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HomeMy WebLinkAbout209:04 LAWSUIT BY CALIF. PILOTS ASSOC. (JAY WHITE) VS. CITY OF CHICO• i� 0 Law Offices Jav C. White P.O. Box 429 San Carlos, CA 94070 Tel (650) 594-9300 FAX (650) 366-1915 jaywhite@califomia-aitports.com January 14, 2000 Butte County Airport Land Use Commission Dept. of Development Services . 7 County Center Drive Oroville, CA 95965 North Valley Pilots Association P.O. Box 6856 Chico, CA 95927 California Pilots Association P.O. Box 6868 San Carlos, CA 94070 Re: Request for Extension of Time for Filing Appeal Brief, Court of Appeal Case No. C043216. Pursuant to Rule 45(f) of California Rules of Court this is to notify you that I have filed a REQUEST FOR EXTENSION OF TME to February 24, 2000 in which to file Appellants' Opening Brief. (Copy attached herewith). Very truly yours, Jay C. White State Bar No. 40587 Enc. --RECEIVE D JAN 2.0 2000 e T e�, �.ti 1 1 ¢ e• .. BUTTE COUNTY. i PLANNING DIVISION 4ourt of appeai Atate of Wifomia �fjirb �ppe�ate �%s'trut 0 UEST FOR EXTENSION OF TIME CASE TTTI,E: CALIFORNIA - PILOTS ASSN et al COUNTY OF BUTTE*et al vs. APPELLATE CASE NO: 3 ;Civil C043216 COUNTY Butte 122720 NO: REMINDERS • ` Rule.43. Provide copies and stamped, pre -addressed envelopes for all parties and yourself. • Rule 45(f), Proof that your client (in a -c" case) was notified* of the request. • Rule 45.5. Request must be served prior to filing. Attach a proof of service. Review Rules 45, 45.5 and 46. (Received Stamp) (extimel. dalm:09N s) I request an extension to: February 24, 2000 ......... (date). To file; Appellant's Opening- Brief (rypeof document; e.g., Appellant•'s Opening Brief) February 3, 2000 The deadline for filing this document'is: (date). Number of previous extensions: None (number). Reasons for my request are as follows: (See Rule 45.5). (Use back of this page or attach another sheet as necessary.). Appellant's counsel is scheduled to begin trial in Butte County January 24, 2000, and to be vacationing.out`of state February 13,.through 18, 2000. -The Clerk's Transcript consists of 642 pages. The Administrative .Record consists of 1934 pages. Appellant's counsel is a.sole practioner with no office staff. Additional time is required to adequately review the record and prepare -:a brief most helpful for the Court. DECLARATION: I expect to file said dgctunent within the time requested here - in. I certify (or declare) under penalty of perjury under the laws of the State of Calif that the foregoing is true and correct. { j Jan -.14. 2000. (APPticsat's Stature) - � (Date) Jay -C. White 40587 (ADp"'s Name. Plum PsWaype) (Attorney fiat !Number) COURT USE ONLY BELOW THIS LINE . IT IS SO ORDERED: (PRESIDING JUSTICE OR ACTENG PRESIDING JUSTIN f Law Offices Jay C. White P.O. Boz 429 San Carlos, CA 94070 Tel (650) 594-9300 FAX (650) 366-1915 jaywhite@california-airports.com Via FAX and U.S. Mail March 23, 1999 Alan B. Lilly, Esq. BARTKIEWICZ, KRONICH & SHANAHAN 1011 22nd-Street, Suite 100 Sacramento, CA 95816-4907 Re: California Pilots Association v. County of Butte, Case No. 122720 Dear Mr. Lilly: In response to your letter of March 19, 1999 I am requesting two copies of the administrative ,record in this case. A-check:in the amount of $394.74 drawn on the California Pilots Association is enclosed herewith. Thank you for your cooperation in this matter. Very truly yours, Jay C. White CC: Butte County ALUC North Valley Pilots Association Enc: MAR 2 5 1999 Law Offices Jay C. White P.O. Boa 429 San Carlos, CA 94070 Tel. (650) 594-9300 FAX (650) 366-1915 E-mail: jaywhite@pacbelLcom 1P September 19, 1997 City Council, City of Chico 411 Main Street P.O. Boz 3420 Chico, CA 95927 Re: Chico Municipal Airport Honorable Members: This is to advise your Council that shortly the California Pilots Association and others will bring an action in Butte County Superior Court naming the City of Chico and your Council as respondents and defendants. The petition and complaint will allege that the City has not complied with state and federal law as required to preserve Chico Municipal Airport. It will allege also that the City has not complied with airport preservation provisions of the Quitclaim Deed by which the City obtained title to the airport; that the City has not complied with Assurance Agreements executed to obtain federal funding grants for the airport; and that the City has adopted an unsafe operating procedure for aircraft utilizing Chico Airport. j Enclosed is a copy of the prayer for relief taken from the petition and complaint. Very truly yours, Jay C. White t , cc: Robert E. Hayes, Inc. Drake Homes ` enc. s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 , Law Offices of JAY C. WHITE, sbn 40587 P.O. Box 429 San Carlos, CA 94070 ' Tel. (650) 594-9300 FAX (650) 366-1915 Attorney for Petitioners/Plaintiffs CALIFORNIA SUPERIOR COURT COUNTY OF BUTTE CALIFORNIA PILOTS ASSOCIATION, a California Non -Profit, Public Benefit Corporation, UPPER RIDGE COORDINATING, COUNCIL, .an Unincorporated Association, JOHN MERZ, an Individual, and BUTTE ENVIRONMENTAL COUNCIL, a California Non -Profit Public Benefit Corporation, Petitioners and Plaintiffs, V. CITY OF CHICO, CHICO CITY COUNCIL, RICK KEENE, Mayor, MARY ANDREWS, STEVE BERTAGNA, DAVID GUZZETTI, COLEEN JARVIS, and KIMBERLY KING, Council Persons, Real Party in Interest ROHNERT HAVES, INC., Real Party in Interest DRAKE HOMES, and DOES 1 THROUGH 50, inclusive, Respondents and Defendants 11 PETITION AND COMPLAINT DECLARATORY RELIEF PETITION FOR WRIT OF MANDATE . CCP Secs. 1060,1085, 1559 1021.5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 •18 19 20 21 22 23 24 25 26 27 28 Is INTRODUCTION This is an action by the California Pilots Association and others against the City of Chico (City) to facilitate preservation of Chico Municipal Airport as an < important part of the California and regional public transportation system. This action would require the City to comply with state and federal law by following appropriate- procedures and approving only compatible land uses near the airport. By this action the City would be required to comply with its agreement and with safety provisions of the Quitclaim Deed by which the City obtained title to the real property known as Chico Municipal Airport. The action would require the City to perform its Assurance Agreements with the United States Government to mitigate and to prevent future airport hazards andlincompatible land uses. These Assurance Agreements were executed in consideration of receiving federal grants of money. for airport development or noise program implementation. Finally, this action would require the City to rescind its adopted airport operational policy that causes heavy Air Tanker aircraft to operate in an unsafe manner in violation of Federal Aviation Safety Regulations. Petitioners and Plaintiffs complain of Respondents and Defendants herein as follows: GENERAL ALLEGATIONS PARTIES 1. Petitioner and plaintiff CALIFORNIA PILOTS ASSOCIATION (CPA) is a safety -oriented nonprofit, public benefit California corporation existing for the , purpose, among others, of preserving public airports in California. It assists its . 1 � r 1 members and other members of the public in continuing to have the rightof 2 reasonable and appropriate access to safe and efficient public airports. Itis comprised 3 of individual members, aviation business owners,'professional pilots, flight instructors. 4 and aircraft owners situated throughout the state of California, including within the 5 City of Chico. Many CPA members are regular users of Chico Municipal ,Airport for 6 7 business and personal purposes. 8 2. Members of the California Pilots Association are taxpayers and pilots 9 holding certificates issued by the Federal Aviation Administration. These pilots are 10 express third party beneficiaries of the Assurance Agreement contracts entered into by 11 the City. They are members of a class of persons who regularly use the Chico Airport 12 . and for whom the Assurance Agreements were intended to benefit. 13 3. Petitioner and plaintiff JOHN MERZ is an individual and a resident of 14 15 • Chico in an area situated near Chico Airport. This petitioner.and plaintiff is concerned 16 about preventing injury to his person or damage to his property by degradation of 17 safety in the operation of Chico Airport. 18 4. Petitioner and plaintiff UPPER RIDGE COORDINATING COUNCIL is an 19 unincorporated association. It consists of approximately twenty thousand (20,000) 20 persons living in the foothills some twenty (20) miles east of Chico. During the dry 21 22 summer months they rely heavily on Air Tanker aircraft for fire protection. These Air 23 Tanker aircraft are operated from the Chico Airport by the California Department of 24 Forestry. These persons are fearful that any restrictions imposed by the City on 25 operation.of the aircraft would limit `their effectiveness or prevent their use .in 26 ` providing fire protection. 27 28 2 U 1 1 5. Petitioner and plaintiff BUTTE ENVIRONMENTAL COUNCIL is a public 2 'benefit, non-profit corporation with participating members throughout Butte County. 3 These members are concerned with the prevention of environmental problems, 4 including but not limited to noise and safety problems for persons living near the .5 Chico Municipal Airport. In particular, these members are concerned and have voiced 6 7 their concerns before the Chico City Council about potential problems for residents of g a project described as Foothill Park and this project's lack of compliance with the 9 Chico General Plan. 10 6. Respondent and defendant'City is a municipal corporation and political 11 subdivision of Butte County, State of California, and as such is a `local agency' as 12 defined in Public Utilities Code Section 21670, et seq., and Government Code Section 13 53951.. ' 14 15 7. Respondent and defendant, City. is the governing body of the City of Chico 16 and is the owner and operator of the Chico Municipal Airport. 17 8. Respondents and defendants Rick Keene, Mary Andrews, Steve Bertagna, 18 Davis Guzzeti, Coleen Jarvis, and Kimberly King, and DOES 1 through 24, inclusive, 19 are persons comprising respondent City Council. Petitioners and plaintiffs are 20 informed and believe, and therefore allege that at this.time Rick Keene is serving in 21 22 the position of Mayor of the City of Chico. 23 9. Petitioners and plaintiffs are informed and believe, and therefore allege, that 24 Respondent Real Party in Interest ROHNERT E. HAVES, INC, is the Applicant for a 25 Tentative Subdivision Map for a project within the City of Chico described as Foothill 26 Park. 27 28 3 . Y 1 2 3 4 5 6 7. 8 9 10' 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Petitioners and plaintiffs are informed and believe, and therefore allege, that respondent Real Party in Interest DRAKE HOMES is owner and subdivider of property and a project within the City of Chico described as Foothill Park. 11. Petitioners and plaintiffs, are ignorant of the names of respondents DOES 25 through 50, inclusive, who were and are in some manner responsible for the acts and breaches of legal duty alleged herein. t' 12. Petitioners and plaintiffs are informed and believe, and therefore allege that each of the respondents and defendants was the agent and employee of each of the other and was acting within the scope and course of such agency and employment. 13. A present and actual controversy exists between the parties regarding rights of the plaintiffs under an agreement executed by the City to obtain' title to Chico Airport, a quitclaim deed executed by the United States of America and Assurance Agreements executed by the City of Chico and the Federal Aviation Administration. 14. Petitioners and plaintiffs will suffer great and irreparable injury if the City is not required to abide by its Assurance Agreements to preserve Chico Airport as a safe and efficient public facility for use by members of the public. 15. Petitioners and plaintiffs have pursued and exhausted their administrative remedies. 16. Petitioners and plaintiffs bring this action on behalf of themselves, their members and as private attorney general on behalf of the public. AGREEMENT FOR PURPOSE OF OBTAINING TITLE TO CHICO AIRPORT 17. On June 7, 1948 Chico entered into an agreement with the United States of America, through the War Assets Administration, to obtain title to certain real 4 i ©1 1j" 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VT.] property identified at that time as Chico Army Airfield, now known as Chico Municipal Airport. Said property consisted of a total of 1045.3 acres, more or less. This agreement was signed by Chico City Manager H. H. Hume. 18. Among other promises in this agreement given in consideration by the City was the following: "That insofar as is within its powers and reasonably possible, the party of the second part, and all subsequent transferees, shall prevent any use of land either within or outside the boundaries of the airport, including the construction, erection, alteration, or growth of any structure or object thereon, which use would be a hazard to the landing, taking -off, or maneuvering of aircraft.at the airport, or otherwise limit its usefulness as an airport." QUITCLAIM DEED LIMITATIONS, RESTRICTIONS and CONDITIONS 19. In reliance on the City's promises; on January 24, 1949 the United States of America, acting through the War Assets Administration, executed a Quitclaim Deed conveying to the City of Chico all right and title to the said real property. 20. The Quitclaim Deed contained the following provision: "That insofar as it is within its powers, the Grantee shall adequately clear and protect the aerial approaches to the airport by removing, lowering, relocating, marking or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or erection of future airport hazards." 21. By Resolution dated February 18, 1949 the Chico City Council accepted both the Agreement dated June 7, 1948 and the Quitclaim Deed dated January 24, 1949. FEDERAL FUNDING ASSURANCE AGREEMENTS 5 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 -16 17' 18 19 20 21 22 .23 24 25 26 27 28 • 22. Petitioners and plaintiffs are informed and believe and therefore allege that over the years since 1948 respondent and defendant City of Chico received grants from the Federal Aviation Administration, U.S. Department of Transportation. Said grants were for the purposes of maintaining or improving Chico Airport. Each such -grant was accompanied by a binding Assurance Agreement signed by an authorized representative of the City. 23. An Assurance Agreement dated September 25, 1996 fora grant in the amount of $243,697.00 contained a promise that the City would abide by federal law with respect to the Chico Airport. Said Agreement is incorporated herein. (Exhibit 1).` . 24. Said Agreement was binding on both the City and the U.S. Government. ` 49 USC 47108. 25. 49 USC Section 47 107(a)(9)(10) states: "(a) General written assurances. The Secretary of Transportation may approve a project grant application under this subchapter [49 USC 47101 et seq.J for an airport development project only if the Secretary receives written assurances satisfactory to the Secretary, that: "(9) appropriate action will be taken to ensure that terminal airspace required to protect instrument and visual operations to the airport (including operations at established minimum flight altitudes) will be cleared and protected by mitigating existing, and preventing 'future, airport hazards; "(10) appropriate action, including adoption of zoning laws, has been or will be taken to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations." n 6 1 1 2 3 .4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IV CALIFORNIA STATE AIRPORT POLICY 26. -In 1949 the California legislature adopted Article 3.5 of the Public Utilities Code, Section 21670 et seq., establishing a body of airport compatibility and safety law requiring formation of an Airport Land Use Commission for each of California's counties wherein there is an airport operated for the benefit of the general public. It states: "(a) The Legislature hereby finds and declares that: "(1) It is in the public interest to provide for the orderly development of each public use airport in this state and the area surrounding these airports so as to promote the overall goals and objectives of the California airport noise standards pursuant to Section 21669 and to prevent the creation of new noise and safety problems. . "(2) It is the purpose of this article to protect public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible land uses." CALIFORNIA GOVERNMENT CODE Section 65302.3 27. California Government Code Section 65302.5 requires an agency to bring its general plan and any,specific plan into compliance with the airport Comprehensive Land Use Plan. Government Code Section 65302.3 states: "(a) The general'plan, and any applicable specific plan prepared pursuant to Article 8 (commencing with Section'165450), shall be consistent with the plan adopted or amended pursuant to Section 21675 of the Public Utilities Code' 27 .28 7 1 2 3 4 5 6 7I 8 9 10 11. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "(b) The general plan, and any applicable specific plan, shall be amended, as necessary, within 180 days of any amendment to the plan required under Section 21675 of the Public Utilities Code. "(c) If the legislative body does not concur with any provision of the plan required under Section 21675 of the Public Utilities Code, it may satisfy the provisions of this section by adopting findings pursuant to Section 21676 of the Public Utilities Code." SUBDIVISION MAP ACT, Gov. Code Section 66473.5 28. Before a tentative subdivision map or a parcel map can be approved by an agency, the agency must find that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan and any applicable specific plan. Government Code Section 66473.5 states: "No local agency shall approve a tentative map, or a parcel map for which a tentative map was not required, unless the legislative body finds that the proposed subdivision, together with the provisions for' its design and improvement, is consistent with the general plan required by Article 5 (commencing with Section 65300) of Chapter 3 of Division 1, or any specific plan adopted pursuant to Article 8 (commencing with Section 65450) of Chapter 3 of Division 1. "A proposed subdivision shall be consistent with a general plan or a specific plan only if the local agency has_offcially adopted such a plan and the proposed subdivision or land use is compatible with the objectives, policies, general land uses, and programs specified in such a plan." FIRST CAUSE OF ACTION f A 1 2 3 4 5 6 7 8 9 10 11 12 13I 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 (Writ of Mandate CCP 1085) (Failure to comply with California Government Code Section 65302.3) Petitioners and plaintiffs incorporate by reference and allege again paragraphs 1 through 28 above. 29. Petitioners and plaintiffs are informed and believe, and therefore allege, that a valid comprehensive airport land use plan (Chico Municipal Airporf Environs Plan) had been adopted by the Butte County Airport Land Use Commission, and at all times mentioned herein was current and operative for the area surrounding the Chico Airport. 30. Respondent and defendant City has failed and refused to bring its general plan and specific plans into compliance with the Chico Airport Land Use Plan (Chico Municipal Airport Environs Plan) as required by Government Code Section 65302.3. 31. To the contrary, the City has approved a number of projects found previously by the Butte County Airport Land Use Commission to be inconsistent with the Chico Municipal Airport Environs Plan. 32. On or about October 12, 1994 the Butte County Airport Land Use Commission found the Chico draft General Plan inconsistent with the Chico Municipal Airport Environs Plan. The City thereafter approved and adopted the Chico • General Plan without making findings as required by PUC Section 21676 that the project was compatible with the airport. Wherefore, petitioners and plaintiffs pray judgment as set forth following the SIXTH cause of action. SECOND CAUSE OF ACTION • 9 1 .2 3 4 5 6 7 8 9 10 11 12 13 14' 15 16. 17 18 19 20 21 22 23 24 25 26 27 28 • J (Failure to comply with California Government Code Section 66473.5) Petitioners and plaintiffs incorporate by reference and allege again paragraphs 1 through 32 above. 33. On or about May 15, 1996 the Butte County Airport Land Use Commission found the Foothill Park East Subdivision inconsistent with the Chico Municipal Airport Environs Plan. f ' 34. On or about: September June 2, 1997 the Chico Planning Commission by Resolution No. 97-11 approved a Foothill Park East Vesting Tentative Subdivision Map. The Planning Commission's action was appealed to the City Council by petitioner and plaintiff John Merz. The appeal was denied by the City on or about July 1, 1997. 35. On or about 'July 1, 1997 the City approved a Vesting Tentative Subdivision Map for the Foothill Park East Subdivision project. The City Council' failed to make findings as required by Gov. Code Section .66473.5 regarding consistency of the Foothill Park East Vesting Tentative Subdivision Map with the Chico General Plan. 36. The Foothill. Park East Vesting Tentative Subdivision Map was and is inconsistent with the Chico General Plan. 37. The action by the Council in approving -the Foothill Park East Vesting Tentative Map was invalid and unlawful. Wherefore, petitioners and plaintiffs pray judgment a set forth following the SIXTH cause of action. THIRD CAUSE OF ACTION 10 7 1 (Breach of Agreement Executed to Obtain Quitclaim Deed) 2 Petitioners and plaintiffs incorporate and allege paragraphs 1 through 37 again. 3 38. Respondent and defendant City has breached its promise contained in the 4 agreement executed June 7, 1948. The City has control over uses of land surrounding 5 the Chico Municipal Airport. This control includes power to approve zoning for 6 7 specific projects or general purposes and to issue use permits. The City has approved 8 incompatible projects and issued use permits for projects that will create a hazard or 9 limit usefulness of Chico Airport. F 10W herefore, petitioners and,plaintiffs pray judgment as forth following the 11 SIXTH cause of action. 12 FOURTH CAUSE OF ACTION 13 (Quitclaim Deed Violation) y 14 'I 15 Petitioners and plaintiffs incorporate and allege paragraphs 1 through 38 again. ; 16 39. The Respondent and defendant City has violated terms and provisions of 17 the Quitclaim Deed dated January 28, 1949. The City has control over uses of land , 18 surrounding Chico Airport. This includes the power to control zoning for general 19 purposes and to issue permits for specific projects. The City has approved land uses 20 and issued use permits for projects that will create future airport hazards. 21 Wherefore, petitioners and plaintiffs- pray judgment as set forth following the ' 22 23 SIXTH cause of action. 24 FIFTH CAUSE OF ACTION 25 (Breach of Third Party Beneficiary Contract —.CCP 1559) y 26 (Breach of FAA Grant Assurance Agreement, 49 USC 47107) 27 28 - 11 Y � 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 25 26 27 28 • 1 - '.11. -0 (Declaratory Relief — CCP 1060) Petitioners and plaintiffs incorporate by reference and allege again paragraphs I through 39 above. 40. The Assurance Agreement contract entered into by respondent* and defendant City September 25, 1996 was binding on both the City and the U.S. Government. 41. The City breached said contract by failing and refusing to take action to assure proper land use zoning to prevent development of incompatible land uses near Chico Municipal Airport.. 42. The City breached said contract by approving an incompatible project, a private law school project, identified as Kincade/Modem Building, City of Chico Use' Permit 96-20, near the end of the main runway at Chico Airport. The Butte County Airport Land Use Commission had previously on October 16, 1996 found the project inconsistent with the Chico Municipal Airport Environs Plan. 43. The City breached said contract by approving an incompatible project, a seniors' assisted living facility with an Alzheimer wing, situated near the end of the main runway at Chico Airport. The project -was identified as the Curry Bradaw/Drake Dufore Project, and Chico Use Permit #96-29. The Butte County- Airport Land use Commission had previously on January 15, 1997 found the project inconsistent with the Chico Municipal Airport Environs Plan. 44. The City breached said contract by approving the Foothill Park East project after it had been found by the Butte County Airport Land Use Commission on May 15, 1996 to be inconsistent with the Chico Municipal Aiiport Environs Plan. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 114 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • rID Wherefore, petitioners and plaintiffs pray judgment as set forth following the. SIXTH cause of action. SIXTH CAUSE OF ACTION (Writ of Mandate — CCP 1085) (Unsafe Air Tanker Operations Procedures) Petitioners and plaintiffs incorporate by reference and allege again paragraph 1 through 44 above. 45. In further breach of its Agreement executed June 7, 1948, provisions of the Quitclaim Deed dated January 28, 1949 and its Assurance Agreement executed 1 September 25, 1996 the` City unilaterally and ,without obtaining FAA approval adopted an operational change that is now in place for large aircraft utilizing Chico Airport. These aircraft include Air Tankers operated by the California Department of Forestry for fire suppression and control within Butte County. 46. This operational procedure requires large aircraft heavily laden with fire retardant chemicals to commence a safety -compromising turn immediately after lift off when still over the runway Clear Zone and before reaching a safe altitude. (Exhibit 2). This operational procedure created a safety hazard to persons on the ground as well as those in the aircraft and is contrary to Federal Aviation Safety Regulations. 47. This action by the City is a breach of its Agreements with the United States Government and a violation of safety.provisions of the Quitclaim Deed. 13 11 21 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48. Petitioners and plaintiffs have no plain, speedy and adequate remedy in the ordinary course of law other than the relief sought in this petition and complaint for the reason that the law provides no remedy other than a writ of ordinary mandate i from this court pursuant to C.C.P. 1085 to compel respondents and defendants to perform their duties as specified under the law. 49. Petitioners and plaintiffs are informed and believe; and therefore allege, that at all times herein mentioned respondents and defendants have been able and are now able to perform their duties but have failed and continue to refuse to do so. . ATTORNEY FEES — CCP Section 1021.5 50. Petitioners and plaintiffs are entitled to an award of attorney fees in this action on one or more of the following grounds: A.This action will result in the enforcement of important rights of the public as taxpayers including enhancement of community safety if the City is required to operate the airport in a safe and prudent manner. The effect of this action would confer a significant benefit upon the public. The financial burden in bringing an action such as this is such that costs and fees should not be borne by the petitioners and plaintiffs. B.This action will confer a substantial benefit upon a class of persons such as the users and beneficiaries of services of Chico Municipal Airport who are and will continue to be jeopardized by the course of action of respondent and defendant City. C.The sum of legal expenses and fees incurred and to be incurred is presently unknown'so that leave of court is requested to present these according to proof. H H 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 •ID PRAYER Wherefore, petitioners and plaintiffs pray judgment against the respondents and, defendants: 1. For a declaration from this Court stating: a) the City's duties and obligations derived from terms, conditions,- restrictions and limitations contained in the Quitclaim. Deed, dated January 28, 1949, and b) . that the City is in violation of its duties and obligations; 2. For a declaration from this Court.stating: a) the City's duties and obligations derived from the Agreement dated June 7, 1948, and b) that the city is in violation of its duties and obligations; 3. For a declaration from this Court stating: a) the City's duties and obligations derived from the funding Assurance Agreement entered into with the Federal Aviation Administration on September 25, 1496; b) that the City is in, violation of its duties and obligations, and c) that the City has an obligation to return to the Federal Aviation Administration an amount equal to the $243,697.00 obtained by grant September 25; 1996. 4. That a peremptory writ of mandate issue commanding the City to bring its general plan into compliance with the Chico Municipal Airport Environs Plan; 5. That an order issue finding invalid the City's action approving a Foothill East Park vesting subdivision map, or any other action approving the project, and setting aside the City's approval thereof, 1 2 3 .4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19I 20'I 21 .22 23' 241 25 26 27 28 6. That an order issue finding the law school project Chico Use Permit #96-20 invalid and setting aside the City' approval thereof, 7. That an order issue finding the seniors' facility Chico Use Permit #96-29 invalid and setting aside the City's approval thereof, " 8. That a writ of mandate issue commanding the City Council to rescind its airport operational policy that requires aircraft utilizing Chico Airport to perform unsafe maneuvers immediately after takeoff; 9. That an order issue requiring the City to pay to petitioners and plaintiffs their costs of suit and reasonable attorneys fees in an amount yet to be determined; 10. For such other and further relief as the Court may deem just. Dated: September 24, 1997. Respectfully submitted, Ja C. White, Attorney for Petitioners and Plaintiffs • y i. 16 VERIFICATION STATE OF CALIFORNIA ) COUNTY OF SAN MATEO ) I, the undersigned, say: I,am the Secretary of CALIFORNIA PILOTS ASSOCIATION, the corporation referred to in the PETITION and COMPLAINT for DECLARATORY RELIEF, PETITION FOR WRIT OF MANDATE. I am authorized to make this verification for and on behalf of said corporation, and I make this verification for that reason. I have read the foregoing document, and am informed and believe that the matters therein are true, and on that ground I allege that the matters stated therein are true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this. ; f� day of September, 1997 at Redwood City, California. / r 1 JOHN LINDLEY } '03/20/97- 09:44 V415 876 03 Q002 � URIGINAL DEPARTMENT OF TRANSPQRTATION FEDERAL. AVIATION ADMINISTRATIQN GRANT AGREEMENT ' Bart 1 -Offer Date of offer SEP 19 1996 ' Chico Municipal Airport/Planning Area Project No. 3=06-0041-13 Contract No., DTFA08-9&C-30794 , TO: City of Chico _ (herein called the "Sponsor') FROM -.The United States of America (acting through the Federal Aviation Administration, herein called the "FAA") + WHEREAS, the Sponsor has submitted to the FAA- a Project Application dated August 9. 1996, for a ; grant of Federal funds for a project ot'or associated with the Chico Municipal Airport/Planning Area which Project Application, as approved by the FAA, is hereby incorporated herein and made a part hereof: and . i WHEREAS, the FAA. has approved a project for the Airport or Planning Area (herein called the "Project") consisting of the following: Acquire airfield sweeper, replace airfield guidance signs and noise abatement signs; Phase 1 of overlay Runway 13R-31 L and overlay taxiways E, B & D between parallel runways all as more particularly described in the Project Application. r EXHIBIT 1 2 1 ?EEC 1' `c 03/20/97 09:45 $415 876033 ® 11003 ]AL ORIGIN o, NOW THEREFORE, pursuant �to and for the purpose of carrying o0t the provisions of the Airport and Airway Improvement Act of 1982, as amended by the Airpoct and Airway Safety and Capacity Expansion Act of 1987, herein called the "Act," and/or the Aviation Safety and Noise Abatement Act of 1979, and in consideration of (a)- the Sponsor's adoption and ratification of the representations and assurances contained in said Project Application and its acceptance -of this Offer as hereinafter provided, and (b) the benefits to accrue to the United States and the public from the accomplishment of the Project and compliance with the assurances and conditions as herein provided, THE FEDERAL AVIATION ADMINISTRATION, FOR AND ON BEHALF OF THE UNITED STATES, HEREBY OFFERS AND AGREES to pay, as the United States share of the allowable costs incurred in accomplishing the Project; 90 percent of the allowable project costs. The Offer is made on and subject to.tlie following terms and conditions: Conditions The maximum obrigation of the United States payable under this offer shall be $243.697.00. For the purposes of any future grant amendments which may increase the foregoing maximum obligation of the United States under the provisions of Section 512(b) of the Act, the following amounts are being specified for this purpose: $-0- for planning $243,697.00 for airport development or noise program implementation. 2. The allowable costs of the project shall not include any costs determined by the FAA to be ineligible for consideration as to allowabirity under the Act. 3. Payment of the United States share of the allowable project costs will be made. pursuant to and in accordance with the provisions of such regulations and procedures as the Secretary shall prescribe. Final determination of the United States share will be based upon the final audit of the total amount of allowable project costs and settlement will be made for any upward or downward adjustments to the Federal share of costs. 4. The sponsor shall carry o0and complete the Project without undue delays and in accordance with the terms hereof, and such regulations and procedures as the Secretary shall prescribe, and agrees to comply with the assurances which were made part of the project application. 5. The FAA reserves the right to amend .orwithdraw this offer at any time prior to its acceptance by the sponsor. I . 6. This offer shall expire and the United States shall not be obligated to pay any part of the costs of the project unless this offer has been accepted by the sponsor on or -before ..�.. Sentember 30.1996 or such subsequent date as may be prescribed in writing by the FAA. 03/20/97 09:46 $415 876033 Q004 0 R-1 G N A L 7. The sponsor shall take all $teps, including litigation if necessary, to recover Federal funds spent fr..audulently, wastefully, or in violation of Federal antitrust statutes, or misused in any other manner in any project upon which Federal funds have been expended. For the purposes of this, grant agreement, the term "Federal funds" means funds however used or disbursed by the sponsor that were originally paid pursuant to this or any other Federal grant agreement. It shall obtain the approval of the Secretary as to any determination of the amount of the Federal share of such funds. It shall return the recovered Federal share, including funds recovered by sE�ttlemeht; order or judgment; to the Secretary. It shall furnish to the Secretary, upon request. all documents and records pertaining to the determination of the amount of the. Federal sl ,-ire or to any settlement, litigation, negotiation, or other efforts taken to recover such funds. All settlements or other final positions of the sponsor, in court or otherwise, involving the recovery of such Federal share shall be approved in advance by the Secretary. S. The United States shall not be responsible or liable for damage to property or injury to persons which may arise from, or be incident to, compliance with this grant agreement. 9. Except for instrument landing systems acquired with AIP funds and later donated to and accepted by the FAA, the Sponsor must provide for the continuous operation and maintenance of any navigational aid funded under the AIP during the useful life of the equipment. The Sponsor must check the facility, including instrument landing systems, prior to commissioning to ensure it meets operational standards. The Sponsor must also remove, relocate, or lower each obstruction on the approach or provide for the adequate lighting or marking of the obstruction if any aeronouticol study conducted under FAR part l7 determines that to be acceptable; and mark and light tho runway, os appropriate. The Federal Aviation Administration will not takeover the ownership, operation, or maintenance of any Sponsor -acquired equipment, except for instrument landing systems. 10. Buy American Requirement. Uniass otherwise approved by the FAA; it will not acquire or permit any contractor or subcontractor to acquire any steel or manufactured products produced outside the United States to be used for any project for airport development or noise compatibility.for which funds are provided under this grant. 11. The sponsor -agrees to perform the following: 1. Furnish a construction management program to FAA prior to the start of construction which shall detail the measures and procedures to be used to comply with the quality control provisions of the construction contract, including, but not limited to, all quality control provisions and tests required by the Federal specifications. The program shall include as a minimum: a. The name of the person representing the,sponsor who has overall responsibility for contract administration for tr,? project and the authority to take necessary actions to comply with the contract.. .. b. Names of testing loborotorie's and consulting engineer firms with quality control responsibilities on the project, together with a description of services to be provided. Page 3 03/20/97 09:47 $415 870733 ® Q005 c. Procedures for determining that testing laboratories meet the requirements of the American Society of Testing and Materials standardson laboratory evaluation, referenced in the contract specifications (D 3666, C.1077). d. Qualifications of engineering supervision and construction inspection personnel. e. A listing of all tests required by the contract specifications. including the type and frequency of tests to be taken, the method of sampling, the applicable tesl siondard, and the acceptance criteria or tolerances permitted for each type of test. f. Procedures for ensurir)g that the tests are taken in accordance with the program, that they are documented daily, and that the proper corrective actions, where necessary, are undertaken. 2. Submit at completion of the project, a final test and' quality control report documenting the results of all tests performed, highlighting those tests that failed or did not meet the applicable test standard. The report shall include the pay reductions applied and reasons .for accepting any out-of=tolerance material. An interim test and quality control report shall be submitted, if requested by the -FAA. 3. Failure to provide a complete report as described in paragraph 2, or failure to perform such tests, shall, obsent'any compelling justification, result in a reduction in Federal participation for costs incurred in connection with construction of the applicable pavement. Such reduction shall be at the discretion of the FAA and will be based on the type of types of required tests not performed or not documented and will be commensurate with the proportion of applicable pavement with respect to the total pavement constructed under the grant agreement. 4. The FAA, at its discretion, reserves the right to conduct independent tests and to reduce grant payments accordingly if such independent tests determine that sponsor test results are inaccurate. 12. It is understood and agreed by and between the. parties hereto that this Grant Offer is. made and accepted upon the basis of preriminary plans and specifications; and the parties agree that within 180 days from the date of acceptance of this Grant Offer, the Sponsor shall furnish final plans and specifications to the FAA, that no construction work will be commenced hereunder, and that no contract will be awarded for the accomplishment of such work until the said final plans and specifications have been approved by the FAA; and the parties do further agree that any reference made in this Grant Offer or in the aforesaid Application to plans and specifications shall be'eonsidered as having reference to sold final plans and specifications as,approved. ..,eta„ The Sponsors acceptance of this Offer and ratification and adoption of the Project Application incorporated herein shall be evidenced by execution of this instrument by the Sponsor, as hereinafter provided, and this Offer and Acceptance shall comprise a Grant Agreement, as provided by the Act, constituting the contractual obligations and rights of the United States and Pu, -,c 4 03/20/97 09:47 $415 876933 . U006 QD11 AL the Sponsor with respect to the accomplishment of the Project and compliance with the assurances orld conditions as.provided herein. .Such Grant Agreement shall become effective upon .the Sponsor's acceptance of this. Offer. 'UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION WESTERN -PACIFIC REGION hn L. Pfeifer Manager, Airports District Office Part li -Acceptance The Sponsor does hereby ratify and adopt all assurances,. statements, representations, warranties, covenants, and agreements contained in the Project Application and incorporated materials referred to in the foregoing Offer and does hereby accept this Offer and by such acceptance agrees to comply with all of the terms and conditions In this Offer and In the Project Application. Executed this 25th day of September , 1996. City of (SEAL) (SPONSOR'S DESIGN 'fE FFICIAL PRESENTATIVE) Thomas J. Lando Title City ager Attest: Barbara A. Evans AMORIZED PURSUANT TO EUDGET POLICY D. a, Title: City Clerk�PAHnixcPasslc� pRocRaras�ST, A.s�co2.�a7 THNM- IN 96/97 sUML-r. CERTIFICATE OF SPONSOR'S ATTORNEY Robert G. BOehm , acting as Attorney for the Sponsor do "hereby certify: That in.my opinion the Sponsor is empowered to enter into the foregoing Grant Agreement under the laws of the State of Califorpia . Further, I have examined the foregoing Grant ' Agreement and the actions taken by said Sponsor and Sponsors official representative has been duly authorized and that the execution thereof is in all respects due and proper and in accordance with the laws of the said State and the Act. In addition, for grants involving projects to be carried out on property not owned by the Sponsor, there are no legal impediments that will prevent*full performance by the Sponsor. Further, it is my opinion that the said Grant Agreement constitutes a legal and binding obligation of the SponsprirNaccord a with the terms thereof, Dated at Chico, California _ this -25th day of Sept S ATLkE-C F ONSOR'S•ATTORNEY } Robert G. Boehm ' Chico City Attorney Pape 5 I •.,.�r r j • ti j. _ ,_.. .. `� f •'^ 1 ^- _ •}. ' �' 1. .'• •~ �. ., • A s.'• I s Y .. w F _ ` ` y'` - ... . - .. • • . - .. � •. • - ` r _ { l •if'1 ,• ..�,.'IJ *- `. • t ; - F Slide ,gni 97-251 -.-- 'Airport. -Land Us.e., ..C.ommis.s.i.on_,(ALUC).. _- special'_ -,appointment- -of, counsel - at its Wednesday, August ' 20, 1997 meeting, ALUC will ' discuss the' possibility, of their joining a lawsuit. with, the,. -' Pilots'h'*Association, or, initiation{,sof a lawsuit,against• the City .•ra.fT rt • - .:137 r 7-i-a_5r.• - of Chico regarding intopatibilities wwi.th their airportland;,use ' .v. C" �'}r.r+lY —r1} - }•4 .au GPs si WC .O.4 plan u . ;g i the Chico w Municipal u ► Paall�Air-port r, 4K4Y 00)�'itntl �.,. MOTION- S t,,MOVE, to-PURS UANTI f6TOtf..,GOVERNMENT CODE SECTION i 54954 2_(b)` ('2.) ;, THAT, THERE, IS A NEED TO TAKE IMMEDIATE d�IED 1 ` x ACTION, ANDrtj�THATF i THEnSNEED 'FOR ACTION CAME TO. THE 'ATTENTION '-OF 'THE" BOARD"OF SUPERVISORS SUBSEQUENT TO THE AGENDA BEING POSTED AS 'SPECIFIED IN GOVERNMENT .O�CODE s SECTION 54954 2, a $" CbP,.L2Yirx dr,SP..rikM' iia; z .�:� );AJ41vY1vxE�t1S, BMERIV120512 �f2' VOTE: 1•Y.. 2-Y 3 Y 4 Y 5 Y (Unanimously Carried) • �:. ' rays -aa JAp ,:.Y4 AxMw4 WO -1 RS �.. � -., { • ^�Efl t �iEt7"'' xt�.".0 52 "F z N"vr 0sn INf-Sir- Ntw ,.tRr�, XF7T MOTION: I MOVE TO 1DIRECT COUNTY COUNSEL TO RETAIN. THE•. ' APPROPRIATE SPECIAL,COUNSEL.TO REPRESENT ,THE AIRPORT LAND USE COMMISSION IN, THE MAXIMUM AMOUNT. OF $5., 000.+ '4)1- S` �• < .} ....+ 1 .. 3xGWITHOUT ; r+'3rg FURT'HERx'BOARD` APPROVAL .r'i +' * 1� VOTE:. , - 1� Y7G '2�Y T1`3" Yguq ucgjrrrUnanimously Carried) '•. ,d � ,- • 1. �..�.:r..r,..�. , "4 .BUTTE�COUNTYtBOARD'OFSUPERVISORS HINUTES•= August 12 '1997 ,,. ',