclose that the development considered by the EIR will proceed prior to transfer of fee title by the vehicle of a Finding of Suitability to Lease ("FOSL"), whereby development may occur on contaminated sites before complete remediation, and before transfer of fee title to the property.

1190 In short, the EIR does not disclose the full potential for toxic contamination on the project site, the absence of measures that can completely mitigate this potential, and that, despite this potential, Irvine is intending to sell the property to the highest bidder, contamination and all. By virtue of this manifest lack of requisite disclosure, the EIR’s hazardous materials analysis is entirely inadequate.

G. The EIR Fails to Adequately Disclose the Project’s Growth Inducing Impacts.

1200 The EIR fails to adequately examine the Project’s growth inducing impacts where it declines to address the potential impacts of the removal of the development restrictions on 14,000 acres surrounding the Project site within the Policy Implementation Line.

1210 An EIR must "discuss the ways in which the proposed project could foster economic or population growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment. Included in this are projects which would remove obstacles to population growth . . . [and] the characteristic of some projects which may encourage and facilitate other activities that could significantly affect the environment, either individually or cumulatively." CEQA Guidelines § 15126.2(d).

122. The EIR violates this mandate. Even though the EIR acknowledges that the freeing of 14,000 acres for development would directly remove obstacles to population growth; and even though the substantial population growth would necessarily lead to indirect environmental as well as housing and economic impacts, the EIR declines to analyze, mitigate, or in any way address either direct or indirect growth inducing impacts of the Project (EIR, p. 7-13).

123. The EIR’s demurrer to do so renders it inadequate. The EIR is obligated to contain a "discussion" of the ways in which the proposed Project "could" foster economic, and population growth particularly where, as here, the freeing of 14,000 acres for development is, prima facie the first step in an assured development process. See, e.g., Bozung v. Land Area Formation Commission, 13 Cal.3d 263, 281 (1975). The allegations, as set forth in the EIR, i.e., that "it is unclear" the way in which removal of development restrictions may affect growth, and, thus, "it is not possible to quantify" potential significant impacts, does not relieve Irvine from the responsibility to "discuss" the potential impacts and anticipate the potential they "could" have to foster economic and population growth particularly where, as here, the sine qua non of the Project is the development of the Project area.

124. Nor does the EIR’s discussion of growth inducing impacts (or the absence thereof) substitute for a meaningful discussion of the cumulative impacts arising out of the development of the newly available 14,000 acres claimed in the EIR (Response to Comments M22).

125. Because the EIR is devoid of meaningful discussion of the growth inducing impacts of potential development on the newly opened 14,000 acres, the EIR is inadequate.

126. The EIR’s discussion of cultural and palenotological resources is wholly inadequate where it gives a nod to the existence of cultural/palenotological resources (see, e.g., DEIR, § 5.11), but, in the course of doing so, also discloses that, at the time of the publication of the EIR, Irvine had done no investigation on 95% of PA30 concerning the existence of cultural/palenotological resources.

127. It is, thus, impossible for the public to know if, and where, such artifacts are located; and, if they exist, the way in which they will be handled upon discovery. This absence of adequate disclosure not only violates CEQA, but opens the door to the cavalier treatment of potential historic and cultural relics that may lie in the path of development.

128. The EIR’s discussion is further flawed by Irvine’s disingenuous disclaimer of knowledge "of any claims by Native Americans as to any ancestral use of any portion of the Project site" (Response to Comment 51).

129. Irvine is, in fact, well aware that it had previously committed to providing up to 500 acres of the Project site to the establishment of an American Indian Cultural Center by a consortium of Indian tribes, some of which have claims to the Project site.

130. Even now, although it has reneged on its original commitment, Irvine has offered a small portion of the Project site to American Indian organizations. The EIR not only fails to reveal the existence or extent of such disposition, but affirmatively and deceptively disclaims it, and displaces it with other types of development. The EIR is, therefore, wholly inadequate with respect to the disclosure of cultural and palenotological impacts that will arise as a result of the proposed Project.

131. Even though it must address "the direct and indirect significant impacts of the project on the environment", CEQA Guidelines § 15126.2, the EIR fails to adequately discuss the Project’s potentially significant noise impacts.

132. The development of new transportation arteries and the improvement and expansion of others will concomitantly increase vehicle traffic noise. Given normal traffic noise assessment assumptions, a roadway carrying 14,000 vehicles per day will create a Community Noise Equivalent Level of 65 decibels at 100 feet from the source. As the project is expected to generate between 91,000 and 148,000 ADTs on area roadways (although Caltrans states that the number is closer to 500,000 ADTs), it is not unlikely that a thousand or more additional vehicles per hour will concentrate, particularly at peak hours, on arteries both within and surrounding the project area. The EIR indirectly confirms this conclusion where mitigation measure TRAN-1 requires subsequent purchasers to apply for annexation to the Irvine Spectrum Transportation Management Association, for the stated purpose "to reduce traffic, air quality and noise impacts." [Emphasis added.] The EIR, nevertheless, omits any discussion of the potential noise increase caused by vastly increased traffic generated by the Project.

133. The EIR also omits any substantive discussion of the impact of rail noise on dense surrounding multi-family development, even though a minimum of 1,500 multi-family units are planned directly adjacent to the railroad line. The EIR merely refers to § 5.4 of the Noise [sic] California Building Standards which purport to limit interior noise levels to 45 decibels in any habitable room. However, this response does not accommodate the Orange County Transportation Authority’s long range plan which "calls for expanded service including the addition of extra peak and off peak train service" (Comment V10). The EIR does not reflect any consideration of this plan for increased train service, or the way in which OCTA’s plan will be incorporated into Irvine’s building standards so as to prevent future unanalyzed noise impacts on surrounding populations.

134. Because it lacks even the most basic discussion of traffic and train noise, and its impacts on the public, the EIR’s noise analysis is defective.

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IX.

SECOND CAUSE OF ACTION

Declaratory Relief (Code Civ. Proc. § 1060)

(Against All Respondents and DOES 1 through 100, inclusive)

135. Petitioners hereby incorporate by reference into their Second Cause of Action paragraphs 1 through 59 of this Petition and paragraphs 61 through 134 of their First Cause of Action as if set forth herein in full.

136. An actual controversy has arisen and now exists between Petitioners and Respondents concerning the validity of the EIR and other Project actions and the parties’ rights and duties with respect thereto. As set forth more fully above, Petitioners contend that Respondents, and each of them, have an obligation and duty to comply with all applicable statutes and regulations, including, among others, CEQA and the CEQA Guidelines, and that Respondents, and each of them, have failed to do so, and that, as a consequence, the Project, and all actions in furtherance of the Project, including, but not limited to, certification of the EIR are invalid and unlawful.

137. Petitioners are informed and believe, and based on such information and belief, allege that Respondents contend that their certification of the EIR and associated actions in furtherance of the Project fully comply with applicable statutes and regulations and are, therefore, valid in all respects. A judicial declaration as to the legality and validity of the EIR and associated actions in furtherance of the Project is, therefore, necessary and appropriate to determine the respective rights and duties of the parties.

X.

THIRD CAUSE OF ACTION

Injunctive Relief (Code Civ. Proc. § 526(a))

(Against All Respondents and DOES 1 through 100, inclusive)

138. Petitioners hereby incorporate by reference into their Third Cause of Action paragraphs 1 through 59 of this Petition, paragraphs 61 through 134 of their First Cause of Action and paragraphs 136 through 137 of their Second Cause of Action as if set forth herein in full.

139. Because the EIR, and other Project actions, including, but not limited to, General Plan Amendment, annexation, pre-zoning, zoning, and Development Agreements, violate CEQA and the CEQA Guidelines and are therefore unlawful and invalid, Petitioners are entitled to temporary, preliminary and permanent injunctive relief enjoining Respondents, and each of them, from taking any action in furtherance of the Project.

140. For all of the reasons set forth above, Petitioners have a strong probability of prevailing on the merits, and of establishing a pattern of misconduct by Respondents arising out of their continuing overt violations of their statutory and regulatory obligations under CEQA and the CEQA Guidelines.

141. Absent immediate intervention by this Court, Petitioners in particular, by virtue of their composition, beneficial interests and location, and the public in general, by virtue of the adverse local and regional environmental impacts of the proposed Project that will result from Respondents’ ongoing failure to comply with CEQA and the CEQA Guidelines, will suffer irreparable and irreversible injury in that, if the Project is allowed to be developed without proper environmental review, Petitioners and the public will have no legal way to undo the environmental harm and no further recourse under the law.

142. Respondents, by comparison, will suffer little or no harm if this Court grants the relief requested herein, other than a possible slight dely in commencing development the Project until they have fully complied with CEQA and the CEQA Guidelines. Respondents will incur no new or additional obligations, in that they will be required to do only what they are already obligated by law to do, and will incur no increased development costs where, under the proposed action, development costs will be borne by purchasers and developers.

143. Petitioners have no plain, speedy and adequate remedy in the ordinary course of law, other than the relief sought herein, where no other means is available to obtain judicial review of Respondents’ actions, and no damages or other legal remedy can adequately compensate Petitioners for the irreparable harm they will suffer if the Project is allowed to proceed as proposed by Respondents.

144. Therefore, Petitioners request that this Court temporarily and/or preliminarily and permanently enjoin Respondents from taking any further action in furtherance of the proposed Project, including, but not limited to: (a) pre-zoning and annexation of the unincorporated portion of Planning Area 51; (b) annexation of the unincorporated portion of Planning Area 35; (c) re-zoning of Planning Area 30; (d) amending the Irvine General Plan pursuant to the EIR; (e) entering into any Development Agreements with any prospective purchasers, developers or subsequent landowners; and (f) any other actions in furtherance of the Project unless and until they have fully complied with the mandates of all applicable statutes and regulations, including CEQA and the CEQA Guidelines..

PRAYER FOR RELIEF

WHEREFORE, Petitioners pray for judgment against Respondents, and each of them, as follows:

1. On the First Cause of Action:

(a) That this Court issue alternative and peremptory writs of mandate commanding Respondents, and each of them, to:

(1) void and/or withdraw Irvine City Council Resolution No. 03-60 and set aside the EIR and take no further action in furtherance of development of the Project, including, but not limited to: (a) pre-zoning and annexation of the unincorporated portion of Planning Area 51; (b) annexation of the unincorporated portion of Planning Area 35; (c) re-zoning of Planning Area 30; (d) amending the Irvine General Plan; (e) entering into any Development Agreements with any prospective purchasers, developers or subsequent landowners; and (f) any other actions in furtherance of the development of the Project, unless and until they have fully complied with the mandates of all applicable statutes and regulations, including CEQA and the CEQA Guidelines; and

(2) conduct a comprehensive environmental review of the Project, in accordance with CEQA and the CEQA Guidelines, and prepare a subsequent or Supplemental Environmental Impact Report for the Project that fully complies with CEQA and the CEQA Guidelines; and

(b) That this Court retain jurisdiction by way of a Return to the Writ until the Court has determined that Respondents, and each of them, have fully complied with CEQA, the CEQA Guidelines, and all other relevant statutes.

2. On the Second Cause of Action:

That this Court issue its judgment declaring that the EIR is inadequate and that all actions in furtherance of the Project are therefore unlawful, invalid, void and unenforceable and further determining and declaring Petitioners’ rights and Respondents’ obligations and duties with respect to the Project under applicable California law, including CEQA and the CEQA Guidelines.

3. On the Third Cause of Action:

For an Order granting a temporary restraining order and preliminary and permanent injunctive relief enjoining Respondents, and each of them, from taking any further action in furtherance of development of the Project, including, but not limited to: (a) pre-zoning and annexation of the unincorporated portion of Planning Area 51; (b) annexation of the unincorporated portion of Planning Area 35; (c) re-zoning of Planning Area 30; (d) amending the Irvine General Plan; (e) entering into any Development Agreements with any prospective purchasers, developers or subsequent landowners; and (f) any other actions in furtherance of the development of the Project, unless and until they have fully complied with the mandates of all applicable statutes and regulations, including CEQA and the CEQA Guidelines.

4. On Each and Every Cause of Action:

(a) For Petitioners’ costs of suit herein;

(b) For reasonable attorneys’ fees; and

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(c) For such other, different or further relief as this Court deems just and proper.

Dated: June ___, 2003 CHEVALIER, ALLEN & LICHMAN, LLP

________________________________________

Barbara E. Lichman, Ph.D. (State Bar No. 138469)

Attorneys for Petitioners AIRPORT WORKING

GROUP OF ORANGE COUNTY, INC. and

ORANGE COUNTY REGIONAL AIRPORT

AUTHORITY

VERIFICATION

I, John M. Wagner, am the Executive Director of the Orange County Regional Airport Authority, a Petitioner in the above-entitled action, and am authorized to make this Verification on its behalf. I have read the foregoing PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF and know its contents. The facts stated therein are true and within my personal knowledge, except those matters which are stated on information and belief, and, as to those matters, I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this ___ day of June, 2003 at ______________, California.

_____________________

John M. Wagner

VERIFICATION

I, Tom Naughton, am the President of Airport Working Group of Orange County, Inc., a Petitioner in the above-entitled action, and am authorized to make this Verification on its behalf. I have read the foregoing PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF and know its contents. The facts stated therein are true and within my personal knowledge, except those matters which are stated on information and belief, and, as to those matters, I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this ___ day of June, 2003 at ______________, California.

_____________________

Tom Naughton