ELECTRONICALLY

FILED
3/22/2017 2:03:58 PM
1 JOCELYN THOMPSON (State Bar No. 106544)
ANDREA S. WARREN (State Bar No. 287781)
2 ALSTON & BIRD LLP
333 South Hope Street, 16th Floor
3 Los Angeles, CA 90071
Telephone: 213-576-1000
4 Facsimile: 213-576-1100
E-mail: jocelyn.thompson@alston.com
5 E-mail: andrea.warren@alston.com

6 PAUL J. BEARD II (State Bar No. 210563)

ALSTON & BIRD LLP
7 1115 11th Street
Sacramento, CA 95814
8 Telephone: 916-498-3354
Facsimile: 213-576-2864
9 E-mail: paul.beard@alston.com

10 Attorneys for Petitioner and Plaintiff

PHILLIPS 66 COMPANY
11

12 SUPERIOR COURT OF THE STATE OF CALIFORNIA

13 FOR THE COUNTY OF SAN LUIS OBISPO

14 PHILLIPS 66 COMPANY, a Delaware Corporation; Case No.: 16CV-0502

15 Petitioner and Plaintiff, [Assigned for all purposes to the Honorable

v.
16
COUNTY OF SAN LUIS OBISPO; COUNTY OF
17 SAN LUIS OBISPO PLANNING COMMISSION;
COUNTY OF SAN LUIS OBISPO DEPARTMENT
18 OF PLANNING AND BUILDING; DIRECTOR OF
PLANNING AND BUILDING FOR THE COUNTY
19 OF SAN LUIS OBISPO; and DOES 1 through 10,
20 Respondents and Defendants,
21
COUNTY OF SAN LUIS OBISPO BOARD OF
22 SUPERVISORS and DOES 1 through 10.
Barry T. LaBarbera Department 2]
VERIFIED FIRST AMENDED PETITION
FOR WRIT OF MANDATE; COMPLAINT
FOR DECLARATORY AND INJUNCTIVE
RELIEF
[Code of Civil Procedure 1085, 1060, 526]
Filing Date: October 19, 2016
Trial Date: None scheduled

23 Real Parties in Interest,

24 ENVIRONMENTAL DEFENSE CENTER,
COMMUNITIES FOR A BETTER
25 ENVIRONMENT, SIERRA CLUB, CENTER FOR
BIOLOGICAL DIVERSITY, STAND.EARTH,
26 SURFRIDER FOUNDATION,
27 Intervenors.
28

Verified First Amended Petition/Complaint

 1 INTRODUCTION

2 1. Under the County of San Luis Obispos Coastal Zone Land Use Ordinance

3 (CZLUO), property in the Coastal Zone may be designated as Environmentally Sensitive Habitat

4 Area (ESHA)and therefore, with rare exception, undevelopablein one of two ways. Either

5 the property may be legislatively mapped as ESHA in the Countys Land Use Element, or the

6 Countys Department of Planning and Building and/or the Director thereof (collectively,

7 Department) may determine that a property proposed for development has Unmapped ESHA. The

8 CZLUOs Unmapped ESHA provision strictly limits the Departments power to designate

9 property as Unmapped ESHA: The Department may make an Unmapped ESHA determination only

10 at or before the time that the Department accepts the application as complete. Once the application

11 is accepted, the Department has no power to declare that an applicants property is Unmapped (and

12 thus likely undevelopable) ESHA.

13 2. The legislative purpose behind the laws strict deadline is to provide some level of

14 predictability to applicants. The deadline assures a project applicant that any undevelopable ESHA

15 will be identified very early in the permit process so that the applicant does not needlessly expend

16 significant resources proceeding with a costly and time-consuming permit-review process, just to

17 find out that the project suddenly is precluded by a last-minute declaration by the Department that

18 the project site is ESHA.

19 3. Yet despite the ordinances clear deadline and legislative history, the Department

20 chose simply to ignore the deadline in this case. Over three years after application acceptance, and

21 after Phillips 66 had invested substantial resources to facilitate the Departments environmental

22 review of its application, the Department did an about-face and made a determination that Phillips

23 66s project site had undevelopable Unmapped ESHA. On October 5, 2016, the Planning

24 Commission denied Phillips 66s project and adopted Department-crafted Findings for Denial,

25 many of which unlawfully incorporated the Departments Unmapped ESHA determination.

26 4. This action challenges the Departments final and non-appealable determination that
27 the project site is undevelopable Unmapped ESHA. Under the CZLUOs Unmapped ESHA

28 ordinance, the Department had a clear, present, and mandatory duty to make an Unmapped ESHA
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Verified First Amended Petition/Complaint
 1 determination (if at all) only before or at the time of application acceptance. The Department has

2 violated that clear, present, and mandatory duty. As the project applicant with property now

3 designated as undevelopable ESHA, Phillips 66 has a beneficial interest in ensuring that the

4 Department discharges that duty. For that reason, Phillips 66 seeks a writ commanding the

5 Department set aside its Unmapped ESHA determination and make a new determination that the

6 project site has no Unmapped ESHA, as required by law. Phillips 66 further seeks a writ

7 commanding the Planning Commission to correct its unlawful adoption, ratification, acquiescence

8 in, or reliance upon the Departments Unmapped ESHA determination and reconsider its project

9 denial on the correct assumption that the project site has no Unmapped ESHA.

10 5. Lastly, the action challenges the Unmapped ESHA ordinance as unconstitutional on

11 due process grounds, both as applied to Phillips 66 and facially. The ordinance authorizes the

12 Department to designate property as Unmapped ESHA at or before the time of application (or,

13 under the Countys interpretation, at any time during the review of a land-use application), without

14 adequate notice, an opportunity to be heard, or an evidentiary hearing. Further, the ordinance itself

15 is so vague and ambiguous about what constitutes Unmapped ESHA as to provide little to no

16 guidance to applicants as to whether and the extent to which they are precluded from using and

17 developing their properties in light of possible Unmapped ESHA.

18 6. Phillips 66 has no other recourse but to bring this action and obtain immediate relief
19 from the Departments unlawful Unmapped ESHA determination.

20 PARTIES

21 7. PETITIONER AND PLAINTIFF PHILLIPS 66 COMPANY (Phillips 66) is an

22 energy manufacturing and logistics company incorporated in Delaware and headquartered in

23 Houston, Texas. It is the owner of 1,780 acres of land located at 2555 Willow Road, Arroyo

24 Grande in the COUNTY OF SAN LUIS OBISPO, where it operates the Santa Maria Refinery.

25 Phillips 66 uses about 200 acresor roughly 11 percentof its 1,780-acre property for refining

26 operations. As the name suggests, the Santa Maria Refinerys primary function is to refine crude oil
27 into high-quality feedstock for further processing into gasoline, diesel, and jet fuel. Phillips 66 is the

28 applicant for a project that the Planning Commission recently denied after adopting, ratifying,
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Verified First Amended Petition/Complaint
 1 acquiescing in, or relying upon the unlawful determination of RESPONDENTS AND

2 DEFENDANTS COUNTY OF SAN LUIS OBISPO DEPARTMENT OF PLANNING AND

3 BUILDING and/or DIRECTOR OF PLANNING AND BUILDING FOR THE COUNTY OF SAN

4 LUIS OBISPO that Phillips 66s property contains undevelopable Unmapped ESHA.

5 8. RESPONDENT AND DEFENDANT COUNTY OF SAN LUIS OBISPO (County)

6 is a local government agency and political subdivision of the State of California vested with the

7 authority to regulate land use within its boundaries, and can sue and be sued. The County acts

8 through, and is ultimately responsible for the determinations and decisions of its agencies and

9 officials.

10 9. RESPONDENT AND DEFENDANT COUNTY OF SAN LUIS OBISPO

11 DEPARTMENT OF PLANNING AND BUILDING (Department of Planning and Building) is,

12 along with REAL PARTY IN INTEREST COUNTY OF SAN LUIS OBISPO BOARD OF

13 SUPERVISORS and RESPONDENT AND DEFENDANT COUNTY OF SAN LUIS OBISPO

14 PLANNING COMMISSION, the planning agency of the County. Among other things, the

15 Department of Planning and Building functions as the administrative entity responsible for the

16 coordination of review and decision-making and the provision of information regarding the status of

17 all applications and permits required by Titles 19, 20, 21, 22, and 23 of the County Code.

18 RESPONDENT AND DEFENDANT DIRECTOR OF PLANNING AND BUILDING FOR THE

19 COUNTY OF SAN LUIS OBISPO (Director of Planning and Building). Among other things, the

20 Director of Planning and Building is responsible for the proper and efficient administration of the

21 Department of Planning and Building and must ensure the performance of all duties imposed on the

22 Director or Department by the County Code, including the duty to make an Unmapped ESHA

23 determinationif at allonly at or before the time of application acceptance, and no later. The

24 Department of Planning and Building and/or the Director of Planning and Building made the

25 unlawful determination that Phillips 66s contains Unmapped ESHA, in clear violation of the non-

26 discretionary duty imposed on them under the law. Unless otherwise indicated, the Department of
27 Planning and Building, and the Director of Planning and Building, shall be referred to collectively as

28 the Department.
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Verified First Amended Petition/Complaint
 1 10. RESPONDENT AND DEFENDANT COUNTY OF SAN LUIS OBISPO

2 PLANNING COMMISSION (Planning Commission), together with REAL PARTY IN

3 INTEREST COUNTY OF SAN LUIS OBISPO BOARD OF SUPERVISORS and the Department

4 of Planning and Building, is designated as the planning agency of the County pursuant to section

5 65100 of the Government Code. San Luis Obispo County Code (Code) 2.24.010. Among other

6 things, the Planning Commission reviews and makes decisions on land-use applications.

7 11. Phillips 66 does not know the true names or capacities of the persons or entities sued

8 as RESPONDENTS AND DEFENDANTS DOES 1 through 10, inclusive, and therefore sues these

9 parties by their fictitious names. Phillips 66 will amend this pleading to set forth the names and

10 capacities of the DOE Respondents/Defendants along with any additional appropriate allegations

11 when such information is ascertained.

12 12. REAL PARTY IN INTEREST COUNTY OF SAN LUIS OBISPO BOARD OF

13 SUPERVISORS (Board of Supervisors), together with the Planning Commission and the

14 Department of Planning and Building, is designated as the planning agency of the County pursuant

15 to section 65100 of the Government Code. San Luis Obispo County Code (Code) 2.24.010. The

16 Board is the legislative arm of the County government and, among other things, makes final

17 decisions on land-use applications. The Planning Commissions decision to deny Phillips 66s

18 application is or will be appealed to the Board.

19 13. Phillips 66 does not know the true names or capacities of the persons or entities sued

20 as REAL PARTIES IN INTEREST DOES 1 through 10, inclusive, and therefore sues these parties

21 by their fictitious names. Phillips 66 will amend this pleading to set forth the names and capacities

22 of the DOE Real Parties, along with any additional appropriate allegations when such information is

23 ascertained.

24 JURISDICTION AND VENUE

25 14. This Court has jurisdiction over this action pursuant to Code of Civil Procedure

26 sections 1085 (traditional writ of mandate), 1060 (declaratory relief), and 526 (injunctive relief).
27 15. Venue is proper in this Court pursuant to Code of Civil Procedure sections 392 and

28 394, because Respondents and Defendants, and Petitioner and Plaintiffs property that is the subject
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Verified First Amended Petition/Complaint
 1 of this action, are located in San Luis Obispo County.

2 16. Because the property that is the subject of this action is located in Arroyo Grande, the

3 action should be assigned to a Judge in the San Luis Obispo Courthouse, pursuant to Local Rule 9.27

4 (Venue of Civil Proceedings).

5 LEGAL BACKGROUND

6 17. Under the California Coastal Act (Public Resources Code 30000, et seq.), a city or

7 county with land in the Coastal Zone is directed to draft a Local Coastal Programs (LCP), which

8 consists of a land use plan and measures to implement the plan (such as zoning ordinances) that

9 regulate development within the Coastal Zone. The local government prepares its LCP in

10 consultation with the California Coastal Commission. After the local government approves its LCP,

11 the local government submits the program to the Coastal Commission, which reviews it for

12 consistency with the requirements of the Coastal Act and, upon a finding of consistency, certifies it.

13 Once certified, the LCP transfers permitting authority over most new development to the local

14 government, which applies the requirements of the LCP in reviewing proposed projects. Even where

15 there is a certified LCP, the Coastal Commission retains original permitting authority in some

16 limited areas of the Coastal Zone, and also acts on appeals from certain local government permit

17 decisions.

18 18. Part of the County of San Luis Obispo is in the Coastal Zone and is governed by a
19 certified LCP. The Countys Coastal Zone Land Use Ordinance (CZLUO)which is the

20 Countys zoning ordinance applicable to Coastal Zone propertyis a part of that LCP.

21 19. Under the CZLUO, the County reviews an application for a permit to develop Coastal

22 Zone property to determine, among other things, whether that property contains Environmentally

23 Sensitive Habitat Area, commonly referred to as ESHA. The existence of ESHA on an

24 applicants property affects the applicants right to use and develop that property, because a project

25 proposed in or near ESHA will be severely limited, if not outright prohibited.

26 20. The CZLUO recognizes two types of ESHA: Mapped ESHA and Unmapped ESHA.
27 Mapped ESHA is defined as [a] type of Sensitive Resource Area where plant or animal life or their

28 habitats are either rare or especially valuable because of their special nature or role in an ecosystem
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Verified First Amended Petition/Complaint
 1 and which could easily [be] disturbed or degraded by human activities and development. They

2 include wetlands, coastal streams and riparian vegetation, terrestrial and marine habitats and are

3 mapped as Land Use Element combining designations. CZLUO 23.11.030. Thus, if the County

4 has not mapped ESHA on a particular parcel, then that parcel has no Mapped ESHA.

5 21. By contrast, Unmapped ESHA is defined in section 23.11.030 of the CZLUO as [a]

6 type of Sensitive Resource Area where plant or animal life or their habitats are either rare or

7 especially valuable because of their special nature or role in an ecosystem and which could easily be

8 disturbed or degraded by human activities and development. They include, but are not limited to,

9 known wetlands, coastal streams and riparian vegetation, terrestrial and marine habitats that may not

10 be mapped as Land Use Element combining designations. Id. (emphasis added).

11 22. Section 23.11.030 lists some ecological characteristics of Unmapped ESHA.

12 Unmapped ESHA includes but is not limited to: a. Areas containing features or natural resources

13 when identified by the County or County approved expert as having equivalent characteristics and

14 natural function as mapped other environmental sensitive habitat areas; b. Areas previously known

15 to the County from environmental experts, documents or recognized studies as containing ESHA

16 resources; c. Other areas commonly known as habitat for species determined to be threatened,

17 endangered, or otherwise needing protection. Id.

18 23. The law imposes a strict deadline for determining whether a property has Unmapped
19 ESHA: The existence of Unmapped ESHA is determined by the County at or before the time of

20 application acceptance and shall be based on the best available information. Id. (emphasis added).

21 The legislative history of the deadlines adoption makes clear that the County and the Coastal

22 Commission (who certified it) intended the deadline to guarantee that any Unmapped ESHA

23 determination would be made early in the development review stage, striking a balance between

24 the need to protect Unmapped ESHA on the one hand, and the need to preserve some level of

25 predictability in the permit process and to protect the County against the constant threat of legal

26 challenge based on ever-evolving best available information, on the other. See California Coastal
27 Commissions Staff Report (prepared July 8, 2008), entitled Staff Report Addendum for Th16a

28 SLO-MAJ-2-04 Part 2 (Estero Area Plan Update).

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 1 24. It is the Department of Planning and Building [that] is required to make a

2 determination of Unmapped ESHA, if at all, at or before the time of application acceptance.

3 Department of Planning and Buildings Staff Report for Planning Commissions Feb. 4, 2016,

4 Hearing, Exh. A, p. 1.

5 25. The Department loses the power to make Unmapped ESHA determinations after

6 application acceptance, at which point section 23.11.030 imposes a clear, present, and mandatory

7 duty on the Department to desist from purporting to make any such Unmapped ESHA determination.

8 26. The Departments determination that a property has Unmapped ESHA can have

9 devastating consequences for the landowners ability to reasonably use and develop the affected

10 property. The CZLUO provides that, with very limited exceptions, [a]ll development and land

11 divisions within or adjacent to an Environmentally Sensitive Habitat Area shall be designed and

12 located in a manner which avoids any significant disruption or degradation of habitat values.

13 CZLUO 23.01.170. At a minimum, an ESHA designation will severely curtail, if not completely

14 preclude, a proposed project.

15 27. No evidentiary hearing is required or authorized by law before the Department makes

16 a determination of Unmapped ESHA.

17 28. Other than section 23.11.030 of the CZLUO (Unmapped ESHA definition), no

18 federal, state, or local law requires or authorizes the Department (or any other County agency or
19 official) to make Unmapped ESHA determinations, let alone dictates the factual or scientific basis

20 for such a determination.

21 FACTUAL BACKGROUND

22 29. As explained above, Phillips 66 is the owner of 1,780 acres of land located at 2555

23 Willow Road, Arroyo Grande, where it operates the Santa Maria Refinery. Union Pacific Railroad

24 property bisects the Phillips 66 property from north to south. There is Mapped ESHA on the portion

25 of the Phillips 66 property that lies west of the Union Pacific Railroad property. The refinery

26 operations are on the east side of the Union Pacific Railroad property, where there is no Mapped
27 ESHA.

28 30. In late 2012, Phillips 66 began discussions with the Department about a project at its
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Verified First Amended Petition/Complaint
 1 Santa Maria Refinery that would allow Phillips 66 to extend the existing rail track on the refinery

2 property east of the Union Pacific Railroad property (where there is no ESHA) and install equipment

3 needed to enable rail delivery of North American crude oil (hereinafter, the Project). Phillips 66

4 filed an application with the Department for a Development Plan and Coastal Development Permit

5 for that project on May 2, 2013.

6 31. On or about June 18, 2013, Phillips 66s environmental consultant provided the

7 Department with a comprehensive assessment of the ecological setting of the proposed Project,

8 including a detailed characterization of the botanical and wildlife resources of the area in and

9 adjacent to the Project site, as well as a quantitative assessment of potential Project impacts on any

10 environmentally sensitive habitats that might exist on the Project site. The assessment established

11 and concluded that there was no Unmapped ESHA in or around the Project site.

12 32. The Department decided to accept Phillips 66s application on July 12, 2013. The

13 Department made no determination, at or before the time of said application acceptance, that the

14 Phillips 66 property had Unmapped ESHA. The Department never indicated that it needed

15 additional time to review Phillips 66s comprehensive environmental assessment or to decide, prior

16 to accepting the application, whether the property had Unmapped ESHA.

17 33. Reasonably and detrimentally relying on the fact that the Department made no

18 Unmapped ESHA determination at or before the time of application acceptance, Phillips 66 invested
19 significant resources to process its application, consistent with the demanding and costly

20 requirements of both the CZLUO and the California Environmental Quality Act. For example,

21 between the time of application acceptance and the date the Department made its Unmapped ESHA

22 determination, Phillips 66 paid third partiesincluding the Department, the County Air Pollution

23 Control District and environmental consultantsmore than $3 million to secure environmental

24 review of the Project.

25 34. In November 2013, the Department circulated the first Draft Environmental Impact

26 Report (EIR) evaluating the Projects environmental impacts. The Draft EIR made no mention of
27 Unmapped ESHA. After reviewing public comments on the Draft EIR, on October 10, 2014, the

28 Department circulated a Revised Draft EIR. In that Recirculated Draft EIR, the Department made
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Verified First Amended Petition/Complaint
 1 clear its determination that the Project Site would not be considered [Unmapped] ESHA. Revised

2 Public Draft EIR (Oct. 2014), at 4.4-24.

3 35. Sometime after it circulated the Revised Draft EIR, the Department was prompted to

4 consider making an Unmapped ESHA determination. On information and belief, Phillips 66

5 contends that staff from the California Coastal Commission applied significant pressure on the

6 Department to revisit the Unmapped ESHA issue after Coastal Commission staff visited the Project

7 site on May 27, 2015 and concludedwrongly and without sufficient evidencethat the site had

8 ESHA. Phillips 66 made clear its view, both in in-person meetings with Department staff and in

9 writing, that any belated Unmapped ESHA determination would be (1) unsupported by the science

10 and (2) barred by the Unmapped ESHA ordinance, which prohibited the Department from making

11 such a determination long after application acceptance and following Phillips 66s substantial

12 expenditures of time and resources processing its permit application on the reasonable assumption

13 that Unmapped ESHA determination would notand could notbe designated on the site.

14 36. Although it believed the Department had no authority to revisit the Unmapped ESHA

15 issue, in July 2015, Phillips 66s environmental consultant performed additional field studies in the

16 hopes of persuading the Department that the best available information did not justify a belated

17 Unmapped ESHA determination. The Department undertook its own field studies, as well.

18 37. In December 2015, the Department issued a Final EIR. The Final EIR does not
19 reflect a definitive Unmapped ESHA determination made by the Department. Instead, the Final EIR

20 notes that the potential for Unmapped ESHA exists and that the Project site . . . appears to meet

21 the definition of Unmapped ESHA. See Dec. 2012 Final EIR at 4.4-26, 4.4-31 (emphasis added).

22 38. Thereafter, the Department issued its Staff Report for the Planning Commissions

23 February 4 hearing on Phillips 66s application. In its Staff Report, the Department did not dispute

24 the meaning of section 23.11.030s deadline for making Unmapped ESHA determinations. Rather,

25 the Department opted simply to ignore the deadline and make the determination that the Project site

26 had undevelopable Unmapped ESHAan astounding 2 years and 7 months after it had accepted
27 Phillips 66s application and misled Phillips 66 to believe that its Project would not be affected by an

28 Unmapped ESHA determination at the tail end of the Departments environmental review of the
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 1 Project. Because section 23.11.030 does not provide for notice or hearing prior to an Unmapped

2 ESHA determination, the Department gave Phillips 66 no such notice or hearing prior to making its

3 determination in the Staff Report that the Project site purportedly had Unmapped ESHA.

4 39. Phillips 66 commented on the Departments belated Unmapped ESHA determination

5 in written comments and at Planning Commission hearings, explaining that the Unmapped ESHA

6 determination was precluded by both the scientific evidence and on section 23.11.030s express

7 mandate that any Unmapped ESHA determination must be made at or before the time of application

8 acceptance, or not at all.

9 40. The February 4, 2016, hearing before the Planning Commission was continued 7

10 times (to February 5, February 25, March 11, April 15, May 16, September 22 and October 5). At

11 the close of the May 16 hearing, the Planning Commission instructed the Department to prepare

12 Findings for Approval, Conditions of Approval, and CEQA Findings and Statement of Overriding

13 Considerations. It appeared at that time that the Planning Commission was prepared to not adopt,

14 ratify, acquiesce in, or rely upon the Departments belated Unmapped ESHA determination. The

15 Department prepared the requested findings and approvals for the September 22, 2016, Planning

16 Commission hearing. But the Department also published and presented the Planning Commission

17 with its February 4, 2016 Staff Report and Findings for Denial of the Project, thereby reasserting its

18 unlawful Unmapped ESHA determination. On October 5, 2016, the Planning Commission held its
19 last hearing on the Project, at which time it denied Phillips 66s project and adopted the Department-

20 crafted Findings for Denial, many of which incorporated the Departments unlawful Unmapped

21 ESHA determination. In doing so, the Planning Commission adopted, ratified, acquiesced in, or

22 relied on the Departments Unmapped ESHA determination.

23 FIRST CAUSE OF ACTION

24 FOR A TRADITIONAL WRIT OF MANDATE

25 (Against All Respondents)

26 41. Phillips 66 re-alleges and incorporates herein each and every allegation contained in
27 Paragraphs 1-40, inclusive, as though set forth in full herein.

28 42. The Department of Planning and Building, and the Director of Planning and Building
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 1 (collectively, Department), have a clear, present, mandatory and non-discretionary duty to comply

2 with the strict deadline imposed by section 23.11.030 for Unmapped ESHA determinations. Section

3 23.11.030 imposes a duty on the Department, if it wants to make an Unmapped ESHA determination

4 for a particular site, to make that determination only at or before the time of application acceptance.

5 Upon application acceptance, the Department is without power to make Unmapped ESHA

6 determinations, and section 23.11.030 imposes on it a concomitant duty to desist from doing so.

7 43. Similarly, the Planning Commission has a clear, present, mandatory and non-

8 discretionary duty to adopt, ratify, acquiesce in, or otherwise rely upon only lawful determinations,

9 including only lawful Unmapped ESHA determinations, made by the Department in adopting

10 findings or rendering decisions on land-use applications. The Planning Commission has no

11 discretion to adopt, ratify, acquiesce in, or otherwise rely upon illegal determinations made by the

12 Department or its staff.

13 44. The Department accepted Phillips 66s application on July 12, 2013. The Department

14 made no Unmapped ESHA determination at or before that time. And, even though the Department

15 had control over when it accepted the application, the Department did not communicate a need or

16 desire for more time to review Phillips 66s application (including its comprehensive environmental

17 assessment) and make a determination as to whether the Project site had Unmapped ESHA.

18 45. In reasonable and detrimental reliance on Departments conduct and statements

19 confirming no Unmapped ESHA on the site, including representations made in its October 2014

20 Drat EIR, Phillips 66 moved forward with the processing of its application, at substantial cost to it

21 and significant expenditure of its time. Under the principle of equitable estoppel, one whose

22 statement or conduct reasonably induces anothers detrimental reliance will be estopped to act

23 inconsistently with his or her statement or conduct. City of Long Beach v. Mansell, 3 Cal. 3d 462,

24 489 (1970).

25 46. When the Department indicated it would revisit the Unmapped ESHA issue, Phillips

26 66 alerted the Department on a number of occasions, both orally and in writing, that section
27 23.11.030 prohibits the Department from making Unmapped ESHA determinations after application

28 acceptance.
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 1 47. By October 5, 2016, the date of the Planning Commissions last hearing on Phillips

2 66s Project application, it became clear that the Department would not voluntarily bring itself into

3 compliance with section 23.11.030 and that its unlawful Unmapped ESHA determination was final.

4 That day, the Planning Commission denied Phillips 66s project and adopted Department-crafted

5 Findings for Denial, many of which incorporated the Departments unlawful Unmapped ESHA

6 determination. In doing so, the Planning Commission unlawfully adopted, ratified, acquiesced in, or

7 relied in large part on the illegal Unmapped ESHA determination, in violation of its clear, present,

8 and mandatory duty as a County planning agency that reviews and decides land-use applications to

9 adopt, ratify, acquiesce in, and rely on only legal determinations.

10 48. Phillips 66 has a direct and substantial interest, and therefore a beneficial right, in the

11 issuance of a writ commanding Respondents, and particularly the Department, to discharge the clear,

12 present and mandatory duty to revoke the illegal Unmapped ESHA determination and instead make

13 the determination that the Phillips 66 property has no Unmapped ESHA.

14 49. Phillips 66 also has a direct and substantial interest, and therefore a beneficial right, in

15 the issuance of a writ commanding Respondents, and particularly the Planning Commission, to re-

16 open the hearing on the permit application so that (1) the Department can discharge its duty to make

17 a no Unmapped ESHA determination consistent with section 23.11.030 and (2) the Planning

18 Commission can reconsider the application based on the fact that the site has no Unmapped ESHA.
19 50. Phillips 66s direct and substantial interest in the above-described writ is two-fold.

20 First, the Departments unlawful Unmapped ESHA determination is a basis for the Planning

21 Commissions denial of Phillips 66s Project and will continue to infect the decision-making process

22 as the Project is reviewed by the Board of Supervisors, unless the Unmapped ESHA determination is

23 corrected. Second, the Departments determination that there is undevelopable Unmapped ESHA on

24 Phillips 66s property constitutes, pro tanto, a downzoning of the property, the effect of which is to

25 reduce the propertys value and wrongfully limit Phillips 66s full use and enjoyment of its land,

26 both now and in the future.

27 51. Phillips 66 will continue to suffer irreparable harm, as described above, unless the

28 Planning Commission is compelled to re-open its hearing on the application and reconsider the
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 1 Project application after the Department revokes its Unmapped ESHA determination and, in its

2 stead, makes the determination that the Phillips 66 property has no Unmapped ESHA. Trial courts

3 have broad equitable power to fashion any appropriate remedies and, in doing so, they may

4 consider any unjust or harsh results, and adopt means to avoid them. Shapiro v. Sutherland, 64 Cal.

5 App. 4th 1534, 1552 (1998) (Equitable relief is by its nature flexible, and the maxim allowing a

6 remedy for every wrong (Civ. Code, 3523) has been invoked to justify the invention of new

7 methods of relief for new types of wrongs.).

8 52. As described above, from the moment that the Department evidenced an intent to

9 violate its clear, present and mandatory duty under section 23.11.030s Unmapped ESHA

10 provision, and make an untimely and therefore unlawful Unmapped ESHA determination, Phillips

11 66 exhausted its administrative remedies with the Department. Phillips 66 submitted written

12 comments and provided oral testimony at public hearings explaining why the Department was

13 without power to make an Unmapped ESHA determination after application acceptance and urging

14 the revocation of said unlawful determination, as required by section 23.11.030.

15 53. Under the County Code, the Department is responsible for making Unmapped ESHA

16 determinations. The Departments Unmapped ESHA determination is final, and the CZLUO

17 provides no administrative appeal therefrom. Phillips 66 has no other administrative remedies

18 against the Departments Unmapped ESHA determination, making the present challenge to said
19 determination ripe for this Courts review.

20 54. This action does not attack or otherwise challenge the Planning Commissions

21 discretionary decision as such to deny Phillips 66s application, but only the Planning Commissions

22 unlawful adoption, ratification, acquiescence in, or reliance on an illegal Unmapped ESHA

23 determination made by the Department. Phillips 66 advised the Planning Commission prior to its

24 action on or acquiescence in the Departments Unmapped ESHA determination that said

25 determination was unlawful, but to no avail. Phillips 66 has no further administrative remedies with

26 respect to the Planning Commissions action on or acquiescence in the Unmapped ESHA

27 determination.

28 55. Phillips 66 has no plain, speedy, or adequate remedy at law.

13
Verified First Amended Petition/Complaint
 1 56. For all these reasons, Phillips 66 is entitled to a writ against Respondents on the basis

2 of the duty created by section 23.11.030s Unmapped ESHA provision and/or under the doctrine

3 of equitable estoppel.

4 SECOND CAUSE OF ACTION

5 AS-APPLIED DUE PROCESS CHALLENGE TO UNMAPPED ESHA ORDINANCE

6 (U.S. Const., amend. XIV; Cal. Const. art. I, 7(a))

7 (Against All Defendants)

8 57. Phillips 66 re-alleges and incorporates herein each and every allegation contained in

9 Paragraphs 1-56, inclusive, as though set forth in full herein.

10 58. The Due Process Clause of the Fourteenth Amendment to the United States

11 Constitution prohibits state and local governments from depriv[ing] any person of life, liberty, or

12 property, without due process of law. Article I, section 7(a), of the California Constitution

13 similarly protects every person against depriv[ation] of life, liberty, or property without due process

14 of law.

15 59. An adjudicative governmental action that implicates a significant or substantial

16 property deprivation generally requires the procedural due process standards of reasonable notice

17 and opportunity to be heard. See, e.g., Calvert v. County of Yuba, 145 Cal. App. 4th 613 (2006).

18 60. A regulation is constitutionally void when, as a matter of due process, it is so vague

19 that persons of common intelligence must necessarily guess at its meaning and differ as to its

20 application. See, e.g., Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 773-74 (2002). The void-

21 for-vagueness doctrine is designed to prevent arbitrary and discriminatory enforcement. Id. The

22 problem with a vague regulation is that it impermissibly delegates basic policy matters to policemen,

23 judges, and juries for resolution on an ad hoc and subjective basis. Id.

24 61. Section 23.11.030 commits to the Department the power to determine, based on the

25 best information available at or before the time of application acceptance, whether Unmapped ESHA

26 exists on the applicants property.

27 62. A determination of Unmapped ESHA implicates a significant or substantial property

28 deprivation, as it severely limits or completely eliminates the applicants right to use or develop the
14
Verified First Amended Petition/Complaint
 1 area of his private property that is subject to the determination.

2 63. Despite the significant or substantial property deprivation occasioned by an

3 Unmapped ESHA determination, section 23.11.030 does not require or authorize the Department to

4 afford the applicant reasonable notice, an opportunity to be heard, or an evidentiary hearing in

5 advance of said deprivation. And, in this case, the Department did not provide Phillips 66 the

6 constitutionally required notice, opportunity to be heard, or evidentiary hearing before it made its

7 final Unmapped ESHA determination, which implicates a significant or substantial property

8 deprivation because it extinguishes Phillips 66s right to use and develop the area of Phillips 66s

9 property declared to be ESHA, including the ability to build the Project. For that reason, section

10 23.11.030 is unconstitutional, as applied to Phillips 66, because it denies Phillips 66 its due process

11 rights in advance of the property deprivation.

12 64. Section 23.11.030 is so vague as a matter of due process that persons of common

13 intelligence must necessarily guess at its meaning and differ as to its application.

14 65. Section 23.11.030 defines Unmapped ESHA as [a] type of Sensitive Resource Area

15 where plant or animal life or their habitats are either rare or especially valuable because of their

16 special nature or role in an ecosystem, but provides absolutely no standards (scientific or otherwise)

17 for ascertaining what is rare or especially valuable, or whether a resource has a special nature or

18 role in an ecosystem.
19 66. Beyond that vague and subjective standard, section 23.11.030 provides little guidance

20 for identifying Unmapped ESHA. Section 2.11.030 appears to include in the definition known

21 but unmappedwetlands, coastal streams and riparian vegetation, [and] terrestrial and marine

22 habitats. Presumably, those resources constitute Unmapped ESHA only if they also satisfy the

23 vague and subjective standard of being rare or especially valuable, but section 23.11.030 does not

24 say.

25 67. Finally, section 23.11.030 includes in its non-exhaustive list of Unmapped ESHA

26 resources areas that, ultimately, are only known or knowable to the County and its approved
27 expert. Even the inclusion of areas commonly known as habitat for species determined to be

28 threatened, endangered or otherwise needing protection leaves affected applicants just guessing at
15
Verified First Amended Petition/Complaint
 1 what the County (or its experts) will think are such commonly known areas that merit an

2 Unmapped ESHA determination.

3 68. Instead of providing objective and knowable standards that give Phillips 66 notice of

4 whether and the extent to which it can use its property in light of possible Unmapped ESHA, section

5 23.11.030 is utterly vague and subjective and, for that reason, unconstitutional as applied to Phillips

6 66.

7 69. An actual controversy exists between Phillips 66 and Defendants as to the

8 constitutionality of section 23.11.030s procedure authorizing Unmapped ESHA determinations.

9 Phillips 66 asserts that the Unmapped ESHA ordinance is unconstitutional as applied to it. Phillips

10 66 contends, on information and belief, that Defendants believe that the Unmapped ESHA ordinance

11 is constitutional as applied to Phillips 66.

12 70. Phillips 66 has no plain, speedy, or adequate remedy at law. Only declaratory and

13 injunctive relief, preventing enforcement of the Unmapped ESHA ordinance, can provide the

14 relief that Phillips 66 is due.

15 THIRD CAUSE OF ACTION

16 FACIAL DUE PROCESS CHALLENGE TO UNMAPPED ESHA ORDINANCE

17 (U.S. Const., amend. XIV; Cal. Const. art. I, 7(a))

18 (Against All Defendants)

19 71. Phillips 66 re-alleges and incorporates herein each and every allegation contained in

20 Paragraphs 1-70, inclusive, as though set forth in full herein.

21 72. The Due Process Clause of the Fourteenth Amendment to the United States

22 Constitution prohibits state and local governments from depriv[ing] any person of life, liberty, or

23 property, without due process of law. Article I, section 7(a), of the California Constitution

24 similarly protects every person against depriv[ation] of life, liberty, or property without due process

25 of law.

26 73. An adjudicative governmental action that implicates a significant or substantial

27 property deprivation generally requires the procedural due process standards of reasonable notice

28 and opportunity to be heard. See, e.g., Calvert v. County of Yuba, 145 Cal. App. 4th 613 (2006).
16
Verified First Amended Petition/Complaint
 1 74. A regulation is constitutionally void on its face when, as matter of due process, it is so

2 vague that persons of common intelligence must necessarily guess at its meaning and differ as to its

3 application. See, e.g., Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 773-74 (2002). The void-

4 for-vagueness doctrine is designed to prevent arbitrary and discriminatory enforcement. Id. The

5 problem with a vague regulation is that it impermissibly delegates basic policy matters to policemen,

6 judges, and juries for resolution on an ad hoc and subjective basis. Id.

7 75. Section 23.11.030 commits to the Department the power to determine, based on the

8 best information available at or before the time of application acceptance, whether Unmapped ESHA

9 exists on the applicants property. As interpreted by the County, the Unmapped ESHA ordinance

10 authorizes the designation of property as Unmapped ESHA at any time during the review of a

11 land-use application, in spite of the plain meaning of the ordinances deadline.

12 76. A determination of Unmapped ESHA implicates a significant or substantial property

13 deprivation, as it severely limits or completely eliminates the applicants right to use or develop the

14 area of his private property that is subject to the determination.

15 77. Despite the significant or substantial property deprivation occasioned by an

16 Unmapped ESHA determination, section 23.11.030 does not require or authorize the Department to

17 afford the applicant reasonable notice, an opportunity to be heard, or an evidentiary hearing in

18 advance of said deprivation. And, in this case, the Department did not provide Phillips 66 the
19 constitutionally required notice, opportunity to be heard, or evidentiary hearing before it made its

20 final Unmapped ESHA determination, which implicates a significant or substantial property

21 deprivation because it extinguishes Phillips 66s right to use and develop the area of Phillips 66s

22 property declared to be ESHA, including the ability to build the Project.

23 78. Section 23.11.030 is unconstitutional on its face because, pursuant to its terms, it

24 gives the Department the power unilaterally to designate property Unmapped ESHA, and thereby

25 deprive an applicant of a significant or substantial property right, without constitutionally adequate

26 notice, an opportunity to be heard, or an evidentiary hearing. And, insofar as the Unmapped ESHA
27 ordinance is interpreted to authorize Unmapped ESHA determinations at any time during the

28 review of a land-use application, it is facially unconstitutional, in part because it deprives applicants

17
Verified First Amended Petition/Complaint
 1 of adequate notice that use and development of their property are severely restricted or totally

2 prohibited.

3 79. Section 23.11.030 is so vague as a matter of due process that persons of common

4 intelligence must necessarily guess at its meaning and differ as to its application.

5 80. Section 23.11.030 defines Unmapped ESHA as [a] type of Sensitive Resource Area

6 where plant or animal life or their habitats are either rare or especially valuable because of their

7 special nature or role in an ecosystem, but provides absolutely no standards (scientific or otherwise)

8 for ascertaining what is rare or especially valuable, or whether a resource has a special nature or

9 role in an ecosystem.

10 81. Beyond that vague and subjective standard, section 23.11.030 provides little guidance

11 for identifying Unmapped ESHA. Section 2.11.030 appears to include in the definition known

12 but unmappedwetlands, coastal streams and riparian vegetation, [and] terrestrial and marine

13 habitats. Presumably, those resources constitute Unmapped ESHA only if they also satisfy the

14 vague and subjective standard of being rare or especially valuable, but section 23.11.030 does not

15 say.

16 82. Finally, section 23.11.030 includes in its non-exhaustive list of Unmapped ESHA

17 resources areas that, ultimately, are only known or knowable to the County and its approved

18 expert. Even the inclusion of areas commonly known as habitat for species determined to be
19 threatened, endangered or otherwise needing protection leaves affected applicants just guessing at

20 what the County (or its experts) will think are such commonly known areas that merit an

21 Unmapped ESHA determination.

22 83. Instead of providing objective and knowable standards that give applicants, including

23 Phillips 66 in this case, notice of whether and the extent to which they can use their property in light

24 of possible Unmapped ESHA, section 23.11.030 is utterly vague and subjective and, for that reason,

25 unconstitutional.

26 84. An actual controversy exists between Phillips 66 and Defendants as to the

27 constitutionality of section 23.11.030s procedure authorizing Unmapped ESHA determinations.

28 Phillips 66 asserts that the Unmapped ESHA ordinance is facially unconstitutional. Phillips 66
18
Verified First Amended Petition/Complaint
 1 contends, on information and belief, that Defendants believe that the Unmapped ESHA ordinance is

2 facially constitutional.

3 85. Phillips 66 has no plain, speedy, or adequate remedy at law. Only declaratory and

4 injunctive relief, preventing enforcement of the Unmapped ESHA ordinance, can provide the

5 relief that Phillips 66 is due.

6 PRAYER FOR RELIEF

7 WHEREFORE, Phillips 66 prays for relief as set forth below:

8 1. For a writ of mandate commanding Respondents to:

9 a. direct the Department of Planning and Building, and Director of Planning and

10 Building, to void, vacate and set aside their unlawful Unmapped ESHA determination, and instead

11 make a determination that the Phillips 66 property contains no Unmapped ESHA, consistent with

12 section 23.11.030 of the CZLUO; and

13 b. direct the Planning Commission to set aside the Findings of Denial, and reconsider

14 Phillips 66s application on the basis that the subject property has no Unmapped ESHA;

15 2. For a declaratory judgment that section 21.11.030s Unmapped ESHA ordinance is

16 unconstitutional under the Federal and/or California Constitutions, as applied to Phillips 66, because

17 it deprives Phillips 66 of a substantial or significant property interest without due process of law

18 and/or because the ordinance is unconstitutionally vague;

19 3. For a declaratory judgment that section 21.11.030s Unmapped ESHA ordinance is

20 facially unconstitutional under the Federal and/or California Constitutions, because it authorizes the

21 deprivation of a substantial or significant property interest without due process of law and/or because

22 the ordinance is unconstitutionally vague;

23 4. For a preliminary and permanent prohibitory injunction prohibiting Defendants from

24 implementing and enforcing section 21.11.030s definition of Unmapped ESHA, including the

25 procedure for making Unmapped ESHA determinations, to Phillips 66 and any other applicant, now

26 and in the future;

27 5. For Phillips 66s fees and costs;

28 6. For such other legal and equitable relief as this Court deems appropriate and just.
19
Verified First Amended Petition/Complaint
 1 DATED: March 22, 2017 JOCELYN D. THOMPSON
PAUL J. BEARD, II
2 ANDREA S. WARREN
ALSTON & BIRD LLP
3

5
Paul J. Beard II
6 Attorneys for Petitioner
PHILLIPS 66 COMPANY
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Verified First Amended Petition/Complaint
 VERIFICATION

1. I am the Maintenance Superintendent at Petitioner/Plaintiff Phillips 66 Company's

Santa Maria Refinery, at 2555 Willow Road, Arroyo Grande, California. I am authorized to make

this Verification on the Company's behalf.

2. I have read the foregoing Verified First Amended Petition for Writ of Mandate, and

Complaint for Declaratory and Injunctive Relief. Except for matters stated on information and

belief, the facts stated therein are true of my own knowledge. As to those matters stated on

information and belief, 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 and that this verification was executed this March 22, 2017, at Arroyo Grande,

California.

? James 0. Anderson
"4

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Verified First Amended Petition/Complaint
 1 PROOF OF SERVICE

2 I, Annie Yu, declare:

3 I am employed in the County of Sacramento, State of California. I am over the age of
18 and not a party to the action in which this service is made. My business address is Alston & Bird
4 LLP, 1115 11th Street, Sacramento, CA 95814.
5 On March 22, 2017, I served the document(s) described VERIFIED FIRST
AMENDED PETITION FOR WRIT OF MANDATE; COMPLAINT FOR DECLARATORY
6 AND INJUNCTIVE RELIEF on the interested parties in this action by enclosing the document(s)
in a sealed envelope addressed as follows: See Attached Service List
7
0 BY MAIL: I am "readily familiar" with this firm's practice for the collection and the
8 processing of correspondence for mailing with the United States Postal Service. In the
ordinary course of business, the correspondence would be deposited with the United States
9 Postal Service at 1115 11th Street, Sacramento, CA 95814 with postage thereon fully prepaid
the same day on which the correspondence was placed for collection and mailing at the firm.
10 Following ordinary business practices, I placed for collection and mailing with the United
States Postal Service such envelope at Alston & Bird LLP, 1115 11th Street, Sacramento, CA
11 95814

12 El BY FEDERAL EXPRESS ID UPS NEXT DAY AIR CI OVERNIGHT DELIVERY: I

deposited such envelope in a facility regularly maintained by 0 FEDERAL EXPRESS ID
13 UPS 0 Overnight Delivery [specify name of service: ] with delivery fees fully provided for
or delivered the envelope to a courier or driver of 0 FEDERAL EXPRESS El UPS 0
14 OVERNIGHT DELIVERY [specify name of service:] authorized to receive documents at
Alston & Bird LLP, 1115 11th Street, Sacramento, CA 95814 with delivery fees fully
15 provided for.

16 El BY ELECTRONIC MAIL TRANSMISSION WITH ATTACHMENT: On this date, I

transmitted the above-mentioned document(s) by electronic mail transmission with
17 attachment to the parties at the electronic mail address set forth on the attached Service List
18 0 BY FACSIMILE: I telecopied a copy of said document(s) to the following addressee(s) at
the following number(s) in accordance with the written confirmation of counsel in this action.
19
0 [State] I declare under penalty of perjury under the laws of the State of California that the
20 above is true and correct.
21 0 [Federal] I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
22
Executed on March 22, 2017, at Sacramento, California.
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Verified First Amended Petition/Complaint
 1 Phillips 66 Company v. County of San Luis Obispo, et al.
San Luis Obispo County Superior Court
2
Case No. 16CV-0502
3
SERVICE LIST
4

5 Rita L. Neal Attorneys for Respondents/Real Party in Interest

Matthew Christen COUNTY OF SAN LUIS OBISPO
6 Office of the County Counsel
County Government Center Telephone: (805) 781-5400
7 1055 Monterey Street, Room D320 Facsimile: (805) 781-4221
San Luis Obispo, California 93408
8
mchristen@co.slo.ca.us
9
Roger Lin Attorney for Intervenor
10 Communities for a Better Environment COMMUNITIES FOR A BETTER
120 Broadway, Suite 2 ENVIRONMENT
11 Richmond, California 94804
roger@cbecal.org Telephone: (510) 302-0430
12 Facsimile: (510) 302-0437
13
Linda Krop Attorney for Intervenors
14 Alicia Roessler ENVIRONMENTAL DEFENSE CENTER,
Environmental Defense Center SURFRIDER FOUNDATION, CENTER FOR
15
906 Garden Street BIOLOGICAL DIVERSITY, STAND.EARTH
Santa Barbara, California 93101
16 lkrop@environmentaldefensecenter.org Telephone: (805) 963-1622
aroessler@environmentaldefensecenter.org Facsimile: (805) 962-3152
17

18 Devorah Ancel Attorney for Intervenor

Sierra Club SIERRA CLUB
19 2101 Webster Street, Suite 1300
Oakland, California 94612 Telephone: (415) 977-5721
20 devorah.ancel@sierraclub.org Facsimile: (510) 208-3140
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Verified First Amended Petition/Complaint